Removal, Revision, and Redesignation of Miscellaneous Regulations

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.

-----------------------------------------------------------------------

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\

---------------------------------------------------------------------------

\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.

---------------------------------------------------------------------------

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\

---------------------------------------------------------------------------

\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).

---------------------------------------------------------------------------

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.

---------------------------------------------------------------------------

\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.

---------------------------------------------------------------------------

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.

---------------------------------------------------------------------------

\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.

---------------------------------------------------------------------------

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