[Federal Register: May 23, 2003 (Volume 68, Number 100)]
[Notices]
[Page 28320-28322]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my03-155]
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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