[Federal Register Volume 62, Number 130 (Tuesday, July 8, 1997)]
[Proposed Rules]
[Pages 36477-36480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17746]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1002, 1182, 1187, and 1188
[STB Ex Parte No. 559]
Revisions to Regulations Governing Finance Applications Involving
Motor Passenger Carriers
AGENCY: Surface Transportation Board.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Board proposes to establish revised procedures governing
finance applications involving motor passenger carriers, filed under 49
U.S.C. 14303. The proposed procedures adopt, with modifications, the
existing procedures promulgated by the Interstate Commerce Commission
(ICC). In addition, the regulations in parts 1187 and 1188 are proposed
to be removed and replaced by new provisions incorporated in part 1182.
(Accordingly, in a separate notice published today, the rulemaking
proposed by the ICC in Ex Parte No. MC-216 is being discontinued.)
DATES: Comments are due on August 7, 1997.
ADDRESSES: Send comments (an original and 10 copies) referring to STB
Ex Parte No. 559 to: Surface Transportation Board, Office of the
Secretary, Case Control Unit, Mercury Building, 1925 K Street, N.W.,
Washington, DC 20423-0001.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 565-1600. [TDD for
the hearing impaired: (202) 565-1695.]
SUPPLEMENTARY INFORMATION: The ICC Termination Act of 1995, Pub. L. No.
104-88, 109 Stat. 803 (1995) (ICCTA), which took effect on January 1,
1996, abolished the Interstate Commerce Commission (ICC) and
transferred certain of its motor carrier regulatory functions to the
Secretary of Transportation (Secretary) and to the Surface
Transportation Board (Board). See ICCTA section 101 (abolition of the
ICC). See also new 49 U.S.C. 13101-14914 (regulatory provisions
applicable to motor carriers, administered in part by the Secretary and
in part by the Board).
[[Page 36478]]
Finance Jurisdiction. Under the new provisions of 49 U.S.C. 14303,
the Board has jurisdiction over finance transactions'i.e.,
consolidations, mergers, purchases, leases, and contracts to operate
properties or franchises'involving motor passenger carriers. \1\ The
Board's jurisdiction over these finance transactions is similar to that
of the ICC.
---------------------------------------------------------------------------
\1\ The ICC had similar jurisdiction over such transactions
involving motor carriers of property and water carriers as well.
---------------------------------------------------------------------------
Since enactment of the ICCTA, the Board has continued to apply in
motor passenger carrier cases the procedural rules that were
promulgated by the ICC. In most instances, the former rules have
provided adequate and appropriate guidance to applicants and other
interested parties, and there have been no difficulties in applying
those rules under the new statute. The rules, however, are obsolete in
some areas.
The Board has reviewed the regulations and has determined that
certain modifications are required to conform them to the new statute
and to assure expeditious processing of motor passenger carrier finance
proceedings. Relatively few substantive modifications are required to
the former regulations, and these are detailed in a separate decision,
which is available to all persons for a charge by calling DC NEWS &
DATA, INC., at (202) 289-4357.
Environmental and Energy Considerations
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
Regulatory Flexibility Analysis
The Board certifies that the rules proposed, if adopted, would not
have a significant economic impact on any substantial number of small
entities. The procedures established are simple and expeditious, impose
no additional reporting requirements on small entities, and maintain
the rapid processing time typical of such applications under the former
rules promulgated by the ICC. The Board seeks comments, however, on
whether there would be effects on small entities that should be
considered.
List of Subjects
49 CFR Part 1002
Administrative practice and procedure, Common carriers, Freedom of
information, User fees.
49 CFR Part 1182
Administrative practice and procedure, Maritime carriers, Motor
carriers.
49 CFR Part 1187
Administrative practice and procedure, Maritime carriers, Motor
carriers.
49 CFR Part 1188
Administrative practice and procedure, Motor carriers.
Decided: June 20, 1997.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble, title 49, chapter X,
parts 1002, 1182, 1187, and 1188 of the Code of Federal Regulations are
proposed to be amended as follows:
PART 1002--FEES
1. The authority citation for part 1002 continues to read as
follows:
Authority: 5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701; and 49
U.S.C. 721(a).
2. Section 1002.2 is proposed to be amended by revising fee items
(2) and (5) in the table in paragraph (f) to read as follows:
Sec. 1002.2 Filing fees.
* * * * *
(f) * * *
------------------------------------------------------------------------
Type of proceeding Fee
------------------------------------------------------------------------
(2) An application to consolidate, merge, purchase, lease, or
contract to operate the properties or franchises of motor
carriers of passengers or to acquire control of motor carriers
of passengers, under 49 U.S.C. 14303.......................... 1,100.
* * * * *
(5) A request for interim approval in connection with a finance
application involving a motor carrier of passengers, under 49
U.S.C. 14303(i)............................................... 250.
* * * * *
------------------------------------------------------------------------
3. Part 1182 is proposed to be revised to read as follows:
PART 1182--PURCHASE, MERGER, AND CONTROL OF MOTOR PASSENGER
CARRIERS
Sec.
1182.1 Applications covered by these rules.
1182.2 Content of applications.
1182.3 Filing the application.
1182.4 Board review of the application.
1182.5 Comments.
1182.6 Processing an opposed application.
1182.7 Interim approval.
1182.8 Miscellaneous requirements.
Authority: 5 U.S.C. 559; 21 U.S.C. 853a; and 49 U.S.C. 13501,
13902(c), and 14303.
Sec. 1182.1 Applications covered by these rules.
These rules govern applications for authority under 49 U.S.C. 14303
to consolidate, merge, purchase, lease, or contract to operate the
properties or franchises of motor carriers of passengers or to acquire
control of motor carriers of passengers. There is no application form
for these proceedings. Applicants shall file a pleading containing the
information described in 49 CFR 1182.2. See 49 CFR 1002.1(f)(2) and (5)
for filing fees.
Sec. 1182.2 Content of applications.
(a) The application must contain the following information:
(1) Full name, address, and authorized signature of each of the
parties to the transaction;
(2) Copies or descriptions of the pertinent operating authorities
of all of the parties; (NOTE: If an applicant is domiciled in Mexico or
owned or controlled by persons of that country, copies of the actual
operating authorities must be submitted.)
(3) A description of the proposed transaction;
(4) Identification of any motor passenger carriers affiliated with
the parties, a brief description of their operations, and a summary of
the intercorporate structure of the corporate family from top to
bottom;
(5) A jurisdictional statement, under 49 U.S.C. 14303(g), that the
aggregate gross operating revenues, including revenues of all motor
carrier parties and all of their motor carrier affiliates from all
transportation sources (whether interstate, intrastate, foreign,
regulated, or unregulated) exceeded $2 million;
(Note: The motor passenger carrier parties and their motor passenger
carrier affiliates may select a consecutive 12-month period ending
not more than 6 months before the date of the parties' agreement
covering the transaction. They must, however, select the same 12-
month period.)
(6) A statement indicating whether the transaction will or will not
significantly affect the quality of the human environment and the
conservation of energy resources;
(7) Information to demonstrate that the proposed transaction is
consistent with the public interest, including particularly: the effect
of the proposed transaction on the adequacy of transportation to the
public; the total fixed charges (e.g., interest) that result from the
proposed transaction; and the
[[Page 36479]]
interest of carrier employees affected by the proposed transaction. See
49 U.S.C. 14303(b);
(8) Certification of the U.S. Department of Transportation safety
fitness rating of each motor passenger carrier involved in the
transaction, whether that carrier is a party to the transaction or is
affiliated with a party to the transaction;
(9) Certification by the party acquiring any operating rights
through the transaction that it has sufficient insurance coverage under
49 U.S.C. 13906(a) and (d) for the service it intends to provide;
(10) A statement indicating whether any party acquiring any
operating rights through the transaction is either domiciled in Mexico
or owned or controlled by persons of that country; and
(11) If the transaction involves the transfer of operating
authority to an individual who will hold the authority in his or her
name, that individual must complete the following certification:
I, ____________, certify under penalty of perjury under the laws
of the United States, that I have not been convicted, after
September 1, 1989, of any Federal or State offense involving the
distribution or possession of a controlled substance, or that I have
been so convicted, but I am not ineligible to receive Federal
benefits, either by court order or operation of law, pursuant to 21
U.S.C. 853a.
(b) The application shall contain applicants' entire case in
support of the proposed transaction, unless the Board finds, on its own
motion or that of a party to the proceeding, that additional
evidentiary submissions are required to resolve the issues in a
particular case.
(c) Any statements submitted on behalf of an applicant supporting
the application shall be verified, as provided in 49 CFR 1182.8(e).
Pleadings consisting strictly of legal argument, however, need not be
verified.
(d) If an application or supplemental pleading contains false or
misleading information, the granted application is void ab initio.
Sec. 1182.3 Filing the application.
(a) Each application shall be filed with the Board, complying with
the requirements set forth at 49 CFR 1182.8.
(1) One copy of the application shall be delivered, by first-class
mail, to the appropriate regulatory body in each State in which any of
the parties operates in intrastate commerce.
(2) If the application involves the merger or purchase of motor
passenger carriers (contemplating transfer of operating authorities or
registrations from one or more parties to others), one copy of the
application shall be delivered, by first-class mail, to:
Chief, Lic. & Ins. Div., U.S.D.O.T. Office of Motor Carriers-HIA
30, 400 Virginia Ave. SW, Ste. 600, Washington, DC 20004
(b) In their application, the parties shall certify that they have
delivered copies of the application as provided in paragraph (a) of
this section.
Sec. 1182.4 Board review of the application.
(a) All applications will be reviewed for completeness. Applicants
will be given an opportunity to correct minor errors or omissions.
Incomplete applications may be rejected, or, if omissions are
corrected, the filing date of the application, for purposes of
calculating the procedural schedule and statutory deadlines, will be
deemed to be the date on which the complete information is filed with
the Board.
(b) If the application is accepted, a summary of the application
will be published in the Federal Register (within 30 days, as provided
by 49 U.S.C. 14303(c)), to give notice to the public, in the form of a
tentative grant of authority.
(c) If the published notice does not properly describe the
transaction for which approval is sought, applicants shall inform the
Board within 10 days after the publication date.
(d) A copy of the application will be available for inspection at
the Board's offices in Washington, DC. Interested persons may obtain a
copy of the application from the applicants' representative, as
specified in the published notice.
Sec. 1182.5 Comments.
(a) Comments concerning an application must be received by the
Board within 45 days after notice of the application is published, as
provided by 49 U.S.C. 14303(d). Failure to file a timely comment waives
further participation in the proceeding. If no comments are filed
opposing the application, the published tentative grant of authority
will automatically become effective at the close of the comment period.
A tentative grant of authority does not entitle the applicant to
consommate the transaction before the end of the comment period.
(b) A comment shall be verified, as provided in 49 CFR 1182.8(e),
and shall contain all information upon which the commenter intends to
rely, including the grounds for any opposition to the transaction and
the commenter's interest in the proceeding.
(c) The docket number of the application must be conspicuously
placed at the top of the first page of the comment.
(d) A copy of the comment shall be delivered concurrently to
applicants' representative(s).
Sec. 1182.6 Processing an opposed application.
(a) If timely comments are submitted in opposition to an
application, the tentative grant of authority is void.
(b) Applicants may file a reply to opposing comments, within 60
days after the date the application was published.
(1) The reply may include a request for an expedited decision on
the issues raised by the comments. Otherwise, the reply may not contain
any new evidence, but shall only rebut or further explain matters
previously raised.
(2) The reply shall be verified, as provided in 49 CFR 1182.8(e),
unless it consists strictly of legal argument.
(3) Applicants' reply must be served on each commenter in such
manner that it is received no later than the date it is due to be filed
with the Board.
(4) Opposing commenters may reply to a request for an expedited
decision, within 70 days after notice of the application was published.
(c) The Board may
(1) Dispense with further procedings and make a final determination
based on the record as developed; or
(2) Issue a procedural schedule specifying the dates by which:
applicants may submit additional evidence in support of the
application, in response to the comment(s) in opposition; and the
opposing commentor(s) may reply.
(d) Further processing of an opposed application will be handled on
a case-by-case basis, as appropriate to the particular issues raised in
the comments filed in opposition to the application. Evidentiary
proceedings must be concluded within 240 days after publication of the
notice of the application.
Sec. 1182.7 Interim approval.
(a) A party may request interim approval of the operation of the
properties sought to be acquired through the proposed transaction, for
a period of not more than 180 days pending determination of the
application. This request may be included in the application or may be
submitted separately after the application is filed (e.g., once a
comment opposing the application has been filed). An additional filing
fee is required, whether the request for interim approval is included
in the application or is submitted separately, at a later time. See 49
CFR 1002.2(f)(5) for the additional filing fee.
[[Page 36480]]
(b) A request for interim approval of the operation of the
properties sought to be acquired in the application must show that
failure to grant interim approval may result in destruction of or
injury to those properties or substantially interfere with their future
usefulness in providing adequate and continuous service to the public.
(c) If a request for interim approval is submitted after the
application is filed, it must be served on each person who files or has
filed a comment in response to the published notice of the application.
Service must be simultaneous upon those commenters who are known when
the request for interim approval is submitted; otherwise, service must
be within 5 days after the comment is received by applicants or their
representative.
(d) Because the basis for requesting interim approval is to prevent
destruction of or injury to motor passenger carrier properties sought
to be acquired under 49 U.S.C. 14303, the processing of such requests
is intended to promote expeditious decisions regarding interim
approval. The Board has no obligation to give public notice of requests
for interim approval, and such requests are decided without hearing or
other formal proceeding.
(1) If a request for interim approval is included in the
application, the Board's decision with regard to interim approval will
be served in conjunction with the notice accepting the application.
(2) If an application is rejected, the request for interim approval
will be denied.
(3) If an application is denied, after comments in opposition are
submitted, any interim approval will terminate 30 days after service of
the decision denying the application.
(e) A petition to reconsider a grant of interim approval may be
filed only by a person who has filed a comment in opposition to the
application.
(1) A petition to reconsider a grant of interim approval must be in
writing and shall state the specific grounds upon which the commenter
relies in opposing interim approval. The petition shall certify that a
copy has been served on applicants' representative.
(2) The original and 10 copies of the petition to reconsider a
grant of interim approval shall be filed with the Board, and one copy
of the petition shall be served on applicants' representative(s).
(f) The Board may act on a petition to reconsider a grant of
interim approval either separately or in connection with the final
decision on the application.
Sec. 1182.8 Miscellaneous requirements.
(a) If applicants wish to withdraw an application, they shall
jointly request dismissal in writing.
(b) An original and 10 copies of all applications, pleadings, and
other material filed under this part must be filed with the Board.
(c) All pleadings (including motions and replies) submitted under
this part shall be served on all other parties, concurrently and by the
same (or more expeditious) means with which they are filed with the
Board.
(d) Each pleading shall contain a certificate of service stating
that the pleading has been served in accordance with paragraph (c) of
this section.
(e) All applications and pleadings containing statements of fact
(i.e., except motions to strike, replies thereto, and other pleadings
that consist only of legal argument) must be verified by the person
offering the statement, in the following manner:
I, [Name and Title of Witness], verify under penalty of perjury,
under the laws of the United States of America, that all information
supplied in connection with this application is true and correct.
Further, I certify that I am qualified and authorized to file this
application or pleading. I know that willful misstatements or
omissions of material facts constitute Federal criminal violations
punishable under 18 U.S.C. 1001 by imprisonment up to five years and
fines up to $10,000 for each offense. Additionally, these
misstatements are punishable as perjury under 18 U.S.C. 1621, which
provides for fines up to $2,000 or imprisonment up to five years for
each offense. [Signature and Date]
(f) If completion of a transaction requires the transfer of
operating authorities or registrations from one or more parties to
others, the parties shall comply with relevant procedures of State
authorities and of the Office of Motor Carriers of the U.S. Department
of Transportation, to accomplish such transfers.
PART 1187--[REMOVED]
4. Part 1187 is proposed to be removed.
PART 1188--[REMOVED]
5. Part 1188 is proposed to be removed.
[FR Doc. 97-17746 Filed 7-7-97; 8:45 am]
BILLING CODE 4915-00-P
