Federal Register Vol. 82, No.189,

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0814; Product Identifier 2017-NM-066-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this NPRM.

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a final rule titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, that rule included Amendment 21-78, which established Special Federal Aviation Regulation No. 88 (“SFAR 88”) at 14 CFR part 21. Subsequently, SFAR 88 was amended by: Amendment 21-82 (67 FR 57490, September 10, 2002; corrected at 67 FR 70809, November 26, 2002) and Amendment 21-83 (67 FR 72830, December 9, 2002; corrected at 68 FR 37735, June 25, 2003, to change “21-82” to “21-83”).

Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the final rule published on May 7, 2001, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with another latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

We issued AD 2008-10-10 R1, Amendment 39-16164 (75 FR 1529, January 12, 2010) (“AD 2008-10-10 R1”), which applies to certain The Boeing Company Model 737-600, -700, -700C, -800, and -900 series airplanes. AD 2008-10-10 R1 requires incorporation of fuel system AWLs and also requires an initial inspection to phase in certain repetitive inspections, and repair if necessary. The fuel system AWLs were developed to satisfy SFAR 88 requirements and included in the Airworthiness Limitations Section (ALS) of the manufacturer's Instructions for Continued Airworthiness. Since we issued AD 2008-10-10 R1, the ALS has been significantly revised by the manufacturer to correct technical and editorial errors and also to add new requirements. Those changes affect the fuel system and nitrogen generation system AWLs. We have determined that the specific revisions of the ALS mandated by AD 2008-10-10 R1, and the revisions of the ALS that have been delivered with airplanes as part of the type design and airworthiness certificate, on or after March 31, 2006 (see paragraph (c), “Applicability,” of AD 2008-10-10 R1, which applied to airplanes with an original standard airworthiness certificate or original export certificate of airworthiness issued before March 31, 2006), are inadequate to provide information necessary to maintain critical design features and perform inspections.

We propose to adopt this new AD to require revising the maintenance or inspection program, as applicable, to incorporate the AWLs provided in Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, dated January 2017 (the latest revision of the ALS). We are proposing this AD to prevent the potential for ignition sources inside the fuel tanks and also to prevent increasing the flammability exposure of the center fuel tank caused by latent failures, alterations, repairs, or maintenance actions, which could result in a fuel tank explosion and consequent loss of an airplane.

We have determined that accomplishing the revision required by paragraph (g) of this proposed AD would terminate the following requirements for that airplane:

• All requirements of AD 2008-10-10 R1.

• The revision required by paragraphs (h) and (h)(1) of AD 2008-06-03, Amendment 39-15415 (73 FR 13081, March 12, 2008).

• The revision required by paragraph (g) of AD 2008-17-15, Amendment 39-15653 (73 FR 50714, August 28, 2008).

• The revision required by paragraph (k) of AD 2011-18-03, Amendment 39-16785 (76 FR 53317, August 26, 2011).

• All requirements of AD 2013-15-17, Amendment 39-17533 (78 FR 52838, August 27, 2013).

The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of the Airworthiness Limitations section (ALS) of the Instructions for Continued Airworthiness (ICA) into an operator's maintenance or inspection program.

U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 91.403(c), unless an alternative has been approved by the FAA.

When a type certificate is issued for a type design, the specific ALS, including its revision level, is part of that type design, as specified in 14 CFR 21.31(c).

The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS revision defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD if the AD requires a specific ALS revision for new airplanes that are delivered with a later ALS revision as part of their type design.

The FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This enables the operator to comply with both the AD and the type design.

However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to help standardize the maintenance of the fleet. To ensure that operators comply with the applicable ALS revision for newly delivered airplanes containing a later revision than that specified in an AD, we plan to mandate the latest ALS revision as of the effective date of an AD, if we are to mandate a specific ALS revision, and limit the applicability to those airplanes delivered on or before the effective date of that AD.

This proposed AD therefore mandates the latest ALS revision as of the effective date of the AD for Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued on or before the effective date of the AD. Operators of airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after that date must comply with the airworthiness limitations specified as part of the approved type design.

We reviewed Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, dated January 2017. This service information describes AWLs that include airworthiness limitation instructions (ALI) and critical design configuration control limitations (CDCCL) tasks related to fuel tank ignition prevention and the nitrogen generation system. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require revisions to certain operator maintenance documents to include new actions (e.g., inspections) and CDCCLs. Compliance with these actions and CDCCLs is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (k) of this proposed AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.

Notwithstanding any other maintenance or operational requirements, components that have been identified as airworthy or installed on the affected airplanes before accomplishing the revision of the airplane maintenance or inspection program specified in this proposed AD do not need to be reworked in accordance with the latest revision of the CDCCLs specified by this proposed AD for incorporation. However, once the airplane maintenance or inspection program has been revised as required by this proposed AD, future maintenance actions on these components must be done in accordance with the CDCCLs specified by this proposed AD.

The “description” column of AWL No. 28-AWL-20 identifies certain operational tests. However, airplanes on which the actions specified in paragraph (g)(2)(ii) of AD 2011-20-07 have been done are not required to do the operational test for left center tank fuel boost pump relay R54 and right center tank fuel boost pump relay R55.

Paragraph (g) of this proposed AD would require operators to revise their maintenance or inspection program by incorporating, in part, AWL No. 28-AWL-05, “Wire Separation Requirements for New Wiring Installed in Proximity to Wiring That Goes Into the Fuel Tanks” in Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, dated January 2017. Paragraph (h) of this proposed AD would allow certain changes to be made to the requirements specified in AWL No. 28-AWL-05 as an option.

The “applicability” column of AWL No. 28-AWL-19 identifies affected airplanes. For airplanes on which the actions specified in paragraph (s) of AD 2011-18-03 have been done, incorporation of Boeing Service Bulletin 737-28A1206 is not required. Therefore, those airplanes are not affected by AWL No. 28-AWL-19 and are not required to do the functional test.

The “applicability” column of AWL No. 28-AWL-23 identifies affected airplanes. For airplanes on which the actions specified in paragraph (s) of AD 2011-18-03 have been done, incorporation of Boeing Service Bulletin 737-28A1248 is not required. Therefore, those airplanes are not affected by AWL No. 28-AWL-23 and are not required to do the functional test.

The FAA has previously issued AMOC approvals for compliance with paragraph (g)(3) of AD 2008-10-10 R1 to allow operators to incorporate alternative versions of AWL No. 28-AWL-05. AWL No. 28-AWL-05 includes the requirements for new wiring introduced by any alterations or changes to the type design, including STC modifications, in proximity to wiring that penetrates the fuel tank wall. Certain STCs that introduced new wiring near the fuel quantity indicating system (FQIS) wiring utilized design features that were different from the critical design features for fuel tank ignition prevention specified in the AD-mandated version of AWL No. 28-AWL-05. For those STCs, we have approved alternative versions of AWL No. 28-AWL-05 that specified critical design features associated with STC modifications. We have determined that certain critical design features specified in the AMOC-approved versions of AWL No. 28-AWL-05 are not acceptable to meet the intent of this AWL. Therefore, this proposed AD does not allow credit for AMOCs previously approved under AD 2008-10-10 R1. However, based on our assessment of critical design features, we have provided an optional action under paragraph (h) of this proposed AD to allow certain changes to be made to the requirements specified in AWL No. 28-AWL-05. Under this optional action, certain critical design features we have previously approved and consider to be acceptable can be specified in AWL No. 28-AWL-05.

The requirements for new wiring versus existing wiring are specified in AWL No. 28-AWL-05. Based on these requirements, any STC modifications that are installed after the incorporation of AWL No. 28-AWL-05 (version required by paragraph (g) of this AD) must comply with AWL No. 28-AWL-05, including any mandatory rework, or the operator must request approval of an AMOC according to paragraph (k) of this proposed AD. Any STC modifications that are installed prior to the incorporation of AWL No. 28-AWL-05 (version required by paragraph (g) of this AD) are not required to be reworked for compliance with the new wiring requirements of AWL No. 28-AWL-05, except that future repair and replacement of existing wiring must follow AWL No. 28-AWL-05.

We estimate that this proposed AD affects 1,417 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would remove Class E airspace extending upward from 700 feet above the surface at Maryland State Police Trooper 6 Heliport, Centerville, MD, due to the closing of the heliport.

Comments Invited

Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2017-0822; Airspace Docket No. 17-AEA-10) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2014-0822; Airspace Docket No. 17-AEA-10.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded from and comments submitted through http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, Georgia 30337.

This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is considering an amendment to title 14, Code of Federal Regulations (14 CFR) part 71 to remove Class E airspace extending upward from 700 feet above the surface at Maryland State Police Trooper 6 Heliport, Centerville, MD. The heliport has moved to a new location. Therefore, the airspace is no longer necessary at this site.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would remove Class E airspace extending upward from 700 feet above the surface at Carter Airport, Pulaski, WI.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-0818/Airspace Docket No. 17-AGL-19.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 by removing the Class E airspace area extending upward from 700 feet above the surface within a 6.9-mile radius of Carter Airport, Pulaski, WI.

This action is necessary due to the cancellation of the instrument procedures at Carter Airport. The removal of these procedures would result in the airport no longer qualifying for controlled airspace.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

DOT Responsibilities for Regulations and Transportation Infrastructure

The Department carries out its responsibilities through the Office of the Secretary (OST) and the following operating administrations (OAs): Federal Aviation Administration (FAA); Federal Highway Administration (FHWA); Federal Motor Carrier Safety Administration (FMCSA); Federal Railroad Administration (FRA); Federal Transit Administration (FTA); Maritime Administration (MARAD); National Highway Traffic Safety Administration (NHTSA); Pipeline and Hazardous Materials Safety Administration; (PHMSA); and St. Lawrence Seaway Development Corporation (SLSDC).

DOT has statutory responsibility for a wide range of regulations. For example, DOT regulates safety in the aviation, motor carrier, railroad, motor vehicle, commercial space, transit, and pipeline transportation areas. The Department also regulates aviation consumer and economic issues, and provides financial assistance and writes the necessary implementing rules for programs involving highways, airports, mass transit, the maritime industry, railroads, and motor transportation and vehicle safety. Finally, DOT has responsibility for developing policies that implement a wide range of regulations that govern programs such as acquisition and grants management, access for people with disabilities, environmental protection, energy conservation, information technology, occupational safety and health, property asset management, seismic safety, security, and the use of aircraft and vehicles.

Improvement of regulations is a continuous focus for the Department. There should be no more regulations than necessary, and those regulations should be straightforward, clear, and designed to minimize burdens. Further, DOT regulations and other agency actions should not unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources. Once issued, regulations and other agency actions should be reviewed periodically and revised to ensure that they continue to meet the needs for which they originally were designed, remain cost-effective and cost-justified. Further, regulations and other agency actions should promote clean and safe development of our Nation's vast energy resources, while avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.

Accordingly, DOT regularly makes a conscientious effort to review its rules in accordance with the Department's 1979 Regulatory Policies and Procedures (44 FR 11034, Feb. 26, 1979), Executive Order (E.O.) 12866, E.O. 13563, and section 610 of the Regulatory Flexibility Act. The Department follows a repeating 10-year plan for the review of existing regulations, which is set forth in the Department's semi-annual Regulatory Agenda published in the Federal Register (see Appendix D to “Department Regulatory Agenda; Semiannual Summary” most recently issued on July 20, 2017). The reviews conducted under this plan comply with section 610 of the Regulatory Flexibility Act. OST and OAs other than the Saint Lawrence Seaway Development Corporation (SLSDC) have also elected to use this repeating 10-year plan to comply with the review requirements of the Department's Regulatory Policies and Procedures and E.O. 12866. SLSDC does not follow this practice because the agency is responsible for only a small number of regulations that were reviewed in 2009. Generally, the OAs have divided their rules into 10 different groups and analyze one group each year, then start over again. The Department regularly invites public participation in those reviews and seeks general suggestions on rules that it should revise or revoke. In the fall Regulatory Agenda, the Department publishes information on the results of the examinations completed during the previous year.

Through three new E.O.s, President Trump directed agencies to further scrutinize their regulations and other agency actions. On January 30, 2017, President Trump signed E.O. 13771, Reducing Regulation and Controlling Regulatory Costs. Under Section 2(a) of the E.O., unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it must identify at least two existing regulations to be repealed.

On February 24, 2017, President Trump signed E.O. 13777, Enforcing the Regulatory Reform Agenda. Under this Executive Order, each agency must establish a Regulatory Reform Task Force (RRTF) to evaluate existing regulations, and make recommendations for their repeal, replacement, or modification. As part of this process, the Department is directed to seek input/assistance from entities significantly affected by its regulations.

On March 28, 2017, President Trump signed E.O. 13783, Promoting Energy Independence and Economic Growth. Section 2 of E.O. 13783 requires agencies to review all existing regulations, orders, guidance documents, policies, and other similar agency actions that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. This review will result in a final report that describes the result of the required review and includes specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency actions that burden domestic energy production. E.O. 13783 also requires that, for any specific recommendations made in the final report, the agency suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding those actions, as appropriate and consistent with law.

To respond to the President's direction in E.O. 13771, E.O. 13777, and E.O. 13783, as well as other legal authorities, the Department seeks written input from the public on existing regulations and other agency actions that are good candidates for repeal, replacement, or modification. In addition to accepting written comments, the Department may hold a public meeting. In recognition of the fact that safety is the Department's highest priority, the Department seeks comments on those existing regulations and other agency actions that may be repealed, replaced, or modified without compromising safety. The public is encouraged to identify regulations that (a) eliminate jobs or inhibit job creation; (b) are outdated, unnecessary, or ineffective; (c) impose costs that exceed benefits; (d) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; (e) could be revised to use performance standards in lieu of design standards, or (f) potentially burden the development or use of domestically produced energy resources. The Department welcomes public comment on any and all of its regulations and other agency actions, although rules that impose significant costs on the public may provide greater opportunity for identifying and alleviating unnecessary burdens. For convenience, a list of economically significant rulemakings issued over the past several years is included in Appendix A.

When identifying regulations and other agency actions appropriate for suspension, repeal, replacement, or modification, the public is encouraged to consider whether there is an opportunity to: (1) Simplify or clarify language in a regulation; (2) eliminate overlapping and duplicative regulations, including those that require repetitive filings for conducting business with the Department; (3) eliminate conflicts and inconsistencies in the Department's regulations and those of its agencies; (4) eliminate conflicts and inconsistencies with the rules of other Federal agencies or state, local, or tribal governments, (5) determine if matters in an existing regulation could be better handled fully by the states without Federal regulations; (6) revise regulations in which technology, economic conditions or other factors have changed in the area affected by the regulation; (7) reconsider regulations that were based on scientific or other information that has been discredited or superseded; (8) reconsider the burdens imposed on those directly or indirectly affected by the regulation and, specifically, those that are costly when compared to the benefit provided; (9) reconsider burdens imposed on small entities; (10) foster innovation by revising regulations to include performance standards for regulatory compliance; and (11) reduce burdens by incorporating international or industry consensus standards into regulations.

The Department will review all comments submitted timely to the docket associated with this regulatory review, DOT-OST-2017-0069. To maximize the usefulness of comments, the Department encourages commenters to provide the following information:

1. Specific reference. A specific reference to the policy statement, guidance document, regulation, or other agency action that imposes the burden that the comment discusses. This should be a citation to the Code of Federal Regulations, a guidance document number, or an Internet link. A specific reference will assist the Department in identifying the requirement, the original source of the requirement, and relevant documentation that may describe the history and effects of the requirement.

2. Description of burden. A description of the burden that the identified policy statement, guidance document, regulation, or other agency action imposes. A comment that describes how the policy statement, guidance document, regulation, or other agency action is burdensome is more useful than a comment that merely asserts that it is burdensome. Comments that reflect experience with the requirement and provide data describing that experience are more credible than comments that are not tied to direct experience. Verifiable, quantifiable data describing burdens are more useful than anecdotal descriptions.

3. Description of less burdensome alternatives. If the commenter believes that the objective that motivated the policy statement, guidance document, regulation, or other agency action may be achieved using a less burdensome alternative, the commenter should describe that alternative in detail. Likewise, if the commenter believes that there is not a less burdensome alternative or there is not a legitimate objective motivating the requirement, then that should be explained in the comment.

4. Examples of affected entities or projects. Examples of entities that are, have been, or will be negatively affected by the identified policy statement, guidance document, regulation, or other agency action and examples of entities that will benefit it the requirement is removed or revised. A comment listing specific entities is more useful because it will assist the Department in investigating the burden and how it may be most effectively addressed.

The Department is interested in comments on any DOT regulation or other agency action that imposes unjustifiable burdens on regulated entities or on the use or production of domestic energy resources.

Table of Contents I. Background II. Description of the Proposed Rule III. Proposed Compliance Dates IV. Economic Analysis of Impacts V. Analysis of Environmental Impact VI. Paperwork Reduction Act of 1995 VII. Federalism VIII. References I. Background

In the Federal Register of May 27, 2016 (81 FR 33742 and 81 FR 34000), we published two final rules entitled “Food Labeling: Revision of the Nutrition and Supplement Facts Labels” (the Nutrition Facts Label Final Rule) and “Food Labeling: Serving Sizes of Foods That Can Reasonably Be Consumed At One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments” (the Serving Size Final Rule). The Nutrition Facts Label Final Rule revises the Nutrition Facts label by:

• Removing the declaration of “Calories from fat” because current science supports a view that the type of fat is more relevant than overall total fat intake in increased risk of chronic diseases;

• Requiring the declaration of the gram amount of “Added Sugars” in a serving of a product, establishing a Daily Reference Value (DRV), and requiring the percent Daily Value (DV) declaration for added sugars;

• Changing “Sugars” to “Total Sugars” and requiring that “Includes ‘X’ g Added Sugars” be indented and declared directly below “Total Sugars” on the label;

• Updating the list of vitamins and minerals of public health significance. For example, the Nutrition Facts Label Final Rule requires the declaration of vitamin D and potassium and permits, rather than requires, the declaration of vitamins A and C;

• Updating certain reference values used in the declaration of percent DVs of nutrients on the Nutrition Facts and Supplement Facts labels;

• Revising the format of the Nutrition Facts and Supplement Facts labels to increase the prominence of the term “Calories;”

• Removing the requirement for the footnote table listing the reference values for certain nutrients for 2,000 and 2,500 calorie diets; and

• Requiring the maintenance of records to support the declarations of certain nutrients under specified circumstances.

The Serving Size Final Rule requires all containers, including containers of products with “large” RACCs (i.e., products with RACCs of at least 100 grams (g) or 100 milliliters (mL)), containing less than 200 percent of the RACC to be labeled as a single-serving container. Except for when certain exceptions apply, the Serving Size Final Rule further requires that containers and units that contain at least 200 percent and up to and including 300 percent of the RACC be labeled with a column of nutrition information within the Nutrition Facts label that lists the quantitative amounts and percent DVs for the entire container, in addition to the required column listing the quantitative amounts and percent DVs for a serving that is less than the entire container (i.e., the serving size derived from the RACC). The Serving Size Final Rule also updates, modifies, and establishes RACCs for certain foods and product categories.

We are proposing to extend the compliance date for manufacturers with $10 million or more in annual food sales in the final rules published on May 27, 2016, from July 26, 2018, to January 1, 2020, and the compliance date for manufacturers with less than $10 million in annual food sales in the final rules published on May 27, 2016, from July 26, 2019, to January 1, 2021.

We emphasize that this proposed rule would only extend the compliance dates. Therefore, comments to this proposed rule should pertain to the extension of the compliance dates only. We are proposing to extend the compliance dates for the Nutrition Facts Label Final Rule and the Serving Size Final Rule, consistent with our authority in sections 403(q) and 701(a) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 343(q) and 371(a), respectively).

This proposed rule would extend the compliance date for manufacturers with $10 million or more in annual food sales in the final rules published on May 27, 2016, from July 26, 2018, to January 1, 2020, and the compliance date for manufacturers with less than $10 million in annual food sales in the final rules published on May 27, 2016, from July 26, 2019, to January 1, 2021. We are taking this action because, after careful consideration, we have tentatively determined that additional time would help ensure that all manufacturers covered by the rules have guidance from FDA to address, for example, certain technical questions we received after publication of the final rules (see Docket No. FDA-2016-D-4414 (pertaining to a draft guidance entitled “Questions and Answers on the Nutrition and Supplement Facts Labels Related to the Compliance Date, Added Sugars, and Declaration of Quantitative Amounts of Vitamins and Minerals: Guidance for Industry”)), and that they are able to complete and print updated Nutrition Facts labels for their products before they are expected to be in compliance with the rules. Companies and trade associations with members covered by the rules have informed us that they have significant concerns about their ability to update all their labels by the compliance dates due to issues regarding (among other things) the need for upgrades to labeling software, the need to obtain nutrition information from suppliers, the number of products that would need new labels, and a limited time for reformulation of products. Consequently, we are proposing to extend the compliance dates to provide more time to comply with the Nutrition Facts Label and the Serving Size Final Rules. We propose extending the compliance date by approximately 1.5 years for both categories of manufacturers as a means to balance the importance of ensuring that industry has sufficient time to comply with complex new requirements, and the importance of decreasing costs, against the importance of minimizing the transition period during which consumers will see both the old and the new versions of the label in the marketplace.

We are taking this action consistent with Executive Orders 13771 and 13563 and in response to the continued concern that companies and trade associations have shared with us regarding the time needed for implementation of the final rules and the need for FDA to provide further guidance to manufacturers subject to the final rules. Consistent with the policies set forth in these executive orders with respect to reducing burdens, reducing costs, maintaining flexibility, and improving effectiveness, we are therefore proposing to extend the compliance date for manufacturers with $10 million or more in annual food sales to January 1, 2020, and the compliance date for manufacturers with less than $10 million in annual food sales to January 1, 2021.

Our goal is to complete this rulemaking as quickly as possible. However, we are aware that firms are working under the current compliance dates to come into compliance. Pending completion of this rulemaking, we intend to exercise enforcement discretion with respect to the current July 26, 2018, and July 26, 2019, compliance dates.

We have examined the impacts of this proposed rule under Executive Order 12866, Executive Order 13563, Executive Order 13771, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 13771 requires that the costs associated with significant new regulations “shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” We believe that this proposed rule is a significant regulatory action as defined by Executive Order 12866.

Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. Section 2(a) of Executive Order 13771 requires an Agency, unless prohibited by law, to identify at least two existing regulations to be repealed when the Agency publicly proposes for notice and comment or otherwise promulgates a new regulation. In furtherance of this requirement, section 2(c) of Executive Order 13771 requires that the new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. This proposed rule is expected to be an Executive Order 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis.

The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities when “the agency publishes a general notice of proposed rulemaking” (5 U.S.C. 601(2)). We have analyzed the proposed rule under the Regulatory Flexibility Act and propose to certify that, because the proposed rule only would extend the compliance dates for the Nutrition Facts Label and Serving Size Final Rules, the proposed rule would not have a significant economic impact on a substantial number of small entities.

The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $148 million, using the 2016 Implicit Price Deflator for the Gross Domestic Product. We have determined that the proposed rule would not result in any expenditure by industry in any year that meets or exceeds this amount.

The principal benefit of this proposed rule to extend the compliance dates is the reduction in the costs to industry of meeting the compliance dates of the Nutrition Facts Label Final Rule and the Serving Size Final Rule. This reduction in costs can be attributed to a reduction in the relabeling and reformulation costs of the Nutrition Facts Label and Serving Size Final Rules. We estimate that, at the mean, the present value of the benefits (i.e., cost savings) of this proposed rule to extend the compliance dates over the next 20 years is $1.0 billion using either a 3 percent or 7 percent discount rate (2016$). This is illustrated in table 1. Extending the compliance dates by approximately 1.5 years would reduce the estimated benefits of the Nutrition Facts Label and Serving Size Final Rules because it would delay the realization by consumers of the full annual welfare gains of the Nutrition Facts Label and Serving Size Final Rules. More specifically, an extension of the compliance dates would delay the incorporation of the provisions of the Nutrition Facts Label and Serving Size Final Rules by food manufacturers into their products. We estimate that, at the mean, the present value of the forgone benefits of this proposed rule to extend the compliance dates over the next 20 years is $0.9 billion using either a 3 percent or 7 percent discount rate (2016$). This is also presented in table 1. We estimate that, at the mean, the present value of the net benefits (that is, cost savings minus forgone benefits) of this proposed rule to extend the compliance dates over the next 20 years is $0.1 billion using either a 3 percent or 7 percent discount rate (2016$). This is shown in table 1.

For purposes of this analysis, we use the same methodology for estimating costs and benefits that we used in the original Regulatory Impact Analysis for the Final Rules. We previously acknowledged potential shortcomings with that approach (see 2016 Regulatory Impact Analysis at 79 n.34) but have not received comments about ways to improve that analysis. We thus follow the same basic approach here.

The full analysis of economic impacts is available in the docket for this proposed rule (Ref. 1) and at https://www.fda.gov/AboutFDA/ReportsManualsForms/Reports/EconomicAnalyses.

We have determined under 21 CFR 25.30(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This proposed rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

We have analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. Section 4(a) of the Executive Order requires Agencies to “construe * * * a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.” Section 403A of the FD&C Act (21 U.S.C. 343-1) is an express preemption provision. Section 403A(a) of the FD&C Act provides that: “* * * no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce—(4) any requirement for nutrition labeling of food that is not identical to the requirement of section 403(q) * * *.” The express preemption provision of section 403A(a) of the FD&C Act does not preempt any State or local requirement respecting a statement in the labeling of food that provides for a warning concerning the safety of the food or component of the food (section 6(c)(2) of the Nutrition Labeling and Education Act of 1990, Pub. L. 101-535, 104 Stat. 2353, 2364 (1990)). If this proposed rule is made final, the final rule would create requirements that fall within the scope of section 403A(a) of the FD&C Act.

The following reference is on display in the Dockets Management Staff (see ADDRESSES) and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is also available electronically at https://www.regulations.gov. FDA has verified the Web site addresses, as of the date this document publishes in the Federal Register, but Web sites are subject to change over time.

Section 7301 of title 38, United States Code (U.S.C.), establishes the general functions of the Veterans Health Administration (VHA) within VA, and establishes that its primary function is to “provide a complete medical and hospital service for the medical care and treatment of veterans, as provided in this title and in regulations prescribed by the Secretary [of Veterans Affairs (Secretary)] pursuant to this title.” 38 U.S.C. 7301(b). In carrying out this function, VHA must ensure that patient care is appropriate and safe and its health care providers meet or exceed generally accepted professional standards for patient care. In addition, because VA is a national health care provider, VHA must ensure that beneficiaries receive the same high level of care and access to care no matter where, in a State, a beneficiary or health care provider is located at the time the health care is provided.

The Secretary is responsible for the proper execution and administration of all laws administered by the Department and for the control, direction, and management of the Department, including agency personnel and management matters. See 38 U.S.C. 303. To this end, Congress authorized the Secretary “to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws.” 38 U.S.C. 501(a). The Under Secretary for Health is directly responsible to the Secretary for the operation of VHA. 38 U.S.C. 305(b). Unless specifically otherwise provided, the Under Secretary for Health, as the head of VHA, is authorized to “prescribe all regulations necessary to the administration of the Veterans Health Administration,” subject to the approval of the Secretary. 38 U.S.C. 7304.

To allow VA to carry out its medical care mission, Congress also established a comprehensive personnel system for certain VA health care providers, independent of the civil service rules. See 38 U.S.C. chapters 73-74. Congress granted the Secretary express statutory authority to establish the qualifications for VA's health care providers, determine the hours and conditions of employment, take disciplinary action against employees, and otherwise regulate the professional activities of those individuals. 38 U.S.C. 7401-7464.

To be eligible for appointment as a VA employee in a health care position covered by section 7402(b) of title 38, U.S.C. (other than a medical facility Director appointed under section 7402(b)(4)), a person must, among other requirements, be licensed, registered, or certified to practice his or her profession in a State. The standards prescribed in section 7402(b) establish only the basic qualifications necessary “[t]o be eligible for appointment” and do not limit the Secretary or Under Secretary for Health from establishing other qualifications for appointment, or additional rules governing such personnel. In particular, section 7403(a)(1) provides that appointments under chapter 74 “may be made only after qualifications have been established in accordance with regulations prescribed by the Secretary, without regard to civil-service requirements.” Such authority is necessary to ensure the viability of our national health care system, which is designed to ensure the well-being of those who have “borne the battle.”

Just as it is critical to ensure there are qualified health care providers on-site at all VA medical facilities, VA must ensure that all beneficiaries, specifically including beneficiaries in remote, rural, or medically underserved areas, have the greatest possible access to mental health care, specialty care, and general clinical care. Thus, VA has developed a telehealth program as a modern, beneficiary- and family-centered health care delivery model that leverages information and telecommunication technologies to connect beneficiaries with health care providers, irrespective of the State or location within a State where the health care provider or the beneficiary is physically located at the time the health care is provided. Telehealth enhances VA's capacity to deliver essential and critical health care services to beneficiaries located in areas where health care providers may be unavailable or to beneficiaries who may be unable to travel to the nearest VA medical facility for care because of their medical conditions. Telehealth increases the accessibility of VA health care, bringing VA medical services to locations convenient for beneficiaries, including clinics in remote communities and beneficiaries' homes. By providing health care services by telehealth from one State to a beneficiary located in another State or within the same State, whether that beneficiary is located at a VA medical facility or in his or her own home, VA can use its limited health care resources most efficiently.

Congress has required other Departments and agencies to conduct telehealth programs. See, e.g., Public Law 114-328, sec. 718(a)(1) (“the Secretary of Defense shall incorporate, throughout the direct care and purchased care components of the military health system, the use of telehealth services”). While VA does not have an analogous mandate, several statutes confirm that Congress intends for VA to operate a national health care system for beneficiaries including through telehealth. Congress has required the Secretary “to carry out an initiative of teleconsultation for the provision of remote mental health and traumatic brain injury assessments in facilities of the Department that are not otherwise able to provide such assessments without contracting with third-party providers or reimbursing providers through a fee basis system.” 38 U.S.C. 1709A(a)(1). Congress has authorized the Secretary to “waive the imposition or collection of copayments for telehealth and telemedicine visits of veterans under the laws administered by the Secretary.” 38 U.S.C. 1722B. And, as recently as December 2016, Congress required VA to initiate a pilot program to provide veterans a self-scheduling, online appointment system; this pilot program must “support appointments for the provision of health care regardless of whether such care is provided in person or through telehealth services.” Public Law 114-286, sec. 3(a)(2).

As noted above, VA only has legal authority to hire health care providers who are licensed, registered, or certified in a State. To continue practicing in VA, providers must maintain those credentials in accordance with their health care specialty as stated in 38 U.S.C. 7402(b).

In an effort to furnish care to all beneficiaries and use its resources most efficiently, VA needs to operate its telehealth program with health care providers who will provide services via telehealth to beneficiaries in States in which they are not licensed, registered, certified, or located, or where they are not authorized to furnish care using telehealth. Currently, doing so may jeopardize these providers' credentials, including fines and imprisonment for unauthorized practice of medicine, because of conflicts between VA's need to provide telehealth across the VA system and some States' laws or licensure, registration, certification, or other requirements that restrict or limit the practice of telehealth. A number of States have already enacted legislation or regulations that restrict the practice of interstate telehealth, as discussed below in the Administrative Procedure Act section.

To protect VA health care providers from potential adverse actions by States, many VA medical centers (VAMC) are currently not expanding some critical telehealth services if the health care service is provided outside Federal property (such as when the beneficiary is receiving telehealth care in his or her home or when the VA provider is delivering telehealth care from his or her home) or across State lines. In addition, many individual VA health care providers refuse to practice telehealth because of concerns over States taking action against the health care provider's State license, State laws, or the shifting regulatory landscape that creates legal ambiguity and unacceptable State licensing risk. The current disparities between VA health care practice in telehealth and State laws have effectively stopped or inhibited VA's expansion of telehealth services to certain locations, thereby reducing the availability and accessibility of care for beneficiaries.

This proposed rulemaking would clarify that VA health care providers may exercise their authority to provide care through the use of telehealth, notwithstanding any State laws, rules, or licensure, registration, or certification requirements to the contrary. In so doing, VA would exercise Federal preemption of State licensure, registration, and certification laws, rules, regulations, or requirements to the extent such State laws conflict with the ability of VA health care providers to engage in the practice of telehealth while acting within the scope of their VA employment. Preemption would be the minimum necessary action for VA to furnish effectively telehealth services because it would be impractical for VA to lobby each State to remove its restrictions that impair VA's ability to furnish telehealth services to beneficiaries and then wait for the State to implement appropriate changes. That process would delay the growth of telehealth services in VA, thereby delaying delivery of health care to beneficiaries. It would be costly and time-consuming for VA and would not guarantee a successful result. We note that, apart from the limited action of authorizing telehealth across and within jurisdictions in furtherance of important Federal interests, this rulemaking would not expand the scope of practice for VA health care providers beyond what is statutorily defined in the laws and practice acts of the health care provider's state of licensure. That is, this rulemaking does not affect VA's existing requirement that all VA health care providers adhere to restrictions imposed by their State license, registration, or certification regarding the professional's authority to prescribe and administer controlled substances.

As VA's telehealth program expands and successfully provides increased access to high quality health care to all beneficiaries, it is increasingly important for VA health care providers to be able to practice telehealth across State lines and within states free of restrictions imposed by State law or regulations, including conditions attached to their State licenses. For fiscal year (FY) 2016, VA health care providers had 2.17 million telehealth episodes of health care (meaning a clinical encounter or a period of time in which care was monitored), which served over 702,000 veterans (approximately 12 percent of the total patient population), with 45 percent of those veterans living in rural communities. By increasing VA's capabilities to provide telehealth services, VA would be able to expand these services.

Eliminating veteran suicide and providing access to mental health care is VA's number one clinical priority, and this proposed rulemaking would improve VA's ability to reach its most vulnerable beneficiaries. Some mental health patients suffer from conditions, such as anxiety and agoraphobia, which make it incredibly difficult to leave their houses to receive necessary mental and general health care. Furthermore, some of our beneficiaries live in areas that are Federally designated as mental health provider shortage areas. Therefore, even if beneficiaries feel comfortable leaving their home to seek care, there may not be sufficient mental health care providers at a VA medical facility or in the community to address their health care needs. Given the difficulty in providing mental health care under these circumstances, the most practical way to consistently provide all VA beneficiaries with access to high-quality mental health care is through the telehealth program. The data collected in FY 2016 demonstrates that telehealth, particularly in the mental health context, improves patient care and improves patient outcomes. In FY 2016, there was a 31 percent decrease in VA hospital admissions for beneficiaries enrolled in the Home Telehealth monitoring program for non-institutional care needs and chronic care management. Also, beneficiaries who received mental health services through synchronous video telehealth in FY 2016 saw a reduction in the number of acute psychiatric VA bed days of care by 39 percent.

In addition, monitoring general medical conditions in the beneficiaries' home empowers beneficiaries to take a more active role in their overall health care without adding the stress of commuting to a medical facility to receive the same type of care. Telehealth is particularly important for beneficiaries with limited mobility, or for whom travel to a health care provider would be a personal hardship. For example, beneficiaries who have conditions such as a history of stroke, traumatic brain injuries, seizure disorders, and amyotrophic lateral sclerosis (ALS) may find it difficult to leave their home in order to receive much-needed health care. VA also is able to provide health care services to more beneficiaries in localities that are more convenient for them, which may lead to the beneficiary taking a more proactive approach to their care, thereby increasing the likelihood of positive clinical outcomes.

Other benefits of expanding VA telehealth include serving as a recruitment incentive for VA health care providers and allowing VA to address recruitment shortages in various parts of the country. For example, the Charleston, South Carolina VAMC serves as one of the VA's National TeleMental Health Hubs and provides mental health services to beneficiaries across eight States with a team of approximately 30 full-time health care providers. There are currently multiple vacancies for TeleMental Health psychiatrists at the Charleston Hub, and in the past six months, applicants have only expressed interest in telework positions. Several VA health care providers have also left their positions within the past year because they were seeking telework positions. If the health care providers were able to practice telehealth while working from VA-approved alternate worksites and still deliver the telehealth services where needed, the Charleston TeleMental Hub would be able to fill its vacancies and retain needed health care professionals.

These are just some examples of how expanding telehealth, and thereby expanding the locations where VA provides health care services, would allow VA to reach underserved areas or beneficiaries who are unable to travel, improving health outcomes for beneficiaries and allowing VA to better utilize its health care resources. For these reasons, VA proposes to establish a new regulation, 38 CFR 17.417 that would authorize VA health care providers to treat beneficiaries through telehealth irrespective of the location, in a State, of the VA health care provider or the beneficiary.

Proposed paragraph (a) of § 17.417 would contain the definitions that would apply to the new section. We would define the term “beneficiary” to mean “a veteran and any other individual receiving care under title 38 of the United States Code.” We would use this definition because VA provides health care to veterans, certain family members of veterans, servicemembers, and others. This is VA's standard use of this term.

We propose to define the term “health care provider” consistent with the qualifications of appointees within the Veterans Health Administration under 38 U.S.C. 7402(b). We would incorporate the licensure, registration, or certification requirement from section 7402(b) and would state that health care providers must maintain “credentials (e.g., license, registration, or certification) in accordance with the requirements of their health care specialty as identified under 38 U.S.C. 7402(b).” This standard would ensure that VA health care providers are qualified to practice their individual health care specialty and also ensure patient safety. A health care provider as defined in this regulation cannot be a VA-contracted employee. Contract health care providers would be required to adhere to their individual State license, registration, or certification requirements.

We propose to define the term “State” consistent with 38 U.S.C. 101(20), and including political subdivisions of such States. We include political subdivisions in the definition because subdivisions of a State are granted legal authority from the State itself, so it would make sense to include entities created by a State, or authorized by a State in the definition.

Last, in proposed paragraph (a)(4) of § 17.417, we would define the term “telehealth” to mean “the use of electronic information or telecommunications technologies to support clinical health care, patient and professional health-related education, public health, and health administration.” This definition would be consistent with other statutory definitions, such as a provision in the Public Health Service Act regarding mental health services delivered by telehealth in 42 U.S.C. 254c-16(a)(4).

As we have mentioned in this rulemaking, currently, individual States can restrict and limit where a health care provider can practice under a State license, certification, or registration. This proposed rulemaking would authorize VA health care providers to furnish telehealth services without regard to any State restriction that would prevent the provider from delivering care via telehealth. Proposed paragraph (b)(1) of § 17.417 would state that VA health care providers could provide “telehealth services, within their scope of practice and in accordance with privileges granted to them by the Department, irrespective of the State or location within a State where the health care provider or the beneficiary is physically located.” This would authorize VA health care providers to furnish care, consistent with their employment obligations, through telehealth, without fear of adverse action by any State. A health care provider's practice within VA, however, would continue to be subject to the limitations “imposed by the Controlled Substances Act, 21 U.S.C. 801 et seq., on the authority to prescribe or administer controlled substances, as well as any other limitations on the provision of VA care set forth in applicable Federal law and policy.” This would ensure that providers would still be in compliance with critical laws concerning the prescribing and administering of controlled substances. We would also state that this rulemaking “only grants health care providers the ability to practice telehealth within the scope of their VA employment and does not otherwise grant health care providers additional authorities that go beyond the scope of the health care providers' State license, registration, or certification.”

In proposed paragraph (b)(2)(i) through (vii) of § 17.417, we would provide situations where a health care provider's practice of telehealth could be inconsistent with a State law or State license, registration, or certification requirements while engaging in the practice of telehealth in VA. These examples would be consistent with the reasons VA is proposing to take this rulemaking action, as described above.

Proposed paragraph (c) would expressly state the intended preemptive effect of § 17.417, to ensure that conflicting State and local laws, rules, regulations, and requirements related to health care providers' practice would have no force or effect when such providers are practicing telehealth while working within the scope of their VA employment. In circumstances where there is a conflict between Federal and State law, Federal law would prevail in accordance with Article VI, clause 2, of the U.S. Constitution (Supremacy Clause).

Section 4 of Executive Order 13132 (Federalism) requires an agency that is publishing a regulation that preempts State law to follow certain procedures. Section 4(b) requires agencies to “construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.” Section 4(c) states “Any regulatory preemption of State law shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated.” Section 4(d) requires that when an agency “foresees the possibility of a conflict between State law and Federally protected interests within its area of regulatory responsibility, the agency shall consult, to the extent practicable, with appropriate State and local officials in an effort to avoid such a conflict.” Section 4(e) requires that when an agency “proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.” Section 6(c) states that “To the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications and that preempts State law, unless the agency, prior to the formal promulgation of the regulation, (1) consulted with State and local officials early in the process of developing the proposed regulation; (2) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of the Office of Management and Budget a federalism summary impact statement, which consists of a description of the extent of the agency's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met; and (3) makes available to the Director of the Office of Management and Budget any written communications submitted to the agency by State and local officials.”

Because this proposed rule would preempt certain State laws, VA consulted with State officials in compliance with sections 4(d) and (e), as well as section 6(c) of Executive Order 13132. VA sent a letter to the National Governor's Association, Association of State and Provincial Psychology, National Council of State Boards of Nursing, Federation of State Medical Boards, Association of Social Work Boards, and National Association of State Directors of Veterans Affairs on July 12, 2017, to state VA's intent to allow VA health care providers to practice telehealth irrespective of the location of the health care provider or beneficiary in any State and regardless of State telehealth restrictions. In addition, the Director of the Federation of State Medical Boards solicited comments and input from the nation's State Medical Boards. The Wisconsin Medical Examining Board unanimously passed a motion in support of the rule. The Rhode Island Board of Medical Licensure & Discipline (BMLD) responded to our letter by stating that BMLD considers physicians employed by VA to be exempt from license requirements as long as such physician maintains a valid license in another U.S. jurisdiction. BMLD also indicated that the exemption does not necessarily extend to prescribing controlled substances without an appropriate DEA registration. In response to this caveat, we have stated in this proposed rule that, if finalized, VA health care providers would be subject to “the limitations imposed by the Controlled Substances Act, 21 U.S.C. 801, et seq., on the authority to prescribe or administer controlled substances, as well as any other limitations on the provision of VA care set forth in applicable Federal law and policy.” The State of Utah Department of Commerce also stated that the Utah Occupations and Professions Licensing Act exempts from licensure requirements in Utah physicians, physician assistants, advanced practice nurses, psychologists or other health care provider who provide telehealth services as part of their VA employment as long as such health care provider is licensed in any State. Utah supports VA efforts to enhance telehealth services to all veterans. The Florida Board of Medicine stated that Florida does not prohibit the practice of telehealth except in certain circumstances and provided as an example that an in-person examination is required each time a physician issues a certification for medical marijuana. This proposed rule would supersede any State requirement regarding the practice of telehealth, such as the in-person examination requirement in Florida, and would maintain the restrictions imposed by Federal law and policy regarding the prescription of controlled substances. The North Carolina Medical Board recognizes the shortage of psychiatric care in rural and medically underserved communities and supports VA's initiative.

The President of the National Association of State Directors of Veterans Affairs (NASDVA) sent an email to all of its State directors informing the directors of the association's intent to fully support VA's initiative. The NASDVA also formally responded to our letter, which fully supports VA's plans to amend its regulations and enhance access to health care via telehealth services. The National Council of State Boards of Nursing (NCSBN) fully supports VA's initiative for health care providers to deliver services via telehealth as long as such providers maintain a valid State license. However, the NCSBN does not support expanding VA State licensure exemptions to personal services contractors who practice telehealth. As stated in this proposed rulemaking, VA contractors would be excluded from providing telehealth services.

The Chief Executive Officer of the Association of State and Provincial Psychology Boards formally responded to our letter and indicated that the proposed rule is in alignment with their current initiatives, specifically, Psychology Interjurisdictional Compact (PSYPACT) legislation, which has been adopted in three jurisdictions and is under active consideration in many more States. The PSYPACT legislation allows psychologists to provide telepsychology services across State lines via a compact without obtaining additional licenses. The Chief Executive Officer further stated that these services will be of assistance in addressing the delivery of telehealth services to veterans.

The Veterans' Rural Health Advisory Committee (VRHAC) formally submitted a letter in support of the proposed rule. The letter stated that although VA leads the way in being the largest provider of telehealth in the country, there are barriers that affect many rural and highly rural areas, which includes limited internet or cellular access with sufficient bandwidth to support the required applications and also State legislations that restrict the practice of telehealth across State lines or into a veteran's home. The commenter strongly supports the proposed rule and further adds that expanding telehealth to rural and highly rural veterans across State lines would strengthen the delivery of care to enrolled veterans who live in rural and highly rural areas and supports the critical need for access to mental health care.

The West Virginia Board of Osteopathic Medicine responded to VA's letter and indicated that West Virginia has made legislative changes to encourage physician participation in the VA system. The commenter stated that W.Va. Code 30-14-12c authorizes the West Virginia licensing boards to issue a license to a physician licensed in another State via reciprocity when the applicant presents proof that they are a VA employee working in a VA medical facility that is located in a county where a nursing home is operated by the West Virginia Department of Veteran's Assistance. Also, W.Va. Code 30-14-12d states the requirements for practicing telemedicine in West Virginia and defines that the practice of medicine occurs where the patient is located and defines what constitutes a physician-patient relationship. The commenter stated that the West Virginia Board of Osteopathic Medicine rarely knows when a VA physician is practicing in West Virginia without a West Virginia State license. However, the commenter cautioned that if a VA physician is licensed in West Virginia and does not follow state law and such action becomes known to the Board, the Board would file a complaint and investigate such action. The commenter stated that their telehealth law was written to protect patients and indicated that veterans deserved the same high quality care. As we have stated in this proposed rule, we are preempting State law as it applies to health care providers who practice telehealth while acting within the scope of their VA employment.

The Pennsylvania State Board of Medicine responded to VA's letter and acknowledged the potential value for telehealth to expand access to health care, especially in rural and underserved areas. The commenter further stated that Pennsylvania law on the Interstate Medical Licensure Compact affirms that the practice of medicine occurs where the patient is located at the time of the health care encounter, which requires the physician to be under the jurisdiction of the State medical board where the patient is located. The commenter indicated that VA has oversight of its health care providers, however, the foundational principle that the physician should be licensed where the patient is located helps to assure the safety, quality, and accountability of the care provided. This proposed rule preempts State law as it applies to health care providers who practice telehealth while acting within the scope of their VA employment.

The Michigan Department of Licensing and Regulatory Affairs responded to VA's letter by stating that Michigan law does not require a VA health care provider to hold a Michigan State license in the discharge of official duties. The commenter also stated that telehealth at a VA medical facility would be permitted. However, if the health care provider is delivering care to the beneficiary's home, such provider would need a Michigan State license. As we have indicated in this proposed rule, VA would preempt State law as it applies to health care providers who practice telehealth while acting within the scope of their VA employment.

The Virginia Board of Medicine responded to VA's letter by stating that the Executive Committee of the Board met and supported the enhancement of access to care for veterans. The commenter stated that the proposed rule should benefit many beneficiaries that have little or no access to health care.

The comments provided above will be placed on Regulations.gov for public inspection during the comment period. Stakeholders will also have an opportunity to provide comments during the notice and comment period.

This proposed rule complies with Executive Order 13132 by (1) identifying where the exercise of State authority would directly conflict with the rule; (2) limiting preemption to these areas of conflict; (3) restricting preemption to the minimum level necessary to achieve the objectives of the statutes pursuant to which the rule is promulgated; (4) consulting with the external stakeholders listed in this rule; and (5) providing opportunity for all affected State and local officials to comment on this proposed rulemaking.

Title 38 of the Code of Federal Regulations, as revised by this proposed rule, represents VA's implementation of its legal authority on this subject. Other than future amendments to this rule or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rule if possible. If not possible, such guidance is superseded by this rule.

This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Secretary hereby certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed rule directly affects only individuals who are VA employees and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

OMB has determined that it is a significant regulatory action under Executive Order 12866 given the policy implications. In addition, under Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs), this proposed rule is expected to be an E.O. 13771 deregulatory action, though VA is not able to quantify any cost savings associated with it. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published from FY 2004 Through Fiscal Year to Date.”

Executive Order 12866 also directs agencies to “include a comment period of not less than 60 days.” Given the importance of telehealth in providing critical, and potentially lifesaving, access to health care for our beneficiaries, VA must act expeditiously, through this rulemaking, to ensure that it can expand its telehealth program. The primary barrier to the expansion of VA's telehealth program is that States' licensing boards have placed explicit restrictions on the use of telehealth in their States and have not made exceptions for VA providers, which ultimately inhibits VA providers from delivering VA health care to beneficiaries. Five of the States with the largest veteran populations, California, Texas, Florida, New York, and Ohio, have enacted laws and rules that restrict health care providers' ability to practice telehealth across State lines. See, 16 C.C.R. § 1815.5; Cal Bus & Prof Code §§ 2052, 2060; TX Occupation Code § 151.056; TX Admin Code, Title 22, § 172.12; FL Admin Code 64B8-9.0141; FL Admin Code 64B15-14.0081; NY Consolidated Law Service Public Health § 2805-u; OH Revised Code Annotated, Sec. 4731.296(C). As telehealth capabilities continue to expand, new State legislation and regulations across the country are enacted relating to the practice of telehealth. The possibility of sanctions to VA health care providers' State license, including fines and imprisonment for unauthorized practice of medicine has hindered VA's ability to expand its telehealth program. To protect VA health care providers from potential adverse actions by States, many VAMCs are currently not expanding some critical telehealth services if the health care service is provided outside Federal property (such as when the VA provider is delivering telehealth care from his or her home) or across State lines, or the care is delivered in a beneficiary's home. In addition many individual VA health care providers refuse to practice telehealth because of concerns over States taking action against their State license. This rule will supersede State restrictions on the practice of telehealth and allow VA health care providers to practice telehealth anywhere within a State (such as from the residence of the health care provider) and across State lines.

In sum, providing a 60 day public comment period instead of a 30 day public comment period would be against public interest and the health and safety of VA beneficiaries because any restriction from a State or State licensing board on practicing telehealth, within the State or across State lines, could impede beneficiaries' access to health care, which will ultimately impact the health of the beneficiary. For the above reasons, the Secretary issues this rule with a 30 day public comment period. VA will consider and address comments that are received within 30 days of the date this proposed rule is published in the Federal Register.

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, requires that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule will have no such effect on State, local, and tribal governments, or on the private sector.

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are: 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; 64.039 CHAMPVA; 64.040 VHA Inpatient Medicine; 64.041 VHA Outpatient Specialty Care; 64.042 VHA Inpatient Surgery; 64.043 VHA Mental Health Residential; 64.044 VHA Home Care; 64.045 VHA Outpatient Ancillary Services; 64.046 VHA Inpatient Psychiatry; 64.047 VHA Primary Care; 64.048 VHA Mental Health Clinics; 64.049 VHA Community Living Center; and 64.050 VHA Diagnostic Care.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on July 28, 2017 for publication.

For the reasons set forth in the preamble, we propose to amend 38 CFR part 17 as follows:

Throughout this document “we,” “us,” or “our” each mean “the EPA.”

Regional haze is visibility impairment that occurs over a wide geographic area primarily from the pollution of fine particles (PM2.5) in nature.1 Fine particles causing haze consist of sulfates, nitrates, organics, elemental carbon (EC), and soil dust.2 Airborne PM2.5 can scatter and absorb the incident light and, therefore, lead to atmospheric opacity and horizontal visibility degradation. Regional haze limits visual distance and reduces color, clarity and contrast of view. Emissions that affect visibility include a wide variety of natural and man-made sources. In New Mexico, the most important sources of haze-forming emissions are coal-fired power plants, oil and gas development, woodland fires, and windblown dust. Reducing PM2.5 and its precursor gases in the atmosphere is an effective method of improving visibility. PM2.5 precursors consist of sulfur dioxide (SO2), nitrogen oxides (NOX), ammonia (NH3) and volatile organic compounds (VOCs).

In section 169A of the 1977 CAA Amendments, Congress declared as a national goal the prevention of any future, and the remedying of any existing, visibility impairment in mandatory class I Federal areas where impairment results from manmade air pollution.3 Congress added section 169B to the CAA in 1990 that added visibility protection provisions, and the EPA published final regulations addressing regional haze with the 1999 Regional Haze Rule (RHR).4 The RHR revised the existing visibility regulations and established a more comprehensive visibility protection program for mandatory Class I areas. The requirements for regional haze are found at 40 CFR 51.308 and 51.309. States must demonstrate reasonable progress toward meeting the national goal of a return to natural visibility conditions for mandatory Class I Federal areas both within and outside states by 2064. The requirement to submit a regional haze SIP applies to all fifty states, the District of Columbia, and the Virgin Islands. The City of Albuquerque and Bernalillo County,5 New Mexico must also submit a regional haze SIP separate from the State of New Mexico 6 to completely satisfy the requirements of section 110(a)(2)(D) of the CAA for the entire State under the New Mexico Air Quality Control Act (section 74-2-4).7

The RHR requires a comprehensive analysis of each state's regional haze SIP every ten years and a progress report at five-year intervals. The five-year review is intended to provide an interim report on the implementation of, and, if necessary, mid-course corrections to, the regional haze SIP. The progress report provides an opportunity for public input on the County's (and the EPA's) assessment of whether the approved regional haze SIP is being implemented appropriately and whether reasonable visibility progress is being achieved consistent with the projected visibility improvement in the SIP. At a minimum, the required elements of the progress report under the RHR must include the following seven elements: 8

(1) Provide a description of the status of implementation of all measures included in the regional haze SIP.

(2) Summarize the emissions reductions achieved throughout the state.

(3) Provide an assessment of current visibility conditions and the change in visibility impairment over the past five years.

(4) Provide analysis tracking the change over the past five years in emissions of pollutants contributing to visibility impairment from all sources and activities within the state.

(5) Provide an assessment of any significant changes in anthropogenic emissions within or outside the state that have occurred over the past five years that have limited or impeded progress in reducing pollutant emissions and improving visibility.

(6) Provide an assessment of whether the current SIP elements and strategies are sufficient to enable the state (or other states with mandatory Class I areas affected by emissions from the state) to meet all established RPGs.

(7) Provide a review of the state's visibility monitoring strategy and any modifications to the strategy as necessary.

The City of Albuquerque and Bernalillo County, New Mexico submitted its progress report SIP for the County under 40 CFR 51.309 on June 24, 2016. Typically, progress report requirements of most states are covered under 40 CFR 51.308(g) and (h). 40 CFR 51.309 presents nine western states with an optional approach of fulfilling RHR requirements by adopting emission reduction strategies developed by the Grand Canyon Visibility Transport Commission (GCVTC). These strategies were designed primarily to improve visibility of sixteen Class I areas in the Colorado Plateau area.9 Three western states (New Mexico, Utah and Wyoming) including the City of Albuquerque and Bernalillo County, NM exercised the option provided in the RHR to meet alternative requirements contained in 40 CFR 51.309 for regional haze SIPs. For these states, the required content of the five-year progress report is identical with those for the other states, but are codified at 40 CFR 51.309(d)(10) instead of at 40 CFR 51.308 (g) and (h). This section specifies fixed due dates in 2013 and 2018 for these progress reports.10 In contrast, under 40 CFR 51.308, states must submit a progress report five years from submittal of the initial implementation plan. Under 40 CFR 51.309(d)(10)(ii), states are required to submit, at the same time as the progress report SIP, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions, as described in more detail in this proposal.

On July 28 2011, the AQCB submitted a regional haze SIP for its own geographic area of Bernalillo County, New Mexico (including the City of Albuquerque) that addressed the requirements of 40 CFR 51.309.11 This SIP submittal was a necessary component of the regional haze plan for New Mexico to ensure that the requirements of section 110(a)(2)(D) of the CAA were satisfied for the whole state. On July 6, 2016, the EPA received the periodic report on progress for the County's regional haze SIP in the form of a SIP revision. This latest submission is the subject of this proposed approval. The periodic report was made in the first implementation period to assess visibility progression for Class I areas in and outside of the County that were negatively affected by emissions from within the County. The progress report included the County's determination that the existing regional haze SIP required no substantive revisions to achieve the established regional haze visibility improvement and emission reduction goals for 2018. The EPA agrees with the County's assessment and is proposing to approve its progress report SIP on the basis that it satisfies all requirements of 40 CFR 51.309(d)(10) as explained in further details in each subsequent section.

The City of Albuquerque and Bernalillo County does not formulate specific RPGs for particular Class I areas within its borders since no such areas exist.12 Therefore, the County is not required to identify RPGs or calculate baseline and natural visibility conditions at any Class I area. The County, however, is required to address the apportionment of visibility impact from the emissions generated by sources within the County at Class I areas outside of the County borders. As a result, the progress report addressed the emissions impact on RPGs and related emission reduction goals for nine Class I areas within the state of New Mexico that were identified as being close enough to the County that they could conceivably be affected by emissions from within the County. The nine Class I areas within New Mexico that were addressed in the progress report were: Bandelier Wilderness, Bosque del Apache National Wildlife Refuge, Carlsbad Caverns National Park, Gila Wilderness, Pecos Wilderness, Salt Creek Wilderness, Wheeler Peak Wilderness, White Mountain Wilderness, and San Pedro Parks Wilderness.13 Visibility impairment at New Mexico's nine Class I areas was tracked in units of deciviews (dv)14 as measured by eight monitors in the Interagency Monitoring of Protected Visual Environments (IMPROVE) Network. Through collaboration with the Western Regional Air Partnership (WRAP),15 the AQCB worked with New Mexico and other western states to assess state-by-state contributions to visibility impairment in specific Class I areas affected by Albuquerque and Bernalillo County, NM emissions. The determinations in the progress report relied on the technical analysis and emission inventories developed by the WRAP which is documented online and also appears in the technical appendices.16

The EPA is proposing to find that the County has appropriately identified the Class I areas in this report which could be affected by emissions from within the County, as required by 40 CFR 51.309(g). This regulation provides a requirement for compliance with 40 CFR 51.308(d) to the extent that planning is necessary for areas other than the sixteen Class I areas on the Colorado Plateau addressed in the initial 2003 regional haze SIP. In the ensuing sections, the EPA addresses these Class I areas and the seven regulatory elements required by the progress report SIP; 17 how the County's progress report SIP addressed each element; and the EPA's analysis and proposed determination as to whether the County satisfied each part.

40 CFR 51.309(d)(10)(i)(A) requires a description of the status of implementation of all control measures included in the regional haze SIP for achieving RPGs for Class I areas both within and outside the state.

The County evaluated the status of all control measures in its 2011 regional haze SIP in accordance with the requirements under 40 CFR 51.309(d)(10)(i)(A). The major control measures identified by the County in the progress report are as follows:

• SO2 Milestone and Backstop Trading Program

• NOX and PM Control Strategies

• Best Available Retrofit Technology (BART)

• Mobile Sources Emissions 18

• Fire and Smoke Management

• Fugitive and Unpaved Road Dust Measures

• Additional Controls—Local State Regulations

The County identified ammonium sulfate, particulate organic matter, and coarse mass as the largest contributors to visibility impairment at New Mexico's Class I areas that need to be controlled.19 Many of the sources, however, that produce these visibility-impairing pollutants in New Mexico are natural, rather than anthropogenic in nature, and are not controllable. For the purpose of this progress report, the County focused on those emission sources that were anthropogenic in nature (as did New Mexico in its report). The primary sources of ammonium sulfate are point sources and mobile source emissions. Ammonium sulfate results from SO2 and NH3 precursor emissions. SO2 emissions in New Mexico are generally associated with anthropogenic point sources such as coal-fired power plants, other industrial sources like refineries and cement plants, and both on and off-road mobile sources. Particulate organic matter emissions in New Mexico are from natural and anthropogenic fire. Large wildfire events in the west dominate particulate organic aerosol emissions which are emitted directly into the air as particles instead of gases. Coarse mass emissions in New Mexico happen mainly as a result of windblown and fugitive dust. Coarse mass settles out of air more rapidly than fine particles, so strong wind events act as a transport vehicle to carry them long distances. Otherwise, they will typically be found close to the emission source.

The progress report discussed the SO2 Milestone and Backstop Trading Program as a control measure to reduce emissions for major sources of SO2.20 The County has participated in this voluntary program since December 31, 2003.21 As part of this program, the Section 309 western states and the County must submit an annual report that compares tracked stationary sources of SO2 emissions to yearly milestones.22 A milestone is an established maximum level of annual emissions for a given year (from 2003-2018). The milestones help establish annual SO2 emission reduction targets. The annual targets represent RPGs in reducing visibility-impairing emissions. If states fail to meet the milestones, then the backstop-trading program is triggered to implement an emissions cap. The cap allocates emission allowances (or credits) to the affected sources based on the cap, and requires the sources to hold sufficient allowances to cover their emissions each year.

The regional haze SIP requires multiyear averaging of emissions for the milestone comparison. From 2005-2017, the three-year average, which includes the reporting year and the two previous years, is calculated and compared to the milestone. The regional milestone for 2013 was 185,795 tons SO2. The three-year average SO2 emissions for 2011, 2012, and 2013 was 105,402 tons SO2, which was 43 percent below the 2013 milestone. In table 1 below, 2014 and 2015 WRAP data shows similar SO2 reduction trends that continue beyond 2013 toward 2018. No triggering of the backstop trading program has been necessary and the likelihood of meeting the 2018 target means no changes in the program are needed at the moment. The compliance dates show that SO2 emissions have consistently been below each annual RPG and are currently tracking to be below the 2018 milestone.

The County included a report in its 2011 regional haze SIP that assessed emission control strategies for NOX and PM stationary sources, and the degree of visibility improvement that would result from their implementation.24 The report concluded that current and future NOX and PM emissions do not show to be major contributors to regional haze (typically about two percent on average) in the vast majority of western Class I areas. The report represented the initial assessment of stationary source NOX and PM strategies for regional haze, and was a starting point for a more extensive analysis in the future. The 2011 regional haze SIP stated that the progress report would assess the need for new NOX and PM control measures to address any new contributions to regional haze from stationary sources in the County. The County concluded in the progress report that it does not find new control measures necessary for NOX and PM stationary sources at this time. Stationary source NOX and PM emissions in the County have not impeded reasonable progress of emissions and visibility in New Mexico as a whole and are not likely to do so. Please refer to the emission reduction section of this report for more details regarding NOX and PM emissions.

The regional haze SIP determined that there are no BART-eligible sources in the County, so there are no requirements to install BART controls.26 Even so, the progress report mentioned how the County must still specifically demonstrate that its SO2 milestone and backstop-trading program will achieve greater reasonable progress than would be achieved by implementation of BART controls.27 Under this approach, a section 51.309 regional haze SIP must establish declining SO2 emission milestones for each year of the program through 2018. The milestones must be consistent with the GCTVC's goal of fifty to seventy percent reduction in SO2 emissions by 2040. As demonstrated in the County's regional haze SIP, the SO2 milestones provide greater reasonable progress than BART and track at a sixty percent pace reduction of the 1990 SO2 emission levels.28 The actual annual SO2 emission reduction results outperformed this milestone pace. The progress report showed that the three-year average SO2 emissions for 2013 was 43 percent below the 2013 milestone at 105,402 tons SO2 (see Table 1). That represents a 71 percent reduction from the 1990 emission totals and is exceeding the GCVTC goal of fifty to seventy percent reduction. The regional SO2 emissions have continued to decline at a faster pace than called for by the SO2 milestones. Thus, as anticipated, the milestone program has actually continued to achieve greater reasonable progress than would be the case if BART were implemented.

The progress report mentioned that the County is relying upon federal standards as long-term measures to achieve declines in mobile source emissions that contribute to regional haze.29 The County also committed itself in the SIP to monitoring mobile source emissions (through the WRAP) to assure a continuous decline in emissions as defined in 40 CFR 51.309(b)(6).30 A statewide inventory of baseline and future annual mobile source emissions has been compiled for the years 2003-2018 with assistance from the WRAP.31

The County is relying on fire and smoke management programs under 20.11.21 NMAC, Open Burning, in order to help control anthropogenic fire related emissions of VOCs, NOX, elemental carbon, organic carbon, and PM2.5. This regulation requires that most open burning in Bernalillo County be conducted under a permit from the City of Albuquerque EHD subject to specific requirements, including: reporting of emissions for use in emissions inventories; consideration of alternatives to burning; use of enhanced smoke management techniques recommended by the WRAP; and use of specific emission reduction techniques. The programs in this measure are generally designed to limit increases in emissions, rather than to reduce existing emissions.

The progress report mentioned measures that provide for control of PM10 and PM2.5 emissions from unpaved roads and from stationary fugitive dust sources.32 The EHD implements this requirement through 20.11.20 NMAC, Fugitive Dust Control, which requires the use of reasonably available control measures (RACM) to reduce fugitive dust that impairs visibility or adversely affects public health, welfare, and safety.33 The measure prevents fugitive dust from leaving sites where it is produced, and thus reduces the amount of those emissions. The regulation requires sources to obtain permits and pay related fees, limits construction activity, and has an active enforcement program in place to implement the provisions on an ongoing basis. In addition, the AQCB tracks road dust emissions with the assistance of the WRAP. They provide updates, including modeling and monitoring information, on paved and unpaved road dust emission impacts on visibility in the sixteen Colorado Plateau Class I Areas.

The County lists several local regulations that are being used to aid in controlling emissions that contribute to the formation of regional haze at Class I areas. These regulations, and the pollutants targeted by them, appear in table 2 below. The EHD implements and enforces these regulations on a continuing basis.

The EPA proposes to conclude that the County adequately addressed the status of control measures in its regional haze SIP, as required by the provisions under 40 CFR 51.309(d)(10)(i)(A) for the first implementation period. The County's progress report documented the status of all control measures included in its regional haze SIP and described additional measures that came into effect since the County's regional haze SIP was completed, including state regulations and various federal measures. All major control measures were identified and the strategy behind each control was explained. The County included a summary of the implementation status associated with each control measure and quantified the benefits where possible. In addition, the progress report SIP adequately outlined the compliance timeframe for all controls

The provisions under 40 CFR 51.309(d)(10)(i)(B) require the state to provide a summary of the emission reductions achieved in the state through the control measures subject to the requirements under 40 CFR 51.309(d)(10)(i)(A). As mentioned previously, the County identified ammonium sulfate, particulate organic matter, and coarse mass as the largest contributors historically to visibility impairment at New Mexico's Class I areas for the initial round of regional haze SIPS. Many of the sources, however, that produce these visibility-impairing pollutants in New Mexico are natural, rather than anthropogenic in nature, and are not controllable. As a result, the New Mexico progress report focused on emission reductions from point sources because they represent the anthropogenic sources in New Mexico.35 The New Mexico report showed that these pollutants have mostly been contributing less to visibility impairment at New Mexico Class I areas over time, and the anthropogenic point source emissions related to these pollutants have also been declining in areas of the state outside the County.36

For comparison, in its progress report, the County took the same approach as New Mexico and reported anthropogenic point source emission data (see table 3) from the County for NOX, SO2, PM10, and PM2.5 and compared it to WRAP 2018 projections for the 2008-2013 time-period.

The County noted that pollutant emissions from the County have not impeded reductions in the rest of the state. SO2 and NOX county emission trends have increased slightly since 2008 but have remained well below the WRAP 2018 projections for point sources and were just a fraction of the levels observed in the rest of the state (see table 4). PM10 emission levels for the County were below the WRAP 2018 projections while PM2.5 levels were above the WRAP predictions. Although the PM2.5 levels were above WRAP 2018 projections, PM emission levels from the County have decreased in a downward trend for both fine particulates and coarse mass since 2008. When comparing pollutant emission contributions of NOX, SO2, PM10, and PM2.5 from the County to the statewide national emission inventory (NEI), the County concluded that it is improbable that the County emissions have had significant impacts on nearby Class I areas. The reported point source amounts from the County remain low in comparison to those from the rest of the state as seen from the statewide NEI data in table 4.

The NEI data shows that the emission trend of each major contributor to visibility impairment in New Mexico has decreased significantly since 2002. NOX emissions have decreased by 55 percent and SO2 emissions have decreased by 65 percent. PM reductions also reduced considerably from their NEI baseline totals (52% for PM10 and 72% for PM2.5) and remain below the 2018 WRAP projections for New Mexico, although not especially pronounced.39 A more-detailed breakdown of the distribution of each contributing pollutant species can be seen in section E of this report.

The EPA proposes to conclude that the County adequately addressed the requirements under 40 CFR 51.309(d)(10)(i)(B) with its summary of emission reductions of visibility impairing pollutants. Overall, the County demonstrated the emission reductions achieved in the major contributing visibility impairing pollutants in the County for the first implementation period. Anthropogenic emissions of haze related pollutants from stationary point sources in the County are unlikely to reverse the larger, favorable statewide emission trends, because over time such local emissions have remained at a fraction of the levels seen in the rest of the state. Furthermore, such county emissions are under or close to the WRAP 2018 projections for those pollutants.40

The provisions under 40 CFR 51.309(d)(10)(i)(C) require that states with Class I areas provide the following information for the most impaired and least impaired days 41 for each area, with values expressed in terms of five-year averages of these annual values: (1) Current visibility conditions; (2) the difference between current visibility conditions and baseline visibility conditions; and (3) the change in visibility impairment over the past five years. The County does not have any Class I areas within its borders; therefore, no visibility data is required to be analyzed for this element. In regard to New Mexico's Class I areas outside of the County, please note that when comparing baseline to current visibility conditions, the New Mexico progress report showed that New Mexico is currently on track, if not exceeding, the visibility impairment emission reductions needed to achieve RPG's for 2018.42

The provisions under 40 CFR 51.309(d)(10)(i)(D) require an analysis tracking emission changes of visibility impairing pollutants from the state's sources by type or category over the past five years based on the most recent updated emission inventory. In its progress report SIP, the County presented WRAP emission inventories for 2002, 2008, and 2011, as well as projected inventories for 2018, in accordance with the requirements of 40 CFR 51.309(d)(10)(i)(D). The pollutant inventories included SO2, NOX, NH3, VOCs, organic carbon, elemental carbon, coarse mass, and soil dust. The inventories were categorized for all major visibility-impairing pollutants under major source groupings either as anthropogenic or natural. The anthropogenic source categorization included point and area sources; on and off-road mobile sources; area oil and gas; fugitive and road dust; and anthropogenic fire. The natural source categorization included natural fire, wind-blown dust, and biogenic sources. A breakdown of the total anthropogenic emissions for the County and state can be seen below in table 5. The table shows the percent apportionment of County emissions for each of the key haze-causing pollutants related to the rest of the state.

The WRAP data showed that the percentage of County emissions contributing to the total state emissions has decreased for each pollutant species from the 2002 baseline to 2011. The WRAP emission inventories were previously identified in the SIP as reflecting overestimates of actual emissions in key source categories. Even so, there has not been a drastic, sudden spike in the percentages, which would be a cause for concern for visibility degradation at the Class I areas. The decreasing WRAP percentages are indicators that the County “conservative” emission estimates have improved throughout the first implementation period and are contributing less and less to visibility impairment at Class I areas outside of its borders from 2002-2011. The County concluded that it is unlikely that the County emissions had significant impacts on nearby Class I areas as a result. The County's contribution of emissions compared to the New Mexico emission inventory, as estimated by the WRAP, is six percent of the State SO2 emissions; nine percent of the State NOX emissions; two percent of the State NH3 emissions; seven percent of the State VOC emissions; seven percent of the State PM2.5 emissions; and seven percent of the State coarse mass emissions. These percentages are all down from their 2002 baseline levels. PM2.5 and coarse mass 2011 total emissions are higher than the WRAP 2018 projections, but their decreasing percent contributions are better indicators of the progress made since emissions have increased statewide, yet their percentages have decreased from eighteen and 25 percent respectively, in 2002, to seven percent each in 2011.

The EPA is proposing to find that the County adequately addressed the requirements under 40 CFR 51.309(d)(10)(i)(D). The EPA concludes that the County presented an adequate analysis tracking emission trends for the key visibility impairing pollutants. The analysis provided the most recent period of approximately five years for which data was available in practical terms (2002-2008), and provided an additional update for 2011 that presented further information covering approximately two five-year periods (2002-2011). The trends indicate that it was improbable that sources located within the County caused or contributed to visibility impairment in any Class I area located outside of the County. The emission trends declined within the County compared to 2002 baseline levels and the percent contributions related to the rest of the state have all continued to decline over time.

The provisions under 40 CFR 51.309(d)(10)(i)(E) require an assessment of whether any significant emission changes have occurred within the state over the five-year period since the SIP was submitted, and whether emission increases outside the state are affecting a Class I area within the state adversely. A “significant change” could be either a substantial unexpected increase in anthropogenic emissions that occurred over the five-year period or a significant expected reduction in anthropogenic emissions that did not occur in the analysis for the SIP.

The EPA proposes to conclude that the County adequately addressed the provisions under 40 CFR 51.309(d)(10)(i)(E). The County does not have any Class I areas within its borders, so there is no requirement to assess impacts in the County from sources outside of its boundaries. Furthermore, the County sources do not impact any of the Class I areas outside of its borders, as was stated in the County's regional haze SIP revision, which the EPA approved on April 25, 2012.44 In conjunction with that previous action, the EPA's current analysis of emission reductions to meet the provisions of 40 CFR 51.309(d)(10)(i)(B) and 40 CFR 51.309(d)(10)(i)(D) show that no “significant changes” in emissions within the County have occurred to impede visibility improvement or have adversely affected the nine Class I areas in New Mexico.45 Emission trends for the key visibility impairing pollutants were confirmed to be decreasing from the baseline to 2018 by statewide NEI data and reported County emissions. Additionally, the WRAP data showed that emissions from the County have remained at the same percentage levels over time or decreased relative to emissions from elsewhere in the state.

The provisions under 40 CFR 51.309(d)(10)(i)(F) require an assessment of whether the current regional haze SIP is sufficient to enable the state, or other states, to meet the RPGs for Class I areas affected by emissions from the state. The County does not contain any Class I areas, and emissions from the County were found to not impact any Class I areas outside of its borders. As discussed previously, the NEI data showed that the total emissions of each major contributor to visibility impairment in New Mexico has decreased significantly since 2002. The total County emissions have remained at a fraction of the levels seen in the rest of the state and are under or close to the WRAP 2018 RPGs when looking at the cumulative anthropogenic emissions.

The County provided a breakdown showing whether or not every key pollutant in each source category was meeting its 2018 RPGs for annual emissions.46 Of the 56 individual RPGs for the County, 42 were either being met or referred to pollutants that showed declining emissions since 2002. Fourteen of the County goals were not yet being met as of the 2011 WRAP inventory, but nine of those annual goals showed reported emission levels less than 200 tpy, and one was just under 500 tpy. Those ten goals were associated with point sources and on and off road mobile source categories. The County concluded that those ten reported emissions were unlikely to impede New Mexico's progress toward achieving statewide goals for emissions and visibility since the emission levels represented a negligible portion of total statewide emissions.

The four remaining annual emission goals that were not being met covered coarse mass, organic carbon, and PM2.5 pollutants. The increased contributions from these pollutants were associated with fugitive/road dust and area (non-point) source categories. Annual emissions with higher levels of organic matter, elemental carbon, PM2.5 and coarse mass with a lower contribution from ammonium sulfate are heavily dominated from wildfires and particulate matter. High coarse mass was measured during the spring, which was indicative of high-wind events that occurred during the late winter and spring months in New Mexico. Wildfires or high-wind events might again affect annual emissions in the 2018 timeframe, but the County showed that it is meeting nearly all of its annual emission goals even with experienced annual emission increases from natural events that still have not hindered New Mexico from meeting its RPGs beyond the County borders. The County expects further reduction of SO2 and NO2 emissions, the primary pollutant species associated with anthropogenic sources, to continue their broad declines in the same areas.

The EPA proposes to conclude that the County has addressed 40 CFR 51.309(d)(10)(i)(F) because its current regional haze SIP is sufficient to enable the state of New Mexico and other nearby states to meet their RPGs, particularly as the County was not identified as contributing to any impairment in such Class I areas. The fairly constant proportion of County emissions compared to the rest of the state are negligible. In spite of natural events, the County showed that it is meeting nearly all of its annual emission goals and the annual emission increases from natural events still have not hindered New Mexico from meeting its RPGs beyond the County borders.

The provisions under 40 CFR 51.309(10)(i)(G) require a review of a state's visibility monitoring strategy for visibility impairing pollutants and an assessment of whether any modifications to the strategy are necessary. In its progress report SIP, the County stated that there are no Class I areas within its boundaries, and therefore it was not required to fulfill this provision. The EPA proposes to conclude that the County is exempt from addressing the requirements of 40 CFR 51.309(10)(i)(G), as that requirement is solely for states with Class I areas in their borders.47

Under 40 CFR 51.309(d)(10)(ii), states are required to submit, at the same time as the progress report SIP, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions based on information in the progress report. 40 CFR 51.309(d)(10)(ii) requires states to take one of the following actions:

(1) Submit a negative declaration to the EPA that no further substantive revision to the State's existing regional haze SIP is needed.

(2) If the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources in another state(s) which participated in a regional planning process, the State must provide notification to the EPA and to the other state(s) which participated in the regional planning process with the states. The State must also collaborate with the other state(s) through the regional planning process for developing additional strategies to address the plan's deficiencies.

(3) Where the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources in another country, the State shall provide notification, along with available information, to the Administrator.

(4) If the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources within the State, then the State shall revise its implementation plan to address the plan's deficiencies within one year.

The City of Albuquerque and Bernalillo County, New Mexico has provided the information required under 40 CFR 51.309(d)(10)(i) in the five-year progress report. Based upon this information, the County stated in its progress report SIP that it believes that the current Section 309 and Section 309(g) regional haze SIPs are adequate to meet the State's 2018 RPGs and require no further revision at this time. Thus, the EPA has received a negative declaration from the City of Albuquerque and Bernalillo County, NM.

The EPA is proposing to approve the City of Albuquerque and Bernalillo County, New Mexico's regional haze five-year progress report SIP revision (submitted June 24, 2016) as meeting the applicable regional haze requirements set forth in 40 CFR 51.309(d)(10). The EPA is proposing to approve the City of Albuquerque and Bernalillo County, New Mexico's determination that the current regional haze SIP is adequate to meet the State's 2018 RPGs.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993), 13563 (76 FR 3821, January 21, 2011), and 13771 (82 FR 9339, February 2, 2017);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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 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.

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.

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.

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.

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

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 benefits, ACUS concluded that such communications

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.

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).

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 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.

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

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 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.

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 § 1102.2(a)(1) to include formal rulemaking and adjudicatory proceedings under §§ 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. 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 § 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.

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

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.

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.

Additionally, communications related to environmental laws and communications regarding judicial 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.

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.

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.

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 parties may comment on whether more specific instructions on the format or content of meeting summaries would be appropriate.13

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.

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. §§ 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, § 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities,” § 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.

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.

For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend 49 CFR part 1102 as follows:

The revisions and additions read as follows: