STB: “We want more collaboration”

The Surface Transportation Board (STB) is looking to revisit and modify its longstanding rules on ex parte* communications in informal rulemaking proceedings, which up until recently have mostly been prohibited.

STB has issued a Notice of Proposed Rulemaking (NPRM) to allow ex parte communications, subject to disclosure requirements, and “to make other clarifications as to when and how interested persons may communicate with the Board about other pending proceedings.”

STB notes, “In two recent rulemaking proceedings, the Board has waived its rules on ex parte communications to allow individual Board members or Board staff to participate in one-on-one meetings, subject to public disclosure requirements. The Board has found these meetings useful, and has recognized that significant benefits flow from direct and candid discussions with stakeholders. More generally, many federal agencies now have regulations and policies facilitating direct interaction with stakeholders on regulatory matters. The Board believes that it is appropriate to revisit and modify its longstanding rules on ex parte communications, which, in the past, have largely been prohibited.”

The proposal makes several changes to the Board’s rules “designed to encourage dialogue with stakeholders. For example, the rules would permit ex parte communications in rulemaking proceedings up until the Board issues an NPRM. And, after the issuance of an NPRM, ex parte communications would be allowed until 20 days before reply comments are due, subject to public disclosure requirements. Additionally, the proposed rules clarify that certain other communications, such as interaction related to the Board’s implementation of the National Environmental Policy Act, do not constitute ex parte communications.”

Notes Railway Age Capitol Hill Contributing Editor Frank N. Wilner, “This rulemaking is in line with provisions in the 2015 Surface Transportation Board Reauthorization Act to promote a more collaborative Board open to discussion and all available information.” Wilner also commented on this two years ago, in “STB: Speak to improve the silence.”

STB member Deb Miller responded to a written question from Senate Committee on Commerce, Science, and Transportation Chairman John Thune (R-S.Dak.) on ex parte communication at an Aug. 11, 2016 hearing: “I personally feel that ex parte communication would help in most rulemakings that involve complicated policy matters and that have broad, industry-wide implications.  A few notable examples of where ex parte meetings would have been particularly useful are the Board’s proceedings involving fuel surcharges, Amtrak on-time performance, and the original proceeding in which modifying the reciprocal switching standards were first proposed … I think meetings would have been helpful in the docket in which the Board considered the National Industrial Transportation League’s proposal rules for increasing use of reciprocal switching. While the Board did hold two hearings there, in my opinion, conducting individual ex parte meetings with the parties, rather than directing them to submit multiple rounds of filings, would have been more useful. That being said, I am pleased that the Board is holding such meetings in the new docket on reciprocal switching.”

Current STB Chair Ann Begeman testified at the same hearing: “Looking beyond the STB Reauthorization Act, there will always be more we can do to improve the functioning of the Board. If I had to point to the one thing that could provide the most bang for the buck (although it doesn’t cost anything nor require Congressional action), it would be to change this Board’s extreme ex parte communication regulations, which prevent Members and staff from discussing the merits of pending matters with any stakeholders or outside experts. I strongly believe that the Board needs to move into the 21^st Century and embrace more interactive, timely, and responsive decision-making. I am pleased to report that the Board has taken a couple of steps to make some changes on a case-by-case basis. The first action taken was last November when the Board waived the prohibition on ex parte communications to permit interested parties to meet with Board staff to discuss the proposed rules on railroad performance data reporting, and summaries of those meetings were posted on the agency’s website. Although I would have preferred to have included the Board Members in that waiver, it certainly was a positive first step at opening up some needed dialogue on a pending rulemaking.”

The Board’s Notice of Proposed Rulemaking in Ex Parte Communications in Informal Rulemaking Proceedings, EP 739 may be downloaded at the link below. Comments are due by Nov. 1, 2017. Replies are due by Nov. 16, 2017.

*Ex parte means “with respect to or in the interests of one side only or of an interested outside party.” It is a Latin legal term meaning “from (by or for) [the/a] party.” An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. Ex parte matters are usually temporary orders (like a restraining order or temporary custody) pending a formal hearing or an emergency request for a continuance. Most jurisdictions require at least a diligent attempt to contact the other party’s lawyer of the time and place of any ex parte hearing.

Editor’s Comment: We did not use the STB’s headline, “STB PROPOSES TO MODIFY REGULATIONS ON EX PARTE COMMUNICATIONS TO FACILITATE INTERACTION WITH STAKEHOLDERS.” We figure that, if the STB’s intent is to promote better communications, headlines like this don’t serve that purpose.