Technical Amendments Concerning Employee Boards

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Parts 1011, 1118, 1130 and 1132

[STB Ex Parte No. 570]

Technical Amendments Concerning Employee Boards

AGENCY: Surface Transportation Board, DOT.

ACTION: Final rules.

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SUMMARY: The Board revises its regulations to remove obsolete

delegations of authority; update references to statutory provisions;

eliminate several employee boards; delegate to designated offices and

individuals certain of the matters formerly delegated to employee

boards; and reserve to the Board the initial decision making authority

for certain formerly delegated matters.

EFFECTIVE DATE: These rules are effective September 29, 1997.

FOR FURTHER INFORMATION CONTACT: James W. Greene, (202) 565-1578. (TDD

for the hearing impaired: (202) 565-1695.)

SUPPLEMENTARY INFORMATION: The Board is revising its delegations of

authority to reflect changes implemented 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 established the Board.

Some of the ICC's functions were transferred to the Board and others

were transferred to the Secretary of Transportation (and subsequently

delegated to the Federal Highway Administration (FHWA)).

49 CFR 1011.6, the employee board section, establishes 10 employee

boards: The Suspension/Special Permission (Sec. 1011.6(a)), the

Insurance Board (Sec. 1011.6(b)(1)), the Motor Carrier Leasing Board

(Sec. 1011.6(b)(2)), the Railroad Service Board (Sec. 1011.6(b)(3)),

the Revocation Board (Sec. 1011.6(b)(4)), the Released Rates Board

(Sec. 1011.6(c)), the Accounting Board (Sec. 1011.6(d)), the Special

Docket Board (Sec. 1011.6(e)), the Regional Motor Carrier Boards

(Sec. 1011.6(f)), and the Motor Carrier Board (Sec. 1011.6(g)).

Some of the delegations of authority under which these employee

boards were established include matters over which the Board does not

exercise jurisdiction. In particular, the remaining statutory bases for

the Insurance Board, the Motor Carrier Leasing Board, the Revocation

Board, and the Regional Motor Carrier Boards have been transferred to

the Department of Transportation. Therefore, we are removing from the

Code of Federal Regulations the regulations providing for these

employee boards.

The other employee boards perform functions that continue under the

Board's jurisdiction.1 Except for the Accounting

Board,2 these employee boards are being eliminated, but

their duties will be handled by the Board Members, Offices of the

Board, or individuals to whom authority is being delegated.

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\1\ While some of the functions of the Motor Carrier Board have

either been eliminated or transferred to the Federal Highway

Administration, under new 49 U.S.C. 14303, the Board has

jurisdiction over motor passenger carrier finance applications and

interim approval requests. These matters will be handled by the

entire Board.

\2\ The Accounting Board is an employee board that rules on

technical issues dealing with accounting, reporting and record

retention rules, and prescribes depreciation rates used by

railroads. This board consists of three employees within the Office

of Economics, Environmental Analysis and Administration who have

strong accounting backgrounds, and, in light of the technical nature

of the issues that are considered, we believe that the retention of

this employee board is desirable. Procedural rules for this board

are found in revised 49 CFR part 1118.

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Employee boards performed essential functions at a time when more

comprehensive transportation regulation required the ICC to make a

significantly greater number of decisions, and when literally thousands

of decisions were made under delegations of authority each year. The

elimination of much transportation regulation in recent years and the

transfer of certain responsibilities to other agencies have, however,

reduced the need for employee boards at the Board. In the current, less

regulated environment, we believe that either delegating authority to

individual Offices and employees of the Board or reserving matters for

the entire Board will be a fully adequate and more efficient way of

processing cases.

While the quantity of decisions issued by the agency has been

reduced, certain delegations of authority continue to be warranted in

areas where the action to be taken is clear under existing Board

policies, and where prompt action is needed. By continuing to delegate

authority in these areas, we can reduce both the time that Board

members would otherwise be required to spend on routine matters, and

the time and cost associated with taking the necessary actions.

Nevertheless, we believe our current requirements can be more

effectively met by delegations of authority to Offices and individual

employees, rather than to employee boards. Actions to be taken under

delegated authority can be handled more simply by an individual

employee than by an employee board. Where more significant policy

issues are involved, it is anticipated that staff will certify the

cases to the Board for consideration in the first instance.

Additionally, all actions taken pursuant to delegated authority can be

appealed to the Board by the affected parties.

In some situations, cases that arise are likely to involve

significant or difficult

[[Page 50883]]

policy or legal issues. We believe that these matters should be handled

by the Board in the first instance. We also note that such Board action

is not unduly burdensome, because it is unlikely that there will be

large numbers of these types of cases.

Specific Disposition of Retained Authority. As indicated

previously, we are retaining the Accounting Board. We are eliminating

the Motor Carrier Board, and relevant authorities retained at this

agency pursuant to the ICCTA will be implemented by the entire Board in

the first instance.

We are eliminating the Suspension/Special Permission Board, because

its remaining functions can be effectively handled

elsewhere.3 The entire Board will consider investigation and

suspension of collectively set motor carrier rates under 49 U.S.C.

13703(a)(5),4 the reasonableness of motor carrier rates

under 49 U.S.C. 13710(a)(2) , and petitions for discovery of railroad

transportation contracts submitted pursuant to 49 CFR 1313.10. We are

delegating to the Office of Compliance and Enforcement (OCE) the

determination of motor common carrier applicability disputes under 49

U.S.C. 13710(a)(2) and special tariff authority applications under 49

CFR 1312.2(e). See 49 CFR 1011.8(d)(3) and (4).

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\3\ Because 49 U.S.C. 10726, concerning long and short haul

transportation, has been eliminated, the functions at 49 CFR

1011.6(a)(2) are no longer necessary. We will remove a section not

pertaining to employee boards, 49 CFR 1011.5(b)(3)(iii), because

this section is also based on former 49 U.S.C. 10726.

\4\ We are also amending the investigation and suspension rules

in part 1132.

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We are also eliminating the Released Rates Board. 49 CFR 1011.6(c).

While under 49 U.S.C. 14706(f), household goods motor carriers and

freight forwarders need Board authority to modify, establish, or

eliminate rates limiting liability, we believe that this function can

be handled efficiently by the entire Board and does not have to be

delegated to an employee board.5

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\5\ Currently, most carriers use the authority granted by the

ICC in Released Rates of Motor Carriers of HHG, 9 I.C.C. 2d 523

(1993) as the basis for limiting their liability.

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The Special Docket Board (49 CFR 1011.6(e)) handled carrier and

shipper resolutions of undercharge and overcharge claims.6

Tariff filing requirements are now found at 49 U.S.C. 13702

(noncontiguous domestic trade), and the authority to resolve

undercharge and overcharge claims is found in 49 U.S.C. 14709. Because

we do not believe that there will be many filings under section 14709,

we are eliminating this board.

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\6\ These claims resulted from incorrect tariff provisions or

billing errors due to the inadvertent failure to appropriately file

and maintain agreed-upon rates in compliance with statutory

provisions.

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Instead, uncontested requests formerly handled by the Special

Docket Board will be processed by OCE. We are amending 49 CFR 1132.2 to

reflect this change. Contested matters will be decided by the Board. 49

CFR 1132.2(g)(4).

The Railroad Service Board (49 CFR 1011.6(b)(3) and (b)(6)) was

delegated authority to act in equipment supply complaints and to issue

emergency service orders. In recent years, the entire Board has acted

on these matters. We will continue this practice and eliminate the

employee board.

We are also eliminating other delegations. Under 49 CFR 1011.7(e),

the Director of the former Office of Tariffs was delegated authority to

enter reparation orders following the conclusion of a formal case where

the amount of reparations could not be determined from the existing

record. We will eliminate this provision, and reparation issues will be

decided by the entire Board. Under 49 CFR 1011.8(d)(1), OCE, as

successor to the Office of Tariffs, was delegated authority to reject

tariffs, schedules, railroad contracts, and railroad contract

summaries. We are maintaining this delegation but eliminating the

obsolete references to schedules and rail contracts.7

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\7\ Rail contracts are no longer filed with the Board.

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We believe the revised delegations and procedures strike an

appropriate balance between matters that should be handled by staff in

the first instance and those that warrant consideration by the Board in

the first instance. Further, the elimination of employee boards will

produce operating efficiencies for the actions that continue to be

taken under delegated authority. Because the substantive changes in the

regulations relate solely to rules of agency organization, procedure or

practice, they are being implemented without requesting public comment.

Small Entities

The Board certifies that this rule will not have a significant

economic effect on a substantial number of 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 1011

Administrative practice and procedure, Authority delegations

(Government agencies), Organization and functions (Government

agencies).

49 CFR Part 1118

Administrative practice and procedure.

49 CFR Part 1130

Administrative practice and procedure.

49 CFR Part 1132

Administrative practice and procedure.

Decided: September 17, 1997.

By the Board, Chairman Morgan and Vice Chairman Owen.

Vernon A. Williams,

Secretary.

For the reasons set forth in the preamble, parts 1011, 1118, 1130

and 1132 of title 49, chapter X, of the Code of Federal Regulations are

amended as follows:

PART 1011--BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY

1. The authority citation for part 1011 continues to read as

follows:

Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 701, 721,

13702.

Sec. 1011.5 [Amended]

2. In Sec. 1011.5, paragraph (b)(3)(iii) is removed.

3. Section 1011.6 is revised to read as follows:

Sec. 1011.6 Employee boards.

This section covers matters assigned to the Accounting Board, a

board of employees of the Board.

(a) The Accounting Board has authority:

(1) To permit departure from general rules prescribing uniform

systems of accounts for carriers and other persons under the revised

Interstate Commerce Act (IC Act), subtitle IV of title 49 of the U.S.

Code, and from the regulations governing accounting and reporting

forms;

(2) To prescribe rates of depreciation to be used by railroad and

water carriers;

(3) To issue special authorizations permitted by the regulations

governing the destruction of records of carriers subject to the IC Act;

and

(4) To grant extensions of time for filing annual, periodic, and

special reports in matters that do not involve taking testimony at a

public hearing or

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the submission of evidence by opposing parties in the form of

affidavits.

(b) The board may certify any matter assigned to it to the Board.

Sec. 1011.7 [Amended]

4. In Sec. 1011.7, paragraph (e) is removed and reserved.

5. In Sec. 1011.8, paragraph (d) is revised to read as follows:

Sec. 1011.8 Delegations of authority by the Board to specific offices

of the Board.

* * * * *

(d) Office of Compliance and Enforcement. The Office of Compliance

and Enforcement is delegated the authority to:

(1) Reject tariffs and railroad transportation contract summaries

filed with the Board that violate applicable statutes, rules, or

regulations. Any rejection of a tariff or contract summary may be by

letter signed by or for the Director, Office of Compliance and

Enforcement, or the Chief, Section of Tariffs, Office of Compliance and

Enforcement.

(2) Issue, on written request, informal opinions and

interpretations on carrier tariff provisions, which are not binding on

the Board.

(3) Grant or withhold special tariff authority granting relief from

the provisions of 49 CFR part 1312. Any grant or withholding of such

relief may be by letter signed by or for the Director, Office of

Compliance and Enforcement, or the Chief, Section of Tariffs, Office of

Compliance and Enforcement.

(4) Resolve any disputes that may arise concerning the

applicability of motor common carrier rates under 49 U.S.C.

13710(a)(2).

* * * * *

6. Part 1118 is revised to read as follows:

PART 1118--PROCEDURES IN INFORMAL PROCEEDINGS BEFORE EMPLOYEE

BOARDS

Sec.

1118.1 Scope.

1118.2 Proceedings to be informal.

1118.3 Appeals.

Authority: 49 CFR 721.

Sec. 1118.1 Scope.

The rules in this part govern proceedings before employee boards.

Sec. 1118.2 Proceedings to be informal.

The proceedings in all matters governed by this part will be

informal. No transcript of these proceedings will be made. Subpoenas

will not be issued and, except when applications, petitions, or

statements are required to be attested, oaths will not be administered.

Sec. 1118.3 Appeals.

(a) Standing to appeal. Appeals of the decisions of the employee

boards subject to this part and replies to appeals may be filed by any

person.

(b) Number of copies. The original and 10 copies of each pleading

or paper permitted or required to be filed under this section should be

furnished for the use of the Board.

(c) Time for filing. Appeals in proceedings governed by this part

must be filed within 20 days after the date of service of the decision.

(d) Where filed. Appeals and replies to appeals of decisions issued

by employee boards must be filed with the Secretary, Surface

Transportation Board, 1925 K St., NW., Washington, DC 20423-0001.

(e) Decisions on appeal. An appeal from an employee board's initial

decision in a matter subject to this part will be reviewed by the

employee board, which may elect to modify its decision in light of new

facts or arguments presented on appeal. If the employee board elects

not to modify its prior decision, the appeal will be forwarded to the

entire Board for determination. If a modified decision is issued by the

employee board, a further appeal lies under this part.

PART 1130--INFORMAL COMPLAINTS

7. The authority citation for part 1130 is revised to read as

follows.

Authority: 49 U.S.C. 721, 13301(f), 14709.

8. In Sec. 1130.2, paragraph (e) is removed and reserved, and

paragraphs (a), (c), the first two sentences of (f), (g)(1), and (g)(2)

are revised to read as follows:

Sec. 1130.2 When damages sought.

(a) Actual filing required. Notification to the Board that an

informal complaint may or will be filed later seeking damages is not a

filing within the meaning of the statute.

* * * * *

(c) Statement of prior claim. A complaint filed under paragraph (b)

of this section containing a claim which has been the subject of a

previous informal or formal complaint must specifically refer to the

previous complaint.

* * * * *

(f) Notification to the parties; six months' rule. If an informal

complaint seeking damages (other than a contested tariff reconciliation

petition) cannot be disposed of informally or is denied or withdrawn by

complainant, the parties affected will be so notified in writing by the

Board. Contested tariff reconciliation petitions either will be granted

or denied by the entry of a decision. * * *

(g) * * *

(1) Petitions to waive collection or permit payment. Subject to

Board review and approval, motor common carriers (other than household

goods carriers) and shippers may resolve, by mutual consent, overcharge

and undercharge claims under the provisions of 49 U.S.C. 14709.

Petitions for appropriate authority may be filed by either the carrier,

shipper or consignee on the Board's tariff reconciliation docket by

submitting a letter of intent to depart from the filed rate. The

petitions will be deemed the equivalent of an informal complaint and

answer admitting the matters stated in the petition. Petitions shall be

sent to the Office of Compliance and Enforcement, Surface

Transportation Board, Washington, DC 20423. The petitions shall

contain, at a minimum, the following information:

(i) The name(s) and address(es) of the payer(s) of the freight

charges;

(ii) The name(s) of the carrier(s) involved in the traffic;

(iii) An estimate of the amount(s) involved;

(iv) The time period when the shipment(s) involved were delivered

or tendered for delivery;

(v) A general description of the point(s) of origin and destination

of the shipment(s);

(vi) A general description of the commodity(ies) transported;

(vii) A statement certifying that the carrier(s) and shipper(s)

participating in the shipment(s) or the payer(s) of the freight charges

concur(s) with the intent to depart from the filed rate; and

(viii) A brief explanation of the incorrect tariff provision(s) or

billing error(s) causing the request to depart from the filed rate.

(2) Public notice and protest. Tariff reconciliation petitions

(letters of intent) shall be served on all parties named in the

petition by the party that files the petition and will be made

available by the Board for public inspection in the Office of

Compliance and Enforcement Public File, Surface Transportation Board,

Washington, DC 20423. Any interested person may protest the granting of

a petition by filing a letter of objection with the Office of

Compliance and Enforcement within 30 days of Board receipt of the

petition. Letters of objection shall identify the tariff reconciliation

proceeding, shall clearly state the reasons for the objection, and

shall certify that a copy of the letter of objection has been served on

all parties named in the petition. The

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Board may initiate an investigation of the petition on its own motion.

* * * * *

9. Part 1132 is revised to read as follows:

PART 1132--PROTESTS REQUESTING SUSPENSION AND INVESTIGATION OF

COLLECTIVE RATEMAKING ACTIONS

Sec.

1132.1 Protests against collective ratemaking actions.

1132.2 Procedures in certain suspension matters.

Authority: 49 U.S.C. 721, 13301(f), and 13703.

Sec. 1132.1 Protests against collective ratemaking actions.

(a) Content. The protested collective ratemaking action sought to

be suspended, whether or not contained in a tariff filed with the

Board, should be identified by making reference to: The name of the

publishing carrier or collective ratemaking organization; the

identification of the tariff, if applicable, or the identification of

the collective ratemaking action publication if it is not contained in

a tariff filed with the Board; the specific items or particular

provisions protested; and the effective date of the tariff or other

collective ratemaking action publication. Reference should also be made

to the tariff or collective ratemaking action, and the specific

provisions proposed to be superseded. The protest should state the

grounds in support thereof, and indicate in what respect the protested

collective ratemaking action is considered to be unlawful. Such

protests will be considered as addressed to the discretion of the

Board. Should a protestant desire to proceed further against a

collective ratemaking action which is not suspended, or which has been

suspended and the suspension vacated, a separate later formal complaint

or petition should be filed.

(b) When filed. Protests against, and requests for suspension of,

collective ratemaking actions will not be considered unless made in

writing and filed with the Board at Washington, DC. If the protestant

desires action by the Board before the effective date of the collective

action, protests and requests for suspension shall reach the Board at

least 12 days (except as provided in paragraph (c) of this section)

before such effective date. If the protested collective ratemaking

action is already in effect, or if the protestant does not desire

action before its effective date, protests and requests for suspension

can be filed at any time.

(c) Motor carrier tariff bureau filings. When motor common carrier

tariff bureaus take collective actions subject to the special

procedures adopted in Ex Parte No. MC-82, New Procedures in Motor

Carrier Rev. Proc. 340 I.C.C. 1 (1971), and set forth at 49 CFR part

1139, protests must reach the Board at least 22 days before the

effective dates of those actions if protestants desire action by the

Board before such effective dates. All statements should be served by

express mail or an equivalent expedited delivery service upon any party

undertaking to bear the cost. Written request for this expedited

service must be made no less than 5 days before the statement is due to

be filed with the Board.

(d) Copies; service. In connection with proceedings involving

proposals subject to the special procedures in Ex Parte No. MC-82, New

Procedures in Motor Carrier Rev. Proc. 339 I.C.C. 324, and set forth at

49 CFR part 1139, an original and 10 copies of every protest or reply

filed under this section should be furnished for the use of the Board.

Except as provided for proposals subject to the special procedures in

Ex Parte No. MC-82, the original and 10 copies of each protest, or of

each reply filed under this section, must be filed with the Board, and

one copy simultaneously must be served upon the publishing carrier or

collective ratemaking organization, and upon other persons known by

protestant to be interested. These pleadings should be directed to the

attention of the Secretary, Surface Transportation Board.

(e) Reply to protest. A reply to a protest filed at least 12 days

before the effective date of proposed collective action provisions must

reach the Board not later than the fourth working day prior to the

scheduled effective date of the protested provisions unless otherwise

provided. Replies to protests against motor carrier rate bureau

proposals subject to Ex Parte No. MC-82 procedures, to be assured of

consideration, must reach the Board no later than 14 days before the

scheduled effective date of the protested provisions.

Sec. 1132.2 Procedures in certain suspension matters.

(a) A petition for reconsideration may be filed by any interested

person within 20 days after the date of service of a Board decision

which results in an order for:

(1) Investigation and suspension of collective ratemaking actions,

or

(2) Investigation (without suspension) of collective ratemaking

actions.

(b) Any interested person may file and serve a reply to any

petition for reconsideration permitted under paragraph (a) of this

section within 20 days after the filing of such petition with the

Board, but if the facts stated in any such petition disclose a need for

accelerated action, such action may be taken before expiration of the

time allowed for reply. In all other respects, such petitions and

replies thereto will be governed by the rules of general applicability

of the Rules of Practice.

[FR Doc. 97-25734 Filed 9-26-97; 8:45 am]

BILLING CODE 4915-00-P