[Federal Register Volume 67, Number 188 (Friday, September 27, 2002)]
[Notices]
[Pages 61186-61188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24334]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Ex Parte No. 590]


Exemption for Railroad Agent Designation Under 49 U.S.C. 723

AGENCY: Surface Transportation Board.

ACTION: Notice of Proposed Exemption.

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SUMMARY: The Surface Transportation Board (Board) is proposing an 
exemption from the statutory requirement that rail carriers designate 
agents in the District of Columbia on whom the Board may serve notices 
in proceedings. Because carriers have alternative methods of obtaining 
notice of Board actions, and because there is no apparent need for the 
Board to continue to serve agents with notice, the Board believes that 
designation of, and service on, agents in Board proceedings is no 
longer necessary.

DATES: Comments on this proposal are due October 28, 2002.

FOR FURTHER INFORMATION CONTACT: John Sado, (202) 565-1661. [Federal

[[Page 61187]]

Information Relay Service (FIRS) for the hearing impaired: 1-800-877-
8339.]

SUPPLEMENTARY INFORMATION: Under 49 U.S.C. 723(a), a carrier providing 
transportation subject to the Board's jurisdiction is required to 
designate an agent in the District of Columbia. The Board ``shall'' 
serve notices of proceedings and actions ``immediately on the agent or 
in another manner provided by law.'' 49 U.S.C. 723(c). In the absence 
of a designated agent, the Board can effect service by posting the 
notice in the Board's office. Service on a designated agent shall be 
made in the District of Columbia at the agent's office or usual place 
of residence. 49 U.S.C. 723(c). And in proceedings concerning the 
lawfulness of a rail carrier's rates, practices, or classifications, 
where there is no designated agent the statute provides that ``service 
of notice * * * on an attorney in fact for the carrier constitutes 
service of notice on the carrier.'' 49 U.S.C. 723(d).\1\
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    \1\ Under 49 U.S.C. 724, a carrier is also required to designate 
an agent ``on whom service of process in an action before a district 
court may be made.'' The requirements of section 724 will not be 
considered in this proceeding.
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Issuance of Board Decisions

    The Board currently has two categories for issuing its decisions--
regular release and late release. Regular release occurs at 10:30 a.m., 
and late release can occur later in the day, sometimes late in the 
afternoon. On some days, late releases occur several times during the 
day.
    For regular release, at 10:30 a.m. the official copies of all Board 
decisions or notices are placed in the Board's seventh floor Docket 
File Reading Room (Room 755), where they can be read or photocopied for 
a fee.\2\ Also, in instances where a rail carrier has a designated 
agent, a messenger is contacted at about 10:30 a.m. to pick up a copy 
of the decision or notice to deliver to a designated agent. The 
messenger normally arrives within a half hour or hour to get the 
decision. The railroad is billed for the cost of the messenger. If the 
railroad does not have a designated agent, a copy of the decision is 
placed on the Board's first floor bulletin board, located in Suite 100, 
with a notice from the Secretary.\3\ A copy of the decision is also 
mailed at about 4:30 p.m. by first class mail to all parties of record 
in the proceeding. Finally, the decision is put on the Board's Internet 
Web site (http://www.stb.dot.gov), usually between 10:30 a.m. and 11:30 
a.m.\4\ This placement is done automatically by the Board's computer 
``agent,'' which, starting at 10:30 a.m. and until the close of 
business each day, examines the file server about every half hour to 
select (or ``launch'') issued decisions to be placed on the Board's 
Internet Web site. Board personnel check to ensure that decisions are 
timely placed on the Web site.
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    \2\ Independent of our practice of placing all notices and 
decisions in Room 755, the Board maintains a ``reading room'' in 
conformity with the Freedom of Information Act (FOIA), 5 U.S.C. 552, 
which contains final decisions in adjudications; statements of 
policy and interpretation not published in the Federal Register; 
administrative staff manuals; and records released pursuant to a 
request under FOIA that have become or are likely to become the 
subject of a subsequent request. See 49 CFR 1001.1(b). See also 
Removal, Revision, and Redesignation of Miscellaneous Regulations, 
STB Ex Parte No. 572 (Sub-No. 1) (STB served Aug. 31, 1999) 
(Revision I), aff'd, Removal, Revision, and Redesignation of 
Miscellaneous Regulations, STB Ex Parte No. 572 (Sub-No. 1) (STB 
served June 22, 2000) (Revision II).
    \3\ This notice states in relevant part: Service of the attached 
document is hereby made on the following named-carrier(s) with no 
designated agent in the Washington, DC area by posting same at the 
Offices of the Surface Transportation Board.
    \4\ The Board maintains an Electronic Reading Room at this Web 
site, pursuant to the Electronic Freedom of Information Act of 1996, 
Pub. L. No. 104-231, 110 Stat. 3049 (1996) (EFOIA), containing 
documents found in the reading room, including final decisions 
issued on or after November 1, 1996. See 49 CFR 1001.1(d). The 
Board, however, goes beyond the requirements of FOIA and EFOIA and 
makes available in both the traditional and electronic reading rooms 
not only all decisions and notices in adjudications but also 
rulemakings, which are not required to be made available in this 
way. See Revision II at 2 n.6.
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    For late releases, as in regular releases, the official copy of the 
Board decision or notice is placed in the Board's Docket File Reading 
Room. Depending on how late in the day the late release occurs, the 
decision may not be mailed out until the next day, and a messenger may 
not be asked to pick up the decision on that day but instead may be 
called at 10:30 a.m. the next day when regular release occurs. Copies 
of all late releases are also placed on the Board's first floor 
bulletin board, whether or not the carrier has a designated agent.\5\ 
As already noted, the Board's computer ``agent'' automatically begins 
at 10:30 a.m. each day to scan the file server on a half hourly basis 
to launch decisions onto the web. But in some cases, a late release may 
not be launched onto the Board's Web site until 10:30 a.m. the next 
day.\6\
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    \5\ We note that when the offices of the Board and the 
Interstate Commerce Commission (ICC) were located at 12th Street and 
Constitution Avenue, NW, Washington, DC, all decisions, whether 
regular or late releases, were placed on the bulletin board outside 
the second floor offices of the Office of the Secretary. After 
moving to 1925 K Street, NW, Washington, DC, the Board, for 
convenience to the public, in addition to placing all decisions in 
the seventh floor Docket File Reading Room, has placed all late 
releases as well as decisions where there was no designated agent on 
the Board's bulletin board.
    \6\ The Board also issues an index of its decisions called the 
``Surface Transportation Board Daily Releases'' (Daily Release), 
which is placed both in the seventh floor Docket File Reading Room 
and on the Board's first floor bulletin board. Each Daily Release 
index sheet lists all of the decisional documents issued by the 
Board as of 10:30 a.m. on that day. Late-released documents are 
listed in the Daily Release for the next business day. In Removal, 
Revision, and Redesignation of Miscellaneous Regulations, STB Ex 
Parte No. 572 (Sub-No. 1) (STB served Aug. 31, 1999) at 3-4 
(footnote omitted), we noted that besides listing the documents 
issued that day: [t]hese 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-related 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.
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Discussion and Conclusions

    Because the Board is currently providing at least four methods of 
providing notice, including, with computer technology, a method usually 
faster than messenger delivery to agents, we believe that it is no 
longer necessary for the Board to serve copies of decisions or notices 
affecting a particular railroad on that railroad's designated agent. We 
therefore believe that an exemption is warranted from the requirement 
that a rail carrier designate an agent on whom the Board serves 
decisions. Such an exemption would end a duplicative method of giving 
notice, with resulting cost reduction and efficiency benefits to the 
rail carriers and the Board. We are seeking public comments on the 
proposed action.
    We believe that such an exemption is consistent with the statutory 
scheme. While mandating the designation of agents, section 723 does not 
make service on agents the exclusive method of notice. Rather, under 
section 723(c), a Board action ``shall be served immediately on the 
agent or in another manner provided by law.'' As noted, where no agent 
is designated, ``service may be made by posting the notice in the 
office of the Board.'' Id.\7\
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    \7\ Service on the designated agent appears to be an option and 
not a requirement. As indicated, section 723(c) states that a Board 
action ``shall be served on the agent or in another manner provided 
by law,'' and section 723(a) indicates that a carrier is required to 
designate an agent ``on whom service * * * may be made.'' (Emphasis 
supplied.) While service is required, serving an agent appears to be 
only one of the permissible ways of effecting service.
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    Accordingly, we believe that making the decision or notice 
available through other means is consistent with the

[[Page 61188]]

provisions of section 723(c) that service may be made ``in another 
manner provided by law.'' Rail carriers can also readily obtain 
decisions on our Internet Web site, in many cases before the designated 
agent would receive them.\8\ As noted, because all Board decisions and 
notices, not just adjudications, are available in the Docket File 
Reading Room and on our Web site, the Board goes beyond the 
requirements of FOIA and EFOIA. Thus, with the statute allowing 
alternatives to service on designated agents, and with the Board 
providing alternatives, we do not see a need for designating an agent 
for the purposes of section 723. Carriers will still be required to 
designate agents under section 724 for service of process in an action 
before a district court.
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    \8\ Section 723(c) provides that, when service is made on a 
designated agent, it shall be done ``immediately.'' In many cases, 
the decision or notice is available on our Web site before the agent 
receives it.
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    Even apart from these statutory considerations, an exemption would 
be justified from the perspective of promoting good government. Rail 
carriers with designated agents receive notice of decisions in 
proceedings in which they are involved in four ways: through their 
agent, on the Board's Web site, by reading and copying the official 
copy of the decision in the Board's Docket File Reading Room, and by 
first class mail.\9\ We believe that retaining the requirement of 
designated service agents in addition to all of these other methods of 
notice is unnecessary and duplicative, for both railroads and the 
Board, particularly given that service on designated agents no longer 
appears to be the fastest or most convenient method of notice.
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    \9\ For late releases, there is a fifth method of obtaining 
notice: reading items posted on the Board's first floor bulletin 
board.
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    In this regard, the ICC exempted individual rail carriers from the 
requirements of former 49 U.S.C. 10329 (the predecessor of section 
723), noting the cost and the ``needlessly cumbersome procedure'' 
involved in using a designated agent. See Altra Railroad Company--
Exemption from 49 U.S.C. 10329(a)(1), 10746, and 11301, Finance Docket 
No. 30524 (ICC served Aug. 17, 1984) at 1. See also Alabama Industrial 
Railroad, Inc.--Exemption from 49 U.S.C. 10329(a)(1), 10746, and 11301, 
Finance Docket No. 30523 (ICC served Oct. 1, 1984); Cheney Railroad 
Company, Inc.--Exemption from 10329(a)(1), 10746, and 11301, Finance 
Docket No. 30525 (ICC served Oct. 1, 1984). The ICC indicated in those 
proceedings (issued before the availability of the Board's Web site) 
that service by first class mail upon an attorney was more efficient 
than serving an agent who would then notify the carrier, which then 
would contact its attorney.
    Likewise, with decisions or notices made available via the Docket 
File Reading Room, first class mail, and on the Web site (and, for late 
releases, also via the Board's first floor bulletin board), serving a 
designated agent appears to be unnecessary. Granting an exemption 
should provide cost savings to the rail carriers and make the notice 
process more efficient.
    Under 49 U.S.C. 10502, we are directed to exempt a transaction from 
regulation when we find that: (1) Regulation is not necessary to carry 
out the rail transportation policy of 49 U.S.C. 10101; and (2) either 
(a) the transaction or service is of limited scope, or (b) regulation 
is not needed to protect shippers from the abuse of market power.
    Requiring rail carriers to designate agents and the Board to serve 
notices on them pursuant to 49 U.S.C. 723 would not appear to be 
necessary to carry out the rail transportation policy. By minimizing 
the administrative expense in obtaining decisions and notices, an 
exemption would minimize the need for Federal regulatory control over 
the rail transportation system [49 U.S.C. 10101(2)]. By eliminating an 
unnecessary expense for railroads, an exemption would also foster sound 
economic conditions in transportation [49 U.S.C. 10101(5)], and 
encourage efficient management of railroads [49 U.S.C. 10101(9)]. Other 
aspects of the rail transportation policy would not be adversely 
affected.
    Continued designation of, and service upon, agents under section 
723 is not needed to protect shippers from the abuse of market power. 
This process has no direct effect on shippers, and to the extent an 
exemption reduces administrative costs of providing rail service, it 
should benefit shippers. Given our finding regarding the lack of effect 
of the exemption on market power, we need not determine whether the 
proposed exemption is limited in scope.
    Under 49 U.S.C. 10502(g), we may not use our exemption authority to 
relieve a rail carrier of its statutory obligation to protect the 
interests of its employees. Labor protection, however, is not 
implicated under section 723.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    Decided: September 19, 2002.

    By the Board, Chairman Morgan and Vice Chairman Burkes.
Vernon A. Williams,
Secretary.
[FR Doc. 02-24334 Filed 9-26-02; 8:45 am]
BILLING CODE 4915-00-P