STB Revisits Its Ban On Ex Parte Communications In Rulemaking Proceedings

Paul Hitchcock is Senior Policy Advisor in the Jacksonville office

The Surface Transportation Board has taken a significant step in modernizing its regulatory processes by proposing to eliminate its long-standing prohibition on ex parte communications in its informal rulemaking proceedings. In doing so, the STB would bring its procedures into alignment with a recent consensus recommendation of the Administrative Conference of the United States, a body charged by Congress with recommending agency best practices.

For over a century, the STB (and its predecessor, the Interstate Commerce Commission) have played a quasi-judicial role in resolving disputes between private parties, such as disputes between a railroad and a shipper over the maximum lawful rate. This role has no doubt long contributed to a heightened sensitivity at the agency to avoiding even appearances of impropriety – not just in adjudicative proceedings, but in its rulemakings as well.