58974 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Proposed Rules

ARCHITECTURAL AND

TRANSPORTATION BARRIERS

COMPLIANCE BOARD

36 CFR Parts 1190 and 1191

RIN 3014–AA20

Americans With Disabilities Act (ADA)

Accessibility Guidelines for Buildings

and Facilities; Architectural Barriers

Act (ABA) Accessibility Guidelines

AGENCY: Architectural and

Transportation Barriers Compliance

Board.

ACTION: Proposed rule; meetings.

SUMMARY: The Architectural and

Transportation Barriers Compliance

Board (Access Board) will hold two

informational meetings to provide the

public with additional opportunities to

discuss proposed requirements relating

to automated teller machines, reach

ranges, and captioning equipment

included in its Notice of Proposed

Rulemaking to amend the accessibility

guidelines for buildings and facilities

covered by the Americans with

Disabilities Act (ADA) of 1990 and the

Architectural Barriers Act (ABA) of

1968. The meetings will be held on the

dates and at the locations noted below.

DATES: The Access Board will hold an

informational meeting on access to

automated teller machines on October

24, 2000 from 8:30 a.m. to 5:30 p.m. and

an informational meeting on captioning

equipment on October 25, 2000 from

8:30 a.m. to 10:30 a.m. and reach ranges

on October 25, 2000 from 10:30 a.m. to

5:30 p.m.

ADDRESSES: The meetings will be held at

the Hilton Garden Inn, 815 14th Street,

NW., in Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Marsha Mazz, Office of Technical and

Information Services, Architectural and

Transportation Barriers Compliance

Board, 1331 F Street, NW., suite 1000,

Washington, DC 20004–1111.

Telephone number (202) 272–5434

extension 121 (Voice); (202) 272–5449

(TTY). These are not toll-free numbers.

Electronic mail address: mazz@accessboard.gov. This document is available in

alternate formats (cassette tape, Braille,

large print, or computer disk) upon

request.

SUPPLEMENTARY INFORMATION: On

November 16, 1999 the Architectural

and Transportation Barriers Compliance

Board (Access Board) published a

Notice of Proposed Rulemaking to

amend the accessibility guidelines for

the Americans with Disabilities Act

(ADA) of 1990 and the Architectural

Barriers Act (ABA) of 1968. 64 FR 62248

(November 16, 1999). Proposed section

707 includes several provisions that

may affect access to automated teller

machines (ATMs), point of sale

machines, and interactive transaction

machines by people who are blind or

have vision impairments. Proposed

section 308 includes provisions for

maximum high unobstructed reach.

While section 707 is based on the

American National Standard for

Accessible and Usable Buildings and

Facilities, ICC/ANSI A117.1–1998, the

Board departed from this consensus

standard with regard to reach ranges. In

the proposed rule, the Board sought

information on different means of

providing captioning for movie theaters

(Question 36). The Board is interested in

receiving more information about

various types of captioning as it relates

to the built environment.

The Board wishes to provide affected

parties the opportunity to share their

views and expertise directly with the

Board on these issues. Specific areas of

inquiry are:

ATMs

• What are the performance

expectations of people who are blind or

have a vision impairment?

• What functions are currently

accessible in audible format and on

what types of devices?

• What functions cannot be made

accessible in audible format and why?

• What are the hardware and software

costs associated with audible output?

• What does the industry hope to gain

from a ‘‘performance standard’?

• What effect would a 48 inch

maximum reach have on ATMs, point of

sale machines, and interactive

transaction machines?

Reach Ranges

• What manufactured equipment

cannot provide a 48 inch high side

reach and why?

• Are there newly constructed

building elements that would be

substantially affected in terms of

usability by lowering the high side

reach from 54 inches to 48 inches?

• What is the experience in those

States where the ICC/ANSI A117.1–

1998 standard requiring the side reach

to be no higher than 48 inches is used?

Captioning for Movie Theaters

• What technical provisions are

necessary to facilitate or augment the

use of auxiliary aids such as captioning

and videotext displays?

• What are the various options for

providing captioning that would best

facilitate effective communication?

• If provisions for conduit, electrical

service, screen anchoring devices at

seats, or other requirements that make

providing accessible communication

possible in the built environment are

required in the final rule, how specific

should those provisions be?

Members of the public are encouraged

to share their views on these subjects

with the Board. Following the

informational meetings, the Board will

determine the provisions to be included

in the final rule. The informational

meetings will be informal and open to

the public.

Members of the public are encouraged

to contact Marsha Mazz at (202) 272–

5434 extension 121 (Voice), (202) 272–

5449 (TTY), or electronic mail

mazz@access-board.gov to preregister to

attend the informational meetings.

All meetings are accessible to persons

with disabilities. Sign language

interpreters and an assistive listening

system will be available at the meetings.

Persons attending the informational

meetings are requested to refrain from

using perfume, cologne, and other

fragrances for the comfort of other

participants.

Lawrence W. Roffee,

Executive Director.

[FR Doc. 00–25382 Filed 10–2–00; 8:45 am]

BILLING CODE 8150–01–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1180

[STB Ex Parte No. 582 (Sub-No. 1)]

Major Rail Consolidation Procedures

AGENCY: Surface Transportation Board,

DOT.

ACTION: Notice of proposed rulemaking

SUMMARY: The Surface Transportation

Board (Board) seeks public comment on

proposed modifications to its

regulations governing proposals for

major rail consolidations. These

proposed new rules would substantially

increase the burden on applicants to

demonstrate that a proposed transaction

is in the public interest, requiring them,

among other things, to demonstrate that

the transaction would enhance

competition as an offset to negative

impacts resulting from service

disruptions and competitive harms

likely to be caused by the merger.

DATES: Comments are due on November

17, 2000. Replies are due on December

18, 2000. Rebuttal submissions are due

on January 11, 2001.

ADDRESSES: An original and 25 copies of

all paper documents filed in this

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Proposed Rules 58975

proceeding must refer to STB Ex Parte

No. 582 (Sub-No. 1) and must be sent to:

Surface Transportation Board, Office of

the Secretary, Case Control Unit, Attn:

STB Ex Parte No. 582 (Sub-No. 1), 1925

K Street, NW., Washington, DC 20423–

0001.

In addition to submitting an original

and 25 copies of all paper documents,

parties must submit to the Board, on

3.5-inch IBM-compatible floppy

diskettes (in, or convertible by and into,

WordPerfect 9.0 format), an electronic

copy of each such paper document. Any

party may seek a waiver from the

electronic submission requirement.

Documents transmitted by facsimile

(FAX) or electronic mail (e-mail) will

not be accepted.

FOR FURTHER INFORMATION CONTACT: Julia

M. Farr, (202) 565–1613. [TDD for the

hearing impaired: 1–800–877–8339.]

SUPPLEMENTARY INFORMATION:

Additional information is contained in

the Board’s decision. A printed copy of

the Board’s decision is available for a

fee by contacting: Da ̄-To-Da ̄ Office

Solutions, Room 405, 1925 K Street,

NW., Washington, DC 20006, telephone

(202) 466–5530. The Board’s decision is

also available for viewing and

downloading on the Board’s website at

‘‘www.stb.dot.gov.’’

Initial Regulatory Flexibility Analysis:

The Board preliminarily concludes that

the proposed revisions to its regulations,

if adopted, will not have a significant

economic impact on a substantial

number of small entities within the

meaning of the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.). These rules

will create additional filing

requirements only for Class I applicants,

which are very large rail carriers. At the

same time the Board has given increased

weight to issues and concerns of smaller

railroads and shippers, a change that

should benefit these small entities.

The Board nevertheless seeks public

input on whether the proposed

revisions to its regulations would have

significant economic impacts on a

substantial number of small entities. If

submissions made by the parties to this

proceeding provide information that

there would be significant economic

impacts on a substantial number of

small entities, the Board will prepare a

regulatory flexibility analysis at the final

rule stage.

Environmental and Energy

Considerations: The Board preliminarily

concludes that the proposed action will

not significantly affect either the quality

of the human environment or the

conservation of energy resources.

Request for Comments, Replies, and

Rebuttal: The Board invites comments,

replies, and/or rebuttal on all aspects of

the proposed regulations, including

impacts on small entities and effects on

either the quality of the human

environment or the conservation of

energy resources.

Final Stage of This Proceeding: After

considering the comments due on

November 17, 2000, the replies due on

December 18, 2000, and the rebuttal due

on January 11, 2001, the Board will

issue final rules by June 11, 2001.

Authority: 49 U.S.C. 721 and 11323–11325.

List of Subjects in 49 CFR Part 1180

Administrative practice and

procedure, Bankruptcy, Railroads,

Reporting and recordkeeping

requirements.

Decided: September 25, 2000.

By the Board, Chairman Morgan, Vice

Chairman Burkes, and Commissioner

Clyburn. Vice Chairman Burkes and

Commissioner Clyburn commented with

separate expressions.

Vernon A. Williams,

Secretary.

For the reasons set forth in the

preamble, Title 49, Subtitle B, Chapter

X, Part 1180 of the Code of Federal

Regulations is proposed to be amended

as follows:

PART 1180—RAILROAD ACQUISITION,

CONTROL, MERGER,

CONSOLIDATION PROJECT,

TRACKAGE RIGHTS, AND LEASE

PROCEDURES

1. 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, 11323–11325.

2. Section 1180.0 is proposed to be

revised to read as follows:

§ 1180.0 Scope and purpose.

The regulations in this subpart set out

the information to be filed and the

procedures to be followed in control,

merger, acquisition, lease, trackage

rights, and any other consolidation

transaction involving more than one

railroad that is initiated under 49 U.S.C.

11323.

Section 1180.2 separates these

transactions into four types: Major,

significant, minor, and exempt. The

informational requirements for these

types of transactions differ. Before an

application is filed, the designation of

type of transaction may be clarified or

certain of the information required may

be waived upon petition to the Board.

This procedure is explained in § 1180.4.

The required contents of an application

are set out in §§ 1180.6 (general

information supporting the transaction),

1180.7 (competitive and market

information), 1180.8 (operational

information), 1180.9 (financial data),

1180.10 (service assurance plans), and

1180.11 (additional information needs

for transnational mergers). A major

application must contain the

information required in §§ 1180.6(a),

1180.6(b), 1180.7(a), 1180.7(b),

1180.8(a), 1180.8(b), 1180.9, 1180.10,

and 1180.11. A significant application

must contain the information required

in §§ 1180.6(a), 1180.6(c), 1180.7(a),

1180.7(c), and 1180.8(b). A minor

application must contain the

information required in §§ 1180.6(a) and

1180.8(c).

Procedures (including time limits,

filing requirements, participation

requirements, and other matters) are

contained in § 1180.4. All applications

must comply with the Board’s Rules of

General Applicability, 49 CFR parts

1100 through 1129, unless otherwise

specified. These regulations may be

cited as the Railroad Consolidation

Procedures.

3. Section 1180.1 is proposed to be

revised to read as follows:

§ 1180.1 General policy statement for

merger or control of at least two Class I

railroads.

(a) General. To meet the needs of the

public and the national defense, the

Surface Transportation Board seeks to

ensure balanced and sustainable

competition in the railroad industry.

The Board recognizes that the railroad

industry (including Class II and III

carriers) is a network of competing and

complementary components, which in

turn is part of a broader transportation

infrastructure that also embraces the

nation’s highways, waterways, ports,

and airports. The Board welcomes

private sector initiatives that enhance

the capabilities and the competitiveness

of this transportation infrastructure.

Although mergers of Class I railroads

may advance our nation’s economic

growth and competitiveness through the

provision of more efficient and

responsive transportation, the Board

does not favor consolidations that

reduce the railroad and other

transportation alternatives available to

shippers unless there are substantial

and demonstrable public benefits to the

transaction that cannot otherwise be

achieved. Such public benefits include

improved service, enhanced

competition, and greater economic

efficiency. The Board also will look

with disfavor on consolidations under

which the controlling entity does not

assume full responsibility for carrying

out the controlled carrier’s common

58976 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Proposed Rules

carrier obligation to provide adequate

service upon reasonable demand.

(b) Consolidation criteria. The Board’s

consideration of the merger or control of

at least two Class I railroads is governed

by the public interest criteria prescribed

in 49 U.S.C. 11324 and the rail

transportation policy set forth in 49

U.S.C. 10101. In determining the public

interest, the Board must consider the

various goals of effective competition,

carrier safety and efficiency, adequate

service for shippers, environmental

safeguards, and fair working conditions

for employees. The Board must ensure

that any approved transaction will

promote a competitive, efficient, and

reliable national rail system.

(c) Public interest considerations. The

Board believes that mergers serve the

public interest only when substantial

and demonstrable gains in important

public benefits—such as improved

service, enhanced competition, and

greater economic efficiency—outweigh

any anticompetitive effects, potential

service disruptions, or other mergerrelated harms. Although the Board

cannot rule out the possibility that

further consolidation of the few

remaining Class I carriers could result in

efficiency gains and improved service,

the Board believes additional

consolidation in the industry is also

likely to result in a number of

anticompetitive effects, such as loss of

geographic competition, that are

increasingly difficult to remedy directly

or proportionately. Additional

consolidations could also result in

service disruptions during the system

integration period. To maintain a

balance in favor of the public interest,

merger applications must include

provisions for enhanced competition.

Unless merger applications are so

framed, approval of proposed

combinations where both carriers are

financially sound will likely cause the

Board to make broad use of the powers

available to it in 49 U.S.C. 11324(c) to

condition its approval to preserve and

enhance competition. When evaluating

the public interest, the Board will also

consider whether the benefits claimed

by applicants could be realized by

means other than the proposed

consolidation. The Board believes that

other private sector initiatives, such as

joint marketing agreements and interline

partnerships, can produce many of the

efficiencies of a merger while risking

less potential harm to the public.

(1) Potential benefits. By eliminating

transaction cost barriers between firms,

increasing the productivity of

investment, and enabling carriers to

lower costs through economies of scale,

scope, and density, mergers can

generate important public benefits such

as improved service, enhanced

competition, and greater economic

efficiency. A merger can strengthen a

carrier’s finances and operations. To the

extent that a merged carrier continues to

operate in a competitive environment,

its new efficiencies will be shared with

shippers and consumers. Both the

public and the consolidated carrier can

benefit if the carrier is able to increase

its marketing opportunities and provide

better service. A merger transaction can

also improve existing competition or

provide new competitive opportunities,

and such enhanced competition will be

given substantial weight in our analysis.

Applicants shall make a good faith effort

to calculate the net public benefits their

merger will generate, and the Board will

carefully evaluate such evidence. To

ensure that applicants have no incentive

to exaggerate these projected benefits to

the public, the Board expects applicants

to propose additional measures that the

Board might take if the anticipated

public benefits fail to materialize in a

timely manner.

(2) Potential harm. The Board

recognizes that consolidation can

impose costs as well as benefits. It can

reduce competition both directly and

indirectly in particular markets,

including product markets and

geographic markets. Consolidation can

also threaten essential services and the

reliability of the rail network. In

analyzing these impacts we must

consider, but are not limited by, the

policies embodied in the antitrust laws.

(i) Reduction of competition.

Although in specific markets railroads

operate in a highly competitive

environment with vigorous intermodal

competition from motor and water

carriers, mergers can deprive shippers of

effective options. Intramodal

competition is reduced when two

carriers serving the same origins and

destinations merge. Competition in

product and geographic markets can

also be eliminated or reduced by end-toend mergers. Any railroad combination

entails a risk that the merged carrier will

acquire and exploit increased market

power. Applicants shall propose

remedies to mitigate and offset

competitive harms. Applicants shall

also explain how they would at a

minimum preserve competitive options

such as those involving the use of major

existing gateways, build-outs or buildins, and the opportunity to enter into

contracts for one segment of a

movement as a means of gaining the

right separately to pursue rate relief for

the remainder of the movement.

(ii) Harm to essential services. The

Board must ensure that essential freight,

passenger, and commuter rail services

are preserved. An existing service is

essential if there is sufficient public

need for the service and adequate

alternative transportation is not

available. The Board’s focus is on the

ability of the nation’s transportation

infrastructure to continue to provide

and support essential services. Mergers

should strengthen, not undermine, the

ability of the rail network to advance the

nation’s economic growth and

competitiveness, both domestically and

internationally. The Board will consider

whether projected shifts in traffic

patterns could undermine the ability of

the various network links (including

Class II and Class III rail carriers and

ports) to sustain essential services.

(iii) Transitional service problems.

Experience shows that significant

service problems can arise during the

transitional period when merging firms

integrate their operations, even after

applicants take extraordinary steps to

avoid such disruptions. Because service

disruptions harm the public, the Board,

in its determination of the public

interest, will weigh the likelihood of

transitional service problems. In

addition, under paragraph (h) of this

section, the Board will require

applicants to provide a detailed service

assurance plan. Applicants also should

explain how they will cooperate with

other carriers in overcoming natural

disasters or other serious service

problems during the transitional period

and afterwards.

(iv) Enhanced competition. To offset

harms that would not otherwise be

mitigated, applicants shall explain how

the transaction and conditions they

propose will enhance competition.

(d) Conditions. The Board has broad

authority under 49 U.S.C. 11324(c) to

impose conditions on consolidations,

including divestiture of parallel tracks

or requiring the granting of trackage

rights and access to other facilities. The

Board will condition the approval of

Class I combinations to mitigate or offset

harm to the public interest, and will

carefully consider conditions proposed

by applicants in this regard. The Board

will impose conditions that are

operationally feasible and produce net

public benefits so as not to undermine

or defeat beneficial transactions by

creating unreasonable operating,

financial, or other problems for the

combined carrier. Conditions are

generally not appropriate to compensate

parties who may be disadvantaged by

increased competition. In this regard,

the Board expects that any merger of

Class I carriers will create some

anticompetitive effects that are difficult

to mitigate through appropriate

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Proposed Rules 58977

conditions, and that transitional service

disruptions may temporarily negate any

shipper benefits. Therefore, to offset

these harms, applicants will be required

to propose conditions that will not

simply preserve but also enhance

competition. The Board seeks to

enhance competition in ways that

strengthen and sustain the rail network

as a whole (including that portion of the

network operated by Class II and III

carriers).

(e) Labor protection. The Board is

required to provide adequate protection

to the rail employees of applicants who

are affected by a consolidation. The

Board supports early notice and

consultation between management and

the various unions, leading to

negotiated implementing agreements,

which the Board strongly favors.

Otherwise, the Board respects the

sanctity of collective bargaining

agreements and will look with extreme

disfavor on overrides of collective

bargaining agreements except to the

very limited extent necessary to carry

out an approved transaction. The Board

will review negotiated agreements to

assure fair and equitable treatment of all

affected employees. Absent a negotiated

agreement, the Board will provide for

protection at the level mandated by law

(49 U.S.C. 11326(a)), and if unusual

circumstances are shown, more

stringent protection will be provided to

ensure that employees have a fair and

equitable arrangement.

(f) Environment and safety. (1) We

encourage negotiated agreements

between railroad-applicants and

affected communities, including groups

of neighborhood communities and other

entities such as state and local agencies.

Agreements of this nature can be

extremely helpful and effective in

addressing local and regional

environmental and safety concerns,

including the sharing of costs associated

with mitigating merger-related

environmental impacts.

(2) Applicants will be required to

work with the Federal Railroad

Administration, on a case-by-case basis,

to formulate Safety Integration Plans to

ensure that safe operations are

maintained throughout the merger

implementation process. Applicants

will also be required to submit evidence

about potentially blocked grade

crossings as a result of merger-related

traffic increases.

(g) Oversight. As a condition to its

approval of any major transaction, the

Board will establish a formal oversight

process. For at least the first 5 years

following approval, applicants will be

required to present evidence to the

Board, on no less than an annual basis,

to show that the merger conditions

imposed by the Board are working as

intended, that the applicants are

adhering to the various representations

they made on the record during the

course of their merger proceeding, that

no unforeseen harms have arisen that

would require the Board to alter existing

merger conditions or impose new ones,

and that the merger benefit projections

accepted by the Board are being realized

in a timely fashion. Parties will be given

the opportunity to comment on

applicants’ submissions, and applicants

will be given the opportunity to reply to

the parties’ comments. During the

oversight period, the Board will retain

jurisdiction to impose any additional

conditions it determines are necessary

to remedy or offset unforeseen adverse

consequences of the underlying

transaction.

(h) Service assurance and operational

monitoring. (1) Good service is of vital

importance to shippers. Accordingly,

applicants must file, with the initial

application and operating plan, a

service assurance plan, identifying the

precise steps to be taken to ensure

continuation of adequate service and to

provide for improved service. This plan

must include the specific information

set forth at § 1180.10 on how shippers

and connecting railroads (including

Class II and III carriers) across the new

system will be affected and benefitted

by the proposed consolidation. As part

of this plan, the Board will require

applicants to establish contingency

plans that would be available to address

the negative impacts if projected service

levels do not materialize in a timely

fashion.

(2) The Board will conduct extensive

post-approval operational monitoring to

help ensure that service levels after a

merger are reasonable and adequate.

(3) We will require applicants to

establish problem resolution teams and

specific procedures for problem

resolution to ensure that post-merger

service problems, related claims issues,

and other matters are promptly

addressed. Also, we would envision the

establishment of a Service Council made

up of shippers, railroads, and other

interested parties to provide an ongoing

forum for the discussion of

implementation issues.

(i) Cumulative impacts and crossover

effects. Because there are so few

remaining Class I carriers and the

railroad industry constitutes a network

of competing and complementary

components, the Board cannot evaluate

the merits of a major transaction in

isolation—the Board must also consider

the cumulative impacts and crossover

effects likely to occur as rival carriers

react to the proposed combination. The

Board expects applicants to anticipate

with as much certainty as possible what

additional Class I merger applications

are likely to be filed in response to their

own application and explain how these

applications, taken together, could affect

the eventual structure of the industry

and the public interest. When

calculating the likely public benefits

that their merger will generate,

applicants are to measure these benefits

in light of the anticipated downstream

mergers. Applicants will be expected to

discuss whether and how the type or

extent of any conditions imposed on

their proposed merger would have to be

altered, or any new conditions imposed,

following approval by us of any future

consolidation(s).

(j) Inclusion of other carriers. The

Board will consider requiring inclusion

of another carrier as a condition to

approval only where there is no other

reasonable alternative for providing

essential services, the facilities fit

operationally into the new system, and

inclusion can be accomplished without

endangering the operational or financial

success of the new company.

(k) Transnational issues. (1) Future

merger applications may present novel

and significant transnational issues. In

cases involving major Canadian and

Mexican railroads, applicants must

submit ‘‘full system’’ competitive

analyses and operating plans—

incorporating their operations in Canada

or Mexico—from which we can

determine the competitive, service,

employee, safety, and environmental

impacts of the prospective operations

within the United States. With respect

to rail safety in the United States,

applicants must explain how

cooperation with the Federal Railroad

Administration will be maintained

without regard to the national origins of

merger applicants. When an application

would result in foreign control of a

Class I railroad, applicants must assess

the likelihood that commercial

decisions made by foreign railroads

could be based on national or provincial

rather than broader economic

considerations and be detrimental to the

interests of the United States rail

network, and applicants must address

how any ownership restrictions

imposed by foreign governments should

affect our public interest assessment.

(2) The Board will consult with

relevant officials as appropriate to

ensure that any conditions it imposes on

a transaction are consistent with the

North American Free Trade Agreement

and other pertinent international

agreements to which the United States

is a party. In addition, the Board will

58978 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Proposed Rules

cooperate with those Canadian and

Mexican agencies charged with

approval and oversight of a proposed

transnational railroad combination.

(l) National defense. Rail mergers

must not detract from the ability of the

United States military to rely on rail

transportation to meet the nation’s

defense needs. Applicants must discuss

and assess the national defense

ramifications of their proposed merger.

(m) Public participation. To ensure a

fully developed record on the effects of

a proposed railroad consolidation, the

Board encourages public participation

from federal, state, and local

government departments and agencies;

affected shippers, carriers, and rail

labor; and other interested parties.

4. Section 1180.3 is proposed to be

amended by revising paragraphs (a) and

(b) to read as follows:

§ 1180.3 Definitions.

(a) Applicant. The term applicant

means the parties initiating a

transaction, but does not include a

wholly owned direct or indirect

subsidiary of an applicant if that

subsidiary is not a rail carrier. Parties

who are considered applicants, but for

whom the information normally

required of an applicant need not be

submitted, are:

(1) In minor trackage rights

applications, the transferor; and

(2) In responsive applications, a

primary applicant.

(b) Applicant carriers. The term

applicant carriers means: any applicant

that is a rail carrier; any rail carrier

operating in the United States, Canada,

and/or Mexico in which an applicant

holds a controlling interest; and all

other rail carriers involved in the

transaction. This does not include

carriers who are involved only by virtue

of an existing trackage rights agreement

with applicants.

* * * * *

5. Section 1180.4 is proposed to be

amended by revising paragraph (a)(1) to

read as follows, by removing paragraph

(a)(4), by adding new paragraphs (b)(4)

and (c)(6)(vi) to read as follows, and by

revising paragraphs (d), (e)(2), (e)(3),

and (f)(2) to read as follows:

§ 1180.4 Procedures.

(a) * * * (1) The original and 25

copies of all documents shall be filed in

major proceedings. The original and 10

copies shall be filed in significant and

minor proceedings.

* * * * *

(b) * * *

(4) When filing the notice of intent

required by paragraph (b)(1) of this

section, applicants also must file:

(i) A proposed procedural schedule.

In any proceeding involving either a

major transaction or a significant

transaction, the Board will publish a

Federal Register notice soliciting

comments on the proposed procedural

schedule, and will, after review of any

comments filed in response, issue a

procedural schedule governing the

course of the proceeding.

(ii) A proposed draft protective order.

The Board will issue, in each

proceeding in which such an order is

requested, an appropriate protective

order.

(iii) A statement of waybill

availability for major transactions.

Applicants must indicate, as soon as

practicable after the issuance of a

protective order, that they will make

their 100% traffic tapes available

(subject to the terms of the protective

order) to any interested party on written

request. The applicants may require

that, if the requesting party is itself a

railroad, applicants will make their

100% traffic tapes available to that party

only if it agrees, in its written request,

to make its own 100% traffic tapes

available to applicants (subject to the

terms of the protective order) when it

receives access to applicants’ tapes.

(iv) A proposed voting trust. In each

proceeding involving a major

transaction, applicants contemplating

the use of a voting trust must inform the

Board as to how the trust would insulate

them from an unlawful control violation

and as to why their proposed use of the

trust, in the context of their impending

control application, would be consistent

with the public interest. Following a

brief period of public comment and

replies by applicants, the Board will

issue a decision determining whether

applicants may establish and use the

trust.

(c) * * *

(6) * * *

(vi) The information and data

required of any applicant may be

consolidated with the information and

data required of the affiliated applicant

carriers.

(d) Responsive applications. (1) No

responsive applications shall be

permitted to minor transactions.

(2) An inconsistent application will

be classified as a major, significant, or

minor transaction as provided for in

§ 1180.2(a) through (c). The fee for an

inconsistent application will be the fee

for the type of transaction involved. See

49 CFR 1002.2(f)(38) through (41). The

fee for any other type of responsive

application is the fee for the particular

type of proceeding set forth in 49 CFR

1002.2(f).

(3) Each responsive application filed

and accepted for consideration will

automatically be consolidated with the

primary application for consideration.

(e) * * *

(2) The evidentiary proceeding will be

completed:

(i) Within 1 year (after the primary

application is accepted) for a major

transaction;

(ii) Within 180 days for a significant

transaction; and

(iii) Within 105 days for a minor

transaction.

(3) A final decision on the primary

application and on all consolidated

cases will be issued:

(i) Within 90 days (after the

conclusion of the evidentiary

proceeding) for a major transaction;

(ii) Within 90 days for a significant

transaction; and

(iii) Within 45 days for a minor

transaction.

* * * * *

(f) * * *

(2) Except as otherwise provided in

the procedural schedule adopted by the

Board in any particular proceeding,

petitions for waiver or clarification must

be filed at least 45 days before the

application is filed.

* * * * *

6. Section 1180.6 is proposed to be

amended by revising paragraphs (b)(1),

(b)(2), (b)(3), (b)(4), (b)(6), and (b)(8) to

read as follows, and by adding new

paragraphs (b)(9), (b)(10), (b)(11),

(b)(12), and (b)(13) to read as follows:

§ 1180.6 Supporting information.

* * * * *

(b) * * *

(1) Form 10–K (exhibit 6). Submit: the

most recent filing with the Securities

and Exchange Commission (SEC) under

17 CFR 249.310 if made within the year

prior to the filing of the application by

each applicant or by any entity that is

in control of an applicant. These shall

not be incorporated by reference, and

shall be updated with any Form 10–K

subsequently filed with the SEC over

the duration of the proceeding.

(2) Form S–4 (exhibit 7). Submit: the

most recent filing with the SEC under

17 CFR 239.25 if made within the year

prior to the filing of the application by

each applicant or by any entity that is

in control of an applicant. These shall

not be incorporated by reference, and

shall be updated with any Form S–4

subsequently filed with the SEC over

the duration of the proceeding.

(3) Change in control (exhibit 8). If an

applicant carrier submits an annual

report Form R–1, indicate any change in

ownership or control of that applicant

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Proposed Rules 58979

carrier not indicated in its most recent

Form R–1, and provide a list of the

principal six officers of that applicant

carrier and of any related applicant, and

also of their majority-owned rail carrier

subsidiaries. If any applicant carrier

does not submit an annual report Form

R–1, list all officers of that applicant

carrier, and identify the person(s) or

entity/entities in control of that

applicant carrier and all owners of 10%

or more of the equity of that applicant

carrier.

(4) Annual reports (exhibit 9). Submit:

the two most recent annual reports to

stockholders by each applicant, or by

any entity that is in control of an

applicant, made within 2 years of the

date of filing of the application. These

shall not be incorporated by reference,

and shall be updated with any annual

or quarterly report to stockholders

issued over the duration of the

proceeding.

* * * * *

(6) Corporate chart (exhibit 11).

Submit a corporate chart indicating all

relationships between applicant carriers

and all affiliates and subsidiaries and

also companies controlling applicant

carriers directly, indirectly or through

another entity (with each chart

indicating the percentage ownership of

every company on the chart by any

other company on the chart). For each

company: include a statement

indicating whether that company is a

noncarrier or a carrier; and identify

every officer and/or director of that

company who is also an officer and/or

director of any other company that is

part of a different corporate family,

which includes a rail carrier. Such

information may be referenced through

notes to the chart.

* * * * *

(8) Intercorporate or financial

relationships. Indicate whether there are

any direct or indirect intercorporate or

financial relationships at the time the

application is filed, not disclosed

elsewhere in the application, through

holding companies, ownership of

securities, or otherwise, in which

applicants or their affiliates own or

control more than 5% of the stock of a

non-affiliated carrier, including those

relationships in which a group affiliated

with applicants owns more than 5% of

the stock of such a carrier. Indicate the

nature and extent of such relationships,

if they exist, and, if an applicant owns

securities of a carrier subject to 49

U.S.C. Subtitle IV, provide the carrier’s

name, a description of securities, the par

value of each class of securities held,

and the applicant’s percentage of total

ownership. For purposes of this

paragraph (b)(8), ‘‘affiliates’’ has the

same meaning as ‘‘affiliated companies’’

in Definition 5 of the Uniform System

of Accounts (49 CFR part 1201, subpart

A).

(9) Employee impact exhibit. The

effect of the proposed transaction upon

applicant carriers’ employees (by class

or craft), the geographic points where

the impacts will occur, the time frame

of the impacts (for at least 3 years after

consolidation), and whether any

employee protection agreements have

been reached. This information (except

with respect to employee protection

agreements) may be set forth in the

following format:

EFFECTS ON APPLICANT CARRIERS’ EMPLOYEES

Current location Classification Jobs transferred to Jobs abolished Jobs created Year

(10) Conditions to mitigate and offset

merger harms. Applicants are expected

to propose measures to mitigate and

offset merger harms. These conditions

should not simply preserve, but also

enhance, competition.

(i) Applicants must explain how they

will preserve competitive options for

shippers and for Class II and III rail

carriers. At a minimum, applicants must

explain how they will preserve the use

of major gateways, the potential for

build-outs or build-ins, and the

opportunity to enter into contracts for

one segment of a movement as a means

of gaining the right separately to pursue

rate relief for the remainder of the

movement.

(ii) Applicants must explain how the

transaction and conditions they propose

will enhance competition and improve

service.

(11) Calculating public benefits.

Applicants must enumerate and, where

possible, quantify the net public

benefits their merger will generate (if

approved). In making this estimate,

applicants should identify the benefits

arising from service improvements,

enhanced competition, cost savings, and

other merger-related public interest

benefits. Applicants must also identify,

discuss, and, where possible, quantify

the likely negative effects approval will

entail, such as losses of competition,

potential for service disruption, and

other merger-related harms. In addition,

applicants must suggest additional

measures that the Board might take if

the anticipated public benefits

identified by applicants fail to

materialize in a timely manner.

(12) Downstream merger applications.

(i) Applicants should anticipate what

additional Class I merger applications

are likely to be filed in response to their

own application and explain how, taken

together, these applications could affect

the eventual structure of the industry

and the public interest.

(ii) Applicants are expected to discuss

whether and how the type or extent of

any conditions imposed on their

proposed merger would have to be

altered, or any new conditions imposed,

should the Board approve additional

future rail mergers.

(iii) In calculating the public benefits

arising from their merger, applicants

should measure them in light of the

anticipated downstream merger

applications.

(13) Purpose of the proposed

transaction. The purpose sought to be

accomplished by the proposed

transaction, e.g., improving service,

enhancing competition, strengthening

the nation’s transportation

infrastructure, creating operating

economies, and ensuring financial

viability.

* * * * *

7. Section 1180.7 is proposed to be

revised to read as follows:

§ 1180.7 Market analyses.

(a) For major and significant

transactions, applicants shall submit

impact analyses (exhibit 12) that

describe the impacts of the proposed

transaction—both adverse and

58980 Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Proposed Rules

beneficial—on inter- and intramodal

competition with respect to freight

surface transportation in the regions

affected by the transaction and on the

provision of essential services by

applicants and other carriers. An impact

analysis should include underlying

data, a study on the implications of

those data, and a description of the

resulting likely effects of the transaction

on transportation alternatives available

to the shipping public. Each aspect of

the analysis should specifically address

significant impacts as they relate to the

applicable statutory criteria (49 U.S.C.

11324(b) or (d)), essential services, and

competition. Applicants must identify

and address relevant markets and

issues, and provide additional

information as requested by the Board

on markets and issues that warrant

further study. Applicants (and any other

party submitting analyses) must

demonstrate both the relevance of the

markets and issues analyzed and the

validity of the methodology. All

underlying assumptions must be clearly

stated. Analyses should reflect the

consolidated company’s marketing plan

and existing and potential competitive

alternatives (inter- as well as

intramodal). They can address: city

pairs, interregional movements,

movements through a point, or other

factors; a particular commodity, group

of commodities, or other commodity

factor that will be significantly affected

by the transaction; or other effects of the

transaction (such as on a particular type

of service offered).

(b) For major transactions, applicants

shall submit ‘‘full system’’ impact

analyses (incorporating any operations

in Canada or Mexico) from which they

must demonstrate the impacts of the

transaction—both adverse and

beneficial—on competition within

regions of the United States and this

nation as a whole (including inter- and

intramodal competition, product

competition, and geographic

competition) and the provision of

essential services (including freight,

passenger, and commuter) by applicants

and other network links (including

Class II and Class III rail carriers and

ports). Applicants’ impact analyses

must at least provide the following

types of information:

(1) The anticipated effects of the

transaction on traffic patterns, market

concentrations, and/or transportation

alternatives available to the shipping

public. Consistent with § 1180.6(b)(10),

these must incorporate a detailed

examination of the ways in which the

transaction would enhance competition

and of the specific measures proposed

by applicants to preserve existing levels

of competition and essential services;

(2) Actual and projected market

shares of originated and terminated

traffic by railroad for each major point

on the combined system before and after

the proposed transaction. Applicants

may define points as individual stations

or as larger areas (such as Bureau of

Economic Analysis statistical areas or

U.S. Department of Agriculture Crop

Reporting Districts) as relevant and

indicate the extent of switching access

and availability of terminal belt

railroads. Applicants should list points

where the number of serving railroads

would drop from two to one and from

three to two, respectively, as a result of

the proposed transaction (both before

and after applying proposed remedies

for competitive harm);

(3) Actual and projected market

shares of revenues and traffic volumes

before and after the proposed

transaction for major interregional or

corridor flows by major commodity

group. Origin/destination areas should

be defined at relevant levels of

aggregation for the commodity group in

question. The data should be broken

down by mode and (for the railroad

portion) by single-line and interline

routings (showing gateways used).

Applicants should explain relevant

differences in the effectiveness of

competing routings (with respect, e.g.,

to transit time, terrain, track conditions,

and capacity);

(4) For each major commodity group,

an analysis of traffic flows indicating

patterns of geographic competition or

product competition across different

railroad systems, showing actual and

projected revenues and traffic volumes

before and after the proposed

transaction;

(5) Maps and other graphic displays

where helpful in illustrating the

analyses in this section;

(6) An explicit delineation of the

projected impacts of the transaction on

the ability of various network links

(including Class II and Class III rail

carriers and ports) to participate in the

competitive process and to sustain

essential services; and

(7) Supporting data for the analyses in

this section, such as the basis for

projections of changes in traffic

patterns, including shipper surveys and

econometric or other statistical analyses.

If not made part of the application,

applicants shall make these data

available in a repository for inspection

by other parties or otherwise supply

these data on request, for example,

electronically. Access to confidential

information will be subject to protective

order. For information drawn from

publicly available published sources,

detailed citations will suffice.

(c) For significant transactions,

specific regulations on impact analyses

are not provided so that the parties will

have the greatest leeway to develop the

best evidence on the impacts of each

individual transaction. As a general

guideline, applicants shall provide

supporting data that may (but need not)

include: current and projected traffic

flows; data underlying sales forecasts or

marketing goals; interchange data;

market share analysis; and/or shipper

surveys. It is important to note that

these types of studies are neither

limiting nor all inclusive. The parties

must provide supporting data, but are

free to choose the type(s) and format. If

not made part of the application,

applicants shall make these data

available in a repository for inspection

by other parties or otherwise supply

these data on request, for example,

electronically. Access to confidential

information will be subject to protective

order. For information drawn from

publicly available published sources,

detailed citations will suffice.

8. Section 1180.8 is proposed to be

amended by redesignating paragraphs

(a) and (b) as paragraphs (b) and (c),

respectively, and by adding a new

paragraph (a) to read as follows:

§ 1180.8 Operational data.

(a) For major transactions applicants

must submit a ‘‘full system’’ operating

plan—incorporating any prospective

operations in Canada and Mexico—from

which they must demonstrate how the

proposed transaction will affect

operations within regions of the United

States and this nation as a whole.

(1) Safety integration plan. Applicants

must submit a safety integration plan.

(2) Blocked crossings. Applicants

must indicate what measures they plan

to take to address potentially blocked

grade crossings as a result of mergerrelated changes in operations or

increases in rail traffic.

* * * * *

9. A new § 1180.10 is proposed to be

added to read as follows:

§ 1180.10 Service assurance plans.

For major transactions: service

assurance plan. Applicants shall submit

a service assurance plan, which, in

concert with the operating plan

requirements, will identify the precise

steps to be taken by applicants to ensure

that projected service levels are

attainable and that key elements of the

operating plan will improve service.

The plan shall describe with reasonable

precision how operating plan

efficiencies will translate into present

Federal Register / Vol. 65, No. 192 / Tuesday, October 3, 2000 / Proposed Rules 58981

and future benefits for the shipping

public. The plan must also describe any

potential area of service degradation

that might result due to operational

changes. The plan must encompass:

(a) Integration of operations. Based on

the operating plan, and using

benchmarks for the year immediately

preceding the filing date of the

application, applicants must describe

how the transaction will result in

improved service levels and must

identify potential instances where

service may be degraded. While precise

in nature, this description is expected to

be a route level review rather than a

shipper-by-shipper review. Nonetheless,

the plan should be sufficient for

individual shippers to evaluate the

projected improvements and respond to

the potential areas of service

degradation for their customary traffic

routings. The plan should inform Class

II and III railroads and other connecting

railroads of the operational changes that

may have an impact on their operations,

including operations involving major

gateways.

(b) Coordination of freight and

passenger operations. If Amtrak or

commuter services are operated over the

lines of the applicant carriers,

applicants must describe definitively

how they will continue to operate these

lines to fulfill existing performance

agreements for those services. Whether

or not the passenger services operated

are over lines of the applicants,

applicants must establish operating

protocols that ensure effective

communications with Amtrak and/or

regional rail passenger operators in

order to minimize any potential

transaction-related negative impacts.

(c) Yard and terminal operations. The

operational fluidity of yards and

terminals is key to the successful

implementation of a transaction and

effective service to shippers. Applicants

must describe how the operations of

principal classification yards and major

terminals will be changed or revised

and how these revisions will affect

service to customers. As part of this

analysis, applicants must furnish dwell

time information for one year prior to

the transaction for each facility

described above, and estimate what the

expected dwell time will be after the

revised operations are implemented.

Also required will be a discussion of ontime performance for the principal yards

and terminals in the same terms as

required for dwell time.

(d) Infrastructure improvements.

Applicants must identify potential

infrastructure impediments (using

volume/capacity line and terminal

forecasts), formulate solutions to those

impediments, and develop timeframes

for resolution. Applicants must also

develop a capital improvement plan (to

support the operating plan) for timely

funding and completing the

improvements critical to transition of

operations. They should also describe

improvements related to future growth,

and indicate the relationship of the

improvements to service delivery.

(e) Information technology systems.

Because the accurate and timely

integration of applicants’ information

systems are vitally important to service

delivery, applicants must identify the

process to be used for systems

integration and training of involved

personnel. This must include

identification of the principal

operations-related systems, operating

areas affected, implementation

schedules, the realtime operations data

used to test the systems, and preimplementation training requirements

needed to achieve completion dates. If

such systems will not be integrated and

on line prior to implementation of the

transaction, applicants must describe

the interim systems to be used and how

those systems will assure service

delivery.

(f) Customer service. To achieve and

maintain customer confidence in the

transaction and to ensure the successful

integration and consolidation of existing

customer service functions, applicants

must identify their plans for the staffing

and training of personnel within or

supporting the customer service centers.

This discussion must include specific

information on the planned steps to

familiarize customers with any new

processes and procedures that they may

encounter in using the consolidated

systems and/or changes in contact

locations or telephone numbers.

(g) Labor. Applicants must furnish a

plan for reaching necessary labor

implementing agreements. Applicants

must also provide evidence that

sufficient qualified employees to effect

implementation will be available at the

proper locations prior to the transaction.

(h) Training. Applicants must

establish a plan to provide necessary

training to employees involved with

operations, train and engine service,

operating rules, dispatching, payroll and

timekeeping, field data entry, safety and

hazardous material compliance, and

contractor support functions (i.e., crew

van service), as well as to other

employees in functions that will be

affected by the transaction.

(i) Contingency plans for mergerrelated service disruptions. In order to

address potential disruptions of service

that may occur, applicants must

establish contingency plans. Those

plans, based upon available resources

and traffic flows and density, must

identify potential areas of disruption

and the risk of occurrence. Applicants

must provide evidence that contingency

plans are in place to minimize negative

service impacts and promptly restore

service.

(j) Timetable. Applicants must

identify all major functional or system

changes/consolidations that will occur

and the time line for successful

completion.

10. A new § 1180.11 is proposed to be

added to read as follows:

§ 1180.11 Additional information needs for

transnational mergers.

(a) Applicants must explain how

cooperation with the Federal Railroad

Administration will be maintained

without regard to the national origins of

merger applicants.

(b) Applicants must assess the

likelihood that commercial decisions

made by foreign railroads could be

based on national or provincial rather

than broader economic considerations,

and be detrimental to the interests of the

United States, and discuss any

ownership restrictions imposed on them

by foreign governments.

(c) Applicants must discuss and

assess the national defense ramifications

of the proposed merger.

[FR Doc. 00–25043 Filed 10–2–00; 8:45 am]

BILLING CODE 4915–00–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG12

Endangered and Threatened Wildlife

and Plants; Reopening of Public

Comment Period and Notice of

Availability of Draft Economic Analysis

for Proposed Critical Habitat

Determination for the Zapata

Bladderpod.

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed Rule; Extension of

public comment period and notice of

availability of draft economic analysis.

SUMMARY: We, the U.S. Fish and

Wildlife Service, announce the

availability of the draft economic

analysis for the proposed designation of

critical habitat for the Zapata

bladderpod (Lesquerella thamnophila).

We also provide notice that the public

comment period for the proposal is

reopened to allow all interested parties