[Federal Register Volume 62, Number 181 (Thursday, September 18, 1997)]
[Rules and Regulations]
[Pages 48953-48955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24820]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1000, 1001, and 1011
[STB Ex Parte No. 568]
Modifications to the General Provisions of the Board
AGENCY: Surface Transportation Board.
ACTION: Final rules.
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SUMMARY: The Board revises its regulations to reflect: the elimination
of certain functions; the closing of field offices; nomenclature
changes resulting from the transfer of functions from the Interstate
Commerce Commission to the Surface Transportation Board; and the
removal of unnecessary rules.
EFFECTIVE DATE: These rules are effective September 18, 1997.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 565-1600. (TDD for
the hearing impaired: (202) 565-1695.)
SUPPLEMENTARY INFORMATION: The Surface Transportation Board (Board or
STB) is revising parts 1000, 1001, and 1011 of its regulations to
reflect changes made by the ICC Termination Act of 1995, Pub. L. 104-
88, 109 Stat. 803 (1995) (ICCTA). The ICCTA abolished the Interstate
Commerce Commission (ICC) and transferred certain functions to the
Board. Some of the modifications we are making are only nomenclature
revisions (changing Interstate Commerce Commission to Surface
Transportation Board, for example). Other rules are being changed to
reflect substantive revisions of the statute. Some rules are being
revised because the statutes upon which they are based have been
eliminated. Other regulations are being removed because they are of
limited utility or, even if updated, would basically only repeat what
is now in the statute.
Part 1000
We are eliminating Secs. 1000.1 and 1000.5. At this time, we are
not making any changes in Sec. 1000.10, concerning the availability of
decisions not published in the Federal Register. We will issue soon a
decision dealing separately with the necessary revisions to
Sec. 1000.10.
Section 1000.1 concerns the official seal of the ICC. Former 49
U.S.C. 10301(g) provided that the ICC ``shall have a seal that shall be
judicially recognized.'' Former 49 U.S.C. 10303(b) stated in part that
``(a) public record * * * certified by the Secretary under the seal of
the (ICC) is competent evidence in a proceeding of the Commission and
in a judicial proceeding.'' Under the ICCTA, these references to the
seal have been deleted: the ICCTA eliminated former section 10303; and
it revised former section 10301 (which is now codified at 49 U.S.C.
701), deleting any references to the seal.
The Board has its own seal, which is employed as one method of
certifying the index of the record and copies of documents in the
record. Because it is not statutorily required, however, we do not
believe that it is necessary to include the Board's seal in the Code of
Federal Regulations. 1
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\1\ We are also removing from Sec. 1001.4 the provision that
certification of records shall be made under seal, as this is not
the only means of certification used by the Board.
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Section 1000.5 describes the records and property of carriers and
other persons that are subject to inspection and examination by
``special agents, accountants, and examiners.'' It lists the employees
who are considered special agents, accountants, and examiners, provides
that the Chairman can designate other employees, and contains a
facsimile of the ICC's credentials.
The Sec. 1000.5 regulations are based on former section 20(5) of
the Interstate Commerce Act, later recodified at former 49 U.S.C.
11144.2 The ICCTA maintained these provisions in new 49
U.S.C. 11144, 14122, and 15721. Retaining and updating these
regulations to reflect the new law is unnecessary, because such rules
would simply repeat the provsions set forth in the statute. We will
amend 49 CFR 1011.5, however, which covers delegations of authority to
the Chairman,3 to provide that the Chairman of the Board
shall specify in writing the employees authorized to inspect and copy
records and to inspect and examine lands, buildings, and equipment
pursuant to 49 U.S.C. 11144, 14122 , and 15721.
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\2\ The rules were not revised when the statute was recodified
in 1978, even though changes to terminology had been made. For
example, under section 20(5) of the Interstate Commerce Act, ``any
duly authorized special agent, accountant, or examiner'' could copy
``accounts, books, records, memoranda, correspondence, and other
documents.'' The regulations in Sec. 1000.5 use this language.
However, in the recodification of the Interstate Commerce Act at
former 49 U.S.C. 11144, for the sake of clarity ``an employee
designated by the Commission'' was substituted for ``any duly
authorized special agent, accountant, or examiner'', and, to comport
with 5 U.S.C. 552(a) (the Freedom of Information Act), ``records''
replaced ``accounts, books, records, memoranda, correspondence, and
other documents.'' H. Rep. No. 1395, 95th Cong., 2d Sess. 147
(1978).
\3\ We note that part 1011, concerning delegations of authority,
contains a number of obsolete provisions. We will soon be issuing a
decision that updates the remainder of part 1011.
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The ICC credentials shown in Sec. 1000.5 are outdated, and we see
no point in codifying a facsimile of the Board's credentials. We do not
believe that the public would turn to the Code of Federal Regulations
to verify a Board employee's credentials. We believe that rules are
more appropriately used to provide more meaningful guidance as to Board
procedures or Board policy regarding substantive issues.
Part 1001
Part 1001 deals with two separate matters: the availability and
certification of records (Secs. 1001.1 to 1001.4); and Freedom of
Information Act (FOIA) issues (Secs. 1001.5 and 1001.6). The FOIA
sections were not substantively affected by the ICCTA and, therefore,
we are simply changing ICC references to STB references and making
other minor changes in those sections. We are also changing the ICC
references in the records sections and updating retained statutory
references.
The ICCTA made other changes that require modifying the rules.
Section 1001.1(a) is being amended to reflect the new tariff and
contract summary filing requirements and to recognize that government
quotations are no longer filed at the Board. We are removing
Sec. 1001.1(c) (concerning reports, maps, and profiles), which is based
on repealed 49 U.S.C. 10783. The language of Sec. 1001.1(d) is being
simplified and obsolete references are being deleted. We are removing
Secs. 1001.2 and 1001.3, because the field offices formerly
[[Page 48954]]
maintained by the ICC have been closed and because the Board does not
have jurisdiction over international joint ocean-motor through-rate
movements.
Because these changes to the regulations are technical, and do not
involve substantive revisions of our rules, notice and comment are not
needed. Under 5 U.S.C. 553(b)(A), the Administrative Procedure Act's
requirements of notice and comment are not applicable to ``rules of
agency organization, procedure, or practice.'' 4 The rules
we are revising fall within these categories.
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\4\ When the ICC issued the Sec. 1000.5 regulations (May 15,
1959 (24 FR 3957), it stated that, because the rules were a
clarification of regulations concerning agency personnel, a
rulemaking proceeding pursuant to the Administrative Procedure Act
was unnecessary.
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Small Entities
The Board certifies that these rule changes will not have a
significant economic effect on a substantial number of small entities.
The changes being made largely pertain to agency management, personnel,
and procedure, and should have no impact on small entities.
Environment
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
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 1011
Administrative practice and procedure, Authority delegation
(Government agencies), Organization and functions (Government
agencies).
Decided: September 9, 1997.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble, parts 1000, 1001, and
1011 of title 49, chapter X, of the Code of Federal Regulations are
amended as follows:
PART 1000--THE BOARD
1. The authority citation for Part 1000 is revised to read as
follows:
Authority: 5 U.S.C. 552.
2. The heading of part 1000 is revised to read as set forth above.
3. The headings ``Subpart A--General'' and Secs. 1000.1 and 1000.5
are removed.
4. Part 1001 is revised to read as follows:
PART 1001--INSPECTION OF RECORDS
Sec.
1001.1 Records available at the Board's office.
1001.2 Certified copies of records.
1001.3 Requests to inspect other records not considered public
under 5 U.S.C. 552.
1001.4 Predisclosure notification procedures for confidential
commercial information.
Authority: 5 U.S.C. 552, 49 U.S.C. 702, and 49 U.S.C. 721.
Sec. 1001.1 Records available at the Board's office.
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 5:00 p.m., Monday
through Friday):
(a) Copies of tariffs and railroad transportation contract
summaries filed with the Board pursuant to 49 U.S.C. 13702(b) and
10709(d), respectively.
(b) Annual and other periodic reports filed with the Board pursuant
to 49 U.S.C. 11145.
(c) All docket files, which include documents of record in a
proceeding.
(d) File and index of instruments or documents recorded pursuant to
49 U.S.C 11301.
(e) STB Administrative Issuances.
Sec. 1001.2 Certified copies of records.
Copies of and extracts from public records will be certified by the
Secretary. Persons requesting the Board to prepare such copies should
clearly state the material to be copied, and whether it shall be
certified. Charges will be made for certification and for the
preparation of copies as provided in part 1002 of this chapter.
Sec. 1001.3 Requests to inspect other records not considered public
under 5 U.S.C. 552.
Requests to inspect records other than those now deemed to be of a
public nature shall be in writing and addressed to the Freedom of
Information Officer (Officer). The Officer shall determine within 10
days of receipt of a request (excepting Saturdays, Sundays, and legal
public holidays) whether a requested record will be made available. If
the Officer determines that a request cannot be honored, the Officer
must inform the requesting party in writing of this decision and such
letter shall contain a detailed explanation of why the requested
material cannot be made available and explain the requesting party's
right of appeal. If the Officer rules that such records cannot be made
available because they are exempt under the provisions of 5 U.S.C.
552(b), an appeal from such ruling may be addressed to the Chairman.
The Chairman's decision shall be administratively final and state the
specific exemption(s) contained in 5 U.S.C. 552(b) relied upon for
denial. Such an appeal must be filed within 30 days of the date of the
Freedom of Information Officer's letter. The Chairman shall act in
writing on such appeals within 20 days (excepting Saturdays, Sundays,
and legal public holidays) of receipt of any appeal. In unusual
circumstances, as set forth in 5 U.S.C. 552(a)(6)(B), the time limit
may be extended, by written notice to the person making the particular
request, setting forth the reasons for such extension, for no more than
10 working days. If the appeal is denied, the Chairman's order shall
notify the requesting party of his or her right to judicial review.
Charges shall be made as provided for in Sec. 1002.1(f) of this
chapter.
Sec. 1001.4 Predisclosure notification procedures for confidential
commercial information.
(a) In general. Confidential commercial information provided to the
Interstate Commerce Commission or the Board shall not be disclosed
pursuant to a Freedom of Information Act (FOIA) request except in
accordance with this section. For such purposes, the following
definitions apply:
(1) Confidential commercial information means records provided to
the government by a submitter that arguably contain material exempt
from release under Exemption 4 of the Freedom of Information Act, 5
U.S.C. 552(b)(4), because disclosure could reasonably be expected to
cause substantial competitive harm.
(2) Submitter means any person or entity who provides confidential
commercial information to the government. The term ``submitter''
includes, but is not limited to, corporations, state governments, and
foreign governments.
(b) Notice to submitters. Except as provided in paragraph (g) of
this section, the Board, to the extent permitted by law, shall provide
a submitter with prompt written notice, in accordance with paragraph
(c) of this
[[Page 48955]]
section, of receipt of an FOIA request encompassing its submissions.
This notice shall either describe the exact nature of the information
requested or provide copies of the records themselves.
(c) When notice is required. Notice shall be given to a submitter
whenever:
(1) The Board has reason to believe that disclosure of the
information could reasonably be expected to cause substantial
competitive harm; or
(2) The information has been designated, in good faith by the
submitter, as confidential commercial information at the time of
submission or within a reasonable time thereafter. Whenever possible,
the submitter's claim of confidentiality shall be supported by a
statement or certification by an officer or authorized representative
of the company that the information in question is in fact confidential
commercial information and has not been disclosed to the public.
(d) Opportunity to object to disclosure. (1) Through the notice
described in paragraph (b) of this section, the Board shall afford a
submitter a reasonable period of time in which to provide it with a
detailed statement of any objection to disclosure. Such statement shall
specify all grounds for withholding the requested information.
(2) When notice is given to a submitter under this section, the
Board also shall notify the requester that it has been provided.
(e) Notice of intent to disclose. (1) The Board shall consider
carefully a submitter's objections and specific grounds for
nondisclosure prior to its determination whether or not to disclose the
requested information. Whenever the Board decides to disclose the
information over a submitter's objection, it shall provide the
submitter with written notice containing the following:
(i) A description or copy of the information to be disclosed;
(ii) The reasons why the submitter's disclosure objections were not
sustained; and
(iii) A specific disclosure date, which shall be a reasonable
number of days after the notice of intent to disclose has been mailed
to the submitter.
(2) At the same time that notice of intent to disclose is given to
a submitter, the Board shall notify the requester accordingly.
(f) Notice of lawsuit. (1) Whenever an FOIA requester brings legal
action seeking to compel disclosure of confidential commercial
information, the Board shall promptly notify the submitter.
(2) Whenever a submitter brings legal action seeking to prevent
disclosure of confidential commercial information, the Board shall
promptly notify the requester.
(g) Exception to notice requirement. The notice requirements of
this section shall not apply if:
(1) The Board determines that the information requested should not
be disclosed; or
(2) The information already has been published or otherwise
officially made available to the public; or
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) Disclosure is required by a Board rule that:
(i) Was adopted pursuant to notice and public comment;
(ii) Specifies narrow classes of records submitted to the Board
that are to be released; and
(iii) Provides in exceptional circumstances for notice when the
submitter provides written justification, at the time the information
is submitted or within a reasonable time thereafter, that disclosure of
the information could reasonably be expected to cause substantial
competitive harm; or
(5) The information requested was not designated by the submitter
as exempt from disclosure, when the submitter had an opportunity to do
so at the time of submission or within a reasonable time thereafter,
unless the Board has reason to believe that disclosure of the
information could reasonably be expected to cause substantial
competitive harm; or
(6) The designation made by the submitter in accordance with these
regulations appears obviously frivolous; in such case, the Board must
provide the submitter only with written notice of any administrative
disclosure determination within a reasonable number of days prior to
the specified disclosure date.
PART 1011--BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY
5. The authority citation for part 1104 is revised to read as
follows:
Authority: 5 U.S.C. 553, 31 U.S.C. 9701, and 49 U.S.C. 701, 721,
11144, 14122, and 15721.
6. The heading for part 1011 is revised to read as set forth above.
7. Section 1011.5 is amended by revising the heading and by adding
a new paragraph (a)(9) to read as follows:
Sec. 1011.5 Delegations to individual Board Members.
(a) * * *
(9) Designation in writing of employees authorized to inspect and
copy records and to inspect and examine lands, buildings, and equipment
pursuant to 49 U.S.C. 11144, 14122, and 15721.
* * * * *
[FR Doc. 97-24820 Filed 9-17-97; 8:45 am]
BILLING CODE 4915-00-P
