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Federal Register / Vol. 86, No. 107 / Monday, June 7, 2021 / Proposed Rules
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period of no more than six months;
however, the requestor could, prior to expiration of that period, seek a renewal for up to six additional months. Id. at App. A at 1180.2d9.
Under AARs request, to qualify for the new exemption, a rail carrier would be required to provide certain information regarding the transaction that is required for other notices of exemption under 49 CFR part 1180 and the trackage rights would have to be: 1
Based on written agreements; 2 not filed or sought in responsive applications in rail consolidation proceedings; 3 for overhead operations only; and 4 as certified by the rail carrier, sought in response to a track outage expected to last more than seven days and where there is no reasonable alternative for maintaining pre-outage service levels. See id., App. A at 1180.2d9, 1180.4g5i. Every 30 days during the initial exemption period, the rail carrier would be required to recertify to the Board that the outage continues to exist and the temporary trackage rights continue to be necessary to maintain service. Id., App.
A at 1180.2d9. AAR further requests that, as under the existing class exemption for temporary trackage rights, rail carriers availing themselves of the proposed class exemption would not need to file for discontinuance authority at the end of the authorized period, Id., App. A at 1180.2d9, and would be subject to applicable statutory labor protective conditions.2
AAR argues that the current two-step approach for obtaining temporary trackage rights without having to wait 30 days for them to become effective is inefficient, and asserts that its proposed class exemption would benefit shippers, railroads, and the Board by providing a streamlined and simple approach for obtaining temporary trackage rights in emergency situations, ensuring the continued flow of commerce without any decrease in regulatory oversight.
Pet. 14.
As noted above, on November 4, 2020, SMART/TDNY filed comments opposing AARs petition. SMART/TD
NY argues that the Board should deny AARs petition and decline to institute 2 Specifically, the grant of the trackage rights would be subject to the employee protective conditions in Norfolk & Western Railway Trackage RightsBurlington Northern, 354 I.C.C.
605 1978, as modified by Mendocino Coast RailwayLease & OperateCalifornia Western Railroad, 360 I.C.C. 653 1980, and the discontinuance of operations would be subject to the employee protective conditions in Oregon Short Line RailroadAbandonment Portion Goshen Branch Between Firth & Ammon, in Bingham &
Bonneville Counties, Idaho, 360 I.C.C. 91 1979.
Pet. 45.

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a rulemaking proceeding because an emergency temporary trackage rights exemption is unwarranted given the existing trackage rights exemptions and because the proposed exemption would threaten rail safety. SMART/TDNY
Reply 34. SMART/TDNY states that detour arrangements in the railroad industry provide for pilot employees from the landlord carrier to provide guidance for the tenant carriers operation in emergency situations. Id.
at 4. According to SMART/TDNY, the proposed exemption would allow for the immediate cessation of detour operations or even the avoidance of detour operations altogether and thereby allow operation solely by tenant carrier personnel unfamiliar with the line over which the trackage rights have been granted. Id.
The Statutory Exemption Criteria As noted above, 49 U.S.C. 10502
directs the Board 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; 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 agrees that the current process for obtaining temporary trackage rights in emergency situations can be inefficient, and notes that petitions for waiver of the 30-day notice requirement are routinely granted. See, e.g., Union Pac. R.R., FD 36424 et al., slip op. at 2
granting a waiver of the 30-day notice period; Ala. & Gulf Coast Ry., FD
36418, slip op. at 2 same. A class exemption for emergency temporary trackage rights, as proposed below, would meet the requirements of section 10502 and would advance the RTP in several ways. It would provide for the expeditious handling and resolution of proceedings, 49 U.S.C. 1010115, and encourage the efficient management of railroads, 49 U.S.C. 101019, by making the process of obtaining temporary trackage rights in emergencies more efficient by eliminating the need for a waiver of the 30-day notice period under 49 CFR 1180.4g1 and more predictable by requiring the Board to act within a set number of days. It would also promote the continuation of a sound rail system, 49 U.S.C. 101014, and coordination between carriers, 49
U.S.C. 101015, by facilitating the process of line repair and approval of trackage rights agreements.
The class exemption proposed in this decision is limited in scope, in terms of both the duration of the rights and the circumstances in which the exemption
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would apply. Indeed, the proposed exemption is a more limited formin terms of both duration and circumstancesof the existing temporary trackage rights exemption, which the Board in 2003 found to be of limited scope. See R.R. Consolidation Procs.Exemption for Temp. Trackage Rts., 6 S.T.B. 910, 913 n.8 2003.
Regulation is not needed to protect shippers from an abuse of market power. The proposed class exemption would not reduce competition because the temporary trackage rights would be for overhead operations only, and therefore the competitive status quo would not be altered with respect to service to shippers on the affected lines.
In addition, the exemption would benefit shippers by enhancing the ability of carriers to maintain service in emergency situations.
SMART/TDNYs arguments in opposition to the proceeding here are unpersuasive. The proposed class exemption is warranted because it would make the process of obtaining temporary trackage rights in an emergency more efficient and predictable. Moreover, based on the record to date, the Board does not see merit in SMART/TDNYs claim that the proposed class exemption would threaten rail safety. This proposal would not alter or impact the existing rail safety operating regulations administered by the Federal Railroad Administration, which is the Federal agency with primary responsibility over rail safety matters. See, e.g., 49 CFR
240.229 prohibiting a carrier in control of operations on a line from allowing an engineer of a foreign carrier to operate a train on that line without a pilot engineer from the controlling carrier unless the engineer of the foreign carrier has the necessary knowledge of the controlling carriers operating rules and the necessary familiarity with the physical characteristics of the line.
The Proposed Class Exemption For the reasons discussed above, and as set forth below, the Board proposes to establish a new class exemption for emergency temporary trackage rights. As explained further below, the Boards proposed rule differs in various respects from AARs request and includes certain related changes to the existing class exemptions for trackage rights and temporary trackage rights.
Circumstances in which the proposed rule would apply. AARs requested new class exemption would apply where there is a track outage that is expected to last more than seven days and there is no reasonable alternative to maintain pre-outage levels of service. Pet., App.

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