Rule2021-26239
Petition for Rulemaking-Railroad Consolidation Procedures-Exemption for Emergency Temporary Trackage Rights
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 6, 2021
Effective
December 30, 2021
Issuing agencies
Surface Transportation Board
Abstract
The Surface Transportation Board (Board) is adopting a final rule establishing a new class exemption for emergency temporary trackage rights. The final rule also makes 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 231 (Monday, December 6, 2021)</title>
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[Federal Register Volume 86, Number 231 (Monday, December 6, 2021)]
[Rules and Regulations]
[Pages 68926-68931]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26239]
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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: Final rule.
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SUMMARY: The Surface Transportation Board (Board) is adopting a final
rule establishing a new class exemption for emergency temporary
trackage rights. The final rule also makes certain other related
changes to the class exemptions for trackage rights and temporary
trackage rights.
DATES: The rule is effective December 30, 2021.
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: 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 49 CFR 1180.2(d)(8) (and various
other class exemptions under 49 CFR 1180.2(d)) cannot become effective
until at least 30 days after a railroad files a verified notice of
exemption for 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 the Board for waiver of the
30-day period. In such cases, in addition to serving and publishing
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 49 CFR 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). In this final rule, the
Board creates a new class exemption at 49 CFR 1180.2(d)(9) for
emergency temporary trackage rights that eliminates the 30-day notice
period in certain circumstances. The final rule also makes certain
other related changes to the existing class exemptions for trackage
rights and temporary trackage rights.
Background
On October 9, 2020, the Association of American Railroads (AAR)
filed a petition requesting that the Board initiate a rulemaking
proceeding to establish a new emergency temporary trackage rights class
exemption for specific limited situations that would allow emergency
temporary trackage rights to take effect within five days of a carrier
filing a verified notice of exemption without requiring waiver of 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. SMART/TD-NY argued that the Board
should decline to institute a rulemaking proceeding because AAR's
proposed emergency temporary trackage rights exemption is unwarranted
given the existing trackage rights exemptions and because the proposed
exemption would threaten rail safety by allowing operation by carrier
personnel unfamiliar with the line over which the trackage rights would
be granted. (SMART/TD-NY Reply 3-4, Nov. 4, 2020.)
On May 28, 2021, after considering the petition and the responsive
comment, the Board issued a Notice of Proposed Rulemaking. Pet. for
Rulemaking--R.R. Consolidation Procs.--Exemption for Emergency
Temporary Trackage Rts. (NPRM), EP 282 (Sub-No. 21) (STB served May 28,
2021). In the NPRM, the Board explained that SMART/TD-NY's arguments
were unpersuasive because the proposed class exemption would make the
process of obtaining temporary trackage rights in an emergency more
efficient and predictable, and the proposed rule would not affect rail
safety because it would not impact the existing Federal Railroad
Administration (FRA) safety regulations, such as the regulation
governing operations of more than one railroad over the same track, as
in a trackage rights arrangement. NPRM, EP 282 (Sub-No. 21), slip op.
at 4.
As explained in the NPRM, the proposed rule differed in some
respects from AAR's petition request. The proposed exemption would be
available only for ``unforeseen'' track outages expected to last more
than seven days where there is no reasonable alternative to maintain
pre-outage levels of service. Id. at 5. The Board also proposed a
requirement that the verified notice provide a description of the
situation that includes, to the extent possible, the following
information: 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 track outage was discovered; and the expected
duration of the outage. Id.
The proposed rule limited 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. Id. Under the
proposed rule, 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 after the railroad's
verified notice of exemption is filed. Id. at 6. The Board's notice
would be published in the Federal Register concurrently with service if
possible, or as soon thereafter as practicable. Id. Additionally, the
Board proposed that, should the track outage be resolved and use of the
trackage rights become unnecessary prior to the expiration of the
exemption period, carriers be required to 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.
Id. at 6.
The Board proposed not requiring a caption summary for exemptions
under 49 CFR 1180.2(d)(9) and to eliminate the existing caption summary
requirements for exemptions under 49 CFR 1180.2(d)(7) and 49 CFR
1180.2(d)(8). NPRM, EP 282 (Sub-No. 21), slip op. at 7. Under the
proposed rule, the caption summary requirements would be replaced by a
requirement that the parties provide in their verified notices the same
information currently required in caption summaries. Id.
The proposed rule would also clarify that the Board's regulation at
49 CFR 1180.4(g)(4), pertaining to interchange
[[Page 68927]]
commitments,\1\ would not apply to transactions under the proposed new
49 CFR 1180.2(d)(9) or to trackage rights transactions under 49 CFR
1180.2(d)(7) or 49 CFR 1180.2(d)(8), an issue that has been the cause
of some confusion among parties in the past. NPRM, EP 282 (Sub-No. 21),
slip op. at 8.
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\1\ 49 CFR 1180.4(g)(4) provides that 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.''
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Comments on the NPRM
In response to the NPRM, the Board received comments from the
National Transportation Safety Board (NTSB) on July 9, 2021, and from
AAR, SMART/TD-NY, and the American Short Line and Regional Railroad
Association (ASLRRA) on July 11, 2021. AAR and SMART/TD-NY filed
replies on August 11, 2021.
The NTSB states it is supportive of reducing the delay for track
exemptions under existing regulations, but it ``is concerned that the
reduced time to grant waivers could reduce the level of safety,
especially for railroad crews and others affected by trains operating
in detour territories that may be unfamiliar.'' (NTSB Comments 1.) The
NTSB claims that the NPRM lacks discussion about existing FRA
regulations that require a train engineer to be familiar with the
territory. (Id. at 2.) According to the NTSB, a 30-day notice provides
time for familiarization with the territory and regulations but the
five-day period under the proposed rule may not provide such
opportunity. (Id.) Therefore, the NTSB proposes that the verified
notice of exemption required under the proposed rule be expanded to
include a verification that safety hazards associated with
unfamiliarity with the detour territory are identified and managed.
(Id.) In addition, the NTSB proposes that verified notices be required
to include a plan for addressing engineer familiarity with the detour
territory on which they will be operating. (Id.)
SMART/TD-NY argues that the proposed exemption would adversely
affect rail safety and reduce work opportunities for rail employees.
(SMART/TD-NY Comments 6-7; SMART/TD-NY Reply 4-5, 7, 10, Aug. 11,
2021.) SMART/TD-NY claims that currently, in emergency situations, rail
carriers seek an exemption under 49 CFR 1180.2(d)(8) and file a
petition for a waiver of the 30-day period under 49 CFR 1180.4(g)(1)
and that while they wait for the exemption to become effective, they
operate pursuant to detour arrangements under which their operations
are guided and directed by a pilot crewmember of the carrier that
controls the line.\2\ (SMART/TD-NY Reply 3, Aug. 11, 2021.) In
contrast, according to SMART/TD-NY, the proposed rule would allow a
carrier to begin operations over the line of a foreign carrier as soon
as the Board serves its notice of exemption. (Id. at 4.) SMART/TD-NY
argues that although the proposed rule requires that the Board serve
its notice within five days after a carrier has filed a verified notice
of exemption, ``[i]t is inconceivable the Board would wait even one
day, much less than five days.'' (Id. at 5.) Therefore, according to
SMART/TD-NY, emergency temporary trackage rights would become effective
almost immediately and without the transition period of detour
operations, thereby allowing carriers to operate with personnel
insufficiently experienced in foreign territory operations and
eliminating work opportunities associated with detour operations.\3\
(SMART/TD-NY Comments 6; SMART/TD-NY Reply 4-5, 7, Aug. 11, 2021.)
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\2\ SMART/TD-NY explains that detour operations differ from
trackage rights operations in that trackage rights operations
involve a carrier using only its own employees to operate over a
line controlled by another carrier, whereas in detour operations the
engineer of the carrier operating over a line controlled by another
carrier is guided by an experienced crewmember of the carrier that
controls the line. (SMART Reply 3, Aug. 11, 2021.)
\3\ SMART/TD-NY further argues that the proposed rule should not
be enacted because it would be an ``extension of [Board] regulation,
over and above, what has been traditional railroad self-regulation
for emergency temporary trackage operations'' through detour
arrangements. (SMART/TD-NY Comments 5.)
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SMART/TD-NY also argues that the proposed exemption is unwarranted
because the existing exemption and waiver process is sufficient to
address emergency situations and is not unduly inefficient. (SMART/TD-
NY Comments 4-5; SMART/TD-NY Reply 6-7, Aug. 11, 2021.) SMART/TD-NY
claims that the current process is not inefficient because verified
notices of exemption and petitions for waiver are short documents that
are easy to prepare, that the notice is ``self-executing'' and does not
need to be approved by the Board, and that the petitions for waiver are
routinely granted. (SMART/TD-NY Reply 6, Aug. 11, 2021.) SMART/TD-NY
also asserts that there have previously been no claims that the current
process is inefficient. (Id. at 7.) According to SMART/TD-NY, these
facts demonstrate that the ``claimed serious inefficiency'' of the
current process is a ``hoax.'' (Id. at 6.)
SMART/TD-NY opposes the Board's proposal not to require a caption
summary in verified notices of exemption filed under 49 CFR
1180.2(d)(9) and to eliminate the caption summary requirement for
notices filed under 49 CFR 1180.2(d)(7) and (d)(8). (SMART/TD-NY Reply
11-12, Aug. 11, 2021.) SMART/TD-NY claims that removing the caption
summary requirement is inconsistent with the requirement that notice of
the emergency temporary trackage rights be published in the Federal
Register. (Id. at 12.)
AAR supports the proposed rule but asks the Board to clarify
several issues. AAR argues that the regulatory text should include
examples of the types of events that would constitute an unforeseen
track outage under proposed 49 CFR 1180.2(d)(9) and that the Board
should clarify that pursuing an exemption under proposed 49 CFR
1180.2(d)(9) would not preclude a subsequent exemption under 49 CFR
1180.2(d)(8) if the circumstances of the unforeseen event require more
than six months to restore the outage.\4\ (AAR Comments 5-6.)
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\4\ SMART/TD-NY argues that AAR's proposal to allow carriers to
utilize the temporary trackage rights exemption under 49 CFR
1180.2(d)(8) after obtaining emergency temporary trackage rights
under 49 CFR 1180.2(d)(9) demonstrates that the existing temporary
trackage rights exemption is sufficient. (SMART/TD-NY Reply 11, Aug.
11, 2021.)
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Responding to the arguments made by SMART/TD-NY, AAR also argues
that the proposed exemption--which would remove regulatory requirements
in limited circumstances--is warranted because the existing exemption
and waiver process is inefficient. (AAR Reply 2-4.) AAR claims that the
exemption would make the process of obtaining a trackage rights
exemption in an emergency more efficient, that it advances the rail
transportation policy (RTP) of 49 U.S.C. 10101 in several ways, and
that, by removing regulation in certain emergency situations, it
furthers the statutory directive in 49 U.S.C. 10502 that the Board
exempt rail carriers from regulation ``to the maximum extent''
consistent with the law. (Id. at 3-4.)
In addition, AAR argues that, contrary to the claims made by SMART/
TD-NY and the NTSB, the proposed exemption would not adversely impact
rail safety. (AAR Comments 10-12; AAR Reply 4-6.) AAR claims that the
exemption would not impact the application of FRA safety regulations,
including those that require an engineer to be properly
[[Page 68928]]
certified for joint operations and require that train crews be familiar
with the territory over which they operate. (AAR Comments 10-11; AAR
Reply 5-6.) AAR states that these requirements would not be waived or
otherwise affected if carriers were to obtain emergency temporary
trackage rights under the proposed exemption. (AAR Comments 11; AAR
Reply 6.)
ASLRRA supports the proposed rule and agrees with the Board's
findings that the proposed exemption is consistent with the
requirements of 49 U.S.C. 10502 and promotes the RTP by making the
process of obtaining trackage rights in emergency situations more
efficient and predictable. (ASLRRA Comments 2.)
Final Rule
After considering the comments and replies received in response to
the NPRM, the Board is adopting the rule proposed in the NPRM as a
final rule. Under 49 U.S.C. 10502, the Board is required, 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 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. As explained in the NPRM and further
below, the new emergency temporary trackage rights exemption would make
the process of obtaining trackage rights to restore service in an
emergency more efficient and predictable, thereby promoting the RTP by
providing for the expeditious handling and resolution of proceedings,
49 U.S.C. 10101(15); encouraging the efficient management of railroads,
49 U.S.C. 10101(9); and promoting the continuation of a sound rail
system, 49 U.S.C. 10101(4), and coordination between carriers, 49
U.S.C. 10101(5). (NPRM, EP 282 (Sub-No. 21), slip op. at 4.) In
addition, as explained in the NPRM, the new class exemption is limited
in scope, both in terms of the duration of the rights and the
circumstances in which the exemption would apply, and regulation is not
needed to protect shippers from an abuse of market power because the
temporary trackage rights would be for overhead operations only and
would benefit shippers by enhancing the ability of carriers to maintain
service in emergency situations. (Id.)
As noted above, AAR requests that the regulatory text in the final
rule include examples of the types of events that would constitute an
unforeseen track outage. The Board finds that the regulatory language
proposed in the NPRM is sufficiently clear without a list of examples
and therefore declines to make the change requested by AAR. However,
the Board clarifies here that several of the examples suggested by AAR
in its comments--natural disasters, severe weather events, flooding,
accidents, and washouts--are among the types of events contemplated by
the final rule. The Board notes, however, that a term like
``incident,'' which was also suggested by AAR, (AAR Comments 5), is too
broad to include as an example of an event that would constitute an
``unforeseen'' track outage since an incident is simply an event or
occurrence and not necessarily something unforeseen. Similarly,
``bridge or tunnel damage,'' another example suggested by AAR as an
``unforeseen'' track outage, is too broad, as it could encompass damage
that results from normal wear and tear and therefore is not unforeseen.
To the extent that an outage resulting from bridge and tunnel damage
would qualify for the new exemption, it would have to be caused by an
unforeseen event such as a natural disaster, a severe weather event,
etc.
AAR also asks that the Board clarify that if a carrier were to
obtain an exemption under 49 CFR 1180.2(d)(9), it would not be
precluded from later seeking an exemption under 49 CFR 1180.2(d)(8) in
the event that resolving the track outage takes longer than the maximum
six months allowed under the proposed 49 CFR 1180.2(d)(9). The Board
agrees that in situations where a carrier has obtained an emergency
temporary trackage rights exemption under 49 CFR 1180.2(d)(9) and the
track outage cannot be resolved in six months, the carrier should have
the option of seeking a temporary trackage rights exemption under 49
CFR 1180.2(d)(8). To preclude the use of exemptions under 49 CFR
1180.2(d)(8) in such situations would leave carriers without the
ability to obtain a potentially necessary trackage rights exemption
despite a continuing track outage.
The NTSB and SMART/TD-NY suggest that the emergency temporary
trackage rights exemption could adversely affect rail safety. The NTSB
and SMART/TD-NY argue that the reduction in time for carriers to obtain
emergency trackage rights authority might result in carriers beginning
operations before their engineers have had time to familiarize
themselves with territory over which they will be operating.\5\
However, while the new exemption will generally speed up the process
for authorizing trackage rights in an emergency, the Board notes that
the timing difference will be fairly minor, particularly given the
current practice regarding waiver petitions. Currently, when a carrier
files a verified notice of exemption under 49 CFR 1180.2(d)(8) combined
with a petition to waive the 30-day notice period under 49 CFR
1180.4(g)(1), the Board typically serves a notice and a decision
waiving the 30-day notice period within a few business days of the
carrier's filing of its verified notice.\6\ Under the new 49 CFR
1180.2(d)(9) process where exemptions will become effective upon the
Board's service of a notice, service of such a notice will be required
within five days of the verified notice's filing date, but the Board
anticipates that service will occur within one or two business days in
most cases.\7\ Accordingly, in practice, the time frames under each
approach are not drastically different.
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\5\ (See NTSB Comments 2 (``A 30-day notice provides time for
familiarization with the territory and regulations; a [five]-day
period may not provide such opportunity . . . .''); SMART/TD-NY
Reply 4-5, Aug. 11, 2021 (expressing support for NTSB's concern that
reducing the time between filing of a verified notice and the
effective date of the exemption to five days would adversely affect
safety).)
\6\ See, e.g., Union Pac. R.R., FD 36424 et al. (granting waiver
of 30-day notice period within two business days after carrier filed
verified notice of exemption); Ala. & Gulf Coast Ry., FD 36418
(granting waiver of 30-day notice period one day after carrier filed
verified notice of exemption); Norfolk S. Ry.--Temp. Trackage Rts.
Exemption--Kan. City S. Ry., FD 36359 (STB served Oct. 11, 2019)
(granting waiver of 30-day notice period within two business days
after carrier filed verified notice of exemption); Kan. City S.
Ry.--Temp. Trackage Rts. Exemption--Norfolk S. Ry., FD 36314 et al.
(STB served June 13, 2019) (granting waiver of 30-day notice period
within four business days after carrier filed verified notice of
exemption).
\7\ SMART/TD-NY claims it is ``inconceivable'' that the Board
will not serve notices on the same day it receives verified notices
under 49 CFR 1180.2(d)(9). (SMART/TD-NY Reply 5, Aug. 11, 2021.)
However, this argument ignores the time it takes for Board staff to
review the notice for compliance with applicable regulatory
requirements, draft and review a notice for service, and complete
the administrative processes involved with service and publication.
Regardless, as discussed elsewhere in this decision, the Board does
not consider the time between filing and service of a notice of
exemption a cause for concern.
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Furthermore, regardless of how quickly trackage rights exemptions
become effective, FRA safety regulations governing joint operations
determine whether a carrier can operate on another carrier's line using
only its own engineer or whether detour operations involving a pilot
engineer are required. See 49 CFR 240.229. The NTSB suggests that the
Board should add a requirement that parties include a verification that
safety hazards associated with
[[Page 68929]]
unfamiliarity with the detour territory are identified and managed and
that verified notices include a plan for addressing engineer
familiarity with the detour territory upon which they will be
operating. (NTSB Comments 2.) But the FRA, rather than the Board,
exercises primary authority over matters of rail safety,\8\ and because
the new emergency temporary trackage rights exemption does not waive or
nullify the application of FRA safety regulations governing these
topics, additional Board regulations imposing essentially the same
requirements would be unnecessarily duplicative.
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\8\ See, e.g., Ass'n of Am. R.R.--Pet. for Declaratory Ord., FD
36369, slip op. at 16 (STB served Dec. 30, 2020).
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The Board also finds unpersuasive SMART/TD-NY's argument that the
proposed rule should be rejected because emergency situations can be
dealt with efficiently enough using the current process of filing
notices of exemption under 49 CFR 1180.2(d)(8) combined with a petition
to waive the 30-day notice period under 49 CFR 1180.4(g)(1). Although
waiver petitions are generally not lengthy and are routinely granted,
it is nonetheless more efficient to eliminate the burden associated
with these petitions and the accompanying administrative processes.
Moreover, although the new emergency temporary trackage rights
exemption will not dramatically speed up the process for authorizing
trackage rights in an emergency, any time saved in an emergency
situation where service needs to be quickly restored is valuable.\9\ In
short, the Board does not agree with the assertion that creating a more
efficient and predictable process, and in turn providing benefits to
shippers, carriers, and the public, is unwarranted because trackage
rights operations can be authorized under the less efficient and
predictable existing regulations.\10\
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\9\ As explained in the NPRM, the emergency temporary trackage
rights exemption will also make the process more predictable for
carriers. Under the current process, the Board typically issues a
waiver decision within a few business days, but there is no
regulatory deadline requiring the Board to do so, and carriers
therefore cannot predict when a waiver decision will be issued.
Under the new emergency temporary trackage rights exemption,
carriers will know that the Board must issue a notice within five
days and will be able to plan accordingly.
\10\ SMART/TD-NY also argues that because detour arrangements
are voluntary and not regulated by the Board, the new exemption
would constitute an extension of rail regulation because it would be
used in lieu of detour operations. (SMART/TD-NY Comments 5.) The new
exemption does not represent an extension of rail regulation.
Rather, it reduces the regulatory burden on parties by providing a
more streamlined alternative for carriers to obtain an exemption
from the regulatory process for approval of temporary trackage
rights, and, for the reasons explained above, it should have little
to no effect on whether parties choose to use detour operations.
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SMART/TD-NY's opposition to the elimination of caption summaries
appears to be based on a misunderstanding of the role of caption
summaries. SMART/TD-NY's arguments suggest that it believes if parties
are not required to submit caption summaries for trackage rights
transactions that the Board will no longer publish notices of exemption
for these transactions in the Federal Register, (SMART/TD-NY Reply 12,
Aug. 11, 2021), but that is not the case. It is true that the purpose
of the caption summary requirement was to facilitate Federal Register
publication by providing the Board with a document that could be
published as the Board's notice.\11\ However, as explained in the NPRM,
caption summaries have not routinely been used for that purpose. NPRM,
EP 282 (Sub-No. 21), slip op. at 7. Rather than relying on parties for
caption summaries, the Board prepares its own notices for publication
in the Federal Register to ensure that they are accurate and contain
all relevant information. The requirement for parties to draft and
submit caption summaries has become unnecessary.\12\ The Board will
continue to draft and publish notices in the Federal Register for
trackage rights exemptions after the final rule becomes effective.
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\11\ 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).
\12\ As noted in the NPRM, the caption summary requirements will
be replaced by a requirement that the parties provide in their
verified notices the same information currently required in caption
summaries. NPRM, EP 282 (Sub-No. 21), slip op. at 7.
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For the foregoing reasons, the Board will adopt as a final rule the
amendments to 49 CFR part 1180 as proposed in the NPRM, without
modification.\13\ The text of the final rule is set forth below.
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\13\ The final rule's adoption without modification of the
proposed amendments to 49 CFR part 1180 includes those that affect
existing class exemptions. As discussed above, the NPRM proposed
requiring parties to provide certain information in the body of
their verified notices rather than in a separate caption summary and
proposed clarifying that 49 CFR 1180.4(g)(4)'s requirement to
provide certifications regarding interchange commitments does not
apply to trackage rights transactions.
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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. 601-604. In its final
rule, the agency must either include a final regulatory flexibility
analysis, 604(a), or certify that the proposed rule would not have a
``significant impact on a substantial number of small entities,''
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 impacts on small
entities 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).
In the NPRM, the Board certified that the proposed rule would not
have a significant economic impact on a substantial number of small
entities within the meaning of the RFA.\14\ The Board explained that
the proposed change is intended to make the process of obtaining Board
approval of temporary trackage agreements in emergency situations more
efficient and predictable and does not mandate the conduct of small
entities. 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 NPRM
explained that the proposed rule would provide 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 49 CFR 1180.4(g)(1). The
regulations would require the carrier utilizing the trackage
[[Page 68930]]
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 stated in the NPRM that it did 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 49 CFR
1180.4(g)(1). Accordingly, the Board concluded that the impact of the
proposed rule should slightly reduce the paperwork burden for small
entities. The Board also found that 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 certified under 5 U.S.C. 605(b)
that the proposed rule would not have a significant economic impact on
a substantial number of small entities within the meaning of the RFA.
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\14\ 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). Class III carriers have
annual operating revenues of $40.4 million or less in 2019 dollars.
Class II rail carriers have annual operating revenues of less than
$900 million in 2019 dollars. 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 July 12, 2021). As
the Railroad Price Index remained the same from 2019 to 2020, there
was no adjustment to the thresholds for 2020. Indexing the Annual
Operating Revenues of R.Rs., EP 748, slip op. at 2 n.2.
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The Board is adopting as a final rule the amendments to 49 CFR part
1180 as proposed in the NPRM, without modification. Therefore, the
Board certifies under 5 U.S.C. 605(b) that the final rule will not have
a significant economic impact on a substantial number of small entities
within the meaning of the RFA.\15\ 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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\15\ As noted above, the final rule adopts the proposals to
require parties to file certain information in the body of their
verified notices rather than in a separate caption summary and to
clarify that 49 CFR 1180.4(g)(4) does not apply to trackage rights
transactions. Requiring parties to provide certain information in
verified notices rather than in caption summaries and clarifying
that certifications regarding interchange commitments are not
required for trackage rights transactions will not increase the
economic impact on parties. Therefore, these requirements do not
alter the conclusion that the final rule will not have a significant
economic impact on a substantial number of small entities within the
meaning of the RFA.
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Paperwork Reduction Act
In this proceeding, the Board is modifying an existing collection
of information that is currently approved by the Office of Management
and Budget (OMB) through November 30, 2023, under the collection of
Statutory Licensing Authority (OMB Control Number: 2140-0023). In the
NPRM, the Board sought comments pursuant to the Paperwork Reduction Act
(PRA), 44 U.S.C. 3501-3521, and OMB regulations, 5 CFR 1320.8(d)(3),
regarding: (1) Whether the collection of information, as modified in
the proposed rule and further described in the Appendix to the NPRM, 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. No comments
were received pertaining to the collection of this information under
the PRA.
This modification to an existing collection will be submitted to
OMB for review as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR
1320.11.
Congressional Review Act
Pursuant to the Congressional Review Act, 5 U.S.C. 801-808, the
Office of Information and Regulatory Affairs has designated this rule
as non-major, as defined by 5 U.S.C. 804(2).
List of Subjects in 49 CFR Part 1180
Administrative practice and procedure, Railroads, Reporting and
recordkeeping requirements.
It is ordered:
1. The Board adopts the final rule set forth in this decision.
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 December 30, 2021.
Decided: November 28, 2021.
By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and
Schultz.
Raina White,
Clearance Clerk.
Code of Federal Regulations
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):
0
i. Remove ``(i)'', ``(ii)'', ``(iii)'', and ``(iv)'' and add in their
place ``{i{time} '', ``{ii{time} '', ``{iii{time} '', and
``{iv{time} '', respectively;
0
ii. 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
0
iii. Remove the words ``these rules'' and add in their place the words
``this paragraph (d)(8)''; and
0
c. Add paragraph (d)(9).
The revision and addition read as follows:
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) of this section.
* * *
* * * * *
(9) Acquisition of emergency temporary trackage rights by a rail
carrier over lines owned or operated by any other rail carrier or
carriers that are: {i{time} Based on written agreements, {ii{time}
not filed or sought in responsive applications in rail consolidation
proceedings, {iii{time} for overhead operations only, {iv{time}
scheduled to expire on a specific date not to exceed three months from
the effective date of the exemption, and {v{time} 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. 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
[[Page 68931]]
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);
and
0
d. Amend newly redesignated paragraph (g)(3) by removing the subject
heading and revising the first sentence of paragraph (g)(3)(i).
The revisions read as follows:
Sec. 1180.4 Procedures.
* * * * *
(g) * * *
(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) through (iii), (a)(5) and
(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 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. Sec. 1180.2(d)(7),
1180.2(d)(8), or 1180.2(d)(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''). * * *
* * * * *
[FR Doc. 2021-26239 Filed 12-3-21; 8:45 am]
BILLING CODE 4915-01-P
</pre></body>
</html>Indexed from Federal Register on December 6, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.