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Federal Register / Vol. 86, No. 231 / Monday, December 6, 2021 / Rules and Regulations unfamiliarity with the detour territory are identified and managed and that verified notices include a plan for addressing engineer familiarity with the detour territory upon which they will be operating. NTSB Comments 2. But the FRA, rather than the Board, exercises primary authority over matters of rail safety,8 and because the new emergency temporary trackage rights exemption does not waive or nullify the application of FRA safety regulations governing these topics, additional Board regulations imposing essentially the same requirements would be unnecessarily duplicative.
The Board also finds unpersuasive SMART/TDNYs argument that the proposed rule should be rejected because emergency situations can be dealt with efficiently enough using the current process of filing notices of exemption under 49 CFR 1180.2d8
combined with a petition to waive the 30-day notice period under 49 CFR
1180.4g1. Although waiver petitions are generally not lengthy and are routinely granted, it is nonetheless more efficient to eliminate the burden associated with these petitions and the accompanying administrative processes.
Moreover, although the new emergency temporary trackage rights exemption will not dramatically speed up the process for authorizing trackage rights in an emergency, any time saved in an emergency situation where service needs to be quickly restored is valuable.9 In short, the Board does not agree with the assertion that creating a more efficient and predictable process, and in turn providing benefits to shippers, carriers, and the public, is unwarranted because trackage rights operations can be authorized under the less efficient and predictable existing regulations.10

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8 See,
e.g., Assn of Am. R.R.Pet. for Declaratory Ord., FD 36369, slip op. at 16 STB served Dec. 30, 2020.
9 As explained in the NPRM, the emergency temporary trackage rights exemption will also make the process more predictable for carriers. Under the current process, the Board typically issues a waiver decision within a few business days, but there is no regulatory deadline requiring the Board to do so, and carriers therefore cannot predict when a waiver decision will be issued. Under the new emergency temporary trackage rights exemption, carriers will know that the Board must issue a notice within five days and will be able to plan accordingly.
10 SMART/TDNY also argues that because detour arrangements are voluntary and not regulated by the Board, the new exemption would constitute an extension of rail regulation because it would be used in lieu of detour operations.
SMART/TDNY Comments 5. The new exemption does not represent an extension of rail regulation.
Rather, it reduces the regulatory burden on parties by providing a more streamlined alternative for carriers to obtain an exemption from the regulatory process for approval of temporary trackage rights,
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SMART/TDNYs opposition to the elimination of caption summaries appears to be based on a misunderstanding of the role of caption summaries. SMART/TDNYs arguments suggest that it believes if parties are not required to submit caption summaries for trackage rights transactions that the Board will no longer publish notices of exemption for these transactions in the Federal Register, SMART/TDNY Reply 12, Aug. 11, 2021, but that is not the case.
It is true that the purpose of the caption summary requirement was to facilitate Federal Register publication by providing the Board with a document that could be published as the Boards notice.11 However, as explained in the NPRM, caption summaries have not routinely been used for that purpose.
NPRM, EP 282 Sub-No. 21, slip op. at 7. Rather than relying on parties for caption summaries, the Board prepares its own notices for publication in the Federal Register to ensure that they are accurate and contain all relevant information. The requirement for parties to draft and submit caption summaries has become unnecessary.12 The Board will continue to draft and publish notices in the Federal Register for trackage rights exemptions after the final rule becomes effective.
For the foregoing reasons, the Board will adopt as a final rule the amendments to 49 CFR part 1180 as proposed in the NPRM, without modification.13 The text of the final rule is set forth below.
Regulatory Flexibility Act The Regulatory Flexibility Act of 1980
RFA, 5 U.S.C. 601612, generally requires a description and analysis of new rules that would have a significant and, for the reasons explained above, it should have little to no effect on whether parties choose to use detour operations.
11 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.
12 As noted in the NPRM, the caption summary requirements will be replaced by a requirement that the parties provide in their verified notices the same information currently required in caption summaries. NPRM, EP 282 Sub-No. 21, slip op. at 7.
13 The final rules adoption without modification of the proposed amendments to 49 CFR part 1180
includes those that affect existing class exemptions.
As discussed above, the NPRM proposed requiring parties to provide certain information in the body of their verified notices rather than in a separate caption summary and proposed clarifying that 49
CFR 1180.4g4s requirement to provide certifications regarding interchange commitments does not apply to trackage rights transactions.

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economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: 1 Assess the effect that its regulation will have on small entities; 2 analyze effective alternatives that may minimize a regulations impact; and 3 make the analysis available for public comment.
601604. In its final rule, the agency must either include a final regulatory flexibility analysis, 604a, or certify that the proposed rule would not have a significant impact on a substantial number of small entities, 605b.
Because the goal of the RFA is to reduce the cost to small entities of complying with federal regulations, the RFA
requires an agency to perform a regulatory flexibility analysis of impacts on small entities only when a rule directly regulates those entities. In other words, the impact must be a direct impact on small entities whose conduct is circumscribed or mandated by the proposed rule. White Eagle Coop.
v. Conner, 553 F.3d 467, 480 7th Cir.
2009.
In the NPRM, the Board certified that the proposed rule would not have a significant economic impact on a substantial number of small entities within the meaning of the RFA.14 The Board explained that the proposed change is intended to make the process of obtaining Board approval of temporary trackage agreements in emergency situations more efficient and predictable and does not mandate the conduct of small entities. Currently, if small entities wish to receive temporary trackage rights in emergency situations, they must file for a notice of exemption in addition to filing a petition for waiver. The NPRM explained that the proposed rule would provide a more expedited procedural mechanism for carriers to quickly obtain approval for trackage rights in emergency situations without having to obtain a waiver of the 30-day notice period under 49 CFR
1180.4g1. The regulations would require the carrier utilizing the trackage 14 For the purpose of RFA analysis for rail carriers subject to the Boards jurisdiction, the Board defines a small business as only including those rail carriers classified as Class III rail carriers under 49 CFR 1201.11. See Small Entity Size Standards Under the Regul. Flexibility Act, EP 719 STB
served June 30, 2016 with Board Member Begeman dissenting. Class III carriers have annual operating revenues of $40.4 million or less in 2019
dollars. Class II rail carriers have annual operating revenues of less than $900 million in 2019 dollars.
The Board calculates the revenue deflator factor annually and publishes the railroad revenue thresholds on its website. 49 CFR 1201.11;
Indexing the Annual Operating Revenues of R.Rs., EP 748 STB served July 12, 2021. As the Railroad Price Index remained the same from 2019 to 2020, there was no adjustment to the thresholds for 2020.
Indexing the Annual Operating Revenues of R.Rs., EP 748, slip op. at 2 n.2.

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