WASHINGTON — The National Grain and Feed Association (N.G.F.A.) recently recommended the Surface Transportation Board (S.T.B.) provide more transparency and accountability as it implements its new investigative capabilities relating to freight rail issues. The N.G.F.A. submitted its recommendations in a July 15 letter to the S.T.B., which had asked for public comment on its proposed rulemaking relating to board-initiated investigations.
The N.G.F.A. said its member shippers and receivers of grain, feed and processed commodities regard the S.T.B.’s new authority to investigate rail issues with regional or national significance as “perhaps the most important part” of the S.T.B. Reauthorization Act enacted in 2015. The new rules allow the S.T.B. to proactively respond to rail issues in a prompt and forceful way — which wasn’t the case during the rail service crisis during the fall, winter and spring of 2013-14, which had serious consequences for the grain industry, the N.G.F.A. said.
The N.G.F.A. said it agreed with the three-stage process outlined in the S.T.B. Reauthorization Act: preliminary fact-finding by the S.T.B. followed by a board-initiated investigation and a formal S.T.B. proceeding if indicated by the investigation.
But the N.G.F.A. said it has concerns with some of the details in the plan offered by the S.T.B. It suggested the S.T.B. make public “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 use involved,” the N.G.F.A. said. The S.T.B.’s proposal called for keeping the preliminary fact-finding and board-initiated investigations confidential and non-public.
“The confidentiality provisions of the proposed rule … are stifling, overly restrictive and contrary to congressional intent,” the N.G.F.A. said.
In order to maximize desired transparency, the N.G.F.A. urged the S.T.B. to inform freight rail users about the outcome of investigations, even if they are ultimately not pursued, which would include the agency’s reasoning for its decision.
The N.G.F.A. also raised concerns about parts of the preamble of the proposed rule in which S.T.B. investigators would have the power to engage in settlement negotiations and submit settlement agreements to the S.T.B. for approval.
“The N.G.F.A. 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 affected as well but that would have no knowledge either of the investigation or the settlement terms, the N.G.F.A. said.
“They (S.T.B.) then conceivably could approve the settlement and dismiss the investigation, all out of the public eye and without one scintilla of notice or explanation,” the N.G.F.A. said.
