Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 45771 

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. 

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); 

• 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 

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 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 


sradovich on DSK3GMQ082PROD with PROPOSALS
45772 Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 

1The 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. 

2See, 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’’). 

3See, 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). 

4The 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). 

5See, 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.’’). 

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. 

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. 

Despite these initial misgivings by the 

courts, the D.C. Circuit’s 1981 decision 

in Sierra Club v. Costle, 657 F.2d 298 

(D.C. Cir. 1981), significantly clarified 

and liberalized treatment of this issue. 

That case involved an informal 

rulemaking conducted by the 

Environmental Protection Agency 

pursuant to the Clean Air Act, in which 

the agency had received numerous 

written and oral ex parte 

communications after the close of the 

comment period. The court considered 

the ‘‘timing, source, mode, content, and 

the extent of . . . disclosure’’ of ex parte 

communications received after the close 

of the comment period to determine 

whether those communications violated 

the Clean Air Act or due process. Id. at 

391. The court noted that the Clean Air 

Act itself did not prohibit ex parte 

communications, although it did require 

documents of ‘‘central relevance’’ be 

placed on the public docket.4 Id. at 397. 

Because the agency had docketed most 

of the ex parte communications and 

none of the comments were docketed 

‘‘so late as to preclude any effective 

public comment,’’ the court held that 

the agency satisfied its statutory 

requirements. Id. at 398. 

As for constitutional due process, the 

court in Sierra Club found there was 

‘‘questionable utility’’ in insulating the 

decisionmaker in informal rulemakings 

(in contrast to quasi-judicial and 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 


sradovich on DSK3GMQ082PROD with PROPOSALS
Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 45773 

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). 

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). 

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 


sradovich on DSK3GMQ082PROD with PROPOSALS
45774 Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 

8Claims 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. 

9Any 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. 

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 

are evident: Ex parte communications 

would provide the Board with the 

opportunity to informally engage 

stakeholders, gather information, and 

receive the benefit of industry data and 

stakeholder expertise. Such informal 

discussions would help ensure the 

Board thoroughly understands 

stakeholder perspectives and would 

ultimately aid the Board in developing 

the most appropriate regulations. Ex 

parte communications would also allow 

stakeholders to further explain or clarify 

data and arguments submitted in 

written comments and would enable the 

Board to explore the nuances of those 

arguments by asking follow-up 

questions, as needed. As noted in Sierra 

Club, government administrators must 

be open, accessible, and amenable to the 

needs and ideas of the public. Sierra 

Club, 657 F.2d at 400–01. Indeed, the 

Board’s policy decisions in informal 

rulemaking proceedings are guided by 

stakeholder input, and, as the Board has 

experienced in Docket Nos. EP 711 

(Sub-No. 1) and EP 724 (Sub-No. 4), ex 

parte meetings provide a meaningful 

and direct way for stakeholders to share 

their views and for the Board Members 

and/or Board staff to ask specific 

questions, thus promoting an increased 

dialogue about particular issues. 

The Board recognizes that ex parte 

communications can also raise 

concerns, including that decisionmakers 

may be influenced by communications 

made in private; that interested persons 

may be unable to reply effectively to 

information presented in ex parte 

communications; and that certain 

parties may be perceived to have greater 

access to the agency. See infra at 7 

(discussing ACUS report). However, the 

Board believes that these concerns can 

be remedied by implementing 

safeguards to ensure that the public 

record adequately reflects the evidence 

and argument provided during the ex 

parte meetings and that parties have an 

opportunity to respond. Such safeguards 

would include requiring the disclosure 

of any written or oral ex parte 

communication in a meeting summary 

that would be posted to the public 

docket and providing parties an 

opportunity to submit written 

comments in response to the summaries 

at the conclusion of the ex parte meeting 

period. Moreover, the Board could 

address concerns regarding the 

accessibility of the process by 

permitting ex parte meetings via 

telephone or video-conferencing.9

With safeguards in place, the Board 

believes that the ability to communicate 

directly with stakeholders in informal 

rulemaking proceedings would enhance 

the Board’s deliberations and better 

enable it to issue the most appropriate 

regulations in accordance with a 

transparent and fair record-building 

process. Accordingly, the Board 

proposes to revise its ex parte 

regulations to permit ex parte 

communications in informal rulemaking 

proceedings, but also to implement 

procedural safeguards that ensure the 

rulemaking process remains fair and 

transparent. Moreover, the Board seeks 

to clarify certain other aspects of its ex 

parte regulations that apply to 

proceedings other than informal 

rulemakings, to ensure that they provide 

clear guidance on how stakeholders can 

communicate with Board Members and 

staff during such proceedings. 

The 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. 


sradovich on DSK3GMQ082PROD with PROPOSALS
Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 45775 

10Accordingly, the Board proposes to replace 

references to ‘‘on-the-record proceedings’’ with 

‘‘covered proceedings,’’ as appropriate, throughout 

§ 1102.2. 

11The 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.’’ 

12For 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. 

Rather, the ICC, in effect, extended the 

ex parte prohibition to informal 

rulemaking proceedings in Revised 

Rules of Practice, 358 I.C.C. at 345. The 

proposed regulations, however, would 

essentially reverse this extension by no 

longer completely prohibiting ex parte 

communications in informal rulemaking 

proceedings, while also ensuring any ex 

parte communications post-NPRM 

would be disclosed in a transparent 

manner. 

To accomplish this, the Board 

proposes to add two new definitions to 

§ 1102.2(a): ‘‘informal rulemaking 

proceeding’’ and ‘‘covered 

proceedings.’’ ‘‘Informal rulemaking 

proceeding’’ would include any 

proceeding to issue, amend, or repeal 

rules pursuant to 49 CFR part 1110 and 

5 U.S.C. 553. ‘‘Covered proceedings’’ 

would encompass both on-the-record 

proceedings and informal rulemaking 

proceedings following the issuance of 

an NPRM.10 As discussed in more detail 

below, ex parte communications would 

be permitted in informal rulemaking 

proceedings (subject to disclosure 

requirements for those communications 

occurring post-NPRM), but would 

remain prohibited in on-the-record 

proceedings. 

The proposed language would also 

redefine an ex parte communication as 

‘‘an oral or written communication that 

concerns the merits or substantive 

outcome of a pending proceeding; is 

made without notice to all parties and 

without an opportunity for all parties to 

be present; and could or is intended to 

influence anyone who participates or 

could reasonably be expected to 

participate in the decision.’’ This new 

definition would alter the existing 

definition in two significant ways. First, 

the existing concept that 

communications are only ex parte if 

made ‘‘by or on behalf of a party’’ would 

be removed. The Board proposes 

eliminating this phrase because 

communications that concern the merits 

or substantive outcome of a proceeding, 

even if they are not made by a formal 

party to the proceeding or on behalf of 

such a party, could nonetheless have the 

potential to impact a proceeding. 

Second, the proposed new definition 

would remove the suggestion that an ex 

parte communication that is made with 

the ‘‘consent of any other party’’ could 

be permissible. The Board believes it is 

more appropriate for the Board, rather 

than other parties, to determine whether 

to permit ex parte communications.11

These revisions would not change the 

generally understood concept that 

certain communications, by their very 

nature, do not concern the merits or 

substantive outcome of pending 

proceedings or are not made to Board 

Members or staff who are reasonably 

expected to participate in Board 

decisions. For example, 

communications that do not raise issues 

include communications about purely 

procedural issues; public statements or 

speeches by Board Members or staff that 

merely provide general and publicly 

available information about a 

proceeding; communications that solely 

concern the status of a proceeding; and 

communications with the Board’s 

RCPA. 

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, 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 


sradovich on DSK3GMQ082PROD with PROPOSALS
45776 Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 

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 

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 

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 


sradovich on DSK3GMQ082PROD with PROPOSALS
Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 45777 

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. 

14Effective 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. 

parties may comment on whether more 

specific instructions on the format or 

content of meeting summaries would be 

appropriate.13

The proposed rules provide that a 

single meeting summary may be 

submitted to the Board even if multiple 

parties, persons, or counsel are involved 

in the same ex parte meeting. In such 

instances, it would be the responsibility 

of the person submitting the summary to 

ensure that all other parties at the 

meeting agree to the form and content 

of the summary. This provision is 

intended to provide an efficient way for 

parties with aligned interests to make 

joint presentations to Board Members or 

Board staff in the same way they are 

able to make such presentations via 

written pleadings. Likewise, the 

proposed rules would permit parties to 

present confidential information during 

ex parte meetings. If the presentations 

contain material that a party asserts is 

confidential under an existing 

protective order governing the 

proceeding, parties would be required to 

present a public version and a 

confidential version of ex parte 

summaries and any handouts. Just as 

parties use the redacted, public versions 

of written filings to vet arguments 

presented in written comments, parties 

likewise could use redacted, public 

versions of the meeting summaries to 

vet the arguments and information 

shared with the Board during ex parte 

meetings. Parties would have the 

opportunity to respond to any 

information contained in the meeting 

summaries in their written NPRM reply 

comments. To ensure that parties have 

sufficient time to respond to the meeting 

summaries, as noted, the Board is 

proposing that the meetings occur at 

least 20 days before the deadline for 

reply comments to the NPRM, unless 

otherwise specified by the Board. If a 

protective order has not been issued in 

the proceeding at the time the presenter 

seeks to file a meeting summary or 

handout containing confidential 

information, the presenting party must 

file a request with the Board seeking 

such an order no later than the date it 

submits its meeting summary. 

The Board also believes it is 

important that meeting summaries be 

submitted as soon after the meetings 

occur as practicable. The entire 

substance of communications is best 

recalled if they are recorded soon after 

the meeting or presentation. Moreover, 

if meeting summaries are submitted 

promptly, the Board will be able to post 

them promptly, which will ensure that 

all interested stakeholders will have 

sufficient time to review the summaries. 

Accordingly, the proposed rules would 

require parties to submit summaries 

within two business days of an ex parte 

presentation or meeting. The rules also 

provide that the Board would post the 

summaries within seven days of 

submission of a summary that is 

complete for posting. 

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 

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: 


sradovich on DSK3GMQ082PROD with PROPOSALS
45778 Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 

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: 

§ 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 

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 


sradovich on DSK3GMQ082PROD with PROPOSALS
Federal Register / Vol. 82, No. 189 / Monday, October 2, 2017 / Proposed Rules 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 § 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 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule and 12-month 

petition finding; request for comments. 

SUMMARY: 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 

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: http://

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 

http://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 


sradovich on DSK3GMQ082PROD with PROPOSALS