In a Notice of Proposed Rulemaking (NPRM) published September 29, the Surface Transportation Board (STB) announced proposals to modify its ex parte communication rules governing informal rulemaking proceedings and to clarify the restrictions on informal agency communications during other non-rulemaking proceedings. The STB’s proposals would institutionalize the agency’s recent case-by-case waivers of its current ex parte rules, which contain more stringent prohibitions upon such communications. In support of its proposals, the STB references both developments in applicable case law and the agency’s recent experiences with two proceedings where ex parte prohibitions were waived.

Specifically, the STB proposes to:

  • Add definitions of “informal rulemaking proceeding” and “covered proceedings,” and revise its current definition of “ex parte communication.”
  • Add categories of permissible ex parte communications, including communications related to: (i) informal rulemaking proceedings prior to the issuance of an NPRM; (ii) implementation of the National Environmental Policy Act and related environmental laws; and (iii) coordination with parties on judicial review of matters previously decided.
  • Permit ex parte communications in informal rulemaking proceedings provided that the parties and the STB adhere to specific disclosure requirements and procedures, including disclosing the substance of each ex parte meeting through the preparation and posting to the docket of a written summary of the arguments, information and data as well as copies of any handouts provided or presented during the meeting.

By increasing stakeholder communications while also ensuring that the record-building process in rulemaking proceedings remains transparent and fair, the STB indicated that these proposed changes are intended to enhance its ability to make informed decisions.

Comments on these proposed ex parte communication rules are due by November 1, 2017, and reply comments are due by November 16, 2017.