Rules Relating to Board-Initiated Investigations, 30510-30514 [2016-11382]

Download as PDF 30510 Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules Submit your comments, identified by Docket ID No. EPA–R09– OAR–2016–0070 at http:// www.regulations.gov, or via email to Steckel.Andrew@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Vanessa Graham, EPA Region IX, (415) 947–4120, graham.vanessa@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us’’ and ‘‘our’’ refer to the EPA. This proposal addresses the following EKAPCD rules: Rule 103.1, ‘‘Inspection of Public Records,’’ Rule 410.4, ‘‘Metal, Plastic, and Pleasure Craft Parts and Products Coating Operations,’’ and Rule 410.8, ‘‘Aerospace Assembly and Coating Operations.’’ In the Rules and Regulations section of this Federal Register, we are approving these local rules in a direct final action without prior proposal because we believe these SIP revisions are not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. Please note that if we receive adverse comment on a particular rule, we may adopt as final those rules that are not the subject of an adverse comment. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is Lhorne on DSK30JT082PROD with PROPOSALS ADDRESSES: VerDate Sep<11>2014 15:05 May 16, 2016 Jkt 238001 planned. For further information, please see the direct final action. Dated: April 4, 2016. Jared Blumenfeld, Regional Administrator, Region IX. [FR Doc. 2016–11513 Filed 5–16–16; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF TRANSPORTATION Surface Transportation Board 49 CFR Part 1122 [Docket No. EP 731] Rules Relating to Board-Initiated Investigations Surface Transportation Board. Notice of proposed rulemaking. AGENCY: ACTION: 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 efiling 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). SUMMARY: PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 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. 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, 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). E:\FR\FM\17MYP1.SGM 17MYP1 Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules consisting of (1) Preliminary FactFinding, (2) Board-Initiated Investigations, and (3) Formal Board Proceedings. Each of these stages is described below and defined in § 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. Lhorne on DSK30JT082PROD with PROPOSALS 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 BoardInitiated Investigation and determine if a violation has in fact occurred. See § 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. §§ 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 VerDate Sep<11>2014 15:05 May 16, 2016 Jkt 238001 the provisions found in § 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. 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 §§ 1122.4 & 1122.5. The Board may commence a Board-Initiated Investigation with or without Board staff having conducted Preliminary FactFinding. 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 § 1122.4. As with Preliminary Fact-Finding, Board-Initiated Investigations generally would be nonpublic and confidential, except as provided by § 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 BoardInitiated Investigation, with the power of subpoena to compel the production of documents or testimony of witnesses, if necessary. See § 1122.9. Any persons or entities producing such information or documents to the Board would be required to follow the procedures set forth at § 1122.7 in order to preserve any relevant confidentiality claims and to 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 FactFinding or a Board-Initiated Investigation, under certain circumstances. PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 30511 submit the certifications required in § 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 § 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 § 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 § 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 E:\FR\FM\17MYP1.SGM 17MYP1 30512 Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules the Board at any time pursuant to 49 U.S.C. 11701(d)(3). See § 1122.12. Lhorne on DSK30JT082PROD with PROPOSALS 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 § 1122.5(c) and (d). The Order to Show Cause would state the basis for the proceeding and set forth a procedural schedule. See § 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); § 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 § 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 § 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 VerDate Sep<11>2014 15:05 May 16, 2016 Jkt 238001 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. PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 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 BoardInitiated 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. § 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. § 1122.2 part. Scope and applicability of this This part applies only to matters subject to Section 12 of the Surface Transportation Board Reauthorization Act of 2015, 49 U.S.C. 11701. § 1122.3 Preliminary Fact-Finding. The Board staff may, in its discretion, conduct nonpublic Preliminary FactFinding, subject to the provisions of E:\FR\FM\17MYP1.SGM 17MYP1 Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules § 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 BoardInitiated Investigation is not appropriate, staff shall conclude its Preliminary Fact-Finding and notify any parties involved that the process has been terminated. § 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 § 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 BoardInitiated 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. Lhorne on DSK30JT082PROD with PROPOSALS § 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 BoardInitiated 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, VerDate Sep<11>2014 15:05 May 16, 2016 Jkt 238001 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. § 1122.6 Confidentiality. (a) All information and documents obtained under § 1122.3 or § 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 § 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. § 1122.7 Request for confidential treatment. Any person that produces documents to the Board pursuant to § 1122.3 or § 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 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 30513 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. § 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. § 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. § 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). § 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 E:\FR\FM\17MYP1.SGM 17MYP1 30514 Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules Lhorne on DSK30JT082PROD with PROPOSALS 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. VerDate Sep<11>2014 15:05 May 16, 2016 Jkt 238001 § 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 PO 00000 Frm 00020 Fmt 4702 Sfmt 9990 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 81⁄2 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 E:\FR\FM\17MYP1.SGM 17MYP1

Agencies

[Federal Register Volume 81, Number 95 (Tuesday, May 17, 2016)]
[Proposed Rules]
[Pages 30510-30514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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