82 FR 45771 - Ex Parte Communications in Informal Rulemaking Proceedings
SURFACE TRANSPORTATION BOARD Federal Register Volume 82, Issue 189 (October 2, 2017)
Federal Register Volume 82, Issue 189 (October 2, 2017)
| Page Range | 45771-45779 | |
| FR Document | 2017-21093 |
[Federal Register Volume 82, Number 189 (Monday, October 2, 2017)] [Proposed Rules] [Pages 45771-45779] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-21093] ======================================================================= ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD 49 CFR Part 1102 [Docket No. EP 739] Ex Parte Communications in Informal Rulemaking Proceedings AGENCY: Surface Transportation Board. ACTION: Notice of Proposed Rulemaking. ----------------------------------------------------------------------- SUMMARY: In this decision, the Surface Transportation Board (the Board) proposes to modify its regulations to permit, subject to disclosure requirements, ex parte communications in informal rulemaking proceedings. The Board also proposes other changes to its ex parte rules that would clarify and update when and how interested persons may communicate informally with the Board regarding pending proceedings other than rulemakings. The intent of the proposed regulations is to enhance the Board's ability to make informed decisions through increased stakeholder communications while ensuring that the Board's record-building process in rulemaking proceedings remains transparent and fair. DATES: Comments are due by November 1, 2017. Replies are due by November 16, 2017. ADDRESSES: Comments and replies may be submitted either via the Board's e-filing format or in paper format. Any person using e-filing should attach a document and otherwise comply with the instructions found on the Board's Web site at ``www.stb.gov'' at the ``E-FILING'' link. Any person submitting a filing in paper format should send an original and 10 paper copies of the filing to: Surface Transportation Board, Attn: Docket No. EP 739, 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: Jonathon Binet at (202) 245-0368. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339. SUPPLEMENTARY INFORMATION: The Board's current regulations at 49 CFR 1102.2 generally prohibit most informal communications between the Board and interested persons concerning the merits of pending Board proceedings. These regulations require that communications with the Board or Board staff regarding the merits of an ``on-the-record'' Board proceeding not be made on an ex parte basis (i.e., without the knowledge or consent of the parties to the proceeding). See 49 CFR 1102.2(c); 49 CFR 1102.2(a)(3). The current regulations detail the procedures required in the event an impermissible communication occurs and the potential sanctions for violations. See 49 CFR 1102.2(e), (f). The Board's predecessor agency, the Interstate Commerce Commission (ICC), determined that the general prohibition on ex parte communications in [[Page 45772]] proceedings should include the informal rulemaking proceedings the Board uses to promulgate regulations.\1\ See Revised Rules of Practice, 358 I.C.C. 323, 345 (1977) (``[E]x parte communication during a rulemaking is just as improper as it is during any other proceeding. The Commission's decisions should be influenced only by statements that are a matter of public record.''). Accordingly, it has long been the agency's practice to prohibit meetings with individual stakeholders on issues that are the topic of pending informal rulemaking proceedings. --------------------------------------------------------------------------- \1\ The Administrative Procedure Act (APA), 5 U.S.C. 551-559, governs two categories of agency rulemaking: Formal and informal. Formal rulemaking is subject to specific procedural requirements, including hearings, presiding officers, and a strict ex parte prohibition. See 5 U.S.C. 556-57. But most federal agency rulemakings, including the Board's, are informal rulemaking proceedings subject instead to the less restrictive ``notice-and- comment'' requirements of 5 U.S.C. 553. --------------------------------------------------------------------------- The Board has determined that it is appropriate to revisit the agency's strict prohibition on ex parte communications in informal rulemaking proceedings for several reasons. First, the case law governing the propriety of ex parte communications in informal rulemakings has evolved, and agencies now have more flexibility to engage in such communications and establish procedures to govern them. Second, a recent consensus recommendation of the Administrative Conference of the United States (ACUS), the body charged by Congress with recommending agency best practices, encourages greater use of ex parte communications in informal rulemaking proceedings so long as agencies devise appropriate safeguards. Third, the Board's own experiences in two recent rulemaking proceedings in which the Board waived its ex parte prohibitions to permit stakeholder meetings have demonstrated that informal meetings between the Board and stakeholders can aid the Board's decision-making process while still being conducted in a transparent and fair manner. The Board has also determined that certain other aspects of its ex parte regulations that apply to proceedings other than rulemakings could be clarified and updated to reflect current practices and better guide stakeholders and agency personnel. Case Law Developments Regarding Ex Parte Communications in Informal Rulemaking Proceedings In the late 1970s, several court decisions expressed the view that ex parte communications in informal rulemaking proceedings were inherently suspect.\2\ Courts expressed concerns that the written administrative record did not reflect the possible ``undue influence'' exerted by those stakeholders who had engaged in ex parte communications, HBO v. FCC, 567 F.2d at 54, and that ex parte communications ``violate[d] the basic fairness of a hearing which ostensibly assures the public a right to participate in agency decision making,'' foreclosing effective judicial review, National Small Shipments Traffic Conference v. ICC, 590 F.2d 345, 351 (D.C. Cir. 1978). At the same time, however, other court decisions were more tolerant of ex parte communications in informal rulemaking proceedings, so long as the proceeding was not quasi-adjudicative in nature and the process remained fair.\3\ The ICC determined that its ex parte prohibition should apply equally to rulemaking proceedings. Revised Rules of Practice, 358 I.C.C. at 345. --------------------------------------------------------------------------- \2\ See, e.g., Home Box Office v. Fed. Commc'ns Comm'n (HBO v. FCC), 567 F.2d 9, 51-59 (D.C. Cir. 1977) (finding that ex parte communications that occurred after the notice of proposed rulemaking (NPRM) violated the due process rights of the parties who were not privy to the communications); see also Sangamon Valley Television Corp. v. United States, 269 F.2d 221, 224 (D.C. Cir. 1959) (finding that undisclosed ex parte communications between agency commissioners and a stakeholder were unlawful because the informal rulemaking involved ``resolution of conflicting private claims to a valuable privilege, and that basic fairness requires such a proceeding to be carried on in the open''). \3\ See, e.g., Action for Children's Television v. Fed. Commc'ns Comm'n, 564 F.2d 458 (D.C. Cir. 1977) (upholding the agency's decision not to issue proposed rules and finding no APA violation for ex parte discussions where the agency provided a meaningful opportunity for public participation and the proceeding did not involve competing claims for a valuable privilege). --------------------------------------------------------------------------- Despite these initial misgivings by the courts, the D.C. Circuit's 1981 decision in Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), significantly clarified and liberalized treatment of this issue. That case involved an informal rulemaking conducted by the Environmental Protection Agency pursuant to the Clean Air Act, in which the agency had received numerous written and oral ex parte communications after the close of the comment period. The court considered the ``timing, source, mode, content, and the extent of . . . disclosure'' of ex parte communications received after the close of the comment period to determine whether those communications violated the Clean Air Act or due process. Id. at 391. The court noted that the Clean Air Act itself did not prohibit ex parte communications, although it did require documents of ``central relevance'' be placed on the public docket.\4\ Id. at 397. Because the agency had docketed most of the ex parte communications and none of the comments were docketed ``so late as to preclude any effective public comment,'' the court held that the agency satisfied its statutory requirements. Id. at 398. --------------------------------------------------------------------------- \4\ The court also made clear that the APA does not impose any prohibition of, or requirements related to, ex parte communications in informal rulemaking. Sierra Club, 657 F.2d at 402 (noting that Congress declined to extend the ex parte prohibition applicable to formal rulemakings to informal rulemakings despite being urged to do so). --------------------------------------------------------------------------- As for constitutional due process, the court in Sierra Club found there was ``questionable utility'' in insulating the decisionmaker in informal rulemakings (in contrast to quasi-judicial and quasi- adjudicatory rulemakings) from ex parte communications because the decisionmaker in such cases is not resolving ``conflicting private claims to a valuable privilege.'' Id. at 400. The court declined to prohibit ex parte communications in such rulemaking on due process grounds, and even held that not all ex parte communications must necessarily be docketed (implicitly concluding that whether such communications require docketing depends on case-specific circumstances). Id. at 402-04. Today, Sierra Club is considered the most recent influential decision on ex parte communications in informal rulemakings and is often cited by courts for the proposition that ex parte communications in informal agency rulemaking are generally permissible.\5\ --------------------------------------------------------------------------- \5\ See, e.g., Tex. Office of Pub. Util. Counsel v. FCC, 265 F.3d. 313, 327 (5th Cir. 2001) (``Generally, ex parte contact is not shunned in the administrative agency arena as it is in the judicial context. In fact, agency action often demands it.''); Ammex, Inc. v. United States, 23 Ct. Int'l Trade 549, 569 n.16 (1999) (noting that the decision at issue ``constitutes an exercise of `informal' rulemaking under the [APA] and, as such, is not subject to the prohibition on ex parte communications set forth in 5 U.S.C. 557(d)(1) (1994)''); Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d 1534, 1545-46 (9th Cir. 1993) (``The decision in [Sierra Club] that the contacts were not impermissible was based explicitly on the fact that the proceeding involved was informal rulemaking to which the APA restrictions on ex parte communications are not applicable.''). --------------------------------------------------------------------------- 2014 ACUS Recommendation In 2014, ACUS provided best-practices guidance to agencies that a general prohibition on ex parte communications in informal rulemaking proceedings is neither required nor advisable. Ex Parte Commc'ns in Informal Rulemaking Proceedings, 79 FR 35,988, 35,994 (June 25, 2014). ACUS examined both the potential benefits and risks of ex parte communications in informal rulemaking proceedings. Regarding potential [[Page 45773]] benefits, ACUS concluded that such communications convey a variety of benefits to both agencies and the public. . . . These meetings can facilitate a more candid and potentially interactive dialogue of key issues and may satisfy the natural desire of interested persons to feel heard. In addition, if an agency engages in rulemaking in an area that implicates sensitive information, ex parte communications may be an indispensable avenue for agencies to obtain the information necessary to develop sound, workable policies. Id. But ACUS also acknowledged that fairness issues can arise if certain groups have, or are perceived to have, ``greater access to agency personnel than others'' and that ``[t]he mere possibility of non-public information affecting rulemaking creates problems of perception and undermines confidence in the rulemaking process.'' Id. In balancing these competing considerations, ACUS urged agencies to consider placing few, if any, restrictions on ex parte communications that occur before an NPRM because communications at this stage are less likely to cause harm and more likely to ``help an agency gather essential information, craft better regulatory proposals, and promote consensus building among interested persons.'' Id. However, ACUS recommended that agencies establish clear procedures ensuring that all ex parte communications occurring after an NPRM, whether planned or unplanned, be disclosed. Written communications should be placed in the docket, and oral communications should be summarized and placed in the docket. Written summaries of oral communications should include the date, location, and participants of any meeting, as well as ``adequate disclosure'' of the communication (prepared by agency staff or private parties, with the ultimate responsibility for adequacy falling on the agency). Id. at 35,995. ACUS also suggested that agencies exercise special care regarding communications that contain ``any significant new information that its decisionmakers choose to consider or rely upon.'' Id. Board Rationale for Revising its Ex Parte Regulations Starting in 2015, the Board began to look at the possibility of conducting ex parte meetings in order to gain even more stakeholder input in the informal rulemaking process. As a result, the Board waived the ex parte prohibition to permit Board Members or designated Board staff to participate in ex parte communications in two proceedings.\6\ See Reciprocal Switching, EP 711 (Sub-No. 1), slip op. at 28-29 (STB served July 27, 2016); \7\ U.S. Rail Serv. Issues--Performance Data Reporting (U.S. Rail Serv. Issues Nov. 2015 Decision), EP 724 (Sub-No. 4), slip op. at 2-3 (STB served Nov. 9, 2015). In both proceedings, the Board established when ex parte meetings could be scheduled and specific instructions for the scheduling and disclosure of the meetings. The Board has required written meeting summaries be prepared and docketed, although it has taken slightly different approaches in each proceeding. In EP 724 (Sub-No. 4), where stakeholder meetings were held with Board staff (rather than Board Members), the meeting summaries were prepared by Board staff and placed in the rulemaking docket. (See, e.g., Summary of Ex Parte Meeting between CSX Transp., Inc. & STB Staff, Dec. 16, 2015, U.S. Rail Serv. Issues--Performance Data Reporting, EP 724 (Sub-No. 4).) In comparison, in EP 711 (Sub-No. 1), where stakeholder meetings are being held with individual Board Members, the Board has directed the parties requesting the ex parte meetings to prepare the written summaries, which are provided, along with any handouts, to the office of the Board Member with whom the party met within two business days of the meeting and then placed in the rulemaking docket within 14 days of the meeting. (See, e.g., Summary of Ex Parte Meeting Between INEOS USA LLC & STB Member, Feb. 7, 2017, Reciprocal Switching, EP 711 (Sub-No. 1).) In both proceedings, the Board has ensured that the meeting summaries contain the date of the meeting and a list of attendees; a summary of the arguments, information, and data presented; and a copy of any handout given or presented to the Board. See Reciprocal Switching, EP 711 (Sub-No. 1), slip op. at 29; see also U.S. Rail Serv. Issues Nov. 2015 Decision, EP 724 (Sub-No. 4), slip op. at 3. The Board has also ensured that meeting summaries are submitted and docketed promptly. See Reciprocal Switching, EP 711 (Sub-No. 1), slip op. at 28-29 (requiring meetings summaries to be submitted by parties within two business days of the meeting and noting that the Board expects to docket the meeting summaries within 14 days of the meeting); see also U.S. Rail Serv. Issues--Performance Data Reporting, Docket No. EP 724 (Sub-No. 4) (meeting summaries prepared by Board staff were generally docketed within 14 days of a meeting). --------------------------------------------------------------------------- \6\ Greater use of ex parte meetings in Board rulemaking proceedings was also a topic of the U.S. Senate Committee on Commerce, Science, and Transportation's August 11, 2016 hearing. See Freight Rail Reform: Implementation of the STB Reauthorization Act of 2015: Field Hearing Before the S. Comm. on Commerce, Sci., & Transp., 114th Cong. 32, 35, 46, 50-52, 57, 69, 72 (2016), https://www.thefederalregister.org/fdsys/pkg/CHRG-114shrg23228/pdf/CHRG-114shrg23228.pdf. \7\ In the Board's July 27, 2016 decision, which embraced Petition for Rulemaking to Adopt Revised Competitive Switching Rules, Docket No. EP 711, the Board terminated the proceeding in Docket No. EP 711, and all meetings with Board Members are taking place under Reciprocal Switching, Docket No. EP 711 (Sub-No. 1). --------------------------------------------------------------------------- Many stakeholders in these proceedings have expressed appreciation for the opportunity to meet with Board Members or Board staff regarding the merits of the proposed rules. See, e.g., Summary of Ex Parte Meeting Between Packaging Corp. of Am. & Acting Chairman Begeman at 3, Aug. 3, 2017, Reciprocal Switching, EP 711 (Sub-No. 1) (``The meeting concluded with . . . an acknowledgement that the ex parte meeting process on EP 711 has allowed for valuable input from shippers and their perspective on the need for a competitive rail-pricing environment that ultimately serves the public interest.''); Summary of Ex Parte Meeting Between CSX Transp. & STB Staff at 1, Dec. 16, 2015, U.S. Rail Serv. Issues--Performance Data Reporting, EP 724 (Sub-No. 4) (``CSXT hopes that there will be additional opportunities for informal discussions on Board initiatives in the future and noted that it has many informal discussions with the Federal Railroad Administration, which also does rulemakings.''). In these meetings, parties have been able to respond directly to questions from Board staff on the feasibility and utility of certain aspects of the Board's proposal. As a result of the written comments and ex parte meetings in Docket No. EP 724 (Sub-No. 4), the Board issued a supplemental NPRM significantly revising its proposed rules. See U.S. Rail Serv. Issues--Performance Data Reporting, EP 724 (Sub-No. 4), slip op. at 3 (STB served Apr. 29, 2016). Because the ex parte meetings in that proceeding better informed the agency about the often highly technical service reporting issues that were most important to commenters, the Board believes that the ultimate final rule was a better reflection of the needs and concerns of all stakeholders. The Board has every reason to expect that the ongoing meetings in EP 711 (Sub-No. 1) will prove similarly helpful and informative. The Board believes its experiences in these two cases indicate a strong desire among stakeholders to interact with the Board more informally. Both the developments in case law related to ex parte communications and [[Page 45774]] the Board's own experiences waiving its ex parte prohibitions in the two recent proceedings discussed above provide the Board with ample support to re-examine and update its ex parte regulations to permit and govern ex parte communications in informal rulemaking proceedings. The Board's removal of its prohibition on ex parte communications would also be consistent with the more liberal approach to ex parte communications in informal rulemakings allowed under Sierra Club. First, the Board's informal rulemaking proceedings are the type of proceedings in which the court in Sierra Club found ex parte communications are not prohibited on strict due process grounds. Specifically, the Board's informal rulemakings are legislative in nature, in that they focus on policy or law to be implemented in the future and are based on various factors designed to determine what prospective rule would be most beneficial. See U.S. Rail Serv. Issues Nov. 2015 Decision, EP 724 (Sub-No. 4), slip op. at 2 n.4. The Board's informal rulemaking proceedings thus generally do not involve competing claims to a specific ``valuable privilege,'' which the court in Sierra Club warned would trigger due process concerns.\8\ Accordingly, the strict due process considerations that motivate blanket ex parte restrictions in other cases would not apply to the Board's informal rulemaking proceedings. --------------------------------------------------------------------------- \8\ Claims involving specific valuable privilege are more typically resolved in Board adjudications, such as rate reasonableness or unreasonable practice cases, where ex parte communications would remain prohibited. --------------------------------------------------------------------------- Second, as in Sierra Club, the Board's authorizing statute creates no procedural impediments regarding ex parte communications in informal rulemaking proceedings. The statutory authority for most of the Board's rules, the Interstate Commerce Act, does not itself prohibit ex parte communications. Indeed, 49 U.S.C. 11324(f) explicitly permits ex parte communications in major rail merger proceedings, subject to prompt placement in the public docket of the written communication or a summary of the oral communication. And 49 U.S.C. 11123 exempts the Board from the requirements of the APA altogether in emergency situations requiring immediate Board action to provide relief for service inadequacies. In determining whether and to what extent to permit ex parte communications in informal rulemaking proceedings, the Board must appropriately balance the benefits of allowing ex parte communications with institutional concerns regarding transparency and fairness. The benefits are evident: Ex parte communications would provide the Board with the opportunity to informally engage stakeholders, gather information, and receive the benefit of industry data and stakeholder expertise. Such informal discussions would help ensure the Board thoroughly understands stakeholder perspectives and would ultimately aid the Board in developing the most appropriate regulations. Ex parte communications would also allow stakeholders to further explain or clarify data and arguments submitted in written comments and would enable the Board to explore the nuances of those arguments by asking follow-up questions, as needed. As noted in Sierra Club, government administrators must be open, accessible, and amenable to the needs and ideas of the public. Sierra Club, 657 F.2d at 400-01. Indeed, the Board's policy decisions in informal rulemaking proceedings are guided by stakeholder input, and, as the Board has experienced in Docket Nos. EP 711 (Sub-No. 1) and EP 724 (Sub-No. 4), ex parte meetings provide a meaningful and direct way for stakeholders to share their views and for the Board Members and/or Board staff to ask specific questions, thus promoting an increased dialogue about particular issues. The Board recognizes that ex parte communications can also raise concerns, including that decisionmakers may be influenced by communications made in private; that interested persons may be unable to reply effectively to information presented in ex parte communications; and that certain parties may be perceived to have greater access to the agency. See infra at 7 (discussing ACUS report). However, the Board believes that these concerns can be remedied by implementing safeguards to ensure that the public record adequately reflects the evidence and argument provided during the ex parte meetings and that parties have an opportunity to respond. Such safeguards would include requiring the disclosure of any written or oral ex parte communication in a meeting summary that would be posted to the public docket and providing parties an opportunity to submit written comments in response to the summaries at the conclusion of the ex parte meeting period. Moreover, the Board could address concerns regarding the accessibility of the process by permitting ex parte meetings via telephone or video-conferencing.\9\ --------------------------------------------------------------------------- \9\ Any parties in need of assistance understanding or complying with the Board's ex parte regulations--for example, locating example summaries from prior cases on the Board's Web site--would be able to contact the Board's Rail Customer and Public Assistance Program (RCPA). Among other things, RCPA assists Board stakeholders seeking guidance in complying with Board decisions and regulations. Matters brought to RCPA are handled informally by Board staff who are not reasonably expected to participate in Board decisions, and guidance offered through RCPA is not binding on the agency. --------------------------------------------------------------------------- With safeguards in place, the Board believes that the ability to communicate directly with stakeholders in informal rulemaking proceedings would enhance the Board's deliberations and better enable it to issue the most appropriate regulations in accordance with a transparent and fair record-building process. Accordingly, the Board proposes to revise its ex parte regulations to permit ex parte communications in informal rulemaking proceedings, but also to implement procedural safeguards that ensure the rulemaking process remains fair and transparent. Moreover, the Board seeks to clarify certain other aspects of its ex parte regulations that apply to proceedings other than informal rulemakings, to ensure that they provide clear guidance on how stakeholders can communicate with Board Members and staff during such proceedings. The Proposed Rule The Board proposes to make the following modifications, organized here by topic, to the Board's regulations at 49 CFR 1102.2 regarding ex parte communication. The Board proposes changes to the definitions set out in paragraph (a) of the regulations; changes to communications that are and are not prohibited; and changes to the procedures required upon receipt of prohibited communications. The Board also proposes new rules governing ex parte communications in informal rulemaking proceedings. The Board invites comment on the proposed revisions. Changes to Definitions The Board proposes to modify paragraph (a) to reflect that the revised regulations would govern, rather than prohibit all, ex parte communications. Under the existing regulations, ex parte communications are prohibited in ``on-the-record proceedings.'' The term ``on-the- record proceeding'' is defined in existing Sec. 1102.2(a)(1) to include formal rulemaking and adjudicatory proceedings under Sec. Sec. 556-57 of the APA (5 U.S.C. 556-57), as well as any matter required by the Constitution, statute, Board rule, or by decision to be decided solely on the record made in a Board proceeding. As discussed above, informal rulemaking proceedings are not expressly covered by this definition. [[Page 45775]] Rather, the ICC, in effect, extended the ex parte prohibition to informal rulemaking proceedings in Revised Rules of Practice, 358 I.C.C. at 345. The proposed regulations, however, would essentially reverse this extension by no longer completely prohibiting ex parte communications in informal rulemaking proceedings, while also ensuring any ex parte communications post-NPRM would be disclosed in a transparent manner. To accomplish this, the Board proposes to add two new definitions to Sec. 1102.2(a): ``informal rulemaking proceeding'' and ``covered proceedings.'' ``Informal rulemaking proceeding'' would include any proceeding to issue, amend, or repeal rules pursuant to 49 CFR part 1110 and 5 U.S.C. 553. ``Covered proceedings'' would encompass both on- the-record proceedings and informal rulemaking proceedings following the issuance of an NPRM.\10\ As discussed in more detail below, ex parte communications would be permitted in informal rulemaking proceedings (subject to disclosure requirements for those communications occurring post-NPRM), but would remain prohibited in on- the-record proceedings. --------------------------------------------------------------------------- \10\ Accordingly, the Board proposes to replace references to ``on-the-record proceedings'' with ``covered proceedings,'' as appropriate, throughout Sec. 1102.2. --------------------------------------------------------------------------- The proposed language would also redefine an ex parte communication as ``an oral or written communication that concerns the merits or substantive outcome of a pending proceeding; is made without notice to all parties and without an opportunity for all parties to be present; and could or is intended to influence anyone who participates or could reasonably be expected to participate in the decision.'' This new definition would alter the existing definition in two significant ways. First, the existing concept that communications are only ex parte if made ``by or on behalf of a party'' would be removed. The Board proposes eliminating this phrase because communications that concern the merits or substantive outcome of a proceeding, even if they are not made by a formal party to the proceeding or on behalf of such a party, could nonetheless have the potential to impact a proceeding. Second, the proposed new definition would remove the suggestion that an ex parte communication that is made with the ``consent of any other party'' could be permissible. The Board believes it is more appropriate for the Board, rather than other parties, to determine whether to permit ex parte communications.\11\ --------------------------------------------------------------------------- \11\ The Board also proposes some modifications for syntax purposes. In particular, to reflect the revised definition of ``ex parte communication,'' which incorporates the fact that ex parte communications ``concern[ ] the merits or the substantive outcome of a pending proceeding,'' the Board proposes to remove the phrase ``concerning the merits of a proceeding'' (and the like) from the remainder of Sec. 1102.2. For example, where existing paragraph (c)(2) states ``knowingly entertain any ex parte communication concerning the merits of a proceeding,'' the proposed rules would only state ``knowingly entertain any ex parte communication.'' --------------------------------------------------------------------------- These revisions would not change the generally understood concept that certain communications, by their very nature, do not concern the merits or substantive outcome of pending proceedings or are not made to Board Members or staff who are reasonably expected to participate in Board decisions. For example, communications that do not raise issues include communications about purely procedural issues; public statements or speeches by Board Members or staff that merely provide general and publicly available information about a proceeding; communications that solely concern the status of a proceeding; and communications with the Board's RCPA. Communications That Are Not Prohibited Paragraph (b), as currently written, permits certain types of communications that do not appear to threaten transparency or fairness but that may also have an impact on a proceeding. Such communications include information from the news media and facts or contentions that are general in nature. See 49 CFR 1102.2(b)(2), (3). The Board proposes to amend this paragraph to include additional categories of ex parte communications that are permissible and would not be subject to the proposed disclosure requirements of proposed paragraphs (e) and (g), discussed below. Proposed additions to this category include communications related to an informal rulemaking proceeding prior to the issuance of an NPRM; communications related to the Board's implementation of the National Environmental Policy Act and related environmental laws; and communications concerning judicial review of a matter that has already been decided by the Board made between parties to the litigation and the Board or Board staff involved in that litigation. Regarding ex parte communications prior to the issuance of an NPRM, the proposed rules would allow for unconstrained ex parte communications in informal rulemaking proceedings until an NPRM is issued. The Board believes that free-flowing communications with stakeholders should be encouraged during the exploratory, pre-NPRM phase of a rulemaking proceeding. Some rulemaking proceedings have been initiated by the Board with a general request for comments or an informational hearing designed to allow the Board to obtain preliminary stakeholder input regarding certain broad topics. See R.R. Revenue Adequacy, EP 722 (STB served April 2, 2014); Review of Rail Access & Competition Issues--Renewed Pet. of the W. Coal Traffic League, EP 575 (STB served June 2, 2006); see also Review of the STB's Gen. Costing Sys., EP 431 (Sub-No. 3) (STB served Apr. 6, 2009). When such preliminary or general decisions have been issued, the applicability of the Board's ex parte prohibitions has been unclear, and this ambiguity has caused confusion. The Board proposes to clarify that, during the pre-NPRM phase of an informal rulemaking proceeding, it is not necessary to limit (or subject to strict disclosure requirements) informal communications with individual stakeholders regarding such general topics because, as noted by ACUS, pre-NPRM ex parte communications do not implicate administrative or due process concerns. Information gathered in a pre-NPRM ex parte meeting that the Board incorporates or relies upon in its proposal should be evident in the NPRM itself, and the public would have the opportunity to examine and respond to that information.\12\ For these reasons, the Board believes that such communications, which could assist the Board in the preliminary stages of a rulemaking proceeding, should be encouraged. --------------------------------------------------------------------------- \12\ For example, in Docket No. EP 733, Expediting Rate Cases, Board staff held informal meetings with stakeholders in April 2016 to explore ideas on how the Board could expedite rate reasonableness cases. The goal of the informal discussions was to enhance Board staff's perspective on strategies and pathways to expedite and streamline rate cases. The Board utilized feedback received during the informal meetings to generate ideas, which were incorporated into an advance notice of proposed rulemaking. Expediting Rate Cases, EP 733, slip op. at 2 (STB served June 15, 2017); see also id. at 3 (proposing standardized discovery requests in light of statements by several stakeholders in the informal meetings that standardizing discovery would help expedite rate cases and reduce the number of disputes). Parties were permitted to comment on the details of the proposal, including those stemming from feedback gathered in the informal meetings. Id. at 1. --------------------------------------------------------------------------- Additionally, communications related to environmental laws and communications regarding judicial [[Page 45776]] review of matters already decided by the Board are being added to codify existing and well-accepted practices. The Board's environmental review process ``is necessarily informal and all-inclusive and depends on cooperative consultations with the [license] applicant as well as other agencies and other interested parties with expertise, so that all possible environmental information, issues, and points of view will come before the agency.'' San Jacinto Rail Ltd. Constr. Exemption & BNSF Operation Exemption--Build-Out to the Bayport Loop Near Houston, Harris Cty., Tex., FD 34079, slip op. at 3 (STB served Dec. 3, 2002) (finding that a letter sent as part of the environmental review process did not constitute an ex parte communication). Accordingly, the Board proposes to clarify that communications related solely to the preparation of environmental review documents, such as Environmental Impact Statements and Environmental Assessments, are not ex parte communications. In addition, once a Board decision has been appealed in court, it is both necessary and proper for there to be communication between the agency and other litigants concerning litigation issues. Lastly, paragraph (b)(1) of the current regulation permits any communication ``to which all the parties to the proceeding agree.'' The Board proposes to modify the existing regulations to remove this language because, as noted above, the Board believes it is more appropriate for the Board, rather than other parties, to determine whether to permit ex parte communications. Communications That Are Prohibited The Board proposes to make changes in paragraph (c) that either clarify the existing regulations or modify them to reflect that some ex parte communications, such as those in informal rulemakings, would be permitted under the proposed amendments. In paragraph (c)(1), the Board proposes to add an introductory clause, ``[e]xcept to the extent permitted by these rules'' to reflect the fact that the revised rules would govern, but not entirely prohibit, ex parte communications. The Board also proposes to amend paragraph (d) to clarify when the ex parte prohibitions take effect. The language of the existing regulations ties ex parte communications governance to the noticing for oral hearing or the taking of evidence by modified procedure. The Board believes that more general ``docketing'' triggers would better reflect the various ways Board proceedings are initiated. Thus, under the proposed rule, the prohibitions against ex parte communications in on- the-record proceedings would apply when the first filing or Board decision in a proceeding is posted to the public docket or when the person responsible for a communication knows that the first filing has been filed with the Board, whichever occurs first. In informal rulemaking proceedings, except as provided in the new paragraph (g), discussed in more detail below, the prohibitions on ex parte communications would apply when the Board issues an NPRM. The Board also proposes to clarify that ex parte prohibitions in covered proceedings remain in effect until the proceeding is no longer subject to administrative reconsideration under 49 U.S.C. 1322(c) or judicial review. Procedures Upon Receipt of Prohibited Ex Parte Communications The Board proposes revisions to paragraphs (e) and (f), which entail the procedures required of Board Members and employees upon receipt of prohibited ex parte communications and sanctions, to reflect the fact that some ex parte communications would be permissible under the revised regulation. First, the proposed rules would clarify that the procedures in paragraphs (e)(1) and (2) apply to ``[a]ny Board Member, hearing officer or Board employee'' who receives an ex parte communication. Second, the procedures set forth in existing paragraphs (e) and (f) would now apply only to communications not otherwise permitted by the regulation. Lastly, the Board proposes to amend the provision in paragraph (e)(1), which requires the Chief of the Office of Proceedings' Section of Administration to place any written communication or a written summary of an oral communication not permitted by these regulations in the public correspondence file, to also require that such placements be made ``promptly'' and contain a label indicating that the prohibited ex parte communication is not part of the decisional record of the proceeding. Ex Parte Communications in Informal Rulemaking Proceedings The Board proposes to add a new paragraph (g) specifically governing ex parte communications in informal rulemaking proceedings that occur following the issuance of an NPRM, at which point disclosure requirements would attach. Under the proposed rule, ex parte communications with Board Members in informal rulemaking proceedings following the issuance of an NPRM would be permitted, subject to disclosure requirements, until 20 days before the deadline for reply comments to the NPRM, unless otherwise specified by the Board. The Board may delegate its participation in such ex parte communications to Board staff. See e.g., U.S. Rail Serv. Issues Nov. 2015 Decision, EP 724 (Sub-No. 4). Ex parte communications in informal rulemaking proceedings that occur outside of the permitted meeting period, that occur with Board staff where such participation has not been delegated, or that do not comply with the required disclosure requirements would be subject to the sanctions provided in paragraph (f). To schedule meetings, parties should contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245-0238 or the Board Member office with whom the meeting is requested, unless otherwise specified by the Board. As discussed in more detail above, prompt and effective disclosure of ex parte communications in informal rulemaking proceedings would balance the Board's desire to obtain more stakeholder input through informal interactions while ensuring transparency and fairness. Accordingly, the proposed rules would require that the substance of each ex parte meeting be disclosed by the Board by posting in the docket of the proceeding a written meeting summary of the arguments, information, and data presented at each meeting and a copy of any handouts given or presented. The meeting summary would also disclose basic information about the meeting including the date and location of the ex parte communication (or means of communication in the case of telephone calls or video-conferencing) and a list of attendees/ participants. The proposed rules would also provide that the meeting summaries be sufficiently detailed to describe the substance of the ex parte communication. The Board's intent is to create a requirement that ensures that summaries are not merely lists of the topics discussed but rather contain the arguments made and information presented. The proposed rules provide that presenters may be required to resubmit summaries that are insufficiently detailed or that contain inaccuracies as to the substance of the presentation, thus ensuring that the Board attendees at the meeting retain the responsibility of adequate disclosure, as recommended by ACUS. It is the Board's preliminary view that stakeholders do not need further formal instructions in order to provide appropriately detailed summaries, but [[Page 45777]] parties may comment on whether more specific instructions on the format or content of meeting summaries would be appropriate.\13\ --------------------------------------------------------------------------- \13\ In addition, stakeholders may find the Board-staff prepared summaries in U.S. Rail Serv. Issues--Performance Data Reporting, Docket No. EP 724 (Sub-No. 4), to be helpful examples regarding the appropriate level of detail. --------------------------------------------------------------------------- The proposed rules provide that a single meeting summary may be submitted to the Board even if multiple parties, persons, or counsel are involved in the same ex parte meeting. In such instances, it would be the responsibility of the person submitting the summary to ensure that all other parties at the meeting agree to the form and content of the summary. This provision is intended to provide an efficient way for parties with aligned interests to make joint presentations to Board Members or Board staff in the same way they are able to make such presentations via written pleadings. Likewise, the proposed rules would permit parties to present confidential information during ex parte meetings. If the presentations contain material that a party asserts is confidential under an existing protective order governing the proceeding, parties would be required to present a public version and a confidential version of ex parte summaries and any handouts. Just as parties use the redacted, public versions of written filings to vet arguments presented in written comments, parties likewise could use redacted, public versions of the meeting summaries to vet the arguments and information shared with the Board during ex parte meetings. Parties would have the opportunity to respond to any information contained in the meeting summaries in their written NPRM reply comments. To ensure that parties have sufficient time to respond to the meeting summaries, as noted, the Board is proposing that the meetings occur at least 20 days before the deadline for reply comments to the NPRM, unless otherwise specified by the Board. If a protective order has not been issued in the proceeding at the time the presenter seeks to file a meeting summary or handout containing confidential information, the presenting party must file a request with the Board seeking such an order no later than the date it submits its meeting summary. The Board also believes it is important that meeting summaries be submitted as soon after the meetings occur as practicable. The entire substance of communications is best recalled if they are recorded soon after the meeting or presentation. Moreover, if meeting summaries are submitted promptly, the Board will be able to post them promptly, which will ensure that all interested stakeholders will have sufficient time to review the summaries. Accordingly, the proposed rules would require parties to submit summaries within two business days of an ex parte presentation or meeting. The rules also provide that the Board would post the summaries within seven days of submission of a summary that is complete for posting. 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. Sec. Sec. 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, Sec. 603(a), or certify that the proposed rule would not have a ``significant impact on a substantial number of small entities,'' Sec. 605(b). Because the goal of the RFA is to reduce the cost to small entities of complying with federal regulations, the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates those entities. In other words, 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 regulation would not create a significant impact on a substantial number of small entities.\14\ The proposed regulations provide for participation in ex parte communications with the Board in informal rulemaking proceedings to provide stakeholders with an alternative means of communicating their interests to the Board in a transparent and fair manner. When a party chooses to engage in ex parte communications with the Board in an informal rulemaking proceeding, the requirements contained in these proposed regulations do not have a significant impact on participants, including small entities. While the proposed rules would require parties to provide written summaries of the ex parte communications, based on the Board's experiences in EP 711 (Sub-No. 1) and EP 724 (Sub-No. 4), the summary documentation is a minimal burden. The meeting summaries are generally only a few pages long (excluding copies of handouts from the meetings that were attached). For example, the meeting summaries the Board received in EP 724 (Sub-No. 4) ranged from two to six pages in length. Of those summaries, nearly half were just two pages long. Likewise, in EP 711 (Sub-No. 1), the meeting summaries range from one to four pages in length, with the majority of those summaries being three or fewer pages long. For these reasons, the proposed rule would not place any significant burden on small entities. --------------------------------------------------------------------------- \14\ Effective June 30, 2016, for the purpose of RFA analysis for rail carriers subject to Board jurisdiction, the Board defines a ``small business'' as only including those rail carriers classified as Class III rail carriers under 49 CFR 1201.1-1. See Small Entity Size Standards Under the Regulatory Flexibility Act, EP 719 (STB served June 30, 2016) (with Board Member Begeman dissenting). Class III carriers have annual operating revenues of $20 million or less in 1991 dollars, or $35,809,698 or less when adjusted for inflation using 2016 data. Class II rail carriers have annual operating revenues of less than $250 million in 1991 dollars or less than $447,621,226 when adjusted for inflation using 2016 data. The Board calculates the revenue deflator factor annually and publishes the railroad revenue thresholds on its Web site. 49 CFR 1201.1-1. --------------------------------------------------------------------------- List of Subjects in 49 CFR Part 1102 Administrative practice and procedure. It is ordered: 1. The Board proposes to amend its rules as set forth in this decision. Notice of the proposed rules will be published in the Federal Register. 2. The procedural schedule is established as follows: Comments regarding the proposed rules are due by November 1, 2017; replies are due by November 16, 2017. 3. 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. 4. This decision is effective on the day of service. Decided: September 26, 2017. By the Board, Board Member Begeman, Elliott, and Miller. Jeffrey Herzig, Clearance Clerk. For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend 49 CFR part 1102 as follows: 49 CFR PART 1102--COMMUNICATIONS 0 1. The authority citation for part 1102 is revised to read as follows: [[Page 45778]] Authority: 49 U.S.C. 1321. 0 2. Amend Sec. 1102.2 as follows: 0 a. Revise the section heading; 0 b. In paragraph (a), redesignate paragraphs (a)(2) and (3) as paragraphs (a)(4) and (5) and add new paragraphs (2) and (3); 0 c. Revise newly redesignated paragraph (a)(5); 0 d. Revise paragraph (b) introductory text; 0 e. Revise paragraph (b)(1); 0 f. Redesignate paragraphs (b)(2) and (3) as paragraphs (b)(3) and (4), and add new paragraphs (b)(2), (5), and (6); 0 g. Revise newly designated paragraphs (b)(3) and (4); 0 h. Revise paragraphs (c) introductory text, (c)(1), (c)(2), and (d); 0 i. Revise paragraph (e); 0 j. In paragraph (f)(1), remove ``concerning the merits of a proceeding''; 0 k. In paragraph (f)(2), add ``covered'' before the word ``proceeding''; 0 l. Revise paragraph (f)(3); and 0 m. Add a new paragraph (g). The revisions and additions read as follows: Sec. 1102.2 Procedures governing ex parte communications. (a) * * * (2) ``Informal rulemaking proceeding'' means a proceeding to issue, amend, or repeal rules pursuant to 5 U.S.C. 553 and part 1110 of this chapter. (3) ``Covered proceedings'' means on-the-record proceedings and informal rulemaking proceedings following the issuance of a notice of proposed rulemaking. * * * * * (5) ``Ex parte communication'' means an oral or written communication that concerns the merits or substantive outcome of a pending proceeding; is made without notice to all parties and without an opportunity for all parties to be present; and could or is intended to influence anyone who participates or could reasonably be expected to participate in the decision. (b) Ex parte communications that are not prohibited and need not be disclosed. (1) Any communication that the Board formally rules may be made on an ex parte basis; (2) Any communication occurring in informal rulemaking proceedings prior to the issuance of a notice of proposed rulemaking; (3) Any communication of facts or contention which has general significance for a regulated industry if the communicator cannot reasonably be expected to have known that the facts or contentions are material to a substantive issue in a pending covered proceeding in which it is interested; (4) Any communication by means of the news media that in the ordinary course of business of the publisher is intended to inform the general public, members of the organization involved, or subscribers to such publication with respect to pending covered proceedings; (5) Any communications related solely to the preparation of documents necessary for the Board's implementation of the National Environmental Policy Act and related environmental laws, pursuant to part 1105 of this chapter; (6) Any communication concerning judicial review of a matter that has already been decided by the Board made between parties to the litigation and the Board or Board staff who are involved in that litigation. (c) General Prohibitions. (1) Except to the extent permitted by these rules, no party, counsel, agent of a party, or person who intercedes in any covered proceeding shall engage in any ex parte communication with any Board Member, hearing officer, or Board employee who participates, or who may reasonably be expected to participate, in the decision in the proceeding. (2) No Board Member, hearing officer, or Board employee who participates, or is reasonably expected to participate, in the decision in a covered proceeding shall invite or knowingly entertain any ex parte communication or engage in any such communication to any party, counsel, agent of a party, or person reasonably expected to transmit the communication to a party or party's agent. (d) When prohibitions take effect. In on-the-record proceedings, the prohibitions against ex parte communications apply from the date on which the first filing or Board decision in a proceeding is posted to the public docket by the Board, or when the person responsible for the communication has knowledge that such a filing has been filed, or at any time the Board, by rule or decision, specifies, whichever occurs first. In informal rulemaking proceedings, except as provided in paragraph (g) of this section, the prohibitions against ex parte communications apply following the issuance of a notice of proposed rulemaking. The prohibitions in covered proceedings continue until the proceeding is no longer subject to administrative reconsideration under 49 U.S.C. 1322(c) or judicial review. (e) Procedure required of Board Members and Board staff upon receipt of prohibited ex parte communications. (1) Any Board Member, hearing officer, or Board employee who receives an ex parte communication not permitted by these regulations must promptly transmit either the written communication, or a written summary of the oral communication with an outline of the surrounding circumstances to the Chief, Section of Administration, Office of Proceedings, Surface Transportation Board. The Section Chief shall promptly place the written material or summary in the correspondence section of the public docket of the proceeding with a designation indicating that it is a prohibited ex parte communication that is not part of the decisional record. (2) Any Board Member, hearing officer, or Board employee who is the recipient of such ex parte communication may request a ruling from the Board's Designated Agency Ethics Official as to whether the communication is a prohibited ex parte communication. The Designated Agency Ethics Official shall promptly reply to such requests. The Chief, Section of Administration, Office of Proceedings, shall promptly notify the Chairman of the Board of such ex parte communications sent to the Section Chief. The Designated Agency Ethics Official shall promptly notify the Chairman of all requests for rulings sent to the Designated Agency Ethics Official. The Chairman may require that any communication be placed in the correspondence section of the docket when fairness requires that it be made public, even if it is not a prohibited communication. The Chairman may direct the taking of such other action as may be appropriate under the circumstances. (f) * * * (1) The Board may censure, suspend, or revoke the privilege of practicing before the agency of any person who knowingly and willfully engages in or solicits prohibited ex parte communication. (2) The relief or benefit sought by a party to a covered proceeding may be denied if the party or the party's agent knowingly and willfully violates these rules. (3) The Board may censure, suspend, dismiss, or institute proceedings to suspend or dismiss any Board employee who knowingly and willfully violates these rules. (g) Ex parte communications in informal rulemaking proceedings; disclosure requirements. (1) Notwithstanding paragraph (c) of this section, ex parte communications with Board Members in informal rulemaking proceedings are permitted [[Page 45779]] after the issuance of a notice of proposed rulemaking and until 20 days before the deadline for reply comments set forth in the notice of proposed rulemaking, unless otherwise specified by the Board in procedural orders governing the proceeding. The Board may delegate its participation in such ex parte communications to Board staff. All such ex parte communications must be disclosed in accordance with paragraph (g)(4) of this section. Any person who engages in such ex parte communications must comply with any schedule and additional instructions provided by the Board in the proceeding. Communications that do not comply with this section or with the schedule and instructions established in the proceeding are not permitted and are subject to the procedures and sanctions in paragraphs (e) and (f) of this section. (2) To schedule ex parte meetings permitted under paragraph (g)(1) of this section, parties should contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance or the Board Member office with whom the meeting is requested, unless otherwise specified by the Board. (3) Parties seeking to present confidential information during an ex parte communication must inform the Board of the confidentiality of the information at the time of the presentation and must comply with the disclosure requirements in paragraph (g)(4)(iv) of this section. (4) The following disclosure requirements apply to ex parte communications permitted under paragraph (g)(1) of this section: (i) Any person who engages in ex parte communications in an informal rulemaking proceeding shall submit to the Board Member office or delegated Board staff with whom the meeting was held a memorandum that states the date and location of the communication; lists the names and titles of all persons who attended (including via phone or video) or otherwise participated in the meeting during which the ex parte communication occurred; and summarizes the data and arguments presented during the ex parte communication. Any written or electronic material shown or given to Board Members or Board staff during the meeting must be attached to the memorandum. (ii) Memoranda must be sufficiently detailed to describe the substance of the presentation. Board Members or Board staff may ask presenters to resubmit memoranda that are not sufficiently detailed. (iii) If a single meeting includes presentations from multiple parties, counsel, or persons, a single summary may be submitted so long as all presenters agree to the form and content of the summary. (iv) If a memorandum, including any attachments, contains information that the presenter asserts is confidential, the presenter must submit a public version and a confidential version of the memorandum. If there is no existing protective order governing the proceeding, the presenter must, at the same time the presenter submits its public and redacted memoranda, file a request with the Board seeking such an order pursuant to Sec. 1104.14 of this chapter. (v) Memoranda must be submitted to the Board in the manner prescribed no later than two business days after the ex parte communication. (vi) Ex parte memoranda submitted under this section will be posted on the Board's Web site in the docket for the informal rulemaking proceeding within seven days of submission. If a presenter has requested confidential treatment for all or part of a memorandum, only the public version will appear on the Board's Web site. Persons seeking access to the confidential version must do so pursuant to the protective order governing the proceeding. [FR Doc. 2017-21093 Filed 9-29-17; 8:45 am] BILLING CODE 4915-01-P
![Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 45771
address the plan’s deficiencies within • Does not have Federalism proposes to modify its regulations to
one year. implications as specified in Executive permit, subject to disclosure
The City of Albuquerque and Order 13132 (64 FR 43255, August 10, requirements, ex parte communications
Bernalillo County, New Mexico has 1999); in informal rulemaking proceedings.
provided the information required • Is not an economically significant The Board also proposes other changes
under 40 CFR 51.309(d)(10)(i) in the regulatory action based on health or to its ex parte rules that would clarify
five-year progress report. Based upon safety risks subject to Executive Order and update when and how interested
this information, the County stated in its 13045 (62 FR 19885, April 23, 1997); persons may communicate informally
progress report SIP that it believes that • Is not a significant regulatory action with the Board regarding pending
the current Section 309 and Section subject to Executive Order 13211 (66 FR proceedings other than rulemakings.
309(g) regional haze SIPs are adequate 28355, May 22, 2001); The intent of the proposed regulations
to meet the State’s 2018 RPGs and • Is not subject to requirements of is to enhance the Board’s ability to make
require no further revision at this time. section 12(d) of the National informed decisions through increased
Thus, the EPA has received a negative Technology Transfer and Advancement stakeholder communications while
declaration from the City of Act of 1995 (15 U.S.C. 272 note) because ensuring that the Board’s record-
Albuquerque and Bernalillo County, application of those requirements would building process in rulemaking
NM. be inconsistent with the CAA; and proceedings remains transparent and
• Does not provide EPA with the fair.
IV. The EPA’s Proposed Action discretionary authority to address, as DATES: Comments are due by November
The EPA is proposing to approve the appropriate, disproportionate human 1, 2017. Replies are due by November
City of Albuquerque and Bernalillo health or environmental effects, using 16, 2017.
County, New Mexico’s regional haze practicable and legally permissible
ADDRESSES: Comments and replies may
five-year progress report SIP revision methods, under Executive Order 12898 be submitted either via the Board’s e-
(submitted June 24, 2016) as meeting the (59 FR 7629, February 16, 1994). In filing format or in paper format. Any
applicable regional haze requirements addition, the SIP is not approved to person using e-filing should attach a
set forth in 40 CFR 51.309(d)(10). The apply on any Indian reservation land or document and otherwise comply with
EPA is proposing to approve the City of in any other area where EPA or an the instructions found on the Board’s
Albuquerque and Bernalillo County, Indian tribe has demonstrated that a Web site at ‘‘www.stb.gov’’ at the ‘‘E–
New Mexico’s determination that the tribe has jurisdiction. In those areas of FILING’’ link. Any person submitting a
current regional haze SIP is adequate to Indian country, the proposed rule does filing in paper format should send an
meet the State’s 2018 RPGs. not have tribal implications and will not original and 10 paper copies of the filing
V. Statutory and Executive Order impose substantial direct costs on tribal to: Surface Transportation Board, Attn:
Reviews governments or preempt tribal law as Docket No. EP 739, 395 E Street SW.,
specified by Executive Order 13175 (65 Washington, DC 20423–0001. Copies of
Under the CAA, the Administrator is FR 67249, November 9, 2000).
required to approve a SIP submission written comments and replies will be
that complies with the provisions of the List of Subjects in 40 CFR Part 52 available for viewing and self-copying at
Act and applicable Federal regulations. the Board’s Public Docket Room, Room
Environmental protection, Air 131, and will be posted to the Board’s
42 U.S.C. 7410(k); 40 CFR 52.02(a). pollution control, Best Available
Thus, in reviewing SIP submissions, the Web site.
Retrofit Technology, Carbon monoxide,
EPA’s role is to approve state choices, FOR FURTHER INFORMATION CONTACT:
Incorporation by reference,
provided that they meet the criteria of Jonathon Binet at (202) 245–0368.
Intergovernmental relations, Lead,
the CAA. Accordingly, this action Assistance for the hearing impaired is
Nitrogen dioxide, Ozone, Particulate
merely proposes to approve state law as available through the Federal
matter, Reporting and recordkeeping
meeting Federal requirements and does Information Relay Service (FIRS) at
requirements, Regional haze, Sulfur
not impose additional requirements (800) 877–8339.
dioxide, Visibility, Volatile organic
beyond those imposed by state law. For compounds. SUPPLEMENTARY INFORMATION: The
that reason, this action: Board’s current regulations at 49 CFR
Authority: 42 U.S.C. 7401 et seq.
• Is not a ‘‘significant regulatory 1102.2 generally prohibit most informal
action’’ subject to review by the Office Dated: September 26, 2017. communications between the Board and
of Management and Budget under Samuel Coleman, interested persons concerning the merits
Executive Orders 12866 (58 FR 51735, Acting Regional Administrator, Region 6. of pending Board proceedings. These
October 4, 1993), 13563 (76 FR 3821, [FR Doc. 2017–21006 Filed 9–29–17; 8:45 am] regulations require that communications
January 21, 2011), and 13771 (82 FR BILLING CODE 6560–50–P
with the Board or Board staff regarding
9339, February 2, 2017); the merits of an ‘‘on-the-record’’ Board
• Does not impose an information proceeding not be made on an ex parte
collection burden under the provisions basis (i.e., without the knowledge or
SURFACE TRANSPORTATION BOARD
of the Paperwork Reduction Act (44 consent of the parties to the
U.S.C. 3501 et seq.); 49 CFR Part 1102 proceeding). See 49 CFR 1102.2(c); 49
• Is certified as not having a CFR 1102.2(a)(3). The current
significant economic impact on a [Docket No. EP 739] regulations detail the procedures
sradovich on DSK3GMQ082PROD with PROPOSALS
substantial number of small entities required in the event an impermissible
Ex Parte Communications in Informal
under the Regulatory Flexibility Act (5 communication occurs and the potential
Rulemaking Proceedings
U.S.C. 601 et seq.); sanctions for violations. See 49 CFR
• Does not contain any unfunded AGENCY: Surface Transportation Board. 1102.2(e), (f).
mandate or significantly or uniquely ACTION: Notice of Proposed Rulemaking. The Board’s predecessor agency, the
affect small governments, as described Interstate Commerce Commission (ICC),
in the Unfunded Mandates Reform Act SUMMARY: In this decision, the Surface determined that the general prohibition
of 1995 (Public Law 104–4); Transportation Board (the Board) on ex parte communications in
VerDate Sep<11>2014 16:16 Sep 29, 2017 Jkt 244001 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 E:\FR\FM\02OCP1.SGM 02OCP1](https://thefederalregister.org/doc/82_FR_45960/page/1.svg)
![45772 Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules
proceedings should include the rulemaking proceedings were inherently placed on the public docket.4 Id. at 397.
informal rulemaking proceedings the suspect.2 Courts expressed concerns Because the agency had docketed most
Board uses to promulgate that the written administrative record of the ex parte communications and
regulations.1 See Revised Rules of did not reflect the possible ‘‘undue none of the comments were docketed
Practice, 358 I.C.C. 323, 345 (1977) influence’’ exerted by those ‘‘so late as to preclude any effective
(‘‘[E]x parte communication during a stakeholders who had engaged in ex public comment,’’ the court held that
rulemaking is just as improper as it is parte communications, HBO v. FCC, 567 the agency satisfied its statutory
during any other proceeding. The F.2d at 54, and that ex parte requirements. Id. at 398.
Commission’s decisions should be communications ‘‘violate[d] the basic As for constitutional due process, the
influenced only by statements that are a fairness of a hearing which ostensibly court in Sierra Club found there was
matter of public record.’’). Accordingly, assures the public a right to participate ‘‘questionable utility’’ in insulating the
it has long been the agency’s practice to in agency decision making,’’ foreclosing decisionmaker in informal rulemakings
prohibit meetings with individual effective judicial review, National Small (in contrast to quasi-judicial and quasi-
stakeholders on issues that are the topic adjudicatory rulemakings) from ex parte
Shipments Traffic Conference v. ICC,
of pending informal rulemaking communications because the
590 F.2d 345, 351 (D.C. Cir. 1978). At
proceedings. decisionmaker in such cases is not
the same time, however, other court
The Board has determined that it is resolving ‘‘conflicting private claims to
appropriate to revisit the agency’s strict decisions were more tolerant of ex parte a valuable privilege.’’ Id. at 400. The
prohibition on ex parte communications communications in informal rulemaking court declined to prohibit ex parte
in informal rulemaking proceedings for proceedings, so long as the proceeding communications in such rulemaking on
several reasons. First, the case law was not quasi-adjudicative in nature due process grounds, and even held that
governing the propriety of ex parte and the process remained fair.3 The ICC not all ex parte communications must
communications in informal determined that its ex parte prohibition necessarily be docketed (implicitly
rulemakings has evolved, and agencies should apply equally to rulemaking concluding that whether such
now have more flexibility to engage in proceedings. Revised Rules of Practice, communications require docketing
such communications and establish 358 I.C.C. at 345. depends on case-specific
procedures to govern them. Second, a Despite these initial misgivings by the circumstances). Id. at 402–04.
recent consensus recommendation of courts, the D.C. Circuit’s 1981 decision Today, Sierra Club is considered the
the Administrative Conference of the in Sierra Club v. Costle, 657 F.2d 298 most recent influential decision on ex
United States (ACUS), the body charged (D.C. Cir. 1981), significantly clarified parte communications in informal
by Congress with recommending agency and liberalized treatment of this issue. rulemakings and is often cited by courts
best practices, encourages greater use of That case involved an informal for the proposition that ex parte
ex parte communications in informal rulemaking conducted by the communications in informal agency
rulemaking proceedings so long as Environmental Protection Agency rulemaking are generally permissible.5
agencies devise appropriate safeguards. pursuant to the Clean Air Act, in which 2014 ACUS Recommendation
Third, the Board’s own experiences in the agency had received numerous
two recent rulemaking proceedings in In 2014, ACUS provided best-
written and oral ex parte practices guidance to agencies that a
which the Board waived its ex parte
communications after the close of the general prohibition on ex parte
prohibitions to permit stakeholder
comment period. The court considered communications in informal rulemaking
meetings have demonstrated that
the ‘‘timing, source, mode, content, and proceedings is neither required nor
informal meetings between the Board
the extent of . . . disclosure’’ of ex parte advisable. Ex Parte Commc’ns in
and stakeholders can aid the Board’s
decision-making process while still communications received after the close Informal Rulemaking Proceedings, 79
being conducted in a transparent and of the comment period to determine FR 35,988, 35,994 (June 25, 2014).
fair manner. whether those communications violated ACUS examined both the potential
The Board has also determined that the Clean Air Act or due process. Id. at benefits and risks of ex parte
certain other aspects of its ex parte 391. The court noted that the Clean Air communications in informal rulemaking
regulations that apply to proceedings Act itself did not prohibit ex parte proceedings. Regarding potential
other than rulemakings could be communications, although it did require
clarified and updated to reflect current documents of ‘‘central relevance’’ be 4 The court also made clear that the APA does not
impose any prohibition of, or requirements related
practices and better guide stakeholders to, ex parte communications in informal
2 See, e.g., Home Box Office v. Fed. Commc’ns
and agency personnel. rulemaking. Sierra Club, 657 F.2d at 402 (noting
Comm’n (HBO v. FCC), 567 F.2d 9, 51–59 (D.C. Cir. that Congress declined to extend the ex parte
Case Law Developments Regarding Ex 1977) (finding that ex parte communications that prohibition applicable to formal rulemakings to
Parte Communications in Informal occurred after the notice of proposed rulemaking informal rulemakings despite being urged to do so).
(NPRM) violated the due process rights of the 5 See, e.g., Tex. Office of Pub. Util. Counsel v.
Rulemaking Proceedings parties who were not privy to the communications); FCC, 265 F.3d. 313, 327 (5th Cir. 2001) (‘‘Generally,
In the late 1970s, several court see also Sangamon Valley Television Corp. v. ex parte contact is not shunned in the
United States, 269 F.2d 221, 224 (D.C. Cir. 1959)
decisions expressed the view that ex (finding that undisclosed ex parte communications
administrative agency arena as it is in the judicial
parte communications in informal context. In fact, agency action often demands it.’’);
between agency commissioners and a stakeholder Ammex, Inc. v. United States, 23 Ct. Int’l Trade 549,
were unlawful because the informal rulemaking 569 n.16 (1999) (noting that the decision at issue
1 The Administrative Procedure Act (APA), 5 involved ‘‘resolution of conflicting private claims to
sradovich on DSK3GMQ082PROD with PROPOSALS
‘‘constitutes an exercise of ‘informal’ rulemaking
U.S.C. 551–559, governs two categories of agency a valuable privilege, and that basic fairness requires under the [APA] and, as such, is not subject to the
rulemaking: Formal and informal. Formal such a proceeding to be carried on in the open’’). prohibition on ex parte communications set forth in
rulemaking is subject to specific procedural 3 See, e.g., Action for Children’s Television v. Fed.
5 U.S.C. 557(d)(1) (1994)’’); Portland Audubon Soc.
requirements, including hearings, presiding Commc’ns Comm’n, 564 F.2d 458 (D.C. Cir. 1977) v. Endangered Species Comm., 984 F.2d 1534,
officers, and a strict ex parte prohibition. See 5 (upholding the agency’s decision not to issue 1545–46 (9th Cir. 1993) (‘‘The decision in [Sierra
U.S.C. 556–57. But most federal agency proposed rules and finding no APA violation for ex Club] that the contacts were not impermissible was
rulemakings, including the Board’s, are informal parte discussions where the agency provided a based explicitly on the fact that the proceeding
rulemaking proceedings subject instead to the less meaningful opportunity for public participation and involved was informal rulemaking to which the
restrictive ‘‘notice-and-comment’’ requirements of 5 the proceeding did not involve competing claims APA restrictions on ex parte communications are
U.S.C. 553. for a valuable privilege). not applicable.’’).
VerDate Sep<11>2014 16:16 Sep 29, 2017 Jkt 244001 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:\FR\FM\02OCP1.SGM 02OCP1](https://thefederalregister.org/doc/82_FR_45960/page/2.svg)
![Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 45773
benefits, ACUS concluded that such proceedings.6 See Reciprocal Switching, 711 (Sub-No. 1), slip op. at 28–29
communications EP 711 (Sub-No. 1), slip op. at 28–29 (requiring meetings summaries to be
convey a variety of benefits to both agencies (STB served July 27, 2016); 7 U.S. Rail submitted by parties within two
and the public. . . . These meetings can Serv. Issues—Performance Data business days of the meeting and noting
facilitate a more candid and potentially Reporting (U.S. Rail Serv. Issues Nov. that the Board expects to docket the
interactive dialogue of key issues and may 2015 Decision), EP 724 (Sub-No. 4), slip meeting summaries within 14 days of
satisfy the natural desire of interested op. at 2–3 (STB served Nov. 9, 2015). In the meeting); see also U.S. Rail Serv.
persons to feel heard. In addition, if an both proceedings, the Board established Issues—Performance Data Reporting,
agency engages in rulemaking in an area that when ex parte meetings could be Docket No. EP 724 (Sub-No. 4) (meeting
implicates sensitive information, ex parte scheduled and specific instructions for summaries prepared by Board staff were
communications may be an indispensable the scheduling and disclosure of the generally docketed within 14 days of a
avenue for agencies to obtain the information
necessary to develop sound, workable
meetings. The Board has required meeting).
policies. written meeting summaries be prepared Many stakeholders in these
and docketed, although it has taken proceedings have expressed
Id. But ACUS also acknowledged that slightly different approaches in each appreciation for the opportunity to meet
fairness issues can arise if certain proceeding. In EP 724 (Sub-No. 4), with Board Members or Board staff
groups have, or are perceived to have, where stakeholder meetings were held regarding the merits of the proposed
‘‘greater access to agency personnel than with Board staff (rather than Board rules. See, e.g., Summary of Ex Parte
others’’ and that ‘‘[t]he mere possibility Members), the meeting summaries were Meeting Between Packaging Corp. of
of non-public information affecting prepared by Board staff and placed in Am. & Acting Chairman Begeman at 3,
rulemaking creates problems of the rulemaking docket. (See, e.g., Aug. 3, 2017, Reciprocal Switching, EP
perception and undermines confidence Summary of Ex Parte Meeting between 711 (Sub-No. 1) (‘‘The meeting
in the rulemaking process.’’ Id. CSX Transp., Inc. & STB Staff, Dec. 16, concluded with . . . an
In balancing these competing 2015, U.S. Rail Serv. Issues— acknowledgement that the ex parte
considerations, ACUS urged agencies to Performance Data Reporting, EP 724 meeting process on EP 711 has allowed
consider placing few, if any, restrictions (Sub-No. 4).) In comparison, in EP 711 for valuable input from shippers and
on ex parte communications that occur (Sub-No. 1), where stakeholder meetings their perspective on the need for a
before an NPRM because are being held with individual Board competitive rail-pricing environment
communications at this stage are less Members, the Board has directed the that ultimately serves the public
likely to cause harm and more likely to parties requesting the ex parte meetings interest.’’); Summary of Ex Parte
‘‘help an agency gather essential to prepare the written summaries, Meeting Between CSX Transp. & STB
information, craft better regulatory which are provided, along with any Staff at 1, Dec. 16, 2015, U.S. Rail Serv.
proposals, and promote consensus handouts, to the office of the Board Issues—Performance Data Reporting, EP
building among interested persons.’’ Id. Member with whom the party met 724 (Sub-No. 4) (‘‘CSXT hopes that there
However, ACUS recommended that within two business days of the meeting will be additional opportunities for
agencies establish clear procedures and then placed in the rulemaking informal discussions on Board
ensuring that all ex parte docket within 14 days of the meeting. initiatives in the future and noted that
communications occurring after an (See, e.g., Summary of Ex Parte Meeting it has many informal discussions with
NPRM, whether planned or unplanned, Between INEOS USA LLC & STB the Federal Railroad Administration,
be disclosed. Written communications Member, Feb. 7, 2017, Reciprocal which also does rulemakings.’’). In these
should be placed in the docket, and oral Switching, EP 711 (Sub-No. 1).) In both meetings, parties have been able to
communications should be summarized proceedings, the Board has ensured that respond directly to questions from
and placed in the docket. Written the meeting summaries contain the date Board staff on the feasibility and utility
summaries of oral communications of the meeting and a list of attendees; a of certain aspects of the Board’s
should include the date, location, and summary of the arguments, information, proposal. As a result of the written
and data presented; and a copy of any comments and ex parte meetings in
participants of any meeting, as well as
handout given or presented to the Docket No. EP 724 (Sub-No. 4), the
‘‘adequate disclosure’’ of the
Board. See Reciprocal Switching, EP 711 Board issued a supplemental NPRM
communication (prepared by agency
(Sub-No. 1), slip op. at 29; see also U.S. significantly revising its proposed rules.
staff or private parties, with the ultimate
Rail Serv. Issues Nov. 2015 Decision, EP See U.S. Rail Serv. Issues—Performance
responsibility for adequacy falling on
724 (Sub-No. 4), slip op. at 3. The Board Data Reporting, EP 724 (Sub-No. 4), slip
the agency). Id. at 35,995. ACUS also
has also ensured that meeting op. at 3 (STB served Apr. 29, 2016).
suggested that agencies exercise special
summaries are submitted and docketed Because the ex parte meetings in that
care regarding communications that
promptly. See Reciprocal Switching, EP proceeding better informed the agency
contain ‘‘any significant new
about the often highly technical service
information that its decisionmakers 6 Greater use of ex parte meetings in Board reporting issues that were most
choose to consider or rely upon.’’ Id. rulemaking proceedings was also a topic of the U.S. important to commenters, the Board
Senate Committee on Commerce, Science, and
Board Rationale for Revising its Ex Transportation’s August 11, 2016 hearing. See
believes that the ultimate final rule was
Parte Regulations Freight Rail Reform: Implementation of the STB a better reflection of the needs and
Reauthorization Act of 2015: Field Hearing Before concerns of all stakeholders. The Board
Starting in 2015, the Board began to the S. Comm. on Commerce, Sci., & Transp., 114th has every reason to expect that the
sradovich on DSK3GMQ082PROD with PROPOSALS
look at the possibility of conducting ex Cong. 32, 35, 46, 50–52, 57, 69, 72 (2016), https://
ongoing meetings in EP 711 (Sub-No. 1)
parte meetings in order to gain even www.gpo.gov/fdsys/pkg/CHRG-114shrg23228/pdf/
CHRG-114shrg23228.pdf. will prove similarly helpful and
more stakeholder input in the informal 7 In the Board’s July 27, 2016 decision, which informative. The Board believes its
rulemaking process. As a result, the embraced Petition for Rulemaking to Adopt Revised experiences in these two cases indicate
Board waived the ex parte prohibition to Competitive Switching Rules, Docket No. EP 711, a strong desire among stakeholders to
permit Board Members or designated the Board terminated the proceeding in Docket No.
EP 711, and all meetings with Board Members are interact with the Board more informally.
Board staff to participate in ex parte taking place under Reciprocal Switching, Docket Both the developments in case law
communications in two No. EP 711 (Sub-No. 1). related to ex parte communications and
VerDate Sep<11>2014 16:16 Sep 29, 2017 Jkt 244001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:\FR\FM\02OCP1.SGM 02OCP1](https://thefederalregister.org/doc/82_FR_45960/page/3.svg)
![Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 45775
Rather, the ICC, in effect, extended the than other parties, to determine whether unconstrained ex parte communications
ex parte prohibition to informal to permit ex parte communications.11 in informal rulemaking proceedings
rulemaking proceedings in Revised These revisions would not change the until an NPRM is issued. The Board
Rules of Practice, 358 I.C.C. at 345. The generally understood concept that believes that free-flowing
proposed regulations, however, would certain communications, by their very communications with stakeholders
essentially reverse this extension by no nature, do not concern the merits or should be encouraged during the
longer completely prohibiting ex parte substantive outcome of pending exploratory, pre-NPRM phase of a
communications in informal rulemaking proceedings or are not made to Board rulemaking proceeding. Some
proceedings, while also ensuring any ex Members or staff who are reasonably rulemaking proceedings have been
parte communications post-NPRM expected to participate in Board initiated by the Board with a general
would be disclosed in a transparent decisions. For example, request for comments or an
manner. communications that do not raise issues informational hearing designed to allow
include communications about purely the Board to obtain preliminary
To accomplish this, the Board stakeholder input regarding certain
procedural issues; public statements or
proposes to add two new definitions to speeches by Board Members or staff that broad topics. See R.R. Revenue
§ 1102.2(a): ‘‘informal rulemaking merely provide general and publicly Adequacy, EP 722 (STB served April 2,
proceeding’’ and ‘‘covered available information about a 2014); Review of Rail Access &
proceedings.’’ ‘‘Informal rulemaking proceeding; communications that solely Competition Issues—Renewed Pet. of
proceeding’’ would include any concern the status of a proceeding; and the W. Coal Traffic League, EP 575 (STB
proceeding to issue, amend, or repeal communications with the Board’s served June 2, 2006); see also Review of
rules pursuant to 49 CFR part 1110 and RCPA. the STB’s Gen. Costing Sys., EP 431
5 U.S.C. 553. ‘‘Covered proceedings’’ (Sub-No. 3) (STB served Apr. 6, 2009).
would encompass both on-the-record Communications That Are Not When such preliminary or general
proceedings and informal rulemaking Prohibited decisions have been issued, the
proceedings following the issuance of Paragraph (b), as currently written, applicability of the Board’s ex parte
an NPRM.10 As discussed in more detail permits certain types of prohibitions has been unclear, and this
below, ex parte communications would communications that do not appear to ambiguity has caused confusion. The
be permitted in informal rulemaking threaten transparency or fairness but Board proposes to clarify that, during
proceedings (subject to disclosure that may also have an impact on a the pre-NPRM phase of an informal
requirements for those communications proceeding. Such communications rulemaking proceeding, it is not
occurring post-NPRM), but would include information from the news necessary to limit (or subject to strict
remain prohibited in on-the-record media and facts or contentions that are disclosure requirements) informal
proceedings. general in nature. See 49 CFR communications with individual
1102.2(b)(2), (3). The Board proposes to stakeholders regarding such general
The proposed language would also topics because, as noted by ACUS, pre-
redefine an ex parte communication as amend this paragraph to include
additional categories of ex parte NPRM ex parte communications do not
‘‘an oral or written communication that implicate administrative or due process
concerns the merits or substantive communications that are permissible
and would not be subject to the concerns. Information gathered in a pre-
outcome of a pending proceeding; is NPRM ex parte meeting that the Board
made without notice to all parties and proposed disclosure requirements of
proposed paragraphs (e) and (g), incorporates or relies upon in its
without an opportunity for all parties to proposal should be evident in the
discussed below. Proposed additions to
be present; and could or is intended to NPRM itself, and the public would have
this category include communications
influence anyone who participates or the opportunity to examine and respond
related to an informal rulemaking
could reasonably be expected to to that information.12 For these reasons,
proceeding prior to the issuance of an
participate in the decision.’’ This new the Board believes that such
NPRM; communications related to the
definition would alter the existing Board’s implementation of the National communications, which could assist the
definition in two significant ways. First, Environmental Policy Act and related Board in the preliminary stages of a
the existing concept that environmental laws; and rulemaking proceeding, should be
communications are only ex parte if communications concerning judicial encouraged.
made ‘‘by or on behalf of a party’’ would Additionally, communications related
review of a matter that has already been
be removed. The Board proposes to environmental laws and
decided by the Board made between
eliminating this phrase because communications regarding judicial
parties to the litigation and the Board or
communications that concern the merits Board staff involved in that litigation. 12 For example, in Docket No. EP 733, Expediting
or substantive outcome of a proceeding, Regarding ex parte communications Rate Cases, Board staff held informal meetings with
even if they are not made by a formal prior to the issuance of an NPRM, the stakeholders in April 2016 to explore ideas on how
party to the proceeding or on behalf of proposed rules would allow for the Board could expedite rate reasonableness cases.
such a party, could nonetheless have the The goal of the informal discussions was to enhance
Board staff’s perspective on strategies and pathways
potential to impact a proceeding. 11 The Board also proposes some modifications
to expedite and streamline rate cases. The Board
Second, the proposed new definition for syntax purposes. In particular, to reflect the utilized feedback received during the informal
would remove the suggestion that an ex revised definition of ‘‘ex parte communication,’’ meetings to generate ideas, which were
which incorporates the fact that ex parte
sradovich on DSK3GMQ082PROD with PROPOSALS
parte communication that is made with incorporated into an advance notice of proposed
communications ‘‘concern[ ] the merits or the rulemaking. Expediting Rate Cases, EP 733, slip op.
the ‘‘consent of any other party’’ could substantive outcome of a pending proceeding,’’ the at 2 (STB served June 15, 2017); see also id. at 3
be permissible. The Board believes it is Board proposes to remove the phrase ‘‘concerning (proposing standardized discovery requests in light
more appropriate for the Board, rather the merits of a proceeding’’ (and the like) from the of statements by several stakeholders in the
remainder of § 1102.2. For example, where existing informal meetings that standardizing discovery
paragraph (c)(2) states ‘‘knowingly entertain any ex would help expedite rate cases and reduce the
10 Accordingly, the Board proposes to replace parte communication concerning the merits of a number of disputes). Parties were permitted to
references to ‘‘on-the-record proceedings’’ with proceeding,’’ the proposed rules would only state comment on the details of the proposal, including
‘‘covered proceedings,’’ as appropriate, throughout ‘‘knowingly entertain any ex parte those stemming from feedback gathered in the
§ 1102.2. communication.’’ informal meetings. Id. at 1.
VerDate Sep<11>2014 16:16 Sep 29, 2017 Jkt 244001 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 E:\FR\FM\02OCP1.SGM 02OCP1](https://thefederalregister.org/doc/82_FR_45960/page/5.svg)
![45776 Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules
review of matters already decided by the proceedings are initiated. Thus, under an NPRM would be permitted, subject to
Board are being added to codify existing the proposed rule, the prohibitions disclosure requirements, until 20 days
and well-accepted practices. The against ex parte communications in on- before the deadline for reply comments
Board’s environmental review process the-record proceedings would apply to the NPRM, unless otherwise specified
‘‘is necessarily informal and all- when the first filing or Board decision by the Board. The Board may delegate
inclusive and depends on cooperative in a proceeding is posted to the public its participation in such ex parte
consultations with the [license] docket or when the person responsible communications to Board staff. See e.g.,
applicant as well as other agencies and for a communication knows that the U.S. Rail Serv. Issues Nov. 2015
other interested parties with expertise, first filing has been filed with the Board, Decision, EP 724 (Sub-No. 4). Ex parte
so that all possible environmental whichever occurs first. In informal communications in informal rulemaking
information, issues, and points of view rulemaking proceedings, except as proceedings that occur outside of the
will come before the agency.’’ San provided in the new paragraph (g), permitted meeting period, that occur
Jacinto Rail Ltd. Constr. Exemption & discussed in more detail below, the with Board staff where such
BNSF Operation Exemption—Build-Out prohibitions on ex parte participation has not been delegated, or
to the Bayport Loop Near Houston, communications would apply when the that do not comply with the required
Harris Cty., Tex., FD 34079, slip op. at Board issues an NPRM. disclosure requirements would be
3 (STB served Dec. 3, 2002) (finding that The Board also proposes to clarify subject to the sanctions provided in
a letter sent as part of the environmental that ex parte prohibitions in covered paragraph (f). To schedule meetings,
review process did not constitute an ex proceedings remain in effect until the parties should contact the Board’s Office
parte communication). Accordingly, the proceeding is no longer subject to of Public Assistance, Governmental
Board proposes to clarify that administrative reconsideration under 49 Affairs, and Compliance at (202) 245–
communications related solely to the U.S.C. 1322(c) or judicial review. 0238 or the Board Member office with
preparation of environmental review Procedures Upon Receipt of Prohibited whom the meeting is requested, unless
documents, such as Environmental Ex Parte Communications otherwise specified by the Board.
Impact Statements and Environmental As discussed in more detail above,
Assessments, are not ex parte The Board proposes revisions to prompt and effective disclosure of ex
communications. In addition, once a paragraphs (e) and (f), which entail the parte communications in informal
Board decision has been appealed in procedures required of Board Members rulemaking proceedings would balance
court, it is both necessary and proper for and employees upon receipt of the Board’s desire to obtain more
there to be communication between the prohibited ex parte communications stakeholder input through informal
agency and other litigants concerning and sanctions, to reflect the fact that interactions while ensuring
litigation issues. some ex parte communications would transparency and fairness. Accordingly,
Lastly, paragraph (b)(1) of the current be permissible under the revised the proposed rules would require that
regulation permits any communication regulation. First, the proposed rules the substance of each ex parte meeting
‘‘to which all the parties to the would clarify that the procedures in be disclosed by the Board by posting in
proceeding agree.’’ The Board proposes paragraphs (e)(1) and (2) apply to ‘‘[a]ny the docket of the proceeding a written
to modify the existing regulations to Board Member, hearing officer or Board meeting summary of the arguments,
remove this language because, as noted employee’’ who receives an ex parte information, and data presented at each
above, the Board believes it is more communication. Second, the procedures meeting and a copy of any handouts
appropriate for the Board, rather than set forth in existing paragraphs (e) and given or presented. The meeting
other parties, to determine whether to (f) would now apply only to summary would also disclose basic
permit ex parte communications. communications not otherwise information about the meeting including
permitted by the regulation. Lastly, the the date and location of the ex parte
Communications That Are Prohibited Board proposes to amend the provision communication (or means of
The Board proposes to make changes in paragraph (e)(1), which requires the communication in the case of telephone
in paragraph (c) that either clarify the Chief of the Office of Proceedings’ calls or video-conferencing) and a list of
existing regulations or modify them to Section of Administration to place any attendees/participants.
reflect that some ex parte written communication or a written The proposed rules would also
communications, such as those in summary of an oral communication not provide that the meeting summaries be
informal rulemakings, would be permitted by these regulations in the sufficiently detailed to describe the
permitted under the proposed public correspondence file, to also substance of the ex parte
amendments. require that such placements be made communication. The Board’s intent is to
In paragraph (c)(1), the Board ‘‘promptly’’ and contain a label create a requirement that ensures that
proposes to add an introductory clause, indicating that the prohibited ex parte summaries are not merely lists of the
‘‘[e]xcept to the extent permitted by communication is not part of the topics discussed but rather contain the
these rules’’ to reflect the fact that the decisional record of the proceeding. arguments made and information
revised rules would govern, but not presented. The proposed rules provide
entirely prohibit, ex parte Ex Parte Communications in Informal that presenters may be required to
communications. Rulemaking Proceedings resubmit summaries that are
The Board also proposes to amend The Board proposes to add a new insufficiently detailed or that contain
paragraph (d) to clarify when the ex paragraph (g) specifically governing ex inaccuracies as to the substance of the
sradovich on DSK3GMQ082PROD with PROPOSALS
parte prohibitions take effect. The parte communications in informal presentation, thus ensuring that the
language of the existing regulations ties rulemaking proceedings that occur Board attendees at the meeting retain
ex parte communications governance to following the issuance of an NPRM, at the responsibility of adequate
the noticing for oral hearing or the which point disclosure requirements disclosure, as recommended by ACUS.
taking of evidence by modified would attach. Under the proposed rule, It is the Board’s preliminary view that
procedure. The Board believes that more ex parte communications with Board stakeholders do not need further formal
general ‘‘docketing’’ triggers would Members in informal rulemaking instructions in order to provide
better reflect the various ways Board proceedings following the issuance of appropriately detailed summaries, but
VerDate Sep<11>2014 16:16 Sep 29, 2017 Jkt 244001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 E:\FR\FM\02OCP1.SGM 02OCP1](https://thefederalregister.org/doc/82_FR_45960/page/6.svg)
![Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 45779
after the issuance of a notice of (iii) If a single meeting includes threatened species under the
proposed rulemaking and until 20 days presentations from multiple parties, Endangered Species Act of 1973, as
before the deadline for reply comments counsel, or persons, a single summary amended (Act). Consequently, we, the
set forth in the notice of proposed may be submitted so long as all U.S. Fish and Wildlife Service (Service),
rulemaking, unless otherwise specified presenters agree to the form and content propose to remove (delist) Astragalus
by the Board in procedural orders of the summary. desereticus from the Federal List of
governing the proceeding. The Board (iv) If a memorandum, including any Endangered and Threatened Plants
may delegate its participation in such ex attachments, contains information that (List). This determination is based on a
parte communications to Board staff. All the presenter asserts is confidential, the thorough review of all available
such ex parte communications must be presenter must submit a public version information, which indicates that this
disclosed in accordance with paragraph and a confidential version of the species’ population is much greater than
(g)(4) of this section. Any person who memorandum. If there is no existing was known at the time of listing in 1999
engages in such ex parte protective order governing the and that threats to this species have
communications must comply with any proceeding, the presenter must, at the been sufficiently minimized. This
schedule and additional instructions same time the presenter submits its document also serves as the 12-month
provided by the Board in the public and redacted memoranda, file a finding on a petition to remove this
proceeding. Communications that do request with the Board seeking such an species from the List. We are seeking
not comply with this section or with the order pursuant to § 1104.14 of this information, data, and comments from
schedule and instructions established in chapter. the public on the proposed rule to
the proceeding are not permitted and (v) Memoranda must be submitted to remove the Astragalus desereticus from
are subject to the procedures and the Board in the manner prescribed no the List.
sanctions in paragraphs (e) and (f) of later than two business days after the ex DATES: We will accept comments
this section. parte communication. received or postmarked on or before
(2) To schedule ex parte meetings (vi) Ex parte memoranda submitted December 1, 2017. Comments submitted
permitted under paragraph (g)(1) of this under this section will be posted on the electronically using the Federal
section, parties should contact the Board’s Web site in the docket for the eRulemaking Portal (see ADDRESSES
Board’s Office of Public Assistance, informal rulemaking proceeding within below), must be received by 11:59 p.m.
Governmental Affairs, and Compliance seven days of submission. If a presenter Eastern Time on the closing date. We
or the Board Member office with whom has requested confidential treatment for must receive requests for public
the meeting is requested, unless all or part of a memorandum, only the hearings, in writing, at the address
otherwise specified by the Board. public version will appear on the shown in the FOR FURTHER INFORMATION
(3) Parties seeking to present Board’s Web site. Persons seeking access CONTACT section by November 16, 2017.
confidential information during an ex to the confidential version must do so ADDRESSES: You may submit written
parte communication must inform the pursuant to the protective order comments on the proposed rule and the
Board of the confidentiality of the governing the proceeding. draft post-delisting monitoring plan by
information at the time of the [FR Doc. 2017–21093 Filed 9–29–17; 8:45 am] one of the following methods:
presentation and must comply with the BILLING CODE 4915–01–P • Electronically: Go to the Federal
disclosure requirements in paragraph eRulemaking Portal: http://
(g)(4)(iv) of this section. www.regulations.gov. In the Search box,
(4) The following disclosure DEPARTMENT OF THE INTERIOR enter Docket No. FWS–R6–ES–2016–
requirements apply to ex parte 0013, which is the docket number for
communications permitted under Fish and Wildlife Service this rulemaking. Then, click on the
paragraph (g)(1) of this section: Search button. On the resulting page, in
(i) Any person who engages in ex 50 CFR Part 17 the Search panel on the left side of the
parte communications in an informal [Docket No. FWS–R6–ES–2016–0013: screen, under the Document Type
rulemaking proceeding shall submit to FXES11130900000C6–178–FF09E30000] heading, click on the Proposed Rules
the Board Member office or delegated link to locate this document. You may
Board staff with whom the meeting was RIN 1018–BB41 submit a comment by clicking on the
held a memorandum that states the date blue ‘‘Comment Now!’’ box. If your
and location of the communication; lists Endangered and Threatened Wildlife
and Plants; Removing Astragalus comments will fit in the provided
the names and titles of all persons who comment box, please use this feature of
attended (including via phone or video) desereticus (Deseret Milkvetch) From
the Federal List of Endangered and http://www.regulations.gov, as it is most
or otherwise participated in the meeting compatible with our comment review
during which the ex parte Threatened Plants
procedures. If you attach your
communication occurred; and AGENCY: Fish and Wildlife Service, comments as a separate document, our
summarizes the data and arguments Interior. preferred file format is Microsoft Word.
presented during the ex parte ACTION: Proposed rule and 12-month If you attach multiple comments (such
communication. Any written or petition finding; request for comments. as form letters), our preferred formation
electronic material shown or given to is a spreadsheet in Microsoft Excel.
Board Members or Board staff during SUMMARY: The best available scientific • By hard copy: Submit by U.S. mail
sradovich on DSK3GMQ082PROD with PROPOSALS
the meeting must be attached to the and commercial data indicate that or hand-delivery to: Public Comments
memorandum. threats to Astragalus desereticus Processing, Attn: FWS–6–ES–2016–
(ii) Memoranda must be sufficiently (Deseret milkvetch) identified at the 0013; U.S. Fish and Wildlife Service;
detailed to describe the substance of the time of listing in 1999 are not as MS: BPHC; 5275 Leesburg Pike, Falls
presentation. Board Members or Board significant as originally anticipated and Church, VA 22041–3803.
staff may ask presenters to resubmit are being adequately managed. We request that you submit written
memoranda that are not sufficiently Therefore, the species no longer meets comments only by the methods
detailed. the definition of an endangered or described above. We will post all
VerDate Sep<11>2014 16:16 Sep 29, 2017 Jkt 244001 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 E:\FR\FM\02OCP1.SGM 02OCP1](https://thefederalregister.org/doc/82_FR_45960/page/9.svg)
Document Created: 2017-09-30 04:41:33
Document Modified: 2017-09-30 04:41:33
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of Proposed Rulemaking. | |
| Dates | Comments are due by November 1, 2017. Replies are due by November 16, 2017. | |
| Contact | Jonathon Binet at (202) 245-0368. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339. | |
| FR Citation | 82 FR 45771 |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR