[Federal Register Volume 64, Number 165 (Thursday, August 26, 1999)]
[Rules and Regulations]
[Pages 46594-46596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22125]


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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.

ACTION: Final rule.

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[[Page 46595]]

SUMMARY: The Surface Transportation Board (Board) is modifying the 
regulations concerning exemption and revocation proceedings. This rule 
clarifies 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.

EFFECTIVE DATE: September 25, 1999.

FOR FURTHER INFORMATION CONTACT: John Sado, (202) 565-1642. [TDD for 
the hearing impaired: (202) 565-1695.]

SUPPLEMENTARY INFORMATION: In a notice of proposed rulemaking served 
and published in the Federal Register on June 25, 1999 (64 FR 34185) 
(NPR), the Board proposed revisions to our exemption regulations at 49 
CFR 1121.4(c) to clarify when we would seek additional information or 
public comment in response to a petition for a class exemption or a 
petition for an individual exemption. In response to changes resulting 
from the ICC Termination Act of 1995, Pub. L. 104-88, 109 Stat. 803 
(1995) (ICCTA), the Board had 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 a result, the regulations at 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.

    In our NPR, we noted that, 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), slip 
op. at 7, we indicated that the rule could be interpreted as requiring 
the Board to seek comments 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. While stating that the filing of additional 
comments would be sought for class exemption requests, we indicated 
that we believed we had the discretion to determine whether additional 
evidence was needed in individual exemption proceedings. Id.
    Consequently, we issued our NPR proposing to modify Sec. 1121.4(c) 
to make clear how we would treat petitions for class exemptions and 
individual exemptions. When a class exemption is sought, we proposed to 
require that additional information or public comments be filed before 
granting the new class exemption. We also proposed to modify the rule 
to indicate that, although we retain the discretion to do so, we are 
not required to seek public comment when we deny a class exemption 
petition. Finally, we proposed to modify the rule to indicate that, 
where the impact of an individual exemption could not be determined 
from the petition, or if significant adverse impacts might occur if the 
individual exemption were granted, we had the discretion to seek 
additional information or comment.1
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    \1\ Our NPR proposed that 49 CFR 1121.4 read:
    (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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    The American Short Line and Regional Railroad Association (ASLRRA) 
filed the only comment in response to the NPR. No comments were filed 
opposing the substance of the rule. ASLRRA seeks clarification 
concerning proposed 49 CFR 1121.4(c)(2). Because 49 CFR 1121.1 
indicates that the procedures under part 1121 ``also apply to notices 
of exemption,'' 2 ASLRRA expresses its concern that the 
proposed rule could be read to apply to notices of exemption filed 
under an already-existing class exemption. This, ASLRRA contends, could 
be read as requiring the publication of the notice in the Federal 
Register requesting comments, an ``unintended result that would 
undercut the effectiveness of these very important notice filing 
provisions.''
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    \2\  Notices of exemption are filed under the Board's class 
exemption procedures that exempt a transaction as a class from the 
statutory prior approval requirements. These procedures are 
generally a simpler, more expedited method of proceeding than filing 
a petition for exemption.
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    We will adopt the substance of the proposed rule, but clarify it to 
indicate that the notice and comment requirement pertains to petitions 
for class exemptions, and not to notices of exemption filed pursuant to 
an existing class exemption. Specifically, we will adopt a revised 
version of Sec. 1121.4(c)(2), replacing the language proposed in our 
NPR (``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.'') with the following: ``If a petition 
for a new class exemption is filed, the Board will publish a notice in 
the Federal Register requesting public comments before granting the 
class exemption. This requirement does not pertain to individual 
notices of exemption filed under existing class exemptions. The Board 
may deny a request for a class exemption without seeking public 
comments.'' This is in conformance with our NPR at 3, which stated that 
we were ``modify[ing] Sec. 1121.4(c) to make clear the treatment that 
will be accorded petitions for class exemptions and individual 
exemptions.''
    In our NPR, we indicated that the proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
No one addressed this issue, and we certify that the final rule will 
not have a significant economic impact on a substantial number of small 
entities.
    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: August 19, 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 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

[[Page 46596]]

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 petition for a new class exemption is filed, the Board 
will publish a notice in the Federal Register requesting public 
comments before granting the class exemption. This requirement does not 
pertain to individual notices of exemption filed under existing class 
exemptions. The Board may deny a request for a class exemption without 
seeking public comments.
* * * * *
[FR Doc. 99-22125 Filed 8-25-99; 8:45 am]
BILLING CODE 4915-00-P