On March 14, 2019, the Association of American Railroads (AAR) filed a Petition for Rulemaking at the Surface Transportation Board (STB), asking the STB to initiate a rulemaking proceeding to adopt three new rules that would impose three requirements upon the STB rulemaking process:

  • that the STB conduct a cost-benefit analysis when considering proposed new regulations
  • that the STB evaluate cumulative impacts when considering proposed new regulations
  • that the STB base its rulemaking decisions on the most reliable and up-to-date data that is reasonably obtainable

The AAR asserts that cost-benefit analysis is a necessary part of good governance and sensible decision-making. The AAR also cautioned that seemingly minor regulations can have a significant impact through the cumulative effect of a comprehensive regulatory scheme. The AAR cites recent presidential executive orders and asserts that these proposals mirror the standards that other federal agencies have already instituted.

If adopted, AAR’s proposals could have far-reaching impacts on the STB’s regulatory oversight. For example, the requirement for expert economic witnesses to conduct cost-benefit analyses could complicate the presentation of evidence in, and significantly prolong, rulemaking proceedings in a potentially quixotic search for “the most reliable and up-to-date data,” not only with respect to impacts upon the rail industry itself, but also on the hundreds of different industries that rely upon rail transportation and which lie outside the STB’s area of expertise.

At this point, the AAR has only asked the STB to commence a rulemaking proceeding to consider whether the three new requirements should be adopted. In response to the petition, the STB could issue a Notice of Proposed Rulemaking, issue an Advance Notice of Proposed Rulemaking, or deny the petition outright. Under 49 C.F.R. § 1110.2(d), the STB’s response to the petition is due in 120 days. Any interested party can comment in response to the Petition for Rulemaking by April 4, 2019.