[Federal Register Volume 68, Number 100 (Friday, May 23, 2003)]
[Notices]
[Pages 28320-28322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12861]


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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, DOT.

ACTION: Policy statement on procedure; withdrawal of proposed 
exemption.

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SUMMARY: The Surface Transportation Board (Board) is withdrawing a 
proposal to exempt rail carriers from the requirement that they 
designate agents in the District of Columbia on whom the Board may 
serve decisions and notices in proceedings. The Board is announcing 
instead a policy change concerning administrative procedure. The Board 
will no longer serve decisions and notices on designated agents but 
will continue to make Board decisions and notices available through 
alternative methods consistent with the statute.

DATES: This change of policy concerning procedure and the withdrawal of 
the proposed exemption will be effective June 22, 2003.

FOR FURTHER INFORMATION CONTACT: John Sado, (202) 565-1661. (Federal 
Information Relay Service (FIRS) for the hearing impaired: 1-800-877-
8339.)

SUPPLEMENTARY INFORMATION: In a notice of proposed exemption served

[[Page 28321]]

September 26, 2002, and published in the Federal Register on September 
27, 2002 (67 FR 61186) (September notice), we proposed to exempt rail 
carriers providing transportation subject to the Board's jurisdiction 
from the requirement of 49 U.S.C. 723(a), to designate an agent in the 
District of Columbia on whom service of notices and actions of the 
Board may be made.\1\ In proposing the exemption, we indicated that 
designation of, and service on, agents was unnecessary. Such an 
exemption, we submitted, ``would end a duplicative method of giving 
notice with resulting cost reduction and efficiency benefits to rail 
carriers and the Board.'' September notice at 4.
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    \1\ The statute also provides that 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). (Emphasis 
supplied.) In the absence of a designated agent, the Board can 
effect service by posting the notice in the Board's office. 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).
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    The September notice delineated the various methods available for 
rail carriers to obtain notice of Board actions. We indicated that the 
Board currently issues the majority of its decisions and/or notices as 
``regular releases'' at 10:30 a.m. and the others, on occasion, as 
``late releases'' at other times later in 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\ Where a rail 
carrier has a designated agent, a messenger is contacted at about 10:30 
a.m. to retrieve a copy of the decision or notice to deliver to a 
designated agent, and the railroad is billed for the messenger's cost. 
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. 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.\3\
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    \2\ Our practice of placing all notices and decisions in our 
Docket File Reading Room goes beyond the requirements of maintaining 
a ``reading room'' in conformity with the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, which must contain 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). Our Docket File Reading Room makes these reading room 
documents available--including all decisions and notices in 
adjudications--and also rulemakings, which are not required to be 
made available in this way.
    \3\ The Board maintains an Electronic Reading Room at this 
website, 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). As in the 
case of FOIA, supra, the Board, however, goes beyond the 
requirements of EFOIA and makes documents available in rulemakings 
as well as adjudications.
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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. 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. Depending on how late in the day the late release occurs, the 
decision or notice is mailed, a messenger called, and the decision or 
notice is placed on the Board's Internet Web site either on the same 
day or the next.\4\
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    \4\ 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 release documents are 
listed in the Daily Release for the next business day.
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    In the September notice, we indicated our belief that not serving 
designated agents was consistent with the statutory scheme. While 
mandating the designation of agents and the service of decisions and 
notices, section 723 does not make service on agents the exclusive 
method of service:


    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.

September notice at 4 n.7.

    In response to our proposal, we received only one comment, filed by 
John D. Fitzgerald, for and on behalf of the United Transportation 
Union-General Committee of Adjustment. (UTU-GCA). UTU-GCA argues that 
the designation of an agent is not exclusively concerned with the 
service of a decision or notice on the agent. It claims that many new 
carriers have been formed in the recent past, and designating agents 
would facilitate obtaining information about these smaller entities. 
Moreover, UTU-GCA submits that because, under 49 CFR 1111.3, private 
parties, and not the Board, serve complaints, eliminating the 
designated agent would make it more difficult to identify the 
appropriate individual to serve.
    UTU-GCA's concern is focused on the issue of the designation of, 
and not service on, agents. It argues that concern about the cost of 
effecting service is misplaced, because there are alternative means of 
service available under the statute. UTU-GCA also submits that 
exempting the designation of agents would bring no cost savings 
because, under 49 U.S.C. 724, rail carriers still have to designate 
agents ``on whom service of process in an action before a district 
court may be made.''
    UTU-GCA also asserts that the Board does not have the authority 
under 49 U.S.C. 10502 to grant an exemption from the requirements of 
section 723, which is in Subtitle I of Title 49, because, it contends, 
section 10502 applies only to Subtitle IV, Part A of Title 49. In any 
event, UTU-GCA claims that the exemption criteria of section 10502 are 
not met because there would be no savings as a result of the proposal, 
regulation would become more onerous because of the difficulties in 
serving carriers, and the proposal would adversely affect shippers and 
railroad employees in having to locate carriers.

Discussion and Conclusions

    We will withdraw the proposed exemption in light of the UTU-GCA's 
comments, but we will proceed with adoption of alternative methods of 
providing for service and notice instead of effecting service on 
designated agents. Under the statutory scheme of section 723, while 
designating an agent and serving a notice or decision are mandatory 
(section 723(a)),\5\ serving the notice or decision on a designated 
agent is not (section 723(c)). A decision or notice must be immediately 
served on an agent or in another manner provided by law. Id. As UTU-GCA 
notes, `` `designation' and `service' are not inextricably 
intertwined.'' UTU-GCA petition at 5. On the record there is opposition 
to exempting rail carriers from the section 723(a) requirement of 
designating agents, but no one has objected to our proposal to 
discontinue the practice of serving designated agents under section 
723(c). As noted, UTU-GCA was the only party to file comments, and, 
while it opposed

[[Page 28322]]

exempting the designation of agents, its comments appear to support 
using alternative methods of service under section 723: ``[T]here [are] 
no major expenses for the Board in effecting service under Sec.  723 
for, as the [September notice] acknowledges, a Board action ``shall be 
served immediately on the agent or in another manner provided by law.'' 
UTU-GCA petition at 5 (emphasis in original) (citation omitted).\6\
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    \5\ In reviewing our list of designated agents, it appears that 
some of the information is out of date and that a number of carriers 
have not designated agents. We request that the carriers provide the 
necessary information.
    \6\ We agree with UTU-GCA that there is no ``inextricable'' 
linkage between designation and service, because, while designation 
is mandatory, the statute does not require service on agents if an 
alternative service method is effected. Our September notice 
described why we believed that that result would have been 
consistent with the statute.
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    Because there may be potential informational benefits from the 
designation of agents, particularly in the light of the increase in the 
number of small carriers, we will not exempt rail carriers from the 
requirement that they designate agents.\7\ While our September notice 
proposed that carriers be exempted from designating agents, our notice 
was also directed to the serving of the decisions on agents: We 
indicated that not serving agents would result in cost reductions and 
efficiency benefits for rail carriers and the Board, that service on 
agents was not a requirement because alternative methods of service 
were permitted; and the Board was in fact making decisions and notices 
available through first class mail, our Docket File Reading Room, our 
Internet Web site, and, for late releases and where no agent is 
designated, our first floor bulletin board.
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    \7\ Because we believe that retention of designated agents would 
serve a useful purpose, we will withdraw the proposed exemption 
without deciding the issue of whether a provision of Subtitle I of 
Title 49 can be exempted under 49 U.S.C. 10502.
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    We find that the grounds for not serving decisions and notices on 
agents are still valid. Moreover, no one has objected to not serving 
agents, and the only filed comment appears to support this. 
Accordingly, we are announcing a change in policy and will no longer 
serve decisions and notices on designated agents but will rely on the 
alternative methods of service and notice. We believe that making 
decisions and notices available in this manner is consistent with the 
requirement of section 723(c) that, as an alternative to service on 
designated agents, service may be made ``in another manner provided by 
law.''
    The statute does not explicitly define what ``in another manner 
provided by law'' means. It does, however, list alternative methods of 
service where no agent is designated: Posting a notice in the Board 
office (section 723(c)) and service on a carrier's attorney in cases 
involving rate lawfulness (section 723(d)). We note that, consistent 
with these, the Board posts notices for all late releases, as well as 
cases where no agent is designated, and all decisions are mailed by 
first class mail to all parties of record. Moreover, Rule 5(b)(2)(B) of 
the Federal Rules of Civil Procedure (FRCP) provides that service of 
court orders may be made by ``[m]ailing a copy to the last known 
address of the person served.'' \8\ We also make official copies of all 
Board decisions and notices available in the Docket File Reading Room, 
which goes beyond the requirements of FOIA (5 U.S.C. 552). We also make 
these decisions and notices available on our Internet Web site, which 
also exceeds the requirements of EFOIA (5 U.S.C. 552(a)(2)(E)). As 
noted in our September notice, the availability of decisions and 
notices on the Internet usually provides faster notice than messenger 
delivery to designated agents.\9\ We believe that these alternative 
methods of service and notice are consistent with the requirement under 
section 723(c) that, if service is not immediately made on a designated 
agent, it be made in another lawful manner.
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    \8\ The FRCP were issued in original form through joint action 
of Congress and the United States Supreme Court. Sears, Roebuck & 
Co. v. Mackey, 351 U.S. 427, 433 (1956). ``[T]he Federal Rules of 
Civil Procedure, like any other statute, should be given their plain 
meaning.'' Berckeley Inv. Group, LTD. v. Colkitt, 259 F.3d 135, 143 
n.7 (3rd Cir. 2001) (citations omitted).
    \9\ 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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    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    Decided: May 15, 2003.

    By the Board, Chairman Nober and Commissioner Morgan.
Vernon A. Williams,
Secretary.
[FR Doc. 03-12861 Filed 5-22-03; 8:45 am]
BILLING CODE 4915-00-P