24588 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Notices

1A copy of each diskette submitted to the Board

should be provided to any other party upon request.

2The current market dominance guidelines are

set forth in Product and Geographic Competition,

2 I.C.C.2d 1, 20–22 (1985) (Market Dominance III).

Chevrolet Lumina and Buick Regal car

lines equipped with ‘‘PASS-Key II’’; and

58 FR 44874 (August 25, 1993), granting

in full the petition for exemption of

Buick Riviera and Oldsmobile Aurora

car lines equipped with ‘‘PASS-Key II’’.

In both of those instances, the agency

concluded that a full exemption was

warranted because ‘‘PASS-Key II’’ had

shown itself as likely as parts-marking

to be effective protection against theft

despite the absence of a visual or audio

alarm.

The agency concludes that, given the

similarities between the ‘‘Passlock’’

device and the ‘‘PASS-Key’’ and ‘‘PASSKey II’’ systems, it is reasonable to

assume that ‘‘Passlock’’, like those

systems, will be as effective as partsmarking in deterring theft. Accordingly,

it has granted this petition for

exemption in full and will not require

any parts to be marked on the

Oldsmobile Alero car line beginning

with MY 1999.

The agency believes that the device

will provide the types of performance

listed in 49 CFR 543.6(a)(3): promoting

activation; preventing defeat or

circumvention of the device by

unauthorized persons; preventing

operation of the vehicle by

unauthorized entrants; and ensuring the

reliability and durability of the device.

As required by 49 U.S.C. 33106 and

49 CFR 543.6(a)(4) and (5), the agency

finds that GM has provided adequate

reasons for its belief that the antitheft

device will reduce and deter theft. This

conclusion is based on the information

GM provided about its antitheft device.

This confidential information included

a description of reliability and

functional tests conducted by GM for

the antitheft device and its components.

For the foregoing reasons, the agency

hereby grants in full GM’s petition for

exemption for the MY 1999 Oldsmobile

Alero car line from the parts-marking

requirements of 49 CFR part 541.

If GM decides not to use the

exemption for this line, it must formally

notify the agency, and, thereafter, the

line must be fully marked as required by

49 CFR 541.5 and 541.6 (marking of

major component parts and replacement

parts).

NHTSA notes that if GM wishes in the

future to modify the device on which

this exemption is based, the company

may have to submit a petition to modify

the exemption. § 543.7(d) states that a

part 543 exemption applies only to

vehicles that belong to a line exempted

under this part and equipped with the

antitheft device on which the line’s

exemption is based. Further,

§ 543.9(c)(2) provides for the submission

of petitions ‘‘to modify an exemption to

permit the use of an antitheft device

similar to but differing from the one

specified in that exemption.’’ The

agency wishes to minimize the

administrative burden which

§ 543.9(c)(2) could place on exempted

vehicle manufacturers and itself.

The agency did not intend in drafting

part 543 to require the submission of a

modification petition for every change

to the components or design of an

antitheft device. The significance of

many such changes could be de

minimis. Therefore, NHTSA suggests

that if the manufacturer contemplates

making any changes the effects of which

might be characterized as de minimis, it

should consult the agency before

preparing and submitting a petition to

modify.

Authority: 49 U.S.C. 33106; delegation of

authority at 49 CFR 1.50.

Issued on: April 29, 1998.

L. Robert Shelton,

Associate Administrator for Safety

Performance Standards.

[FR Doc. 98–11782 Filed 5–1–98; 8:45 am]

BILLING CODE 4910–59–P

DEPARTMENT OF TRANSPORTATION

[STB Ex Parte No. 627]

Market Dominance Determinations—

Product and Geographic Competition

AGENCY: Surface Transportation Board.

ACTION: Notice of Proposal to Eliminate

Product and Geographic Competition

From Consideration in Market

Dominance Determinations.

SUMMARY: Pursuant to its decision in

Review of Rail Access and Competition

Issues, STB Ex Parte No. 575 (STB

served Apr. 17, 1998), the Board is

instituting a proceeding to consider

removing product and geographic

competition as factors in market

dominance determinations in railroad

rate proceedings. The Board requests

that persons intending to participate in

this proceeding notify the agency of that

intent. A separate service list will be

issued based on the notices of intent to

participate that the Board receives.

DATES: Notices of intent to participate in

this proceeding are due May 12, 1998.

Comments on this proposal are due May

29, 1998. Replies are due June 29, 1998.

ADDRESSES: An original plus 12 copies

of all comments and replies, referring to

STB Ex Parte No. 627, must be sent to

the Office of the Secretary, Case Control

Unit, ATTN: STB Ex Parte No. 627,

Surface Transportation Board, 1925 K

Street, N.W., Washington, DC 20423–

0001.

Copies of the written comments will

be available from the Board’s contractor,

D.C. News and Data, Inc., located in

Room 210 in the Board’s building. D.C.

News can be reached at (202) 289–4357.

The comments will also be available for

viewing and self copying in the Board’s

Microfilm Unit, Room 755.

In addition to an original and 12

copies of all paper documents filed with

the Board, the parties shall submit their

pleadings, including any graphics, on a

3.5-inch diskette formatted for

WordPerfect 7.0 (or in a format readily

convertible into WordPerfect 7.0). All

textual material, including cover letters,

certificates of service, appendices and

exhibits, shall be included in a single

file on the diskette. The diskettes shall

be clearly labeled with the filer’s name,

the docket number of this proceeding,

STB Ex Parte No. 627, and the name of

the electronic format used on the

diskette for files other than those

formatted in WordPerfect 7.0. All

pleadings submitted on diskettes will be

posted on the Board’s website

(www.stb.dot.gov). The electronic

submission requirements set forth in

this notice supersede, for the purposes

of this proceeding, the otherwise

applicable electronic submission

requirements set forth in the Board’s

regulations. See 49 CFR 1104.3(a), as

amended in Expedited Procedures for

Processing Rail Rate Reasonableness,

Exemption and Revocation Proceedings,

STB Ex Parte No. 527, 61 FR 52710, 711

(Oct. 8, 1996), 61 FR 58490, 58491 (Nov.

15, 1996).1

FOR FURTHER INFORMATION CONTACT:

Joseph H. Dettmar, (202) 565–1600.

[TDD for the hearing impaired: (202)

565–1695.]

SUPPLEMENTARY INFORMATION: In STB Ex

Parte No. 575, the Board conducted two

days of informational hearings, on April

2 and 3, 1998, to examine issues of rail

access and competition in today’s

railroad industry, and the statutory

remedies and agency regulations and

procedures that relate to those matters.

As a result of those hearings, we

announced, inter alia, that we would

commence a proceeding to consider

eliminating the product and geographic

competition factors of our market

dominance guidelines in cases

challenging the reasonableness of rail

rates.2

Under 49 U.S.C. 10707, the Board can

entertain a challenge to the

reasonableness of a rail rate only if we
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Notices 24589

1On April 23, 1998, NW informed the Board that

the actual mileage for the line is 3.34 miles instead

of 3.3 miles as stated in its verified notice.

first find that the rail carrier has market

dominance over the traffic to which the

rate applies, that is, that there is no

effective competition for that traffic. In

making that determination, we now

consider four forms of competition that

may effectively constrain the carrier’s

pricing: intramodal competition

(whether the shipper could obtain the

transportation service that it needs from

other railroads); intermodal competition

(whether the shipper could obtain

service by another transportation mode);

product competition (whether the

shipper can use a suitable substitute

product that can be acquired without

relying on the services of the same

carrier); and geographic competition

(whether the shipper can obtain the

product it needs from a different source

and/or by shipping its goods to a

different destination using another

carrier). Shippers have the burden of

showing that there is no effective

intramodal and intermodal competition;

carriers have the burden of identifying

any product and geographic competition

and showing its effectiveness.

At the Ex Parte 575 hearings, shippers

complained about the difficulties

associated with seeking rate relief from

the Board today, particularly the

complexity and burden of litigating

issues of product and geographic

competition, issues that they charge

have transformed the threshold market

dominance phase of a rail rate

complaint into a full-blown antitruststyle case of its own. Shippers regard

product and geographic competition

issues as major, undue litigation

obstacles that discourage captive

shippers from even seeking regulatory

relief from unreasonably high rates in

both large and small rates cases.

Accordingly, consistent with our

determination in Ex Parte 575 to

reexamine certain aspects of our current

regulatory regime in the context of

today’s more consolidated rail

industry—particularly those that

concern the availability of regulatory

relief—we are instituting this

proceeding to consider eliminating

product and geographic competition

from our market dominance analysis.

We note that our predecessor, the

Interstate Commerce Commission (ICC),

initially concluded that consideration of

product and geographic competition

issues would complicate rate

proceedings unduly. Special Procedures

for Making Findings of Market

Dominance, 353 I.C.C. 875, 905–06,

modified, 355 I.C.C. 12 (1976) (Market

Dominance I), aff’d in relevant part sub

nom. Atchison, T. & S.F. Ry. v. ICC, 580

F.2d 623 (D.C. Cir. 1978). The ICC

subsequently reversed course and

decided that consideration of these

issues would be manageable. Market

Dominance Determinations, 365 I.C.C.

118, 127–31 (1981) (Market Dominance

II), aff’d sub nom. Western Coal Traffic

League v. United States, 719 F.2d 772

(5th Cir. 1983) (en banc), cert. denied,

466 U.S. 953 (1984). Later, recognizing

that it is inherently ‘‘much more

difficult’’ for shippers to prove the

ineffectiveness of these factors than of

intramodal and intermodal competition,

the ICC placed upon the railroads the

burden of both identifying any product

and geographic competition and

demonstrating the effectiveness of such

competition in individual cases. Market

Dominance III, 2 I.C.C.2d at 15.

The comments presented in the Ex

Parte 575 hearings suggest, however,

that, even without bearing the burden of

proof on these issues, shippers find that

the product and geographic competition

inquiry remains an imposing burden

upon their ability to prosecute rail rate

complaints. Aggressive use of the

discovery process may be partly

responsible for the heavy burdens

associated with the inquiry into product

and geographic competition, and we

have recently taken action to prevent a

rail carrier from effectively shifting

those burdens onto a complaining

shipper through unsupported and/or

overreaching discovery demands. FMC

Wyoming Corp. et al. v. Union Pac. R.R.,

STB Docket No. 42022 (STB served Apr.

17, 1998). However, curbing individual

instances of discovery abuses may not

be sufficient to address the shippers’

concerns. Therefore, we are instituting

this proceeding to obtain public

comment on whether we should

eliminate product and geographic

competition from consideration

altogether.

Any person that wishes to participate

as a party of record in this matter must

notify us of this intent by May 12, 1998.

In order to be designated a party of

record, a person must satisfy the filing

requirements outlined in the ADDRESSES

section. We will then compile and issue

a service list. Copies of comments and

replies must be served on all persons

designated on the list as a party of

record. Comments on the proposal are

due May 29, 1998; replies are due June

29, 1998.

A copy of this decision is being

served on all persons on the service list

in Ex Parte No. 575. This decision will

serve as notice that persons who were

parties of record in the Ex Parte 575

proceeding will not be placed on the

service list in the Ex Parte 627

proceeding unless they notify us of their

intent to participate therein.

The Board preliminarily certifies that

the proposal to eliminate product and

geographic competition from its market

dominance analysis, if adopted, would

not have a significant effect on a

substantial number of small entities.

While the proposal, if adopted, may

ease the burdens on those prosecuting

rate complaints, we do not expect it to

affect a substantial number of small

entities. The Board, however, seeks

comments on whether there would be

effects on small entities that should be

considered.

This action will not significantly

affect either the quality of the human

environment or the conservation of

energy resources.

Decided: April 28, 1998.

By the Board, Chairman Morgan and Vice

Chairman Owen.

Vernon A. Williams,

Secretary.

[FR Doc. 98–11669 Filed 5–1–98; 8:45 am]

BILLING CODE 4915–00–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Docket No. AB–290 (Sub–No. 200X)]

Norfolk and Western Railway

Company; Abandonment Exemption;

in Dickenson and Buchanan Counties,

VA

Norfolk and Western Railway

Company (NW) has filed a notice of

exemption under 49 CFR part 1152

Subpart F—Exempt Abandonments to

abandon 3.34 miles of its line of railroad

between milepost CL–13.56 at Duty and

milepost CL–16.90 at Clinchfield Coal

in Dickenson and Buchanan Counties,

VA.1 The line traverses United States

Postal Service Zip Codes 24217 and

24066.

NW has certified that: (1) No local

traffic has moved over the line for at

least 2 years; (2) any overhead traffic on

the line can be rerouted over other lines;

(3) no formal complaint filed by a user

of rail service on the line (or by a state

or local government entity acting on

behalf of such user) regarding cessation

of service over the line either is pending

with the Surface Transportation Board

(Board) or with any U.S. District Court

or has been decided in favor of

complainant within the 2-year period;

and (4) the requirements at 49 CFR

1105.7 (environmental reports), 49 CFR

1105.8 (historic reports), 49 CFR

1105.11 (transmittal letter), 49 CFR