[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. <SUP>1</SUP>
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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.<SUP>2</SUP> 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,<SUP>3</SUP> 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.'' <SUP>4</SUP> 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