Proposed Rule2026-07230
Petition for Rulemaking-Amendments to Regulations Governing Ex Parte Communications
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 14, 2026
Issuing agencies
Surface Transportation Board
Abstract
The Surface Transportation Board has received a petition asking it to revise and streamline the rules governing ex parte communications. The Board is considering several changes to its ex parte regulations and seeks comment from interested persons on the changes being considered. The Board also invites commenters to identify additional options for revisions to the Board's ex parte communications rules.
Full Text
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<title>Federal Register, Volume 91 Issue 71 (Tuesday, April 14, 2026)</title>
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[Federal Register Volume 91, Number 71 (Tuesday, April 14, 2026)]
[Proposed Rules]
[Pages 19090-19095]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-07230]
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SURFACE TRANSPORTATION BOARD
49 CFR part 1102
[Docket No. EP 782]
Petition for Rulemaking--Amendments to Regulations Governing Ex
Parte Communications
AGENCY: Surface Transportation Board.
ACTION: Advance Notice of Proposed Rulemaking.
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SUMMARY: The Surface Transportation Board has received a petition
asking it to revise and streamline the rules governing ex parte
communications. The Board is considering several changes to its ex
parte regulations and seeks comment from interested persons on the
changes being considered. The Board also invites commenters to identify
additional options for revisions to the Board's ex parte communications
rules.
DATES: Comments are due by May 29, 2026.
ADDRESSES: Comments and replies may be filed with the Board either via
e-filing or in writing addressed to: Surface Transportation Board,
Attn: Docket No. EP 782, 395 E Street SW, Washington, DC 20423-0001.
Comments and replies will also be posted to the Board's website.
FOR FURTHER INFORMATION CONTACT: Jonathon Binet at (202) 915-4348. If
you require accommodation under the Americans with Disabilities Act,
please call (202) 245-0245.
SUPPLEMENTARY INFORMATION: On May 16, 2025, the Association of American
Railroads (AAR) filed a petition to institute a proceeding under 49 CFR
1110.2(b) to revise and streamline the rules governing ex parte
communications set forth in 49 CFR part 1102. The Private Railcar Food
and Beverage Association (PRFBA) and the Freight Rail Customer Alliance
(FRCA) submitted replies in opposition to the petition on June 5, 2025.
The Board issued a decision on September 11, 2025, instituting a
proceeding to consider changes to the existing rules. Pet. for
Rulemaking--Amendments to Reguls. Governing Ex Parte Commc'ns, EP 782,
slip op. at 1 (STB served Sept. 11, 2025). Notice of this decision was
published in the Federal Register on September 11, 2025. (90 FR 44140).
The Board is seeking comment on several possible changes to its rules
governing ex parte communications and soliciting additional ideas
regarding potential modifications.
[[Page 19091]]
Background
Current Rules and Policies on Ex Parte Communications
The Board's existing regulations define an ``ex parte
communication'' as ``an oral or written communication that concerns the
merits or substantive outcome of a pending proceeding; is made without
notice to all parties and without an opportunity for all parties to be
present; and could or is intended to influence anyone who participates
or could reasonably be expected to participate in the decision.'' 49
CFR 1102.2(a)(5). The definition of ``ex parte communication'' covers
communications made by nonparties to a proceeding as well as
communications by parties, as any communications concerning the merits
or the substantive outcome of a case have the potential to influence
decisions. See Ex Parte Commc'ns in Informal Rulemaking Proc., EP 739,
slip op. at 6 (STB served Feb. 28, 2018). The Board's regulations
provide that in a proceeding before the Board, a ``party'' is a
complainant, defendant, applicant, respondent, protestant, intervener,
petitioner, or other person permitted or directed by the Board to
participate in a proceeding. 49 CFR 1101.2(d). Persons on the docket
service list merely for the purpose of receiving copies of Board
releases are not considered parties, and persons who are merely signing
certificates of support or witnesses at oral hearings or modified
procedure proceedings are not considered parties unless they are
otherwise a party to the proceeding. Id.
Ex parte communications with Board members and staff are generally
prohibited, and violations are subject to sanctions. 49 CFR 1102.2(c) &
(f). However, the Board's rules except some ex parte communications
from this general prohibition. Section 1102.2(b) identifies several
categories of communication that are not prohibited and do not need to
be disclosed on the public record. As relevant here, these exceptions
cover any communications that occur during informal rulemaking
proceedings prior to the issuance of a notice of proposed rulemaking
(NPRM) and any communications that the Board formally determines may be
made on an ex parte basis. 49 CFR 1102.2(b)(1)-(2).
Additionally, section 1102.2(g) allows Board members to participate
in ex parte meetings during prescribed periods after the issuance of an
NPRM. Section 1102.2(g)(1) permits ex parte meetings from the date an
NPRM is served until a cutoff date 20 days before the deadline for
reply comments set forth in the NPRM. These meetings are subject to the
disclosure requirements of section 1102.2(g)(4), which require prompt
written, public disclosure of the substance of the ex parte
communications. Although each meeting must be scheduled with a Board
member's office, members may delegate their participation in these
meetings to Board staff. See 49 CFR 1102.2(g)(1)-(2).
Finally, in the ICC Termination Act of 1995, Public Law 104-33 88,
109 Stat. 803 (ICCTA), Congress permitted, but did not require, the
Board to entertain ex parte communications in proceedings related to
the consolidation, merger, or acquisition of control of a railroad
where at least one Class I railroad is involved in the transaction. 49
U.S.C. 11324(f). Consistent with this congressional grant of
discretion, the Board adopted a policy of not entertaining ex parte
communications in railroad merger proceedings. See Pet. of Fieldston
Co. to Establish Procs. Regarding Ex Parte Commc'ns in R.R. Merger
Proc. (Fieldston), 1 S.T.B. 1083, 1085-86 (1996).
AAR's Petition
AAR's petition seeks six changes to the Board's ex parte rules. AAR
describes its first three requests as seeking clarifications to the ex
parte rules and argues that the proposed regulatory amendments would be
consistent with practices at other agencies. (Pet. 6-9.) AAR first asks
the Board to add language to clarify that the ban on ex parte
communications does not prohibit communications occurring in any
proceeding regarding routine, procedural matters. (Id. at 6.) AAR
argues that explicitly permitting these communications will ``provide
clear guideposts to all stakeholders.'' (Id.) AAR next asks the Board
to revise the existing regulatory language to clarify that
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). (Pet. 6-
7.) AAR argues that identifying an explicit mechanism to address
clarifying questions would allow both parties and Board staff to
quickly resolve questions about orders requesting supplemental
evidence, or evidence submitted by parties, without the need for time-
consuming decisions, motions, or responsive filings. (Id. at 7.) In its
third request, AAR asks the Board to revise section 1102.2(b) to
explicitly permit ex parte communications in uncontested proceedings
involving only one party, such as petitions for exemption or petitions
for declaratory order. (Pet. 7-9.) AAR argues that this revision would
provide ``much needed clarity.'' (Id. at 8.)
AAR's petition next requests a regulatory amendment related to the
Board's Fieldston policy. AAR asks the Board to change the regulatory
text to state that ex parte communications are permissible in
transactions involving Class I railroads, subject to the disclosure
requirements in 49 CFR 1102.2(g)(4). (Pet. 9.) In support of this
request, AAR argues that the efficiency concerns underpinning the
Board's current policy are no longer valid because the section
1102.2(g)(4) disclosure process requires stakeholders, rather than the
Board, to draft and submit documentation of ex parte communications.
(Pet. 9-10.) AAR argues that the Board can further address efficiency
concerns by using the discretion afforded by 49 U.S.C. 11324(f) to
entertain only those ex parte communications that ``would be useful for
efficient and timely decision-making.'' (Pet. 10.) AAR contends that
the disclosure process in section 1102.2(g)(4) will effectively address
fairness and transparency concerns for any ex parte communications that
the Board opts to entertain, without complicating judicial review, and
notes that other agencies employ similar methods of documenting ex
parte communications. (Pet. 10 & n.36.)
Finally, AAR's petition seeks two changes to the ex parte meeting
rules for informal rulemaking proceedings set forth in section
1102.2(g). (Pet. 11-15.) AAR contends that the existing processes
inhibit potentially useful communications between parties and the
agency and argues that both of the requested changes are consistent
with practices at other agencies. (Id.) AAR first asks the Board to
revise 49 CFR 1102.2(g)(1) to allow ex parte communications between the
public and Board staff, subject to the same disclosure requirements
that govern communications with Board Members. (Pet. 11.) AAR asserts
that obtaining a formal delegation is unnecessarily time-consuming and
further argues that allowing the public to meet directly with Board
staff without involving a Board member would promote efficiency and
improve decision making. (Pet. 11-12.) AAR also asks the Board to
revise the existing regulations to extend the cutoff date for ex parte
communications in informal rulemakings for a prescribed period of time
after reply comments are filed, (id. at 12), and provide a ``modest
opportunity'' for written comments on the meeting summaries, (id. at
15). AAR argues that the existing cutoff functionally limits the time
window for
[[Page 19092]]
ex parte meetings to a short and, depending on the length of the reply
period, sometimes nonexistent timespan beginning after opening comments
are due and ending 20 days before replies are due. (Pet. 12.) AAR
asserts that this compressed schedule burdens both the Board and its
stakeholders by making it ``difficult'' to discuss ideas raised in
other parties' opening comments with Board members in ex parte
meetings, and ``utterly impossible'' to discuss arguments or evidence
presented in reply comments. (Pet. 13-14.) AAR notes that the Board has
waived this deadline in the past to permit ex parte discussions with
stakeholders after the end of the comment period and suggests that
doing so permanently would give the Board flexibility in future
proceedings. (Pet. 14-15.)
Comments on AAR's Petition
The Board received replies to AAR's petition from FRCA and PRFBA.
FRCA and PRFBA oppose AAR's petition, arguing that the regulatory
changes AAR requests are unnecessary and likely to reduce transparency
in Board proceedings. (FRCA Reply 1-2; PRFBA Reply 1.) FRCA and PRFBA
both argue that Board 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 clarifications requested in
AAR's petition are unnecessary. (FRCA Reply 1.) FRCA asserts that the
Board's Office of Public Assistance, Government 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 (to certain
parties) in contested matters, thereby ``creating or exacerbating an
already unlevel playing field.'' (Id. at 2.) FRCA raises similar
concerns about AAR's request to allow ex parte communications in merger
transactions involving Class I railroads, arguing that the suggested
change would be inappropriate due to the inherently larger impact on
shippers, competitors, and the public interest. (Id.) Finally, FRCA
argues 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 petition 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 petition is inconsistent with the
Board's policy goals and will erode public trust in the Board. (Id.)
Discussion
Consistent with its authority in 49 U.S.C. 1321 to prescribe
regulations, the Board is exploring whether and how best to modify its
regulations to better leverage the benefits of ex parte communications
while minimizing or eliminating the potential harms. AAR's request for
modifications to the ex parte rules raises issues that the agency began
to explore in May 2025. Vice Chairman Schultz led a series of informal
listening sessions with practitioners as part of an effort to
streamline the Board's processes, and the recommendations generated
during these meetings included action items focused on ex parte
communications.\1\
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\1\ 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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The Board has considered AAR's petition and the comments submitted
by FRCA and PRFBA. At this time, the Board does not intend to move
forward with two of the requested modifications in AAR's petition.
Specifically, AAR's request to revise section 1102.2(b) to explicitly
permit ex parte communications in uncontested one-party proceedings is
not necessary. AAR's examples in support of this modification all
involve communications between the agency and the single party before
it. (Pet. 7-8.) But these communications do not fit the definition of
ex parte communications. To be ex parte, a communication must be made
``without notice to all parties and without an opportunity for all
parties to be present.'' 49 CFR 1102.2(a)(5). When the sole party in a
proceeding communicates with the Board, there is no other party without
an opportunity to be present. Although AAR notes that the Board does
not engage in these communications during petition for exemption and
declaratory order proceedings, (Pet. 7-8), there is oftentimes reason
to be cautious when another party is likely to join the case, but has
not yet filed pleadings. For example, in declaratory order proceedings,
it is often clear from the petition that another party will join the
matter and reply in opposition. In this setting, entertaining
substantive communications beyond the written comments from the
original filer before the reply period ends could raise fairness
concerns, even if the early communication does not technically qualify
as ex parte. In light of the clarifications in this decision, the Board
will consider comments as to whether amending the existing regulatory
language would provide further clarification and guidance to
stakeholders.
The Board also does not intend to modify the regulation to
affirmatively allow ex parte communications in merger transactions
involving Class I railroads. AAR's request would require the Board to
reverse its longstanding policy of not entertaining ex parte
communications in railroad merger proceedings. See Fieldston, 1 S.T.B.
1085-86. While the option for parties to seek a waiver of the ex parte
prohibition in Fieldston remains available, the Board is unpersuaded
that a wholesale reversal of Fieldston is appropriate.
First, as a practical matter, allowing ex parte communications
subject to the section 1102.2(g)(4) disclosure process in all Class I
transactions, especially across all issues and without a specified
timeframe, is likely to complicate such proceedings, which are subject
to specific statutory timelines. See 49 U.S.C. 11325(a), (b)(3),
(c)(3), & (d)(2); Fieldston, 1 STB at 1085. Although section
1102.2(g)(4) requires stakeholders to summarize ex parte
communications, Board members and staff must still review each summary
as well as the responses it generates, which may be numerous in light
of the high level of public interest in merger proceedings involving
Class I railroads. Whether such an efficiency tradeoff is appropriate
is best left to a case-by-case waiver determination, where the Board
[[Page 19093]]
can consider the complexity of the case and other factors, such as the
scope of the waiver request, in considering whether to allow ex parte
meetings.
AAR suggests that the Board can manage these potential impacts by
entertaining only those ex parte communications that would increase
efficiency and declining the rest, consistent with the discretion
afforded by 49 U.S.C. 11324(f). AAR does not explain how the Board
should determine which ex parte communications within a proceeding
would increase efficiency before the communications are made. Moreover,
given that the record does not suggest a workable, appropriate
mechanism the Board could apply in this context, differentiating
between communications within a rail merger proceeding also risks
undermining fairness in the Board's procedures by giving the appearance
of unequal access. For example, it is not clear if the differentiation
here would involve some parties being denied meetings and others being
granted, which is generally not the case today in the context of
informal rulemaking ex parte meetings and may not arise if the Board
were to adopt other changes suggested by the petition. In Fieldston,
the Board observed that allowing any ex parte proceedings in merger
proceedings ``would likely lead to entertaining ex parte communications
from all interested parties.'' 1 S.T.B. at 1084-85.
The disclosure process outlined in section 1102.2(g)(4) is
certainly helpful but may not always fully remedy the transparency and
fairness concerns outlined in Fieldston. See 1 S.T.B. at 1085
(stressing the importance of public confidence in the fairness of the
merger process). Transactions involving Class I railroads carry
significant, wide-ranging public interest implications, resulting in
increased public scrutiny of the Board's proceedings. In this context,
there are transparency, fairness, and other benefits from existing ex
parte limitations. The Board is better able to consider any
implications for the benefits of existing limitations against any
efficiency gains and other potential benefits of allowing ex parte
communications in the context of waiver requests in individual
proceedings.
Thus, the Board is not persuaded that ex parte communications are
broadly appropriate in merger proceedings involving Class I railroads.
However, the Board recognizes that circumstances may arise in merger
proceedings where ex parte communications may have particular value or
address a specific need. Should this occur, the option to seek a waiver
of the ex parte prohibition in Fieldston remains available, as noted
above. The Board also clarifies that the Fieldston prohibition would
not apply to the potential exception for technical and clarifying
communications outlined below. Additionally, as discussed in more
detail below, Office of Chief Counsel staff liaison communications
under section 1180.4(c)(6)(iii) regarding merger application
information and format, routine procedural communications, and
communications with OPAGAC's Rail Customer and Public Assistance (RCPA)
service, are not ex parte communications and are therefore permitted.
Notwithstanding the general policy of prohibiting ex parte
communications in merger proceedings involving Class I railroads, the
Board recognizes the potential for ex parte communications to enhance
other Board proceedings. Where appropriate and when safeguards are in
place to protect against abuse and ensure fairness and transparency, ex
parte communications can aid the Board in producing timely, well-
informed, and effective decisions. Ex parte communications can assist
in the Board's decision-making process by helping the Board obtain and
understand important information, and the success of the section
1102.2(g)(4) documentation process shows that these communications can
be conducted in a transparent and fair manner. Explicitly allowing
certain communications that the Board's regulations currently prohibit
or appear to prohibit could also improve stakeholder engagement and
make agency processes more efficient, and in certain instances these
benefits may outweigh potential risks or drawbacks associated with ex
parte communications. Additionally, to the extent that changes have the
effect of clarifying the Board's regulations, they can help
stakeholders better understand their opportunities and obligations
related to communication with the Board. Thus, many of the remaining
ideas outlined in the petition warrant further exploration.
Based on the petition and responsive comments, as well as feedback
provided in the informal listening sessions and the Board's experiences
with ex parte communications, the Board is exploring several potential
amendments to the rules governing ex parte communications. The
potential changes to the regulations are intended to improve
stakeholder engagement, facilitate well-informed decision-making, and
make agency processes more efficient. The Board seeks comments on the
merits of adopting the following regulatory changes.
Status Requests and Procedural Issues
In its petition, AAR requests that the Board add language to
clarify that the ban on ex parte communications does not prohibit
communications occurring in any proceeding regarding routine,
procedural matters. (Pet. 6.) The Board has previously stated that
communications about purely procedural issues and communications that
solely concern the status of a proceeding are permissible because they
naturally do not concern the merits or substantive outcome of pending
proceedings. Ex Parte Commc'ns in Informal Rulemaking Proc., EP 739,
slip op. at 6 (STB served Feb. 28, 2018). This generally accepted
principle is also reflected in the Board's regulations governing
mergers, which permit a designated Board staff liaison to provide
informal, non-binding opinions and interpretations regarding the format
of or information to be included in a merger application. 49 CFR
1180.4(c)(6)(iii). However, status requests and procedural
communications are not explicitly permitted in part 1102.
Stating this principle directly in the regulatory text could
benefit stakeholders by helping them determine what does and does not
constitute an ex parte communication without the need for additional
research. Clear guidelines could also promote the expeditious handling
and resolution of proceedings before the Board by helping Board
employees quickly and easily determine whether it is appropriate for
them to respond to stakeholder questions. The Board is therefore
considering amending the existing regulatory text to clarify that
routine, procedural communications are permitted. The Board is also
considering adding language to the regulatory text that would explain
what ``routine'' and ``procedural'' mean and seeks ideas regarding such
definitions.
Technical and Clarifying Communications
AAR suggests that the Board revise its rules to clarify that
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). (Pet. at
7.) During Board proceedings, it is sometimes necessary for the parties
and the Board to resolve technical and clarifying questions about Board
orders or evidence. RCPA is available to provide stakeholders with
informal, nonbinding guidance on complying
[[Page 19094]]
with Board decisions.\2\ The Board has also held technical conferences,
with appropriate procedural safeguards, in matters that required
extensive technical discussions. E.g., BNSF Ry.--Terminal Trackage
Rts.--Kan. City S. Ry, FD 32760 (Sub-No. 46) (STB served Jan. 10,
2024); Application of the Nat'l Passenger R.R. Under 49 U.S.C.
24308(a)--Canadian Nat'l Ry., FD 35743 (STB served Feb. 19, 2025). The
Board also intends to increase its use of this tool. 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>. But questions that may be too case-
specific for RCPA or too limited to warrant a technical conference are
currently resolved via motions and Board decisions. Although Board
staff working directly on the proceeding may be in the best position to
resolve technical questions related to evidence submitted in a
proceeding or compliance with an order to supplement the record, the
Board's ex parte rules generally prohibit direct communication between
a party and such Board staff. See 49 CFR 1102.2(a)(5). Allowing these
employees to resolve technical and clarifying questions via a brief ex
parte discussion could save time and conserve Board resources by
reducing the need for motions requesting clarification and subsequent
written decisions.
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\2\ Because matters brought to RCPA are handled by Board staff
who do not participate in Board decisions, contacts with RCPA are
not considered ex parte communications. See Ex Parte Commc'ns in
Informal Rulemaking Proc., EP 739, slip op. at 6.
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The Board recognizes concerns related to fairness, due process, and
impartiality, and acknowledges that even where questions are strictly
technical and clarifying in nature, the answer might have implications
for the outcome of the case. However, the risks posed by ex parte
conversations may not be as significant in the context of technical and
clarifying inquiries, such that the benefits of quickly resolving these
questions may outweigh the associated risks. Furthermore, it may be
possible to mitigate the associated fairness and transparency concerns
with prompt, thorough documentation of the ex parte contacts. The
documentation procedures set forth in 49 CFR 1102.2(g)(4) have worked
well in the context of ex parte meetings conducted during informal
rulemaking proceedings, and they may also be suitable for this
application.
In order to realize the potential benefits of allowing Board staff
to resolve technical and clarifying questions, the Board is exploring
amending the existing regulatory language to permit technical and
clarifying communications with Board staff concerning submitted
evidence and compliance with orders seeking additional information,
subject to the disclosure requirements in 49 CFR 1102.2(g)(4), as well
as any statutory limitations applicable to the proceeding.\3\ The Board
is also considering developing a definition of ``technical and
clarifying'' that precludes using these inquiries for significant
substantive advocacy and seeks ideas regarding such potential language.
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\3\ For example, the Administrative Procedure Act (APA), 5
U.S.C. 551-559, imposes a strict ex parte prohibition in formal
rulemakings and on-the-record adjudications. See 5 U.S.C. 556-57.
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Ex Parte Meetings in Informal Rulemakings--Role of Board Staff
In its petition, AAR requests that the Board revise 49 CFR
1102.2(g)(1) to authorize ex parte communications between the public
and Board staff in informal rulemaking proceedings, subject to the same
requirements that govern communications with Board Members. (Pet. 12.)
Under the Board's current rules, the ex parte meetings permitted during
informal rulemakings can only be scheduled with Board Members. Board
Members may invite Board staff to attend these meetings, but
stakeholders cannot meet with Board staff without a Board Member
present, unless the entire Board formally delegates its participation
to Board staff. See 49 CFR 1102.2(g)(1); Ex Parte Commc'ns in Informal
Rulemaking Proc., EP 739, slip op. at 19. As AAR notes, no such
delegation has occurred since the Board adopted this rule. (Pet. 11.)
However, Board staff are regularly invited to attend Board Member
meetings to leverage their knowledge and experience. Staff
participation often facilitates helpful conversations that enhance the
value of ex parte meetings, particularly where the meetings concern
specialized or technical topics. The Board's experience suggests that
allowing direct meetings with Board staff could further enhance the
informal rulemaking proceedings, promote efficiency, and improve
decision-making.
While it offers several potential benefits, allowing ex parte
meetings with Board staff during informal rulemaking proceedings also
raises several concerns. Expanding the available options for ex parte
meetings during these proceedings could increase the number of
opportunities available for stakeholders and members of the public to
discuss pending rulemakings with the Board, but it may raise risks or
drawbacks regarding fairness during the rulemaking process. Subjecting
meetings with Board staff to the same disclosure requirements as
meetings with Board Members, see 49 CFR 1102.2(g)(4), may mitigate
these issues. However, the Board denied a similar request in a previous
proceeding based on concerns that stakeholders would attempt to meet
individually with multiple staff members during each rulemaking
proceeding, thereby drastically increasing the number of ex parte
contacts and complicating the disclosure process. Ex Parte Commc'ns in
Informal Rulemaking Proc., EP 739, slip op. at 20.
Considering the pros and cons, the Board is exploring amending the
existing regulations to allow stakeholders to request meeting with
Board staff in informal rulemaking proceedings during the same period
that meetings with Board Members are permitted and subject to the same
disclosure requirements in 49 CFR 1102.2(g)(4). This change has the
potential to promote efficiency and improve decision-making. In order
to manage the number of ex parte meetings and facilitate coordination
between staff offices, the Board is considering amending the regulatory
text to allow office directors to delegate Board staff to participate
in ex parte meetings and to specify the manner in which such meetings
may be requested.
Timing for Ex Parte Meetings in Informal Rulemakings
AAR requests that the Board expand the timeframe in which it allows
ex parte meetings in informal rulemaking proceedings. (Pet. 12.) The
Board's current rules allow Board Members to attend ex parte meetings
during informal rulemakings from the time an NPRM is issued until 20
days before the deadline for reply comments. See 49 CFR 1102.2(g)(1).
Since this rule was adopted, and consistent with the observations in
AAR's petition, the Board has observed a tendency among stakeholders to
request ex parte meetings during the brief period between the close of
comments and the date 20 days before the reply deadline. (Pet. 12.)
Accommodating ex parte meetings within a compressed time frame has
taxed Board resources during informal rulemaking proceedings, as Board
Members endeavor to accommodate all requested meetings. Furthermore,
the end date for ex parte meetings does not always align well with the
needs of the Board during the
[[Page 19095]]
informal rulemaking process. In fact, since the adoption of section
1102.2(g), the Board has already found it necessary to waive the time
limit in order to obtain valuable stakeholder input in one of its
informal rulemaking proceedings. See Final Offer Rate Rev., EP 755,
slip op. at 1-2 (STB served May 15, 2020). Setting a different end date
for ex parte meetings in informal rulemaking proceedings has the
potential to improve the Board's rulemaking processes by providing
needed flexibility, and by promoting more informed decision-making
during rulemaking proceedings.
The Board is mindful of the concerns implicated by changing the end
date in section 1102.2(g)(1). Moving the end date closer to the end of
the reply period could make it more difficult for stakeholders and
members of the public to reply to information presented in ex parte
meetings. If the end date is extended beyond the deadline for replies,
parties may attempt to have the last word in informal rulemaking
proceedings by withholding information in their public comments and
presenting it to the Board in an ex parte meeting after the reply
period has ended.\4\ It may be possible to remedy these concerns by
reopening the comment period or otherwise providing additional
opportunities for comment.\5\ Although the Board declined to set a
later end date for ex parte meetings when the rule permitting ex parte
meetings was adopted (see Ex Parte Commc'ns in Informal Rulemaking
Proc., EP 739, slip op. at 18), the Board now has more practical
experience with ex parte communications in informal rulemaking
proceedings. Moreover, the benefits of having additional time available
to conduct ex parte meetings may outweigh the harm of delaying the
informal rulemaking process, particularly in rulemakings involving
complex technical or economic topics.
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\4\ The Board strongly discourages this practice.
\5\ See, e.g., U.S. Rail Serv.Issues--Performance Data
Reporting, EP 724 (STB served Dec. 16, 2015) (allowing parties to
reply to meeting summaries in a separate round of written comments).
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In order to promote more informed decision-making and maintain
flexibility to accommodate variations in the technical complexity and
procedural timelines of informal rulemaking proceedings, the Board is
exploring amending the regulatory text to allow the Board to set the
end date for ex parte meetings on a case-by-case basis. Under the case-
by-case approach under consideration, the end date in a given case
could be set before or after the deadline for reply comments, based on
the particular comment/reply period lengths and the Board's assessment
of the need for a longer period for ex parte meeting opportunities in
each informal rulemaking proceeding. All ex parte meetings would remain
subject to the disclosure requirements in section 1102.2(g)(4), and the
Board could set an additional deadline for replies to the ex parte
summaries if it is needed to preserve fairness or due process.
Request for Comments
The Board seeks comments on all aspects of the regulatory changes
under consideration. The Board invites comments on the extent to which
entertaining the communications discussed above could save time and
resources for participants in Board proceedings, help the Board obtain
and understand important information, or otherwise assist timely, well-
informed, and effective decisions. Where applicable, the Board invites
commenters to discuss whether and to what extent the section
1102.2(g)(4) disclosure process could address fairness and transparency
concerns, as well as whether different or additional safeguards may be
more effective. Additionally, where the amendment under consideration
would involve defining new terms, the Board invites commenters to
provide input on the appropriate scope of those definitions.
The Board also invites commenters to identify additional or
alternative ways that the current regulations governing ex parte
communications could be changed to benefit the public interest and
improve agency processes.
It is ordered:
1. Notice of this decision will be published in the Federal
Register.
2. Comments are due by May 29, 2026.
3. A copy of this decision will be served upon the Chief Counsel
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
4. This decision is effective on its date of service.
Decided: April 10, 2026.
By the Board, Board Members Fuchs, Hedlund, and Schultz.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2026-07230 Filed 4-13-26; 8:45 am]
BILLING CODE 4915-01-P
</pre></body>
</html>Indexed from Federal Register on April 14, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.