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Federal Register / Vol. 86, No. 107 / Monday, June 7, 2021 / Proposed Rules
khammond on DSKJM1Z7X2PROD with PROPOSALS

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 45, nn.17, 18, 20 STB served Nov. 1, 2012
citing Jackson & Lansing R.R.
Trackage Rts. ExemptionNorfolk S.
Ry., FD 35418 et al. STB served Sept.
27, 2011.8
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 46
STB served Nov 1, 2012. Further, the Board has generally interpreted this requirement as not applying to trackage rights agreements under 1180.2d7 9
or 1180.2d8.10
Therefore, the Board proposes to clarify that 1180.4g4 would not apply to transactions under the proposed new 1180.2d9. In addition, the Board proposes to clarify that 1180.4g4 also does not apply to trackage rights transactions under 1180.2d7 or 1180.2d8, 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. 601612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial 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.
9 See, e.g., Grand Trunk W. R.R.Trackage Rts.
ExemptionNorfolk S. Ry., FD 36267 STB served May 16, 2019; Ind. Rail RoadTrackage Rts.
ExemptionCSX Transp., Inc., FD 36068 STB
served Oct. 14, 2016; Ind. Rail RoadAmended Trackage Rts. ExemptionCSX Transp., Inc., FD
35283 Sub-No. 1 STB served Apr. 28, 2017.
10 See, e.g., Ala. & Gulf Coast Ry.Temp.
Trackage Rts. ExemptionKan. Cty. S. Ry., FD
36418; Union Pac. R.R.Temp. Trackage Rts.
ExemptionKan. Cty. S. Ry., FD 36135 STB served July 26, 2017; Allegheny Valley R.R.Temp.
Trackage Rts. ExemptionNorfolk S. Ry., FD 36015
STB served May 6, 2016.

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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 regulations impact; and 3 make the analysis available for public comment.
Sections 601604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, section 603a, or certify that the proposed rule would not have a significant impact on a substantial number of small entities, section 605b. 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 Boards 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 Boards jurisdiction, the Board defines a small business as only including those rail carriers classified as Class III rail carriers under 49 CFR 1201.11. 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 1180.4g1. 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 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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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 1180.4g1. 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 preoutage levels. Therefore, the Board certifies under 5 U.S.C. 605b 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.
Paperwork Reduction Act. Pursuant to the Paperwork Reduction Act PRA, 44
U.S.C. 35013521, Office of Management and Budget OMB
regulations at 5 CFR 1320.8d3, 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: 21400023, 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 Boards 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
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