Ex Parte Communications in Informal Rulemaking Proceedings, 45771-45779 [2017-21093]
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Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules
address the plan’s deficiencies within
one year.
The City of Albuquerque and
Bernalillo County, New Mexico has
provided the information required
under 40 CFR 51.309(d)(10)(i) in the
five-year progress report. Based upon
this information, the County stated in its
progress report SIP that it believes that
the current Section 309 and Section
309(g) regional haze SIPs are adequate
to meet the State’s 2018 RPGs and
require no further revision at this time.
Thus, the EPA has received a negative
declaration from the City of
Albuquerque and Bernalillo County,
NM.
sradovich on DSK3GMQ082PROD with PROPOSALS
IV. The EPA’s Proposed Action
The EPA is proposing to approve the
City of Albuquerque and Bernalillo
County, New Mexico’s regional haze
five-year progress report SIP revision
(submitted June 24, 2016) as meeting the
applicable regional haze requirements
set forth in 40 CFR 51.309(d)(10). The
EPA is proposing to approve the City of
Albuquerque and Bernalillo County,
New Mexico’s determination that the
current regional haze SIP is adequate to
meet the State’s 2018 RPGs.
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely proposes to approve state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993), 13563 (76 FR 3821,
January 21, 2011), and 13771 (82 FR
9339, February 2, 2017);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Public Law 104–4);
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• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994). In
addition, the SIP is not approved to
apply on any Indian reservation land or
in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the proposed rule does
not have tribal implications and will not
impose substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Best Available
Retrofit Technology, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Regional haze, Sulfur
dioxide, Visibility, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 26, 2017.
Samuel Coleman,
Acting Regional Administrator, Region 6.
[FR Doc. 2017–21006 Filed 9–29–17; 8:45 am]
BILLING CODE 6560–50–P
SURFACE TRANSPORTATION BOARD
49 CFR Part 1102
[Docket No. EP 739]
Ex Parte Communications in Informal
Rulemaking Proceedings
Surface Transportation Board.
Notice of Proposed Rulemaking.
AGENCY:
ACTION:
In this decision, the Surface
Transportation Board (the Board)
SUMMARY:
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proposes to modify its regulations to
permit, subject to disclosure
requirements, ex parte communications
in informal rulemaking proceedings.
The Board also proposes other changes
to its ex parte rules that would clarify
and update when and how interested
persons may communicate informally
with the Board regarding pending
proceedings other than rulemakings.
The intent of the proposed regulations
is to enhance the Board’s ability to make
informed decisions through increased
stakeholder communications while
ensuring that the Board’s recordbuilding process in rulemaking
proceedings remains transparent and
fair.
DATES: Comments are due by November
1, 2017. Replies are due by November
16, 2017.
ADDRESSES: Comments and replies may
be submitted either via the Board’s efiling format or in paper format. Any
person using e-filing should attach a
document and otherwise comply with
the instructions found on the Board’s
Web site at ‘‘www.stb.gov’’ at the ‘‘E–
FILING’’ link. Any person submitting a
filing in paper format should send an
original and 10 paper copies of the filing
to: Surface Transportation Board, Attn:
Docket No. EP 739, 395 E Street SW.,
Washington, DC 20423–0001. Copies of
written comments and replies will be
available for viewing and self-copying at
the Board’s Public Docket Room, Room
131, and will be posted to the Board’s
Web site.
FOR FURTHER INFORMATION CONTACT:
Jonathon Binet at (202) 245–0368.
Assistance for the hearing impaired is
available through the Federal
Information Relay Service (FIRS) at
(800) 877–8339.
SUPPLEMENTARY INFORMATION: The
Board’s current regulations at 49 CFR
1102.2 generally prohibit most informal
communications between the Board and
interested persons concerning the merits
of pending Board proceedings. These
regulations require that communications
with the Board or Board staff regarding
the merits of an ‘‘on-the-record’’ Board
proceeding not be made on an ex parte
basis (i.e., without the knowledge or
consent of the parties to the
proceeding). See 49 CFR 1102.2(c); 49
CFR 1102.2(a)(3). The current
regulations detail the procedures
required in the event an impermissible
communication occurs and the potential
sanctions for violations. See 49 CFR
1102.2(e), (f).
The Board’s predecessor agency, the
Interstate Commerce Commission (ICC),
determined that the general prohibition
on ex parte communications in
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Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules
proceedings should include the
informal rulemaking proceedings the
Board uses to promulgate
regulations.1 See Revised Rules of
Practice, 358 I.C.C. 323, 345 (1977)
(‘‘[E]x parte communication during a
rulemaking is just as improper as it is
during any other proceeding. The
Commission’s decisions should be
influenced only by statements that are a
matter of public record.’’). Accordingly,
it has long been the agency’s practice to
prohibit meetings with individual
stakeholders on issues that are the topic
of pending informal rulemaking
proceedings.
The Board has determined that it is
appropriate to revisit the agency’s strict
prohibition on ex parte communications
in informal rulemaking proceedings for
several reasons. First, the case law
governing the propriety of ex parte
communications in informal
rulemakings has evolved, and agencies
now have more flexibility to engage in
such communications and establish
procedures to govern them. Second, a
recent consensus recommendation of
the Administrative Conference of the
United States (ACUS), the body charged
by Congress with recommending agency
best practices, encourages greater use of
ex parte communications in informal
rulemaking proceedings so long as
agencies devise appropriate safeguards.
Third, the Board’s own experiences in
two recent rulemaking proceedings in
which the Board waived its ex parte
prohibitions to permit stakeholder
meetings have demonstrated that
informal meetings between the Board
and stakeholders can aid the Board’s
decision-making process while still
being conducted in a transparent and
fair manner.
The Board has also determined that
certain other aspects of its ex parte
regulations that apply to proceedings
other than rulemakings could be
clarified and updated to reflect current
practices and better guide stakeholders
and agency personnel.
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Case Law Developments Regarding Ex
Parte Communications in Informal
Rulemaking Proceedings
In the late 1970s, several court
decisions expressed the view that ex
parte communications in informal
1 The Administrative Procedure Act (APA), 5
U.S.C. 551–559, governs two categories of agency
rulemaking: Formal and informal. Formal
rulemaking is subject to specific procedural
requirements, including hearings, presiding
officers, and a strict ex parte prohibition. See 5
U.S.C. 556–57. But most federal agency
rulemakings, including the Board’s, are informal
rulemaking proceedings subject instead to the less
restrictive ‘‘notice-and-comment’’ requirements of 5
U.S.C. 553.
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rulemaking proceedings were inherently
suspect.2 Courts expressed concerns
that the written administrative record
did not reflect the possible ‘‘undue
influence’’ exerted by those
stakeholders who had engaged in ex
parte communications, HBO v. FCC, 567
F.2d at 54, and that ex parte
communications ‘‘violate[d] the basic
fairness of a hearing which ostensibly
assures the public a right to participate
in agency decision making,’’ foreclosing
effective judicial review, National Small
Shipments Traffic Conference v. ICC,
590 F.2d 345, 351 (D.C. Cir. 1978). At
the same time, however, other court
decisions were more tolerant of ex parte
communications in informal rulemaking
proceedings, so long as the proceeding
was not quasi-adjudicative in nature
and the process remained fair.3 The ICC
determined that its ex parte prohibition
should apply equally to rulemaking
proceedings. Revised Rules of Practice,
358 I.C.C. at 345.
Despite these initial misgivings by the
courts, the D.C. Circuit’s 1981 decision
in Sierra Club v. Costle, 657 F.2d 298
(D.C. Cir. 1981), significantly clarified
and liberalized treatment of this issue.
That case involved an informal
rulemaking conducted by the
Environmental Protection Agency
pursuant to the Clean Air Act, in which
the agency had received numerous
written and oral ex parte
communications after the close of the
comment period. The court considered
the ‘‘timing, source, mode, content, and
the extent of . . . disclosure’’ of ex parte
communications received after the close
of the comment period to determine
whether those communications violated
the Clean Air Act or due process. Id. at
391. The court noted that the Clean Air
Act itself did not prohibit ex parte
communications, although it did require
documents of ‘‘central relevance’’ be
2 See, e.g., Home Box Office v. Fed. Commc’ns
Comm’n (HBO v. FCC), 567 F.2d 9, 51–59 (D.C. Cir.
1977) (finding that ex parte communications that
occurred after the notice of proposed rulemaking
(NPRM) violated the due process rights of the
parties who were not privy to the communications);
see also Sangamon Valley Television Corp. v.
United States, 269 F.2d 221, 224 (D.C. Cir. 1959)
(finding that undisclosed ex parte communications
between agency commissioners and a stakeholder
were unlawful because the informal rulemaking
involved ‘‘resolution of conflicting private claims to
a valuable privilege, and that basic fairness requires
such a proceeding to be carried on in the open’’).
3 See, e.g., Action for Children’s Television v. Fed.
Commc’ns Comm’n, 564 F.2d 458 (D.C. Cir. 1977)
(upholding the agency’s decision not to issue
proposed rules and finding no APA violation for ex
parte discussions where the agency provided a
meaningful opportunity for public participation and
the proceeding did not involve competing claims
for a valuable privilege).
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placed on the public docket.4 Id. at 397.
Because the agency had docketed most
of the ex parte communications and
none of the comments were docketed
‘‘so late as to preclude any effective
public comment,’’ the court held that
the agency satisfied its statutory
requirements. Id. at 398.
As for constitutional due process, the
court in Sierra Club found there was
‘‘questionable utility’’ in insulating the
decisionmaker in informal rulemakings
(in contrast to quasi-judicial and quasiadjudicatory rulemakings) from ex parte
communications because the
decisionmaker in such cases is not
resolving ‘‘conflicting private claims to
a valuable privilege.’’ Id. at 400. The
court declined to prohibit ex parte
communications in such rulemaking on
due process grounds, and even held that
not all ex parte communications must
necessarily be docketed (implicitly
concluding that whether such
communications require docketing
depends on case-specific
circumstances). Id. at 402–04.
Today, Sierra Club is considered the
most recent influential decision on ex
parte communications in informal
rulemakings and is often cited by courts
for the proposition that ex parte
communications in informal agency
rulemaking are generally permissible.5
2014 ACUS Recommendation
In 2014, ACUS provided bestpractices guidance to agencies that a
general prohibition on ex parte
communications in informal rulemaking
proceedings is neither required nor
advisable. Ex Parte Commc’ns in
Informal Rulemaking Proceedings, 79
FR 35,988, 35,994 (June 25, 2014).
ACUS examined both the potential
benefits and risks of ex parte
communications in informal rulemaking
proceedings. Regarding potential
4 The court also made clear that the APA does not
impose any prohibition of, or requirements related
to, ex parte communications in informal
rulemaking. Sierra Club, 657 F.2d at 402 (noting
that Congress declined to extend the ex parte
prohibition applicable to formal rulemakings to
informal rulemakings despite being urged to do so).
5 See, e.g., Tex. Office of Pub. Util. Counsel v.
FCC, 265 F.3d. 313, 327 (5th Cir. 2001) (‘‘Generally,
ex parte contact is not shunned in the
administrative agency arena as it is in the judicial
context. In fact, agency action often demands it.’’);
Ammex, Inc. v. United States, 23 Ct. Int’l Trade 549,
569 n.16 (1999) (noting that the decision at issue
‘‘constitutes an exercise of ‘informal’ rulemaking
under the [APA] and, as such, is not subject to the
prohibition on ex parte communications set forth in
5 U.S.C. 557(d)(1) (1994)’’); Portland Audubon Soc.
v. Endangered Species Comm., 984 F.2d 1534,
1545–46 (9th Cir. 1993) (‘‘The decision in [Sierra
Club] that the contacts were not impermissible was
based explicitly on the fact that the proceeding
involved was informal rulemaking to which the
APA restrictions on ex parte communications are
not applicable.’’).
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benefits, ACUS concluded that such
communications
convey a variety of benefits to both agencies
and the public. . . . These meetings can
facilitate a more candid and potentially
interactive dialogue of key issues and may
satisfy the natural desire of interested
persons to feel heard. In addition, if an
agency engages in rulemaking in an area that
implicates sensitive information, ex parte
communications may be an indispensable
avenue for agencies to obtain the information
necessary to develop sound, workable
policies.
Id. But ACUS also acknowledged that
fairness issues can arise if certain
groups have, or are perceived to have,
‘‘greater access to agency personnel than
others’’ and that ‘‘[t]he mere possibility
of non-public information affecting
rulemaking creates problems of
perception and undermines confidence
in the rulemaking process.’’ Id.
In balancing these competing
considerations, ACUS urged agencies to
consider placing few, if any, restrictions
on ex parte communications that occur
before an NPRM because
communications at this stage are less
likely to cause harm and more likely to
‘‘help an agency gather essential
information, craft better regulatory
proposals, and promote consensus
building among interested persons.’’ Id.
However, ACUS recommended that
agencies establish clear procedures
ensuring that all ex parte
communications occurring after an
NPRM, whether planned or unplanned,
be disclosed. Written communications
should be placed in the docket, and oral
communications should be summarized
and placed in the docket. Written
summaries of oral communications
should include the date, location, and
participants of any meeting, as well as
‘‘adequate disclosure’’ of the
communication (prepared by agency
staff or private parties, with the ultimate
responsibility for adequacy falling on
the agency). Id. at 35,995. ACUS also
suggested that agencies exercise special
care regarding communications that
contain ‘‘any significant new
information that its decisionmakers
choose to consider or rely upon.’’ Id.
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Board Rationale for Revising its Ex
Parte Regulations
Starting in 2015, the Board began to
look at the possibility of conducting ex
parte meetings in order to gain even
more stakeholder input in the informal
rulemaking process. As a result, the
Board waived the ex parte prohibition to
permit Board Members or designated
Board staff to participate in ex parte
communications in two
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proceedings.6 See Reciprocal Switching,
EP 711 (Sub-No. 1), slip op. at 28–29
(STB served July 27, 2016); 7 U.S. Rail
Serv. Issues—Performance Data
Reporting (U.S. Rail Serv. Issues Nov.
2015 Decision), EP 724 (Sub-No. 4), slip
op. at 2–3 (STB served Nov. 9, 2015). In
both proceedings, the Board established
when ex parte meetings could be
scheduled and specific instructions for
the scheduling and disclosure of the
meetings. The Board has required
written meeting summaries be prepared
and docketed, although it has taken
slightly different approaches in each
proceeding. In EP 724 (Sub-No. 4),
where stakeholder meetings were held
with Board staff (rather than Board
Members), the meeting summaries were
prepared by Board staff and placed in
the rulemaking docket. (See, e.g.,
Summary of Ex Parte Meeting between
CSX Transp., Inc. & STB Staff, Dec. 16,
2015, U.S. Rail Serv. Issues—
Performance Data Reporting, EP 724
(Sub-No. 4).) In comparison, in EP 711
(Sub-No. 1), where stakeholder meetings
are being held with individual Board
Members, the Board has directed the
parties requesting the ex parte meetings
to prepare the written summaries,
which are provided, along with any
handouts, to the office of the Board
Member with whom the party met
within two business days of the meeting
and then placed in the rulemaking
docket within 14 days of the meeting.
(See, e.g., Summary of Ex Parte Meeting
Between INEOS USA LLC & STB
Member, Feb. 7, 2017, Reciprocal
Switching, EP 711 (Sub-No. 1).) In both
proceedings, the Board has ensured that
the meeting summaries contain the date
of the meeting and a list of attendees; a
summary of the arguments, information,
and data presented; and a copy of any
handout given or presented to the
Board. See Reciprocal Switching, EP 711
(Sub-No. 1), slip op. at 29; see also U.S.
Rail Serv. Issues Nov. 2015 Decision, EP
724 (Sub-No. 4), slip op. at 3. The Board
has also ensured that meeting
summaries are submitted and docketed
promptly. See Reciprocal Switching, EP
6 Greater use of ex parte meetings in Board
rulemaking proceedings was also a topic of the U.S.
Senate Committee on Commerce, Science, and
Transportation’s August 11, 2016 hearing. See
Freight Rail Reform: Implementation of the STB
Reauthorization Act of 2015: Field Hearing Before
the S. Comm. on Commerce, Sci., & Transp., 114th
Cong. 32, 35, 46, 50–52, 57, 69, 72 (2016), https://
www.gpo.gov/fdsys/pkg/CHRG-114shrg23228/pdf/
CHRG-114shrg23228.pdf.
7 In the Board’s July 27, 2016 decision, which
embraced Petition for Rulemaking to Adopt Revised
Competitive Switching Rules, Docket No. EP 711,
the Board terminated the proceeding in Docket No.
EP 711, and all meetings with Board Members are
taking place under Reciprocal Switching, Docket
No. EP 711 (Sub-No. 1).
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711 (Sub-No. 1), slip op. at 28–29
(requiring meetings summaries to be
submitted by parties within two
business days of the meeting and noting
that the Board expects to docket the
meeting summaries within 14 days of
the meeting); see also U.S. Rail Serv.
Issues—Performance Data Reporting,
Docket No. EP 724 (Sub-No. 4) (meeting
summaries prepared by Board staff were
generally docketed within 14 days of a
meeting).
Many stakeholders in these
proceedings have expressed
appreciation for the opportunity to meet
with Board Members or Board staff
regarding the merits of the proposed
rules. See, e.g., Summary of Ex Parte
Meeting Between Packaging Corp. of
Am. & Acting Chairman Begeman at 3,
Aug. 3, 2017, Reciprocal Switching, EP
711 (Sub-No. 1) (‘‘The meeting
concluded with . . . an
acknowledgement that the ex parte
meeting process on EP 711 has allowed
for valuable input from shippers and
their perspective on the need for a
competitive rail-pricing environment
that ultimately serves the public
interest.’’); Summary of Ex Parte
Meeting Between CSX Transp. & STB
Staff at 1, Dec. 16, 2015, U.S. Rail Serv.
Issues—Performance Data Reporting, EP
724 (Sub-No. 4) (‘‘CSXT hopes that there
will be additional opportunities for
informal discussions on Board
initiatives in the future and noted that
it has many informal discussions with
the Federal Railroad Administration,
which also does rulemakings.’’). In these
meetings, parties have been able to
respond directly to questions from
Board staff on the feasibility and utility
of certain aspects of the Board’s
proposal. As a result of the written
comments and ex parte meetings in
Docket No. EP 724 (Sub-No. 4), the
Board issued a supplemental NPRM
significantly revising its proposed rules.
See U.S. Rail Serv. Issues—Performance
Data Reporting, EP 724 (Sub-No. 4), slip
op. at 3 (STB served Apr. 29, 2016).
Because the ex parte meetings in that
proceeding better informed the agency
about the often highly technical service
reporting issues that were most
important to commenters, the Board
believes that the ultimate final rule was
a better reflection of the needs and
concerns of all stakeholders. The Board
has every reason to expect that the
ongoing meetings in EP 711 (Sub-No. 1)
will prove similarly helpful and
informative. The Board believes its
experiences in these two cases indicate
a strong desire among stakeholders to
interact with the Board more informally.
Both the developments in case law
related to ex parte communications and
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the Board’s own experiences waiving its
ex parte prohibitions in the two recent
proceedings discussed above provide
the Board with ample support to reexamine and update its ex parte
regulations to permit and govern ex
parte communications in informal
rulemaking proceedings. The Board’s
removal of its prohibition on ex parte
communications would also be
consistent with the more liberal
approach to ex parte communications in
informal rulemakings allowed under
Sierra Club. First, the Board’s informal
rulemaking proceedings are the type of
proceedings in which the court in Sierra
Club found ex parte communications
are not prohibited on strict due process
grounds. Specifically, the Board’s
informal rulemakings are legislative in
nature, in that they focus on policy or
law to be implemented in the future and
are based on various factors designed to
determine what prospective rule would
be most beneficial. See U.S. Rail Serv.
Issues Nov. 2015 Decision, EP 724 (SubNo. 4), slip op. at 2 n.4. The Board’s
informal rulemaking proceedings thus
generally do not involve competing
claims to a specific ‘‘valuable privilege,’’
which the court in Sierra Club warned
would trigger due process concerns.8
Accordingly, the strict due process
considerations that motivate blanket ex
parte restrictions in other cases would
not apply to the Board’s informal
rulemaking proceedings.
Second, as in Sierra Club, the Board’s
authorizing statute creates no
procedural impediments regarding ex
parte communications in informal
rulemaking proceedings. The statutory
authority for most of the Board’s rules,
the Interstate Commerce Act, does not
itself prohibit ex parte communications.
Indeed, 49 U.S.C. 11324(f) explicitly
permits ex parte communications in
major rail merger proceedings, subject to
prompt placement in the public docket
of the written communication or a
summary of the oral communication.
And 49 U.S.C. 11123 exempts the Board
from the requirements of the APA
altogether in emergency situations
requiring immediate Board action to
provide relief for service inadequacies.
In determining whether and to what
extent to permit ex parte
communications in informal rulemaking
proceedings, the Board must
appropriately balance the benefits of
allowing ex parte communications with
institutional concerns regarding
transparency and fairness. The benefits
8 Claims involving specific valuable privilege are
more typically resolved in Board adjudications,
such as rate reasonableness or unreasonable
practice cases, where ex parte communications
would remain prohibited.
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are evident: Ex parte communications
would provide the Board with the
opportunity to informally engage
stakeholders, gather information, and
receive the benefit of industry data and
stakeholder expertise. Such informal
discussions would help ensure the
Board thoroughly understands
stakeholder perspectives and would
ultimately aid the Board in developing
the most appropriate regulations. Ex
parte communications would also allow
stakeholders to further explain or clarify
data and arguments submitted in
written comments and would enable the
Board to explore the nuances of those
arguments by asking follow-up
questions, as needed. As noted in Sierra
Club, government administrators must
be open, accessible, and amenable to the
needs and ideas of the public. Sierra
Club, 657 F.2d at 400–01. Indeed, the
Board’s policy decisions in informal
rulemaking proceedings are guided by
stakeholder input, and, as the Board has
experienced in Docket Nos. EP 711
(Sub-No. 1) and EP 724 (Sub-No. 4), ex
parte meetings provide a meaningful
and direct way for stakeholders to share
their views and for the Board Members
and/or Board staff to ask specific
questions, thus promoting an increased
dialogue about particular issues.
The Board recognizes that ex parte
communications can also raise
concerns, including that decisionmakers
may be influenced by communications
made in private; that interested persons
may be unable to reply effectively to
information presented in ex parte
communications; and that certain
parties may be perceived to have greater
access to the agency. See infra at 7
(discussing ACUS report). However, the
Board believes that these concerns can
be remedied by implementing
safeguards to ensure that the public
record adequately reflects the evidence
and argument provided during the ex
parte meetings and that parties have an
opportunity to respond. Such safeguards
would include requiring the disclosure
of any written or oral ex parte
communication in a meeting summary
that would be posted to the public
docket and providing parties an
opportunity to submit written
comments in response to the summaries
at the conclusion of the ex parte meeting
period. Moreover, the Board could
address concerns regarding the
accessibility of the process by
permitting ex parte meetings via
telephone or video-conferencing.9
9 Any parties in need of assistance understanding
or complying with the Board’s ex parte
regulations—for example, locating example
summaries from prior cases on the Board’s Web
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With safeguards in place, the Board
believes that the ability to communicate
directly with stakeholders in informal
rulemaking proceedings would enhance
the Board’s deliberations and better
enable it to issue the most appropriate
regulations in accordance with a
transparent and fair record-building
process. Accordingly, the Board
proposes to revise its ex parte
regulations to permit ex parte
communications in informal rulemaking
proceedings, but also to implement
procedural safeguards that ensure the
rulemaking process remains fair and
transparent. Moreover, the Board seeks
to clarify certain other aspects of its ex
parte regulations that apply to
proceedings other than informal
rulemakings, to ensure that they provide
clear guidance on how stakeholders can
communicate with Board Members and
staff during such proceedings.
The Proposed Rule
The Board proposes to make the
following modifications, organized here
by topic, to the Board’s regulations at 49
CFR 1102.2 regarding ex parte
communication. The Board proposes
changes to the definitions set out in
paragraph (a) of the regulations; changes
to communications that are and are not
prohibited; and changes to the
procedures required upon receipt of
prohibited communications. The Board
also proposes new rules governing ex
parte communications in informal
rulemaking proceedings. The Board
invites comment on the proposed
revisions.
Changes to Definitions
The Board proposes to modify
paragraph (a) to reflect that the revised
regulations would govern, rather than
prohibit all, ex parte communications.
Under the existing regulations, ex parte
communications are prohibited in ‘‘onthe-record proceedings.’’ The term ‘‘onthe-record proceeding’’ is defined in
existing § 1102.2(a)(1) to include formal
rulemaking and adjudicatory
proceedings under §§ 556–57 of the
APA (5 U.S.C. 556–57), as well as any
matter required by the Constitution,
statute, Board rule, or by decision to be
decided solely on the record made in a
Board proceeding. As discussed above,
informal rulemaking proceedings are
not expressly covered by this definition.
site—would be able to contact the Board’s Rail
Customer and Public Assistance Program (RCPA).
Among other things, RCPA assists Board
stakeholders seeking guidance in complying with
Board decisions and regulations. Matters brought to
RCPA are handled informally by Board staff who
are not reasonably expected to participate in Board
decisions, and guidance offered through RCPA is
not binding on the agency.
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Rather, the ICC, in effect, extended the
ex parte prohibition to informal
rulemaking proceedings in Revised
Rules of Practice, 358 I.C.C. at 345. The
proposed regulations, however, would
essentially reverse this extension by no
longer completely prohibiting ex parte
communications in informal rulemaking
proceedings, while also ensuring any ex
parte communications post-NPRM
would be disclosed in a transparent
manner.
To accomplish this, the Board
proposes to add two new definitions to
§ 1102.2(a): ‘‘informal rulemaking
proceeding’’ and ‘‘covered
proceedings.’’ ‘‘Informal rulemaking
proceeding’’ would include any
proceeding to issue, amend, or repeal
rules pursuant to 49 CFR part 1110 and
5 U.S.C. 553. ‘‘Covered proceedings’’
would encompass both on-the-record
proceedings and informal rulemaking
proceedings following the issuance of
an NPRM.10 As discussed in more detail
below, ex parte communications would
be permitted in informal rulemaking
proceedings (subject to disclosure
requirements for those communications
occurring post-NPRM), but would
remain prohibited in on-the-record
proceedings.
The proposed language would also
redefine an ex parte communication as
‘‘an oral or written communication that
concerns the merits or substantive
outcome of a pending proceeding; is
made without notice to all parties and
without an opportunity for all parties to
be present; and could or is intended to
influence anyone who participates or
could reasonably be expected to
participate in the decision.’’ This new
definition would alter the existing
definition in two significant ways. First,
the existing concept that
communications are only ex parte if
made ‘‘by or on behalf of a party’’ would
be removed. The Board proposes
eliminating this phrase because
communications that concern the merits
or substantive outcome of a proceeding,
even if they are not made by a formal
party to the proceeding or on behalf of
such a party, could nonetheless have the
potential to impact a proceeding.
Second, the proposed new definition
would remove the suggestion that an ex
parte communication that is made with
the ‘‘consent of any other party’’ could
be permissible. The Board believes it is
more appropriate for the Board, rather
10 Accordingly, the Board proposes to replace
references to ‘‘on-the-record proceedings’’ with
‘‘covered proceedings,’’ as appropriate, throughout
§ 1102.2.
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than other parties, to determine whether
to permit ex parte communications.11
These revisions would not change the
generally understood concept that
certain communications, by their very
nature, do not concern the merits or
substantive outcome of pending
proceedings or are not made to Board
Members or staff who are reasonably
expected to participate in Board
decisions. For example,
communications that do not raise issues
include communications about purely
procedural issues; public statements or
speeches by Board Members or staff that
merely provide general and publicly
available information about a
proceeding; communications that solely
concern the status of a proceeding; and
communications with the Board’s
RCPA.
Communications That Are Not
Prohibited
Paragraph (b), as currently written,
permits certain types of
communications that do not appear to
threaten transparency or fairness but
that may also have an impact on a
proceeding. Such communications
include information from the news
media and facts or contentions that are
general in nature. See 49 CFR
1102.2(b)(2), (3). The Board proposes to
amend this paragraph to include
additional categories of ex parte
communications that are permissible
and would not be subject to the
proposed disclosure requirements of
proposed paragraphs (e) and (g),
discussed below. Proposed additions to
this category include communications
related to an informal rulemaking
proceeding prior to the issuance of an
NPRM; communications related to the
Board’s implementation of the National
Environmental Policy Act and related
environmental laws; and
communications concerning judicial
review of a matter that has already been
decided by the Board made between
parties to the litigation and the Board or
Board staff involved in that litigation.
Regarding ex parte communications
prior to the issuance of an NPRM, the
proposed rules would allow for
11 The Board also proposes some modifications
for syntax purposes. In particular, to reflect the
revised definition of ‘‘ex parte communication,’’
which incorporates the fact that ex parte
communications ‘‘concern[ ] the merits or the
substantive outcome of a pending proceeding,’’ the
Board proposes to remove the phrase ‘‘concerning
the merits of a proceeding’’ (and the like) from the
remainder of § 1102.2. For example, where existing
paragraph (c)(2) states ‘‘knowingly entertain any ex
parte communication concerning the merits of a
proceeding,’’ the proposed rules would only state
‘‘knowingly entertain any ex parte
communication.’’
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45775
unconstrained ex parte communications
in informal rulemaking proceedings
until an NPRM is issued. The Board
believes that free-flowing
communications with stakeholders
should be encouraged during the
exploratory, pre-NPRM phase of a
rulemaking proceeding. Some
rulemaking proceedings have been
initiated by the Board with a general
request for comments or an
informational hearing designed to allow
the Board to obtain preliminary
stakeholder input regarding certain
broad topics. See R.R. Revenue
Adequacy, EP 722 (STB served April 2,
2014); Review of Rail Access &
Competition Issues—Renewed Pet. of
the W. Coal Traffic League, EP 575 (STB
served June 2, 2006); see also Review of
the STB’s Gen. Costing Sys., EP 431
(Sub-No. 3) (STB served Apr. 6, 2009).
When such preliminary or general
decisions have been issued, the
applicability of the Board’s ex parte
prohibitions has been unclear, and this
ambiguity has caused confusion. The
Board proposes to clarify that, during
the pre-NPRM phase of an informal
rulemaking proceeding, it is not
necessary to limit (or subject to strict
disclosure requirements) informal
communications with individual
stakeholders regarding such general
topics because, as noted by ACUS, preNPRM ex parte communications do not
implicate administrative or due process
concerns. Information gathered in a preNPRM ex parte meeting that the Board
incorporates or relies upon in its
proposal should be evident in the
NPRM itself, and the public would have
the opportunity to examine and respond
to that information.12 For these reasons,
the Board believes that such
communications, which could assist the
Board in the preliminary stages of a
rulemaking proceeding, should be
encouraged.
Additionally, communications related
to environmental laws and
communications regarding judicial
12 For example, in Docket No. EP 733, Expediting
Rate Cases, Board staff held informal meetings with
stakeholders in April 2016 to explore ideas on how
the Board could expedite rate reasonableness cases.
The goal of the informal discussions was to enhance
Board staff’s perspective on strategies and pathways
to expedite and streamline rate cases. The Board
utilized feedback received during the informal
meetings to generate ideas, which were
incorporated into an advance notice of proposed
rulemaking. Expediting Rate Cases, EP 733, slip op.
at 2 (STB served June 15, 2017); see also id. at 3
(proposing standardized discovery requests in light
of statements by several stakeholders in the
informal meetings that standardizing discovery
would help expedite rate cases and reduce the
number of disputes). Parties were permitted to
comment on the details of the proposal, including
those stemming from feedback gathered in the
informal meetings. Id. at 1.
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review of matters already decided by the
Board are being added to codify existing
and well-accepted practices. The
Board’s environmental review process
‘‘is necessarily informal and allinclusive and depends on cooperative
consultations with the [license]
applicant as well as other agencies and
other interested parties with expertise,
so that all possible environmental
information, issues, and points of view
will come before the agency.’’ San
Jacinto Rail Ltd. Constr. Exemption &
BNSF Operation Exemption—Build-Out
to the Bayport Loop Near Houston,
Harris Cty., Tex., FD 34079, slip op. at
3 (STB served Dec. 3, 2002) (finding that
a letter sent as part of the environmental
review process did not constitute an ex
parte communication). Accordingly, the
Board proposes to clarify that
communications related solely to the
preparation of environmental review
documents, such as Environmental
Impact Statements and Environmental
Assessments, are not ex parte
communications. In addition, once a
Board decision has been appealed in
court, it is both necessary and proper for
there to be communication between the
agency and other litigants concerning
litigation issues.
Lastly, paragraph (b)(1) of the current
regulation permits any communication
‘‘to which all the parties to the
proceeding agree.’’ The Board proposes
to modify the existing regulations to
remove this language because, as noted
above, the Board believes it is more
appropriate for the Board, rather than
other parties, to determine whether to
permit ex parte communications.
Communications That Are Prohibited
The Board proposes to make changes
in paragraph (c) that either clarify the
existing regulations or modify them to
reflect that some ex parte
communications, such as those in
informal rulemakings, would be
permitted under the proposed
amendments.
In paragraph (c)(1), the Board
proposes to add an introductory clause,
‘‘[e]xcept to the extent permitted by
these rules’’ to reflect the fact that the
revised rules would govern, but not
entirely prohibit, ex parte
communications.
The Board also proposes to amend
paragraph (d) to clarify when the ex
parte prohibitions take effect. The
language of the existing regulations ties
ex parte communications governance to
the noticing for oral hearing or the
taking of evidence by modified
procedure. The Board believes that more
general ‘‘docketing’’ triggers would
better reflect the various ways Board
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proceedings are initiated. Thus, under
the proposed rule, the prohibitions
against ex parte communications in onthe-record proceedings would apply
when the first filing or Board decision
in a proceeding is posted to the public
docket or when the person responsible
for a communication knows that the
first filing has been filed with the Board,
whichever occurs first. In informal
rulemaking proceedings, except as
provided in the new paragraph (g),
discussed in more detail below, the
prohibitions on ex parte
communications would apply when the
Board issues an NPRM.
The Board also proposes to clarify
that ex parte prohibitions in covered
proceedings remain in effect until the
proceeding is no longer subject to
administrative reconsideration under 49
U.S.C. 1322(c) or judicial review.
Procedures Upon Receipt of Prohibited
Ex Parte Communications
The Board proposes revisions to
paragraphs (e) and (f), which entail the
procedures required of Board Members
and employees upon receipt of
prohibited ex parte communications
and sanctions, to reflect the fact that
some ex parte communications would
be permissible under the revised
regulation. First, the proposed rules
would clarify that the procedures in
paragraphs (e)(1) and (2) apply to ‘‘[a]ny
Board Member, hearing officer or Board
employee’’ who receives an ex parte
communication. Second, the procedures
set forth in existing paragraphs (e) and
(f) would now apply only to
communications not otherwise
permitted by the regulation. Lastly, the
Board proposes to amend the provision
in paragraph (e)(1), which requires the
Chief of the Office of Proceedings’
Section of Administration to place any
written communication or a written
summary of an oral communication not
permitted by these regulations in the
public correspondence file, to also
require that such placements be made
‘‘promptly’’ and contain a label
indicating that the prohibited ex parte
communication is not part of the
decisional record of the proceeding.
Ex Parte Communications in Informal
Rulemaking Proceedings
The Board proposes to add a new
paragraph (g) specifically governing ex
parte communications in informal
rulemaking proceedings that occur
following the issuance of an NPRM, at
which point disclosure requirements
would attach. Under the proposed rule,
ex parte communications with Board
Members in informal rulemaking
proceedings following the issuance of
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an NPRM would be permitted, subject to
disclosure requirements, until 20 days
before the deadline for reply comments
to the NPRM, unless otherwise specified
by the Board. The Board may delegate
its participation in such ex parte
communications to Board staff. See e.g.,
U.S. Rail Serv. Issues Nov. 2015
Decision, EP 724 (Sub-No. 4). Ex parte
communications in informal rulemaking
proceedings that occur outside of the
permitted meeting period, that occur
with Board staff where such
participation has not been delegated, or
that do not comply with the required
disclosure requirements would be
subject to the sanctions provided in
paragraph (f). To schedule meetings,
parties should contact the Board’s Office
of Public Assistance, Governmental
Affairs, and Compliance at (202) 245–
0238 or the Board Member office with
whom the meeting is requested, unless
otherwise specified by the Board.
As discussed in more detail above,
prompt and effective disclosure of ex
parte communications in informal
rulemaking proceedings would balance
the Board’s desire to obtain more
stakeholder input through informal
interactions while ensuring
transparency and fairness. Accordingly,
the proposed rules would require that
the substance of each ex parte meeting
be disclosed by the Board by posting in
the docket of the proceeding a written
meeting summary of the arguments,
information, and data presented at each
meeting and a copy of any handouts
given or presented. The meeting
summary would also disclose basic
information about the meeting including
the date and location of the ex parte
communication (or means of
communication in the case of telephone
calls or video-conferencing) and a list of
attendees/participants.
The proposed rules would also
provide that the meeting summaries be
sufficiently detailed to describe the
substance of the ex parte
communication. The Board’s intent is to
create a requirement that ensures that
summaries are not merely lists of the
topics discussed but rather contain the
arguments made and information
presented. The proposed rules provide
that presenters may be required to
resubmit summaries that are
insufficiently detailed or that contain
inaccuracies as to the substance of the
presentation, thus ensuring that the
Board attendees at the meeting retain
the responsibility of adequate
disclosure, as recommended by ACUS.
It is the Board’s preliminary view that
stakeholders do not need further formal
instructions in order to provide
appropriately detailed summaries, but
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parties may comment on whether more
specific instructions on the format or
content of meeting summaries would be
appropriate.13
The proposed rules provide that a
single meeting summary may be
submitted to the Board even if multiple
parties, persons, or counsel are involved
in the same ex parte meeting. In such
instances, it would be the responsibility
of the person submitting the summary to
ensure that all other parties at the
meeting agree to the form and content
of the summary. This provision is
intended to provide an efficient way for
parties with aligned interests to make
joint presentations to Board Members or
Board staff in the same way they are
able to make such presentations via
written pleadings. Likewise, the
proposed rules would permit parties to
present confidential information during
ex parte meetings. If the presentations
contain material that a party asserts is
confidential under an existing
protective order governing the
proceeding, parties would be required to
present a public version and a
confidential version of ex parte
summaries and any handouts. Just as
parties use the redacted, public versions
of written filings to vet arguments
presented in written comments, parties
likewise could use redacted, public
versions of the meeting summaries to
vet the arguments and information
shared with the Board during ex parte
meetings. Parties would have the
opportunity to respond to any
information contained in the meeting
summaries in their written NPRM reply
comments. To ensure that parties have
sufficient time to respond to the meeting
summaries, as noted, the Board is
proposing that the meetings occur at
least 20 days before the deadline for
reply comments to the NPRM, unless
otherwise specified by the Board. If a
protective order has not been issued in
the proceeding at the time the presenter
seeks to file a meeting summary or
handout containing confidential
information, the presenting party must
file a request with the Board seeking
such an order no later than the date it
submits its meeting summary.
The Board also believes it is
important that meeting summaries be
submitted as soon after the meetings
occur as practicable. The entire
substance of communications is best
recalled if they are recorded soon after
the meeting or presentation. Moreover,
if meeting summaries are submitted
13 In addition, stakeholders may find the Boardstaff prepared summaries in U.S. Rail Serv. Issues—
Performance Data Reporting, Docket No. EP 724
(Sub-No. 4), to be helpful examples regarding the
appropriate level of detail.
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promptly, the Board will be able to post
them promptly, which will ensure that
all interested stakeholders will have
sufficient time to review the summaries.
Accordingly, the proposed rules would
require parties to submit summaries
within two business days of an ex parte
presentation or meeting. The rules also
provide that the Board would post the
summaries within seven days of
submission of a summary that is
complete for posting.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601–612, generally
requires a description and analysis of
new rules that would have a significant
economic impact on a substantial
number of small entities. In drafting a
rule, an agency is required to: (1) Assess
the effect that its regulation will have on
small entities; (2) analyze effective
alternatives that may minimize a
regulation’s impact; and (3) make the
analysis available for public comment.
§§ 601–604. In its notice of proposed
rulemaking, the agency must either
include an initial regulatory flexibility
analysis, § 603(a), or certify that the
proposed rule would not have a
‘‘significant impact on a substantial
number of small entities,’’ § 605(b).
Because the goal of the RFA is to reduce
the cost to small entities of complying
with federal regulations, the RFA
requires an agency to perform a
regulatory flexibility analysis of small
entity impacts only when a rule directly
regulates those entities. In other words,
the impact must be a direct impact on
small entities ‘‘whose conduct is
circumscribed or mandated’’ by the
proposed rule. White Eagle Coop. v.
Conner, 553 F.3d 467, 480 (7th Cir.
2009).
The proposed regulation would not
create a significant impact on a
substantial number of small entities.14
The proposed regulations provide for
participation in ex parte
communications with the Board in
informal rulemaking proceedings to
14 Effective June 30, 2016, for the purpose of RFA
analysis for rail carriers subject to Board
jurisdiction, the Board defines a ‘‘small business’’
as only including those rail carriers classified as
Class III rail carriers under 49 CFR 1201.1–1. See
Small Entity Size Standards Under the Regulatory
Flexibility Act, EP 719 (STB served June 30, 2016)
(with Board Member Begeman dissenting). Class III
carriers have annual operating revenues of $20
million or less in 1991 dollars, or $35,809,698 or
less when adjusted for inflation using 2016 data.
Class II rail carriers have annual operating revenues
of less than $250 million in 1991 dollars or less
than $447,621,226 when adjusted for inflation using
2016 data. The Board calculates the revenue
deflator factor annually and publishes the railroad
revenue thresholds on its Web site. 49 CFR 1201.1–
1.
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provide stakeholders with an alternative
means of communicating their interests
to the Board in a transparent and fair
manner. When a party chooses to engage
in ex parte communications with the
Board in an informal rulemaking
proceeding, the requirements contained
in these proposed regulations do not
have a significant impact on
participants, including small entities.
While the proposed rules would require
parties to provide written summaries of
the ex parte communications, based on
the Board’s experiences in EP 711 (SubNo. 1) and EP 724 (Sub-No. 4), the
summary documentation is a minimal
burden. The meeting summaries are
generally only a few pages long
(excluding copies of handouts from the
meetings that were attached). For
example, the meeting summaries the
Board received in EP 724 (Sub-No. 4)
ranged from two to six pages in length.
Of those summaries, nearly half were
just two pages long. Likewise, in EP 711
(Sub-No. 1), the meeting summaries
range from one to four pages in length,
with the majority of those summaries
being three or fewer pages long. For
these reasons, the proposed rule would
not place any significant burden on
small entities.
List of Subjects in 49 CFR Part 1102
Administrative practice and
procedure.
It is ordered:
1. The Board proposes to amend its
rules as set forth in this decision. Notice
of the proposed rules will be published
in the Federal Register.
2. The procedural schedule is
established as follows: Comments
regarding the proposed rules are due by
November 1, 2017; replies are due by
November 16, 2017.
3. A copy of this decision will be
served upon the Chief Counsel for
Advocacy, Office of Advocacy, U.S.
Small Business Administration,
Washington, DC 20416.
4. This decision is effective on the day
of service.
Decided: September 26, 2017.
By the Board, Board Member Begeman,
Elliott, and Miller.
Jeffrey Herzig,
Clearance Clerk.
For the reasons set forth in the
preamble, the Surface Transportation
Board proposes to amend 49 CFR part
1102 as follows:
49 CFR PART 1102—
COMMUNICATIONS
1. The authority citation for part 1102
is revised to read as follows:
■
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Authority: 49 U.S.C. 1321.
2. Amend § 1102.2 as follows:
a. Revise the section heading;
b. In paragraph (a), redesignate
paragraphs (a)(2) and (3) as paragraphs
(a)(4) and (5) and add new paragraphs
(2) and (3);
■ c. Revise newly redesignated
paragraph (a)(5);
■ d. Revise paragraph (b) introductory
text;
■ e. Revise paragraph (b)(1);
■ f. Redesignate paragraphs (b)(2) and
(3) as paragraphs (b)(3) and (4), and add
new paragraphs (b)(2), (5), and (6);
■ g. Revise newly designated paragraphs
(b)(3) and (4);
■ h. Revise paragraphs (c) introductory
text, (c)(1), (c)(2), and (d);
■ i. Revise paragraph (e);
■ j. In paragraph (f)(1), remove
‘‘concerning the merits of a
proceeding’’;
■ k. In paragraph (f)(2), add ‘‘covered’’
before the word ‘‘proceeding’’;
■ l. Revise paragraph (f)(3); and
■ m. Add a new paragraph (g).
The revisions and additions read as
follows:
■
■
■
sradovich on DSK3GMQ082PROD with PROPOSALS
§ 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 onthe-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
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contentions are material to a substantive
issue in a pending covered proceeding
in which it is interested;
(4) Any communication by means of
the news media that in the ordinary
course of business of the publisher is
intended to inform the general public,
members of the organization involved,
or subscribers to such publication with
respect to pending covered proceedings;
(5) Any communications related
solely to the preparation of documents
necessary for the Board’s
implementation of the National
Environmental Policy Act and related
environmental laws, pursuant to part
1105 of this chapter;
(6) Any communication concerning
judicial review of a matter that has
already been decided by the Board made
between parties to the litigation and the
Board or Board staff who are involved
in that litigation.
(c) General Prohibitions.
(1) Except to the extent permitted by
these rules, no party, counsel, agent of
a party, or person who intercedes in any
covered proceeding shall engage in any
ex parte communication with any Board
Member, hearing officer, or Board
employee who participates, or who may
reasonably be expected to participate, in
the decision in the proceeding.
(2) No Board Member, hearing officer,
or Board employee who participates, or
is reasonably expected to participate, in
the decision in a covered proceeding
shall invite or knowingly entertain any
ex parte communication or engage in
any such communication to any party,
counsel, agent of a party, or person
reasonably expected to transmit the
communication to a party or party’s
agent.
(d) When prohibitions take effect. In
on-the-record proceedings, the
prohibitions against ex parte
communications apply from the date on
which the first filing or Board decision
in a proceeding is posted to the public
docket by the Board, or when the person
responsible for the communication has
knowledge that such a filing has been
filed, or at any time the Board, by rule
or decision, specifies, whichever occurs
first. In informal rulemaking
proceedings, except as provided in
paragraph (g) of this section, the
prohibitions against ex parte
communications apply following the
issuance of a notice of proposed
rulemaking. The prohibitions in covered
proceedings continue until the
proceeding is no longer subject to
administrative reconsideration under 49
U.S.C. 1322(c) or judicial review.
(e) Procedure required of Board
Members and Board staff upon receipt
of prohibited ex parte communications.
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(1) Any Board Member, hearing
officer, or Board employee who receives
an ex parte communication not
permitted by these regulations must
promptly transmit either the written
communication, or a written summary
of the oral communication with an
outline of the surrounding
circumstances to the Chief, Section of
Administration, Office of Proceedings,
Surface Transportation Board. The
Section Chief shall promptly place the
written material or summary in the
correspondence section of the public
docket of the proceeding with a
designation indicating that it is a
prohibited ex parte communication that
is not part of the decisional record.
(2) Any Board Member, hearing
officer, or Board employee who is the
recipient of such ex parte
communication may request a ruling
from the Board’s Designated Agency
Ethics Official as to whether the
communication is a prohibited ex parte
communication. The Designated Agency
Ethics Official shall promptly reply to
such requests. The Chief, Section of
Administration, Office of Proceedings,
shall promptly notify the Chairman of
the Board of such ex parte
communications sent to the Section
Chief. The Designated Agency Ethics
Official shall promptly notify the
Chairman of all requests for rulings sent
to the Designated Agency Ethics
Official. The Chairman may require that
any communication be placed in the
correspondence section of the docket
when fairness requires that it be made
public, even if it is not a prohibited
communication. The Chairman may
direct the taking of such other action as
may be appropriate under the
circumstances.
(f) * * *
(1) The Board may censure, suspend,
or revoke the privilege of practicing
before the agency of any person who
knowingly and willfully engages in or
solicits prohibited ex parte
communication.
(2) The relief or benefit sought by a
party to a covered proceeding may be
denied if the party or the party’s agent
knowingly and willfully violates these
rules.
(3) The Board may censure, suspend,
dismiss, or institute proceedings to
suspend or dismiss any Board employee
who knowingly and willfully violates
these rules.
(g) Ex parte communications in
informal rulemaking proceedings;
disclosure requirements.
(1) Notwithstanding paragraph (c) of
this section, ex parte communications
with Board Members in informal
rulemaking proceedings are permitted
E:\FR\FM\02OCP1.SGM
02OCP1
sradovich on DSK3GMQ082PROD with PROPOSALS
Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules
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.
VerDate Sep<11>2014
16:16 Sep 29, 2017
Jkt 244001
(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 § 1104.14 of this
chapter.
(v) Memoranda must be submitted to
the Board in the manner prescribed no
later than two business days after the ex
parte communication.
(vi) Ex parte memoranda submitted
under this section will be posted on the
Board’s Web site in the docket for the
informal rulemaking proceeding within
seven days of submission. If a presenter
has requested confidential treatment for
all or part of a memorandum, only the
public version will appear on the
Board’s Web site. Persons seeking access
to the confidential version must do so
pursuant to the protective order
governing the proceeding.
[FR Doc. 2017–21093 Filed 9–29–17; 8:45 am]
BILLING CODE 4915–01–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R6–ES–2016–0013:
FXES11130900000C6–178–FF09E30000]
RIN 1018–BB41
Endangered and Threatened Wildlife
and Plants; Removing Astragalus
desereticus (Deseret Milkvetch) From
the Federal List of Endangered and
Threatened Plants
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule and 12-month
petition finding; request for comments.
AGENCY:
The best available scientific
and commercial data indicate that
threats to Astragalus desereticus
(Deseret milkvetch) identified at the
time of listing in 1999 are not as
significant as originally anticipated and
are being adequately managed.
Therefore, the species no longer meets
the definition of an endangered or
SUMMARY:
PO 00000
Frm 00037
Fmt 4702
Sfmt 4702
45779
threatened species under the
Endangered Species Act of 1973, as
amended (Act). Consequently, we, the
U.S. Fish and Wildlife Service (Service),
propose to remove (delist) Astragalus
desereticus from the Federal List of
Endangered and Threatened Plants
(List). This determination is based on a
thorough review of all available
information, which indicates that this
species’ population is much greater than
was known at the time of listing in 1999
and that threats to this species have
been sufficiently minimized. This
document also serves as the 12-month
finding on a petition to remove this
species from the List. We are seeking
information, data, and comments from
the public on the proposed rule to
remove the Astragalus desereticus from
the List.
DATES: We will accept comments
received or postmarked on or before
December 1, 2017. Comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES
below), must be received by 11:59 p.m.
Eastern Time on the closing date. We
must receive requests for public
hearings, in writing, at the address
shown in the FOR FURTHER INFORMATION
CONTACT section by November 16, 2017.
ADDRESSES: You may submit written
comments on the proposed rule and the
draft post-delisting monitoring plan by
one of the following methods:
• Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter Docket No. FWS–R6–ES–2016–
0013, which is the docket number for
this rulemaking. Then, click on the
Search button. On the resulting page, in
the Search panel on the left side of the
screen, under the Document Type
heading, click on the Proposed Rules
link to locate this document. You may
submit a comment by clicking on the
blue ‘‘Comment Now!’’ box. If your
comments will fit in the provided
comment box, please use this feature of
https://www.regulations.gov, as it is most
compatible with our comment review
procedures. If you attach your
comments as a separate document, our
preferred file format is Microsoft Word.
If you attach multiple comments (such
as form letters), our preferred formation
is a spreadsheet in Microsoft Excel.
• By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–6–ES–2016–
0013; U.S. Fish and Wildlife Service;
MS: BPHC; 5275 Leesburg Pike, Falls
Church, VA 22041–3803.
We request that you submit written
comments only by the methods
described above. We will post all
E:\FR\FM\02OCP1.SGM
02OCP1
]]>Agencies
[Federal Register Volume 82, Number 189 (Monday, October 2, 2017)]
[Proposed Rules]
[Pages 45771-45779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21093]
=======================================================================
-----------------------------------------------------------------------
SURFACE TRANSPORTATION BOARD
49 CFR Part 1102
[Docket No. EP 739]
Ex Parte Communications in Informal Rulemaking Proceedings
AGENCY: Surface Transportation Board.
ACTION: Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: In this decision, the Surface Transportation Board (the Board)
proposes to modify its regulations to permit, subject to disclosure
requirements, ex parte communications in informal rulemaking
proceedings. The Board also proposes other changes to its ex parte
rules that would clarify and update when and how interested persons may
communicate informally with the Board regarding pending proceedings
other than rulemakings. The intent of the proposed regulations is to
enhance the Board's ability to make informed decisions through
increased stakeholder communications while ensuring that the Board's
record-building process in rulemaking proceedings remains transparent
and fair.
DATES: Comments are due by November 1, 2017. Replies are due by
November 16, 2017.
ADDRESSES: Comments and replies may be submitted either via the Board's
e-filing format or in paper format. Any person using e-filing should
attach a document and otherwise comply with the instructions found on
the Board's Web site at ``www.stb.gov'' at the ``E-FILING'' link. Any
person submitting a filing in paper format should send an original and
10 paper copies of the filing to: Surface Transportation Board, Attn:
Docket No. EP 739, 395 E Street SW., Washington, DC 20423-0001. Copies
of written comments and replies will be available for viewing and self-
copying at the Board's Public Docket Room, Room 131, and will be posted
to the Board's Web site.
FOR FURTHER INFORMATION CONTACT: Jonathon Binet at (202) 245-0368.
Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at (800) 877-8339.
SUPPLEMENTARY INFORMATION: The Board's current regulations at 49 CFR
1102.2 generally prohibit most informal communications between the
Board and interested persons concerning the merits of pending Board
proceedings. These regulations require that communications with the
Board or Board staff regarding the merits of an ``on-the-record'' Board
proceeding not be made on an ex parte basis (i.e., without the
knowledge or consent of the parties to the proceeding). See 49 CFR
1102.2(c); 49 CFR 1102.2(a)(3). The current regulations detail the
procedures required in the event an impermissible communication occurs
and the potential sanctions for violations. See 49 CFR 1102.2(e), (f).
The Board's predecessor agency, the Interstate Commerce Commission
(ICC), determined that the general prohibition on ex parte
communications in
[[Page 45772]]
proceedings should include the informal rulemaking proceedings the
Board uses to promulgate regulations.\1\ See Revised Rules of Practice,
358 I.C.C. 323, 345 (1977) (``[E]x parte communication during a
rulemaking is just as improper as it is during any other proceeding.
The Commission's decisions should be influenced only by statements that
are a matter of public record.''). Accordingly, it has long been the
agency's practice to prohibit meetings with individual stakeholders on
issues that are the topic of pending informal rulemaking proceedings.
---------------------------------------------------------------------------
\1\ The Administrative Procedure Act (APA), 5 U.S.C. 551-559,
governs two categories of agency rulemaking: Formal and informal.
Formal rulemaking is subject to specific procedural requirements,
including hearings, presiding officers, and a strict ex parte
prohibition. See 5 U.S.C. 556-57. But most federal agency
rulemakings, including the Board's, are informal rulemaking
proceedings subject instead to the less restrictive ``notice-and-
comment'' requirements of 5 U.S.C. 553.
---------------------------------------------------------------------------
The Board has determined that it is appropriate to revisit the
agency's strict prohibition on ex parte communications in informal
rulemaking proceedings for several reasons. First, the case law
governing the propriety of ex parte communications in informal
rulemakings has evolved, and agencies now have more flexibility to
engage in such communications and establish procedures to govern them.
Second, a recent consensus recommendation of the Administrative
Conference of the United States (ACUS), the body charged by Congress
with recommending agency best practices, encourages greater use of ex
parte communications in informal rulemaking proceedings so long as
agencies devise appropriate safeguards. Third, the Board's own
experiences in two recent rulemaking proceedings in which the Board
waived its ex parte prohibitions to permit stakeholder meetings have
demonstrated that informal meetings between the Board and stakeholders
can aid the Board's decision-making process while still being conducted
in a transparent and fair manner.
The Board has also determined that certain other aspects of its ex
parte regulations that apply to proceedings other than rulemakings
could be clarified and updated to reflect current practices and better
guide stakeholders and agency personnel.
Case Law Developments Regarding Ex Parte Communications in Informal
Rulemaking Proceedings
In the late 1970s, several court decisions expressed the view that
ex parte communications in informal rulemaking proceedings were
inherently suspect.\2\ Courts expressed concerns that the written
administrative record did not reflect the possible ``undue influence''
exerted by those stakeholders who had engaged in ex parte
communications, HBO v. FCC, 567 F.2d at 54, and that ex parte
communications ``violate[d] the basic fairness of a hearing which
ostensibly assures the public a right to participate in agency decision
making,'' foreclosing effective judicial review, National Small
Shipments Traffic Conference v. ICC, 590 F.2d 345, 351 (D.C. Cir.
1978). At the same time, however, other court decisions were more
tolerant of ex parte communications in informal rulemaking proceedings,
so long as the proceeding was not quasi-adjudicative in nature and the
process remained fair.\3\ The ICC determined that its ex parte
prohibition should apply equally to rulemaking proceedings. Revised
Rules of Practice, 358 I.C.C. at 345.
---------------------------------------------------------------------------
\2\ See, e.g., Home Box Office v. Fed. Commc'ns Comm'n (HBO v.
FCC), 567 F.2d 9, 51-59 (D.C. Cir. 1977) (finding that ex parte
communications that occurred after the notice of proposed rulemaking
(NPRM) violated the due process rights of the parties who were not
privy to the communications); see also Sangamon Valley Television
Corp. v. United States, 269 F.2d 221, 224 (D.C. Cir. 1959) (finding
that undisclosed ex parte communications between agency
commissioners and a stakeholder were unlawful because the informal
rulemaking involved ``resolution of conflicting private claims to a
valuable privilege, and that basic fairness requires such a
proceeding to be carried on in the open'').
\3\ See, e.g., Action for Children's Television v. Fed. Commc'ns
Comm'n, 564 F.2d 458 (D.C. Cir. 1977) (upholding the agency's
decision not to issue proposed rules and finding no APA violation
for ex parte discussions where the agency provided a meaningful
opportunity for public participation and the proceeding did not
involve competing claims for a valuable privilege).
---------------------------------------------------------------------------
Despite these initial misgivings by the courts, the D.C. Circuit's
1981 decision in Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981),
significantly clarified and liberalized treatment of this issue. That
case involved an informal rulemaking conducted by the Environmental
Protection Agency pursuant to the Clean Air Act, in which the agency
had received numerous written and oral ex parte communications after
the close of the comment period. The court considered the ``timing,
source, mode, content, and the extent of . . . disclosure'' of ex parte
communications received after the close of the comment period to
determine whether those communications violated the Clean Air Act or
due process. Id. at 391. The court noted that the Clean Air Act itself
did not prohibit ex parte communications, although it did require
documents of ``central relevance'' be placed on the public docket.\4\
Id. at 397. Because the agency had docketed most of the ex parte
communications and none of the comments were docketed ``so late as to
preclude any effective public comment,'' the court held that the agency
satisfied its statutory requirements. Id. at 398.
---------------------------------------------------------------------------
\4\ The court also made clear that the APA does not impose any
prohibition of, or requirements related to, ex parte communications
in informal rulemaking. Sierra Club, 657 F.2d at 402 (noting that
Congress declined to extend the ex parte prohibition applicable to
formal rulemakings to informal rulemakings despite being urged to do
so).
---------------------------------------------------------------------------
As for constitutional due process, the court in Sierra Club found
there was ``questionable utility'' in insulating the decisionmaker in
informal rulemakings (in contrast to quasi-judicial and quasi-
adjudicatory rulemakings) from ex parte communications because the
decisionmaker in such cases is not resolving ``conflicting private
claims to a valuable privilege.'' Id. at 400. The court declined to
prohibit ex parte communications in such rulemaking on due process
grounds, and even held that not all ex parte communications must
necessarily be docketed (implicitly concluding that whether such
communications require docketing depends on case-specific
circumstances). Id. at 402-04.
Today, Sierra Club is considered the most recent influential
decision on ex parte communications in informal rulemakings and is
often cited by courts for the proposition that ex parte communications
in informal agency rulemaking are generally permissible.\5\
---------------------------------------------------------------------------
\5\ See, e.g., Tex. Office of Pub. Util. Counsel v. FCC, 265
F.3d. 313, 327 (5th Cir. 2001) (``Generally, ex parte contact is not
shunned in the administrative agency arena as it is in the judicial
context. In fact, agency action often demands it.''); Ammex, Inc. v.
United States, 23 Ct. Int'l Trade 549, 569 n.16 (1999) (noting that
the decision at issue ``constitutes an exercise of `informal'
rulemaking under the [APA] and, as such, is not subject to the
prohibition on ex parte communications set forth in 5 U.S.C.
557(d)(1) (1994)''); Portland Audubon Soc. v. Endangered Species
Comm., 984 F.2d 1534, 1545-46 (9th Cir. 1993) (``The decision in
[Sierra Club] that the contacts were not impermissible was based
explicitly on the fact that the proceeding involved was informal
rulemaking to which the APA restrictions on ex parte communications
are not applicable.'').
---------------------------------------------------------------------------
2014 ACUS Recommendation
In 2014, ACUS provided best-practices guidance to agencies that a
general prohibition on ex parte communications in informal rulemaking
proceedings is neither required nor advisable. Ex Parte Commc'ns in
Informal Rulemaking Proceedings, 79 FR 35,988, 35,994 (June 25, 2014).
ACUS examined both the potential benefits and risks of ex parte
communications in informal rulemaking proceedings. Regarding potential
[[Page 45773]]
benefits, ACUS concluded that such communications
convey a variety of benefits to both agencies and the public. . . .
These meetings can facilitate a more candid and potentially
interactive dialogue of key issues and may satisfy the natural
desire of interested persons to feel heard. In addition, if an
agency engages in rulemaking in an area that implicates sensitive
information, ex parte communications may be an indispensable avenue
for agencies to obtain the information necessary to develop sound,
workable policies.
Id. But ACUS also acknowledged that fairness issues can arise if
certain groups have, or are perceived to have, ``greater access to
agency personnel than others'' and that ``[t]he mere possibility of
non-public information affecting rulemaking creates problems of
perception and undermines confidence in the rulemaking process.'' Id.
In balancing these competing considerations, ACUS urged agencies to
consider placing few, if any, restrictions on ex parte communications
that occur before an NPRM because communications at this stage are less
likely to cause harm and more likely to ``help an agency gather
essential information, craft better regulatory proposals, and promote
consensus building among interested persons.'' Id. However, ACUS
recommended that agencies establish clear procedures ensuring that all
ex parte communications occurring after an NPRM, whether planned or
unplanned, be disclosed. Written communications should be placed in the
docket, and oral communications should be summarized and placed in the
docket. Written summaries of oral communications should include the
date, location, and participants of any meeting, as well as ``adequate
disclosure'' of the communication (prepared by agency staff or private
parties, with the ultimate responsibility for adequacy falling on the
agency). Id. at 35,995. ACUS also suggested that agencies exercise
special care regarding communications that contain ``any significant
new information that its decisionmakers choose to consider or rely
upon.'' Id.
Board Rationale for Revising its Ex Parte Regulations
Starting in 2015, the Board began to look at the possibility of
conducting ex parte meetings in order to gain even more stakeholder
input in the informal rulemaking process. As a result, the Board waived
the ex parte prohibition to permit Board Members or designated Board
staff to participate in ex parte communications in two proceedings.\6\
See Reciprocal Switching, EP 711 (Sub-No. 1), slip op. at 28-29 (STB
served July 27, 2016); \7\ U.S. Rail Serv. Issues--Performance Data
Reporting (U.S. Rail Serv. Issues Nov. 2015 Decision), EP 724 (Sub-No.
4), slip op. at 2-3 (STB served Nov. 9, 2015). In both proceedings, the
Board established when ex parte meetings could be scheduled and
specific instructions for the scheduling and disclosure of the
meetings. The Board has required written meeting summaries be prepared
and docketed, although it has taken slightly different approaches in
each proceeding. In EP 724 (Sub-No. 4), where stakeholder meetings were
held with Board staff (rather than Board Members), the meeting
summaries were prepared by Board staff and placed in the rulemaking
docket. (See, e.g., Summary of Ex Parte Meeting between CSX Transp.,
Inc. & STB Staff, Dec. 16, 2015, U.S. Rail Serv. Issues--Performance
Data Reporting, EP 724 (Sub-No. 4).) In comparison, in EP 711 (Sub-No.
1), where stakeholder meetings are being held with individual Board
Members, the Board has directed the parties requesting the ex parte
meetings to prepare the written summaries, which are provided, along
with any handouts, to the office of the Board Member with whom the
party met within two business days of the meeting and then placed in
the rulemaking docket within 14 days of the meeting. (See, e.g.,
Summary of Ex Parte Meeting Between INEOS USA LLC & STB Member, Feb. 7,
2017, Reciprocal Switching, EP 711 (Sub-No. 1).) In both proceedings,
the Board has ensured that the meeting summaries contain the date of
the meeting and a list of attendees; a summary of the arguments,
information, and data presented; and a copy of any handout given or
presented to the Board. See Reciprocal Switching, EP 711 (Sub-No. 1),
slip op. at 29; see also U.S. Rail Serv. Issues Nov. 2015 Decision, EP
724 (Sub-No. 4), slip op. at 3. The Board has also ensured that meeting
summaries are submitted and docketed promptly. See Reciprocal
Switching, EP 711 (Sub-No. 1), slip op. at 28-29 (requiring meetings
summaries to be submitted by parties within two business days of the
meeting and noting that the Board expects to docket the meeting
summaries within 14 days of the meeting); see also U.S. Rail Serv.
Issues--Performance Data Reporting, Docket No. EP 724 (Sub-No. 4)
(meeting summaries prepared by Board staff were generally docketed
within 14 days of a meeting).
---------------------------------------------------------------------------
\6\ Greater use of ex parte meetings in Board rulemaking
proceedings was also a topic of the U.S. Senate Committee on
Commerce, Science, and Transportation's August 11, 2016 hearing. See
Freight Rail Reform: Implementation of the STB Reauthorization Act
of 2015: Field Hearing Before the S. Comm. on Commerce, Sci., &
Transp., 114th Cong. 32, 35, 46, 50-52, 57, 69, 72 (2016), https://www.gpo.gov/fdsys/pkg/CHRG-114shrg23228/pdf/CHRG-114shrg23228.pdf.
\7\ In the Board's July 27, 2016 decision, which embraced
Petition for Rulemaking to Adopt Revised Competitive Switching
Rules, Docket No. EP 711, the Board terminated the proceeding in
Docket No. EP 711, and all meetings with Board Members are taking
place under Reciprocal Switching, Docket No. EP 711 (Sub-No. 1).
---------------------------------------------------------------------------
Many stakeholders in these proceedings have expressed appreciation
for the opportunity to meet with Board Members or Board staff regarding
the merits of the proposed rules. See, e.g., Summary of Ex Parte
Meeting Between Packaging Corp. of Am. & Acting Chairman Begeman at 3,
Aug. 3, 2017, Reciprocal Switching, EP 711 (Sub-No. 1) (``The meeting
concluded with . . . an acknowledgement that the ex parte meeting
process on EP 711 has allowed for valuable input from shippers and
their perspective on the need for a competitive rail-pricing
environment that ultimately serves the public interest.''); Summary of
Ex Parte Meeting Between CSX Transp. & STB Staff at 1, Dec. 16, 2015,
U.S. Rail Serv. Issues--Performance Data Reporting, EP 724 (Sub-No. 4)
(``CSXT hopes that there will be additional opportunities for informal
discussions on Board initiatives in the future and noted that it has
many informal discussions with the Federal Railroad Administration,
which also does rulemakings.''). In these meetings, parties have been
able to respond directly to questions from Board staff on the
feasibility and utility of certain aspects of the Board's proposal. As
a result of the written comments and ex parte meetings in Docket No. EP
724 (Sub-No. 4), the Board issued a supplemental NPRM significantly
revising its proposed rules. See U.S. Rail Serv. Issues--Performance
Data Reporting, EP 724 (Sub-No. 4), slip op. at 3 (STB served Apr. 29,
2016). Because the ex parte meetings in that proceeding better informed
the agency about the often highly technical service reporting issues
that were most important to commenters, the Board believes that the
ultimate final rule was a better reflection of the needs and concerns
of all stakeholders. The Board has every reason to expect that the
ongoing meetings in EP 711 (Sub-No. 1) will prove similarly helpful and
informative. The Board believes its experiences in these two cases
indicate a strong desire among stakeholders to interact with the Board
more informally.
Both the developments in case law related to ex parte
communications and
[[Page 45774]]
the Board's own experiences waiving its ex parte prohibitions in the
two recent proceedings discussed above provide the Board with ample
support to re-examine and update its ex parte regulations to permit and
govern ex parte communications in informal rulemaking proceedings. The
Board's removal of its prohibition on ex parte communications would
also be consistent with the more liberal approach to ex parte
communications in informal rulemakings allowed under Sierra Club.
First, the Board's informal rulemaking proceedings are the type of
proceedings in which the court in Sierra Club found ex parte
communications are not prohibited on strict due process grounds.
Specifically, the Board's informal rulemakings are legislative in
nature, in that they focus on policy or law to be implemented in the
future and are based on various factors designed to determine what
prospective rule would be most beneficial. See U.S. Rail Serv. Issues
Nov. 2015 Decision, EP 724 (Sub-No. 4), slip op. at 2 n.4. The Board's
informal rulemaking proceedings thus generally do not involve competing
claims to a specific ``valuable privilege,'' which the court in Sierra
Club warned would trigger due process concerns.\8\ Accordingly, the
strict due process considerations that motivate blanket ex parte
restrictions in other cases would not apply to the Board's informal
rulemaking proceedings.
---------------------------------------------------------------------------
\8\ Claims involving specific valuable privilege are more
typically resolved in Board adjudications, such as rate
reasonableness or unreasonable practice cases, where ex parte
communications would remain prohibited.
---------------------------------------------------------------------------
Second, as in Sierra Club, the Board's authorizing statute creates
no procedural impediments regarding ex parte communications in informal
rulemaking proceedings. The statutory authority for most of the Board's
rules, the Interstate Commerce Act, does not itself prohibit ex parte
communications. Indeed, 49 U.S.C. 11324(f) explicitly permits ex parte
communications in major rail merger proceedings, subject to prompt
placement in the public docket of the written communication or a
summary of the oral communication. And 49 U.S.C. 11123 exempts the
Board from the requirements of the APA altogether in emergency
situations requiring immediate Board action to provide relief for
service inadequacies.
In determining whether and to what extent to permit ex parte
communications in informal rulemaking proceedings, the Board must
appropriately balance the benefits of allowing ex parte communications
with institutional concerns regarding transparency and fairness. The
benefits are evident: Ex parte communications would provide the Board
with the opportunity to informally engage stakeholders, gather
information, and receive the benefit of industry data and stakeholder
expertise. Such informal discussions would help ensure the Board
thoroughly understands stakeholder perspectives and would ultimately
aid the Board in developing the most appropriate regulations. Ex parte
communications would also allow stakeholders to further explain or
clarify data and arguments submitted in written comments and would
enable the Board to explore the nuances of those arguments by asking
follow-up questions, as needed. As noted in Sierra Club, government
administrators must be open, accessible, and amenable to the needs and
ideas of the public. Sierra Club, 657 F.2d at 400-01. Indeed, the
Board's policy decisions in informal rulemaking proceedings are guided
by stakeholder input, and, as the Board has experienced in Docket Nos.
EP 711 (Sub-No. 1) and EP 724 (Sub-No. 4), ex parte meetings provide a
meaningful and direct way for stakeholders to share their views and for
the Board Members and/or Board staff to ask specific questions, thus
promoting an increased dialogue about particular issues.
The Board recognizes that ex parte communications can also raise
concerns, including that decisionmakers may be influenced by
communications made in private; that interested persons may be unable
to reply effectively to information presented in ex parte
communications; and that certain parties may be perceived to have
greater access to the agency. See infra at 7 (discussing ACUS report).
However, the Board believes that these concerns can be remedied by
implementing safeguards to ensure that the public record adequately
reflects the evidence and argument provided during the ex parte
meetings and that parties have an opportunity to respond. Such
safeguards would include requiring the disclosure of any written or
oral ex parte communication in a meeting summary that would be posted
to the public docket and providing parties an opportunity to submit
written comments in response to the summaries at the conclusion of the
ex parte meeting period. Moreover, the Board could address concerns
regarding the accessibility of the process by permitting ex parte
meetings via telephone or video-conferencing.\9\
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\9\ Any parties in need of assistance understanding or complying
with the Board's ex parte regulations--for example, locating example
summaries from prior cases on the Board's Web site--would be able to
contact the Board's Rail Customer and Public Assistance Program
(RCPA). Among other things, RCPA assists Board stakeholders seeking
guidance in complying with Board decisions and regulations. Matters
brought to RCPA are handled informally by Board staff who are not
reasonably expected to participate in Board decisions, and guidance
offered through RCPA is not binding on the agency.
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With safeguards in place, the Board believes that the ability to
communicate directly with stakeholders in informal rulemaking
proceedings would enhance the Board's deliberations and better enable
it to issue the most appropriate regulations in accordance with a
transparent and fair record-building process. Accordingly, the Board
proposes to revise its ex parte regulations to permit ex parte
communications in informal rulemaking proceedings, but also to
implement procedural safeguards that ensure the rulemaking process
remains fair and transparent. Moreover, the Board seeks to clarify
certain other aspects of its ex parte regulations that apply to
proceedings other than informal rulemakings, to ensure that they
provide clear guidance on how stakeholders can communicate with Board
Members and staff during such proceedings.
The Proposed Rule
The Board proposes to make the following modifications, organized
here by topic, to the Board's regulations at 49 CFR 1102.2 regarding ex
parte communication. The Board proposes changes to the definitions set
out in paragraph (a) of the regulations; changes to communications that
are and are not prohibited; and changes to the procedures required upon
receipt of prohibited communications. The Board also proposes new rules
governing ex parte communications in informal rulemaking proceedings.
The Board invites comment on the proposed revisions.
Changes to Definitions
The Board proposes to modify paragraph (a) to reflect that the
revised regulations would govern, rather than prohibit all, ex parte
communications. Under the existing regulations, ex parte communications
are prohibited in ``on-the-record proceedings.'' The term ``on-the-
record proceeding'' is defined in existing Sec. 1102.2(a)(1) to
include formal rulemaking and adjudicatory proceedings under Sec. Sec.
556-57 of the APA (5 U.S.C. 556-57), as well as any matter required by
the Constitution, statute, Board rule, or by decision to be decided
solely on the record made in a Board proceeding. As discussed above,
informal rulemaking proceedings are not expressly covered by this
definition.
[[Page 45775]]
Rather, the ICC, in effect, extended the ex parte prohibition to
informal rulemaking proceedings in Revised Rules of Practice, 358
I.C.C. at 345. The proposed regulations, however, would essentially
reverse this extension by no longer completely prohibiting ex parte
communications in informal rulemaking proceedings, while also ensuring
any ex parte communications post-NPRM would be disclosed in a
transparent manner.
To accomplish this, the Board proposes to add two new definitions
to Sec. 1102.2(a): ``informal rulemaking proceeding'' and ``covered
proceedings.'' ``Informal rulemaking proceeding'' would include any
proceeding to issue, amend, or repeal rules pursuant to 49 CFR part
1110 and 5 U.S.C. 553. ``Covered proceedings'' would encompass both on-
the-record proceedings and informal rulemaking proceedings following
the issuance of an NPRM.\10\ As discussed in more detail below, ex
parte communications would be permitted in informal rulemaking
proceedings (subject to disclosure requirements for those
communications occurring post-NPRM), but would remain prohibited in on-
the-record proceedings.
---------------------------------------------------------------------------
\10\ Accordingly, the Board proposes to replace references to
``on-the-record proceedings'' with ``covered proceedings,'' as
appropriate, throughout Sec. 1102.2.
---------------------------------------------------------------------------
The proposed language would also redefine an ex parte communication
as ``an oral or written communication that concerns the merits or
substantive outcome of a pending proceeding; is made without notice to
all parties and without an opportunity for all parties to be present;
and could or is intended to influence anyone who participates or could
reasonably be expected to participate in the decision.'' This new
definition would alter the existing definition in two significant ways.
First, the existing concept that communications are only ex parte if
made ``by or on behalf of a party'' would be removed. The Board
proposes eliminating this phrase because communications that concern
the merits or substantive outcome of a proceeding, even if they are not
made by a formal party to the proceeding or on behalf of such a party,
could nonetheless have the potential to impact a proceeding. Second,
the proposed new definition would remove the suggestion that an ex
parte communication that is made with the ``consent of any other
party'' could be permissible. The Board believes it is more appropriate
for the Board, rather than other parties, to determine whether to
permit ex parte communications.\11\
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\11\ The Board also proposes some modifications for syntax
purposes. In particular, to reflect the revised definition of ``ex
parte communication,'' which incorporates the fact that ex parte
communications ``concern[ ] the merits or the substantive outcome of
a pending proceeding,'' the Board proposes to remove the phrase
``concerning the merits of a proceeding'' (and the like) from the
remainder of Sec. 1102.2. For example, where existing paragraph
(c)(2) states ``knowingly entertain any ex parte communication
concerning the merits of a proceeding,'' the proposed rules would
only state ``knowingly entertain any ex parte communication.''
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These revisions would not change the generally understood concept
that certain communications, by their very nature, do not concern the
merits or substantive outcome of pending proceedings or are not made to
Board Members or staff who are reasonably expected to participate in
Board decisions. For example, communications that do not raise issues
include communications about purely procedural issues; public
statements or speeches by Board Members or staff that merely provide
general and publicly available information about a proceeding;
communications that solely concern the status of a proceeding; and
communications with the Board's RCPA.
Communications That Are Not Prohibited
Paragraph (b), as currently written, permits certain types of
communications that do not appear to threaten transparency or fairness
but that may also have an impact on a proceeding. Such communications
include information from the news media and facts or contentions that
are general in nature. See 49 CFR 1102.2(b)(2), (3). The Board proposes
to amend this paragraph to include additional categories of ex parte
communications that are permissible and would not be subject to the
proposed disclosure requirements of proposed paragraphs (e) and (g),
discussed below. Proposed additions to this category include
communications related to an informal rulemaking proceeding prior to
the issuance of an NPRM; communications related to the Board's
implementation of the National Environmental Policy Act and related
environmental laws; and communications concerning judicial review of a
matter that has already been decided by the Board made between parties
to the litigation and the Board or Board staff involved in that
litigation.
Regarding ex parte communications prior to the issuance of an NPRM,
the proposed rules would allow for unconstrained ex parte
communications in informal rulemaking proceedings until an NPRM is
issued. The Board believes that free-flowing communications with
stakeholders should be encouraged during the exploratory, pre-NPRM
phase of a rulemaking proceeding. Some rulemaking proceedings have been
initiated by the Board with a general request for comments or an
informational hearing designed to allow the Board to obtain preliminary
stakeholder input regarding certain broad topics. See R.R. Revenue
Adequacy, EP 722 (STB served April 2, 2014); Review of Rail Access &
Competition Issues--Renewed Pet. of the W. Coal Traffic League, EP 575
(STB served June 2, 2006); see also Review of the STB's Gen. Costing
Sys., EP 431 (Sub-No. 3) (STB served Apr. 6, 2009). When such
preliminary or general decisions have been issued, the applicability of
the Board's ex parte prohibitions has been unclear, and this ambiguity
has caused confusion. The Board proposes to clarify that, during the
pre-NPRM phase of an informal rulemaking proceeding, it is not
necessary to limit (or subject to strict disclosure requirements)
informal communications with individual stakeholders regarding such
general topics because, as noted by ACUS, pre-NPRM ex parte
communications do not implicate administrative or due process concerns.
Information gathered in a pre-NPRM ex parte meeting that the Board
incorporates or relies upon in its proposal should be evident in the
NPRM itself, and the public would have the opportunity to examine and
respond to that information.\12\ For these reasons, the Board believes
that such communications, which could assist the Board in the
preliminary stages of a rulemaking proceeding, should be encouraged.
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\12\ For example, in Docket No. EP 733, Expediting Rate Cases,
Board staff held informal meetings with stakeholders in April 2016
to explore ideas on how the Board could expedite rate reasonableness
cases. The goal of the informal discussions was to enhance Board
staff's perspective on strategies and pathways to expedite and
streamline rate cases. The Board utilized feedback received during
the informal meetings to generate ideas, which were incorporated
into an advance notice of proposed rulemaking. Expediting Rate
Cases, EP 733, slip op. at 2 (STB served June 15, 2017); see also
id. at 3 (proposing standardized discovery requests in light of
statements by several stakeholders in the informal meetings that
standardizing discovery would help expedite rate cases and reduce
the number of disputes). Parties were permitted to comment on the
details of the proposal, including those stemming from feedback
gathered in the informal meetings. Id. at 1.
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Additionally, communications related to environmental laws and
communications regarding judicial
[[Page 45776]]
review of matters already decided by the Board are being added to
codify existing and well-accepted practices. The Board's environmental
review process ``is necessarily informal and all-inclusive and depends
on cooperative consultations with the [license] applicant as well as
other agencies and other interested parties with expertise, so that all
possible environmental information, issues, and points of view will
come before the agency.'' San Jacinto Rail Ltd. Constr. Exemption &
BNSF Operation Exemption--Build-Out to the Bayport Loop Near Houston,
Harris Cty., Tex., FD 34079, slip op. at 3 (STB served Dec. 3, 2002)
(finding that a letter sent as part of the environmental review process
did not constitute an ex parte communication). Accordingly, the Board
proposes to clarify that communications related solely to the
preparation of environmental review documents, such as Environmental
Impact Statements and Environmental Assessments, are not ex parte
communications. In addition, once a Board decision has been appealed in
court, it is both necessary and proper for there to be communication
between the agency and other litigants concerning litigation issues.
Lastly, paragraph (b)(1) of the current regulation permits any
communication ``to which all the parties to the proceeding agree.'' The
Board proposes to modify the existing regulations to remove this
language because, as noted above, the Board believes it is more
appropriate for the Board, rather than other parties, to determine
whether to permit ex parte communications.
Communications That Are Prohibited
The Board proposes to make changes in paragraph (c) that either
clarify the existing regulations or modify them to reflect that some ex
parte communications, such as those in informal rulemakings, would be
permitted under the proposed amendments.
In paragraph (c)(1), the Board proposes to add an introductory
clause, ``[e]xcept to the extent permitted by these rules'' to reflect
the fact that the revised rules would govern, but not entirely
prohibit, ex parte communications.
The Board also proposes to amend paragraph (d) to clarify when the
ex parte prohibitions take effect. The language of the existing
regulations ties ex parte communications governance to the noticing for
oral hearing or the taking of evidence by modified procedure. The Board
believes that more general ``docketing'' triggers would better reflect
the various ways Board proceedings are initiated. Thus, under the
proposed rule, the prohibitions against ex parte communications in on-
the-record proceedings would apply when the first filing or Board
decision in a proceeding is posted to the public docket or when the
person responsible for a communication knows that the first filing has
been filed with the Board, whichever occurs first. In informal
rulemaking proceedings, except as provided in the new paragraph (g),
discussed in more detail below, the prohibitions on ex parte
communications would apply when the Board issues an NPRM.
The Board also proposes to clarify that ex parte prohibitions in
covered proceedings remain in effect until the proceeding is no longer
subject to administrative reconsideration under 49 U.S.C. 1322(c) or
judicial review.
Procedures Upon Receipt of Prohibited Ex Parte Communications
The Board proposes revisions to paragraphs (e) and (f), which
entail the procedures required of Board Members and employees upon
receipt of prohibited ex parte communications and sanctions, to reflect
the fact that some ex parte communications would be permissible under
the revised regulation. First, the proposed rules would clarify that
the procedures in paragraphs (e)(1) and (2) apply to ``[a]ny Board
Member, hearing officer or Board employee'' who receives an ex parte
communication. Second, the procedures set forth in existing paragraphs
(e) and (f) would now apply only to communications not otherwise
permitted by the regulation. Lastly, the Board proposes to amend the
provision in paragraph (e)(1), which requires the Chief of the Office
of Proceedings' Section of Administration to place any written
communication or a written summary of an oral communication not
permitted by these regulations in the public correspondence file, to
also require that such placements be made ``promptly'' and contain a
label indicating that the prohibited ex parte communication is not part
of the decisional record of the proceeding.
Ex Parte Communications in Informal Rulemaking Proceedings
The Board proposes to add a new paragraph (g) specifically
governing ex parte communications in informal rulemaking proceedings
that occur following the issuance of an NPRM, at which point disclosure
requirements would attach. Under the proposed rule, ex parte
communications with Board Members in informal rulemaking proceedings
following the issuance of an NPRM would be permitted, subject to
disclosure requirements, until 20 days before the deadline for reply
comments to the NPRM, unless otherwise specified by the Board. The
Board may delegate its participation in such ex parte communications to
Board staff. See e.g., U.S. Rail Serv. Issues Nov. 2015 Decision, EP
724 (Sub-No. 4). Ex parte communications in informal rulemaking
proceedings that occur outside of the permitted meeting period, that
occur with Board staff where such participation has not been delegated,
or that do not comply with the required disclosure requirements would
be subject to the sanctions provided in paragraph (f). To schedule
meetings, parties should contact the Board's Office of Public
Assistance, Governmental Affairs, and Compliance at (202) 245-0238 or
the Board Member office with whom the meeting is requested, unless
otherwise specified by the Board.
As discussed in more detail above, prompt and effective disclosure
of ex parte communications in informal rulemaking proceedings would
balance the Board's desire to obtain more stakeholder input through
informal interactions while ensuring transparency and fairness.
Accordingly, the proposed rules would require that the substance of
each ex parte meeting be disclosed by the Board by posting in the
docket of the proceeding a written meeting summary of the arguments,
information, and data presented at each meeting and a copy of any
handouts given or presented. The meeting summary would also disclose
basic information about the meeting including the date and location of
the ex parte communication (or means of communication in the case of
telephone calls or video-conferencing) and a list of attendees/
participants.
The proposed rules would also provide that the meeting summaries be
sufficiently detailed to describe the substance of the ex parte
communication. The Board's intent is to create a requirement that
ensures that summaries are not merely lists of the topics discussed but
rather contain the arguments made and information presented. The
proposed rules provide that presenters may be required to resubmit
summaries that are insufficiently detailed or that contain inaccuracies
as to the substance of the presentation, thus ensuring that the Board
attendees at the meeting retain the responsibility of adequate
disclosure, as recommended by ACUS. It is the Board's preliminary view
that stakeholders do not need further formal instructions in order to
provide appropriately detailed summaries, but
[[Page 45777]]
parties may comment on whether more specific instructions on the format
or content of meeting summaries would be appropriate.\13\
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\13\ In addition, stakeholders may find the Board-staff prepared
summaries in U.S. Rail Serv. Issues--Performance Data Reporting,
Docket No. EP 724 (Sub-No. 4), to be helpful examples regarding the
appropriate level of detail.
---------------------------------------------------------------------------
The proposed rules provide that a single meeting summary may be
submitted to the Board even if multiple parties, persons, or counsel
are involved in the same ex parte meeting. In such instances, it would
be the responsibility of the person submitting the summary to ensure
that all other parties at the meeting agree to the form and content of
the summary. This provision is intended to provide an efficient way for
parties with aligned interests to make joint presentations to Board
Members or Board staff in the same way they are able to make such
presentations via written pleadings. Likewise, the proposed rules would
permit parties to present confidential information during ex parte
meetings. If the presentations contain material that a party asserts is
confidential under an existing protective order governing the
proceeding, parties would be required to present a public version and a
confidential version of ex parte summaries and any handouts. Just as
parties use the redacted, public versions of written filings to vet
arguments presented in written comments, parties likewise could use
redacted, public versions of the meeting summaries to vet the arguments
and information shared with the Board during ex parte meetings. Parties
would have the opportunity to respond to any information contained in
the meeting summaries in their written NPRM reply comments. To ensure
that parties have sufficient time to respond to the meeting summaries,
as noted, the Board is proposing that the meetings occur at least 20
days before the deadline for reply comments to the NPRM, unless
otherwise specified by the Board. If a protective order has not been
issued in the proceeding at the time the presenter seeks to file a
meeting summary or handout containing confidential information, the
presenting party must file a request with the Board seeking such an
order no later than the date it submits its meeting summary.
The Board also believes it is important that meeting summaries be
submitted as soon after the meetings occur as practicable. The entire
substance of communications is best recalled if they are recorded soon
after the meeting or presentation. Moreover, if meeting summaries are
submitted promptly, the Board will be able to post them promptly, which
will ensure that all interested stakeholders will have sufficient time
to review the summaries. Accordingly, the proposed rules would require
parties to submit summaries within two business days of an ex parte
presentation or meeting. The rules also provide that the Board would
post the summaries within seven days of submission of a summary that is
complete for posting.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612,
generally requires a description and analysis of new rules that would
have a significant economic impact on a substantial number of small
entities. In drafting a rule, an agency is required to: (1) Assess the
effect that its regulation will have on small entities; (2) analyze
effective alternatives that may minimize a regulation's impact; and (3)
make the analysis available for public comment. Sec. Sec. 601-604. In
its notice of proposed rulemaking, the agency must either include an
initial regulatory flexibility analysis, Sec. 603(a), or certify that
the proposed rule would not have a ``significant impact on a
substantial number of small entities,'' Sec. 605(b). Because the goal
of the RFA is to reduce the cost to small entities of complying with
federal regulations, the RFA requires an agency to perform a regulatory
flexibility analysis of small entity impacts only when a rule directly
regulates those entities. In other words, the impact must be a direct
impact on small entities ``whose conduct is circumscribed or mandated''
by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480
(7th Cir. 2009).
The proposed regulation would not create a significant impact on a
substantial number of small entities.\14\ The proposed regulations
provide for participation in ex parte communications with the Board in
informal rulemaking proceedings to provide stakeholders with an
alternative means of communicating their interests to the Board in a
transparent and fair manner. When a party chooses to engage in ex parte
communications with the Board in an informal rulemaking proceeding, the
requirements contained in these proposed regulations do not have a
significant impact on participants, including small entities. While the
proposed rules would require parties to provide written summaries of
the ex parte communications, based on the Board's experiences in EP 711
(Sub-No. 1) and EP 724 (Sub-No. 4), the summary documentation is a
minimal burden. The meeting summaries are generally only a few pages
long (excluding copies of handouts from the meetings that were
attached). For example, the meeting summaries the Board received in EP
724 (Sub-No. 4) ranged from two to six pages in length. Of those
summaries, nearly half were just two pages long. Likewise, in EP 711
(Sub-No. 1), the meeting summaries range from one to four pages in
length, with the majority of those summaries being three or fewer pages
long. For these reasons, the proposed rule would not place any
significant burden on small entities.
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\14\ Effective June 30, 2016, for the purpose of RFA analysis
for rail carriers subject to Board jurisdiction, the Board defines a
``small business'' as only including those rail carriers classified
as Class III rail carriers under 49 CFR 1201.1-1. See Small Entity
Size Standards Under the Regulatory Flexibility Act, EP 719 (STB
served June 30, 2016) (with Board Member Begeman dissenting). Class
III carriers have annual operating revenues of $20 million or less
in 1991 dollars, or $35,809,698 or less when adjusted for inflation
using 2016 data. Class II rail carriers have annual operating
revenues of less than $250 million in 1991 dollars or less than
$447,621,226 when adjusted for inflation using 2016 data. The Board
calculates the revenue deflator factor annually and publishes the
railroad revenue thresholds on its Web site. 49 CFR 1201.1-1.
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List of Subjects in 49 CFR Part 1102
Administrative practice and procedure.
It is ordered:
1. The Board proposes to amend its rules as set forth in this
decision. Notice of the proposed rules will be published in the Federal
Register.
2. The procedural schedule is established as follows: Comments
regarding the proposed rules are due by November 1, 2017; replies are
due by November 16, 2017.
3. A copy of this decision will be served upon the Chief Counsel
for Advocacy, Office of Advocacy, U.S. Small Business Administration,
Washington, DC 20416.
4. This decision is effective on the day of service.
Decided: September 26, 2017.
By the Board, Board Member Begeman, Elliott, and Miller.
Jeffrey Herzig,
Clearance Clerk.
For the reasons set forth in the preamble, the Surface
Transportation Board proposes to amend 49 CFR part 1102 as follows:
49 CFR PART 1102--COMMUNICATIONS
0
1. The authority citation for part 1102 is revised to read as follows:
[[Page 45778]]
Authority: 49 U.S.C. 1321.
0
2. Amend Sec. 1102.2 as follows:
0
a. Revise the section heading;
0
b. In paragraph (a), redesignate paragraphs (a)(2) and (3) as
paragraphs (a)(4) and (5) and add new paragraphs (2) and (3);
0
c. Revise newly redesignated paragraph (a)(5);
0
d. Revise paragraph (b) introductory text;
0
e. Revise paragraph (b)(1);
0
f. Redesignate paragraphs (b)(2) and (3) as paragraphs (b)(3) and (4),
and add new paragraphs (b)(2), (5), and (6);
0
g. Revise newly designated paragraphs (b)(3) and (4);
0
h. Revise paragraphs (c) introductory text, (c)(1), (c)(2), and (d);
0
i. Revise paragraph (e);
0
j. In paragraph (f)(1), remove ``concerning the merits of a
proceeding'';
0
k. In paragraph (f)(2), add ``covered'' before the word ``proceeding'';
0
l. Revise paragraph (f)(3); and
0
m. Add a new paragraph (g).
The revisions and additions read as follows:
Sec. 1102.2 Procedures governing ex parte communications.
(a) * * *
(2) ``Informal rulemaking proceeding'' means a proceeding to issue,
amend, or repeal rules pursuant to 5 U.S.C. 553 and part 1110 of this
chapter.
(3) ``Covered proceedings'' means on-the-record proceedings and
informal rulemaking proceedings following the issuance of a notice of
proposed rulemaking.
* * * * *
(5) ``Ex parte communication'' means an oral or written
communication that concerns the merits or substantive outcome of a
pending proceeding; is made without notice to all parties and without
an opportunity for all parties to be present; and could or is intended
to influence anyone who participates or could reasonably be expected to
participate in the decision.
(b) Ex parte communications that are not prohibited and need not be
disclosed.
(1) Any communication that the Board formally rules may be made on
an ex parte basis;
(2) Any communication occurring in informal rulemaking proceedings
prior to the issuance of a notice of proposed rulemaking;
(3) Any communication of facts or contention which has general
significance for a regulated industry if the communicator cannot
reasonably be expected to have known that the facts or contentions are
material to a substantive issue in a pending covered proceeding in
which it is interested;
(4) Any communication by means of the news media that in the
ordinary course of business of the publisher is intended to inform the
general public, members of the organization involved, or subscribers to
such publication with respect to pending covered proceedings;
(5) Any communications related solely to the preparation of
documents necessary for the Board's implementation of the National
Environmental Policy Act and related environmental laws, pursuant to
part 1105 of this chapter;
(6) Any communication concerning judicial review of a matter that
has already been decided by the Board made between parties to the
litigation and the Board or Board staff who are involved in that
litigation.
(c) General Prohibitions.
(1) Except to the extent permitted by these rules, no party,
counsel, agent of a party, or person who intercedes in any covered
proceeding shall engage in any ex parte communication with any Board
Member, hearing officer, or Board employee who participates, or who may
reasonably be expected to participate, in the decision in the
proceeding.
(2) No Board Member, hearing officer, or Board employee who
participates, or is reasonably expected to participate, in the decision
in a covered proceeding shall invite or knowingly entertain any ex
parte communication or engage in any such communication to any party,
counsel, agent of a party, or person reasonably expected to transmit
the communication to a party or party's agent.
(d) When prohibitions take effect. In on-the-record proceedings,
the prohibitions against ex parte communications apply from the date on
which the first filing or Board decision in a proceeding is posted to
the public docket by the Board, or when the person responsible for the
communication has knowledge that such a filing has been filed, or at
any time the Board, by rule or decision, specifies, whichever occurs
first. In informal rulemaking proceedings, except as provided in
paragraph (g) of this section, the prohibitions against ex parte
communications apply following the issuance of a notice of proposed
rulemaking. The prohibitions in covered proceedings continue until the
proceeding is no longer subject to administrative reconsideration under
49 U.S.C. 1322(c) or judicial review.
(e) Procedure required of Board Members and Board staff upon
receipt of prohibited ex parte communications.
(1) Any Board Member, hearing officer, or Board employee who
receives an ex parte communication not permitted by these regulations
must promptly transmit either the written communication, or a written
summary of the oral communication with an outline of the surrounding
circumstances to the Chief, Section of Administration, Office of
Proceedings, Surface Transportation Board. The Section Chief shall
promptly place the written material or summary in the correspondence
section of the public docket of the proceeding with a designation
indicating that it is a prohibited ex parte communication that is not
part of the decisional record.
(2) Any Board Member, hearing officer, or Board employee who is the
recipient of such ex parte communication may request a ruling from the
Board's Designated Agency Ethics Official as to whether the
communication is a prohibited ex parte communication. The Designated
Agency Ethics Official shall promptly reply to such requests. The
Chief, Section of Administration, Office of Proceedings, shall promptly
notify the Chairman of the Board of such ex parte communications sent
to the Section Chief. The Designated Agency Ethics Official shall
promptly notify the Chairman of all requests for rulings sent to the
Designated Agency Ethics Official. The Chairman may require that any
communication be placed in the correspondence section of the docket
when fairness requires that it be made public, even if it is not a
prohibited communication. The Chairman may direct the taking of such
other action as may be appropriate under the circumstances.
(f) * * *
(1) The Board may censure, suspend, or revoke the privilege of
practicing before the agency of any person who knowingly and willfully
engages in or solicits prohibited ex parte communication.
(2) The relief or benefit sought by a party to a covered proceeding
may be denied if the party or the party's agent knowingly and willfully
violates these rules.
(3) The Board may censure, suspend, dismiss, or institute
proceedings to suspend or dismiss any Board employee who knowingly and
willfully violates these rules.
(g) Ex parte communications in informal rulemaking proceedings;
disclosure requirements.
(1) Notwithstanding paragraph (c) of this section, ex parte
communications with Board Members in informal rulemaking proceedings
are permitted
[[Page 45779]]
after the issuance of a notice of proposed rulemaking and until 20 days
before the deadline for reply comments set forth in the notice of
proposed rulemaking, unless otherwise specified by the Board in
procedural orders governing the proceeding. The Board may delegate its
participation in such ex parte communications to Board staff. All such
ex parte communications must be disclosed in accordance with paragraph
(g)(4) of this section. Any person who engages in such ex parte
communications must comply with any schedule and additional
instructions provided by the Board in the proceeding. Communications
that do not comply with this section or with the schedule and
instructions established in the proceeding are not permitted and are
subject to the procedures and sanctions in paragraphs (e) and (f) of
this section.
(2) To schedule ex parte meetings permitted under paragraph (g)(1)
of this section, parties should contact the Board's Office of Public
Assistance, Governmental Affairs, and Compliance or the Board Member
office with whom the meeting is requested, unless otherwise specified
by the Board.
(3) Parties seeking to present confidential information during an
ex parte communication must inform the Board of the confidentiality of
the information at the time of the presentation and must comply with
the disclosure requirements in paragraph (g)(4)(iv) of this section.
(4) The following disclosure requirements apply to ex parte
communications permitted under paragraph (g)(1) of this section:
(i) Any person who engages in ex parte communications in an
informal rulemaking proceeding shall submit to the Board Member office
or delegated Board staff with whom the meeting was held a memorandum
that states the date and location of the communication; lists the names
and titles of all persons who attended (including via phone or video)
or otherwise participated in the meeting during which the ex parte
communication occurred; and summarizes the data and arguments presented
during the ex parte communication. Any written or electronic material
shown or given to Board Members or Board staff during the meeting must
be attached to the memorandum.
(ii) Memoranda must be sufficiently detailed to describe the
substance of the presentation. Board Members or Board staff may ask
presenters to resubmit memoranda that are not sufficiently detailed.
(iii) If a single meeting includes presentations from multiple
parties, counsel, or persons, a single summary may be submitted so long
as all presenters agree to the form and content of the summary.
(iv) If a memorandum, including any attachments, contains
information that the presenter asserts is confidential, the presenter
must submit a public version and a confidential version of the
memorandum. If there is no existing protective order governing the
proceeding, the presenter must, at the same time the presenter submits
its public and redacted memoranda, file a request with the Board
seeking such an order pursuant to Sec. 1104.14 of this chapter.
(v) Memoranda must be submitted to the Board in the manner
prescribed no later than two business days after the ex parte
communication.
(vi) Ex parte memoranda submitted under this section will be posted
on the Board's Web site in the docket for the informal rulemaking
proceeding within seven days of submission. If a presenter has
requested confidential treatment for all or part of a memorandum, only
the public version will appear on the Board's Web site. Persons seeking
access to the confidential version must do so pursuant to the
protective order governing the proceeding.
[FR Doc. 2017-21093 Filed 9-29-17; 8:45 am]
BILLING CODE 4915-01-P
