Modifications to the General Provisions of the Board

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

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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

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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