[Federal Register Volume 64, Number 169 (Wednesday, September 1, 1999)]
[Rules and Regulations]
[Pages 47709-47711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22648]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1000, 1001, and 1004
[STB Ex Parte No. 572 (Sub-No. 1)]
Removal, Revision, and Redesignation of Miscellaneous Regulations
AGENCY: Surface Transportation Board.
ACTION: Final Rules.
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SUMMARY: The Surface Transportation Board (Board) is revising and
updating regulations pertaining to indexing and making documents
available, and incorporating them into the Board's regulations on
inspection of records. The Board is also removing seven sections from
49 CFR part 1004 that have been incorporated by the Federal Highway
Administration (FHWA) into FHWA regulations, and redesignating and
updating the remainder of that part.
EFFECTIVE DATE: These rules are effective October 1, 1999.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 565-1600. [TDD for
the hearing impaired: (202) 565-1695.]
SUPPLEMENTARY INFORMATION: The Board is removing the regulations at 49
CFR part 1000, revising language from that part concerning indexing and
making documents publicly available, and incorporating that revised
rule into 49 CFR part 1001. We are also removing unnecessary sections
of 49 CFR part 1004, and updating the remaining sections in that part.
Parts 1000 and 1001 (Availability and Indexing)
We are removing the regulations at 49 CFR part 1000, but we are
also revising and updating the portions of that rule that deal with
indexing and the availability of documents, and we are incorporating
them into a new 49 CFR 1001.1(b). The Interstate Commerce Commission
(ICC) issued the rules now found in part 1000 on June 24, 1967 (32 FR
9020) (Ex Parte No. 37) \1\ in response to the passage of the Freedom
of Information Act, 5 U.S.C 552 (FOIA). Under the FOIA, government
records are divided into three categories: (1) Those required to be
published in the Federal Register [section 552(a)(1)]; (2) those that
must be made publicly available for inspection and copying and
indexed--the so-called ``reading room'' documents [section 552(a)(2)];
and (3) all others that are to be furnished upon request unless an
exception applies [section 552(a)(3) and 552(b)]. Rule 1000.10
implemented the section 552(a)(2) requirement that the three categories
of reading room documents--final decisions, including concurring and
dissenting opinions, made in the adjudication of cases; statements of
policy and interpretation adopted by the agency and not published in
the Federal Register; and administrative staff manuals and instructions
to staff that affect a member of the public [sections 552(a)(2)(A), (B)
and (C)]--be made available and indexed.\2\
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\1\ The rules were originally codified at 49 CFR 100. The
current part 1000 has also been revised and consists of one section,
section 1000.10.
\2\ Section 1000.10 also refers to the Interstate Commerce Acts
Annotated (the ICAA). The ICAA was published in accordance with a
1928 Senate resolution requesting the ICC to prepare a comprehensive
manuscript covering the text of laws administered by and affecting
the work of the ICC, suitably annotated with digests and indexes,
and to be published as a Senate document. S. Res. 17, 70th Congress,
1st Sess, January 14, 1928. Twenty-two volumes of the ICAA were
published between 1930 and 1977.
Effective January 1, 1996, the ICC Termination Act of 1995, Pub.
L. No. 104-88, 109 Stat. 803 (ICCTA), abolished the ICC and created
the Board. Section 204(a) of the ICCTA directs the Board to rescind
all regulations established by the ICC that are based on provisions
of law repealed and not substantively reenacted by the ICCTA.
Although the Senate Resolution was not a law, because the ICC has
been abolished and the ICCTA contains no mention of an annotated
compendium of laws administered by the Board, we are under no legal
obligation to resurrect the ICAA (which, as noted, was last
published in 1977), and the new rules delete references to the ICAA.
We note that today there are many sources of information about the
laws the Board implements and how we implement them, and there
appears to be no reason for the Board to expend its limited
resources to duplicate readily available information.
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The Electronic Freedom of Information Act of 1996, Pub. L. No. 104-
231, 110 Stat. 3049 (1996) (EFOIA), amends the FOIA. Among other
things, EFOIA adds a fourth category of reading room documents: records
released pursuant to a request under section 552(a)(3) that have become
or are likely to become the subject of a subsequent request--the so-
called ``subsequent request'' documents [section 552(a)(2)(D)]. It also
requires agencies to make available to the public a general index of
subsequent request documents [section 552(a)(2)(E)] and to make that
index available via computer telecommunications by December 31, 1999.
In addition, EFOIA requires that all reading room documents created on
and after November 1, 1996, be made available, preferably via computer
telecommunications, by November 1, 1997. Id. \3\
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\3\ The Board maintains an Electronic Reading Room at its
Internet website at www.stb.dot.gov, in compliance with the EFOIA
requirement that all reading room documents created on and after
November 1, 1996, be accessible via computer telecommunications by
November 1, 1997. All documents are available for inspection and
copying from the site. We are also making available on our website
FOIA annual reports. 5 U.S.C. 552(e)(2).
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Thus, section 552(a)(2) requires that we make publicly available
for inspection and copying at our offices four types of documents:
final decisions, policy statements, staff manuals, and subsequent
request documents. Our new rule at 49 CFR 1001.1(b) provides for the
availability of these documents in paper format, and it requires that
those same four types of documents that were created on and after
November 1, 1996, be available via computer telecommunications as well.
With respect to indexing, section 552(a)(2) provides that (a)
indexes furnishing ``identifying information'' of the four types of
documents be made available for public inspection and copying; (b)
indexes be published and distributed quarterly or more frequently,
unless such publication is ``unnecessary and impracticable''; and (c) a
general index of subsequent request documents be made available on the
Internet by December 31, 1999:
Each agency shall also maintain and make available for public
inspection and copying current indexes providing identifying
information for the public as to any matter issued, adopted, or
promulgated after July 5, 1967, and required by this paragraph to be
made available or published. Each agency shall promptly publish,
quarterly or more frequently, and distribute (by sale or otherwise)
copies of each index or supplements thereto unless it determines by
order published in the Federal Register that the publication would
be unnecessary and impracticable, in which case the agency shall
nonetheless provide copies of such index on request at a cost not to
exceed the direct cost of duplication. Each agency shall make the
index referred to in subparagraph (E) [a general index of subsequent
request documents] available by computer telecommunications by
December 31, 1999.
Beyond the statutory requirement that the index ``provide[]
identifying information to the public as to any matter issued * * * and
required by this paragraph to be made available or published,'' there
is little authority as to what constitutes an appropriate index.
``Congress has imposed some very limited record-creating obligations
with regard to indexing under the FOIA.'' Kissinger v. Reporters
Committee, 445 U.S. 136, 152, n.17 (1980) (citation omitted). See also
Irons & Sears v. Dann, 606 F.2d 1215, 1223 (D.C. Cir.
[[Page 47710]]
1979), indicating only that an agency is to ``provide[] a reasonable
index. * * *''
The Board issues every business day the ``Surface Transportation
Board Daily Releases'' (Daily Releases). Each Daily Releases lists all
the decisional documents issued by the Board (including documents
required to be published in the Federal Register pursuant to section
552(a)(1)) as of 10:30 a.m. on that day.\4\ These documents are
categorized by the decisional body that issues them (such as the entire
Board, Director of the Office of Proceedings, Chief of the Section of
Environmental Analysis, Secretary). Within each of these categories,
the documents are further indexed in alpha-numeric order, by an
alphabetical docket prefix (such as AB for abandonment-related matters,
and FD for finance matters) and docket number. The title of the case,
the date the matter was decided, and the document type (decision,
notice, or environmental review, for example) are also provided.
Finally, a brief summary of the content of the document is given. The
Daily Releases also indicate how copies of the documents can be
purchased. The Board's Electronic Reading Room provides the same
indexing information as contained in the Daily Releases for all
decisional documents in that database.
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\4\ The Board sometimes issues ``late releases,'' which are
decisional documents served after 10:30 a.m. These documents are
listed in the Daily Release for the following day.
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We believe that the Daily Releases, individually and collectively,
in paper and electronic format, meet the section 552(a)(2) indexing
requirements for decisional documents. These issuances, which represent
the bulk of the Board's section 552(a)(2) documents, contain sufficient
information about all (not just final) Board decisions (including
policy statements in decisional format) to permit the public to
identify the underlying document. Additionally, they are available for
inspection and copying at the Board's office and via the Board's
Electronic Reading Room. All other reading room documents (such as
staff manuals that affect the public, subsequent request documents, and
any policy statement that might not be issued as a decisional document)
will be available for inspection and copying at the Board's offices and
via the Board's Electronic Reading Room, indexed by the date of
issuance and document title.
The FOIA, 5 U.S.C. 552(a)(2), requires agencies to ``publish and
distribute'' the indexes on at least a quarterly basis, unless an
agency finds such publication to be ``impracticable and unnecessary.''
Although we do not place the indexes in bound volumes for distribution,
we believe that our practice of making all indexes conveniently
available for inspection and copying and purchase satisfies the
publication and distribution requirement. In the event that the
publication requirement is construed to refer to bound volumes, we
hereby find it unnecessary and impracticable to publish and distribute
the indexes.
Part 1004
The ICCTA abolished the ICC and transferred certain of the ICC's
functions and proceedings to either the Board or the Department of
Transportation. Certain motor carrier functions formerly under the
jurisdiction of the ICC were transferred to the Secretary of
Transportation, who subsequently delegated those functions to the
Federal Highway Administration (FHWA). Then, in final rules issued by
the Board and FHWA, many of the regulations pertaining to these
functions found in 49 CFR chapter X were transferred to and
redesignated in 49 CFR chapter III. Motor Carrier Transportation;
Redesignation of Regulations from the Surface Transportation Board
Pursuant to the ICC Termination Act of 1995 (61 FR 54706, Oct. 21,
1996) (Redesignation).
In Redesignation, the Board and FHWA also noted, inter alia, that
49 CFR part 1004 embraced matters that fell within the jurisdiction of
both agencies, and that the transfer of such dual jurisdiction
regulations would be effected in a separate action. Subsequently, the
regulations in seven sections of part 1004 (49 CFR 1004.10 and 1004.20
to 1004.25) involving motor carrier routing and the interpretation of
motor carrier operating rights were incorporated with appropriate
technical changes into 49 CFR part 356 by FHWA. 62 FR 32040 (June 12,
1997). These regulations, however, were not removed from 49 CFR Chapter
X. Also, the remaining two sections of 49 CFR part 1004 were not
incorporated into 49 CFR Chapter III: 49 CFR 1004.10, pertaining to
gifts and donations by carriers, and 49 CFR 1004.26, concerning the
adjustment of claims for misrouting.
We are removing the regulations at 49 CFR 1004.2, 1004.20, 1004.21,
1004.22, 1004.23, 1004.24, and 1004.25 that have been incorporated in
substance into 49 CFR part 356. These rules pertain to matters that are
within the exclusive jurisdiction of FHWA .
The two remaining sections of part 1004--49 CFR 1004.10 and 49 CFR
1004.26--concern functions that are still within the Board's
jurisdiction.5 The gifts and donations regulations at 49 CFR
1004.10 were originally issued on July 24, 1969 (34 FR 12221). They
were revised without substantive change in Non-Rail Interpretations and
Routing Regulations, Ex Parte No. 55 (Sub-No. 67) (served and published
in the Federal Register on November 22, 1988, 53 FR 47219) (Ex Parte
No. 55).6 We are redesignating this section as 49 CFR 1004.1
but otherwise leaving the rule unchanged.
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\5\ In Revision of Authority Citations, STB Ex Parte No. 571
(STB served Sept. 26, 1997) at 2, we ``question[ed] whether the
portions of part 1004 that are not obsolete are still necessary,''
and we indicated that we would ``seek comment in a separate
proceeding as to whether this rule should be maintained.'' We now
believe that the two remaining sections of part 1004 do have
relevance, although parties may petition the Board if they wish to
have any portion of part 1004 removed.
\6\ The Ex Parte No. 55 decision also consolidated the
interpretations and routing regulations then found at 49 CFR 1041
and 1042 with the gifts and donations regulations and the misrouting
regulations found in former part 1004. The final rules we are
issuing will be similar to the pre-Ex Parte No. 55 part 1004,
pertaining only to gifts and donations and misrouting.
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The misrouting regulations at 49 CFR 1004.26 were originally issued
in Adjustment for Claims for Damages--Misrouting, 319 I.C.C. 462
(1963). They were also revised without substantive change in Ex Parte
No. 55. We are updating the regulations without making substantive
changes, but we are deleting the statutory references to the statutes
of limitations, and we are redesignating this section as 49 CFR part
1004.2. Finally, we are updating the authority citation while removing
obsolete and unnecessary authority references.
Because these changes to Parts 1000, 1001, and 1004 either remove
obsolete regulations, make revisions that are not substantive, or
update rules to reflect current agency practice, we find good cause to
dispense with notice and comment. 5 U.S.C. 553(b)(3)(A) and (B).
Small Entities
The Board certifies that this rule will not have a significant
economic effect on a substantial number of small entities, because
obsolete rules are being removed, and the changes to the remaining
rules are either not substantive or reflect current agency practice.
Environment
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
[[Page 47711]]
List of Subjects
49 CFR Part 1000
Administrative practice and procedure, Conflict of interests, Seals
and insignia.
49 CFR Part 1001
Confidential business information, Freedom of information.
49 CFR Part 1004
Administrative practice and procedure.
By the Board, Chairman Morgan, Vice Chairman Morgan, and
Commissioner Burkes.
Decided: August 23, 1999.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble, title 49, chapter X, of
the Code of Federal Regulations is amended as follows:
PART 1000--[REMOVED]
1. Under the authority of 49 U.S.C. 721, part 1000 is removed.
PART 1001--INSPECTION OF RECORDS
2. The authority citation for part 1001 continues to read as
follows:
Authority: 5 U.S.C. 552, 49 U.S.C. 702, and 49 U.S.C. 721.
3. Section 1001.1 is revised to read as follows:
Sec. 1001.1. Records available from the Board.
(a) The following specific files and records in the custody of the
Secretary of the Surface Transportation Board are available to the
public and may be inspected at the Board's office upon reasonable
request during business hours (between 8:30 a.m. and 5 p.m., Monday
through Friday):
(1) Copies of tariffs and railroad transportation contract
summaries filed with the Board pursuant to 49 U.S.C. 13702(b) and
10709(d), respectively.
(2) Annual and other periodic reports filed with the Board pursuant
to 49 U.S.C. 11145.
(3) All docket files, which include documents of record in a
proceeding.
(4) File and index of instruments or documents recorded pursuant to
49 U.S.C. 11301.
(5) Surface Transportation Board Administrative Issuances.
(b) The following records, so-called ``reading room'' documents,
are available for inspection and copying at the Board's office:
(1) Final decisions, including concurring and dissenting opinions,
as well as orders, made in the adjudication of cases;
(2) Those statements of policy and interpretations that have been
adopted by the agency and are not published in the Federal Register;
(3) Administrative staff manuals and instructions to staff that
affect a member of the public; and
(4) Copies of all records, regardless of form or format, that have
been released to any person under 5 U.S.C. 552(a)(3) and that, because
of the nature of their subject matter, the agency determines have
become or are likely to become the subject of subsequent requests for
substantially the same records.
(c) The Board maintains, and makes available for inspection and
copying, indexes of the documents described in paragraph (b) of this
section. Final decisions are indexed in the ``Surface Transportation
Board Daily Releases'', which is issued by the Board every working day.
This document also explains how copies of decisions can be purchased.
The remaining documents are indexed as they are made available.
(d) Documents described in paragraph (b) of this section that were
created on and after November 1, 1996, are indexed by service date or
date of issuance and are available for viewing and downloading from the
Board's Electronic Reading Room at www.stb.dot.gov, the Board's
website. Final decisions are maintained in a database that is full text
searchable.
4. Part 1004 is revised to read as follows:
PART 1004--INTERPRETATIONS AND ROUTING REGULATIONS
Sec.
1004.1 Gifts, donations, and hospitality by carriers.
1004.2 Misrouting, adjustment of claims.
Authority: 49 U.S.C. 721.
Sec. 1004.1 Gifts, donations, and hospitality by carriers.
It is unlawful for any common carrier engaged in interstate or
foreign commerce to offer, make, or cause any undue or unreasonable
preference or advantage to any person. Gifts or services or anything of
substantial value to particular shippers or their representatives are
considered violations of the law. Expenditures for such gifts may not
support requests to increase carrier rates. The Board shall take
appropriate enforcement action to redress such unlawful expenditures.
Sec. 1004.2 Misrouting, adjustment of claims.
Carriers should adjust claims for damages resulting from
misrouting. Where a carrier admits responsibility for billing,
forwarding, or diverting a shipment over a higher rated route than that
directed by the shipper or otherwise available, the misrouting carrier
should refund the difference to the shipper (or reimburse the
delivering carrier, as the case may be). Where the misrouting carrier
alleges justification for using the higher rated route, the Board may,
at its discretion and upon appropriate petition, determine or express
an advisory opinion on the lawfulness of such routing. This
interpretation must not be used to evade or defeat tariff rates or to
meet the rate of a competing carrier or route, nor to relieve a shipper
from responsibility for routing instruction. Damages caused by
misrouting are not overcharges.
[FR Doc. 99-22648 Filed 8-31-99; 8:45 am]
BILLING CODE 4915-00-P
