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Federal Register / Vol. 86, No. 231 / Monday, December 6, 2021 / Rules and Regulations
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certified for joint operations and require that train crews be familiar with the territory over which they operate. AAR
Comments 1011; AAR Reply 56.
AAR states that these requirements would not be waived or otherwise affected if carriers were to obtain emergency temporary trackage rights under the proposed exemption. AAR
Comments 11; AAR Reply 6.
ASLRRA supports the proposed rule and agrees with the Boards findings that the proposed exemption is consistent with the requirements of 49
U.S.C. 10502 and promotes the RTP by making the process of obtaining trackage rights in emergency situations more efficient and predictable. ASLRRA
Comments 2.
Final Rule After considering the comments and replies received in response to the NPRM, the Board is adopting the rule proposed in the NPRM as a final rule.
Under 49 U.S.C. 10502, the Board is required, 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 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. As explained in the NPRM and further below, the new emergency temporary trackage rights exemption would make the process of obtaining trackage rights to restore service in an emergency more efficient and predictable, thereby promoting the RTP by providing for the expeditious handling and resolution of proceedings, 49 U.S.C. 1010115; encouraging the efficient management of railroads, 49
U.S.C. 101019; and promoting the continuation of a sound rail system, 49
U.S.C. 101014, and coordination between carriers, 49 U.S.C. 101015.
NPRM, EP 282 Sub-No. 21, slip op. at 4. In addition, as explained in the NPRM, the new class exemption is limited in scope, both in terms of the duration of the rights and the circumstances in which the exemption would apply, and regulation is not needed to protect shippers from an abuse of market power because the temporary trackage rights would be for overhead operations only and would benefit shippers by enhancing the ability of carriers to maintain service in emergency situations. Id.
As noted above, AAR requests that the regulatory text in the final rule include examples of the types of events that would constitute an unforeseen track
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outage. The Board finds that the regulatory language proposed in the NPRM is sufficiently clear without a list of examples and therefore declines to make the change requested by AAR.
However, the Board clarifies here that several of the examples suggested by AAR in its commentsnatural disasters, severe weather events, flooding, accidents, and washoutsare among the types of events contemplated by the final rule. The Board notes, however, that a term like incident, which was also suggested by AAR, AAR
Comments 5, is too broad to include as an example of an event that would constitute an unforeseen track outage since an incident is simply an event or occurrence and not necessarily something unforeseen. Similarly, bridge or tunnel damage, another example suggested by AAR as an unforeseen track outage, is too broad, as it could encompass damage that results from normal wear and tear and therefore is not unforeseen. To the extent that an outage resulting from bridge and tunnel damage would qualify for the new exemption, it would have to be caused by an unforeseen event such as a natural disaster, a severe weather event, etc.
AAR also asks that the Board clarify that if a carrier were to obtain an exemption under 49 CFR 1180.2d9, it would not be precluded from later seeking an exemption under 49 CFR
1180.2d8 in the event that resolving the track outage takes longer than the maximum six months allowed under the proposed 49 CFR 1180.2d9. The Board agrees that in situations where a carrier has obtained an emergency temporary trackage rights exemption under 49 CFR 1180.2d9 and the track outage cannot be resolved in six months, the carrier should have the option of seeking a temporary trackage rights exemption under 49 CFR
1180.2d8. To preclude the use of exemptions under 49 CFR 1180.2d8
in such situations would leave carriers without the ability to obtain a potentially necessary trackage rights exemption despite a continuing track outage.
The NTSB and SMART/TDNY
suggest that the emergency temporary trackage rights exemption could adversely affect rail safety. The NTSB
and SMART/TDNY argue that the reduction in time for carriers to obtain emergency trackage rights authority might result in carriers beginning operations before their engineers have had time to familiarize themselves with territory over which they will be
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operating.5 However, while the new exemption will generally speed up the process for authorizing trackage rights in an emergency, the Board notes that the timing difference will be fairly minor, particularly given the current practice regarding waiver petitions.
Currently, when a carrier files a verified notice of exemption under 49 CFR
1180.2d8 combined with a petition to waive the 30-day notice period under 49
CFR 1180.4g1, the Board typically serves a notice and a decision waiving the 30-day notice period within a few business days of the carriers filing of its verified notice.6 Under the new 49 CFR
1180.2d9 process where exemptions will become effective upon the Boards service of a notice, service of such a notice will be required within five days of the verified notices filing date, but the Board anticipates that service will occur within one or two business days in most cases.7 Accordingly, in practice, the time frames under each approach are not drastically different.
Furthermore, regardless of how quickly trackage rights exemptions become effective, FRA safety regulations governing joint operations determine whether a carrier can operate on another carriers line using only its own engineer or whether detour operations involving a pilot engineer are required.
See 49 CFR 240.229. The NTSB suggests that the Board should add a requirement that parties include a verification that safety hazards associated with 5 See NTSB Comments 2 A 30-day notice provides time for familiarization with the territory and regulations; a five-day period may not provide such opportunity . . . .; SMART/TDNY Reply 45, Aug. 11, 2021 expressing support for NTSBs concern that reducing the time between filing of a verified notice and the effective date of the exemption to five days would adversely affect safety.
6 See, e.g., Union Pac. R.R., FD 36424 et al.
granting waiver of 30-day notice period within two business days after carrier filed verified notice of exemption; Ala. & Gulf Coast Ry., FD 36418
granting waiver of 30-day notice period one day after carrier filed verified notice of exemption;
Norfolk S. Ry.Temp. Trackage Rts. Exemption Kan. City S. Ry., FD 36359 STB served Oct. 11, 2019 granting waiver of 30-day notice period within two business days after carrier filed verified notice of exemption; Kan. City S. Ry.Temp.
Trackage Rts. ExemptionNorfolk S. Ry., FD 36314
et al. STB served June 13, 2019 granting waiver of 30-day notice period within four business days after carrier filed verified notice of exemption.
7 SMART/TDNY claims it is inconceivable that the Board will not serve notices on the same day it receives verified notices under 49 CFR
1180.2d9. SMART/TDNY Reply 5, Aug. 11, 2021. However, this argument ignores the time it takes for Board staff to review the notice for compliance with applicable regulatory requirements, draft and review a notice for service, and complete the administrative processes involved with service and publication. Regardless, as discussed elsewhere in this decision, the Board does not consider the time between filing and service of a notice of exemption a cause for concern.

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