For freight rail users, including shippers and receivers of grain, feed and processed commodities, the NGFA said the new authority to investigate rail issues having regional or national significance is "perhaps the most important part" of the STB Reauthorization Act enacted by Congress in 2015. Previously, the STB was precluded from proactively responding to rail issues as promptly and forcefully as it perhaps could have - including the rail service crisis that gripped the nation during the fall, winter and spring of 2013-14, the NGFA said.
In a nine-page statement submitted this month to the STB, the NGFA concurred with the basic three-stage process proposed by the agency for implementing its new investigative authority, which would involve preliminary fact-finding by the STB's staff; a board-initiated investigation; and initiation of a formal STB proceeding if the investigation warrants it.
NGFA's statement also highlighted several specific areas of concern.
Contrary to the agency's proposal to keep the preliminary fact-finding and board-initiated investigations confidential and non-public, the NGFA urged the STB to provide public notice describing the general nature of the rail practice or issue that is the subject of a potential investigation, redacting confidential business information and the name(s) of the specific rail carrier and rail user involved.
"The confidentiality provisions of the proposed rule...are stifling, overly restrictive and contrary to congressional intent," the NGFA said. "We believe the STB instead should adopt a mechanism that strikes a proper balance between the need for an appropriate level of transparency on the general nature of an alleged issue or rail practice that potentially warrants investigation, while still protecting the identity and reputation of the rail carrier and rail user involved."
Likewise, the NGFA urged the STB to provide as part of its process an appropriate degree of public transparency and accountability to inform freight rail users about the outcome of investigations of particular issues that ultimately are not pursued or investigations that are discontinued, as well as the agency's general reasoning for its decision.
"It is troubling, consequential and objectionable that no such transparency is envisioned under the agency's proposed rules," the NGFA said.
The NGFA also raised concerns over statements made in the preamble of the proposed rule under which the STB's investigating officers would be empowered to engage in settlement negotiations with the parties under investigation and to submit any settlement agreement reached by the parties to the STB for approval or disapproval.
"While this language is not replicated within the proposed rule itself, the NGFA is concerned this concept - when applied within the overall confidential and non-public investigational approach proposed by the agency - could adversely affect" other freight rail users that may be affected similarly but which would have no knowledge of the investigation or the settlement terms, the NGFA said. "The (STB) then conceivably could approve the settlement and dismiss the investigation, all out of the public eye and without one scintilla of notice or explanation."