Proposed Rule2021-11889
Petition for Rulemaking-Railroad Consolidation Procedures-Exemption for Emergency Temporary Trackage Rights
Primary source
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Published
June 7, 2021
Issuing agencies
Surface Transportation Board
Abstract
The Surface Transportation Board (Board) grants a petition filed by the Association of American Railroads (AAR) to initiate a rulemaking proceeding to establish a new class exemption for emergency temporary trackage rights. The Board also proposes certain other related changes to the class exemptions for trackage rights and temporary trackage rights.
Full Text
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<title>Federal Register, Volume 86 Issue 107 (Monday, June 7, 2021)</title>
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[Federal Register Volume 86, Number 107 (Monday, June 7, 2021)]
[Proposed Rules]
[Pages 30243-30249]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-11889]
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SURFACE TRANSPORTATION BOARD
49 CFR Part 1180
[Docket No. EP 282 (Sub-No. 21)]
Petition for Rulemaking--Railroad Consolidation Procedures--
Exemption for Emergency Temporary Trackage Rights
AGENCY: Surface Transportation Board.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Surface Transportation Board (Board) grants a petition
filed by the Association of American Railroads (AAR) to initiate a
rulemaking proceeding to establish a new class exemption for emergency
temporary trackage rights. The Board also proposes certain other
related changes to the class exemptions for trackage rights and
temporary trackage rights.
DATES: Comments are due by July 12, 2021. Reply comments are due by
August 11, 2021.
ADDRESSES: Comments and replies may be filed with the Board via e-
filing and will be posted to the Board's website at <a href="http://www.stb.gov">www.stb.gov</a>.
FOR FURTHER INFORMATION CONTACT: Nathaniel Bawcombe at (202) 245-0376.
Assistance for the hearing impaired is available through the Federal
Relay Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION: On October 9, 2020, AAR filed a petition
requesting that the Board initiate a rulemaking proceeding to establish
a new emergency temporary trackage rights class exemption that could be
invoked in specific situations and would allow emergency temporary
trackage rights to take effect immediately, without need for the 30-day
notice requirement under 49 CFR 1180.4(g)(1). On November 4, 2020,
Samuel J. Nasca, for and on behalf of SMART-Transportation Division-New
York State Legislative Board (SMART/TD-NY), filed a reply in opposition
to AAR's petition.
On February 5, 2020, after considering the petition and reply, the
Board granted AAR's petition to initiate a rulemaking proceeding to
establish a new emergency temporary trackage rights class exemption.
The rule proposed here, which is set forth below, differs in some
respects from AAR's request, as explained below. The Board also
proposes certain other related changes to the class exemptions for
trackage rights and temporary trackage rights, also explained below.
Background
Pursuant to 49 U.S.C. 11323(a)(6), prior Board approval is required
for a rail carrier to acquire trackage rights over a rail line owned or
operated by another rail carrier. Under 49 U.S.C. 11324(d), the Board
is required to approve trackage rights applications unless it finds
that: (1) As a result of a transaction, there is likely to be
substantial lessening of competition, creation of a monopoly, or
restraint of trade in freight surface transportation in any region of
the United States; and (2) the anticompetitive effects of the
transaction outweigh the public interest in meeting significant
transportation needs.
Under 49 U.S.C. 10502, the Board is directed, to the maximum extent
consistent with 49 U.S.C. subtitle IV part A, to exempt a person, class
of persons, or a transaction or service from regulation whenever it
finds that: (1) Regulation is not necessary to carry out the rail
transportation policy (RTP) of 49 U.S.C. 10101; and (2) either the
transaction or service is of limited scope or regulation is not needed
to protect shippers from an abuse of market power.
The Board may exempt not only a single transaction but also an
entire class of transactions that meets the exemption criteria of 49
U.S.C. 10502. A class exemption for transactions otherwise subject to
Board licensing does not place those transactions beyond the Board's
jurisdiction; rather, it is a means by which a carrier may obtain Board
authorization without going through the otherwise-applicable full
licensing process.\1\
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\1\ Exemptions may be revoked, in whole or in part, pursuant to
49 U.S.C. 10502(d).
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In 2003, the Board adopted a class exemption at 49 CFR 1180.2(d)(8)
for temporary overhead trackage rights of not more than one year in
duration. See R.R. Consolidation Procs.--Exemption for Temp. Trackage
Rts., EP 282 (Sub-No. 20) (STB served May 23, 2003), modified (STB
served May 17, 2004). Under 49 CFR 1180.4(g)(1), exemptions sought
under Sec. 1180.2(d)(8) (and various other class exemptions under
Sec. 1180.2(d)) cannot become effective until at least 30 days after a
railroad files a verified notice of the transaction. As a result, when
a railroad seeks to have a temporary trackage rights exemption become
effective in less than 30 days, the railroad must petition for waiver
of the 30-day period. In such cases, in addition to serving and
publishing the notice of the exemption in the Federal Register, the
Board also issues a separate decision acting on the waiver request and
setting the effective date of the exemption. See, e.g., Union Pac.
R.R.--Temp. Trackage Rts. Exemption--BNSF Ry., FD 36424 et al. (STB
served Aug. 10, 2020) (granting a waiver of the 30-day notice period
for a trackage rights exemption under Sec. 1180.2(d)(8) and setting
effective date); Ala. & Gulf Coast Ry.--Temp. Trackage Rts. Exemption--
Kan. City S. Ry., FD 36418 (STB served July 2, 2020) (same).
AAR's Requested Exemption. AAR asks the Board to initiate a
rulemaking to create a new emergency temporary trackage rights class
exemption. Under AAR's request, the 30-day notice requirement under 49
CFR 1180.4(g)(1) would not apply to individual exemptions sought under
the new exemption provision; the temporary trackage rights would take
effect immediately upon publication of a notice of the transaction by
the Board in the Federal Register, which, according to AAR, would take
place within 5 days of a party's filing of a verified notice of
exemption. (Pet., App. A at Sec. Sec. 1180.2(d)(9), 1180.4(g)(5)(ii).)
As requested by AAR, the temporary trackage rights could be requested
for a
[[Page 30244]]
period of no more than six months; however, the requestor could, prior
to expiration of that period, seek a renewal for up to six additional
months. (Id. at App. A at Sec. 1180.2(d)(9).)
Under AAR's request, to qualify for the new exemption, a rail
carrier would be required to provide certain information regarding the
transaction that is required for other notices of exemption under 49
CFR part 1180 and the trackage rights would have to be: (1) Based on
written agreements; (2) not filed or sought in responsive applications
in rail consolidation proceedings; (3) for overhead operations only;
and (4) as certified by the rail carrier, sought in response to a track
outage expected to last more than seven days and where there is no
reasonable alternative for maintaining pre-outage service levels. (See
id., App. A at Sec. Sec. 1180.2(d)(9), 1180.4(g)(5)(i).) Every 30 days
during the initial exemption period, the rail carrier would be required
to recertify to the Board that the outage continues to exist and the
temporary trackage rights continue to be necessary to maintain service.
(Id., App. A at Sec. 1180.2(d)(9).) AAR further requests that, as
under the existing class exemption for temporary trackage rights, rail
carriers availing themselves of the proposed class exemption would not
need to file for discontinuance authority at the end of the authorized
period, (Id., App. A at Sec. 1180.2(d)(9)), and would be subject to
applicable statutory labor protective conditions.\2\
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\2\ Specifically, the grant of the trackage rights would be
subject to the employee protective conditions in Norfolk & Western
Railway--Trackage Rights--Burlington Northern, 354 I.C.C. 605
(1978), as modified by Mendocino Coast Railway--Lease & Operate--
California Western Railroad, 360 I.C.C. 653 (1980), and the
discontinuance of operations would be subject to the employee
protective conditions in Oregon Short Line Railroad--Abandonment
Portion Goshen Branch Between Firth & Ammon, in Bingham & Bonneville
Counties, Idaho, 360 I.C.C. 91 (1979). (Pet. 4-5.)
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AAR argues that the current two-step approach for obtaining
temporary trackage rights without having to wait 30 days for them to
become effective is inefficient, and asserts that its proposed class
exemption would benefit shippers, railroads, and the Board by providing
a streamlined and simple approach for obtaining temporary trackage
rights in emergency situations, ensuring the continued flow of commerce
without any decrease in regulatory oversight. (Pet. 1-4.)
As noted above, on November 4, 2020, SMART/TD-NY filed comments
opposing AAR's petition. SMART/TD-NY argues that the Board should deny
AAR's petition and decline to institute a rulemaking proceeding because
an emergency temporary trackage rights exemption is unwarranted given
the existing trackage rights exemptions and because the proposed
exemption would threaten rail safety. (SMART/TD-NY Reply 3-4.) SMART/
TD-NY states that detour arrangements in the railroad industry provide
for pilot employees from the landlord carrier to provide guidance for
the tenant carrier's operation in emergency situations. (Id. at 4.)
According to SMART/TD-NY, the proposed exemption would allow for the
``immediate cessation of detour operation[s]'' or even the avoidance of
detour operations altogether and thereby allow operation solely by
tenant carrier personnel unfamiliar with the line over which the
trackage rights have been granted. (Id.)
The Statutory Exemption Criteria
As noted above, 49 U.S.C. 10502 directs the Board to exempt a
person, class of persons, or a transaction or service from regulation
whenever it finds that: (1) Regulation is not necessary to carry out
the RTP; and (2) either the transaction or service is of limited scope
or regulation is not needed to protect shippers from an abuse of market
power.
The Board agrees that the current process for obtaining temporary
trackage rights in emergency situations can be inefficient, and notes
that petitions for waiver of the 30-day notice requirement are
routinely granted. See, e.g., Union Pac. R.R., FD 36424 et al., slip
op. at 2 (granting a waiver of the 30-day notice period); Ala. & Gulf
Coast Ry., FD 36418, slip op. at 2 (same). A class exemption for
emergency temporary trackage rights, as proposed below, would meet the
requirements of section 10502 and would advance the RTP in several
ways. It would provide for the expeditious handling and resolution of
proceedings, 49 U.S.C. 10101(15), and encourage the efficient
management of railroads, 49 U.S.C. 10101(9), by making the process of
obtaining temporary trackage rights in emergencies more efficient by
eliminating the need for a waiver of the 30-day notice period under 49
CFR 1180.4(g)(1) and more predictable by requiring the Board to act
within a set number of days. It would also promote the continuation of
a sound rail system, 49 U.S.C. 10101(4), and coordination between
carriers, 49 U.S.C. 10101(5), by facilitating the process of line
repair and approval of trackage rights agreements.
The class exemption proposed in this decision is limited in scope,
in terms of both the duration of the rights and the circumstances in
which the exemption would apply. Indeed, the proposed exemption is a
more limited form--in terms of both duration and circumstances--of the
existing temporary trackage rights exemption, which the Board in 2003
found to be of limited scope. See R.R. Consolidation Procs.--Exemption
for Temp. Trackage Rts., 6 S.T.B. 910, 913 n.8 (2003).
Regulation is not needed to protect shippers from an abuse of
market power. The proposed class exemption would not reduce competition
because the temporary trackage rights would be for overhead operations
only, and therefore the competitive status quo would not be altered
with respect to service to shippers on the affected lines. In addition,
the exemption would benefit shippers by enhancing the ability of
carriers to maintain service in emergency situations.
SMART/TD-NY's arguments in opposition to the proceeding here are
unpersuasive. The proposed class exemption is warranted because it
would make the process of obtaining temporary trackage rights in an
emergency more efficient and predictable. Moreover, based on the record
to date, the Board does not see merit in SMART/TD-NY's claim that the
proposed class exemption would threaten rail safety. This proposal
would not alter or impact the existing rail safety operating
regulations administered by the Federal Railroad Administration, which
is the Federal agency with primary responsibility over rail safety
matters. See, e.g., 49 CFR 240.229 (prohibiting a carrier in control of
operations on a line from allowing an engineer of a foreign carrier to
operate a train on that line without a pilot engineer from the
controlling carrier unless the engineer of the foreign carrier has the
necessary knowledge of the controlling carrier's operating rules and
the necessary familiarity with the physical characteristics of the
line).
The Proposed Class Exemption
For the reasons discussed above, and as set forth below, the Board
proposes to establish a new class exemption for emergency temporary
trackage rights. As explained further below, the Board's proposed rule
differs in various respects from AAR's request and includes certain
related changes to the existing class exemptions for trackage rights
and temporary trackage rights.
Circumstances in which the proposed rule would apply. AAR's
requested new class exemption would apply where there is a track outage
that is expected to last more than seven days and there is no
reasonable alternative to maintain pre-outage levels of service. (Pet.,
App.
[[Page 30245]]
A at Sec. 1180.2(d)(9).) The Board finds that further clarification is
needed to ensure that use of the class exemption would be restricted so
that it applies only to emergency situations and not to situations
where routine temporary trackage rights authority was not sought in a
timely manner. Specifically, the Board proposes to require that the new
exemption be available only for ``unforeseen'' track outages expected
to last more than seven days and there is no reasonable alternative to
maintain pre-outage levels of service. Examples of emergency situations
that result in such unforeseen track outages include, but are not
limited to, natural disasters and accidents or derailments. This
clarification appears consistent with AAR's intent. (Pet. 1-3, 9
(describing the need for the exemption in cases of ``unpredictable'' or
``unexpected'' events such as accidents or natural disasters).) The
Board also proposes a requirement that, when railroads certify that
trackage rights are needed for an unforeseen track outage, the verified
notice should provide a description of the situation that includes, to
the extent possible, the following information:
1. The nature of the event that caused the unforeseen outage;
2. The location of the outage;
3. The date that the emergency situation occurred;
4. The date the track outage was discovered; and
5. The expected duration of the outage.
Duration of the exemption. AAR requests that the temporary trackage
rights would be approved for an initial period of no longer than six
months, with the option to request a renewal for an additional six
months. The Board's proposal limits the emergency temporary trackage
rights to an initial period not to exceed three months, with the option
to request a renewal for an additional three months. A review of recent
cases in which the Board waived the 30-day notice requirement for
temporary trackage rights in emergency situations suggests that
trackage rights would rarely be needed for a period longer than three
months.\3\
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\3\ See, e.g., Union Pac. R.R., FD 36424, slip op. at 2
(granting waiver of 30-day notice period for trackage rights
agreement with a term of a little over one month); Ala. & Gulf Coast
Ry, FD 36418, slip op. at 1 n.3 (granting waiver of 30-day notice
period for trackage rights agreement with a term of just less than
two months); Norfolk Southern Railway Company Petition for Waiver 3,
Norfolk S. Ry.--Temp. Trackage Rts. Exemption--Kan. City S. Ry., FD
36359 (railroad anticipates that need for trackage rights operations
would last for several weeks or months); Kan. City S. Ry.--Temp.
Trackage Rts. Exemption--Norfolk S. Ry., FD 36314 et al., slip op.
at 1-2 (STB served June 13, 2019) (providing notice of exemption for
trackage rights agreement with a term of less than three months);
Terminal Railway Alabama State Docks Verified Notice of Exemption at
2, Apr. 27, 2018, Terminal Ry. Ala. State Docks--Temp. Trackage Rts.
Exemption--Norfolk S. Ry., FD 36190 (seeking exemption for trackage
rights agreement with a term of six months but stating that trackage
rights likely only needed for approximately one month).
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Certification every 30 days. AAR's request would require a rail
carrier to certify every 30 days that the track outage continues to
exist and that the temporary trackage rights continue to be necessary
to maintain service. However, the Board's proposal would not require
such certifications. Rather, the Board would only require that the
carrier file a notice stating that the outage has been resolved and
that trackage rights are no longer needed, as well as the date on which
use of the trackage rights ceased, should the track outage be resolved
and use of the trackage rights become unnecessary prior to the
expiration of the exemption period. Any such notice should be filed
within 5 business days of the date on which use of the trackage rights
ceased. The Board finds that the reduction of the exemption period from
six months to three months, combined with the requirement for parties
to inform the Board if use of trackage rights has ceased prior to when
the exemption period would have otherwise expired renders the 30-day
certifications affirming the continued need for the trackage rights
unnecessary.
Effective date of the exemption. AAR requests that exemptions under
the new provision become effective immediately upon publication of the
Board's notice in the Federal Register, which would be required within
five days after a verified notice of exemption is filed. However, due
to requirements of the Federal Register publication process that are
outside the Board's control, publication within five days may not be
possible in certain situations. For that reason, the Board proposes
that the exemption would become effective not upon publication in the
Federal Register but rather upon service of the Board's notice, which
would occur within five days of filing of the railroad's verified
notice of exemption.\4\ The Board's notice would be published in the
Federal Register concurrently with service if possible, or as soon
thereafter as practicable.
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\4\ Under Sec. 1180.4(g), stay petitions for notices filed
under Sec. 1180.2(d) must be filed at least 7 days before the
exemption becomes effective. The Board proposes to specify that, for
notices filed under Sec. 1180.2(d)(9), stay petitions be filed as
soon as possible before the exemption becomes effective. Under 49
U.S.C. 10502(d), petitions to revoke the exemption can be filed at
any time.
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Caption summary. Under AAR's request, parties seeking an exemption
under the new Sec. 1180.2(d)(9) would include in its verified notice a
caption summary suitable for publication in the Federal Register
containing certain information regarding the proposed transaction.\5\
This requirement mirrors the requirement of a caption summary for
exemptions sought under Sec. 1180.2(d)(7) and (d)(8). Originally, the
purpose of this requirement was to facilitate Federal Register
publication by providing the Board with a document that could be
published as the Board's notice.\6\ However, in practice, caption
summaries have not routinely been used for that purpose. Accordingly,
the Board proposes not to require a caption summary for exemptions
under Sec. 1180.2(d)(9) and to eliminate the existing caption summary
requirements for exemptions under Sec. 1180.2(d)(7) and Sec.
1180.2(d)(8). Pursuant to the Board's proposal, the caption summary
requirements would be replaced by a requirement that the parties
provide in their notices the same information currently required in
caption summaries.
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\5\ AAR requests to include the caption summary and other
requirements under new Sec. 1180.4(g)(5). Many of the requirements
in new proposed Sec. 1180.4(g)(5) are duplicative of requirements
already contained in Sec. 1180.4(g)(1), which is applicable to all
exemptions under Sec. 1180.2(d), including the new proposed Sec.
1180.2(d)(9). Rather than proposing a new Sec. 1180.4(g)(5), as
suggested by AAR, the Board proposes to incorporate the requirements
of this Sec. into the existing Sec. 1180.4(g)(1) to the extent
they are not already contained therein.
\6\ The caption summary regulations originally indicated that
caption summaries themselves would be published in the Federal
Register. R.R. Consolidation Procs.--Exemption for Temp. Trackage
Rts., EP 282 (Sub-No. 20), slip op. at 9 (STB served May 23, 2003);
R.R. Consolidation Procs.--Trackage Rts. Exemption, 1 I.C.C. 270,
283 (1985). See also 49 CFR 1180.4(g)(2)(i) and (ii) (requiring
caption summaries to be ``suitable for publication in the Federal
Register'').
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Certification regarding interchange commitments. Under Sec.
1180.4(g)(4), parties seeking Board approval for transactions under 49
CFR part 1180 must certify ``whether or not a proposed acquisition or
operation of a rail line involves a provision or agreement that may
limit future interchange with a third-party connecting carrier, whether
by outright prohibition, per-car penalty, adjustment in the purchase
price or rental, positive economic inducement, or other means.'' On its
face, this provision could be read to require such a certification in
connection with the emergency temporary trackage rights exemption
proposed here.\7\
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\7\ AAR's request does not address the issue of certification of
interchange commitments.
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The Board adopted the interchange commitment certification
requirement in Information Required in Notices &
[[Page 30246]]
Petitions Containing Interchange Commitments, EP 714 (STB served Sept.
5, 2013). In the notice of proposed rulemaking (NPRM) in that
proceeding, the Board did not specifically address the applicability of
the interchange certification to trackage rights transactions, though
it did cite one previous trackage rights exemption proceeding. Info.
Required in Notices & Pets. Containing Interchange Commitments, EP 714,
slip op. at 4-5, nn.17, 18, 20 (STB served Nov. 1, 2012) (citing
Jackson & Lansing R.R.--Trackage Rts. Exemption--Norfolk S. Ry., FD
35418 et al. (STB served Sept. 27, 2011)).\8\
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\8\ The Jackson & Lansing decision, which embraced three
separate proceedings, addressed issues related to an interchange
commitment disclosed as part of a lease transaction, not the
trackage rights transaction. Further, that decision in several
instances referred to interchange commitments being part of lease
and sale transactions. Jackson & Lansing, FD 35418 et al., slip op.
at 6, 7 n.23, 8.
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Nor did the final rule in Docket No. EP 714 specifically address
the applicability of the interchange commitment certification to
railroads obtaining trackage rights. The NPRM refers only to the
interchange commitment certification requirement applying to a
``purchaser'' or ``lessee'' railroad. Info. Required in Notices & Pets.
Containing Interchange Commitments, EP 714, slip op. at 4-6 (STB served
Nov 1, 2012). Further, the Board has generally interpreted this
requirement as not applying to trackage rights agreements under Sec.
1180.2(d)(7) \9\ or Sec. 1180.2(d)(8).\10\
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\9\ See, e.g., Grand Trunk W. R.R.--Trackage Rts. Exemption--
Norfolk S. Ry., FD 36267 (STB served May 16, 2019); Ind. Rail Road--
Trackage Rts. Exemption--CSX Transp., Inc., FD 36068 (STB served
Oct. 14, 2016); Ind. Rail Road--Amended Trackage Rts. Exemption--CSX
Transp., Inc., FD 35283 (Sub-No. 1) (STB served Apr. 28, 2017).
\10\ See, e.g., Ala. & Gulf Coast Ry.--Temp. Trackage Rts.
Exemption--Kan. Cty. S. Ry., FD 36418; Union Pac. R.R.--Temp.
Trackage Rts. Exemption--Kan. Cty. S. Ry., FD 36135 (STB served July
26, 2017); Allegheny Valley R.R.--Temp. Trackage Rts. Exemption--
Norfolk S. Ry., FD 36015 (STB served May 6, 2016).
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Therefore, the Board proposes to clarify that Sec. 1180.4(g)(4)
would not apply to transactions under the proposed new Sec.
1180.2(d)(9). In addition, the Board proposes to clarify that Sec.
1180.4(g)(4) also does not apply to trackage rights transactions under
Sec. 1180.2(d)(7) or Sec. 1180.2(d)(8), an issue that has been the
cause of some confusion among parties in the past.
Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601-612, generally requires a description and analysis
of new rules that would have a significant economic impact on a
substantial number of small entities. In drafting a rule, an agency is
required to: (1) Assess the effect that its regulation will have on
small entities; (2) analyze effective alternatives that may minimize a
regulation's impact; and (3) make the analysis available for public
comment. Sections 601-604. In its notice of proposed rulemaking, the
agency must either include an initial regulatory flexibility analysis,
section 603(a), or certify that the proposed rule would not have a
``significant impact on a substantial number of small entities,''
section 605(b). Because the goal of the RFA is to reduce the cost to
small entities of complying with federal regulations, the RFA requires
an agency to perform a regulatory flexibility analysis of small entity
impacts only when a rule directly regulates those entities. In other
words, the impact must be a direct impact on small entities ``whose
conduct is circumscribed or mandated'' by the proposed rule. White
Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).
The Board's proposed changes to its regulations here are intended
to make the process of obtaining Board approval of temporary trackage
agreements in emergency situations more efficient and predictable and
do not mandate the conduct of small entities. For the purpose of RFA
analysis for rail carriers subject to the Board's jurisdiction, the
Board defines a ``small business'' as only including those rail
carriers classified as Class III rail carriers under 49 CFR 1201.1-1.
See Small Entity Size Standards Under the Regul. Flexibility Act, EP
719 (STB served June 30, 2016) (with Board Member Begeman
dissenting).\11\ Currently, if small entities wish to receive temporary
trackage rights in emergency situations, they must file for a notice of
exemption in addition to filing a petition for waiver. The proposed
rule, if promulgated, provides a more expedited procedural mechanism
for carriers to quickly obtain approval for trackage rights in
emergency situations without having to obtain a waiver of the 30-day
notice period under Sec. 1180.4(g)(1). The regulations require the
carrier utilizing the trackage rights to file a notice if the carrier
ceases to use the trackage rights prior to when the exemption period
would have otherwise expired. However, because such notices would
consist of a brief statement that use of the trackage rights has ceased
and the date on which use of the trackage rights ceased, the Board does
not believe that the burden associated with these notices would
outweigh the reduction in burden associated with eliminating the
requirement to file a petition for waiver of the 30-day notice period
under Sec. 1180.4(g)(1). The Board, therefore, expects the impact of
the proposed rule would slightly reduce the paperwork burden for small
entities. Accordingly, the economic impact of the proposed rule, if
any, would be minimal as the burdens associated with obtaining approval
of temporary trackage rights agreements in emergencies would be
slightly reduced and the rule would likely provide some economic
benefit by expediting, in some cases, the process of approving trackage
rights agreements necessary to restore service at pre-outage levels.
Therefore, the Board certifies under 5 U.S.C. 605(b) that these
proposed rules, if promulgated, would not have a significant economic
impact on a substantial number of small entities within the meaning of
the RFA. This decision will be served upon the Chief Counsel for
Advocacy, Offices of Advocacy, U.S. Small Business Administration,
Washington, DC 20416.
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\11\ Class III carriers have annual operating revenues of $20
million or less in 1991 dollars or $40,384,263 or less when adjusted
for inflation using 2019 data. Class II rail carriers have annual
operating revenues of less than $250 million or $504,803,294 when
adjusted for inflation using 2019 data. The Board calculates the
revenue deflator factor annually and publishes the railroad revenue
thresholds on its website. 49 CFR 1201.1-1; Indexing the Annual
Operating Revenues of R.Rs., EP 748 (STB served June 10, 2020).
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Paperwork Reduction Act. Pursuant to the Paperwork Reduction Act
(PRA), 44 U.S.C. 3501-3521, Office of Management and Budget (OMB)
regulations at 5 CFR 1320.8(d)(3), and in the Appendix, the Board seeks
comments about the impact of the revisions in the proposed rule to the
currently approved collection of Statutory Licensing Authority (OMB
Control Number: 2140-0023), concerning: (1) Whether the collection of
information, as modified or added in the proposed rule, and further
described below, is necessary for the proper performance of the
functions of the Board, including whether the collection has practical
utility; (2) the accuracy of the Board's burden estimates; (3) ways to
enhance the quality, utility, and clarity of the information collected;
and (4) ways to minimize the burden of the collection of information on
the respondents, including the use of automated collection techniques
or other forms of information technology, when appropriate.
The Board estimates that the proposed requirements would save a
total hourly burden of 54 hours per year as compared to the current
procedures for obtaining emergency temporary trackage rights involving
the filing of verified notice of exemption and a petition for
[[Page 30247]]
waiver of the 30-day notice period. The new emergency temporary
trackage rights notice would incorporate additional language, resulting
in approximately 5% more burden hours to prepare than the average
notice of exemption, and it is estimated that two notices regarding the
cessation of trackage rights would be filed annually. There are no
changes to the estimated non-hourly burdens associated with this
collection. The Board welcomes comment on the estimates of actual time
and costs of the collection of the proposed emergency trackage rights
notices of exemptions, as detailed below in the Appendix. Other
information pertinent to this collection is also included in the
Appendix. The proposed rule will be submitted to OMB for review as
required under 44 U.S.C. 3507(d) and 5 CFR 1320.11. Comments received
by the Board regarding these information collections will also be
forwarded to OMB for its review when the final rule is published.
List of Subjects in 49 CFR Part 1180
Administrative practice and procedure, Railroads, Reporting and
recordkeeping requirements.
It is ordered:
1. Comments are due by July 12, 2021. Reply comments are due by
August 11, 2021.
2. Notice of this decision will be published in the Federal
Register.
3. A copy of this decision will be served upon the Chief Counsel
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
4. This decision is effective on its service date.
Decided: May 28, 2021.
By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and
Schultz.
Jeffrey Herzig,
Clearance Clerk.
For the reasons set forth in the preamble, the Surface
Transportation Board proposes to amend part 1180 of title 49, chapter
X, of the Code of Federal Regulations as follows:
PART 1180--RAILROAD ACQUISITION, CONTROL, MERGER, CONSOLIDATION
PROJECT, TRACKAGE RIGHTS, AND LEASE PROCEDURES
0
1. The authority citation for part 1180 continues to read as follows:
Authority: 5 U.S.C. 553 and 559; 11 U.S.C. 1172; 49 U.S.C.
1321, 10502, 11323-11325.
0
2. Amend Sec. 1180.2 as follows:
0
a. Revise the first sentence of paragraph (d) introductory text;
0
b. In paragraph (d)(8)(iv), remove the words ``49 CFR
1180.4(g)(2)(iii)'' and add in their place the words ``49 CFR
1180.4(g)(1)(ii)'', and remove the words ``these rules'' and add in
their place the words ``this paragraph (d)(8)'';
0
c. Add paragraph (d)(9).
Sec. 1180.2 Types of transactions.
* * * * *
(d) A transaction is exempt if it is within one of the nine
categories described in paragraphs (d)(1) through (9). * * *
* * * * *
(9)(i) Acquisition of emergency temporary trackage rights by a rail
carrier over lines owned or operated by any other rail carrier or
carriers that are:
(A) Based on written agreements,
(B) Not filed or sought in responsive applications in rail
consolidation proceedings,
(C) For overhead operations only,
(D) Scheduled to expire on a specific date not to exceed three
months from the effective date of the exemption, and
(E) Sought in response to an unforeseen track outage and expected
to last more than seven days where there is no reasonable alternative
to maintain pre-outage levels of service.
(ii) If during the exemption period, the outage is resolved and use
of the temporary emergency trackage rights ceases to be necessary to
maintain service at pre-outage levels, the rail carrier must file a
notice stating that the outage has been resolved and that use of the
trackage rights has ceased and identifying the date on which use of the
trackage rights ceased. Such a notice should be filed within 5 business
days of the date on which use of the trackage rights ceased. The
emergency temporary trackage rights authority expires upon the official
filing date of the notice. If the operations contemplated by the
exemption will not be concluded within the initial exemption period,
the rail carrier may, prior to expiration of the period, file a request
for a renewal of the temporary rights for an additional period of up to
3 months, including the reason(s) therefor. Rail carriers acquiring
temporary trackage rights need not seek authority from the Board to
discontinue the trackage rights as of the expiration date specified
under Sec. 1180.4(g)(1)(ii). All transactions under this paragraph
(d)(9) will be subject to applicable statutory labor protective
conditions.
0
3. Amend Sec. 1180.4 as follows:
0
a. Revise paragraph (g)(1);
0
b. Remove paragraph (g)(2);
0
c. Redesignate paragraphs (g)(3) and (4) as paragraphs (g)(2) and (3);
0
d. Revise newly redesignated (g)(2); and
0
e. Amend newly redesignated (g)(3) by
0
i. Removing the paragraph heading ``Transactions imposing interchange
commitments'';
0
ii. Revising the first sentence of paragraph (g)(3)(i).
The revisions read as follows:
Sec. 1180.4 Procedures.
* * * * *
(g) Notice of exemption. (1) To qualify for an exemption under
Sec. 1180.2(d), a railroad must file a verified notice of the
transaction with the Board. Except for verified notices filed under
Sec. 1180.2(d)(9), all verified notices under Sec. 1180.2(d) must be
filed at least 30 days before the transaction is consummated,
indicating the proposed consummation date. Verified notices filed under
Sec. 1180.2(d)(9) will become effective upon service of notice of the
transaction by the Board. Before a verified notice is filed, the
railroad shall obtain a docket number from the Board's Section of
Administration, Office of Proceedings.
(i) All notices filed under Sec. 1180.2(d) shall contain the
information required in Sec. 1180.6(a)(1)(i)-(iii), (a)(5)-(6), and
(a)(7)(ii), and indicate the level of labor protection to be imposed.
(ii) Notices filed under Sec. Sec. 1180.2(d)(7), 1180.2(d)(8), or
1180.2(d)(9) shall also contain the following information:
(A) The name of the tenant railroad;
(B) The name of the landlord railroad;
(C) A description of the trackage rights, including a description
of the track. For notices under Sec. 1180.2(d)(8) and (9), the notice
must state that the trackage rights are overhead rights. For notices
under Sec. 1180.2(d)(7), the notice must state whether the trackage
rights are local or overhead;
(D) The date the trackage rights transaction is proposed to be
consummated;
(E) The date temporary trackage rights will expire, if applicable;
and
(F) For notices under Sec. 1180.2(d)(9), a description of the
situation resulting in the outage in sufficient detail to allow the
Board to determine an emergency exits, including, to the extent
possible, the nature of the event that caused the unforeseen outage,
the location of the outage, the date that the emergency situation
occurred, the date the outage was discovered, and the expected duration
of the outage.
(iii) Except for notices filed under Sec. 1180.2(d)(9), the Board
shall publish a notice of exemption in the Federal Register within 16
days of the filing of the notice. For notices filed under Sec.
1180.2(d)(9), the Board shall serve a
[[Page 30248]]
notice of exemption on parties of record within 5 days after the
verified notice of exemption is filed and shall publish that notice in
the Federal Register. The publication of notices under Sec. 1180.2(d)
will indicate the labor protection required.
(iv) If the notice contains false or misleading information that is
brought to the Board's attention, the Board shall summarily revoke the
exemption for that carrier and require divestiture.
(v) The filing of a petition to revoke under 49 U.S.C. 10502(d)
does not stay the effectiveness of an exemption. Except for notices
filed under Sec. 1180.2(d)(9), stay petitions must be filed at least 7
days before the exemption becomes effective. For notices filed under
Sec. 1180.2(d)(9), stay petitions should be filed as soon as possible
before the exemption becomes effective.
(vi) Other exemptions that may be relevant to a proposal under this
provision are codified at 49 CFR part 1150, subpart D, which governs
transactions under 49 U.S.C. 10901.
* * * * *
(3)(i) Except for notices filed under Sec. 1180.2(d)(7), (8), or
(9), the filing party must certify whether a proposed acquisition or
operation of a rail line involves a provision or agreement that may
limit future interchange with a third-party connecting carrier, whether
by outright prohibition, per-car penalty, adjustment in the purchase
price or rental, positive economic inducement, or other means
(``interchange commitment''). * * *
Note: The following will not appear in the Code of Federal
Regulations.
Appendix
Information Collected Under the Paperwork Reduction Act
As part of its continuing effort to reduce paperwork burdens,
and as required by the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501-3521, the Surface Transportation Board (Board) gives
notice that it is requesting from the Office of Management and
Budget (OMB) approval for the revision and extension of the
currently approved information collection, Statutory Licensing
Authority (OMB Control Number: 2140-0023), as described below. The
requested revision to the existing, approved collection by this
notice of proposed rulemaking (NPRM) is expected to (1) provide
parties with an emergency temporary trackage rights exemption (to
replace the need for submitting both a notice of exemption and a
separate petition for waiver) and (2) in the event that the use of
the temporary emergency trackage rights ceases to be necessary
during the exemption period, require a short notice stating such.
Description of Collection
Title: Statutory Licensing Authority.
OMB Control Number: 2140-0023.
STB Form Number: None.
Type of Review: Revision of a currently approved collection.
Respondents: Rail carriers and non-carriers seeking statutory
licensing or consolidation authority or an exemption from filing an
application for such authority (including, in some circumstances, a
certification regarding whether the transaction at issue imposes
interchange commitments).
Number of Respondents: 80.
Total Burden Hours (annually including all respondents): 4,203
(sum of estimated hours per response x number of responses for each
type of filing, including the increase and decrease in burdens under
the NPRM). The tables below show the burden impact of the NPRM,
including the (a) current estimates for the existing collection, (b)
reduction in estimates due to the NPRM, and (c) increase in
estimates due to the NPRM.
As provided in Table 1--Estimated Average Number of Responses
below, the Board maintains its existing, approved collection of
three applications, 12 petitions for exemption, 103 notices of
exemption, and four certifications regarding interchange commitments
annually based on an actual three-year average (FY 2018-2020) of
filings. Table 1 also shows the expected decrease and increase in
filings under the NPRM. Similarly, Table 2--Estimated Number of
Hours per Response shows both the existing estimated burden hours
for each existing response and provides the estimated burdens for
the increase and decrease of responses under the NPRM. When
multiplied by the number of hours for each type of filing, as
provided in Table 2, the estimated annual burden hours for 122
responses are 4,203 hours (sum of estimated hours per response x
number of responses for each type of filing), as shown in Table 3--
Total Estimated Annual Burden Hours.
Frequency: On occasion.
Table 1--Estimated Average Number of Responses
------------------------------------------------------------------------
Average number
Type of filing of filings per
year
------------------------------------------------------------------------
Existing filings:
Applications...................................... 3
Petitions......................................... 12
Notices........................................... 103
Interchange commitments certifications............ 4
Reductions in filings--Proposed:
Notices (previously used)......................... (2)
Petitions for waiver (no longer necessary)........ (2)
Additions in filings--Proposed:
New Notices (emergency trackage rights exemptions) 2
New notices regarding cessation of trackage rights 2
-----------------
Total estimated filings....................... 122
------------------------------------------------------------------------
Table 2--Estimated Number of Hours per Response
------------------------------------------------------------------------
Number of hours
Type of filing per response
------------------------------------------------------------------------
Existing filings:
Applications...................................... 524
Petitions......................................... 58
Notices........................................... 19
Interchange commitments certifications............ 8
Reductions in filings--Proposed:
Notices (previously used)......................... (19)
Petitions for waiver (no longer necessary)........ (29)
[[Page 30249]]
Additions in filings--Proposed:
New Notices (emergency trackage rights exemptions) 20
New notices regarding cessation of trackage rights 1
------------------------------------------------------------------------
Table 3--Total Estimated Annual Burden Hours
----------------------------------------------------------------------------------------------------------------
Hours per Annual number of Total annual
Type of filing response filings burden hours
----------------------------------------------------------------------------------------------------------------
Existing filing:
Applications.......................................... 524 3 1,572
Petitions............................................. 58 12 696
Notices............................................... 19 103 1,957
Interchange commitments............................... 8 4 32
-----------------------------------------------------
Total Existing Annual Burden Hours................ ................ ................ 4,257
Reductions in filings--Proposed:
Notices (previously used)............................. (19) 2 (38)
Petitions for waiver (no longer necessary)............ (29) 2 (58)
Additions in filings--Proposed:
New Notices (emergency trackage rights exemptions).... 20 2 40
New notices regarding cessation of trackage rights.... 1 2 2
-----------------------------------------------------
Total new annual burden hours..................... ................ ................ 4,203
----------------------------------------------------------------------------------------------------------------
Total ``Non-hour Burden'' Cost: Because Board collections are
submitted electronically to the Board, there is no cost for filing
with the Board. However, for some filings, respondents may be
required to send consultation letters to various other governmental
agencies. Copies of these letters are part of an environmental and
historic report that must be filed with this collection (unless
waived by the Board). Because some of these other agencies may
require hard copy letters, there may be some limited mailing costs,
which staff estimates in total to be approximately $1,750.
Needs and Uses: As mandated by Congress, persons seeking to
construct, acquire, or operate a line of railroad and railroads
seeking to abandon or to discontinue operations over a line of
railroad or, in the case of two or more railroads, to consolidate
their interests through merger or a common-control arrangement are
required to file an application for prior approval and authority
with the Board. See 49 U.S.C. 10901-03, 11323-26. Under 49 U.S.C.
10502, persons may seek an exemption from many of the application
requirements of Sec. Sec. 10901-03 and Sec. Sec. 11323-26 by
filing with the Board a petition for exemption or notice of
exemption in lieu of an application. The collection by the Board of
these applications, petitions, and notices (including collection of
disclosures of rail interchange commitments under 49 CFR 1121.3(d),
1150.33(h), 1150.43(h), and 1180.4(g)(4)) enables the Board to meet
its statutory duty to regulate the referenced rail transactions. In
cases in which the requests for authority involve agreements with
interchange commitments that may limit the future interchange of
traffic with third parties, certain information must be disclosed to
the Board about those commitments. 49 CFR 1121.3(d), 1150.33(h),
1150.43(h), 1180.4(g)(4). The collection of this information
facilitates the case-specific review of interchange commitments and
enables the Board's monitoring of their usage generally.
[FR Doc. 2021-11889 Filed 6-4-21; 8:45 am]
BILLING CODE 4915-01-P
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