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Federal Register / Vol. 86, No. 107 / Monday, June 7, 2021 / Proposed Rules TABLE 2WASTES EXCLUDED FROM SPECIFIC SOURCESContinued Facility

Address

FR Doc. 202111341 Filed 6421; 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.
ACTION: Notice of proposed rulemaking.
AGENCY:

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 Boards website at www.stb.gov.
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: 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 30day 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.
SUMMARY:

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On February 5, 2020, after considering the petition and reply, the Board granted AARs 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 AARs 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. 11323a6, 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.
11324d, 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 Boards jurisdiction; rather, it is a means by which a carrier may obtain Board authorization without
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going through the otherwise-applicable full licensing process.1
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 SubNo. 20 STB served May 23, 2003, modified STB served May 17, 2004.
Under 49 CFR 1180.4g1, exemptions sought under 1180.2d8 and various other class exemptions under 1180.2d 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.
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 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.
AARs Requested Exemption. AAR
asks the Board to initiate a rulemaking to create a new emergency temporary trackage rights class exemption. Under AARs request, the 30-day notice requirement under 49 CFR 1180.4g1
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 partys filing of a verified notice of exemption. Pet., App. A at 1180.2d9, 1180.4g5ii. As requested by AAR, the temporary trackage rights could be requested for a 1 Exemptions may be revoked, in whole or in part, pursuant to 49 U.S.C. 10502d.

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