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Federal Register / Vol. 86, No. 231 / Monday, December 6, 2021 / Rules and Regulations
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bd Reserved FR Doc. 202126369 Filed 12321; 8:45 am BILLING CODE 656050P

SURFACE TRANSPORTATION BOARD
49 CFR Part 1180
Docket No. EP 282 Sub-No. 21

Petition for RulemakingRailroad Consolidation ProceduresExemption for Emergency Temporary Trackage Rights Surface Transportation Board.
Final rule.

AGENCY:
ACTION:

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 2450376.
Assistance for the hearing impaired is available through the Federal Relay Service at 800 8778339.
SUPPLEMENTARY INFORMATION: In 2003, the Board adopted a class exemption at 49 CFR 1180.2d8 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 1180.4g1, exemptions sought under 49 CFR 1180.2d8 and various other class exemptions under 49
CFR 1180.2d 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
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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.
ExemptionBNSF 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
1180.2d8 and setting effective date;
Ala. & Gulf Coast Ry.Temp. Trackage Rts. ExemptionKan. 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
1180.2d9 for emergency temporary trackage rights that eliminates the 30day 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 1180.4g1. On November 4, 2020, Samuel J. Nasca, for and on behalf of SMART-Transportation Division-New York State Legislative Board SMART/
TDNY, filed a reply in opposition to AARs petition. SMART/TDNY argued that the Board should decline to institute a rulemaking proceeding because AARs 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/TDNY Reply 34, 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 RulemakingR.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/TDNYs 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
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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 SubNo. 21, slip op. at 4.
As explained in the NPRM, the proposed rule differed in some respects from AARs 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 Boards notice, which would occur within five days after the railroads verified notice of exemption is filed. Id.
at 6. The Boards 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 1180.2d9 and to eliminate the existing caption summary requirements for exemptions under 49 CFR
1180.2d7 and 49 CFR 1180.2d8.
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 Boards regulation at 49 CFR
1180.4g4, pertaining to interchange
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