Notice2025-17474
Petition for Rulemaking-Amendments to Regulations Governing Ex Parte Communications
Primary source
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Published
September 11, 2025
Issuing agencies
Surface Transportation Board
Full Text
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<title>Federal Register, Volume 90 Issue 174 (Thursday, September 11, 2025)</title>
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[Federal Register Volume 90, Number 174 (Thursday, September 11, 2025)]
[Notices]
[Pages 44140-44141]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-17474]
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SURFACE TRANSPORTATION BOARD
[Docket No. EP 782]
Petition for Rulemaking--Amendments to Regulations Governing Ex
Parte Communications
On May 16, 2025, the Association of American Railroads (AAR) filed
a petition for rulemaking asking the Board to institute a proceeding to
revise and streamline the rules governing ex parte communications set
forth in 49 CFR part 1102. (Pet. 1.) AAR contends that revisions to the
Board's regulations will improve stakeholder engagement and make it
easier for the agency to process matters efficiently while maintaining
transparency and fairness. (Id.) AAR proposes several changes to the ex
parte rules aimed at removing ``unnecessarily strict regulations.''
(Pet. 2.) In response to the petition, the Board received two replies.
After consideration of the petition and the replies received, the Board
concludes that a proceeding should be opened to consider changes to the
rules governing ex parte communications. Accordingly, the Board will
grant AAR's petition to the extent that it requests that the Board open
a proceeding.
Background
Summary of the Petition. AAR argues that its proposal will
facilitate more effective communications between stakeholders and the
Board, encourage timely and efficient decision making, and preserve
transparency and fairness. (Id. at 2.) AAR also asserts that each of
the proposals in its petition is consistent with practices at other
federal agencies. (Id. at 6-8, 10-11, 15.) In its petition, AAR first
proposes that the Board clarify that certain forms of communication are
not ex parte communications by revising the regulatory language to
state that: (1) the ban on ex parte communications does not prohibit
communications regarding routine, procedural matters (id. at 6); (2)
communications with Board staff concerning submitted evidence and
compliance with orders seeking additional information are permissible,
subject to the disclosure requirements in 49 CFR 1102.2(g)(4) \1\ (id.
at 6-7); and (3) ex parte communications are permitted in proceedings
where there is only one ``party'' as defined in 49 CFR 1101.2(d) \2\
(id. at 7-9). AAR argues that its proposals would provide clarity to
both the public and the Board with regard to what types of ex parte
communications are permissible. (Id. at 6.) AAR also asks the Board to
revise the regulatory text to permit ex parte communications in
transactions involving Class I railroads, subject to the disclosure
requirements in 49 CFR 1102.2(g)(4).\3\ (Pet. 9-10.) AAR asserts that
allowing ex parte communications in these transactions has the
potential to expedite proceedings, and argues that the documentation
processes in section 1102.2(g)(4) are sufficient to ``preserve fairness
and transparency.'' (Id. at 10.) Finally, AAR asks the Board to adjust
the ex parte meeting rules in 49 CFR 1102.2(g)(1) by revising the
regulatory text to allow: (1) ex parte communications between the
public and Board staff, subject to the same requirements governing
communications with Board Members; and (2) ex parte communications for
a prescribed period of time after reply comments are filed.\4\ (Pet.
11-15.) AAR contends that the existing processes are inefficient and
inhibit potentially useful communications between parties and the
agency and argues that the proposals in its petition would provide the
Board with greater flexibility in future proceedings. (Id. at 12-14.)
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\1\ Section 1102.2(g)(4) outlines the disclosure requirements
for ex parte communications with Board Members that are permitted,
under certain circumstances, in informal rulemaking proceedings.
\2\ Section 1101.2(d) defines a ``party'' as a complainant,
defendant, applicant, respondent, protestant, intervener, or
petitioner in any proceeding, or other persons permitted or directed
by the Board to participate in a proceeding.
\3\ This proposal would reverse the Board's policy, consistent
with the discretion afforded to the Board in 49 U.S.C. 11324(f), of
not entertaining ex parte communications in railroad merger
proceedings. See Petition of Fieldston Co. to Establish Proc.
Regarding Ex Parte Commc'ns in R.R. Merger Procs., 1 S.T.B. 1083,
1085-86 (1996).
\4\ 49 CFR 1102.2(g)(1) permits ex parte meetings until 20 days
before the deadline for reply comments set forth in the notice of
proposed rulemaking, and requires the Board to delegate
participation in order for Board staff to attend ex parte meetings.
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Comments Received. The Board received replies to AAR's petition on
June 5, 2025, from the Private Railcar Food and Beverage Association
(PRFBA) and the Freight Rail Customer Alliance (FRCA). FRCA and PRFBA
oppose AAR's petition, arguing that AAR's proposal is unnecessary and
likely to reduce transparency in Board proceedings. (FRCA Reply 1-2;
PRFBA Reply 1.) FRCA and PRFBA also argue that Board's regulations
already allow status and procedural inquiries because 49 CFR
1102.2(a)(5) defines ``ex parte communications'' as ``an oral or
written communication that concerns the merits or substantive outcome
of a pending proceeding.'' (FRCA Reply 1; PRFBA Reply 1.)
FRCA further argues that the other proposed clarifications in AAR's
proposal are unnecessary. (FRCA Reply 1.) FRCA asserts that Board's
Office of Public Assistance, Governmental Affairs, and Compliance
(OPAGAC) staff already accommodates parties' needs for clarifying
communications regarding submitted evidence and Board orders and
questions the need for ex parte communications in proceedings involving
only one party because such proceedings are typically adjudications
that must take into account the interest of the public. (Id. at 1-2.)
FRCA further argues that direct access to Board staff in uncontested
proceedings may reveal information that proves beneficial in contested
matters, thereby creating additional fairness concerns. (Id. at 2.)
FRCA raises similar concerns about AAR's proposal to allow ex parte
communications in transactions involving Class I railroads, arguing
AAR's proposal is inappropriate due to what FRCA argues is the larger
impact on shippers, competitors, and the public interest. (Id.)
Finally, FRCA contends that extending deadlines and expanding staff
roles for ex parte communications in informal rulemaking proceedings
would encourage more well-resourced participants to save their
strongest arguments and responses for direct communications with the
agency, rather than presenting them in written comments that the public
can review and respond to. (Id. at 2.)
PRFBA also argues that AAR's proposal is inconsistent with the
policy reasons underlying the existing limitations on ex parte
communications. (PRFBA Reply 1.) PRFBA asserts that the Board's ex
parte communication rules are intended to promote impartial decision
making, ensure due process in Board proceedings, and maintain public
trust in the Board's adjudicatory system. (Id. at 2.) PRFBA contends
that because ex parte communications allow one party to discuss issues
or present information without giving the opposing party an opportunity
to respond, and because engaging in ex parte communications creates an
appearance of impropriety, AAR's proposal is inconsistent with these
policy goals. (Id.)
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Discussion and Conclusions
The Board recently conducted a series of listening sessions with
practitioners, led by Vice Chairman Schultz, that generated
recommendations for streamlining the Board's processes and procedures
for ex parte communications.\5\ AAR's proposal thus raises issues that
the agency has already begun to explore and the Board concludes that it
is appropriate to open a rulemaking proceeding to consider the petition
and the responses. Accordingly, to the extent that it requests that the
Board open a proceeding, the Board will grant AAR's petition to
institute a rulemaking proceeding. However, the Board makes no
determination regarding the merits of AAR's petition at this time.
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\5\ See STB Press Release No. 25-22, STB Gathers More Than 100
Ideas From Legal Practitioners to Streamline Board Processes,
<a href="https://www.stb.gov/wp-content/uploads/PR-25-22.pdf">https://www.stb.gov/wp-content/uploads/PR-25-22.pdf</a> (identifying
``ex parte communications and the use of staff liaisons'' as action
item for Board consideration).
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In view of the feedback received during the practitioner listening
sessions, the Board also anticipates inviting the public to comment on
other ways the Board's rules on ex parte communications could be
modified. The Board will establish procedures for public comment in a
subsequent decision.
It is ordered:
1. AAR's petition to institute a rulemaking proceeding is granted,
as discussed above.
2. Notice of this decision will be published in the Federal
Register.
3. This decision is effective on its service date.
Decided: September 8, 2025.
By the Board, Board Members Fuchs, Hedlund, and Schultz.
Stefan Rice,
Clearance Clerk.
[FR Doc. 2025-17474 Filed 9-10-25; 8:45 am]
BILLING CODE 4915-01-P
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