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Federal Register / Vol. 86, No. 107 / Monday, June 7, 2021 / Proposed Rules
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A at 1180.2d9. The Board finds that further clarification is needed to ensure that use of the class exemption would be restricted so that it applies only to emergency situations and not to situations where routine temporary trackage rights authority was not sought in a timely manner. Specifically, the Board proposes to require that the new exemption be available only for unforeseen track outages expected to last more than seven days and there is no reasonable alternative to maintain pre-outage levels of service. Examples of emergency situations that result in such unforeseen track outages include, but are not limited to, natural disasters and accidents or derailments. This clarification appears consistent with AARs intent. Pet. 13, 9 describing the need for the exemption in cases of unpredictable or unexpected events such as accidents or natural disasters.
The Board also proposes a requirement that, when railroads certify that trackage rights are needed for an unforeseen track outage, the verified notice should provide a description of the situation that includes, to the extent possible, the following information:
1. The nature of the event that caused the unforeseen outage;
2. The location of the outage;
3. The date that the emergency situation occurred;
4. The date the track outage was discovered; and 5. The expected duration of the outage.
Duration of the exemption. AAR
requests that the temporary trackage rights would be approved for an initial period of no longer than six months, with the option to request a renewal for an additional six months. The Boards proposal limits 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. A review of recent cases in which the Board waived the 30-day notice requirement for temporary trackage rights in emergency situations suggests that trackage rights would rarely be needed for a period longer than three months.3
3 See, e.g., Union Pac. R.R., FD 36424, slip op. at 2 granting waiver of 30-day notice period for trackage rights agreement with a term of a little over one month; Ala. & Gulf Coast Ry, FD 36418, slip op. at 1 n.3 granting waiver of 30-day notice period for trackage rights agreement with a term of just less than two months; Norfolk Southern Railway Company Petition for Waiver 3, Norfolk S. Ry.
Temp. Trackage Rts. ExemptionKan. City S. Ry., FD 36359 railroad anticipates that need for trackage rights operations would last for several weeks or months; Kan. City S. Ry.Temp.
Trackage Rts. ExemptionNorfolk S. Ry., FD 36314
et al., slip op. at 12 STB served June 13, 2019

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Certification every 30 days. AARs request would require a rail carrier to certify every 30 days that the track outage continues to exist and that the temporary trackage rights continue to be necessary to maintain service. However, the Boards proposal would not require such certifications. Rather, the Board would only require that the carrier 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, should the track outage be resolved and use of the trackage rights become unnecessary prior to the expiration of the exemption period. Any such notice should be filed within 5 business days of the date on which use of the trackage rights ceased. The Board finds that the reduction of the exemption period from six months to three months, combined with the requirement for parties to inform the Board if use of trackage rights has ceased prior to when the exemption period would have otherwise expired renders the 30-day certifications affirming the continued need for the trackage rights unnecessary.
Effective date of the exemption. AAR
requests that exemptions under the new provision become effective immediately upon publication of the Boards notice in the Federal Register, which would be required within five days after a verified notice of exemption is filed. However, due to requirements of the Federal Register publication process that are outside the Boards control, publication within five days may not be possible in certain situations. For that reason, the Board proposes that 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 of filing of the railroads verified notice of exemption.4 The Boards notice would be published in the Federal Register concurrently with service if possible, or as soon thereafter as practicable.
Caption summary. Under AARs request, parties seeking an exemption providing notice of exemption for trackage rights agreement with a term of less than three months;
Terminal Railway Alabama State Docks Verified Notice of Exemption at 2, Apr. 27, 2018, Terminal Ry. Ala. State DocksTemp. Trackage Rts.
ExemptionNorfolk S. Ry., FD 36190 seeking exemption for trackage rights agreement with a term of six months but stating that trackage rights likely only needed for approximately one month.
4 Under 1180.4g, stay petitions for notices filed under 1180.2d must be filed at least 7 days before the exemption becomes effective. The Board proposes to specify that, for notices filed under 1180.2d9, stay petitions be filed as soon as possible before the exemption becomes effective.
Under 49 U.S.C. 10502d, petitions to revoke the exemption can be filed at any time.

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under the new 1180.2d9 would include in its verified notice a caption summary suitable for publication in the Federal Register containing certain information regarding the proposed transaction.5 This requirement mirrors the requirement of a caption summary for exemptions sought under 1180.2d7 and d8. Originally, the purpose of this requirement was to facilitate Federal Register publication by providing the Board with a document that could be published as the Boards notice.6 However, in practice, caption summaries have not routinely been used for that purpose. Accordingly, the Board proposes not to require a caption summary for exemptions under 1180.2d9 and to eliminate the existing caption summary requirements for exemptions under 1180.2d7 and 1180.2d8. Pursuant to the Boards proposal, the caption summary requirements would be replaced by a requirement that the parties provide in their notices the same information currently required in caption summaries.
Certification regarding interchange commitments. Under 1180.4g4, 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. On its face, this provision could be read to require such a certification in connection with the emergency temporary trackage rights exemption proposed here.7
The Board adopted the interchange commitment certification requirement in Information Required in Notices &
5 AAR requests to include the caption summary and other requirements under new 1180.4g5.
Many of the requirements in new proposed 1180.4g5 are duplicative of requirements already contained in 1180.4g1, which is applicable to all exemptions under 1180.2d, including the new proposed 1180.2d9. Rather than proposing a new 1180.4g5, as suggested by AAR, the Board proposes to incorporate the requirements of this into the existing 1180.4g1 to the extent they are not already contained therein.
6 The caption summary regulations originally indicated that caption summaries themselves would be published in the Federal Register. R.R.
Consolidation Procs.Exemption for Temp.
Trackage Rts., EP 282 Sub-No. 20, slip op. at 9
STB served May 23, 2003; R.R. Consolidation Procs.Trackage Rts. Exemption, 1 I.C.C. 270, 283
1985. See also 49 CFR 1180.4g2i and ii requiring caption summaries to be suitable for publication in the Federal Register.
7 AARs request does not address the issue of certification of interchange commitments.

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