United States: 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.

The case law is now more favorable toward ex parte communications (with safeguards), and the STB has been pleased with its experience with limited ex parte communications in two recent rulemakings. Accordingly, the Board is now proposing specific rules that would permit carefully circumscribed direct interaction between Board members and/or staff and stakeholders as the agency considers new rules. Central to the proposed process are a set of disclosure requirements.

Strictly speaking, the new approach would only apply in informal rulemakings under the Administrative Procedure Act, not formal rulemakings under 5 USC Sec. 556-557. However, the STB has not used the formal APA process with hearings and a presiding officer in recent memory, favoring the informal notice and comment process of 5 USC Sec. 553. The current prohibition against ex parte communications in adjudicative proceedings would be retained.

The first significant change the Board proposes would allow ex parte communications that might occur while the agency is considering a rule, but has not yet reached the point of a Notice of Proposed Rulemaking. These contacts would not have to be disclosed. The practical effect of this change would be to allow informal, unstructured one-on-one exchanges between stakeholders and the members of the Board long before there were any consensus of the members to actually consider action. It would also permit the Board to proceed with an Advance Notice of Proposed Rulemaking, gather formal comments, and engage in discussion – even negotiation – before taking the proposal to the next step. While this risks increased "politicization" of the process, it is to be hoped that the improved understanding that should result from freer exchanges will improve the practicality and economic soundness of the agency's ultimate decisions.

The STB proposal would not change its current rule that it may sanction or revoke the privilege of practicing before the agency of anyone who knowingly and willfully engages in unpermitted ex parte communications. Neither would it remove the existing rule that the Board can deny a party the relief it is seeking in a proceeding.

The Board proposes a set of disclosure requirements. Participants in an ex parte communication must submit a disclosure memorandum to the staff person or office of the Board member with whom they met. This must be done within two business days. The memo must identify the date and location, list the names and titles of participants (including those participating remotely) and must summarize the data and arguments presented. Any written or electronic material shown to the staff or Board member must be attached. If a group of participants attends, a single memorandum may be submitted if all participants can reach agreement on it. The memorandum must be of sufficient detail to describe the substance of the discussion, and the Member or staff may require the participant to re-submit the memorandum if it is not sufficiently detailed.

The proposal helpfully permits parties to designate some of the information presented as confidential. This must be done at the time of the presentation, and the disclosure memorandum must be submitted in a public (redacted) and confidential version. If no protective order has yet been entered in the matter, the presenter must file a request for a protective order at the time it submits its disclosure memoranda.

Ex parte communications must end twenty days before the deadline for reply comments. This will allow parties in the proceeding to review and respond to the substance and arguments of the ex parte communications in their reply comments.

The author of this blog participated in an early STB experiment in ex parte communications in US Rail Service Issues – Performance Data Reporting, Ex Parte 724 (Sub-No. 4). Board staff were able to ask questions and exchange ideas directly with subject matter experts from a Class I railroad, cutting through much confusion and greatly enhancing their understanding of what kinds of data were available, and what could and couldn't be developed with existing carrier data systems. These kinds of highly technical issues are tailor-made for direct, face-to-face exchanges between staff and managers of the regulated entity. To be sure, there was no consensus on the actual need for the data. But, in this author's view, the ex parte process contributed greatly to a workable regulatory outcome. Without the understanding that was gained, it is highly likely that the Board's efforts would have led to a rule that would have been difficult – or even impossible -- to comply with, resulting in court appeals and on-going litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.