STB Proposal to Improve Regulatory Decision-making Met with Strong Support

November 10, 2017

One way to improve the regulatory decision-making process is to make sure government officials fully understand the problem they are trying to tackle. So it should come as no surprise that both railroads and shipper groups are praising a common sense proposal that will allow Commissioners at the Surface Transportation Board (STB) to seek outside perspectives to help them better understand complicated issues and potential solutions.

Many regulatory agencies have embraced reforms that allow decision-makers to meet individually with stakeholders to discuss pending rules or other policy matters. With appropriate safeguards in place, these ex parte or “interested parties” communications are seen as a way to better understand issues and make informed decisions. Since the early 1980’s, Federal Court decisions have granted agencies more flexibility, and consensus recommendations from the Administrative Conference of the United States (ACUS) encourage greater use of ex parte communications. Up until now, the STB has prohibited such communications in almost all pending matters.

As part of an effort to improve how it operates, the Board waived these prohibitions in two important proceedings, including the Board’s proposal to allow reciprocal switching as a way to provide greater competition in the freight rail industry. This trial run proved to be a success since it allowed the Board to learn how reciprocal switching proposal would work in the real world, and how increased competition would help improve the efficiency of the rail network.

In light of this positive experience, the Board has proposed revised rules that permit better communications and improve the flow of information in most of its rulemaking proceedings. Specifically, the proposal would allow unfettered communications with Commissioners while policy proposal are under development. Communications at other times would be subject to certain restrictions and disclosure requirements. According to the STB, these changes are intended to “enhance the Board’s ability to make informed decisions through increased stakeholder communications, while ensuring that the Board’s record-building process remains transparent and fair.”

These welcome changes will not only help the Board but will also benefit anyone impacted by STB decisions. The Rail Customer Coalition (RCC) recently submitted comments signed by 20 shipper associations urging the Board to move forward stating that its proposal “will benefit the Board, its stakeholders, and the general public.” The Association of American Railroads similarly commented that “the rule changes will facilitate the rulemaking process while maintaining transparency.”

Unfortunately, a number of freight rail reforms have been put on the backburner as rail stakeholders anxiously await the President’s announcement to fill numerous vacancies at the STB. Once it’s back up to full strength, the revised ex parte rules will give the new Board the tools it needs to make more informed decision as it works to modernize freight rail policy.