[Federal Register Volume 62, Number 188 (Monday, September 29, 1997)]
[Rules and Regulations]
[Pages 50882-50885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25734]


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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.<SUP>1</SUP> Except for the Accounting 
Board,<SUP>2</SUP> 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.<SUP>3</SUP> The entire Board will consider investigation and 
suspension of collectively set motor carrier rates under 49 U.S.C. 
13703(a)(5),<SUP>4</SUP> 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.<SUP>5</SUP>
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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.<SUP>6</SUP> 
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.<SUP>7</SUP>
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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

[[Page 50884]]

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

[[Page 50885]]

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