March 7, 2018

As last week’s issue of ETW was being emailed out, the White House announced that President Trump was finally taking steps to fill the two new seats on the Surface Transportation Board created by the STB Reauthorization Act of 2015. That law expanded the board from three members to five and established it as an independent entity outside the Department of Transportation.

The STB is one of those regulatory boards where the law requires partisan balance (no more than three of the five STB members can be from the same political party). At present, the STB only has two members. Acting chairman Ann Begeman (R) is serving a term that expires in December 2021. Deb Miller’s (D) term expired at the end of December 2017, but the law allows STB members to serve for 12 months as a holdover once their term ends if no replacement has been confirmed. Former chairman Dan Elliott (D) resigned on September 30, 2017, and his term was due to expire on December 31, 2018.

Both of the proposed new members would serve full five-year terms that will begin on the day they are sworn in.

• Patrick J. Fuchs (R) of Wisconsin is a senior professional staff member working on surface transportation and maritime issues for the United States Senate Committee on Commerce, Science, and Transportation.  As such, he has played an integral role in the development and enactment of major railroad legislation (including the 2015 STB law that created the position he has been nominated to fill) and the first passenger rail reauthorization in over seven years that was included in the FAST Act.  Prior to serving at Commerce, he was a policy analyst and Presidential Management Fellow at the Office of Management and Budget, where he managed railroad and maritime regulatory reviews.  He has a bachelors degree and a Masters of Public Administration from the University of Wisconsin, where he received the Director’s Achievement Award for his outstanding academic record.
• Michelle A. Schultz (R) of Pennsylvania is a deputy general counsel at the Southeastern Pennsylvania Transportation Authority (“SEPTA”).  Before joining SEPTA in 2006, Ms. Schultz was an associate with a law firm in Philadelphia.  Additionally, she clerked for the Superior Court of Pennsylvania and the United States Bankruptcy Court for the Eastern District of Pennsylvania.  Ms. Schultz holds a B.A. in English from the Pennsylvania State University; a J.D. from Widener University School of Law; and a Master of Governmental Administration from the University of Pennsylvania.

While neither nominee appears controversial, Democrats still might delay them, simply because if these two nominees are confirmed and no other nominations are made for the other seats, then when when Deb Miller’s holdover period expires at the end of this year, the STB would have three Republicans and no Democrats. Often, Senate practice is to hold up nominees to regulatory commissions on the floor until nominees from both parties can move as a package.

Nominations for slots reserved for the party that does not control the White House are suggested by Congressional leaders of that party, and there are rumors in the rail industry that Senate Minority Leader Chuck Schumer (D-NY) and Minority Whip Richard Durbin (D-IL) have selected former Chicago alderman and former chair of the Metra commuter rail board Martin Oberman as one of the Democratic nominees for a vacant STB slot and that Oberman’s paperwork is now working its way through the White House clearance process. It is not known whether or not Miller is seeking a reappointment to a second term on the Board.

With those nominations transmitted to the Senate this week, the current status of pending Trump Administration transportation nominees looks like this.