81_FR_30605 81 FR 30510 - Rules Relating to Board-Initiated Investigations

81 FR 30510 - Rules Relating to Board-Initiated Investigations

DEPARTMENT OF TRANSPORTATION
Surface Transportation Board

Federal Register Volume 81, Issue 95 (May 17, 2016)

Page Range30510-30514
FR Document2016-11382

Through this Notice of Proposed Rulemaking, the Surface Transportation Board (Board or STB) is proposing rules for investigations conducted on the Board's own initiative pursuant to the Surface Transportation Board Reauthorization Act of 2015.

Federal Register, Volume 81 Issue 95 (Tuesday, May 17, 2016)
[Federal Register Volume 81, Number 95 (Tuesday, May 17, 2016)]
[Proposed Rules]
[Pages 30510-30514]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-11382]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1122

[Docket No. EP 731]


Rules Relating to Board-Initiated Investigations

AGENCY: Surface Transportation Board.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Through this Notice of Proposed Rulemaking, the Surface 
Transportation Board (Board or STB) is proposing rules for 
investigations conducted on the Board's own initiative pursuant to the 
Surface Transportation Board Reauthorization Act of 2015.

DATES: Comments are due by June 15, 2016. Replies are due by July 15, 
2016.

ADDRESSES: Comments and replies may be submitted either via the Board's 
e-filing format or in the traditional paper format. Any person using e-
filing should attach a document and otherwise comply with the 
instructions at the E-FILING link on the Board's Web site, at http://www.stb.dot.gov. Any person submitting a filing in the traditional 
paper format should send an original and 10 copies to: Surface 
Transportation Board, Attn: EP 731, 395 E Street SW., Washington, DC 
20423-0001. Copies of written comments and replies will be available 
for viewing and self-copying at the Board's Public Docket Room, Room 
131, and will be posted to the Board's Web site.

FOR FURTHER INFORMATION CONTACT: Scott M. Zimmerman at (202) 245-0386. 
[Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.]

SUPPLEMENTARY INFORMATION: Section 12 of the STB Reauthorization Act 
authorizes the Board to investigate, on its own initiative, issues that 
are ``of national or regional significance'' and are subject to the 
Board's jurisdiction under 49 U.S.C. Subtitle IV, Part A. Under the 
statute, the Board must issue rules implementing this investigative 
authority not later than one year after the date of enactment of the 
STB Reauthorization Act (by December 18, 2016).
    The Board accordingly proposes regulations, to be set forth at 49 
CFR part 1122, establishing procedures for investigations conducted on 
the Board's own initiative pursuant to Section 12 of the STB 
Reauthorization Act. The proposed regulations would not apply to other 
types of investigations that the Board may conduct.

Introduction

    The STB Reauthorization Act provides a basic framework for 
conducting investigations on the Board's own initiative, as follows:
    Within 30 days after initiating an investigation, the Board must 
provide notice to parties under investigation stating the basis for 
such investigation. The Board may only investigate issues that are of 
national or regional significance. Parties under investigation have a 
right to file a written statement describing all or any facts and 
circumstances concerning a matter under investigation, and the Board 
has an obligation to separate the investigative and decisionmaking 
functions of Board staff to the extent practicable.
    Investigations must be dismissed if they are not concluded with 
``administrative finality within one year after commencement.'' \1\ In 
any such investigation, Board staff must make available to the parties 
under investigation and the Board Members any recommendations made as a 
result of the investigation and a summary of the findings that support 
such recommendations. Within 90 days of receiving the recommendations 
and summary of findings, the Board must either dismiss the 
investigation if no further action is warranted, or initiate a 
proceeding to determine whether a provision of 49 U.S.C. Subtitle IV, 
Part A has been violated. Any remedy that the Board may order as a 
result of such a proceeding may only be applied prospectively.
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    \1\ S. Rep. No. 114-52, 12 (2015) (explaining that the one-year 
deadline for investigations conducted on the Board's own initiative 
does not include any Board proceeding conducted subsequent to the 
investigation).
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    The STB Reauthorization Act further requires that the rules issued 
under Section 12 must comply with the requirements of 49 U.S.C. 
11701(d) (as amended by the STB Reauthorization Act), satisfy due 
process requirements, and take into account ex parte constraints.

Summary of Proposed Rules

    To implement this statutory framework for investigations, the Board 
is proposing a three-stage process,

[[Page 30511]]

consisting of (1) Preliminary Fact-Finding, (2) Board-Initiated 
Investigations, and (3) Formal Board Proceedings. Each of these stages 
is described below and defined in Sec.  1122.1 of the proposed 
regulations provided in this Notice of Proposed Rulemaking. Section 
1122.2 defines the scope and applicability of the proposed regulations, 
stating that they would apply only to Board matters subject to Section 
12 of the STB Reauthorization Act.

1. Preliminary Fact-Finding

    During the Preliminary Fact-Finding stage, Board staff would 
conduct a nonpublic inquiry regarding an issue to determine if there is 
a potential violation of 49 U.S.C. Subtitle IV, Part A, of national or 
regional significance that warrants a Board-Initiated Investigation. 
Information identifying a potential violation of national or regional 
significance could come from a variety of sources, including, but not 
limited to, third party tips, referrals from other agencies or 
Congress, reports submitted to the Board, or news articles.
    The goal of Preliminary Fact-Finding would be for Board staff to 
decide whether to close its fact-gathering or request authorization to 
open a Board-Initiated Investigation and determine if a violation has 
in fact occurred. See Sec.  1122.3 (describing the Preliminary Fact-
Finding process). To assist in making this determination, Board staff 
may request that parties voluntarily provide testimony, information, or 
documents. (As an investigation will not have been formally initiated, 
Board staff would not have authority to issue subpoenas to compel 
testimony or the production of information or documents during 
Preliminary Fact-Finding. Cf. Sec. Sec.  1122.3 & 1122.9.) Under the 
proposed rules, Board staff would terminate Preliminary Fact-Finding if 
it becomes evident from information available to Board staff that (1) 
the potential violation was not of national or regional significance or 
was not subject to the Board's jurisdiction under 49 U.S.C. Subtitle 
IV, Part A, or (2) no violation likely occurred. However, if Board 
staff were to decide that (1) a violation of Part A subject to the 
Board's jurisdiction may have occurred and (2) that the potential 
violation may be of national or regional significance warranting the 
opening of a staff investigation, staff would seek authorization from 
the Board to pursue a Board-Initiated Investigation.
    As a matter of policy, Preliminary Fact-Finding generally would be 
nonpublic and confidential, subject to the provisions found in Sec.  
1122.6,\2\ in order to protect the integrity of any subsequent 
investigation and to protect parties involved from possibly unwarranted 
reputational or other harm.
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    \2\ Section 1122.6 allows the public disclosure of information 
and documents obtained during Preliminary Fact-Finding or a Board-
Initiated Investigation, and the existence of Preliminary Fact-
Finding or a Board-Initiated Investigation, under certain 
circumstances.
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2. Board-Initiated Investigation

    To commence a Board-Initiated Investigation (which statutorily must 
conclude with administrative finality within one year), the Board would 
issue an Order of Investigation and provide a copy of the order to the 
parties under investigation within 30 days of issuance. See Sec. Sec.  
1122.4 & 1122.5. The Board may commence a Board-Initiated Investigation 
with or without Board staff having conducted Preliminary Fact-Finding. 
The Order of Investigation would state the basis for the investigation 
and identify the Investigating Officer(s) who would be conducting the 
investigation for the Board. See Sec.  1122.4.
    As with Preliminary Fact-Finding, Board-Initiated Investigations 
generally would be nonpublic and confidential, except as provided by 
Sec.  1122.6, in order to protect the integrity of the process and to 
protect parties under investigation from possibly unwarranted 
reputational damage or other harm. Parties who are not the subject of 
the investigation would not be able to intervene or participate as a 
matter of right in Board-Initiated Investigations. Section 1122.8.
    The goal of the Board-Initiated Investigation would be for the 
Investigating Officer(s) to decide whether to recommend to the Board 
that it dismiss the investigation or open a proceeding to determine if 
a violation of 49 U.S.C. Subtitle IV, Part A occurred. To assist in 
making this determination, the Investigating Officer(s) would be able 
to interview or depose witnesses, inspect property and facilities, and 
request the production of any information, documents, books, papers, 
correspondence, memoranda, agreements or other records, in any form or 
media, potentially relevant or material to the basis for the Board-
Initiated Investigation, with the power of subpoena to compel the 
production of documents or testimony of witnesses, if necessary. See 
Sec.  1122.9. Any persons or entities producing such information or 
documents to the Board would be required to follow the procedures set 
forth at Sec.  1122.7 in order to preserve any relevant confidentiality 
claims and to submit the certifications required in Sec.  1122.11(a), 
regarding the diligence of any search, and (b) regarding responsive 
documents withheld based on claims of privilege. Persons or entities 
providing testimony or producing information or documents to the Board 
would be subject to the provisions of Sec.  1122.11(c) concerning false 
statements.
    Under the proposed regulations, the Investigating Officer(s) would 
be required to conclude the Board-Initiated Investigation no later than 
275 days after issuance of the Order of Investigation and, at that 
time, submit to the Board and the parties under investigation any 
recommendations made as a result of the Board-Initiated Investigation 
and a summary of the findings that support such recommendations. See 
Sec.  1122.5(b). The proposed 275-day timeline would provide Board 
Members the maximum statutory time allotted (i.e., 90 days) to review 
the Investigating Officer(s)' recommendations and summary of findings 
and decide whether to dismiss the Board-Initiated Investigation or open 
a Formal Board Proceeding, while still concluding the Board-Initiated 
Investigation with administrative finality within one year of its 
commencement. See Sec.  1122.5(b) & (c).
    The Board recognizes that potential violations that are ``of 
national or regional significance'' could have serious and far-reaching 
consequences. The Board, therefore, will endeavor to resolve Board-
Initiated Investigations as soon as possible. To be clear, 275 days 
would be the maximum amount of time for the Investigating Officer(s) to 
submit the recommendations and summary of findings to the Board Members 
and parties under investigation.
    Investigating Officer(s), in their discretion and time permitting, 
would have the option of presenting (orally or in writing) their 
recommendations and/or summary of findings to parties under 
investigation prior to submitting this information to the Board 
Members. In such cases, the Investigating Officer(s) would be required 
to permit the parties under investigation to submit a written response 
to their recommendations and/or summary of findings. The Investigating 
Officer(s) would then submit their recommendations and summary of 
findings, as well as any response from the parties under investigation, 
to the Board members and parties under investigation.
    If the Investigating Officer(s) were to decide not to use the 
optional provisions described above, parties subject to investigation 
would still be allowed to submit written statements to

[[Page 30512]]

the Board at any time pursuant to 49 U.S.C. 11701(d)(3). See Sec.  
1122.12.

3. Formal Board Proceeding

    Upon receipt of the recommendations and summary of findings from 
the Investigating Officers, the Board would decide whether to open a 
public Formal Board Proceeding to determine whether a provision of 49 
U.S.C. Subtitle IV, Part A had been violated. If so, the Board would 
issue a public Order to Show Cause as described in Sec.  1122.5(c) and 
(d). The Order to Show Cause would state the basis for the proceeding 
and set forth a procedural schedule. See Sec.  1122.5(d).

4. Other Related Issues

    Separation of Investigation and Decisionmaking Functions. In all 
matters governed by the regulations proposed at 49 CFR part 1122, the 
Board would separate the investigative and decisionmaking functions of 
Board staff, to the extent practicable. See 49 U.S.C. 11701(d)(5); 
Sec.  1122.4.
    Ex Parte Communications. Section 12(c)(3) of the STB 
Reauthorization Act requires the Board, in issuing these rules, to take 
into account ex parte constraints. Consistent with analogous ex parte 
constraints in other procedures at the Board, the Board Members, as a 
matter of policy, would not engage in off-the-record verbal 
communications concerning the matters under investigation with parties 
subject to Board-Initiated Investigations. However, as provided in 
Sec.  1122.12, parties under investigation would have the right to 
submit written statements to the Board at any time.
    Settlement. During Board-Initiated Investigations, the 
Investigating Officer(s) would be able to engage in settlement 
negotiations with parties under investigation. If, at any time during 
the investigation, the Investigating Officer(s) and parties under 
investigation reach a tentative settlement agreement, the Investigating 
Officer(s) would submit the settlement agreement as part of their 
proposed recommendations to the Board Members for approval or 
disapproval, along with the summary of findings supporting the proposed 
agreement. The Board would then decide, in accordance with Sec.  
1122.5, whether to approve the agreement and/or dismiss the 
investigation or open a Formal Board Proceeding.

Conclusion

    The proposed regulations described above and set forth below 
implement the investigative authority conferred to the Board in the STB 
Reauthorization Act, in conformance with the requirements of Section 
12. The Board invites public comment on the proposed regulations 
described herein.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, 
generally requires a description and analysis of new rules that would 
have a significant economic impact on a substantial number of small 
entities. In drafting a rule, an agency is required to: (1) Assess the 
effect that its regulation will have on small entities; (2) analyze 
effective alternatives that may minimize a regulation's impact; and (3) 
make the analysis available for public comment. Sections 601-604. In 
its notice of proposed rulemaking, the agency must either include an 
initial regulatory flexibility analysis, Section 603(a), or certify 
that the proposed rule would not have a ``significant impact on a 
substantial number of small entities.'' Section 605(b). The impact must 
be a direct impact on small entities ``whose conduct is circumscribed 
or mandated'' by the proposed rule. White Eagle Coop. v. Conner, 553 
F.3d 467, 480 (7th Cir. 2009).
    The proposed regulations here only specify procedures related to 
investigations of matters of regional or national significance 
conducted on the Board's own initiative and do not mandate or 
circumscribe the conduct of small entities. Therefore, the Board 
certifies under 5 U.S.C. 605(b) that this rule will not have a 
significant economic impact on a substantial number of small entities 
as defined by the RFA. A copy of this decision will be served upon the 
Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business 
Administration, Washington, DC 20416.

List of Subjects in 49 CFR part 1122

    Investigations.

    It is ordered:
    1. Comments are due by June 15, 2016. Replies are due by July 15, 
2016.
    2. A copy of this decision will be served upon Chief Counsel for 
Advocacy, Office of Advocacy, U.S. Small Business Administration.
    3. Notice of this decision will be published in the Federal 
Register.
    4. This decision is effective on its service date.
Decided: May 6, 2016.
    By the Board, Chairman Elliott, Vice Chairman Miller, and 
Commissioner Begeman.

Kenyatta Clay,
Clearance Clerk.

    For the reasons set forth in the preamble, the Surface 
Transportation Board proposes to amend title 49, chapter X, subchapter 
B, of the Code of Federal Regulations by adding part 1122 to read as 
follows:

PART 1122--BOARD-INITIATED INVESTIGATIONS

Sec.
1122.1 Definitions.
1122.2 Scope and applicability of this part.
1122.3 Preliminary Fact-Finding.
1122.4 Board-Initiated Investigations.
1122.5 Procedural rules.
1122.6 Confidentiality.
1122.7 Request for confidential treatment.
1122.8 Limitation on participation.
1122.9 Power of persons conducting Board-Initiated Investigations.
1122.10 Transcripts.
1122.11 Certifications and false statements.
1122.12 Right to submit statements.
Appendix A to Part 1122--Informal Procedure Relating to 
Recommendations and Summary of Findings From the Board-Initiated 
Investigation

    Authority:  49 U.S.C. 1321, 11144, 11701.


Sec.  1122.1  Definitions.

    (a) Board-Initiated Investigation means an investigation instituted 
by the Board pursuant to an Order of Investigation and conducted in 
accordance with Section 12 of the Surface Transportation Board 
Reauthorization Act of 2015, now incorporated and codified at 49 U.S.C. 
11701.
    (b) Formal Board Proceeding means a public proceeding instituted by 
the Board pursuant to an Order to Show Cause after a Board-Initiated 
Investigation has been conducted.
    (c) Investigating officer(s) means the individual(s) designated by 
the Board in an Order of Investigation to conduct a Board-Initiated 
Investigation.
    (d) Preliminary fact-finding means an inquiry conducted by Board 
staff prior to the opening of a Board-Initiated Investigation.


Sec.  1122.2  Scope and applicability of this part.

    This part applies only to matters subject to Section 12 of the 
Surface Transportation Board Reauthorization Act of 2015, 49 U.S.C. 
11701.


Sec.  1122.3  Preliminary Fact-Finding.

    The Board staff may, in its discretion, conduct nonpublic 
Preliminary Fact-Finding, subject to the provisions of

[[Page 30513]]

Sec.  1122.6, to determine if an alleged violation could be of national 
or regional significance and subject to the Board's jurisdiction under 
49 U.S.C. Subtitle IV, Part A, and warrants a Board-Initiated 
Investigation. Where it appears from Preliminary Fact-Finding that a 
Board-Initiated Investigation is appropriate, staff shall so recommend 
to the Board. Where it appears from the Preliminary Fact-Finding that a 
Board-Initiated Investigation is not appropriate, staff shall conclude 
its Preliminary Fact-Finding and notify any parties involved that the 
process has been terminated.


Sec.  1122.4  Board-Initiated Investigations.

    The Board may, in its discretion, commence a nonpublic Board-
Initiated Investigation of any matter of national or regional 
significance that is subject to the jurisdiction of the Board under 49 
U.S.C. Subtitle IV, Part A, subject to the provisions of Sec.  1122.6, 
by issuing an Order of Investigation. Orders of Investigation shall 
state the basis for the Board-Initiated Investigation and identify the 
Investigating Officer(s). The Board may add or remove Investigating 
Officer(s) during the course of a Board-Initiated Investigation. To the 
extent practicable, an Investigating Officer shall not participate in 
any decisionmaking functions in any Formal Board Proceeding(s) opened 
as a result of any Board-Initiated Investigation(s) that he or she 
conducted.


Sec.  1122.5  Procedural rules.

    (a) Not later than 30 days after commencing a Board-Initiated 
Investigation, the Investigating Officer(s) shall provide the parties 
under investigation a copy of the Order of Investigation. If the Board 
adds or removes Investigating Officer(s) during the course of the 
Board-Initiated Investigation, it shall provide written notification to 
the parties under investigation.
    (b) Not later than 275 days after issuance of the Order of 
Investigation, the Investigating Officer(s) shall submit to the Board 
and the parties under investigation:
    (1) Any recommendations made as a result of the Board-Initiated 
Investigation; and
    (2) A summary of the findings that support such recommendations.
    (c) Not later than 90 days after receiving the recommendations and 
summary of findings, the Board shall decide whether to dismiss the 
Board-Initiated Investigation if no further action is warranted or 
initiate a Formal Board Proceeding to determine whether any provision 
of 49 U.S.C. Subtitle IV, Part A, has been violated in accordance with 
Section 12 of the Surface Transportation Board Reauthorization Act of 
2015. The Board shall dismiss any Board-Initiated Investigation that is 
not concluded with administrative finality within one year after the 
date on which it was commenced.
    (d) A Formal Board Proceeding commences upon issuance of a public 
Order to Show Cause. The Order to Show Cause shall state the basis for 
the Formal Board Proceeding and set forth a procedural schedule.


Sec.  1122.6  Confidentiality.

    (a) All information and documents obtained under Sec.  1122.3 or 
Sec.  1122.4, whether or not obtained pursuant to a Board request or 
subpoena, and all activities conducted by the Board under this part 
prior to the opening of a Formal Board Proceeding, shall be treated as 
nonpublic by the Board and its staff except to the extent that:
    (1) The Board directs or authorizes the public disclosure of 
activities conducted under this part prior to the opening of a Formal 
Board Proceeding;
    (2) The information or documents are made a matter of public record 
during the course of an administrative proceeding; or
    (3) Disclosure is required by the Freedom of Information Act, 5 
U.S.C. 552 or other relevant provision of law.
    (b) Procedures by which persons submitting information to the Board 
pursuant to this part of title 49, chapter X, subchapter B, of the Code 
of Federal Regulations may specifically seek confidential treatment of 
information for purposes of the Freedom of Information Act disclosure 
are set forth in Sec.  1122.7. A request for confidential treatment of 
information for purposes of Freedom of Information Act disclosure shall 
not, however, prevent disclosure for law enforcement purposes or when 
disclosure is otherwise found appropriate in the public interest and 
permitted by law.


Sec.  1122.7  Request for confidential treatment.

    Any person that produces documents to the Board pursuant to Sec.  
1122.3 or Sec.  1122.4 may claim that some or all of the information 
contained in a particular document or documents is exempt from the 
mandatory public disclosure requirements of the Freedom of Information 
Act (FOIA), 5 U.S.C. 552, is information referred to in 18 U.S.C. 1905, 
or is otherwise exempt by law from public disclosure. In such case, the 
person making such a claim shall, at the time the person produces the 
document to the Board, indicate on the document that a request for 
confidential treatment is being made for some or all of the information 
in the document. In such case, the person making such a claim also 
shall file a brief statement specifying the specific statutory 
justification for non-disclosure of the information in the document for 
which confidential treatment is claimed. If the person states that the 
information comes within the exception in 5 U.S.C. 552(b)(4) for trade 
secrets and commercial or financial information, and the information is 
responsive to a subsequent FOIA request to the Board, 49 CFR 1001.4 
shall apply.


Sec.  1122.8  Limitation on participation.

    No party who is not the subject of a Board-Initiated Investigation 
may intervene or participate as a matter of right in any such Board-
Initiated Investigation under this part.


Sec.  1122.9  Power of persons conducting Board-Initiated 
Investigations.

    (a) The Investigating Officer(s), in connection with any Board-
Initiated Investigation, may interview or depose witnesses, inspect 
property and facilities, and request and require the production of any 
information, documents, books, papers, correspondence, memoranda, 
agreements, or other records, in any form or media, potentially 
relevant or material to the issues related to the Board-Initiated 
Investigation. The Investigating Officer(s), in connection with a 
Board-Initiated Investigation, also may issue subpoenas, in accordance 
with 49 U.S.C. 1321, to compel the attendance of witnesses, the 
production of any of the records and other documentary evidence listed 
above, and access to property and facilities.
    (b) With regard for due process, the Board may for good cause 
exclude a particular attorney from further participation in any Board-
Initiated Investigation in which the attorney is obstructing the Board-
Initiated Investigation.


Sec.  1122.10  Transcripts.

    Transcripts, if any, of investigative testimony shall be recorded 
solely by the official reporter or other person or by means authorized 
by the Board or by the Investigating Officer(s).


Sec.  1122.11  Certifications and false statements.

    (a) When producing documents under this part, the producing party 
shall submit a statement certifying that such person has made a 
diligent search for the responsive documents and is producing all the 
documents called for

[[Page 30514]]

by the Investigating Officer(s). If any responsive document(s) are not 
produced for any reason, the producing party shall state the reason 
therefor.
    (b) If any responsive documents are withheld because of a claim of 
the attorney-client privilege, work product privilege, or other 
applicable privilege, the producing party shall submit a list of such 
documents which shall, for each document, identify the attorney 
involved, the client involved, the date of the document, the person(s) 
shown on the document to have prepared and/or sent the document, and 
the person(s) shown on the document to have received copies of the 
document.
    (c) Under this part, any person making false statements under oath 
is subject to criminal penalties for perjury under 18 U.S.C. 1621. Any 
person who knowingly and willfully makes false or fraudulent 
statements, whether under oath or otherwise, or who falsifies, 
conceals, or covers up a material fact, or submits any false writing or 
document, knowing it to contain false, fictitious, or fraudulent 
information is subject to the criminal penalties set forth in 18 U.S.C. 
1001.


Sec.  1122.12  Right to submit statements.

    Any party subject to a Board-Initiated Investigation may, at any 
time during the course of a Board-Initiated Investigation, submit to 
the Board written statements of facts or circumstances, with any 
relevant supporting evidence, concerning the subject of that 
investigation.

Appendix A to Part 1122--Informal Procedure Relating to Recommendations 
and Summary of Findings From the Board-Initiated Investigation

    (a) After conducting sufficient investigation and prior to 
submitting recommendations and a summary of findings to the Board, 
the Investigating Officer, in his or her discretion, may inform the 
parties under investigation (orally or in writing) of the proposed 
recommendations and summary of findings that may be submitted to the 
Board. If the Investigating Officer so chooses, he or she shall also 
advise the parties under investigation that they may submit a 
written statement, as explained below, to the Investigating Officer 
prior to the consideration by the Board of the recommendations and 
summary of findings. This optional process is in addition to, and 
does not limit in any way, the rights of parties under investigation 
otherwise provided for in this part.
    (b) Unless otherwise provided for by the Investigating Officer, 
parties under investigation may submit written statement(s) 
described above within 14 days after of being informed by the 
Investigating Officer of the proposed recommendation(s) and summary 
of findings, and such statements shall be no more than 15 pages, 
double spaced on 8\1/2\ by 11 inch paper, setting forth the views of 
the parties under investigation of factual or legal matters relevant 
to the commencement of a Formal Board Proceeding. Any statement of 
fact included in the submission must be sworn to by a person with 
personal knowledge of such fact.
    (c) Such written statements, if the parties under investigation 
choose to submit, shall be submitted to the Investigating Officer. 
The Investigating Officer shall provide any written statement(s) 
from the parties under investigation to the Board at the same time 
that he or she submits his or her recommendations and summary of 
findings to the Board.
[FR Doc. 2016-11382 Filed 5-16-16; 8:45 am]
 BILLING CODE 4915-01-P



                                               30510                    Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules

                                               ADDRESSES:    Submit your comments,                     planned. For further information, please                The Board accordingly proposes
                                               identified by Docket ID No. EPA–R09–                    see the direct final action.                          regulations, to be set forth at 49 CFR
                                               OAR–2016–0070 at http://                                  Dated: April 4, 2016.                               part 1122, establishing procedures for
                                               www.regulations.gov, or via email to                    Jared Blumenfeld,                                     investigations conducted on the Board’s
                                               Steckel.Andrew@epa.gov. For comments                                                                          own initiative pursuant to Section 12 of
                                                                                                       Regional Administrator, Region IX.
                                               submitted at Regulations.gov, follow the                                                                      the STB Reauthorization Act. The
                                                                                                       [FR Doc. 2016–11513 Filed 5–16–16; 8:45 am]
                                               online instructions for submitting                                                                            proposed regulations would not apply
                                                                                                       BILLING CODE 6560–50–P
                                               comments. Once submitted, comments                                                                            to other types of investigations that the
                                               cannot be edited or removed from                                                                              Board may conduct.
                                               Regulations.gov. For either manner of                                                                         Introduction
                                               submission, the EPA may publish any                     DEPARTMENT OF TRANSPORTATION
                                               comment received to its public docket.                                                                           The STB Reauthorization Act
                                                                                                       Surface Transportation Board                          provides a basic framework for
                                               Do not submit electronically any
                                               information you consider to be                                                                                conducting investigations on the
                                                                                                       49 CFR Part 1122                                      Board’s own initiative, as follows:
                                               Confidential Business Information (CBI)
                                               or other information whose disclosure is                [Docket No. EP 731]                                      Within 30 days after initiating an
                                               restricted by statute. Multimedia                                                                             investigation, the Board must provide
                                               submissions (audio, video, etc.) must be                Rules Relating to Board-Initiated                     notice to parties under investigation
                                               accompanied by a written comment.                       Investigations                                        stating the basis for such investigation.
                                               The written comment is considered the                                                                         The Board may only investigate issues
                                                                                                       AGENCY:   Surface Transportation Board.               that are of national or regional
                                               official comment and should include                     ACTION:   Notice of proposed rulemaking.
                                               discussion of all points you wish to                                                                          significance. Parties under investigation
                                                                                                       SUMMARY:   Through this Notice of                     have a right to file a written statement
                                               make. The EPA will generally not
                                                                                                       Proposed Rulemaking, the Surface                      describing all or any facts and
                                               consider comments or comment
                                                                                                       Transportation Board (Board or STB) is                circumstances concerning a matter
                                               contents located outside of the primary
                                                                                                       proposing rules for investigations                    under investigation, and the Board has
                                               submission (i.e., on the Web, cloud, or
                                                                                                       conducted on the Board’s own initiative               an obligation to separate the
                                               other file sharing system). For
                                                                                                       pursuant to the Surface Transportation                investigative and decisionmaking
                                               additional submission methods, please
                                                                                                       Board Reauthorization Act of 2015.                    functions of Board staff to the extent
                                               contact the person identified in the FOR
                                                                                                                                                             practicable.
                                               FURTHER INFORMATION CONTACT section.                    DATES: Comments are due by June 15,
                                                                                                                                                                Investigations must be dismissed if
                                               For the full EPA public comment policy,                 2016. Replies are due by July 15, 2016.               they are not concluded with
                                               information about CBI or multimedia                     ADDRESSES: Comments and replies may                   ‘‘administrative finality within one year
                                               submissions, and general guidance on                    be submitted either via the Board’s e-                after commencement.’’ 1 In any such
                                               making effective comments, please visit                 filing format or in the traditional paper             investigation, Board staff must make
                                               http://www2.epa.gov/dockets/                            format. Any person using e-filing should              available to the parties under
                                               commenting-epa-dockets.                                 attach a document and otherwise                       investigation and the Board Members
                                               FOR FURTHER INFORMATION CONTACT:                        comply with the instructions at the E–                any recommendations made as a result
                                               Vanessa Graham, EPA Region IX, (415)                    FILING link on the Board’s Web site, at               of the investigation and a summary of
                                               947–4120, graham.vanessa@epa.gov.                       http://www.stb.dot.gov. Any person                    the findings that support such
                                               SUPPLEMENTARY INFORMATION:                              submitting a filing in the traditional                recommendations. Within 90 days of
                                               Throughout this document, ‘‘we,’’ ‘‘us’’                paper format should send an original                  receiving the recommendations and
                                               and ‘‘our’’ refer to the EPA. This                      and 10 copies to: Surface Transportation              summary of findings, the Board must
                                               proposal addresses the following                        Board, Attn: EP 731, 395 E Street SW.,                either dismiss the investigation if no
                                               EKAPCD rules: Rule 103.1, ‘‘Inspection                  Washington, DC 20423–0001. Copies of                  further action is warranted, or initiate a
                                               of Public Records,’’ Rule 410.4, ‘‘Metal,               written comments and replies will be                  proceeding to determine whether a
                                               Plastic, and Pleasure Craft Parts and                   available for viewing and self-copying at             provision of 49 U.S.C. Subtitle IV, Part
                                               Products Coating Operations,’’ and Rule                 the Board’s Public Docket Room, Room                  A has been violated. Any remedy that
                                               410.8, ‘‘Aerospace Assembly and                         131, and will be posted to the Board’s                the Board may order as a result of such
                                               Coating Operations.’’ In the Rules and                  Web site.                                             a proceeding may only be applied
                                               Regulations section of this Federal                     FOR FURTHER INFORMATION CONTACT:                      prospectively.
                                               Register, we are approving these local                  Scott M. Zimmerman at (202) 245–0386.                    The STB Reauthorization Act further
                                               rules in a direct final action without                  [Assistance for the hearing impaired is               requires that the rules issued under
                                               prior proposal because we believe these                 available through the Federal                         Section 12 must comply with the
                                               SIP revisions are not controversial. If we              Information Relay Service (FIRS) at 1–                requirements of 49 U.S.C. 11701(d) (as
                                               receive adverse comments, however, we                   800–877–8339.]                                        amended by the STB Reauthorization
                                               will publish a timely withdrawal of the                 SUPPLEMENTARY INFORMATION: Section 12                 Act), satisfy due process requirements,
                                               direct final rule and address the                       of the STB Reauthorization Act                        and take into account ex parte
                                               comments in subsequent action based                     authorizes the Board to investigate, on               constraints.
                                               on this proposed rule. Please note that                 its own initiative, issues that are ‘‘of
                                                                                                                                                             Summary of Proposed Rules
                                               if we receive adverse comment on a                      national or regional significance’’ and
                                               particular rule, we may adopt as final                  are subject to the Board’s jurisdiction                  To implement this statutory
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                                               those rules that are not the subject of an              under 49 U.S.C. Subtitle IV, Part A.                  framework for investigations, the Board
                                               adverse comment.                                        Under the statute, the Board must issue               is proposing a three-stage process,
                                                  We do not plan to open a second                      rules implementing this investigative
                                                                                                                                                               1 S. Rep. No. 114–52, 12 (2015) (explaining that
                                               comment period, so anyone interested                    authority not later than one year after
                                                                                                                                                             the one-year deadline for investigations conducted
                                               in commenting should do so at this                      the date of enactment of the STB                      on the Board’s own initiative does not include any
                                               time. If we do not receive adverse                      Reauthorization Act (by December 18,                  Board proceeding conducted subsequent to the
                                               comments, no further activity is                        2016).                                                investigation).



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                                                                        Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules                                              30511

                                               consisting of (1) Preliminary Fact-                     the provisions found in § 1122.6,2 in                   submit the certifications required in
                                               Finding, (2) Board-Initiated                            order to protect the integrity of any                   § 1122.11(a), regarding the diligence of
                                               Investigations, and (3) Formal Board                    subsequent investigation and to protect                 any search, and (b) regarding responsive
                                               Proceedings. Each of these stages is                    parties involved from possibly                          documents withheld based on claims of
                                               described below and defined in § 1122.1                 unwarranted reputational or other harm.                 privilege. Persons or entities providing
                                               of the proposed regulations provided in                 2. Board-Initiated Investigation                        testimony or producing information or
                                               this Notice of Proposed Rulemaking.                                                                             documents to the Board would be
                                               Section 1122.2 defines the scope and                       To commence a Board-Initiated                        subject to the provisions of § 1122.11(c)
                                               applicability of the proposed                           Investigation (which statutorily must                   concerning false statements.
                                               regulations, stating that they would                    conclude with administrative finality                      Under the proposed regulations, the
                                               apply only to Board matters subject to                  within one year), the Board would issue                 Investigating Officer(s) would be
                                               Section 12 of the STB Reauthorization                   an Order of Investigation and provide a                 required to conclude the Board-Initiated
                                               Act.                                                    copy of the order to the parties under                  Investigation no later than 275 days
                                                                                                       investigation within 30 days of                         after issuance of the Order of
                                               1. Preliminary Fact-Finding                             issuance. See §§ 1122.4 & 1122.5. The                   Investigation and, at that time, submit to
                                                  During the Preliminary Fact-Finding                  Board may commence a Board-Initiated                    the Board and the parties under
                                               stage, Board staff would conduct a                      Investigation with or without Board staff               investigation any recommendations
                                               nonpublic inquiry regarding an issue to                 having conducted Preliminary Fact-                      made as a result of the Board-Initiated
                                               determine if there is a potential                       Finding. The Order of Investigation                     Investigation and a summary of the
                                               violation of 49 U.S.C. Subtitle IV, Part                would state the basis for the                           findings that support such
                                               A, of national or regional significance                 investigation and identify the                          recommendations. See § 1122.5(b). The
                                               that warrants a Board-Initiated                         Investigating Officer(s) who would be                   proposed 275-day timeline would
                                               Investigation. Information identifying a                conducting the investigation for the                    provide Board Members the maximum
                                               potential violation of national or                      Board. See § 1122.4.                                    statutory time allotted (i.e., 90 days) to
                                               regional significance could come from a                    As with Preliminary Fact-Finding,
                                                                                                                                                               review the Investigating Officer(s)’
                                               variety of sources, including, but not                  Board-Initiated Investigations generally
                                                                                                                                                               recommendations and summary of
                                               limited to, third party tips, referrals                 would be nonpublic and confidential,
                                                                                                       except as provided by § 1122.6, in order                findings and decide whether to dismiss
                                               from other agencies or Congress, reports                                                                        the Board-Initiated Investigation or open
                                                                                                       to protect the integrity of the process
                                               submitted to the Board, or news articles.                                                                       a Formal Board Proceeding, while still
                                                                                                       and to protect parties under
                                                  The goal of Preliminary Fact-Finding                                                                         concluding the Board-Initiated
                                                                                                       investigation from possibly unwarranted
                                               would be for Board staff to decide                                                                              Investigation with administrative
                                                                                                       reputational damage or other harm.
                                               whether to close its fact-gathering or                                                                          finality within one year of its
                                                                                                       Parties who are not the subject of the
                                               request authorization to open a Board-                                                                          commencement. See § 1122.5(b) & (c).
                                                                                                       investigation would not be able to
                                               Initiated Investigation and determine if                                                                           The Board recognizes that potential
                                                                                                       intervene or participate as a matter of
                                               a violation has in fact occurred. See                   right in Board-Initiated Investigations.                violations that are ‘‘of national or
                                               § 1122.3 (describing the Preliminary                    Section 1122.8.                                         regional significance’’ could have
                                               Fact-Finding process). To assist in                        The goal of the Board-Initiated                      serious and far-reaching consequences.
                                               making this determination, Board staff                  Investigation would be for the                          The Board, therefore, will endeavor to
                                               may request that parties voluntarily                    Investigating Officer(s) to decide                      resolve Board-Initiated Investigations as
                                               provide testimony, information, or                      whether to recommend to the Board that                  soon as possible. To be clear, 275 days
                                               documents. (As an investigation will not                it dismiss the investigation or open a                  would be the maximum amount of time
                                               have been formally initiated, Board staff               proceeding to determine if a violation of               for the Investigating Officer(s) to submit
                                               would not have authority to issue                       49 U.S.C. Subtitle IV, Part A occurred.                 the recommendations and summary of
                                               subpoenas to compel testimony or the                    To assist in making this determination,                 findings to the Board Members and
                                               production of information or documents                  the Investigating Officer(s) would be                   parties under investigation.
                                               during Preliminary Fact-Finding. Cf.                    able to interview or depose witnesses,                     Investigating Officer(s), in their
                                               §§ 1122.3 & 1122.9.) Under the proposed                 inspect property and facilities, and                    discretion and time permitting, would
                                               rules, Board staff would terminate                      request the production of any                           have the option of presenting (orally or
                                               Preliminary Fact-Finding if it becomes                  information, documents, books, papers,                  in writing) their recommendations and/
                                               evident from information available to                   correspondence, memoranda,                              or summary of findings to parties under
                                               Board staff that (1) the potential                      agreements or other records, in any form                investigation prior to submitting this
                                               violation was not of national or regional               or media, potentially relevant or                       information to the Board Members. In
                                               significance or was not subject to the                  material to the basis for the Board-                    such cases, the Investigating Officer(s)
                                               Board’s jurisdiction under 49 U.S.C.                    Initiated Investigation, with the power                 would be required to permit the parties
                                               Subtitle IV, Part A, or (2) no violation                of subpoena to compel the production of                 under investigation to submit a written
                                               likely occurred. However, if Board staff                documents or testimony of witnesses, if                 response to their recommendations and/
                                               were to decide that (1) a violation of                  necessary. See § 1122.9. Any persons or                 or summary of findings. The
                                               Part A subject to the Board’s jurisdiction              entities producing such information or                  Investigating Officer(s) would then
                                               may have occurred and (2) that the                      documents to the Board would be                         submit their recommendations and
                                               potential violation may be of national or               required to follow the procedures set                   summary of findings, as well as any
                                               regional significance warranting the                    forth at § 1122.7 in order to preserve any              response from the parties under
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                                               opening of a staff investigation, staff                 relevant confidentiality claims and to                  investigation, to the Board members and
                                               would seek authorization from the                                                                               parties under investigation.
                                               Board to pursue a Board-Initiated                         2 Section 1122.6 allows the public disclosure of         If the Investigating Officer(s) were to
                                               Investigation.                                          information and documents obtained during               decide not to use the optional
                                                  As a matter of policy, Preliminary                   Preliminary Fact-Finding or a Board-Initiated
                                                                                                       Investigation, and the existence of Preliminary Fact-
                                                                                                                                                               provisions described above, parties
                                               Fact-Finding generally would be                         Finding or a Board-Initiated Investigation, under       subject to investigation would still be
                                               nonpublic and confidential, subject to                  certain circumstances.                                  allowed to submit written statements to


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                                               30512                    Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules

                                               the Board at any time pursuant to 49                    Act, in conformance with the                            By the Board, Chairman Elliott, Vice
                                               U.S.C. 11701(d)(3). See § 1122.12.                      requirements of Section 12. The Board                 Chairman Miller, and Commissioner
                                                                                                       invites public comment on the proposed                Begeman.
                                               3. Formal Board Proceeding
                                                                                                       regulations described herein.                         Kenyatta Clay,
                                                  Upon receipt of the recommendations
                                               and summary of findings from the                        Regulatory Flexibility Act                            Clearance Clerk.
                                               Investigating Officers, the Board would                                                                         For the reasons set forth in the
                                               decide whether to open a public Formal                     The Regulatory Flexibility Act of 1980
                                                                                                                                                             preamble, the Surface Transportation
                                               Board Proceeding to determine whether                   (RFA), 5 U.S.C. 601–612, generally
                                                                                                                                                             Board proposes to amend title 49,
                                               a provision of 49 U.S.C. Subtitle IV, Part              requires a description and analysis of
                                                                                                                                                             chapter X, subchapter B, of the Code of
                                               A had been violated. If so, the Board                   new rules that would have a significant               Federal Regulations by adding part 1122
                                               would issue a public Order to Show                      economic impact on a substantial                      to read as follows:
                                               Cause as described in § 1122.5(c) and                   number of small entities. In drafting a
                                               (d). The Order to Show Cause would                      rule, an agency is required to: (1) Assess            PART 1122—BOARD-INITIATED
                                               state the basis for the proceeding and set              the effect that its regulation will have on           INVESTIGATIONS
                                               forth a procedural schedule. See                        small entities; (2) analyze effective
                                               § 1122.5(d).                                            alternatives that may minimize a                      Sec.
                                                                                                                                                             1122.1 Definitions.
                                               4. Other Related Issues                                 regulation’s impact; and (3) make the                 1122.2 Scope and applicability of this part.
                                                                                                       analysis available for public comment.                1122.3 Preliminary Fact-Finding.
                                                  Separation of Investigation and                      Sections 601–604. In its notice of                    1122.4 Board-Initiated Investigations.
                                               Decisionmaking Functions. In all                        proposed rulemaking, the agency must                  1122.5 Procedural rules.
                                               matters governed by the regulations                     either include an initial regulatory                  1122.6 Confidentiality.
                                               proposed at 49 CFR part 1122, the Board                                                                       1122.7 Request for confidential treatment.
                                                                                                       flexibility analysis, Section 603(a), or
                                               would separate the investigative and                                                                          1122.8 Limitation on participation.
                                                                                                       certify that the proposed rule would not              1122.9 Power of persons conducting Board-
                                               decisionmaking functions of Board staff,
                                                                                                       have a ‘‘significant impact on a                           Initiated Investigations.
                                               to the extent practicable. See 49 U.S.C.
                                               11701(d)(5); § 1122.4.                                  substantial number of small entities.’’               1122.10 Transcripts.
                                                  Ex Parte Communications. Section                     Section 605(b). The impact must be a                  1122.11 Certifications and false statements.
                                               12(c)(3) of the STB Reauthorization Act                 direct impact on small entities ‘‘whose               1122.12 Right to submit statements.
                                                                                                       conduct is circumscribed or mandated’’                Appendix A to Part 1122—Informal
                                               requires the Board, in issuing these                                                                               Procedure Relating to Recommendations
                                               rules, to take into account ex parte                    by the proposed rule. White Eagle Coop.
                                                                                                                                                                  and Summary of Findings From the
                                               constraints. Consistent with analogous                  v. Conner, 553 F.3d 467, 480 (7th Cir.                     Board-Initiated Investigation
                                               ex parte constraints in other procedures                2009).
                                                                                                                                                               Authority: 49 U.S.C. 1321, 11144, 11701.
                                               at the Board, the Board Members, as a                      The proposed regulations here only
                                               matter of policy, would not engage in                   specify procedures related to                         § 1122.1   Definitions.
                                               off-the-record verbal communications                    investigations of matters of regional or                (a) Board-Initiated Investigation
                                               concerning the matters under                            national significance conducted on the                means an investigation instituted by the
                                               investigation with parties subject to                   Board’s own initiative and do not                     Board pursuant to an Order of
                                               Board-Initiated Investigations. However,                mandate or circumscribe the conduct of                Investigation and conducted in
                                               as provided in § 1122.12, parties under                                                                       accordance with Section 12 of the
                                                                                                       small entities. Therefore, the Board
                                               investigation would have the right to                                                                         Surface Transportation Board
                                                                                                       certifies under 5 U.S.C. 605(b) that this
                                               submit written statements to the Board                                                                        Reauthorization Act of 2015, now
                                               at any time.                                            rule will not have a significant
                                                                                                       economic impact on a substantial                      incorporated and codified at 49 U.S.C.
                                                  Settlement. During Board-Initiated                                                                         11701.
                                               Investigations, the Investigating                       number of small entities as defined by
                                                                                                       the RFA. A copy of this decision will be                (b) Formal Board Proceeding means a
                                               Officer(s) would be able to engage in                                                                         public proceeding instituted by the
                                               settlement negotiations with parties                    served upon the Chief Counsel for
                                                                                                                                                             Board pursuant to an Order to Show
                                               under investigation. If, at any time                    Advocacy, Office of Advocacy, U.S.
                                                                                                                                                             Cause after a Board-Initiated
                                               during the investigation, the                           Small Business Administration,
                                                                                                                                                             Investigation has been conducted.
                                               Investigating Officer(s) and parties                    Washington, DC 20416.                                   (c) Investigating officer(s) means the
                                               under investigation reach a tentative                                                                         individual(s) designated by the Board in
                                                                                                       List of Subjects in 49 CFR part 1122
                                               settlement agreement, the Investigating                                                                       an Order of Investigation to conduct a
                                               Officer(s) would submit the settlement                    Investigations.                                     Board-Initiated Investigation.
                                               agreement as part of their proposed                                                                             (d) Preliminary fact-finding means an
                                               recommendations to the Board Members                      It is ordered:
                                                                                                                                                             inquiry conducted by Board staff prior
                                               for approval or disapproval, along with                   1. Comments are due by June 15,                     to the opening of a Board-Initiated
                                               the summary of findings supporting the                  2016. Replies are due by July 15, 2016.               Investigation.
                                               proposed agreement. The Board would                       2. A copy of this decision will be
                                               then decide, in accordance with                                                                               § 1122.2   Scope and applicability of this
                                                                                                       served upon Chief Counsel for                         part.
                                               § 1122.5, whether to approve the
                                                                                                       Advocacy, Office of Advocacy, U.S.
                                               agreement and/or dismiss the                                                                                    This part applies only to matters
                                                                                                       Small Business Administration.
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                                               investigation or open a Formal Board                                                                          subject to Section 12 of the Surface
                                               Proceeding.                                               3. Notice of this decision will be                  Transportation Board Reauthorization
                                                                                                       published in the Federal Register.                    Act of 2015, 49 U.S.C. 11701.
                                               Conclusion
                                                                                                         4. This decision is effective on its                § 1122.3   Preliminary Fact-Finding.
                                                 The proposed regulations described
                                                                                                       service date.
                                               above and set forth below implement                                                                             The Board staff may, in its discretion,
                                               the investigative authority conferred to                Decided: May 6, 2016.                                 conduct nonpublic Preliminary Fact-
                                               the Board in the STB Reauthorization                                                                          Finding, subject to the provisions of


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                                                                        Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules                                                 30513

                                               § 1122.6, to determine if an alleged                    Part A, has been violated in accordance               that a request for confidential treatment
                                               violation could be of national or                       with Section 12 of the Surface                        is being made for some or all of the
                                               regional significance and subject to the                Transportation Board Reauthorization                  information in the document. In such
                                               Board’s jurisdiction under 49 U.S.C.                    Act of 2015. The Board shall dismiss                  case, the person making such a claim
                                               Subtitle IV, Part A, and warrants a                     any Board-Initiated Investigation that is             also shall file a brief statement
                                               Board-Initiated Investigation. Where it                 not concluded with administrative                     specifying the specific statutory
                                               appears from Preliminary Fact-Finding                   finality within one year after the date on            justification for non-disclosure of the
                                               that a Board-Initiated Investigation is                 which it was commenced.                               information in the document for which
                                               appropriate, staff shall so recommend to                   (d) A Formal Board Proceeding                      confidential treatment is claimed. If the
                                               the Board. Where it appears from the                    commences upon issuance of a public                   person states that the information comes
                                               Preliminary Fact-Finding that a Board-                  Order to Show Cause. The Order to                     within the exception in 5 U.S.C.
                                               Initiated Investigation is not                          Show Cause shall state the basis for the              552(b)(4) for trade secrets and
                                               appropriate, staff shall conclude its                   Formal Board Proceeding and set forth                 commercial or financial information,
                                               Preliminary Fact-Finding and notify any                 a procedural schedule.                                and the information is responsive to a
                                               parties involved that the process has                                                                         subsequent FOIA request to the Board,
                                                                                                       § 1122.6   Confidentiality.                           49 CFR 1001.4 shall apply.
                                               been terminated.
                                                                                                          (a) All information and documents
                                               § 1122.4   Board-Initiated Investigations.              obtained under § 1122.3 or § 1122.4,                  § 1122.8    Limitation on participation.
                                                 The Board may, in its discretion,                     whether or not obtained pursuant to a                    No party who is not the subject of a
                                               commence a nonpublic Board-Initiated                    Board request or subpoena, and all                    Board-Initiated Investigation may
                                               Investigation of any matter of national                 activities conducted by the Board under               intervene or participate as a matter of
                                               or regional significance that is subject to             this part prior to the opening of a                   right in any such Board-Initiated
                                               the jurisdiction of the Board under 49                  Formal Board Proceeding, shall be                     Investigation under this part.
                                               U.S.C. Subtitle IV, Part A, subject to the              treated as nonpublic by the Board and                 § 1122.9 Power of persons conducting
                                               provisions of § 1122.6, by issuing an                   its staff except to the extent that:                  Board-Initiated Investigations.
                                               Order of Investigation. Orders of                          (1) The Board directs or authorizes the              (a) The Investigating Officer(s), in
                                               Investigation shall state the basis for the             public disclosure of activities conducted             connection with any Board-Initiated
                                               Board-Initiated Investigation and                       under this part prior to the opening of               Investigation, may interview or depose
                                               identify the Investigating Officer(s). The              a Formal Board Proceeding;                            witnesses, inspect property and
                                               Board may add or remove Investigating                      (2) The information or documents are               facilities, and request and require the
                                               Officer(s) during the course of a Board-                made a matter of public record during                 production of any information,
                                               Initiated Investigation. To the extent                  the course of an administrative                       documents, books, papers,
                                               practicable, an Investigating Officer                   proceeding; or                                        correspondence, memoranda,
                                               shall not participate in any                               (3) Disclosure is required by the                  agreements, or other records, in any
                                               decisionmaking functions in any Formal                  Freedom of Information Act, 5 U.S.C.                  form or media, potentially relevant or
                                               Board Proceeding(s) opened as a result                  552 or other relevant provision of law.               material to the issues related to the
                                               of any Board-Initiated Investigation(s)                    (b) Procedures by which persons
                                                                                                                                                             Board-Initiated Investigation. The
                                               that he or she conducted.                               submitting information to the Board                   Investigating Officer(s), in connection
                                                                                                       pursuant to this part of title 49, chapter            with a Board-Initiated Investigation,
                                               § 1122.5   Procedural rules.                            X, subchapter B, of the Code of Federal               also may issue subpoenas, in
                                                  (a) Not later than 30 days after                     Regulations may specifically seek                     accordance with 49 U.S.C. 1321, to
                                               commencing a Board-Initiated                            confidential treatment of information for             compel the attendance of witnesses, the
                                               Investigation, the Investigating Officer(s)             purposes of the Freedom of Information                production of any of the records and
                                               shall provide the parties under                         Act disclosure are set forth in § 1122.7.             other documentary evidence listed
                                               investigation a copy of the Order of                    A request for confidential treatment of               above, and access to property and
                                               Investigation. If the Board adds or                     information for purposes of Freedom of                facilities.
                                               removes Investigating Officer(s) during                 Information Act disclosure shall not,                   (b) With regard for due process, the
                                               the course of the Board-Initiated                       however, prevent disclosure for law                   Board may for good cause exclude a
                                               Investigation, it shall provide written                 enforcement purposes or when                          particular attorney from further
                                               notification to the parties under                       disclosure is otherwise found                         participation in any Board-Initiated
                                               investigation.                                          appropriate in the public interest and                Investigation in which the attorney is
                                                  (b) Not later than 275 days after                    permitted by law.                                     obstructing the Board-Initiated
                                               issuance of the Order of Investigation,
                                                                                                       § 1122.7 Request for confidential                     Investigation.
                                               the Investigating Officer(s) shall submit
                                               to the Board and the parties under                      treatment.
                                                                                                                                                             § 1122.10    Transcripts.
                                               investigation:                                             Any person that produces documents                   Transcripts, if any, of investigative
                                                  (1) Any recommendations made as a                    to the Board pursuant to § 1122.3 or                  testimony shall be recorded solely by
                                               result of the Board-Initiated                           § 1122.4 may claim that some or all of                the official reporter or other person or
                                               Investigation; and                                      the information contained in a                        by means authorized by the Board or by
                                                  (2) A summary of the findings that                   particular document or documents is                   the Investigating Officer(s).
                                               support such recommendations.                           exempt from the mandatory public
                                                  (c) Not later than 90 days after                     disclosure requirements of the Freedom                § 1122.11 Certifications and false
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                                               receiving the recommendations and                       of Information Act (FOIA), 5 U.S.C. 552,              statements.
                                               summary of findings, the Board shall                    is information referred to in 18 U.S.C.                 (a) When producing documents under
                                               decide whether to dismiss the Board-                    1905, or is otherwise exempt by law                   this part, the producing party shall
                                               Initiated Investigation if no further                   from public disclosure. In such case, the             submit a statement certifying that such
                                               action is warranted or initiate a Formal                person making such a claim shall, at the              person has made a diligent search for
                                               Board Proceeding to determine whether                   time the person produces the document                 the responsive documents and is
                                               any provision of 49 U.S.C. Subtitle IV,                 to the Board, indicate on the document                producing all the documents called for


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                                               30514                    Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules

                                               by the Investigating Officer(s). If any                 § 1122.12    Right to submit statements.              does not limit in any way, the rights of
                                               responsive document(s) are not                            Any party subject to a Board-Initiated              parties under investigation otherwise
                                               produced for any reason, the producing                  Investigation may, at any time during                 provided for in this part.
                                               party shall state the reason therefor.                                                                           (b) Unless otherwise provided for by the
                                                                                                       the course of a Board-Initiated
                                                  (b) If any responsive documents are                  Investigation, submit to the Board                    Investigating Officer, parties under
                                               withheld because of a claim of the                                                                            investigation may submit written
                                                                                                       written statements of facts or
                                               attorney-client privilege, work product                                                                       statement(s) described above within 14 days
                                                                                                       circumstances, with any relevant
                                               privilege, or other applicable privilege,                                                                     after of being informed by the Investigating
                                                                                                       supporting evidence, concerning the
                                               the producing party shall submit a list                                                                       Officer of the proposed recommendation(s)
                                                                                                       subject of that investigation.
                                               of such documents which shall, for each                                                                       and summary of findings, and such
                                               document, identify the attorney                         Appendix A to Part 1122—Informal                      statements shall be no more than 15 pages,
                                               involved, the client involved, the date of              Procedure Relating to                                 double spaced on 81⁄2 by 11 inch paper,
                                               the document, the person(s) shown on                    Recommendations and Summary of                        setting forth the views of the parties under
                                               the document to have prepared and/or                    Findings From the Board-Initiated                     investigation of factual or legal matters
                                               sent the document, and the person(s)                    Investigation                                         relevant to the commencement of a Formal
                                               shown on the document to have                                                                                 Board Proceeding. Any statement of fact
                                                                                                         (a) After conducting sufficient
                                               received copies of the document.                                                                              included in the submission must be sworn to
                                                                                                       investigation and prior to submitting
                                                  (c) Under this part, any person                      recommendations and a summary of findings             by a person with personal knowledge of such
                                               making false statements under oath is                   to the Board, the Investigating Officer, in his       fact.
                                               subject to criminal penalties for perjury               or her discretion, may inform the parties                (c) Such written statements, if the parties
                                               under 18 U.S.C. 1621. Any person who                    under investigation (orally or in writing) of         under investigation choose to submit, shall
                                               knowingly and willfully makes false or                  the proposed recommendations and                      be submitted to the Investigating Officer. The
                                               fraudulent statements, whether under                    summary of findings that may be submitted             Investigating Officer shall provide any
                                               oath or otherwise, or who falsifies,                    to the Board. If the Investigating Officer so         written statement(s) from the parties under
                                               conceals, or covers up a material fact, or              chooses, he or she shall also advise the              investigation to the Board at the same time
                                                                                                       parties under investigation that they may             that he or she submits his or her
                                               submits any false writing or document,                  submit a written statement, as explained
                                               knowing it to contain false, fictitious, or                                                                   recommendations and summary of findings
                                                                                                       below, to the Investigating Officer prior to the
                                               fraudulent information is subject to the                                                                      to the Board.
                                                                                                       consideration by the Board of the
                                                                                                                                                             [FR Doc. 2016–11382 Filed 5–16–16; 8:45 am]
                                               criminal penalties set forth in 18 U.S.C.               recommendations and summary of findings.
                                               1001.                                                   This optional process is in addition to, and          BILLING CODE 4915–01–P
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Document Created: 2018-02-07 15:05:34
Document Modified: 2018-02-07 15:05:34
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionNotice of proposed rulemaking.
DatesComments are due by June 15, 2016. Replies are due by July 15, 2016.
ContactScott M. Zimmerman at (202) 245-0386. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
FR Citation81 FR 30510 

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