83 FR 9222 - Ex Parte Communications in Informal Rulemaking Proceedings
SURFACE TRANSPORTATION BOARD Federal Register Volume 83, Issue 43 (March 5, 2018)
Federal Register Volume 83, Issue 43 (March 5, 2018)
| Page Range | 9222-9232 | |
| FR Document | 2018-04411 |
[Federal Register Volume 83, Number 43 (Monday, March 5, 2018)] [Rules and Regulations] [Pages 9222-9232] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-04411] ======================================================================= ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD 49 CFR Part 1102 [Docket No. EP 739] Ex Parte Communications in Informal Rulemaking Proceedings AGENCY: Surface Transportation Board. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: In this decision, the Surface Transportation Board (the Board) modifies its regulations to permit, subject to disclosure requirements, ex parte communications in informal rulemaking proceedings. The Board also adopts other changes to its ex parte rules that would clarify and update when and how interested persons may communicate informally with the Board regarding pending proceedings other than rulemakings. The intent of the modified regulations is to enhance the Board's ability to make informed decisions through increased stakeholder communications while ensuring that the Board's record-building process in rulemaking proceedings remains transparent and fair. DATES: This rule is effective on April 4, 2018. ADDRESSES: Requests for information or questions regarding this final rule should reference Docket No. EP 739 and be in writing addressed to: Chief, Section of Administration, Office of Proceedings, Surface Transportation Board, 395 E Street SW, Washington, DC 20423-0001. FOR FURTHER INFORMATION CONTACT: Jonathon Binet at (202) 245-0368. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339. SUPPLEMENTARY INFORMATION: The Board's current regulations at 49 CFR 1102.2 generally prohibit most informal communications between the Board and interested persons concerning the merits of pending Board proceedings. These regulations require that communications with the Board or Board staff regarding the merits of an ``on-the-record'' Board proceeding not be made on an ex parte basis (i.e., without the knowledge or consent of the parties to the proceeding).\1\ See 49 CFR 1102.2(a)(3), (c). 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). --------------------------------------------------------------------------- \1\ ``On-the-record proceeding'' means ``any matter described in Sections 556-557 of the Administrative Procedure Act [(APA)] (5 U.S.C. 556-557) or any matter required by the Constitution, statute, Board rule, or by decision in the particular case, that is decided solely on the record made in a Board proceeding.'' 49 CFR 1102.2(a)(1). --------------------------------------------------------------------------- In 1977, 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.\2\ See Revised Rules of Practice, 358 I.C.C. 323, 345 (1977).\3\ At that time, several court decisions expressed the view that ex parte communications in informal rulemaking proceedings were inherently suspect.\4\ 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. --------------------------------------------------------------------------- \2\ The APA, 5 U.S.C. 551-559, governs two categories of agency rulemaking: Formal and informal. Formal rulemaking is subject to specific procedural requirements, including hearings, presiding officers, and a strict ex parte prohibition. See 5 U.S.C. 556-57. But most federal agency rulemakings, including the Board's, are informal rulemaking proceedings subject instead to the less restrictive ``notice-and-comment'' requirements of 5 U.S.C. 553. \3\ In Revised Rules of Practice, the ICC stated ``ex 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.'' 358 I.C.C. at 345. \4\ See, e.g., Home Box Office v. Fed. Commc'ns Comm'n, 567 F.2d 9, 51-59 (D.C. Cir. 1977) (finding that ex parte communications that occurred after the notice of proposed rulemaking (NPRM) violated the due process rights of the parties who were not privy to the communications because the written administrative record would not reflect the possible ``undue influence'' exerted by those stakeholders who had engaged in ex parte communications); Nat'l Small Shipments Traffic Conference v. ICC, 590 F.2d 345, 351 (D.C. Cir. 1978) (finding 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); Sangamon Valley Television Corp. v. United States, 269 F.2d 221, 224 (D.C. Cir. 1959) (finding that undisclosed ex parte communications between agency commissioners and a stakeholder were unlawful because the informal rulemaking involved ``resolution of conflicting private claims to a valuable privilege, and that basic fairness requires such a proceeding to be carried on in the open''). --------------------------------------------------------------------------- At the same time, however, other court decisions were more tolerant of ex parte communications in informal rulemaking proceedings, so long as the proceedings were not quasi-adjudicative in nature and the process remained fair.\5\ In 1981, in Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), the U.S. Court of Appeals for the District of Columbia Circuit significantly clarified and liberalized treatment of this issue. In that case, the court considered the ``timing, source, mode, content, and the extent of . . . disclosure'' of numerous written and oral ex parte communications received after the close of the comment period to determine whether those communications violated the governing statute or due process. Id. at 391. The court held that, because the agency docketed most of the ex parte communications and none of the comments were docketed ``so late as to [[Page 9223]] preclude any effective public comment,'' the agency satisfied its statutory requirements. Id. at 398. The court also declined to prohibit ex parte communications in informal rulemakings on constitutional 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.\6\ --------------------------------------------------------------------------- \5\ See, e.g., Action for Children's Television v. Fed. Commc'ns Comm'n, 564 F.2d 458 (D.C. Cir. 1977) (upholding the agency's decision not to issue proposed rules and finding no APA violation for ex parte discussions where the agency provided a meaningful opportunity for public participation and the proceeding did not involve competing claims for a valuable privilege). \6\ See, e.g., Tex. Office of Pub. Util. Counsel v. Fed. Commc'ns Comm'n, 265 F.3d. 313, 327 (5th Cir. 2001) (``Generally, ex parte contact is not shunned in the administrative agency arena as it is in the judicial context. In fact, agency action often demands it.''); Ammex, Inc. v. United States, 23 Ct. Int'l Trade 549, 569 n.16 (1999) (noting that the decision at issue ``constitutes an exercise of `informal' rulemaking under the [APA] and, as such, is not subject to the prohibition on ex parte communications set forth in 5 U.S.C. 557(d)(1) (1994)''); Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d 1534, 1545-46 (9th Cir. 1993) (``The decision in [Sierra Club] that the contacts were not impermissible was based explicitly on the fact that the proceeding involved was informal rulemaking to which the APA restrictions on ex parte communications are not applicable.''). --------------------------------------------------------------------------- More recently, in 2014, the Administrative Conference of the United States (ACUS), the body charged by Congress with recommending agency best practices, provided guidance to agencies indicating 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 (2014 ACUS Recommendation), 79 FR 35988, 35994 (June 25, 2014). ACUS concluded that ex parte communications in informal rulemaking proceedings ``convey a variety of benefits to both agencies and the public,'' although it acknowledged that fairness issues can arise if certain groups have, or are perceived to have, ``greater access to agency personnel than others.'' Id. However, in balancing these competing considerations, ACUS urged agencies to consider placing few, if any, restrictions on ex parte communications that occur before an NPRM is issued because communications at this early 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. ACUS further recommended that agencies establish clear procedures ensuring that all ex parte communications occurring after an NPRM is issued, whether planned or unplanned, be disclosed. Starting in 2015, the Board began to look at the possibility of conducting ex parte meetings to gain 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.\7\ See Reciprocal Switching, EP 711 (Sub-No. 1), slip op. at 28-29 (STB served July 27, 2016); \8\ U.S. Rail Serv. Issues--Performance Data Reporting, EP 724 (Sub-No. 4), slip op. at 2-3 (STB served Nov. 9, 2015). Many stakeholders in these proceedings expressed appreciation for the opportunity to meet with Board Members or Board staff regarding the merits of the proposed rules and expressed the hope to interact with the Board informally in the future as well.\9\ In these meetings, parties have been able to respond directly to questions from Board Members and Board staff on the feasibility and utility of certain aspects of the Board's proposals. --------------------------------------------------------------------------- \7\ Greater use of ex parte meetings in Board rulemaking proceedings was also a topic of the U.S. Senate Committee on Commerce, Science, and Transportation's August 11, 2016 hearing. See Freight Rail Reform: Implementation of the STB Reauthorization Act of 2015: Field Hearing Before the S. Comm. on Commerce, Sci., & Transp., 114th Cong. 32, 35, 46, 50-52, 57, 69, 72 (2016), https://www.thefederalregister.org/fdsys/pkg/CHRG-114shrg23228/pdf/CHRG-114shrg23228.pdf. \8\ In the Board's July 27, 2016 decision, which embraced Petition for Rulemaking to Adopt Revised Competitive Switching Rules, Docket No. EP 711, the Board terminated the proceeding in Docket No. EP 711, and all meetings with Board Members are taking place under Reciprocal Switching, Docket No. EP 711 (Sub-No. 1). \9\ See, e.g., Summary of Ex Parte Meeting Between Packaging Corp. of Am. & Board Member Begeman at 3, Aug. 3, 2017, Reciprocal Switching, EP 711 (Sub-No. 1); Summary of Ex Parte Meeting Between the Am. Chemistry Council & Board Member Miller at 1, Mar. 22, 2017, Reciprocal Switching, EP 711 (Sub-No. 1); 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). --------------------------------------------------------------------------- Based on 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, the Board determined that it was appropriate to revisit the agency's strict prohibition on ex parte communications in informal rulemaking proceedings. The Board 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. Accordingly, the Board issued an NPRM on September 28, 2017, proposing to: (1) Modify its regulations to permit, subject to disclosure requirements, ex parte communications in informal rulemaking proceedings, and (2) change its ex parte rules to clarify and update when and how interested persons may communicate informally with the Board regarding pending proceedings other than rulemakings. See Ex Parte Commc'ns in Informal Rulemaking Proceedings (NPRM), EP 739 (STB served Sept. 28, 2017). The Board received nine opening comments and three reply comments on the NPRM.\10\ --------------------------------------------------------------------------- \10\ Comments were received from the following organizations: The American Chemistry Council, the Fertilizer Institute, the National Industrial Transportation League, American Fuel and Petrochemical Manufacturers, Independent Lubricant Manufacturers Association, International Warehouse Logistics Association, American Forest & Paper Association, Alliance for Rail Competition, Private Railcar Food and Beverage Association, Glass Packaging Institute, National Association of Chemical Distributors, the Chlorine Institute, Alliance of Automobile Manufacturers, Association of Global Automakers, American Petroleum Institute, American Malting Barley Association, Corn Refiners Association, Portland Cement Association, and Plastics Industry Association (collectively the Rail Customer Coalition or RCC); the American Short Line and Regional Railroad Association (ASLRRA); the Association of American Railroads (AAR); BNSF Railway Company (BNSF); the Freight Rail Customer Alliance (FRCA); the George Mason University Antonin Scalia Law School Administrative Law Clinic (GMU); the National Grain and Feed Association (NGFA); Samuel J. Nasca on behalf of SMART/ Transportation Division, New York State Legislative Board (SMART); and the Western Coal Traffic League (WCTL). On November 1, 2017, the Board also received a letter from NGFA informing the Board that the following national agricultural producer and agribusiness organizations notified NGFA that they support NGFA's opening comments: National Association of State Departments of Agriculture, National Council of Farmer Cooperatives, National Farmers Union, National Oilseed Processors Association, and North American Millers' Association. --------------------------------------------------------------------------- Below, the Board addresses the comments submitted by parties in response to the NPRM and discusses clarifications and modifications being adopted in the final rule. The text of the final rule is also below. Changes to Definitions. In the NPRM, the Board proposed to add two new definitions to section 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.\11\ The Board [[Page 9224]] further proposed, as discussed in more detail below, that 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. --------------------------------------------------------------------------- \11\ Accordingly, the Board proposed to replace references to ``on-the-record proceedings'' with ``covered proceedings,'' as appropriate, throughout section 1102.2. --------------------------------------------------------------------------- Additionally, the Board proposed redefining 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 proposed new definition would alter the existing definition in two ways; first, by removing the existing concept that communications are only ex parte if made ``by or on behalf of a party'' and second, by removing the suggestion that an ex parte communication that is made with the ``consent of any other party'' could be permissible. The Board noted in the NPRM that 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. Such permissible communications include, for example, 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 Rail Customer and Public Assistance Program. ASLRRA, NGFA, and RCC support the proposed changes to the definitions. (ASLRRA Comments 3; NGFA Comments 5; RCC Comments 7.) ASLRRA argues that the proposed definitions and amendments preserve the transparency and fairness of the rulemaking process. (ASLRRA Comments 3.) WCTL supports the Board's proposed changes to the definition of ``ex parte communication.'' (WCTL Comments 23; WCTL Reply 9.) WCTL agrees with the Board that ex parte communications can be made by non- parties and that the definition of ``ex parte communication'' should encompass communications made by these non-parties. (WCTL Reply 9.) WCTL argues, however, that the Board should amend the definition of ``on-the-record proceeding'' to expressly include rate reasonableness and unreasonable practice adjudications. (WCTL Comments 19.) According to WCTL, rate reasonableness and unreasonable practice cases may not technically be formal ``on-the-record'' proceedings within the meaning of the APA, and adding the suggested text would remove any uncertainty. (Id. at 20.) AAR states that it does not oppose WCTL's suggestion. (AAR Reply 5.) The final rule will adopt the proposal as set forth in the NPRM. It is not necessary to amend the definition of ``on-the-record proceeding'' to specifically include rate reasonableness and unreasonable practice adjudications, as WCTL suggests. Although rate reasonableness and unreasonable practice formal complaints may not technically be covered by the APA definition of on-the-record proceedings, the definition of that term in the Board's regulations is sufficient to cover those types of proceedings, which are decided solely on the record. See 49 CFR 1102.2(a)(1). Communications That Are Not Prohibited. The Board also proposed in the NPRM to modify section 1102.2(b) to include additional categories of ex parte communications that are permissible and would not be subject to the disclosure requirements of proposed section 1102.2(e) and (g), discussed in more detail below. Specifically, the Board proposed adding to this category communications related to an informal rulemaking proceeding prior to the issuance of an NPRM; \12\ 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. Additionally, the Board proposed to modify the existing regulations to remove from section 1102.2(b)(1) the language permitting any communication ``to which all the parties to the proceeding agree.'' --------------------------------------------------------------------------- \12\ For example, informal communications following a notice of intent to institute a rulemaking proceeding or an advance notice of proposed rulemaking (ANPRM) would not be prohibited. See 49 CFR 1110.3(b). --------------------------------------------------------------------------- NGFA, RCC, and WCTL support including environmental review and judicial review communications within the scope of permitted ex parte communications. (NGFA Comments 5; RCC Comments 7; WCTL Comments 2; WCTL Reply 2, 10.) ASLRRA, NGFA, and RCC also support the proposal to permit ex parte communications prior to the issuance of an NPRM. (ASLRRA Comments 3; NGFA Comments 3; RCC Comments 7.) ASLRRA argues that allowing undisclosed ex parte communications prior to the issuance of an NPRM would enable the Board to obtain helpful stakeholder input, particularly in the preliminary stages of a rulemaking proceeding, without adversely implicating due process or raising administrative concerns. (ASLRRA Comments 3.) NGFA likewise supports permitting undisclosed ex parte communications before the issuance of an NPRM. (NGFA Comments 3.) According to NGFA, the information the Board gathers prior to the issuance of an NPRM would be evident within the NPRM itself. (Id.) NGFA, however, suggests that the Board adopt the practice of including in the NPRM a list of the identities of all stakeholders who provided input, as the Board did in Expediting Rate Cases, EP 733, slip op. at 2 n.3 (STB served June 15, 2016). (Id.) AAR, FRCA, SMART, and WCTL object to the Board's proposal to permit undisclosed ex parte communications prior to the issuance of an NPRM. (See AAR Comments 5-6; FRCA Comments 1; SMART Comments 10; WCTL Comments 21; AAR Reply 4.) AAR argues that the Board should require the disclosure of ex parte contacts occurring after the issuance of an ANPRM. (AAR Comments 5-6.) For cases initiated by a petition for rulemaking, AAR suggests that ex parte communications should be permitted, subject to disclosure requirements, once that petition has been filed and docketed. (AAR Reply 5.) AAR argues that such a rule would be consistent with Department of Transportation (DOT) policy that recommends disclosure of ex parte communications upon issuance of an ANPRM, and Federal Aviation Administration rules that require disclosure of ex parte communications before an ANPRM or an NPRM. (AAR Comments 6.) According to AAR, permitting such ex parte communications without disclosure may discourage stakeholder participation on the record. (AAR Comments 6; AAR Reply 4-5.) \13\ --------------------------------------------------------------------------- \13\ AAR also asks the Board to clarify whether ex parte communications would be permitted in major rail merger proceedings and suggests that the Board add a new paragraph section 1102.2(b)(7) permitting, as a communication that is not prohibited, ``[a]ny communication permitted by statute.'' (AAR Comments 7.) WCTL objected to AAR's suggestion, arguing that it does not comply with the provisions of 49 U.S.C. 11324(f) and conflicts with the Board's 1996 determination not to exercise its statutory authority under section 11324(f) to permit ex parte communications in merger cases. (WCTL Reply 8-9 (citing Pet. of Fieldston Co. to Establish Procedures Regarding Ex Parte Commc'ns in R.R. Merger Proceedings, 1 S.T.B. 1083, 1084-85 (1996)).) The Board finds that this request, related to major merger proceedings, is outside the scope of this proceeding, which focuses primarily on informal rulemaking proceedings; however, parties are free to raise the issue of the permissibility of ex parte communications in individual major merger proceedings. --------------------------------------------------------------------------- [[Page 9225]] WCTL likewise argues that the Board should apply ex parte communication disclosure rules and limitations to all publicly-docketed informal rulemaking proceedings where the Board has sought public comments (e.g., if the Board initiates a docketed proceeding using an ANPRM, the ex parte communication rules would apply starting when the ANPRM is docketed). (WCTL Comments 21; WCTL Reply 3-4.) WCTL argues that this would better advance the Board's objective of ``free flowing'' communications by allowing all interested members of the public to see what others are saying in ex parte meetings and to then respond to these communications. (WCTL Comments 21; WCTL Reply 4.) According to WCTL, permitting undisclosed ex parte communications prior to the issuance of an NPRM would discourage parties from filing detailed comments in response to ANPRMs and similar forms of pre-NPRM notices when those comments may be rejected based on ex parte communications that the parties were unaware of and had no opportunity to rebut. (WCTL Comments 21.) FRCA agrees with WCTL that disclosure requirements ``should not become operative only after an [NPRM] is served.'' (FRCA Comments 1.) Lastly, SMART argues that the 2014 ACUS Recommendation raises potential harms that would apply to ex parte communications prior to issuance of an NPRM (although the alleged potential harms are not specified by SMART). (SMART Comments 9-10 (citing 2014 ACUS Recommendation, 79 FR 35993-95).) Having reviewed the comments, the Board continues to believe that the benefits of not requiring disclosure for ex parte communications prior to the issuance of an NPRM outweigh the potential harms. Regarding the benefits, the Board agrees with ASLRRA that such communication would enable the Board to obtain helpful stakeholder input in crafting proposed regulations. Informal communications with stakeholders prior to issuance of an NPRM provide an opportunity for the Board to obtain useful information and input that would inform the development of the Board's proposal and help identify the issues the agency should consider. In fact, the final report to ACUS, on which the 2014 ACUS Recommendation is based, states that ``pre-NPRM ex parte communications are generally beneficial and do not implicate administrative and due process principles.'' Esa L. Sferra-Bonistalli, Ex Parte Commc'ns in Informal Rulemaking Final Report (Final Report), 69 (May 1, 2014) (prepared for consideration of the Admin. Conference of the U.S.), https://www.acus.gov/report/final-ex-parte-communications-report. The report continued, stating that ``[r]ather than restricting [ex parte] communications, agencies should experiment with how they can capitalize on the communications' value.'' Id. at 85. Thus, permitting informal communications pre-NPRM, without restrictions, such as disclosure and timing requirements, could lead to better policy-making by enabling a freer flow of communication during the preliminary, exploratory phase of a rulemaking proceeding. The Board believes that these benefits outweigh any potential harms. SMART's claim--that the ACUS report raises some important potential and anticipated harms that would apply to ex parte communications prior to issuance of an NPRM--is inconsistent with the conclusion of ACUS's recommendations. ACUS expressly states that ``[b]efore an agency issues [an NPRM], few if any restrictions on ex parte communications are desirable.'' 2014 ACUS Recommendation, 79 FR 35994. ACUS further states that pre-NPRM communications are ``less likely'' to pose the same harms as ex parte communications that take place later in the process, and ``can help an agency gather essential information, craft better regulatory proposals, and promote consensus building among interested persons.'' Id. In addition, the potential harm identified by both WCTL and AAR-- that commenters would be less likely to file comments on the record during a proceeding--seems unlikely. In a recent case where the Board invited and/or received informal stakeholder communications prior to the initiation of a proceeding, participation in the subsequent proceeding remained at a high level. See, e.g., Expediting Rate Cases, Docket No. EP 733 (25 comments received following informal communications). The Board believes that stakeholders will continue to weigh in on proposed rules (through written comments and/or disclosed ex parte communications) even where they have had an opportunity to share general and preliminary views with the agency pre-NPRM. Additionally, as the Board noted in the NPRM, any information gathered in a pre-NPRM meeting that the Board incorporates or relies upon in its proposal will be evident in the NPRM itself. See NPRM, EP 739, slip op. at 10. The public would have an opportunity to examine and respond to that information.\14\ The Board believes that parties will still have the incentive to participate through written comments following informal ex parte communications to ensure that the Board has a record that reflects their views. --------------------------------------------------------------------------- \14\ For example, as the Board noted in the NPRM, in Docket No. EP 733, Expediting Rate Cases, where Board staff held informal meetings with stakeholders with the goal of enhancing the Board staff's perspective on strategies and pathways to expedite and streamline rate cases, parties were permitted to comment on the details of the proposal, including those stemming from feedback gathered in the informal meetings. See NPRM, EP 739, slip op. at 10 n.12; see also Expediting Rate Cases, EP 733, slip op. at 1 (STB served June 15, 2017). --------------------------------------------------------------------------- For these reasons, the final rule will adopt the proposal regarding communications that are not prohibited as set forth in the NPRM. Communications That Are Prohibited. In the NPRM, the Board proposed to modify section 1102.2(c)(1) by adding the introductory clause, ``[e]xcept to the extent permitted by these rules'' to reflect the fact that the revised rules would now govern, but not entirely prohibit, ex parte communications. The Board also proposed amending section 1102.2(d) to clarify when ex parte prohibitions would take effect and how long they would remain in effect. Specifically, the NPRM provided that the prohibitions against ex parte communications in on-the-record proceedings would begin 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. The Board further proposed that, in informal rulemaking proceedings, except as provided in the new section 1102.2(g), discussed in more detail below, the prohibitions on ex parte communications would begin when the Board issues an NPRM. Lastly, the Board proposed to clarify that ex parte prohibitions in covered proceedings would remain in effect until the proceeding is no longer subject to administrative reconsideration under 49 U.S.C. 1322(c) or judicial review. [[Page 9226]] Commenters generally support this proposal. ASLRRA states that it supports the proposed changes to section 1102.2(d), which clarify when ex parte prohibitions would begin. (ASLRRA Comments 3.) Likewise, NGFA states that it supports changing the provision on when ex parte prohibitions begin to better reflect the various ways Board proceedings are initiated. (NGFA Comments 5.) NGFA and RCC also both support application of the ex parte prohibitions when the first filing or Board decision is posted to the public docket in an on-the-record proceeding. (Id.; RCC Comments 7-8.) No commenters raised specific objections to this aspect of the Board's proposal. Accordingly, the final rule will adopt the proposal as set forth in the NPRM. Procedures Upon Receipt of Prohibited Ex Parte Communications. The Board also proposed to revise section 1102.2(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 now be permissible under the revised regulation. First, the proposed rules clarified that the procedures in section 1102.2(e)(1) and (2) would apply to ``[a]ny Board Member, hearing officer or Board employee'' who receives an ex parte communication. Second, the proposal clarified that the procedures set forth in the existing section 1102.2(e) and (f) would apply only to communications not otherwise permitted by the regulation. Lastly, the Board proposed to amend the provision in section 1102.2(e)(1)--that currently 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 only comment in response to this aspect of the proposal was from WCTL, which states that it agrees with the Board's proposal to clarify the procedures the Board should follow if a Board Member or Board staff receives a prohibited ex parte communication. (WCTL Comments 24; WCTL Reply 10.) No commenters objected to the proposal. Accordingly, the final rule will adopt the proposal as set forth in the NPRM. Ex Parte Communications in Informal Rulemaking Proceedings. In the NPRM, the Board proposed to add a new section 1102.2(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 proposed rules provided that Board Members may delegate their participation in such ex parte communications to Board staff. Under the proposed rules, ex parte communications in informal rulemaking proceedings that occur outside of the permitted meeting period, that are made to Board staff where such participation has not been delegated by the Board, or that do not comply with the required disclosure requirements would be subject to the sanctions provided in section 1102.2(f). Further, the proposed rules provided that, to schedule an ex parte meeting, 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. The proposed rules also required 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 proposed 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 further provided that the meeting summaries would have to be sufficiently detailed to describe the substance of the ex parte communication. Under the proposed rules, presenters could be required to resubmit summaries that are insufficiently detailed or that contain inaccuracies as to the substance of the presentation. The proposed rules also provided that a single meeting summary could be submitted to the Board even if multiple parties, persons, or counsel were 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. The proposed rules would permit parties to present confidential information during ex parte meetings. Under the proposed rules, 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. 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 proposed rules provided that the presenting party would have to file a request with the Board seeking such an order no later than the date it submits its meeting summary. The proposed rules also required parties to submit summaries within two business days of an ex parte presentation or meeting. Under the proposed rules, the Board would post the summaries within seven days of submission of a summary that is complete for posting. Comments in Support. Most commenters were supportive of the Board's proposal to permit, subject to disclosure requirements, ex parte communications in informal rulemaking proceedings. (See AAR Comments 2; ASLRRA Comments 1; BNSF Comments 1; GMU Comments 1; RCC Comments 3.) AAR and ASLRRA state that the Board should adopt the proposed rules because they will lead to better reasoned decision-making and more informed rules. (AAR Comments 3; see also ASLRRA Comments 4.) AAR argues that the relatively modest burdens that ex parte meetings might place on stakeholders participating in rulemaking proceedings would be outweighed by the benefits of improved flow of relevant information to Board decision makers. (AAR Reply 3.) According to AAR, face-to-face communications would allow the Board to ensure that its data and information have not grown stale over time, and even when communications do not provide new information, face-to-face conversations summarizing and highlighting points of emphasis can provide value to decision-makers. (AAR Comments 4.) AAR also noted that the NPRM is responsive to stakeholder requests for more interaction with Board Members and staff. (Id.) ASLRRA also supports the proposed process for ex parte communications during informal rulemaking proceedings, stating that it [[Page 9227]] would ensure transparency and fairness. (ASLRRA Comments 3.) According to ASLRRA, the Board's proposal meets its goals of enhancing its ability to make informed decisions in informal proceedings while ensuring its record-building in rulemaking proceedings remains transparent and fair. (Id. at 1.) BNSF likewise supports the Board's proposal, stating that increased communications with the Board regarding informal rulemakings will provide value to both the Board and its stakeholders. (BNSF Comments 2.) According to BNSF, the Board's current ex parte regulations reflect the outdated and overly restrictive view of the Board's predecessor agency, the ICC, and are ``out of step'' with long-held doctrines of administrative law, the ex parte rules generally under the APA, and procedures of other federal agencies. (Id. at 1-2; see also AAR Comments 1 (``[T]he Board's application of its current regulations unnecessarily prohibits most informal communications with the Board and its staff in the informal rulemaking context.'').) BNSF argues that modernizing the Board's ex parte rules to permit an increased flow of information and technical expertise between the Board and its stakeholders during informal rulemaking proceedings will enable the Board to engage in more reasoned policymaking and should produce regulatory policies that are more grounded in the complex operational and market realities currently facing the rail industry. (BNSF Comments 1.) GMU asserts that the Board's proposed changes to the procedures for ex parte communications would promote responsible governance by facilitating promulgation of informed substantive rules while preserving transparency. (GMU Comments 1.) According to GMU, relaxing the Board's ex parte regulations would remove a procedural hurdle, making it easier for the Board to engage in informed notice-and-comment proceedings, which in turn encourages transparency. (Id. at 2.) GMU further argues that the Board has the statutory authority to change its ex parte communications regulations in the context of a notice-and- comment rulemaking, noting that both the APA notice-and-comment requirements and the statutory provisions governing the Board permit ex parte communications during informal rulemaking proceedings. (Id. at 2- 3.) RCC agrees that ex parte communications should be permitted in informal rulemaking proceedings if appropriate safeguards to preserve fairness and transparency also are adopted. (RCC Comments 3.) RCC states that ex parte communications in informal rulemakings would ultimately produce better outcomes. (Id.) According to RCC, face-to- face dialogue facilitates a more efficient exchange of information, development of ideas, explanation of concepts, and responsiveness to questions and would allow the Board to probe more deeply into subjects based upon the comments submitted. (Id. at 3-4.) RCC further states that the Board would also benefit from clarification of concepts and proposals submitted in written comments, especially in proceedings that implicate complex technical matters. (Id. at 4.) As further support for the Board's proposal, a number of commenters cite their positive experiences participating in ex parte meetings in recent Board proceedings where the agency waived the ex parte prohibition. (See, e.g., BNSF Comments 2 (noting that the ex parte meetings in U.S. Rail Serv. Issues--Performance Data Reporting, Docket No. EP 724 (Sub-No. 4), better informed the Board about highly technical service reporting issues and resulted in regulations that were more efficiently tailored to the realities of railroad operations); NGFA Comments 2-3 (stating that its ex parte meeting in U.S. Rail Serv. Issues--Performance Data Reporting, Docket No. EP 724 (Sub-No. 4), was extremely beneficial because it allowed NGFA to explain the details of their railroad service needs and concerns and to answer Board staff's questions in a more effective manner); RCC Comments 1-2 (noting positive experiences with ex parte meetings in Reciprocal Switching, Docket No. EP 711 (Sub-No. 1), and U.S. Rail Serv. Issues--Performance Data Reporting, Docket No. EP 724 (Sub-No. 4), as well as the informal meetings in Expediting Rate Cases, Docket No. EP 733).) Comments Requesting Modifications. Several commenters, while expressing overall support for the Board's proposal, suggest modifications that they argue would improve the rule. RCC urges the Board to be mindful of informal rulemaking proceedings that are closely associated with pending adjudicatory proceedings. (RCC Comments 6.) In that regard, RCC suggests that the Board establish safeguards against parties using permissible ex parte communications in the rulemaking proceedings to circumvent the prohibition of the same in adjudicatory proceedings. (Id.; see also WCTL Comments 18; AAR Reply 5.) RCC suggests that the most effective potential modifications would be to either: (1) Not allow ex parte communications in rulemakings that are closely associated with pending cases, or (2) not apply any rules that were developed in a rulemaking that utilized ex parte communications in pending adjudications. (RCC Comments 6.) NGFA and RCC both suggest that the Board modify the period during which ex parte communications would be permitted. (NGFA Comments 4; RCC Comments 5-6.) Specifically, they suggest that the Board permit ex parte communications for a specified time (e.g., 30 days) after the deadline for filing reply comments--subject to the same disclosure requirement contained in the NPRM--and permit written responses confined specifically to the content of the ex parte communication within 10 days thereafter. (NGFA Comments 4; RCC Comments 5-6.) According to both commenters, under the Board's proposal, which would prohibit ex parte communications within 20 days of the deadline for written reply comments, stakeholders would not have enough time to both participate in ex parte meetings and also review and prepare responses to other parties' written comments. (NGFA Comments 4; RCC Comments 4- 5.) RCC adds that, in those proceedings where the Board solicits three rounds of comments, rather than the usual two rounds, the Board could apply its 20-day rule to the third round of comments and still preserve most of the benefits from ex parte communications. (RCC Comments 6.) RCC requests that, at a minimum, the Board express its willingness to extend the 20-day deadline on a case-by-case basis when appropriate to realize the benefits of ex parte communications in informal rulemakings. (Id.) AAR concurs in a modification that would permit ex parte communications for a specific time after the submission of at least two rounds of comments, stating that this change would allow meetings held with Board Members or staff to reflect all the issues in the record and would not create any incentives for parties to hold evidence or arguments back for the reply round. (AAR Reply 4.) WCTL, however, opposes allowing ex parte communications following the written comment period because it claims that doing so would add unnecessary cost and delay to rulemaking proceedings. (WCTL Reply 7-8.) WCTL also notes that ex parte communications conducted after the comment period has closed are disfavored by ACUS. (Id. at 8 (citing 2014 ACUS Recommendation, 79 FR 35994).) [[Page 9228]] Additionally, AAR states that the proposal in section 1102.2(g)(1), which authorizes the Board to delegate its participation in such ex parte communications to Board staff, implies that such a delegation would require an entire board decision, which AAR argues would be unnecessarily formalistic. (AAR Comments 7.) AAR suggests that the Board should expand the proposed rules to indicate that communications with staff during the appropriate period are permissible, subject to disclosure rules. (Id.) AAR indicates there are many instances where technical information could be best explained to staff responsible for the subject matter, like financial reporting, costing, or railroad operations. (Id.) Regarding the proposed disclosure requirements, NGFA states that it supports the Board's proposals concerning the preparation and disclosure of ex parte meeting summaries that are detailed sufficiently to describe the substance of the communication, but recommends that the Board shorten the period for posting the meeting summaries from seven calendar days (as the Board proposed) to two business days. (NGFA Comments 4-5.) NGFA argues that this change would align with the two- business-day requirement for meeting summaries to be submitted by the participants in the ex parte communication and would provide for more timely transparency and opportunity for review by interested parties. (Id. at 5.) Comments in Opposition. Some commenters object to the idea of allowing ex parte communication in informal rulemaking proceedings or suggest that, if allowed, such communications be utilized more sparingly. SMART states that railroad employees, represented by SMART, would be adversely affected by a `` `closed door' and secret [Board] tribunal.'' (SMART Comments 4.) According to SMART, the Board's proposal would ``abolish[ ]'' the prohibition on ex parte communications in most, if not all rulemakings, since the terms ``informal'' and ``formal'' rulemakings are not in the APA. (SMART Comments 3 n.2.) SMART argues that ``unrestricted'' and ``wide- ranging'' ex parte communications would be ``prejudicial to parties and counsel situated at a distance,'' because the Board does not have regional offices and rarely sets hearings outside the Washington, DC area. (SMART Comments 7.) It contends that telephonic communications are ``not a satisfactory alternative for face-to-face participation.'' (Id.) SMART further argues that ``[t]here is nothing to suggest that face-to-face communication will better promote efficiency so as to substitute for the written word in the decisionmaking process''; rather, the ``real impact of ex parte communication repeal would be to limit the audience, restrict the spread of knowledge, and * * * impair the final action.'' (SMART Reply 4.) SMART also argues that joint meetings conducted with other parties and agency personnel could be problematic. (SMART Comments 8.) According to SMART, the Board need not adopt the proposed rule because it may continue to waive its ex parte prohibition, as it has done in two recent proceedings. (Id. at 7.) SMART also argues that the benefit of oral communication can be achieved through oral argument. (SMART Reply 5.) WCTL argues that the Board's proposal would increase the cost of participating in a rulemaking proceeding, (WCTL Comments 15), and likely result in substantial administrative delay, (Id. at 16). WCTL argues that the proposal would lead parties to believe they must participate in the ex parte communication process or they will be ``left out.'' (Id. at 15.) WCTL also argues that shippers, unlike large railroads, frequently lack the time and financial resources to participate in ex parte meetings, which can create the perception of an unlevel playing field. (Id. at 17.) WCTL further argues that, in many proceedings, the Board may have more efficient administrative tools to address concerns with the record, such as the use of technical conferences. (Id. at 16.) According to WCTL, unless the Board requires that ex parte sessions be video-taped and then makes the tapes publicly available, the perception may continue to be that deals are being done ``behind closed doors,'' not in open fora. (Id. at 17.) WCTL argues that the Board should instead continue to allow ex parte communications in informal rulemaking proceedings on a case-by-case basis. (Id. at 1, 14, 18; WCTL Reply 2, 5.) WCTL asserts that a case-by-case approach would address concerns raised by other commenters in this proceeding. (WCTL Reply 6-7.) FRCA agrees with WCTL that the Board should determine whether to permit ex parte communications on a case-by-case basis, although FRCA also acknowledges the benefits of ex parte communications in rulemakings generally. (FRCA Comments 1.) According to FRCA, permitting ex parte communications should not be the ``automatic default'' until the Board has accumulated more experience with ex parte communications. (Id.) AAR disagrees with WCTL that ex parte communications could result in administrative delay. (AAR Reply 5.) According to AAR, WCTL's suggestion of using technical conferences instead of ex parte meetings does not have to be an ``either/or'' proposition, as greater use of technical conferences could supplement NPRM proposals. (Id. at 3.) AAR also disagrees with WCTL's suggestion that the Board should permit ex parte communications in informal rulemaking proceedings on a case-by- case basis. (Id. at 2.) AAR argues that stakeholders will be best equipped to fully participate in a rulemaking when the rules for such participation are known in advance. (Id.) AAR notes that pre- established rules would save the Board from expending its limited time and resources on ad hoc determinations related to ex parte communications in every rulemaking proceeding on its docket. (Id. at 2- 3.) AAR further asserts that the proposed rules would allow the Board, on a case-by-case basis, to restrict communications in a particular proceeding, if the concerns cited by WCTL or others present themselves. (Id. at 3.) Board Determination. After considering all of the comments, the Board concludes that direct communications with stakeholders in informal rulemaking proceedings, in accordance with a transparent and fair record-building process, would enhance the Board's consideration of issues and better enable it to promulgate the most effective regulations. The Board will first address the arguments of commenters that oppose the proposed rule. Then, the Board will address the suggested modifications to the proposed rule. The commenters that urge the Board to withdraw the proposal in favor of continuing to prohibit ex parte communications in rulemakings have not identified a potential or likely harm that outweighs the benefits of such communications. Specifically, the Board disagrees with SMART that permitting ex parte communications in informal rulemaking proceedings would create a ``secret [Board] tribunal'' and with WCTL that ex parte sessions must be video-taped and made publicly available in order not to be perceived as ``behind closed doors.'' The final rule incorporates safeguards to ensure the rulemaking process remains fair and transparent, such as requiring the written and public disclosure of ex parte communications received after a rule is proposed and providing parties an opportunity to submit written comments in response to those summaries. The Board agrees with RCC [[Page 9229]] that the safeguards the Board has proposed are sufficient to preserve fairness and transparency in informal rulemakings. As noted above, the Board has gained familiarity in recent proceedings with developing such safeguards and has used that experience to develop the proposed rules. Additionally, as several commenters noted, the final rule is consistent with the practices of other agencies and the best practices guidelines published by ACUS.\15\ --------------------------------------------------------------------------- \15\ SMART's assertion that the proposed rule improperly would ``abolish[]'' the prohibition on ex parte communications in most, if not all, rulemakings is not relevant to this proceeding. The APA prohibits ex parte communications in formal proceedings, but not in informal rulemaking proceedings. See Sierra Club, 657 F.2d at 402 (noting that Congress declined to extend the ex parte prohibition applicable to formal rulemakings to informal rulemakings despite being urged to do so). Should the Board conduct a rulemaking that is subject to the APA restriction, the rules proposed here would not apply. --------------------------------------------------------------------------- The Board also disagrees that the proposal would disadvantage witnesses and counsel located outside the Washington, DC area, as SMART asserts. As indicated in the NPRM, EP 739, slip op. at 8, 13, parties will be permitted to participate in ex parte meetings via telephone or videoconferencing. Indeed, ex parte meetings have been conducted remotely, and the Board does not believe that there is any significant difference in the effectiveness of the interaction between face-to-face meetings and meetings occurring via telephone or videoconferencing. Additionally, in response to SMART's argument that there is no evidence that direct communication will promote more efficiency in the decision- making process than written comments, the Board notes that ex parte communications are not intended to replace written comments in a rulemaking. Rather, ex parte communications are a supplement to the written record and provide parties with yet another avenue for communicating their needs and concerns to the Board. Ex parte communications would actually enhance the usefulness of written comments, as such communications would allow Board Members to obtain clarification and seek additional information regarding arguments contained in the written opening comments. The Board is not persuaded that WCTL's argument that parties will believe they must participate in the ex parte communication process to avoid having less access than others warrants limiting all parties' access to this communication tool. A party's decision whether or not to engage in ex parte communications is not much different than having to decide whether to participate through more traditional means, such as submitting written comments or participating in a hearing. In fact, unlike a traditional hearing, the proposal here would allow parties to participate remotely, as the Board is permitting ex parte meetings to be conducted via telephone and videoconference, which could reduce a party's cost to participate in a proceeding. The Board is confident that parties will be able to assess the appropriate level of participation for their organization based on their particularized interest in the subject matter. The Board's intention here is to provide stakeholders with increased access to the Board while maintaining a fair and transparent record-building process, and, for the reasons discussed in this decision, the Board believes the final rule achieves that goal. Additionally, the Board is not persuaded that permitting ex parte communications in informal rulemaking proceedings will result in ``significant administrative delay,'' as WCTL claims. While WCTL is correct that permitting ex parte communications necessarily will add some time to rulemaking proceedings, the Board believes that the benefit of the additional information provided will outweigh the disadvantages of a slightly longer procedural schedule. Based on the Board's experiences, incorporating ex parte communication into the informal rulemaking process results in final rules that better reflect the needs and concerns of the Board's stakeholders. (See AAR Comments 3; ASLRRA Comments 4; BNSF Comments 2; NGFA Comments 2-3; RCC Comments 1-2, 3; AAR Reply 3); see also 2014 ACUS Recommendation, 79 FR 35994. Contrary to SMART's and WCTL's arguments, the Board does not intend ex parte communications to be a substitute for oral argument or technical conferences in informal rulemaking proceedings. Rather, ex parte communications would supplement the tools currently available in rulemaking proceedings. If the Board believes oral argument or technical conferences would be useful, it may decide to include those steps as a supplement to (or even in lieu of, if the circumstances warrant) ex parte communications. To the extent that SMART and WCTL argue that the Board's recent practice of waiving the ex parte prohibition in particular proceedings is superior to the proposed rules, the Board agrees with AAR that stakeholders will be better equipped to fully participate in an informal rulemaking when the rules for participation are well- established. As AAR notes, pre-established rules would save the Board from expending time and resources on ex parte determinations in every rulemaking proceeding. Additionally, as several parties note, the Board by decision could restrict communications in a particular proceeding, where appropriate. Thus, the Board will not accept WCTL's and SMART's recommendation that the Board continue to waive its ex parte regulations on a case-by-case basis, rather than adopting changes to its ex parte regulations permitting ex parte regulations in informal rulemaking proceedings. Several parties proposed modifications to the Board's proposed ex parte communication procedures, which the Board addresses below. With regard to the most appropriate deadline for the conclusion of ex parte meetings in an informal rulemaking proceeding, the Board continues to believe that the cutoff should be 20 days before the reply comment deadline. NGFA's, RCC's, and AAR's suggestions--that the Board permit ex parte communications for a specified time after the deadline for filing reply comments--would add an additional round of comments and result in a longer proceeding than under the Board's proposal. Indeed, as WCTL argues, post-comment period ex parte communications are disfavored by ACUS given the propensity of those communications to delay proceedings if significant information is presented to the agency late in the process. (See WCTL Reply 8; see also 2014 ACUS Recommendation, 79 FR 35994.) ACUS notes in 2014 ACUS Recommendation that ``the dangers associated with agency reliance on privately- submitted information become more acute'' after the comment period closes and may require an agency to reopen the comment period. Post- comment period ex parte communications are also generally discouraged at several other agencies. See Final Report at 57, 59-60, 64 (noting prohibition or discouragement of post-comment period ex parte contacts at DOT, the U.S. Coast Guard, the Department of Education and the Federal Trade Commission). In addition, RCC's suggestion that the Board could permit written responses limited to just the ex parte communication meeting summaries could lead to disputes between commenters as to whether the response is properly limited to the summaries and put the Board in the position of having to resolve such disputes, which [[Page 9230]] would only add to the complexity of the rulemaking process. However, considering NGFA's and RCC's arguments that parties may have insufficient time during the comment period to both prepare written comments and participate in ex parte meetings, the Board will be cognizant of such constraints when establishing reply comment period deadlines in rulemaking proceedings. Also, in particular proceedings, if a party is unable to both prepare written comments and participate in ex parte meetings within this deadline, it may seek an extension. Additionally, if the Board concludes in a particular proceeding that ex parte discussions would be more beneficial following the submission of written comments (e.g., in highly technical rulemakings where post comment ex parte communication would be beneficial to ensure the Board understands the complex, technical data and arguments), the Board may modify the procedural schedule to permit such discussion. See infra App. A, section 1102.2(g)(1) (``unless otherwise specified by the Board in procedural orders governing the proceeding''). The Board agrees with RCC that the Board must be mindful of informal rulemaking proceedings that are closely associated with pending adjudicatory proceedings to ensure that permissible ex parte communications in the rulemaking proceedings are not used to circumvent the prohibition of the such communications in the related adjudicatory proceedings. If the Board determines that ex parte communications are not appropriate for a particular rulemaking proceeding based on this concern, it can issue an order declining to permit such meetings in that particular proceeding. And if the Board concludes that ex parte meetings can be used, the Board may provide additional guidelines in its procedural order and inform parties of its expectations at the beginning of ex parte meetings. AAR raises a concern that the proposed language in section 1102.2(g)(1) implies that Board staff may only participate in ex parte communications after a delegation of authority through an ``entire board'' decision. The Board clarifies here that, under the proposal, no delegation would be required for Board staff to attend ex parte meetings scheduled with a Board Member (at that Member's request). A delegation of authority would be required only where the ex parte meetings would occur solely with staff (i.e., no Board Member in attendance), such as the ex parte meetings that occurred in U.S. Rail Service Issues--Performance Data Reporting, Docket No. EP 724 (Sub No. 4). Thus, it is the Board's determination that ex parte meetings will be conducted under the auspices of the Board Members' offices, unless the Board determines otherwise. AAR's suggestion that the Board permit, as a default option, ex parte communications with any Board staff could render the disclosure process--which is essential to maintaining fairness and transparency--unduly complicated. Under the AAR's proposal, the number of potential stakeholder meetings could increase exponentially, and after every such meeting, each individual staff contact would be required to be summarized and disclosed in a meeting summary that would be posted to the public docket, to which other parties would then have to review and possibly file responses. The Board, however, recognizes AAR's concern that there may be instances where interaction with Board technical staff would be beneficial. The Board anticipates that individual Members will make a concerted effort to include relevant staff in ex parte meetings or delegate the meetings to Board staff, when appropriate. In response to NGFA's request that the Board shorten the time permitted for meeting summaries to be posted by the Board, the Board will reduce the allotted time from within seven days of submission to within five days of submission. The Board believes that fewer than five days would not provide sufficient time for the Board to confirm that a meeting summary is sufficiently detailed to describe the substance of the presentation and request resubmissions, if necessary. However, the Board will endeavor to post meeting summaries as soon as they are ready. Thus, the final rule will adopt the proposal as set forth in the NPRM with this one modification. Application of the Final Rule. In its comments, WCTL argues that new ex parte communication rules should not be retroactively applied to pending proceedings. (WCTL Comments 22.) WCTL is concerned generally that the retroactive application of the new rules in pending proceedings would delay Board action in those proceedings. (Id. at 23; WCTL Reply 9 n.22.) AAR states that it does not disagree with WCTL and notes that if the Board believes that further communications would be beneficial in ongoing proceedings, the Board could issue waivers in those proceedings on a going-forward basis. (AAR Reply 5.) RCC, however, requests that the Board retroactively apply its new ex parte communications rules in one pending rulemaking proceeding, Review of Commodity, Boxcar, and TOFC/COFC Exemptions, Docket No. EP 704. (RCC Comments 7.) According to RCC, permitting ex parte meetings to occur in that rulemaking proceeding would ensure that the benefits and impacts of any final Board decision are fully understood by the Board and would, given the anticipated changes to the make-up of the Board since the proceeding was first instituted, help in briefing and educating any newly confirmed Board Members in their understanding of the issues. (Id.) The final rule will not be applied retroactively to pending proceedings. Rather, the final rule adopted here will apply to proceedings newly initiated following the effective date of the final rule. The Board, however, may waive the prohibition on ex parte communications in pending informal rulemaking proceedings on a case-by- case basis, as it did prior to the final rule. In such instances, the Board will set out the procedures that will govern such communications in an order. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. Sections 601-604. In its final rule, the agency must either include a final regulatory flexibility analysis, section 604(a), or certify that the proposed rule would not have a ``significant impact on a substantial number of small entities,'' section 605(b). The impact must be a direct impact on small entities ``whose conduct is circumscribed or mandated'' by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009). In the NPRM, the Board certified under 5 U.S.C. 605(b) that the proposed rule would not have a significant economic impact on a substantial number of small entities within the meaning of the RFA.\16\ The Board [[Page 9231]] explained that 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. The Board noted that, while the proposed rules would require parties to provide written summaries of the ex parte communications, based on the Board's experiences in Reciprocal Switching, Docket No. EP 711 (Sub-No. 1), and U.S. Rail Service Issues--Performance Data Reporting, Docket No. 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 U.S. Rail Service Issues--Performance Data Reporting, Docket No. 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 Reciprocal Switching, Docket No. EP 711 (Sub-No. 1), the meeting summaries ranged from one to four pages in length, with the majority of those summaries being three or fewer pages long. Therefore, the Board certified under 5 U.S.C. 605(b) that these proposed rules, if promulgated, would not place any significant burden on a substantial number of small entities. --------------------------------------------------------------------------- \16\ Effective June 30, 2016, for the RFA analysis for rail carriers subject to Board jurisdiction, the Board defines a ``small business'' as only those rail carriers classified as Class III rail carriers under 49 CFR 1201.1-1. See Small Entity Size Standards Under the Regulatory Flexibility Act, EP 719 (STB served June 30, 2016) (with Board Member Begeman dissenting). Class III carriers have annual operating revenues of $20 million or less in 1991 dollars, or $35,809,698 or less when adjusted for inflation using 2016 data. Class II rail carriers have annual operating revenues of less than $250 million in 1991 dollars or less than $447,621,226 when adjusted for inflation using 2016 data. The Board calculates the revenue deflator factor annually and publishes the railroad revenue thresholds on its website. 49 CFR 1201.1-1. --------------------------------------------------------------------------- The final rule adopted here revises the rules proposed in the NPRM; however, the same basis for the Board's certification of the proposed rule applies to the final rule. Thus, the Board again certifies under 5 U.S.C. 605(b) that the final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416. List of Subjects in 49 CFR part 1102 Administrative practice and procedure. It is ordered: 1. The Board adopts the final rule as set forth in this decision. Notice of the adopted rule will be published in the Federal Register. 2. This decision is effective April 4, 2018. 3. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration. Decided: February 27, 2018. By the Board, Board Members Begeman and Miller. Brendetta S. Jones, Clearance Clerk. For the reasons set forth in the preamble, the Surface Transportation Board amends 49 CFR part 1102 as follows: PART 1102--COMMUNICATIONS 0 1. The authority citation for part 1102 is revised to read as follows: Authority: 49 U.S.C. 1321. 0 2. Amend Sec. 1102.2 as follows: 0 a. Revise the section heading; 0 b. Redesignate paragraphs (a)(2) and (3) as paragraphs (a)(4) and (5) and add new paragraphs (2) and (3); 0 c. Revise newly redesignated paragraph (a)(5); 0 d. Revise paragraphs (b) through (e); 0 e. In paragraph (f)(1), remove ``concerning the merits of a proceeding''; 0 f. In paragraph (f)(2), add ``covered'' before the word ``proceeding''; 0 g. Revise paragraph (f)(3); and 0 h. Add paragraph (g). The revisions and additions read as follows: Sec. 1102.2 Procedures governing ex parte communications. (a) * * * (2) ``Informal rulemaking proceeding'' means a proceeding to issue, amend, or repeal rules pursuant to 5 U.S.C. 553 and part 1110 of this chapter. (3) ``Covered proceedings'' means on-the-record proceedings and informal rulemaking proceedings following the issuance of a notice of proposed rulemaking. * * * * * (5) ``Ex parte communication'' means an oral or written communication that concerns the merits or substantive outcome of a pending proceeding; is made without notice to all parties and without an opportunity for all parties to be present; and could or is intended to influence anyone who participates or could reasonably be expected to participate in the decision. (b) Ex parte communications that are not prohibited and need not be disclosed. (1) Any communication that the Board formally rules may be made on an ex parte basis; (2) Any communication occurring in informal rulemaking proceedings prior to the issuance of a notice of proposed rulemaking; (3) Any communication of facts or contention which has general significance for a regulated industry if the communicator cannot reasonably be expected to have known that the facts or contentions are material to a substantive issue in a pending covered proceeding in which it is interested; (4) Any communication by means of the news media that in the ordinary course of business of the publisher is intended to inform the general public, members of the organization involved, or subscribers to such publication with respect to pending covered proceedings; (5) Any communications related solely to the preparation of documents necessary for the Board's implementation of the National Environmental Policy Act and related environmental laws, pursuant to part 1105 of this chapter; (6) Any communication concerning judicial review of a matter that has already been decided by the Board made between parties to the litigation and the Board or Board staff who are involved in that litigation. (c) General prohibitions. (1) Except to the extent permitted by the rules in this section, no party, counsel, agent of a party, or person who intercedes in any covered proceeding shall engage in any ex parte communication with any Board Member, hearing officer, or Board employee who participates, or who may reasonably be expected to participate, in the decision in the proceeding. (2) No Board Member, hearing officer, or Board employee who participates, or is reasonably expected to participate, in the decision in a covered proceeding shall invite or knowingly entertain any ex parte communication or engage in any such communication to any party, counsel, agent of a party, or person reasonably expected to transmit the communication to a party or party's agent. (d) When prohibitions take effect. In on-the-record proceedings, the prohibitions against ex parte communications apply from the date on which the first filing or Board decision in a proceeding is posted to the public docket by the Board, or when the person responsible for the communication has knowledge that such a filing has been filed, or at any time the Board, by rule or decision, specifies, whichever occurs first. In informal rulemaking proceedings, except as provided in [[Page 9232]] paragraph (g) of this section, the prohibitions against ex parte communications apply following the issuance of a notice of proposed rulemaking. The prohibitions in covered proceedings continue until the proceeding is no longer subject to administrative reconsideration under 49 U.S.C. 1322(c) or judicial review. (e) Procedure required of Board Members and Board staff upon receipt of prohibited ex parte communications. (1) Any Board Member, hearing officer, or Board employee who receives an ex parte communication not permitted by these regulations must promptly transmit either the written communication, or a written summary of the oral communication with an outline of the surrounding circumstances to the Chief, Section of Administration, Office of Proceedings, Surface Transportation Board. The Section Chief shall promptly place the written material or summary in the correspondence section of the public docket of the proceeding with a designation indicating that it is a prohibited ex parte communication that is not part of the decisional record. (2) Any Board Member, hearing officer, or Board employee who is the recipient of such ex parte communication may request a ruling from the Board's Designated Agency Ethics Official as to whether the communication is a prohibited ex parte communication. The Designated Agency Ethics Official shall promptly reply to such requests. The Chief, Section of Administration, Office of Proceedings, shall promptly notify the Chairman of the Board of such ex parte communications sent to the Section Chief. The Designated Agency Ethics Official shall promptly notify the Chairman of all requests for rulings sent to the Designated Agency Ethics Official. The Chairman may require that any communication be placed in the correspondence section of the docket when fairness requires that it be made public, even if it is not a prohibited communication. The Chairman may direct the taking of such other action as may be appropriate under the circumstances. (f) * * * (3) The Board may censure, suspend, dismiss, or institute proceedings to suspend or dismiss any Board employee who knowingly and willfully violates the rules in this section. (g) Ex parte communications in informal rulemaking proceedings; disclosure requirements. (1) Notwithstanding paragraph (c) of this section, ex parte communications with Board Members in informal rulemaking proceedings are permitted after the issuance of a notice of proposed rulemaking and until 20 days before the deadline for reply comments set forth in the notice of proposed rulemaking, unless otherwise specified by the Board in procedural orders governing the proceeding. The Board may delegate its participation in such ex parte communications to Board staff. All such ex parte communications must be disclosed in accordance with paragraph (g)(4) of this section. Any person who engages in such ex parte communications must comply with any schedule and additional instructions provided by the Board in the proceeding. Communications that do not comply with this section or with the schedule and instructions established in the proceeding are not permitted and are subject to the procedures and sanctions in paragraphs (e) and (f) of this section. (2) To schedule ex parte meetings permitted under paragraph (g)(1) of this section, parties should contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance or the Board Member office with whom the meeting is requested, unless otherwise specified by the Board. (3) Parties seeking to present confidential information during an ex parte communication must inform the Board of the confidentiality of the information at the time of the presentation and must comply with the disclosure requirements in paragraph (g)(4)(iv) of this section. (4) The following disclosure requirements apply to ex parte communications permitted under paragraph (g)(1) of this section: (i) Any person who engages in ex parte communications in an informal rulemaking proceeding shall submit to the Board Member office or delegated Board staff with whom the meeting was held a memorandum that states the date and location of the communication; lists the names and titles of all persons who attended (including via phone or video) or otherwise participated in the meeting during which the ex parte communication occurred; and summarizes the data and arguments presented during the ex parte communication. Any written or electronic material shown or given to Board Members or Board staff during the meeting must be attached to the memorandum. (ii) Memoranda must be sufficiently detailed to describe the substance of the presentation. Board Members or Board staff may ask presenters to resubmit memoranda that are not sufficiently detailed. (iii) If a single meeting includes presentations from multiple parties, counsel, or persons, a single summary may be submitted so long as all presenters agree to the form and content of the summary. (iv) If a memorandum, including any attachments, contains information that the presenter asserts is confidential, the presenter must submit a public version and a confidential version of the memorandum. If there is no existing protective order governing the proceeding, the presenter must, at the same time the presenter submits its public and redacted memoranda, file a request with the Board seeking such an order pursuant to Sec. 1104.14 of this chapter. (v) Memoranda must be submitted to the Board in the manner prescribed no later than two business days after the ex parte communication. (vi) Ex parte memoranda submitted under this section will be posted on the Board's website in the docket for the informal rulemaking proceeding within five days of submission. If a presenter has requested confidential treatment for all or part of a memorandum, only the public version will appear on the Board's website. Persons seeking access to the confidential version must do so pursuant to the protective order governing the proceeding. [FR Doc. 2018-04411 Filed 3-2-18; 8:45 am] BILLING CODE 4915-01-P
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§ 225.19 Primary groups of accidents/ parte communications in informal Rules of Practice, 358 I.C.C. 323, 345
incidents. rulemaking proceedings. The Board also (1977).3 At that time, several court
* * * * * adopts other changes to its ex parte decisions expressed the view that ex
(c) Group II—Rail equipment. Rail rules that would clarify and update parte communications in informal
equipment accidents/incidents are when and how interested persons may rulemaking proceedings were inherently
collisions, derailments, fires, communicate informally with the Board suspect.4 Accordingly, it has long been
explosions, acts of God, and other regarding pending proceedings other the agency’s practice to prohibit
events involving the operation of on- than rulemakings. The intent of the meetings with individual stakeholders
track equipment (standing or moving) modified regulations is to enhance the on issues that are the topic of pending
that result in damages higher than the Board’s ability to make informed informal rulemaking proceedings.
current reporting threshold (i.e., $6,700 decisions through increased stakeholder At the same time, however, other
for calendar years 2002 through 2005, communications while ensuring that the court decisions were more tolerant of ex
$7,700 for calendar year 2006, $8,200 Board’s record-building process in parte communications in informal
for calendar year 2007, $8,500 for rulemaking proceedings remains rulemaking proceedings, so long as the
calendar year 2008, $8,900 for calendar transparent and fair. proceedings were not quasi-adjudicative
year 2009, $9,200 for calendar year DATES: This rule is effective on April 4, in nature and the process remained
2010, $9,400 for calendar year 2011, 2018. fair.5 In 1981, in Sierra Club v. Costle,
$9,500 for calendar year 2012, $9,900 657 F.2d 298 (D.C. Cir. 1981), the U.S.
ADDRESSES: Requests for information or
for calendar year 2013, $10,500 for Court of Appeals for the District of
questions regarding this final rule
calendar year 2014, $10,500 for calendar Columbia Circuit significantly clarified
should reference Docket No. EP 739 and
year 2015, $10,500 for calendar year and liberalized treatment of this issue.
be in writing addressed to: Chief,
2016, and $10,700 for calendar years In that case, the court considered the
Section of Administration, Office of
2017 and beyond, until revised) to ‘‘timing, source, mode, content, and the
Proceedings, Surface Transportation
railroad on-track equipment, signals, extent of . . . disclosure’’ of numerous
Board, 395 E Street SW, Washington, DC
tracks, track structures, or roadbed, written and oral ex parte
20423–0001. communications received after the close
including labor costs and the costs for
FOR FURTHER INFORMATION CONTACT: of the comment period to determine
acquiring new equipment and
Jonathon Binet at (202) 245–0368. whether those communications violated
material.
Assistance for the hearing impaired is the governing statute or due process. Id.
* * * * * available through the Federal
(e) The reporting threshold is $6,700 at 391. The court held that, because the
Information Relay Service (FIRS) at agency docketed most of the ex parte
for calendar years 2002 through 2005, (800) 877–8339.
$7,700 for calendar year 2006, $8,200 communications and none of the
SUPPLEMENTARY INFORMATION: The comments were docketed ‘‘so late as to
for calendar year 2007, $8,500 for
Board’s current regulations at 49 CFR
calendar year 2008, $8,900 for calendar
1102.2 generally prohibit most informal presiding officers, and a strict ex parte prohibition.
year 2009, $9,200 for calendar year
communications between the Board and See 5 U.S.C. 556–57. But most federal agency
2010, $9,400 for calendar year 2011, rulemakings, including the Board’s, are informal
interested persons concerning the merits
$9,500 for calendar year 2012, $9,900 rulemaking proceedings subject instead to the less
of pending Board proceedings. These restrictive ‘‘notice-and-comment’’ requirements of 5
for calendar year 2013, $10,500 for
regulations require that communications U.S.C. 553.
calendar year 2014, $10,500 for calendar
with the Board or Board staff regarding 3 In Revised Rules of Practice, the ICC stated ‘‘ex
year 2015, $10,500 for calendar year parte communication during a rulemaking is just as
the merits of an ‘‘on-the-record’’ Board
2016, and $10,700 for calendar years improper as it is during any other proceeding. The
proceeding not be made on an ex parte Commission’s decisions should be influenced only
2017 and beyond, until revised. The
basis (i.e., without the knowledge or by statements that are a matter of public record.’’
procedure for determining the reporting
consent of the parties to the 358 I.C.C. at 345.
threshold for calendar years 2006 and 4 See, e.g., Home Box Office v. Fed. Commc’ns
proceeding).1 See 49 CFR 1102.2(a)(3),
beyond appears as paragraphs 1–8 of Comm’n, 567 F.2d 9, 51–59 (D.C. Cir. 1977) (finding
(c). The current regulations detail the
appendix B to part 225. that ex parte communications that occurred after
procedures required in the event an the notice of proposed rulemaking (NPRM) violated
* * * * * impermissible communication occurs the due process rights of the parties who were not
and the potential sanctions for privy to the communications because the written
Juan D. Reyes, III, administrative record would not reflect the possible
Chief Counsel. violations. See 49 CFR 1102.2(e), (f). ‘‘undue influence’’ exerted by those stakeholders
[FR Doc. 2018–04349 Filed 3–2–18; 8:45 am]
In 1977, the Board’s predecessor who had engaged in ex parte communications);
agency, the Interstate Commerce Nat’l Small Shipments Traffic Conference v. ICC,
BILLING CODE 4910–06–P 590 F.2d 345, 351 (D.C. Cir. 1978) (finding ex parte
Commission (ICC), determined that the
communications ‘‘violate[d] the basic fairness of a
general prohibition on ex parte hearing which ostensibly assures the public a right
communications in proceedings should to participate in agency decision making,’’
SURFACE TRANSPORTATION BOARD
include the informal rulemaking foreclosing effective judicial review); Sangamon
proceedings the Board uses to Valley Television Corp. v. United States, 269 F.2d
49 CFR Part 1102 221, 224 (D.C. Cir. 1959) (finding that undisclosed
promulgate regulations.2 See Revised ex parte communications between agency
[Docket No. EP 739] commissioners and a stakeholder were unlawful
1 ‘‘On-the-record proceeding’’ means ‘‘any matter because the informal rulemaking involved
Ex Parte Communications in Informal described in Sections 556–557 of the ‘‘resolution of conflicting private claims to a
Rulemaking Proceedings Administrative Procedure Act [(APA)] (5 U.S.C. valuable privilege, and that basic fairness requires
sradovich on DSK3GMQ082PROD with RULES
556–557) or any matter required by the such a proceeding to be carried on in the open’’).
AGENCY: Surface Transportation Board. Constitution, statute, Board rule, or by decision in 5 See, e.g., Action for Children’s Television v. Fed.
ACTION: Final rule. the particular case, that is decided solely on the Commc’ns Comm’n, 564 F.2d 458 (D.C. Cir. 1977)
record made in a Board proceeding.’’ 49 CFR (upholding the agency’s decision not to issue
SUMMARY: In this decision, the Surface 1102.2(a)(1). proposed rules and finding no APA violation for ex
2 The APA, 5 U.S.C. 551–559, governs two parte discussions where the agency provided a
Transportation Board (the Board) categories of agency rulemaking: Formal and meaningful opportunity for public participation and
modifies its regulations to permit, informal. Formal rulemaking is subject to specific the proceeding did not involve competing claims
subject to disclosure requirements, ex procedural requirements, including hearings, for a valuable privilege).
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preclude any effective public recommended that agencies establish stakeholders and agency personnel.
comment,’’ the agency satisfied its clear procedures ensuring that all ex Accordingly, the Board issued an NPRM
statutory requirements. Id. at 398. The parte communications occurring after on September 28, 2017, proposing to: (1)
court also declined to prohibit ex parte an NPRM is issued, whether planned or Modify its regulations to permit, subject
communications in informal unplanned, be disclosed. to disclosure requirements, ex parte
rulemakings on constitutional due Starting in 2015, the Board began to communications in informal rulemaking
process grounds, and even held that not look at the possibility of conducting ex proceedings, and (2) change its ex parte
all ex parte communications must parte meetings to gain more stakeholder rules to clarify and update when and
necessarily be docketed (implicitly input in the informal rulemaking how interested persons may
concluding that whether such process. As a result, the Board waived communicate informally with the Board
communications require docketing the ex parte prohibition to permit Board regarding pending proceedings other
depends on case-specific Members or designated Board staff to than rulemakings. See Ex Parte
circumstances). Id. at 402–04. Today, participate in ex parte communications Commc’ns in Informal Rulemaking
Sierra Club is considered the most in two proceedings.7 See Reciprocal Proceedings (NPRM), EP 739 (STB
recent influential decision on ex parte Switching, EP 711 (Sub-No. 1), slip op. served Sept. 28, 2017). The Board
communications in informal at 28–29 (STB served July 27, received nine opening comments and
rulemakings and is often cited by courts 2016); 8 U.S. Rail Serv. Issues— three reply comments on the NPRM.10
for the proposition that ex parte Performance Data Reporting, EP 724 Below, the Board addresses the
communications in informal agency (Sub-No. 4), slip op. at 2–3 (STB served comments submitted by parties in
rulemaking are generally permissible.6 Nov. 9, 2015). Many stakeholders in response to the NPRM and discusses
More recently, in 2014, the these proceedings expressed clarifications and modifications being
Administrative Conference of the appreciation for the opportunity to meet adopted in the final rule. The text of the
United States (ACUS), the body charged with Board Members or Board staff final rule is also below.
by Congress with recommending agency regarding the merits of the proposed Changes to Definitions. In the NPRM,
best practices, provided guidance to rules and expressed the hope to interact the Board proposed to add two new
agencies indicating that a general with the Board informally in the future definitions to section 1102.2(a):
prohibition on ex parte communications as well.9 In these meetings, parties have ‘‘informal rulemaking proceeding’’ and
in informal rulemaking proceedings is been able to respond directly to ‘‘covered proceedings.’’ ‘‘Informal
neither required nor advisable. Ex Parte questions from Board Members and rulemaking proceeding’’ would include
Commc’ns in Informal Rulemaking Board staff on the feasibility and utility any proceeding to issue, amend, or
Proceedings (2014 ACUS of certain aspects of the Board’s repeal rules pursuant to 49 CFR part
Recommendation), 79 FR 35988, 35994 proposals. 1110 and 5 U.S.C. 553. ‘‘Covered
(June 25, 2014). ACUS concluded that Based on the developments in case proceedings’’ would encompass both
ex parte communications in informal law related to ex parte communications on-the-record proceedings and informal
rulemaking proceedings ‘‘convey a and the Board’s own experiences rulemaking proceedings following the
variety of benefits to both agencies and waiving its ex parte prohibitions in the issuance of an NPRM.11 The Board
the public,’’ although it acknowledged two recent proceedings, the Board
that fairness issues can arise if certain determined that it was appropriate to 10 Comments were received from the following
revisit the agency’s strict prohibition on organizations: The American Chemistry Council,
groups have, or are perceived to have, the Fertilizer Institute, the National Industrial
‘‘greater access to agency personnel than ex parte communications in informal Transportation League, American Fuel and
others.’’ Id. However, in balancing these rulemaking proceedings. The Board also Petrochemical Manufacturers, Independent
competing considerations, ACUS urged determined that certain other aspects of Lubricant Manufacturers Association, International
its ex parte regulations that apply to Warehouse Logistics Association, American Forest
agencies to consider placing few, if any, & Paper Association, Alliance for Rail Competition,
restrictions on ex parte communications proceedings other than rulemakings Private Railcar Food and Beverage Association,
that occur before an NPRM is issued could be clarified and updated to reflect Glass Packaging Institute, National Association of
current practices and better guide Chemical Distributors, the Chlorine Institute,
because communications at this early Alliance of Automobile Manufacturers, Association
stage are less likely to cause harm and 7 Greater use of ex parte meetings in Board
of Global Automakers, American Petroleum
more likely to ‘‘help an agency gather Institute, American Malting Barley Association,
rulemaking proceedings was also a topic of the U.S. Corn Refiners Association, Portland Cement
essential information, craft better Senate Committee on Commerce, Science, and Association, and Plastics Industry Association
regulatory proposals, and promote Transportation’s August 11, 2016 hearing. See (collectively the Rail Customer Coalition or RCC);
consensus building among interested Freight Rail Reform: Implementation of the STB the American Short Line and Regional Railroad
Reauthorization Act of 2015: Field Hearing Before Association (ASLRRA); the Association of
persons.’’ Id. ACUS further the S. Comm. on Commerce, Sci., & Transp., 114th American Railroads (AAR); BNSF Railway
Cong. 32, 35, 46, 50–52, 57, 69, 72 (2016), https:// Company (BNSF); the Freight Rail Customer
6 See, e.g., Tex. Office of Pub. Util. Counsel v. www.gpo.gov/fdsys/pkg/CHRG-114shrg23228/pdf/ Alliance (FRCA); the George Mason University
Fed. Commc’ns Comm’n, 265 F.3d. 313, 327 (5th CHRG-114shrg23228.pdf. Antonin Scalia Law School Administrative Law
Cir. 2001) (‘‘Generally, ex parte contact is not 8 In the Board’s July 27, 2016 decision, which
Clinic (GMU); the National Grain and Feed
shunned in the administrative agency arena as it is embraced Petition for Rulemaking to Adopt Revised Association (NGFA); Samuel J. Nasca on behalf of
in the judicial context. In fact, agency action often Competitive Switching Rules, Docket No. EP 711, SMART/Transportation Division, New York State
demands it.’’); Ammex, Inc. v. United States, 23 Ct. the Board terminated the proceeding in Docket No. Legislative Board (SMART); and the Western Coal
Int’l Trade 549, 569 n.16 (1999) (noting that the EP 711, and all meetings with Board Members are Traffic League (WCTL). On November 1, 2017, the
decision at issue ‘‘constitutes an exercise of taking place under Reciprocal Switching, Docket Board also received a letter from NGFA informing
‘informal’ rulemaking under the [APA] and, as No. EP 711 (Sub-No. 1). the Board that the following national agricultural
such, is not subject to the prohibition on ex parte 9 See, e.g., Summary of Ex Parte Meeting Between producer and agribusiness organizations notified
sradovich on DSK3GMQ082PROD with RULES
communications set forth in 5 U.S.C. 557(d)(1) Packaging Corp. of Am. & Board Member Begeman NGFA that they support NGFA’s opening
(1994)’’); Portland Audubon Soc. v. Endangered at 3, Aug. 3, 2017, Reciprocal Switching, EP 711 comments: National Association of State
Species Comm., 984 F.2d 1534, 1545–46 (9th Cir. (Sub-No. 1); Summary of Ex Parte Meeting Between Departments of Agriculture, National Council of
1993) (‘‘The decision in [Sierra Club] that the the Am. Chemistry Council & Board Member Miller Farmer Cooperatives, National Farmers Union,
contacts were not impermissible was based at 1, Mar. 22, 2017, Reciprocal Switching, EP 711 National Oilseed Processors Association, and North
explicitly on the fact that the proceeding involved (Sub-No. 1); Summary of Ex Parte Meeting Between American Millers’ Association.
was informal rulemaking to which the APA CSX Transp. & STB Staff at 1, Dec. 16, 2015, U.S. 11 Accordingly, the Board proposed to replace
restrictions on ex parte communications are not Rail Serv. Issues—Performance Data Reporting, EP references to ‘‘on-the-record proceedings’’ with
applicable.’’). 724 (Sub-No. 4). Continued
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further proposed, as discussed in more made by these non-parties. (WCTL communications. (NGFA Comments 5;
detail below, that ex parte Reply 9.) WCTL argues, however, that RCC Comments 7; WCTL Comments 2;
communications would be permitted in the Board should amend the definition WCTL Reply 2, 10.) ASLRRA, NGFA,
informal rulemaking proceedings of ‘‘on-the-record proceeding’’ to and RCC also support the proposal to
(subject to disclosure requirements for expressly include rate reasonableness permit ex parte communications prior to
those communications occurring post- and unreasonable practice the issuance of an NPRM. (ASLRRA
NPRM), but would remain prohibited in adjudications. (WCTL Comments 19.) Comments 3; NGFA Comments 3; RCC
on-the-record proceedings. According to WCTL, rate reasonableness Comments 7.) ASLRRA argues that
Additionally, the Board proposed and unreasonable practice cases may allowing undisclosed ex parte
redefining an ‘‘ex parte communication’’ not technically be formal ‘‘on-the- communications prior to the issuance of
as ‘‘an oral or written communication record’’ proceedings within the meaning an NPRM would enable the Board to
that concerns the merits or substantive of the APA, and adding the suggested obtain helpful stakeholder input,
outcome of a pending proceeding; is text would remove any uncertainty. (Id. particularly in the preliminary stages of
made without notice to all parties and at 20.) AAR states that it does not a rulemaking proceeding, without
without an opportunity for all parties to oppose WCTL’s suggestion. (AAR Reply adversely implicating due process or
be present; and could or is intended to 5.) raising administrative concerns.
influence anyone who participates or The final rule will adopt the proposal (ASLRRA Comments 3.) NGFA likewise
could reasonably be expected to as set forth in the NPRM. It is not supports permitting undisclosed ex
participate in the decision.’’ This necessary to amend the definition of parte communications before the
proposed new definition would alter the ‘‘on-the-record proceeding’’ to issuance of an NPRM. (NGFA
existing definition in two ways; first, by specifically include rate reasonableness Comments 3.) According to NGFA, the
removing the existing concept that and unreasonable practice information the Board gathers prior to
communications are only ex parte if adjudications, as WCTL suggests. the issuance of an NPRM would be
made ‘‘by or on behalf of a party’’ and Although rate reasonableness and evident within the NPRM itself. (Id.)
second, by removing the suggestion that unreasonable practice formal NGFA, however, suggests that the Board
an ex parte communication that is made complaints may not technically be adopt the practice of including in the
with the ‘‘consent of any other party’’ covered by the APA definition of on- NPRM a list of the identities of all
could be permissible. the-record proceedings, the definition of stakeholders who provided input, as the
The Board noted in the NPRM that that term in the Board’s regulations is Board did in Expediting Rate Cases, EP
these revisions would not change the sufficient to cover those types of 733, slip op. at 2 n.3 (STB served June
generally understood concept that proceedings, which are decided solely 15, 2016). (Id.)
certain communications, by their very on the record. See 49 CFR 1102.2(a)(1). AAR, FRCA, SMART, and WCTL
nature, do not concern the merits or Communications That Are Not object to the Board’s proposal to permit
substantive outcome of pending Prohibited. The Board also proposed in undisclosed ex parte communications
proceedings or are not made to Board the NPRM to modify section 1102.2(b) to prior to the issuance of an NPRM. (See
Members or staff who are reasonably include additional categories of ex parte AAR Comments 5–6; FRCA Comments
expected to participate in Board communications that are permissible 1; SMART Comments 10; WCTL
decisions. Such permissible and would not be subject to the Comments 21; AAR Reply 4.) AAR
communications include, for example, disclosure requirements of proposed argues that the Board should require the
communications about purely section 1102.2(e) and (g), discussed in disclosure of ex parte contacts occurring
procedural issues; public statements or more detail below. Specifically, the after the issuance of an ANPRM. (AAR
speeches by Board Members or staff that Board proposed adding to this category Comments 5–6.) For cases initiated by a
merely provide general and publicly communications related to an informal petition for rulemaking, AAR suggests
available information about a rulemaking proceeding prior to the that ex parte communications should be
proceeding; communications that solely issuance of an NPRM; 12 permitted, subject to disclosure
concern the status of a proceeding; and communications related to the Board’s requirements, once that petition has
communications with the Board’s Rail implementation of the National been filed and docketed. (AAR Reply 5.)
Customer and Public Assistance Environmental Policy Act and related AAR argues that such a rule would be
Program. environmental laws; and consistent with Department of
ASLRRA, NGFA, and RCC support the communications concerning judicial Transportation (DOT) policy that
proposed changes to the definitions. review of a matter that has already been recommends disclosure of ex parte
(ASLRRA Comments 3; NGFA decided by the Board made between communications upon issuance of an
Comments 5; RCC Comments 7.) parties to the litigation and the Board or ANPRM, and Federal Aviation
ASLRRA argues that the proposed Board staff involved in that litigation. Administration rules that require
definitions and amendments preserve Additionally, the Board proposed to disclosure of ex parte communications
the transparency and fairness of the modify the existing regulations to before an ANPRM or an NPRM. (AAR
rulemaking process. (ASLRRA remove from section 1102.2(b)(1) the Comments 6.) According to AAR,
Comments 3.) language permitting any communication permitting such ex parte
WCTL supports the Board’s proposed ‘‘to which all the parties to the communications without disclosure
changes to the definition of ‘‘ex parte proceeding agree.’’ may discourage stakeholder
communication.’’ (WCTL Comments 23; NGFA, RCC, and WCTL support participation on the record. (AAR
WCTL Reply 9.) WCTL agrees with the including environmental review and Comments 6; AAR Reply 4–5.) 13
sradovich on DSK3GMQ082PROD with RULES
Board that ex parte communications can judicial review communications within
be made by non-parties and that the the scope of permitted ex parte 13 AAR also asks the Board to clarify whether ex
definition of ‘‘ex parte communication’’ parte communications would be permitted in major
12 For example, informal communications rail merger proceedings and suggests that the Board
should encompass communications following a notice of intent to institute a rulemaking add a new paragraph section 1102.2(b)(7)
proceeding or an advance notice of proposed permitting, as a communication that is not
‘‘covered proceedings,’’ as appropriate, throughout rulemaking (ANPRM) would not be prohibited. See prohibited, ‘‘[a]ny communication permitted by
section 1102.2. 49 CFR 1110.3(b). statute.’’ (AAR Comments 7.) WCTL objected to
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WCTL likewise argues that the Board input that would inform the communications) even where they have
should apply ex parte communication development of the Board’s proposal had an opportunity to share general and
disclosure rules and limitations to all and help identify the issues the agency preliminary views with the agency pre-
publicly-docketed informal rulemaking should consider. In fact, the final report NPRM. Additionally, as the Board noted
proceedings where the Board has sought to ACUS, on which the 2014 ACUS in the NPRM, any information gathered
public comments (e.g., if the Board Recommendation is based, states that in a pre-NPRM meeting that the Board
initiates a docketed proceeding using an ‘‘pre-NPRM ex parte communications incorporates or relies upon in its
ANPRM, the ex parte communication are generally beneficial and do not proposal will be evident in the NPRM
rules would apply starting when the implicate administrative and due itself. See NPRM, EP 739, slip op. at 10.
ANPRM is docketed). (WCTL Comments process principles.’’ Esa L. Sferra- The public would have an opportunity
21; WCTL Reply 3–4.) WCTL argues that Bonistalli, Ex Parte Commc’ns in to examine and respond to that
this would better advance the Board’s Informal Rulemaking Final Report information.14 The Board believes that
objective of ‘‘free flowing’’ (Final Report), 69 (May 1, 2014) parties will still have the incentive to
communications by allowing all (prepared for consideration of the participate through written comments
interested members of the public to see Admin. Conference of the U.S.), https:// following informal ex parte
what others are saying in ex parte www.acus.gov/report/final-ex-parte- communications to ensure that the
meetings and to then respond to these communications-report. The report Board has a record that reflects their
communications. (WCTL Comments 21; continued, stating that ‘‘[r]ather than views.
WCTL Reply 4.) According to WCTL, restricting [ex parte] communications, For these reasons, the final rule will
permitting undisclosed ex parte agencies should experiment with how adopt the proposal regarding
communications prior to the issuance of they can capitalize on the communications that are not prohibited
an NPRM would discourage parties from communications’ value.’’ Id. at 85. as set forth in the NPRM.
filing detailed comments in response to Thus, permitting informal Communications That Are Prohibited.
ANPRMs and similar forms of pre- communications pre-NPRM, without In the NPRM, the Board proposed to
NPRM notices when those comments restrictions, such as disclosure and modify section 1102.2(c)(1) by adding
may be rejected based on ex parte timing requirements, could lead to the introductory clause, ‘‘[e]xcept to the
communications that the parties were better policy-making by enabling a freer
extent permitted by these rules’’ to
unaware of and had no opportunity to flow of communication during the
reflect the fact that the revised rules
rebut. (WCTL Comments 21.) FRCA preliminary, exploratory phase of a
would now govern, but not entirely
agrees with WCTL that disclosure rulemaking proceeding.
The Board believes that these benefits prohibit, ex parte communications.
requirements ‘‘should not become
operative only after an [NPRM] is outweigh any potential harms. SMART’s The Board also proposed amending
served.’’ (FRCA Comments 1.) Lastly, claim—that the ACUS report raises section 1102.2(d) to clarify when ex
SMART argues that the 2014 ACUS some important potential and parte prohibitions would take effect and
Recommendation raises potential harms anticipated harms that would apply to how long they would remain in effect.
that would apply to ex parte ex parte communications prior to Specifically, the NPRM provided that
communications prior to issuance of an issuance of an NPRM—is inconsistent the prohibitions against ex parte
NPRM (although the alleged potential with the conclusion of ACUS’s communications in on-the-record
harms are not specified by SMART). recommendations. ACUS expressly proceedings would begin when the first
(SMART Comments 9–10 (citing 2014 states that ‘‘[b]efore an agency issues [an filing or Board decision in a proceeding
ACUS Recommendation, 79 FR 35993– NPRM], few if any restrictions on ex is posted to the public docket or when
95).) parte communications are desirable.’’ the person responsible for a
Having reviewed the comments, the 2014 ACUS Recommendation, 79 FR communication knows that the first
Board continues to believe that the 35994. ACUS further states that pre- filing has been filed with the Board,
benefits of not requiring disclosure for NPRM communications are ‘‘less likely’’ whichever occurs first. The Board
ex parte communications prior to the to pose the same harms as ex parte further proposed that, in informal
issuance of an NPRM outweigh the communications that take place later in rulemaking proceedings, except as
potential harms. Regarding the benefits, the process, and ‘‘can help an agency provided in the new section 1102.2(g),
the Board agrees with ASLRRA that gather essential information, craft better discussed in more detail below, the
such communication would enable the regulatory proposals, and promote prohibitions on ex parte
Board to obtain helpful stakeholder consensus building among interested communications would begin when the
input in crafting proposed regulations. persons.’’ Id. Board issues an NPRM. Lastly, the
Informal communications with In addition, the potential harm Board proposed to clarify that ex parte
stakeholders prior to issuance of an identified by both WCTL and AAR— prohibitions in covered proceedings
NPRM provide an opportunity for the that commenters would be less likely to would remain in effect until the
Board to obtain useful information and file comments on the record during a proceeding is no longer subject to
proceeding—seems unlikely. In a recent administrative reconsideration under 49
AAR’s suggestion, arguing that it does not comply case where the Board invited and/or U.S.C. 1322(c) or judicial review.
with the provisions of 49 U.S.C. 11324(f) and received informal stakeholder
conflicts with the Board’s 1996 determination not
to exercise its statutory authority under section communications prior to the initiation 14 For example, as the Board noted in the NPRM,
11324(f) to permit ex parte communications in of a proceeding, participation in the in Docket No. EP 733, Expediting Rate Cases, where
merger cases. (WCTL Reply 8–9 (citing Pet. of subsequent proceeding remained at a Board staff held informal meetings with
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Fieldston Co. to Establish Procedures Regarding Ex stakeholders with the goal of enhancing the Board
high level. See, e.g., Expediting Rate staff’s perspective on strategies and pathways to
Parte Commc’ns in R.R. Merger Proceedings, 1
S.T.B. 1083, 1084–85 (1996)).) The Board finds that Cases, Docket No. EP 733 (25 comments expedite and streamline rate cases, parties were
this request, related to major merger proceedings, is received following informal permitted to comment on the details of the
outside the scope of this proceeding, which focuses communications). The Board believes proposal, including those stemming from feedback
primarily on informal rulemaking proceedings; gathered in the informal meetings. See NPRM, EP
however, parties are free to raise the issue of the
that stakeholders will continue to weigh 739, slip op. at 10 n.12; see also Expediting Rate
permissibility of ex parte communications in in on proposed rules (through written Cases, EP 733, slip op. at 1 (STB served June 15,
individual major merger proceedings. comments and/or disclosed ex parte 2017).
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Commenters generally support this Ex Parte Communications in Informal the summary to ensure that all other
proposal. ASLRRA states that it Rulemaking Proceedings. In the NPRM, parties at the meeting agree to the form
supports the proposed changes to the Board proposed to add a new and content of the summary. The
section 1102.2(d), which clarify when section 1102.2(g) specifically governing proposed rules would permit parties to
ex parte prohibitions would begin. ex parte communications in informal present confidential information during
(ASLRRA Comments 3.) Likewise, rulemaking proceedings that occur ex parte meetings. Under the proposed
NGFA states that it supports changing following the issuance of an NPRM, at rules, if the presentations contain
the provision on when ex parte which point disclosure requirements material that a party asserts is
prohibitions begin to better reflect the would attach. Under the proposed rule, confidential under an existing
various ways Board proceedings are ex parte communications with Board protective order governing the
initiated. (NGFA Comments 5.) NGFA Members in informal rulemaking proceeding, parties would be required to
and RCC also both support application proceedings following the issuance of present a public version and a
of the ex parte prohibitions when the an NPRM would be permitted, subject to confidential version of ex parte
first filing or Board decision is posted to disclosure requirements, until 20 days summaries and any handouts. If a
the public docket in an on-the-record before the deadline for reply comments protective order has not been issued in
proceeding. (Id.; RCC Comments 7–8.) to the NPRM, unless otherwise specified the proceeding at the time the presenter
No commenters raised specific by the Board. The proposed rules seeks to file a meeting summary or
objections to this aspect of the Board’s provided that Board Members may handout containing confidential
proposal. Accordingly, the final rule delegate their participation in such ex information, the proposed rules
will adopt the proposal as set forth in parte communications to Board staff. provided that the presenting party
the NPRM. Under the proposed rules, ex parte would have to file a request with the
Procedures Upon Receipt of communications in informal rulemaking Board seeking such an order no later
Prohibited Ex Parte Communications. proceedings that occur outside of the than the date it submits its meeting
The Board also proposed to revise permitted meeting period, that are made summary. The proposed rules also
section 1102.2(e) and (f), which entail to Board staff where such participation required parties to submit summaries
the procedures required of Board has not been delegated by the Board, or within two business days of an ex parte
Members and employees upon receipt of that do not comply with the required presentation or meeting. Under the
prohibited ex parte communications disclosure requirements would be proposed rules, the Board would post
subject to the sanctions provided in the summaries within seven days of
and sanctions, to reflect the fact that
section 1102.2(f). Further, the proposed submission of a summary that is
some ex parte communications would
rules provided that, to schedule an ex complete for posting.
now be permissible under the revised
parte meeting, parties should contact
regulation. First, the proposed rules Comments in Support. Most
the Board’s Office of Public Assistance,
clarified that the procedures in section commenters were supportive of the
Governmental Affairs, and Compliance
1102.2(e)(1) and (2) would apply to Board’s proposal to permit, subject to
at (202) 245–0238 or the Board Member
‘‘[a]ny Board Member, hearing officer or disclosure requirements, ex parte
office with whom the meeting is
Board employee’’ who receives an ex communications in informal rulemaking
requested, unless otherwise specified by
parte communication. Second, the proceedings. (See AAR Comments 2;
the Board.
proposal clarified that the procedures The proposed rules also required that ASLRRA Comments 1; BNSF Comments
set forth in the existing section 1102.2(e) the substance of each ex parte meeting 1; GMU Comments 1; RCC Comments
and (f) would apply only to be disclosed by the Board by posting in 3.) AAR and ASLRRA state that the
communications not otherwise the docket of the proceeding a written Board should adopt the proposed rules
permitted by the regulation. Lastly, the meeting summary of the arguments, because they will lead to better reasoned
Board proposed to amend the provision information, and data presented at each decision-making and more informed
in section 1102.2(e)(1)—that currently meeting and a copy of any handouts rules. (AAR Comments 3; see also
requires the Chief of the Office of given or presented. The proposed ASLRRA Comments 4.) AAR argues that
Proceedings’ Section of Administration meeting summary would also disclose the relatively modest burdens that ex
to place any written communication or basic information about the meeting, parte meetings might place on
a written summary of an oral including the date and location of the ex stakeholders participating in rulemaking
communication not permitted by these parte communication (or means of proceedings would be outweighed by
regulations in the public communication in the case of telephone the benefits of improved flow of
correspondence file—to also require that calls or video-conferencing) and a list of relevant information to Board decision
such placements be made ‘‘promptly’’ attendees/participants. The proposed makers. (AAR Reply 3.) According to
and contain a label indicating that the rules further provided that the meeting AAR, face-to-face communications
prohibited ex parte communication is summaries would have to be sufficiently would allow the Board to ensure that its
not part of the decisional record of the detailed to describe the substance of the data and information have not grown
proceeding. ex parte communication. Under the stale over time, and even when
The only comment in response to this proposed rules, presenters could be communications do not provide new
aspect of the proposal was from WCTL, required to resubmit summaries that are information, face-to-face conversations
which states that it agrees with the insufficiently detailed or that contain summarizing and highlighting points of
Board’s proposal to clarify the inaccuracies as to the substance of the emphasis can provide value to decision-
procedures the Board should follow if a presentation. makers. (AAR Comments 4.) AAR also
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Board Member or Board staff receives a The proposed rules also provided that noted that the NPRM is responsive to
prohibited ex parte communication. a single meeting summary could be stakeholder requests for more
(WCTL Comments 24; WCTL Reply 10.) submitted to the Board even if multiple interaction with Board Members and
No commenters objected to the parties, persons, or counsel were staff. (Id.) ASLRRA also supports the
proposal. Accordingly, the final rule involved in the same ex parte meeting. proposed process for ex parte
will adopt the proposal as set forth in In such instances, it would be the communications during informal
the NPRM. responsibility of the person submitting rulemaking proceedings, stating that it
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would ensure transparency and fairness. adopted. (RCC Comments 3.) RCC states Not allow ex parte communications in
(ASLRRA Comments 3.) According to that ex parte communications in rulemakings that are closely associated
ASLRRA, the Board’s proposal meets its informal rulemakings would ultimately with pending cases, or (2) not apply any
goals of enhancing its ability to make produce better outcomes. (Id.) rules that were developed in a
informed decisions in informal According to RCC, face-to-face dialogue rulemaking that utilized ex parte
proceedings while ensuring its record- facilitates a more efficient exchange of communications in pending
building in rulemaking proceedings information, development of ideas, adjudications. (RCC Comments 6.)
remains transparent and fair. (Id. at 1.) explanation of concepts, and NGFA and RCC both suggest that the
BNSF likewise supports the Board’s responsiveness to questions and would Board modify the period during which
proposal, stating that increased allow the Board to probe more deeply ex parte communications would be
communications with the Board into subjects based upon the comments permitted. (NGFA Comments 4; RCC
regarding informal rulemakings will submitted. (Id. at 3–4.) RCC further Comments 5–6.) Specifically, they
provide value to both the Board and its states that the Board would also benefit suggest that the Board permit ex parte
stakeholders. (BNSF Comments 2.) from clarification of concepts and communications for a specified time
According to BNSF, the Board’s current proposals submitted in written (e.g., 30 days) after the deadline for
ex parte regulations reflect the outdated comments, especially in proceedings filing reply comments—subject to the
and overly restrictive view of the that implicate complex technical same disclosure requirement contained
Board’s predecessor agency, the ICC, matters. (Id. at 4.) in the NPRM—and permit written
and are ‘‘out of step’’ with long-held As further support for the Board’s responses confined specifically to the
doctrines of administrative law, the ex proposal, a number of commenters cite content of the ex parte communication
parte rules generally under the APA, their positive experiences participating within 10 days thereafter. (NGFA
and procedures of other federal in ex parte meetings in recent Board Comments 4; RCC Comments 5–6.)
agencies. (Id. at 1–2; see also AAR proceedings where the agency waived According to both commenters, under
Comments 1 (‘‘[T]he Board’s application the ex parte prohibition. (See, e.g., the Board’s proposal, which would
of its current regulations unnecessarily BNSF Comments 2 (noting that the ex prohibit ex parte communications
prohibits most informal parte meetings in U.S. Rail Serv. within 20 days of the deadline for
communications with the Board and its Issues—Performance Data Reporting, written reply comments, stakeholders
staff in the informal rulemaking Docket No. EP 724 (Sub-No. 4), better would not have enough time to both
context.’’).) BNSF argues that informed the Board about highly participate in ex parte meetings and also
modernizing the Board’s ex parte rules technical service reporting issues and
review and prepare responses to other
to permit an increased flow of resulted in regulations that were more
parties’ written comments. (NGFA
information and technical expertise efficiently tailored to the realities of
Comments 4; RCC Comments 4–5.) RCC
between the Board and its stakeholders railroad operations); NGFA Comments
adds that, in those proceedings where
during informal rulemaking proceedings 2–3 (stating that its ex parte meeting in
the Board solicits three rounds of
will enable the Board to engage in more U.S. Rail Serv. Issues—Performance
comments, rather than the usual two
reasoned policymaking and should Data Reporting, Docket No. EP 724
rounds, the Board could apply its 20-
produce regulatory policies that are (Sub-No. 4), was extremely beneficial
day rule to the third round of comments
more grounded in the complex because it allowed NGFA to explain the
and still preserve most of the benefits
operational and market realities details of their railroad service needs
currently facing the rail industry. (BNSF and concerns and to answer Board from ex parte communications. (RCC
Comments 1.) staff’s questions in a more effective Comments 6.) RCC requests that, at a
GMU asserts that the Board’s manner); RCC Comments 1–2 (noting minimum, the Board express its
proposed changes to the procedures for positive experiences with ex parte willingness to extend the 20-day
ex parte communications would meetings in Reciprocal Switching, deadline on a case-by-case basis when
promote responsible governance by Docket No. EP 711 (Sub-No. 1), and U.S. appropriate to realize the benefits of ex
facilitating promulgation of informed Rail Serv. Issues—Performance Data parte communications in informal
substantive rules while preserving Reporting, Docket No. EP 724 (Sub-No. rulemakings. (Id.) AAR concurs in a
transparency. (GMU Comments 1.) 4), as well as the informal meetings in modification that would permit ex parte
According to GMU, relaxing the Board’s Expediting Rate Cases, Docket No. EP communications for a specific time after
ex parte regulations would remove a 733).) the submission of at least two rounds of
procedural hurdle, making it easier for Comments Requesting Modifications. comments, stating that this change
the Board to engage in informed notice- Several commenters, while expressing would allow meetings held with Board
and-comment proceedings, which in overall support for the Board’s proposal, Members or staff to reflect all the issues
turn encourages transparency. (Id. at 2.) suggest modifications that they argue in the record and would not create any
GMU further argues that the Board has would improve the rule. RCC urges the incentives for parties to hold evidence
the statutory authority to change its ex Board to be mindful of informal or arguments back for the reply round.
parte communications regulations in the rulemaking proceedings that are closely (AAR Reply 4.)
context of a notice-and-comment associated with pending adjudicatory WCTL, however, opposes allowing ex
rulemaking, noting that both the APA proceedings. (RCC Comments 6.) In that parte communications following the
notice-and-comment requirements and regard, RCC suggests that the Board written comment period because it
the statutory provisions governing the establish safeguards against parties claims that doing so would add
Board permit ex parte communications using permissible ex parte unnecessary cost and delay to
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during informal rulemaking communications in the rulemaking rulemaking proceedings. (WCTL Reply
proceedings. (Id. at 2–3.) proceedings to circumvent the 7–8.) WCTL also notes that ex parte
RCC agrees that ex parte prohibition of the same in adjudicatory communications conducted after the
communications should be permitted in proceedings. (Id.; see also WCTL comment period has closed are
informal rulemaking proceedings if Comments 18; AAR Reply 5.) RCC disfavored by ACUS. (Id. at 8 (citing
appropriate safeguards to preserve suggests that the most effective potential 2014 ACUS Recommendation, 79 FR
fairness and transparency also are modifications would be to either: (1) 35994).)
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Additionally, AAR states that the argues that ‘‘[t]here is nothing to suggest AAR disagrees with WCTL that ex
proposal in section 1102.2(g)(1), which that face-to-face communication will parte communications could result in
authorizes the Board to delegate its better promote efficiency so as to administrative delay. (AAR Reply 5.)
participation in such ex parte substitute for the written word in the According to AAR, WCTL’s suggestion
communications to Board staff, implies decisionmaking process’’; rather, the of using technical conferences instead of
that such a delegation would require an ‘‘real impact of ex parte communication ex parte meetings does not have to be
entire board decision, which AAR repeal would be to limit the audience, an ‘‘either/or’’ proposition, as greater
argues would be unnecessarily restrict the spread of knowledge, and use of technical conferences could
formalistic. (AAR Comments 7.) AAR * * * impair the final action.’’ (SMART supplement NPRM proposals. (Id. at 3.)
suggests that the Board should expand Reply 4.) SMART also argues that joint AAR also disagrees with WCTL’s
the proposed rules to indicate that meetings conducted with other parties suggestion that the Board should permit
communications with staff during the and agency personnel could be ex parte communications in informal
appropriate period are permissible, problematic. (SMART Comments 8.) rulemaking proceedings on a case-by-
subject to disclosure rules. (Id.) AAR According to SMART, the Board need case basis. (Id. at 2.) AAR argues that
indicates there are many instances not adopt the proposed rule because it stakeholders will be best equipped to
where technical information could be may continue to waive its ex parte fully participate in a rulemaking when
best explained to staff responsible for prohibition, as it has done in two recent the rules for such participation are
the subject matter, like financial proceedings. (Id. at 7.) SMART also known in advance. (Id.) AAR notes that
reporting, costing, or railroad argues that the benefit of oral pre-established rules would save the
operations. (Id.) communication can be achieved Board from expending its limited time
Regarding the proposed disclosure through oral argument. (SMART Reply and resources on ad hoc determinations
requirements, NGFA states that it 5.) related to ex parte communications in
supports the Board’s proposals WCTL argues that the Board’s every rulemaking proceeding on its
concerning the preparation and proposal would increase the cost of docket. (Id. at 2–3.) AAR further asserts
disclosure of ex parte meeting participating in a rulemaking that the proposed rules would allow the
summaries that are detailed sufficiently proceeding, (WCTL Comments 15), and Board, on a case-by-case basis, to restrict
to describe the substance of the likely result in substantial communications in a particular
communication, but recommends that administrative delay, (Id. at 16). WCTL proceeding, if the concerns cited by
the Board shorten the period for posting argues that the proposal would lead WCTL or others present themselves. (Id.
the meeting summaries from seven parties to believe they must participate at 3.)
calendar days (as the Board proposed) to in the ex parte communication process Board Determination. After
two business days. (NGFA Comments 4– or they will be ‘‘left out.’’ (Id. at 15.) considering all of the comments, the
5.) NGFA argues that this change would WCTL also argues that shippers, unlike Board concludes that direct
align with the two-business-day large railroads, frequently lack the time communications with stakeholders in
requirement for meeting summaries to and financial resources to participate in informal rulemaking proceedings, in
be submitted by the participants in the ex parte meetings, which can create the accordance with a transparent and fair
ex parte communication and would perception of an unlevel playing field. record-building process, would enhance
provide for more timely transparency (Id. at 17.) WCTL further argues that, in the Board’s consideration of issues and
and opportunity for review by interested many proceedings, the Board may have better enable it to promulgate the most
parties. (Id. at 5.) more efficient administrative tools to effective regulations. The Board will
Comments in Opposition. Some address concerns with the record, such first address the arguments of
commenters object to the idea of as the use of technical conferences. (Id. commenters that oppose the proposed
allowing ex parte communication in at 16.) According to WCTL, unless the rule. Then, the Board will address the
informal rulemaking proceedings or Board requires that ex parte sessions be suggested modifications to the proposed
suggest that, if allowed, such video-taped and then makes the tapes rule.
communications be utilized more publicly available, the perception may The commenters that urge the Board
sparingly. SMART states that railroad continue to be that deals are being done to withdraw the proposal in favor of
employees, represented by SMART, ‘‘behind closed doors,’’ not in open fora. continuing to prohibit ex parte
would be adversely affected by a (Id. at 17.) WCTL argues that the Board communications in rulemakings have
‘‘ ‘closed door’ and secret [Board] should instead continue to allow ex not identified a potential or likely harm
tribunal.’’ (SMART Comments 4.) parte communications in informal that outweighs the benefits of such
According to SMART, the Board’s rulemaking proceedings on a case-by- communications. Specifically, the Board
proposal would ‘‘abolish[ ]’’ the case basis. (Id. at 1, 14, 18; WCTL Reply disagrees with SMART that permitting
prohibition on ex parte communications 2, 5.) WCTL asserts that a case-by-case ex parte communications in informal
in most, if not all rulemakings, since the approach would address concerns rulemaking proceedings would create a
terms ‘‘informal’’ and ‘‘formal’’ raised by other commenters in this ‘‘secret [Board] tribunal’’ and with
rulemakings are not in the APA. proceeding. (WCTL Reply 6–7.) WCTL that ex parte sessions must be
(SMART Comments 3 n.2.) SMART FRCA agrees with WCTL that the video-taped and made publicly
argues that ‘‘unrestricted’’ and ‘‘wide- Board should determine whether to available in order not to be perceived as
ranging’’ ex parte communications permit ex parte communications on a ‘‘behind closed doors.’’ The final rule
would be ‘‘prejudicial to parties and case-by-case basis, although FRCA also incorporates safeguards to ensure the
counsel situated at a distance,’’ because acknowledges the benefits of ex parte rulemaking process remains fair and
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the Board does not have regional offices communications in rulemakings transparent, such as requiring the
and rarely sets hearings outside the generally. (FRCA Comments 1.) written and public disclosure of ex parte
Washington, DC area. (SMART According to FRCA, permitting ex parte communications received after a rule is
Comments 7.) It contends that communications should not be the proposed and providing parties an
telephonic communications are ‘‘not a ‘‘automatic default’’ until the Board has opportunity to submit written
satisfactory alternative for face-to-face accumulated more experience with ex comments in response to those
participation.’’ (Id.) SMART further parte communications. (Id.) summaries. The Board agrees with RCC
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that the safeguards the Board has whether or not to engage in ex parte informal rulemaking when the rules for
proposed are sufficient to preserve communications is not much different participation are well-established. As
fairness and transparency in informal than having to decide whether to AAR notes, pre-established rules would
rulemakings. As noted above, the Board participate through more traditional save the Board from expending time and
has gained familiarity in recent means, such as submitting written resources on ex parte determinations in
proceedings with developing such comments or participating in a hearing. every rulemaking proceeding.
safeguards and has used that experience In fact, unlike a traditional hearing, the Additionally, as several parties note, the
to develop the proposed rules. proposal here would allow parties to Board by decision could restrict
Additionally, as several commenters participate remotely, as the Board is communications in a particular
noted, the final rule is consistent with permitting ex parte meetings to be proceeding, where appropriate. Thus,
the practices of other agencies and the conducted via telephone and the Board will not accept WCTL’s and
best practices guidelines published by videoconference, which could reduce a SMART’s recommendation that the
ACUS.15 party’s cost to participate in a Board continue to waive its ex parte
The Board also disagrees that the proceeding. The Board is confident that regulations on a case-by-case basis,
proposal would disadvantage witnesses parties will be able to assess the rather than adopting changes to its ex
and counsel located outside the appropriate level of participation for parte regulations permitting ex parte
Washington, DC area, as SMART asserts. their organization based on their
As indicated in the NPRM, EP 739, slip regulations in informal rulemaking
particularized interest in the subject
op. at 8, 13, parties will be permitted to proceedings.
matter. The Board’s intention here is to
participate in ex parte meetings via provide stakeholders with increased Several parties proposed
telephone or videoconferencing. Indeed, access to the Board while maintaining a modifications to the Board’s proposed
ex parte meetings have been conducted fair and transparent record-building ex parte communication procedures,
remotely, and the Board does not process, and, for the reasons discussed which the Board addresses below. With
believe that there is any significant in this decision, the Board believes the regard to the most appropriate deadline
difference in the effectiveness of the final rule achieves that goal. for the conclusion of ex parte meetings
interaction between face-to-face Additionally, the Board is not in an informal rulemaking proceeding,
meetings and meetings occurring via persuaded that permitting ex parte the Board continues to believe that the
telephone or videoconferencing. communications in informal rulemaking cutoff should be 20 days before the
Additionally, in response to SMART’s proceedings will result in ‘‘significant reply comment deadline. NGFA’s,
argument that there is no evidence that administrative delay,’’ as WCTL claims. RCC’s, and AAR’s suggestions—that the
direct communication will promote While WCTL is correct that permitting Board permit ex parte communications
more efficiency in the decision-making ex parte communications necessarily for a specified time after the deadline
process than written comments, the will add some time to rulemaking for filing reply comments—would add
Board notes that ex parte proceedings, the Board believes that the an additional round of comments and
communications are not intended to benefit of the additional information result in a longer proceeding than under
replace written comments in a provided will outweigh the the Board’s proposal. Indeed, as WCTL
rulemaking. Rather, ex parte disadvantages of a slightly longer argues, post-comment period ex parte
communications are a supplement to procedural schedule. Based on the communications are disfavored by
the written record and provide parties Board’s experiences, incorporating ex ACUS given the propensity of those
with yet another avenue for parte communication into the informal communications to delay proceedings if
communicating their needs and rulemaking process results in final rules significant information is presented to
concerns to the Board. Ex parte that better reflect the needs and the agency late in the process. (See
communications would actually concerns of the Board’s stakeholders. WCTL Reply 8; see also 2014 ACUS
enhance the usefulness of written (See AAR Comments 3; ASLRRA Recommendation, 79 FR 35994.) ACUS
comments, as such communications Comments 4; BNSF Comments 2; NGFA
notes in 2014 ACUS Recommendation
would allow Board Members to obtain Comments 2–3; RCC Comments 1–2, 3;
that ‘‘the dangers associated with
clarification and seek additional AAR Reply 3); see also 2014 ACUS
agency reliance on privately-submitted
information regarding arguments Recommendation, 79 FR 35994.
information become more acute’’ after
contained in the written opening Contrary to SMART’s and WCTL’s
arguments, the Board does not intend ex the comment period closes and may
comments. require an agency to reopen the
The Board is not persuaded that parte communications to be a substitute
for oral argument or technical comment period. Post-comment period
WCTL’s argument that parties will ex parte communications are also
believe they must participate in the ex conferences in informal rulemaking
proceedings. Rather, ex parte generally discouraged at several other
parte communication process to avoid agencies. See Final Report at 57, 59–60,
having less access than others warrants communications would supplement the
tools currently available in rulemaking 64 (noting prohibition or
limiting all parties’ access to this discouragement of post-comment period
communication tool. A party’s decision proceedings. If the Board believes oral
argument or technical conferences ex parte contacts at DOT, the U.S. Coast
15 SMART’s assertion that the proposed rule would be useful, it may decide to Guard, the Department of Education and
improperly would ‘‘abolish[]’’ the prohibition on ex include those steps as a supplement to the Federal Trade Commission). In
parte communications in most, if not all, (or even in lieu of, if the circumstances addition, RCC’s suggestion that the
rulemakings is not relevant to this proceeding. The warrant) ex parte communications. Board could permit written responses
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APA prohibits ex parte communications in formal limited to just the ex parte
proceedings, but not in informal rulemaking
To the extent that SMART and WCTL
proceedings. See Sierra Club, 657 F.2d at 402 argue that the Board’s recent practice of communication meeting summaries
(noting that Congress declined to extend the ex waiving the ex parte prohibition in could lead to disputes between
parte prohibition applicable to formal rulemakings particular proceedings is superior to the commenters as to whether the response
to informal rulemakings despite being urged to do
so). Should the Board conduct a rulemaking that is
proposed rules, the Board agrees with is properly limited to the summaries
subject to the APA restriction, the rules proposed AAR that stakeholders will be better and put the Board in the position of
here would not apply. equipped to fully participate in an having to resolve such disputes, which
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paragraph (g) of this section, the proceedings are permitted after the (iii) If a single meeting includes
prohibitions against ex parte issuance of a notice of proposed presentations from multiple parties,
communications apply following the rulemaking and until 20 days before the counsel, or persons, a single summary
issuance of a notice of proposed deadline for reply comments set forth in may be submitted so long as all
rulemaking. The prohibitions in covered the notice of proposed rulemaking, presenters agree to the form and content
proceedings continue until the unless otherwise specified by the Board of the summary.
proceeding is no longer subject to in procedural orders governing the (iv) If a memorandum, including any
administrative reconsideration under 49 proceeding. The Board may delegate its attachments, contains information that
U.S.C. 1322(c) or judicial review. participation in such ex parte the presenter asserts is confidential, the
(e) Procedure required of Board communications to Board staff. All such presenter must submit a public version
Members and Board staff upon receipt ex parte communications must be and a confidential version of the
of prohibited ex parte communications. disclosed in accordance with paragraph memorandum. If there is no existing
(1) Any Board Member, hearing officer, (g)(4) of this section. Any person who protective order governing the
or Board employee who receives an ex engages in such ex parte proceeding, the presenter must, at the
parte communication not permitted by communications must comply with any same time the presenter submits its
these regulations must promptly schedule and additional instructions public and redacted memoranda, file a
transmit either the written provided by the Board in the request with the Board seeking such an
communication, or a written summary proceeding. Communications that do order pursuant to § 1104.14 of this
of the oral communication with an not comply with this section or with the chapter.
outline of the surrounding schedule and instructions established in (v) Memoranda must be submitted to
circumstances to the Chief, Section of the proceeding are not permitted and the Board in the manner prescribed no
Administration, Office of Proceedings, are subject to the procedures and later than two business days after the ex
Surface Transportation Board. The sanctions in paragraphs (e) and (f) of parte communication.
Section Chief shall promptly place the this section. (vi) Ex parte memoranda submitted
written material or summary in the (2) To schedule ex parte meetings under this section will be posted on the
correspondence section of the public permitted under paragraph (g)(1) of this Board’s website in the docket for the
docket of the proceeding with a section, parties should contact the informal rulemaking proceeding within
designation indicating that it is a Board’s Office of Public Assistance, five days of submission. If a presenter
prohibited ex parte communication that Governmental Affairs, and Compliance has requested confidential treatment for
is not part of the decisional record. or the Board Member office with whom all or part of a memorandum, only the
(2) Any Board Member, hearing the meeting is requested, unless public version will appear on the
officer, or Board employee who is the otherwise specified by the Board. Board’s website. Persons seeking access
recipient of such ex parte (3) Parties seeking to present to the confidential version must do so
communication may request a ruling confidential information during an ex pursuant to the protective order
from the Board’s Designated Agency parte communication must inform the governing the proceeding.
Ethics Official as to whether the Board of the confidentiality of the
[FR Doc. 2018–04411 Filed 3–2–18; 8:45 am]
communication is a prohibited ex parte information at the time of the
communication. The Designated Agency presentation and must comply with the BILLING CODE 4915–01–P
Ethics Official shall promptly reply to disclosure requirements in paragraph
such requests. The Chief, Section of (g)(4)(iv) of this section.
Administration, Office of Proceedings, (4) The following disclosure DEPARTMENT OF COMMERCE
shall promptly notify the Chairman of requirements apply to ex parte
the Board of such ex parte communications permitted under National Oceanic and Atmospheric
communications sent to the Section paragraph (g)(1) of this section: Administration
Chief. The Designated Agency Ethics (i) Any person who engages in ex
Official shall promptly notify the parte communications in an informal 50 CFR Part 635
Chairman of all requests for rulings sent rulemaking proceeding shall submit to [Docket No. 150121066–5717–02]
to the Designated Agency Ethics the Board Member office or delegated
Board staff with whom the meeting was RIN 0648–XG061
Official. The Chairman may require that
any communication be placed in the held a memorandum that states the date
Atlantic Highly Migratory Species;
correspondence section of the docket and location of the communication; lists
Atlantic Bluefin Tuna Fisheries;
when fairness requires that it be made the names and titles of all persons who
General Category Fishery
public, even if it is not a prohibited attended (including via phone or video)
communication. The Chairman may or otherwise participated in the meeting AGENCY: National Marine Fisheries
direct the taking of such other action as during which the ex parte Service (NMFS), National Oceanic and
may be appropriate under the communication occurred; and Atmospheric Administration (NOAA),
circumstances. summarizes the data and arguments Commerce.
(f) * * * presented during the ex parte ACTION: Temporary rule; General
(3) The Board may censure, suspend, communication. Any written or category January fishery for 2018;
dismiss, or institute proceedings to electronic material shown or given to inseason bluefin tuna quota transfer and
suspend or dismiss any Board employee Board Members or Board staff during closure.
who knowingly and willfully violates the meeting must be attached to the
sradovich on DSK3GMQ082PROD with RULES
the rules in this section. memorandum. SUMMARY: NMFS transfers 10 metric
(g) Ex parte communications in (ii) Memoranda must be sufficiently tons (mt) of Atlantic bluefin tuna (BFT)
informal rulemaking proceedings; detailed to describe the substance of the quota from the Reserve category to the
disclosure requirements. (1) presentation. Board Members or Board January 2018 subquota period (from
Notwithstanding paragraph (c) of this staff may ask presenters to resubmit January 1 through March 31, 2018, or
section, ex parte communications with memoranda that are not sufficiently until the available subquota for this
Board Members in informal rulemaking detailed. period is reached, whichever comes
VerDate Sep<11>2014 15:56 Mar 02, 2018 Jkt 244001 PO 00000 Frm 00098 Fmt 4700 Sfmt 4700 E:\FR\FM\05MRR1.SGM 05MRR1](https://thefederalregister.org/doc/83_FR_9265/page/11.svg)
Document Created: 2018-03-03 02:45:35
Document Modified: 2018-03-03 02:45:35
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective on April 4, 2018. | |
| Contact | Jonathon Binet at (202) 245-0368. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339. | |
| FR Citation | 83 FR 9222 |
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