Quiero saber acerca de...

Federal Register / Vol. 86, No. 231 / Monday, December 6, 2021 / Rules and Regulations commitments,1 would not apply to transactions under the proposed new 49
CFR 1180.2d9 or to trackage rights transactions under 49 CFR 1180.2d7
or 49 CFR 1180.2d8, 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.
Comments on the NPRM

khammond on DSKJM1Z7X2PROD with RULES

In response to the NPRM, the Board received comments from the National Transportation Safety Board NTSB on July 9, 2021, and from AAR, SMART/
TDNY, and the American Short Line and Regional Railroad Association ASLRRA on July 11, 2021. AAR and SMART/TDNY 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/TDNY argues that the proposed exemption would adversely affect rail safety and reduce work opportunities for rail employees.
SMART/TDNY Comments 67;
SMART/TDNY Reply 45, 7, 10, Aug.
11, 2021. SMART/TDNY claims that currently, in emergency situations, rail carriers seek an exemption under 49
CFR 1180.2d8 and file a petition for a waiver of the 30-day period under 49
1 49 CFR 1180.4g4 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.

VerDate Sep<11>2014

15:44 Dec 03, 2021

Jkt 256001

CFR 1180.4g1 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/TDNY
Reply 3, Aug. 11, 2021. In contrast, according to SMART/TDNY, 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/TDNY 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, it is inconceivable the Board would wait even one day, much less than five days. Id. at 5. Therefore, according to SMART/TDNY, 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/TDNY Comments 6; SMART/
TDNY Reply 45, 7, Aug. 11, 2021.
SMART/TDNY 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/TDNY Comments 45; SMART/TDNY Reply 67, Aug.
11, 2021. SMART/TDNY 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/TDNY
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/TDNY, these facts demonstrate that the claimed 2 SMART/TDNY 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/TDNY 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 selfregulation for emergency temporary trackage operations through detour arrangements. SMART/
TDNY Comments 5.

PO 00000

Frm 00053

Fmt 4700

Sfmt 4700

68927

serious inefficiency of the current process is a hoax. Id. at 6.
SMART/TDNY opposes the Boards proposal not to require a caption summary in verified notices of exemption filed under 49 CFR
1180.2d9 and to eliminate the caption summary requirement for notices filed under 49 CFR 1180.2d7
and d8. SMART/TDNY Reply 11
12, Aug. 11, 2021. SMART/TDNY
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 1180.2d9 and that the Board should clarify that pursuing an exemption under proposed 49 CFR
1180.2d9 would not preclude a subsequent exemption under 49 CFR
1180.2d8 if the circumstances of the unforeseen event require more than six months to restore the outage.4 AAR
Comments 56.
Responding to the arguments made by SMART/TDNY, AAR also argues that the proposed exemptionwhich would remove regulatory requirements in limited circumstancesis warranted because the existing exemption and waiver process is inefficient. AAR
Reply 24. 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 34.
In addition, AAR argues that, contrary to the claims made by SMART/TDNY
and the NTSB, the proposed exemption would not adversely impact rail safety.
AAR Comments 1012; 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 4 SMART/TDNY argues that AARs proposal to allow carriers to utilize the temporary trackage rights exemption under 49 CFR 1180.2d8 after obtaining emergency temporary trackage rights under 49 CFR 1180.2d9 demonstrates that the existing temporary trackage rights exemption is sufficient. SMART/TDNY Reply 11, Aug. 11, 2021.

E:FRFM06DER1.SGM

06DER1