[Federal Register Volume 64, Number 122 (Friday, June 25, 1999)]
[Proposed Rules]
[Pages 34185-34186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16130]



[[Page 34185]]

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DEPARTMENT OF TRANSPORTATION

49 CFR Part 1121

[STB Ex Parte No. 527 (Sub-No. 2)]


Expedited Procedures for Processing Rail Rate Reasonableness, 
Exemption and Revocation Proceedings

AGENCY: Surface Transportation Board, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Surface Transportation Board (Board) is proposing to 
modify the regulations concerning exemption and revocation proceedings. 
The proposal would clarify when additional information or public 
comment will be sought in response to a petition for a class exemption 
or a petition for an individual exemption.

DATES: Comments are due July 26, 1999.

ADDRESSES: Send comments referring to STB Ex Parte No. 527 (Sub-No. 2) 
to: Surface Transportation Board, Office of the Secretary, Case Control 
Unit, 1925 K Street, NW., Washington, DC 20423-0001.

FOR FURTHER INFORMATION CONTACT: Thomas J. Stilling, (202) 565-1567. 
(TDD for the hearing impaired: (202) 565-1695.)

SUPPLEMENTARY INFORMATION: The Board's predecessor, the Interstate 
Commerce Commission (ICC), issued rules concerning exemption and 
revocation proceedings in Rail Exemption Procedures, 8 I.C.C.2d 114 
(1991). These rules generally codified the procedures for handling rail 
exemption petitions issued in Modification of Procedure for Handling 
Exemptions Filed under 49 U.S.C. 10505, Ex Parte No. 400 (ICC served 
Dec. 29, 1980, and Jan. 21, 1981).
    In response to changes resulting from the ICC Termination Act of 
1995, Pub. L. 104-88, 109 Stat. 803 (1995) (ICCTA), the Board modified 
its rail exemption procedures in Expedited Procedures for Processing 
Rail Rate Reasonableness, Exemption and Revocation Proceedings, Ex 
Parte No. 527 (STB served Oct. 1, 1996) (Expedited Procedures), 
modified by decision served Nov. 15, 1996, aff'd sub nom. United 
Transp. Union-Ill. Legis. Bd. v. Surface Transp. Bd., 132 F.3d 71 (D.C. 
Cir. 1998). As relevant here, the current regulations (49 CFR 
1121.4(c))] state:

    If the impact of the proposed exemption cannot be ascertained 
from the information contained in the petition or accompanying 
submissions, or significant adverse impacts might occur if the 
proposed exemption were granted, or a class exemption is sought, the 
Board will:
    (1) Direct that additional information be filed; or
    (2) Publish a notice in the Federal Register requesting public 
comments.

    Other than updating the language to refer to the Board rather than 
the ICC, this rule is identical to the former rule at 49 CFR 1121.4(d) 
except that it specifically states that the Board will seek additional 
information or public comments when a class exemption is sought, and it 
does not contain the phrase ``in its discretion'' but rather states 
that the agency ``will,'' rather than ``may,'' seek additional 
information or public comment.1
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    \1\ Former 49 CFR 1121.4(d) read:
    If the impact of the proposed exemption cannot be ascertained 
from the information contained in the petition or accompanying 
submissions, or significant adverse impacts might occur if the 
proposed exemption were granted, the Commission, in its discretion, 
may:
    (1) Direct that additional information be filed; or
    (2) Publish a notice in the Federal Register requesting public 
comments.
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    In our decision in San Joaquin Valley Railroad Company--Abandonment 
Exemption--In Kings and Fresno Counties, CA, STB Docket No. AB-398 
(Sub-No. 4X) (STB served Mar. 5, 1999) (San Joaquin), slip op. at 7 
(emphasis supplied), we noted that ``(s)ection 1121.4(c)(1) * * * can 
be interpreted as mandating that the Board seek comments in situations 
where a class exemption is sought, and whenever the impact of a 
proposed individual exemption cannot be determined or if there would be 
significant adverse impacts if an exemption were granted.'' But we 
stated that, while the filing of additional comments would be sought 
for class exemption requests, we have the discretion to determine 
whether additional evidence would be necessary in individual exemption 
proceedings:

    Our discussion of this matter in Expedited Procedures at 14 and 
n.23 does not state that we wished to cede our discretion to seek 
comments in individual exemption requests, and we could not have 
intended such a result in modifying Sec. 1121.4(c)(1). While the 
rule and the language might be literally read to require 
solicitation of comments, it cannot be logically interpreted to do 
so. To follow such an interpretation, the Board could never deny a 
petition if it believed that significant adverse impacts would 
result from the grant of an individual exemption. Instead, we would 
be required to continually seek additional information where a 
petitioner had failed to show that the applicable statutory 
requirements had been met, unless, at some point, the petitioner 
were to actually make the necessary showing. Id.

    We indicated in San Joaquin that we would clarify the 
Sec. 1121.4(c)(1) issue in a separate proceeding. Id.

    Accordingly, we propose to modify Sec. 1121.4(c) to make clear the 
treatment that will be accorded petitions for class exemptions and 
individual exemptions. Class exemptions are codified in the Code of 
Federal Regulations and are rules of general applicability and, 
accordingly, public comment is necessary before such an exemption is 
granted. Thus, when a class exemption is sought, we will require that 
additional information or public comments be filed before granting the 
new class exemption. This is consistent with our statement in Expedited 
Procedures at 14 (footnote omitted) that we would ``provide for public 
comment in all class exemption requests.'' We also propose to modify 
the rule to state that seeking public comment is not required to deny 
the petition. Petitioners have an initial burden of showing that a 
class exemption proceeding is warranted, and if they fail to meet this 
burden, it serves no purpose to require us to seek additional evidence 
(although we retain the discretion to do so.)
    We are also proposing to modify the rule to make clear that where 
the impact of an individual exemption cannot be ascertained from the 
petition or if significant adverse impacts might occur if the 
individual exemption were granted, we have the discretion to seek 
additional information or comment. In light of our discussion in San 
Joaquin (indicating the possibility of our repeatedly seeking 
additional evidence), this revision would rationalize the rule.
    In most situations involving individual exemptions, the record will 
be sufficient to enable us to determine whether to grant or deny the 
petition. In cases where the determination to grant or deny a petition 
is not clear-cut, the modification we are proposing would allow us, in 
our discretion, to seek further information. The proposed rule comports 
with traditional ICC and Board practice.
    Because these proposed modifications are simply clarifications of 
the rule and do not entail any substantive changes to Board procedures, 
we believe that we could adopt the modifications without notice and 
comment. 2 Nevertheless, we will allow interested persons to 
comment on our proposal.
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    \2\  Under the Administrative Procedure Act, ``interpretative 
rules, general statements of policy and rules of agency 
organization, procedure, or practice'' are exempted from requirement 
of notice and comment. 5 U.S.C. 553(b)(A).
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    The Regulatory Flexibility Act does not apply to this action, 
because, as noted above, the Board is not required to publish a notice 
of proposed rulemaking. See 5 U.S.C. 603.

[[Page 34186]]

Nevertheless, we certify that the proposed rule will not have a 
significant economic impact on a substantial number of small entities, 
because it constitutes no substantive change to Board procedures.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

List of Subjects in 49 CFR Part 1121

    Administrative practice and procedure, Rail exemption procedures, 
Railroads.

    Decided: June 15, 1999
    By the Board, Chairman Morgan, Vice Chairman Clyburn, and 
Commissioner Burkes.
Vernon A. Williams,
Secretary.

    For the reasons set forth in the preamble, title 49, chapter X, 
part 1121 of the Code of Federal Regulations is amended to read as 
follows:

PART 1121--RAIL EXEMPTION PROCEDURES

    1. The authority citation for part 1121 is revised to read as 
follows:
    Authority: 49 U.S.C. 10502 and 10704.

    2. In Sec. 1121.4, paragraph (c) is proposed to be revised to read 
as follows:


Sec. 1121.4  Procedures.

* * * * *
    (c)(1) If the impact of the proposed individual exemption cannot be 
ascertained from the information contained in the petition or 
accompanying submissions, or significant adverse impacts might occur if 
the proposed exemption were granted, the Board may, in its discretion:
    (i) Direct that additional information be filed; or
    (ii) Publish a notice in the Federal Register requesting public 
comments.
     (2) If a class exemption is sought, the Board will publish a 
notice in the Federal Register requesting public comments before 
granting the class exemption. The Board may deny a request for a class 
exemption without seeking public comments.
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[FR Doc. 99-16130 Filed 6-24-99; 8:45 am]
BILLING CODE 4915-00-P