Final Rule Board Decision (discussing comments)

SERVICE DATE – SEPTEMBER 5, 2013

43026
EB

SURFACE TRANSPORTATION BOARD
DECISION
Docket No. EP 714
INFORMATION REQUIRED IN NOTICES AND PETITIONS CONTAINING
INTERCHANGE COMMITMENTS
Digest:1 This decision adopts final rules that establish additional disclosure
requirements for notices and petitions for exemption where the underlying lease
or line sale includes an interchange commitment.
Decided: August 29, 2013
AGENCY: Surface Transportation Board.
ACTION: Final Rules.
SUMMARY: On November 1, 2012, the Board issued a Notice of Proposed Rulemaking (NPR)
proposing rules that would establish additional disclosure requirements for notices and petitions
for exemption where the underlying lease or line sale includes an interchange commitment.
Information Required in Notices and Petitions Containing Interchange Commitments, EP 714
(STB served Nov. 1, 2012). Based on the comments received and further evaluation, the Board
now adopts as final the proposed rules, with modifications that reduce the amount of information
required to be submitted. The final rules are set forth in the Appendix.
DATES: Effective date: These rules will be effective on October 5, 2013.
FOR FURTHER INFORMATION CONTACT: Amy C. Ziehm at (202) 245-0391. Assistance
for the hearing impaired is available through the Federal Information Relay Service (FIRS) at
(800) 877-8339.
SUPPLEMENTARY INFORMATION: Interchange commitments are “contractual provisions
included with a sale or lease of a rail line that limit the incentive or the ability of the purchaser or

1

The digest constitutes no part of the decision of the Board but has been prepared for the
convenience of the reader. It may not be cited to or relied upon as precedent. Policy Statement
on Plain Language Digests in Decisions, EP 696 (STB served Sept. 2, 2010).

Docket No. EP 714
tenant carrier to interchange traffic with rail carriers other than the seller or lessor railroad.”2
Under the Board’s existing rules, if a proposed acquisition of a rail line involves an interchange
commitment, the party filing the notice or petition for exemption must inform the Board that
such a provision exists and must file a confidential, complete version of the document containing
that provision with the Board.3
In the NPR, the Board proposed to require that applicants provide additional information
in notices and petitions for exemption, including information intended to assist the Board and
interested parties in evaluating the significance and economic impact of the interchange
commitment. The Board proposed that the applicant provide:
(1) a list of shippers that currently use or have used the line in question within the last
two years;
(2) the number of carloads those shippers specified in paragraph (1) originated or
terminated (submitted under seal);
(3) a certification that the railroad has provided notice of the proposed transaction and
interchange commitment to the shippers identified in paragraph (1);
(4) a list of third party railroads that could physically interchange with the line sought to
be acquired or leased;
(5) the percentage of the purchasing/leasing railroad’s revenue projected to be derived
from operations on the line with the interchange commitment4 (submitted under seal);
(6) an estimate of the difference between the sale or lease price with and without the
interchange commitment5 (submitted under seal);
(7) an estimate of the discounted annual value of the interchange commitment to the
Class I (or other incumbent carrier) leasing or selling the line (submitted under seal); and
(8) a change in the case caption so that the existence of an interchange commitment is
apparent from the case title.6
Because the procedures for class exemptions contain very short deadlines, the Board also
proposed to require disclosure of information about the transaction at the time of the notice itself,
rather than during any subsequent requests to reject or revoke the exemption. The purpose of
this rulemaking was to improve the ability of the Board and affected parties to determine at the
outset whether a transaction that includes an interchange commitment is appropriate for the
exemption process or raises competitive issues that require a more detailed examination. The
2

Review of Rail Access and Competition Issues—Renewed Petition of the W. Coal
Traffic League, EP 575, slip op. at 1 (STB served Oct. 30, 2007). Interchange commitments are
sometimes referred to as “paper barriers.”
3

See 49 C.F.R. §§ 1121.3(d), 1150.33(h), 1150.43(h), and 1180.4(g)(4).

4

Hereinafter referred to as “the revenue requirement.”

5

Hereinafter referred to as “the discounted annual value requirement.”

6

See NPR, slip op. at 6.

2

Docket No. EP 714
Board stated that early disclosure would eliminate delays in the decision-making process for the
types of transactions at issue caused by the need to obtain additional information.
The Board sought comments on the proposed regulations by December 3, 2012, and
replies by January 2, 2013.7 The Board received comments both supporting the proposed rules8
and opposing them.9
THE FINAL RULES
Having carefully considered the parties’ comments, the Board has decided to modify the
disclosure requirements set forth in the NPR. It now adopts final rules requiring that the
following information be included in notices and petitions for exemption involving an
interchange commitment:
1.
A list of shippers that currently use or have used the line in question within the
last two years;
2.
The aggregate number of carloads those shippers specified in paragraph (1)
originated or terminated (confidential);
3.
A certification that the filing party has provided notice of the proposed transaction
and interchange commitment to the shippers identified in paragraph (1);

7

The Board has received comments and/or replies from the Rail Industry Working
Group (RIWG); the Association of American Railroads (AAR); the American Short Line and
Regional Railroad Association (ASLRRA); Norfolk Southern Railway Company (NSR); Union
Pacific Railroad Company (UP); the United States Department of Agriculture (USDA); the
Oregon Department of Transportation (ODOT); the Pennsylvania Department of Transportation
(PennDOT); the National Grain and Feed Association (NGFA); Minn-Kota Ag Products (MinnKota); Sherwood Construction Co., Inc. (Sherwood); Harrison Gypsum, LLC (Harrison
Gypsum); Milnor Grain Company (Milnor); Consumers United for Rail Equity (CURE);
American Chemistry Council (ACC); The National Industrial Transportation League (NITL);
Alliance for Rail Competition (ARC) (filed with Montana Wheat & Barley Committee, Colorado
Wheat Administrative Committee, Idaho Barley Commission, Idaho Wheat Commission,
Montana Farmers Union, Nebraska Wheat Board, Oklahoma Wheat Commission, South Dakota
Wheat Commission, Texas Wheat Producer Board, Washington Grain Commission, National
Association of Wheat Growers); Arkansas Electric Cooperative Corporation (AECC); The
Chlorine Institute, Inc.; Union Electric d/b/a Ameren Missouri (Ameren Missouri); Arkansas
Oklahoma Railroad (A-OK); Progressive Rail, Inc. (PGR); and United Transportation UnionNew York Legislative Board (UTU-NY).
8

See generally ARC Comment; Ameren Missouri Comment; NITL Comment; USDA
Comment; NGFA Comment; CURE Comment; ACC Comment.
9

See generally UP Comment; ASLRRA Comment; NSR Comment; AAR Comment;
RIWG Comment; Minn-Kota Comment; PennDOT Comment; Harrison Gypsum Comment;
Sherwood Comment; Milnor Comment; ODOT Comment; PGR Reply; A-OK Reply.

3

Docket No. EP 714
4.
A list of third party railroads that could physically interchange with the line
sought to be acquired or leased;
5.
An estimate of the difference between the sale or lease price with and without the
interchange commitment (confidential);
6.
A change in the case caption so that the existence of an interchange commitment
is apparent from the case title.
The Board is not including in the final rules the proposed revenue requirement or the
discounted annual value requirement.
We discuss below the issues raised in the comments received on the proposed rules and
our revisions made in response to the comments. The attached Appendix contains the final rules
in full.
A. Burdens Associated with Filing and Purported Chilling Effect
Several commenters suggest that the Board underestimated the burdens associated with
compiling the new information required by the proposed rules.10 For instance, AAR states that
the discounted annual value requirement would require information that is likely not in the
control of the filing party and would be difficult to obtain.11 AAR also suggests that the filing
party would be required to speculate as to the difference in the lease or sale price to the
incumbent carrier with and without the interchange commitment.12
ASLRRA argues that the Board overestimates the ability of shortlines to obtain and
provide the information required, and understates the time and expense that would be necessary
to prepare the information.13 ASLRRA maintains that it is unlikely that a shortline will be
capable of developing the key inputs of the Class I that would be critical to valuation such as the
valuation period estimates, the terminal value assumptions, growth rates in traffic, marginal costs
of incremental traffic, track maintenance expenses, and system impacts.14
Several commenters also suggest that the proposed rules would have a chilling effect on
lease and sale transactions involving interchange commitments, because either the Board will
begin rejecting such transactions or rail carriers will not negotiate such agreements because of
the additional burdens.15 This chilling effect, according to AAR, would be, in part, due to the

10

See, e.g., AAR Comment 10-11; UP Comment 8-9; ASLRRA Comment 18-20.

11

AAR Comment 10-11.

12

Id. at 11.

13

ASLRRA Comment 18.

14

Id. at 14; UP Comment 9.

15

UP Comment 3; AAR Comment 2, 8; ASLRRA Comment 9.

4

Docket No. EP 714
cost associated with gathering estimates of the difference between the sale or lease price with
and without the interchange commitments and the discounted annual value requirement.16
We find persuasive the argument that some of the data proposed to be collected may not
have been easily quantifiable by the filing party and, thus, could have been difficult to assemble.
We also recognize the concern that shortlines would have to rely upon the incumbent carrier to
provide the discounted annual value requirement. In response to these concerns, we are not
including the discounted annual value requirement or the revenue requirement disclosures in the
final rules. We are, however, retaining the requirement that the filing party provide a
confidential estimate of the difference between the sale or lease price with and without the
interchange commitment. We believe the relevance of this information for a party that may seek
to vacate or challenge the interchange commitment outweighs any burden to the filer. We also
believe this information would prove useful to the Board in making its case-by-case review of
transactions that contain interchange commitments.17
Where there has been a negotiation over the price and other price-related terms of an
interchange commitment, there is no basis for a filing party to claim that providing a confidential
estimate of the difference between the sale or lease price with and without the interchange
commitment is unduly burdensome or difficult to obtain. Indeed, in several recent notices of
exemption, the agreement itself refers to a process whereby the lease initially was negotiated
without an interchange commitment and then subsequently revised to include such a provision at
the leasing railroad’s request.18 We recognize, however, that the difference between the sale or
lease price with and without the interchange commitment may not always be discussed in
negotiations between the incumbent carrier and the purchaser/lessee. Therefore, if the applicant
does not have an estimate of the difference in price as a result of contract negotiations, it can
request that information in writing from the incumbent carrier and submit the incumbent carrier’s
response with its initial notice or petition before the Board. Accordingly, the filing party would
16

AAR Comment 8.

17

Review of Rail Access and Competition Issues—Renewed Petition of the W. Coal
Traffic League, EP 575, slip op. at 14 (STB served Oct. 30, 2007) (deciding that the Board
would consider the propriety of interchange commitments on a case-by-case basis).
18

See, e.g., Lease Agreement, Ann Arbor R.R.—Lease Exemption—Norfolk S. Ry.,
Docket No. FD 35729 (filed June 26, 2013) (Ann Arbor Railroad, Inc. designated this
information as “highly confidential.” Although the general practice is to avoid references to
confidential or highly confidential information in Board decisions, the Board reserves the right to
rely upon and disclose such information in decisions when necessary. In this case, the Board has
determined that referencing this particular clause is necessary to explain our decision and does
not jeopardize the confidentiality of the rest of the Lease Agreement.); Verified Notice of
Exemption, Midwest Rail d/b/a Toledo, Lake Erie and W. Ry —Lease & Operation
Exemption—Norfolk S. Ry., Docket No. FD 35634 (filed June 15, 2012); Verified Notice of
Exemption, E. Penn R.R.—Lease & Operation Exemption—Norfolk S. Ry., Docket No. FD
35533 (filed July 1, 2011).

5

Docket No. EP 714
not be required to spend a great deal of additional time making calculations to meet this
requirement.
We do not believe that the additional disclosures established by the final rule would
discourage parties from entering into efficiency-enhancing transactions. As stated in the NPR,
the Board will continue to review transactions involving interchange commitments on a case by
case basis.19
B. Confidentiality
UP asserts that the proposed rules are ambiguous about the manner in which the
information filed under seal will be kept confidential.20 It is our intention to treat the new
information that is confidential in the same manner in which the agreements have thus far been
treated under the current rules, i.e., it will be kept confidential without need for the filing of an
accompanying motion for a protective order. Additional language has been added to the final
rules to clarify this procedure.
C. Comments Outside the Scope of this Rulemaking
Several commenters raise issues that are either outside the scope of this rulemaking or
that were clearly addressed in EP 575. For instance, many commenters argue that interchange
commitments are generally anticompetitive21 and urge the Board to adopt stricter rules that
regulate the content of the interchange commitment itself.22 Several commenters would require
the Board to develop a specific policy toward interchange commitments,23 or would require the
Board to review all pre-existing interchange commitments.24 CURE maintains that an outright
ban on interchange commitments would be appropriate.25
19

Id.

20

UP Comment 5, 11.

21

See generally USDA Comment; NFGA Comment; CURE Comment.

22

Ameren Missouri Comment 7 (all interchange commitments should contain a
“reasonable sunset provision”); AECC Comment 9-10 (the Board should adopt a policy to
disapprove or limit interchange commitments under certain specific circumstances).
23

AECC Comment 3.

24

USDA Comment 1 (the Board should retroactively review all existing interchange
commitments for any anti-competitive provisions); NITL Comment 1, 9-10 (proposing
additional reporting requirements including requiring public disclosure of all pre-existing
interchange commitments); see also ARC Comment 3 (stating that the proposed rules are “a
necessary (though not sufficient) response to the problem of interchange commitments that are
unreasonable and anticompetitive).
25

CURE Comment 1 (“[A]ll ‘paper barriers’ [are] restraints on competition that should
be per se illegal.”).

6

Docket No. EP 714

We will not address comments that advocate for banning or regulating the content of
interchange commitments themselves as they are outside of the scope of the proposed rules. 26
The purpose of this rulemaking is for the Board to obtain information to assist it in performing
individualized, case-by-case evaluations of notices and petitions to exempt transactions that
include interchange commitments.27 The scope of this rulemaking did not include consideration
of rules of general applicability to determine the legality of interchange commitments. The
Board will continue to perform a case-by-case, fact-specific review of these transactions, in
which we will weigh the benefits of a particular interchange commitment against its potential for
harm.28
D. Other Points of Clarification
UP raised a concern regarding the requirement that the filing party provide the number of
carloads that affected shippers originated or terminated. Specifically, UP questioned whether the
Board was looking for an aggregate number or sought the carloads broken down by shipper.29
We clarify that the Board is seeking the number of carloads in the aggregate.
UP and ASLRRA assert that the term “could physically interchange” is vague and does
not address situations involving current or potential track construction or trackage rights. 30 We
clarify that the rules intend the term to cover the ability to physically interchange based on
traffic conditions at the time the notice or petition is filed before the Board. The filing party may
provide additional information about operational limitations or other restrictions that could
reduce or eliminate the competitive significance of the ability to physically interchange traffic at
the point.
NSR argues that its lease credits–which “provide an incentive to the shortline to
interchange traffic with NSR up to a point”–are not interchange commitments because they do
not prohibit a shortline’s ability to interchange with other carriers.31 The Board has defined an
interchange commitment as a “provision or agreement that may limit future interchange with a
third-party connecting carrier, whether by outright prohibition, per-car penalty, adjustment in the
26

The Board likewise declines to address the comment from UTU-NY as it is beyond the
scope of this rulemaking. See UTU-NY Comment 5 (“UTU-NY is concerned that the statutory
provisions of 49 U.S.C. [§] 10902[] not be a wide-open substitute for transactions more
appropriately instituted under the multiple-carrier provisions of 49 U.S.C. [§§] 11323-25.”).
27

NPR, slip op. at 5.

28

Id. at 8.

29

UP Comment 6.

30

Id. at 7-8; ASLRRA Comment 15-16.

31

NSR Comment 7-9.

7

Docket No. EP 714
purchase price or rental, positive economic inducement, or other means.”32 Moreover, in the
NPR, the Board recognized that lease credits are a type of interchange commitment.33
Accordingly, the Board declines to adopt NSR’s interpretation and clarifies that we consider the
agreements described by NSR to be interchange commitments.
RIWG and ASLRRA assert that the Rail Industry Agreement (RIA) provides an adequate
remedy to resolving issues involving interchange commitments and that, therefore, this
rulemaking is unnecessary.34 The Board recognizes and appreciates the value of the RIA and the
process it provides for shortlines to seek a waiver from certain interchange commitment
restrictions. However, the existence of the private RIA in no way limits the Board’s ability to
obtain the additional information it is seeking in this rulemaking to carry out its regulatory
responsibilities. In any event, the RIA only provides an avenue for purchasing or leasing
railroads to seek a waiver, and does not provide the same opportunity to other interested parties,
such as shippers or communities affected by the transaction.
PAPERWORK REDUCTION AND REGULATORY FLEXIBILITY
In the NPR, published in the Federal Register at 77 Fed. Reg. 66,165 on November 2,
2012, the Board sought comments pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C.
§ 3501-3549, and Office of Management and Budget (OMB) regulations at 5 C.F.R. § 1320.11,
regarding: (1) whether the collection of information as modified in the proposed rule, is
necessary for the proper performance of the functions of the Board, including whether the
collection has practical utility; (2) the accuracy of the Board’s burden estimates; (3) ways to
enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize
the burden of the collection of information on the respondents, including the use of automated
collection techniques or other forms of information technology, when appropriate. We received
comments regarding the Board’s burden estimates and have addressed them herein.35
The proposed rule modifications were submitted to OMB for review as required under
the PRA, 44 U.S.C. § 3507(d), and 5 C.F.R. § 1320.11. No substantive comments were received
from OMB. Unless renewed, OMB approval for this collection expires August 31, 2014. The
OMB control number is 2140-0016. The display of a currently valid OMB control number for
this collection is required by law. Under the PRA and 5 C.F.R. § 1320.11, an agency may not
conduct or sponsor, and a person is not required to respond to, a collection of information unless
the collection displays a currently valid OMB control number.

32

See, e.g., 49 C.F.R. § 1121.3(d)(1).

33

NPR, slip op. at 2 (“Interchange commitments took varying forms, including lease
payment credits for cars interchanged with the seller or lessor carrier”).
34

RIWG Comment 3-4; ASLRRA Comment 13-14.

35

See supra pp. 6-9; infra p. 14-15.

8

Docket No. EP 714
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. §§ 601-612, generally requires a
description and analysis of new rules that would have a significant economic impact on a
substantial number of small entities. Under § 605(b), an agency is not required to perform an
initial or final regulatory flexibility analysis if it certifies that the proposed or final rules will not
have a “significant impact on a substantial number of small entities.” In accordance with
§ 605(b), we certify that the final rules will not have a significant economic impact on a
substantial number of small entities.36 The basis for this determination is as follows.
The regulations adopted here will affect all railroads filing notices and petitions for
exemption for sales and leases that contain interchange commitments. The filing railroad (or
respondent) is typically a small rail carrier. Between May 2008, when the Board began requiring
the disclosure of interchange commitments in notices and petitions for exemption, and the date
of this decision, a total of 12 notices or petitions for exemption for leases that contain
interchange commitments were filed that would have been affected by these regulations, or 2.4
petitions per year. Nevertheless, in an abundance of caution, the Board estimates that a total of
four small rail carriers, out of a total of approximately 560 small Class II and III rail carriers, will
file such notices or petitions per year, and thus will be affected by these additional reporting
requirements. We further estimate that the additional time required by each rail carrier
respondent to comply with these additional reporting requirements is no more than eight hours.
Most of the information sought by the Board under these final rules is information that the filing
railroad would likely already have as a result of due diligence it completed in the course of its
contract negotiations. With respect to the requirement that the filer provide an estimate of the
difference in the sale or lease price of the transaction with and without the interchange
commitment, the Board seeks a good faith estimate to fulfill this requirement. If the filing
railroad does not have an estimate of the difference in price as a result of contract negotiations, it
can request that information in writing from the incumbent carrier and submit to the Board the
incumbent carrier’s response with its initial notice or petition. Therefore, the Board certifies
under 5 U.S.C. § 605(b) that these rules will not have a significant economic impact on a
substantial number of small entities within the meaning of the RFA.
This action will not significantly affect either the quality of the human environment or the
conservation of energy resources.
It is ordered:
1. The rules set forth in the Appendix are adopted as final rules.
2. Notice of this decision will be published in the Federal Register. The final rules will
be effective on October 5, 2013.
36

The Small Business Administration’s (SBA) Office of Size Standards develops the
numerical definition of a small business. See 13 C.F.R. § 121.201. The SBA has established a
size standard for rail transportation, stating that a line-haul railroad is considered small if its
number of employees is 1,500 or less, and that a short line railroad is considered small if its
number of employees is 500 or less. Id. (industry subsector 482).

9

Docket No. EP 714

3. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of
Advocacy, U.S. Small Business Administration.
By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Mulvey.
Vice Chairman Begeman dissented with a separate expression.
_______________________________________
VICE CHAIRMAN BEGEMAN, dissenting:
I did not object to the Board’s Notice of Proposed Rulemaking when it was issued last
November, because I believed the Board could benefit from hearing the views of interested
parties on whether changes were needed to improve the Board’s existing rules on interchange
commitments. Unfortunately, the record fails to convince me that these new requirements offer
meaningful improvements over the Board’s existing rules, nor, importantly, that the usefulness
of the additional information outweighs the extra reporting burdens being imposed on small
businesses here. This is especially true since it remains unclear how the Board will even use the
additional information, if at all. Therefore, I dissent from the Board’s decision.

10

Docket No. EP 714
Appendix
Code of Federal Regulations
For the reasons set forth in the preamble, the Surface Transportation Board amends parts
1121, 1150, and 1180 of title 49, chapter X, of the Code of Federal Regulations as follows:
PART 1121 – RAIL EXEMPTION PROCEDURES
1. The authority citation for part 1121 continues to read as follows:
Authority: 49 U.S.C. §§ 10502 and 10704.
2. Amend § 1121.3 by revising paragraphs (d) introductory text, (d)(1), and (d)(1)(ii),
and by adding paragraphs (d)(1)(iii) through (viii) to read as follows:
§ 1121.3 Content.
* * * * *
(d) Interchange Commitments.
(1) The filing party must certify whether or not a proposed acquisition or operation of a
rail line involves a provision or agreement that may limit future interchange with a third-party
connecting carrier, whether by outright prohibition, per-car penalty, adjustment in the purchase
price or rental, positive economic inducement, or other means (“interchange commitment”). If
such a provision exists, the following additional information must be provided (the information
in paragraphs (ii), (iv), (vii) of this subsection may be filed with the Board under 49 C.F.R.
§ 1104.14(a) and will be kept confidential without need for the filing of an accompanying motion
for a protective order under 49 C.F.R. § 1104.14(b)):
(i) * * * * *
(ii) A confidential, complete version of the document(s) containing or addressing that
provision or agreement;
(iii) A list of shippers that currently use or have used the line in question within the last
two years;
(iv) The aggregate number of carloads those shippers specified in paragraph (iii)
originated or terminated (confidential);
(v) A certification that the filing party has provided notice of the proposed transaction
and interchange commitment to the shippers identified in paragraph (iii);
(vi) A list of third party railroads that could physically interchange with the line sought
to be acquired or leased;
(vii) An estimate of the difference between the sale or lease price with and without the
interchange commitment (confidential);
(viii) A change in the case caption so that the existence of an interchange commitment is
apparent from the case title.
* * * * *

11

Docket No. EP 714
PART 1150 – CERTIFICATE TO CONSTRUCT, ACQUIRE, OR OPERATE
RAILROAD LINES
3. The authority citation for part 1150 continues to read as follows:
Authority: 49 U.S.C. §§ 721(a), 10502, 10901, and 10902.
4. Amend § 1150.33 by revising paragraphs (h) introductory text, (h)(1), and (h)(1)(ii),
and by adding paragraphs (h)(1)(iii) through (viii) to read as follows:
§ 1150.33 Information to be contained in notice—transactions that involve creation of
Class III carriers.
(h) Interchange Commitments.
(1) The filing party must certify whether or not a proposed acquisition or operation of a
rail line involves a provision or agreement that may limit future interchange with a third-party
connecting carrier, whether by outright prohibition, per-car penalty, adjustment in the purchase
price or rental, positive economic inducement, or other means (“interchange commitment”). If
such a provision exists, the following additional information must be provided (the information
in paragraphs (ii), (iv), (vii) of this subsection may be filed with the Board under 49 C.F.R.
§ 1104.14(a) and will be kept confidential without need for the filing of an accompanying motion
for a protective order under 49 C.F.R. § 1104.14(b)):
(i) * * * * *
(ii) A confidential, complete version of the document(s) containing or addressing that
provision or agreement;
(iii) A list of shippers that currently use or have used the line in question within the last
two years;
(iv) The aggregate number of carloads those shippers specified in paragraph (iii)
originated or terminated (confidential);
(v) A certification that the filing party has provided notice of the proposed transaction
and interchange commitment to the shippers identified in paragraph (iii);
(vi) A list of third party railroads that could physically interchange with the line sought
to be acquired or leased;
(vii) An estimate of the difference between the sale or lease price with and without the
interchange commitment (confidential);
(viii) A change in the case caption so that the existence of an interchange commitment is
apparent from the case title.
* * * * *
5. Amend § 1150.43 by revising paragraphs (h) introductory text, (h)(1), and (h)(1)(ii),
and by adding paragraphs (h)(1)(iii) through (viii) to read as follows:
§ 1150.43 Information to be contained in notice for small line acquisitions.
(h) Interchange Commitments.
(1) The filing party must certify whether or not a proposed acquisition or operation of a
rail line involves a provision or agreement that may limit future interchange with a third-party
connecting carrier, whether by outright prohibition, per-car penalty, adjustment in the purchase

12

Docket No. EP 714
price or rental, positive economic inducement, or other means (“interchange commitment”). If
such a provision exists, the following additional information must be provided (the information
in paragraphs (ii), (iv), (vii) of this subsection may be filed with the Board under 49 C.F.R.
§ 1104.14(a) and will be kept confidential without need for the filing of an accompanying motion
for a protective order under 49 C.F.R. § 1104.14(b)):
(i) * * * * *
(ii) A confidential, complete version of the document(s) containing or addressing that
provision or agreement;
(iii) A list of shippers that currently use or have used the line in question within the last
two years;
(iv) The aggregate number of carloads those shippers specified in paragraph (iii)
originated or terminated (confidential);
(v) A certification that the filing party has provided notice of the proposed transaction
and interchange commitment to the shippers identified in paragraph (iii);
(vi) A list of third party railroads that could physically interchange with the line sought
to be acquired or leased;
(vii) An estimate of the difference between the sale or lease price with and without the
interchange commitment (confidential);
(viii) A change in the case caption so that the existence of an interchange commitment is
apparent from the case title.
* * * * *
PART 1180 – RAILROAD ACQUISITION, CONTROL, MERGER, CONSOLIDATION
PROJECT, TRACKAGE RIGHTS, AND LEASE PROCEDURES
6. The authority citation for part 1180 continues to read as follows:
Authority: 5 U.S.C. §§ 553 and 559; 11 U.S.C. 1172; 49 U.S.C. 721, 10502, 1132311325.
7. Amend § 1180.4 by revising paragraphs (g)(4) introductory text, (g)(4)(i), and
(g)(4)(i)(B), and by adding paragraphs (g)(4)(i)(C) through (H) to read as follows:
§ 1180.4 Procedures.
(g) * * *
(4) Transactions imposing interchange commitments.
(i) If a proposed acquisition or operation of a rail line involves a provision or agreement
that may limit future interchange with a third-party connecting carrier, whether by outright
prohibition, per-car penalty, adjustment in the purchase price or rental, positive economic
inducement, or other means (“interchange commitment”), the following additional information
must be provided (the information in paragraphs (B), (D), (G) of this subsection may be filed
with the Board under 49 C.F.R. § 1104.14(a) and will be kept confidential without need for the
filing of an accompanying motion for a protective order under 49 C.F.R. § 1104.14(b)):
(A) * * * * *
(B) A confidential, complete version of the document(s) containing or addressing that
provision or agreement;

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(C) A list of shippers that currently use or have used the line in question within the last
two years;
(D) The aggregate number of carloads those shippers specified in paragraph (C)
originated or terminated (confidential);
(E) A certification that the filing party has provided notice of the proposed transaction
and interchange commitment to the shippers identified in paragraph (C);
(F) A list of third party railroads that could physically interchange with the line sought to
be acquired or leased;
(G) An estimate of the difference between the sale or lease price with and without the
interchange commitment (confidential);
(H) A change in the case caption so that the existence of an interchange commitment is
apparent from the case title.
* * * * *

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