Wednesday, December 21, 2011

STB clarifies regulatory-review issues

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The Surface Transportation Board announced a ruling Wednesday clarifying the scope of a Presidentially-mandated review to determine “whether any o fits existing regulations may have become outmoded, ineffective, insufficient, or excessively burdensome, and how to modify, streamline, expand, or repeal them, as appropriate.”

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On Oct. 21, the board published a notice in the Federal Register announcing that it was undertaking a retrospective review of its existing regulations in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” and Executive Order 13579, “Regulation and Independent Regulatory Agencies.” In the notice, the board sought public comments.

On Nov. 17, the Association of American Railroads filed a petition seeking clarification that the board did not intend comments to address regulations at issue in 12 recent Ex Prate proceedings, including competition and pricing cases. On Dec. 7 the National Industrial Transportation League filed a reply arguing that AAR’s petition should be denied because it would unduly narrow the board’s inquiry.

The board granted the AAR’s petition in a decision dated Dec. 20, commenting:

“The President’s orders focused on a retrospective analysis of each agency’s regulations. A retrospective review implies that there must be enough time for existing regulations to be tested and evaluated by empirical evidence. Thus, the board clarifies that it intended for those commenting in this proceeding to focus on board regulations that, in light of sufficient experience, have proven to be outmoded, ineffective, insufficient, or excessively burdensome and to support their comments by empirical evidence. Although the board will consider comments on the existing and proposed regulations involved in the 12 proceedings cited in AAR’s petition for clarification, parties should be aware that the board intends to focus its analysis in this proceeding on whether there are long-standing regulations that have been shown to be obsolete or are otherwise in need of revision.”