The STB Reauthorization Act of 2015 gave the agency new powers to conduct investigations on its own initiative. This month, the agency issued a Notice of Proposed Rulemaking setting out its proposed three step process for conducting these agency-initiated investigations. A copy of the NPRM can be found here. Under the proposed rule, any such investigation would begin with a nonpublic inquiry by the Board staff to determine whether a violation of the statute has occurred, or whether an issue of national or regional significance exists that would warrant investigation. After the preliminary investigation, the Board may elect to start a formal investigation by issuing an Order of Investigation and giving notice to the parties under investigation. Any investigations must be concluded within one year and within ninety days of receiving findings and recommendations from the STB staff. At the conclusion of the preliminary investigation, the Board must either dismiss the investigation or initiate a formal Board proceeding to determine whether a violation has occurred.
All of this sounds like good news for shippers—an opportunity to see their concerns addressed without the shipper having to bear the expense of initiating a complaint on its own. Unfortunately, it is not likely that this new investigative power will get much use at this time. The STB has consistently suffered from a lack of resources to address its current docket of issues, and that lack of resource is likely to get worse before it gets better. Although the Board is now authorized to become a five member agency, it is likely to have only two members after the first of the year when Ann Begeman’s holdover term expires. In an election year, it may be some time before new members of the Board can be appointed and confirmed.
Comments to the Notice of Proposed Rulemaking, Docket No. EP731, are due by June 15, 2016.