Payment, Filing, and Service Procedures

AGENCY:

Surface Transportation Board.

ACTION:

Final rule.

SUMMARY:

The Surface Transportation Board (Board or STB) adopts modifications to its rules pertaining to certain payment, filing, and service procedures. The adopted rule also updates and clarifies fees for copying, printing, and related services and removes outdated language from the Board's regulations.

DATES:

This rule is effective on May 10, 2019.

ADDRESSES:

Requests for information or questions regarding this final rule should reference Docket No. EP 747 and be submitted via the Board's e-filing format or in writing addressed to: Chief, Section of Administration, Office of Proceedings, Surface Transportation Board, 395 E Street SW, Washington, DC 20423-0001. Any person using e-filing should attach a document and otherwise comply with the instructions found on the Board's website at www.stb.gov at the E-Filing link.

FOR FURTHER INFORMATION CONTACT:

Sarah Fancher, (202) 245-0355. Assistance for the hearing impaired is available through Federal Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

In April 2017, the Board established its Regulatory Reform Task Force (RRTF) to comply with the spirit of Executive Order 13777. The RRTF's mission is to identify Board rules and practices that are burdensome, unnecessary, or outdated and to recommend how they should be addressed. See Regulatory Reform Task Force, EP 738 (STB served June 20, 2017). In a status report issued in May 2017, the RRTF identified the Board's payment and filing procedures as a potential area for reform and, following stakeholder input, recommended in its November 2017 status report that the Board update procedural and filing rules that are in need of modernization. The Board issued a notice of proposed rulemaking to revise and update its regulations relating to methods of payment, filing procedures, electronic service of Board decisions, and fees for copying, printing, and related services. Payment, Filing, & Serv. Procedures (NPRM), EP 747 (STB served Aug. 24, 2018) (83 FR 42852). The Board received comments on the NPRM from the National Association of Reversionary Property Owners (NARPO), Gordon MacDougall, and the Western Coal Traffic League (WCTL).

After considering the comments and reviewing the proposed procedures, the Board is adopting a final rule with modifications to the electronic service (e-service) proposal. The final rule also removes references to “computer diskettes.” The text of the final rule is below.

The proposed rule. The NPRM outlined proposals intended to promote increased use of electronic filing and payment systems, which would result in cost savings to both the Board and the public. These proposals would also increase the accessibility of information relating to proceedings and functions of the Board.

Specifically, the NPRM proposed to revise Board filing fee payment options by adding an electronic payment option. NPRM, EP 747, slip op. at 2-4. The NPRM explained that the Board would implement the electronic payment option through Pay.gov, a website operated by the U.S. Department of the Treasury that allows payment of government fees through bank accounts, credit cards, debit cards with a MasterCard or Visa logo, and digital wallet. Given the availability and efficiency of an electronic payment option, the NPRM proposed to eliminate billing accounts and direct credit card payments to the Board. NPRM, EP 747, slip op. at 3. The NPRM proposed corresponding payment option changes to the regulations governing fees for recordations, water carrier tariffs, and contract summaries.

The NPRM explained that these payment option changes would eliminate the need to require paper filings for initial pleadings and other pleadings with associated fees, thereby allowing expanded use of electronic filing (e-filing). NPRM, EP 747, slip op. at 4-6. The Board proposed to allow all filings (subject to the current limit of 100 megabytes or less) to be e-filed, unless alternative filing procedures are required. The proposed rule would also require that any fees associated with e-filings be paid electronically.

The NPRM also proposed to modify the requirements for paper filers to reduce the burden on those filers. NPRM, EP 747, slip op. at 6-7. The Board proposed to eliminate the requirement to file 10 copies of paper filings in most proceedings and instead require paper filers generally to file only the original paper filing. The proposed changes would also eliminate the requirement that electronic versions of filings that are 20 or more pages in length be submitted on compact discs or 3.5-inch floppy diskettes. Instead, the proposed regulations would require filings that are 20 or more pages in length to be accompanied by electronic versions and would direct filers to the Board's website for information on how to provide those electronic versions. The NPRM also proposed to revise outdated format requirements regarding the submission of evidence or workpapers by directing filers to the Board's website for information on acceptable formats for such evidence.

The Board also proposed e-service of decisions. NPRM, EP 747, slip op. at 7-8. Parties who consent to e-service in a particular proceeding would be emailed decisions in that proceeding, instead of receiving paper service of Board decisions by mail. The NPRM explained that e-filing by a party in a proceeding would constitute that party's consent to e-service. The Board's updated e-filing form would allow users to provide email address(es) to be used for e-service. Id. In addition, the NPRM explained that if a party makes a paper filing and includes an email address(es) on that filing, a letter would be sent informing that filer that such email address(es) would be used on the service list for that proceeding. The letter would explain that the filer may opt out of e-service via written notification to the Board or provide a different email address(es) for e-service. For proceedings that are open at the time these rules become effective, the Board proposed that a party's email address would be added to the e-service list if the party: (1) Utilizes e-filing or (2) does not opt out of e-service after making a paper filing that includes an email address. The proposal provided that paper service would continue for parties who do not consent to e-service in the manners discussed above.

The NPRM proposed to modify the charge for copying and printing tariffs, reports, and other public documents at 49 CFR 1002.1(d) at a rate of $0.25 per letter or legal size exposure, with a minimum charge of $7.50. NPRM, EP 747, slip op. at 8, 11. Also, the NPRM proposed making the first 100 pages of copying or printing under § 1002.1(d) free. Id. at 8. With respect to documents not considered public under the Board's Freedom of Information Act regulations, the NPRM proposed reducing the charge to $0.25 per letter or legal size exposure, with a minimum charge of $7.50 for copying and printing documents. See 49 CFR 1002.1(f)(7) below.

Lastly, the Board proposed minor updates to obsolete language, including addresses and telephone numbers. See 49 CFR 1012.2(a); 1012.3(b)(5); 1132.1; 1312.4.

Comments. As discussed below, the comments generally sought clarification and minor modifications concerning the proposed procedures.

NARPO asks whether electronic payments through Pay.gov include the option of electronic wire transfers. (NARPO Comments 1.) Pay.gov accepts the transfer of funds through bank accounts, which is a similar process to wire transfers.

MacDougall notes the Board's goal of increased use of e-filing and states that the Board should not discourage filings made in other forms because filing entities may not be familiar with e-filing and/or email. (MacDougall Comments 2-3.) As proposed in the NPRM, the Board would encourage the use of e-filing but continue to accept paper filings at this time. To assist the public, the Board's website provides guidance regarding filing procedures. In addition, filers can contact Board staff by phone for filing assistance.

Next, MacDougall raises concerns that requiring paper filers to file only an original copy will negatively affect availability of filings to Board staff and the public. (Id. at 3.) MacDougall's concerns are misplaced. Board staff will continue to ensure that filings, whether e-filed or filed in paper, are promptly and appropriately distributed within the agency. Similarly, elimination of the paper copies requirement will not materially affect the timing of posting of new filings to the Board's website or availability for public examination. The Board strives to efficiently process both paper filings and e-filings, and generally filings are posted to the Board's website within one business day of submission.

Lastly, MacDougall suggests revising the Board's waiver and filing fee rules to include a grace period “for honest mistakes in the submission of an incorrect fee.” (Id. at 3-4.) The Board concludes that this modification is not necessary. Board staff is available for assistance with determining the correct fee prior to filing, and with correction of any errors discovered after filing.

WCTL generally supports the Board's proposal, with certain caveats. Regarding the Board's proposal to remove outdated language at current 49 CFR 1104.3(b) (requiring the submission of workpapers in formats that are not commonly used today), WCTL recognizes that the format for electronic workpaper submission should be fluid, but it expresses concern that the Board has not provided details regarding the submission of electronic workpapers under 100 megabytes and instead has provided a placeholder in the proposed regulations that directs filers to the Board's website. (WCTL Comments 2.) WCTL suggests that the Board provide those details before finalizing changes to the existing rule. (Id. at 2, 10.) As stated in the NPRM, electronic workpapers under 100 megabytes may be submitted via e-filing and will be accepted by email, compact disc, or USB flash drive. NPRM, EP 747, slip op. at 5, 6 n.15. Guidance regarding acceptable software formats, which will be posted on the Board's website by the effective date of the new rule, will generally reflect current practices, and Board staff will be available to provide assistance. In rate reasonableness proceedings, files are typically submitted via hard drive or flash drive and those formats will continue to be acceptable. The Board will continue to accept common electronic filing formats used by practitioners, and the Board will keep parties updated on improvements to its electronic systems, including updated versions of its word processing, database, and other software programs.

Next, WCTL supports the proposed expansion of e-filing but suggests that the Board should allow e-filings in excess of 100 megabytes by revising its systems or establishing a secondary system. (WCTL Comments 2, 8-9.) At this time, the Board must continue to limit the size of e-filings to 100 megabytes or less due to technical limitations in the agency's current e-filing system, which cannot support uploading larger files. As the Board continues to work to improve its e-filing system, it will keep interested parties apprised of updates to technological capabilities that would allow the Board to accept e-filings larger than 100 megabytes.

Lastly, WCTL suggests eliminating the requirement in current 49 CFR 1104.3(a), which states that “[a]ppropriate notes or other indications shall be used so that matters shown in color on the original, but in black and white on the copies, will be accurately identified on all copies.” (WCTL Comments 11.) WCTL states that the need to identify color on the original is unnecessary for almost all applications under the Board's proposal, and that this “hold-over language” ought to be eliminated. (Id.) The Board agrees that due to the increase in e-filing and the proposed elimination of paper filing copies in most instances, the need for this requirement may be reduced. However, because the requirement is not burdensome and would remain helpful in those instances where paper copies are filed, the adopted rules will retain that requirement, which will now be in 49 CFR 1104.3(b).

Updates to e-service procedures. The Board is modifying the e-service procedures described in the NPRM where the Board proposed, among other things, to mail letters to certain paper filers notifying them that they would receive e-service and did not propose to include a corresponding regulation. Under both the NPRM's proposed procedure and the new procedure, two groups of filers will be deemed to have consented to e-service: (1) E-filers, and (2) paper filers that include email contact information on their filing and do not opt out of e-service via written notification. With respect to the latter category, and in a departure from the Board's original proposal, the Board will not send such paper filers a letter informing them that the email address(es) on the filing would be used on the service list. The Board is also adopting a new regulation at 49 CFR 1104.12, in which the Board describes these e-service procedures and specifies that paper filers that have not consented to e-service or that have opted out will be served by first-class mail. It is anticipated that the new regulation and procedures will increase participation in e-service and reduce the Board's costs.

The NPRM stated that, for proceedings that are open at the effective date of the rule, a party's email address would be added to the e-service list if the party: (1) Utilizes e-filing or (2) does not opt out of e-service after making a paper filing that includes an email address. Parties wishing to ensure that they receive e-service in open proceedings are encouraged to e-file a single letter listing all the docket(s) in which they would like to receive e-service.

Finally, the Board encourages anyone who anticipates receiving e-service from the Board to add the email addresses eservice@stb.dot.gov and eservice@stb.gov to their email contact information. This will help prevent emails from those addresses being sent to junk mail folders.

Updates to additional regulations. In the NPRM, the Board proposed to no longer require that electronic versions of documents or pleadings be submitted on compact discs or 3.5-inch floppy diskettes. NPRM, slip op. at 6 (describing changes to section 1104.3(b)). For consistency with those changes, the final rule also removes outdated references to diskettes in additional regulations in 49 CFR parts 1150 and 1152, governing transactions that involve the creation of Class I or Class II rail carriers and procedures for abandonments or discontinuances of rail service. Specifically, the final rule eliminates the requirement that a copy of the draft Federal Register notice be submitted “as data contained on a computer diskette.” See 49 CFR 1152.22(i), 1152.60(c). Similarly, the final rule also removes this same language from the procedures governing applications for land-use-exemption permits at 49 CFR 1155.21(e).

Conclusion. The Board will adopt the rule modifications proposed in the NPRM, subject to the refinements noted above. The Board anticipates that the changes in this final rule will, among other things, significantly increase the percentage of electronic filings the agency receives, the use of electronic payment systems, and the efficiency of service of Board decisions. After implementation of this final rule, the Board will endeavor on an ongoing basis to improve its filing and information systems in ways that will add value to the public by monitoring the number of paper filings received, assessing the effectiveness of and participation in electronic service of decisions, and reviewing the technological limitations and functionality of the e-filing system.

Administrative Procedure Act and Regulatory Flexibility Act

As the Board stated in the NPRM, these revisions to the regulations are not subject to the provisions of the Administrative Procedure Act (APA) requiring notice and opportunity for public comment. See 5 U.S.C. 553(b)(3)(A). However, the proposed rules were published for notice and comment because the Board determined that it would be useful to do so. Regardless, because the Board determined that notice and comment were not required under the APA, the requirements of the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612, also do not apply.

It is ordered:

1. The Board adopts the final rule as set forth in this decision. Notice of the adopted rule will be published in the Federal Register.

2. This decision is effective on May 10, 2019.

List of Subjects

49 CFR Part 1002

• Administrative practice and procedure
• Common Carriers
• Freedom of information

49 CFR Part 1012

• Sunshine Act

49 CFR Part 1104

• Administrative practice and procedure

49 CFR Part 1110

• Administrative practice and procedure

49 CFR Part 1111

• Administrative practice and procedure
• Investigations

49 CFR Part 1113

• Administrative practice and procedure

49 CFR Part 1130

• Administrative practice and procedure

49 CFR Part 1132

• Administrative practice and procedure

49 CFR Part 1150

• Administrative practice and procedure
• Railroads

49 CFR Part 1152

• Administrative practice and procedure
• Railroads
• Reporting and

49 CFR Part 1155

• Administrative practice and procedure
• Railroads
• Waste treatment and disposal

49 CFR Part 1182

• Administrative practice and procedure
• Motor carriers

49 CFR Part 1244

• Freight
• Railroads
• Reporting and recordkeeping requirements

49 CFR Part 1312

• Freight forwarders
• Maritime carriers
• Motor carriers
• Moving of household goods
• Pipelines
• Railroads

49 CFR Part 1313

• Administrative practice and procedure
• Agricultural commodities
• Forests and forest products
• Railroads

For the reasons set forth in the preamble, the Surface Transportation Board amends parts 1002, 1012, 1104, 1110, 1111, 1113, 1130, 1132, 1150, 1152, 1155, 1182, 1244, 1312, and 1313 of title 49, chapter X, of the Code of Federal Regulations as follows:

PART 1002—FEES

1. The authority citation for part 1002 is revised to read as follows:

Authority: 5 U.S.C. 552(a)(4)(A), (a)(6)(B), and 553; 31 U.S.C. 9701; and 49 U.S.C. 1321. Section 1002.1(f)(11) is also issued under 5 U.S.C. 5514 and 31 U.S.C. 3717.

2. Amend § 1002.1 as follows:

a. In paragraph (c), remove the word “identical” and add in its place “incidental”;

b. Revise paragraph (d);

c. In paragraph (e), remove “Room 1200,”;

d. Remove paragraph (f) and redesignate paragraphs (g) through (i) as paragraphs (f) through (h);

e. Revise newly redesignated paragraph (f)(7);

f. Remove newly redesignated paragraph (f)(8) and redesignate paragraphs (f)(9) through (18) as (f)(8) through (17);

g. In newly redesignated paragraph (f)(14), remove “(g)(15)” and add “(f)(14)” in its place; and

h. Revise newly redesignated paragraph (g).

The revisions read as follows:

3. Amend § 1002.2 as follows:

a. In paragraph (a)(1), remove the second sentence;

b. Remove paragraph (a)(2);

c. Redesignate paragraph (a)(3) as paragraph (a)(2);

d. Revise newly redesignated paragraph (a)(2); and

e. Revise paragraph (b).

The revisions read as follows:

PART 1012—MEETINGS OF THE BOARD

4. The authority citation for part 1012 continues to read as follows:

Authority: 5 U.S.C. 552b(g), 49 U.S.C. 1301, 1321.

5. In § 1012.2(a), remove the words “located at 1925 K Street, NW, Washington, DC”.

6. In § 1012.3(b)(5), remove the second sentence.

7. In § 1012.6, revise paragraph (a) to read as follows:

PART 1104—FILING WITH THE BOARD-COPIES-VERIFICATION-SERVICE-PLEADINGS, GENERALLY

8. The authority citation for part 1104 continues to read as follows:

Authority: 5 U.S.C. 553 and 559; 18 U.S.C. 1621; and 49 U.S.C. 1321.

9. In § 1104.1, revise paragraph (e) to read as follows:

10. Revise § 1104.3 to read as follows:

11. In § 1104.12, revise the section heading and add paragraph (d) following the parenthetical citation to read as follows:

PART 1110—PROCEDURES GOVERNING INFORMAL RULEMAKING PROCEEDINGS

12. The authority citation for part 1110 continues to read as follows:

Authority: 49 U.S.C. 1321.

13. In § 1110.2, revise paragraph (c)(1) to read as follows:

14. In § 1110.6(a), remove the phrase “and one copy”.

PART 1111—COMPLAINT AND INVESTIGATION PROCEDURES

15. The authority citation for part 1111 continues to read as follows:

Authority: 49 U.S.C. 10704, 11701, and 1321.

16. In § 1111.4, revise the sixth sentence and remove the seventh sentence to read as follows:

17. In § 1111.5, revise paragraph (c) to read as follows:

PART 1113—ORAL HEARING

18. The authority citation for part 1113 continues to read as follows:

Authority: 5 U.S.C. 559; 49 U.S.C. 1321.

19. In § 1113.7, revise paragraph (e) to read as follows:

20. In § 1113.13, revise the section heading and remove the last sentence of the paragraph to read as follows:

PART 1130—INFORMAL COMPLAINTS

21. The authority citation for part 1130 continues to read as follows:

Authority: 49 U.S.C. 1321, 13301(f), 14709.

22. In § 1130.1, revise paragraph (a) to read as follows:

23. In § 1130.2, revise the last sentence of paragraph (f) to read as follows:

PART 1132—PROTESTS REQUESTING SUSPENSION AND INVESTIGATION OF COLLECTIVE RATEMAKING ACTIONS

24. The authority citation for part 1132 continues to read as follows:

Authority: 49 U.S.C. 1321, 13301(f), and 13703.

25. Amend § 1132.1 as follows:

a. Remove paragraph (c);

b. Redesignate paragraphs (d) and (e) as paragraphs (c) and (d);

c. Revise newly redesignated paragraph (c); and

d. Remove the second sentence of newly redesignated paragraph (d).

The revision reads as follows:

PART 1150—CERTIFICATE TO CONSTRUCT, ACQUIRE, OR OPERATE RAILROAD LINES

26. The authority citation for part 1150 continues to read as follows:

Authority: 49 U.S.C. 1321(a), 10502, 10901, and 10902.

27. Amend § 1150.10 as follows:

a. In paragraph (b), remove the words “The original and 10 copies of the application” and add in their place “An application” and remove the words “application shall include” and add in their place “application may include”; and

b. In paragraph (g), remove “(with 10 copies)” and remove “ 49 CFR 1112.1 et seq.” and add in its place “49 CFR part 1112”.

28. In § 1150.16, remove the reference to “(plus three copies)”.

29. In § 1150.45, remove the last sentence of paragraph (d).

PART 1152—ABANDONMENT AND DISCONTINUANCE OF RAIL LINES AND RAIL TRANSPORTATION UNDER 49 U.S.C. 10903

30. The authority citation for part 1152 continues to read as follows:

Authority: 11 U.S.C. 1170; 16 U.S.C. 1247(d) and 1248; 45 U.S.C. 744; and 49 U.S.C. 1301, 1321(a), 10502, 10903-10905, and 11161.

31. In § 1152.21, in the Notice of Intent, remove the words “The original and 10 copies of all comments or protests” and add in their place “Every comment or protest”.

32. In § 1152.22(i):

a. Remove the second sentence of the introductory text; and

b. In the Notice of Application, remove the words “The original and 10 copies of all comments or protests” and add in their place “Every comment or protest”.

33. In § 1152.24, revise paragraph (a) to read as follows:

34. Amend § 1152.25 as follows:

a. Remove paragraph (c)(2);

b. Redesignate paragraphs (c)(3) and (4) as paragraphs (c)(2) and (3).

c. Revise newly redesignated paragraph (c)(3); and

d. Revise paragraphs (e)(1)(iii), (e)(4) and (6), and (e)(7)(i).

The revisions read as follows:

35. In § 1152.60(c), revise the note to the Draft Federal Register Notice to read as follows:

PART 1155—SOLID WASTE RAIL TRANSFER FACILITIES

36. The authority citation for part 1155 continues to read as follows:

Authority: 49 U.S.C. 1321(a), 10908, 10909, 10910.

37. In § 1155.21(e), remove the second sentence.

38. Amend § 1155.23 as follows:

a. In paragraph (c)(1), remove the second sentence;

b. In paragraph (c)(2), remove the second sentence; and

c. In paragraph (c)(3), remove the second sentence.

PART 1182—PURCHASE, MERGER, AND CONTROL OF MOTOR PASSENGER CARRIERS

39. The authority citation for part 1182 continues to read as follows:

Authority: 5 U.S.C. 559; 21 U.S.C. 862; and 49 U.S.C. 13501, 13541(a), 13902(c), and 14303.

40. In § 1182.7(e)(2), remove the words “The original and 10 copies of the” and add in their place “The”.

41. In § 1182.8(b), remove paragraph (b) and redesignate paragraphs (c) through (f) as paragraphs (b) through (e).

PART 1244—WAYBILL ANALYSIS OF TRANSPORTATION OF PROPERTY—RAILROADS

42. The authority citation for part 1244 continues to read as follows:

Authority: 49 U.S.C. 1321, 10707, 11144, 11145.

43. Amend § 1244.9 as follows:

a. In paragraph (d)(3)(i), add the words “with the Director, Office of Economics, Surface Transportation Board, Washington, DC,” after “shipper”;

b. Remove paragraph (d)(3)(ii) and redesignate paragraph (d)(3)(iii) as paragraph (d)(3)(ii);

c. In paragraph (e)(2), remove the words “An original and 2 copies of the” and add in their place “The”; and

d. In paragraph (g)(3), remove the words “An original and three (3) copies of the” and add in their place “The”.

PART 1312—REGULATIONS FOR THE PUBLICATION, POSTING AND FILING OF TARIFFS FOR THE TRANSPORTATION OF PROPERTY BY OR WITH A WATER CARRIER IN NONCONTIGUOUS DOMESTIC TRADE

44. The authority citation for part 1312 continues to read as follows:

Authority: 49 U.S.C. 1321(a), 13702(a), 13702(b) and 13702(d).

45. Amend § 1312.4 as follows:

a. In paragraph (a)(1), remove “1925 K Street, NW,”;

b. In paragraph (a)(2)(iii), remove the words “enclosed, the account number to be billed, or the credit card to be charged;” and add in their place “method of payment (pursuant to 49 CFR 1002.2(a)); and”;

c. In paragraph (a)(2)(iv), remove “; and” and add in its place a period; and

d. Remove paragraph (a)(2)(v).

PART 1313—RAILROAD CONTRACTS FOR THE TRANSPORTATION OF AGRICULTURAL PRODUCTS

46. The authority citation for part 1313 continues to read as follows:

Authority: 49 U.S.C. 1321(a) and 10709.

47. In § 1313.4, revise paragraphs (a)(3)(iii) and (iv) and remove paragraph (a)(3)(v) to read as follows:

48. In § 1313.10, revise paragraph (a)(7) and remove paragraph (a)(8)(v) to read as follows: