4564 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Rules and Regulations 

1Letters available at www.stb.gov (open tab 

‘‘News & Communications’’ and select ‘‘NonDocketed Public Correspondence’’). 

2While these meetings also included discussion 

of 49 CFR part 1147 (Temporary Relief Under 49 

U.S.C. 10705 and 11102 for Service Inadequacies), 

this proceeding concerns only 49 CFR part 1146 

(Expedited Relief for Service Emergencies) pursuant 

to 49 U.S.C. 11123. 

3Press Release, STB, STB Issues Hearing Notice 

for Urgent Issues in Freight Rail Serv. (Apr. 7, 

2022), www.stb.gov/news-communications/latestnews/pr-22–21/. 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review by OMB under E.O. 

12866, Regulatory Planning and Review. 

This rule is not a major rule under 5 

U.S.C. 804. 

IV. Regulatory Flexibility Act 

NASA does not expect this rule to 

have a significant economic impact on 

a substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the rule is removing the NFS 

unique requirements for submission of 

total compensation plan. Therefore, an 

Initial Regulatory Flexibility Analysis 

was not performed. 

V. Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C. chapter 35) does apply. With the 

publication of this final rule, an existing 

information collection currently 

approved under Office of Management 

and Budget (OMB) control number 

2700–0077, Contractor and 

Subcontractor Compensation Plans, is 

no longer needed. Once the final rule is 

effective, NASA will discontinue this 

collection and rely on OMB control 

number 9000–0066, Certain Federal 

Acquisition Regulation Part 22 Labor 

Requirements—FAR Sections Affected: 

52.222–2, 52.222–6, 52.222–11, 52.222– 

18, 52.222–33, 52.222–34, 52.222–46, 

and SF 1413 and 1444. 

List of Subjects 

48 CFR Part 1831 

Accounting, Government 

procurement. 

48 CFR Part 1852 

Accounting, Government 

procurement, Reporting and 

recordkeeping requirements. 

Erica Jones, 

NASA FAR Supplement Manager. 

For the reasons stated in the 

preamble, NASA amends 48 CFR parts 

1831 and 1852 as follows: 

PART 1831—CONTRACT COST 

PRINCIPLES AND PROCEDURES 

■ 1. The authority citation for part 1831 

continues to read as follows: 

Authority: 51 U.S.C. 20113(a) and 48 CFR 

chapter 1. 

1831.205–671 [Removed and Reserved] 

■ 2. Remove and reserve section 

1831.205–671. 

PART 1852—SOLICITATION 

PROCEDURES AND CONTRACT 

CLAUSES 

■ 3. The authority citation for part 1852 

continues to read as follows: 

Authority: 51 U.S.C. 20113(a) and 48 CFR 

chapter 1. 

1852.231–71 [Removed and Reserved] 

■ 4. Remove and reserve section 

1852.231–71. 

[FR Doc. 2024–01124 Filed 1–23–24; 8:45 am] 

BILLING CODE 7510–13–P 

SURFACE TRANSPORTATION BOARD 

49 CFR Parts 1011, 1104, 1115, and 

1146 

[Docket No. EP 762] 

Revisions to Regulations for Expedited 

Relief for Service Emergencies 

AGENCY: Surface Transportation Board. 

ACTION: Final rule. 

SUMMARY: The Surface Transportation 

Board (STB or Board) adopts a final rule 

amending its emergency service 

regulations. 

DATES: The rule is effective February 23, 

2024. 

FOR FURTHER INFORMATION CONTACT: 

Jonathon Binet at (202) 245–0368. If you 

require an accommodation under the 

Americans with Disabilities Act, please 

call (202) 245–0245. 

SUPPLEMENTARY INFORMATION: Pursuant 

to its broad statutory mandate, the 

Surface Transportation Board closely 

monitors the rail industry’s service 

performance. See 49 U.S.C. 1321, 11145; 

see also 49 U.S.C. 10101, 11323, 10907. 

Over the last decade, railroad service 

challenges impacting a wide range of 

geographic regions and commodities 

have occurred with some frequency. 

See, e.g., U.S. Rail Serv. Issues— 

Performance Data Reporting, EP 724 

(Sub-No. 4) (STB served Dec. 30, 2014); 

STB Letter to CSX Transp., Inc. 

Requesting Serv. Reporting (July 27, 

2017); Chairman Oberman Letter to 

Norfolk S. Regarding Serv. Issues (Nov. 

23, 2021); 1 Urgent Issues in Freight Rail 

Serv., EP 770 (STB served Apr. 7, 2022); 

Oversight Hearing Pertaining to Union 

Pac. R.R.’s Embargoes, EP 772 (STB 

served Nov. 22, 2022). 

In response to service challenges in 

recent years, the Board has held a series 

of public hearings to permit interested 

persons to report on specific service 

problems, to hear from rail industry 

executives on plans to address rail 

service problems generally, and to 

explore additional options to improve 

service. At one such hearing in October 

2017, several shippers observed that the 

Board’s regulations at 49 CFR part 1146, 

which implement 49 U.S.C. 11123 and 

govern expedited relief for service 

emergencies, are rarely invoked, even in 

times of serious rail service challenges. 

See Pub. Listening Session Regarding 

CSX Transp., Inc.’s Rail Serv. Issues, EP 

742, Hr’g Tr. 89:13–22; 90:1; 150:3–14; 

196:11–22; 197:1–16; 199:1–9 (Oct. 17, 

2017). 

Based on these concerns, and to better 

understand the reasons for the lack of 

use of the Board’s directed service 

regulations, the Board announced on 

March 15, 2018, that Board staff would 

hold informal meetings with interested 

persons to discuss and gather feedback 

on the adequacy of the Board’s current 

regulations regarding emergency service 

and service inadequacies, and whether 

and how the current regulations should 

be modified to offer a more meaningful 

path to relief. See Press Release, STB, 

Board to Hold Informal Meetings on 

Directed Serv. Reguls. Beginning in Apr. 

(Mar. 15, 2018), www.stb.gov/newscommunications/latest-news/archivedpress-releases/.2 As a result, in the 

second quarter of 2018 Board staff met 

with representatives of a variety of 

entities representing carrier and shipper 

interests. A recurring concern expressed 

by shipper interests was the amount of 

time required under the existing 

procedures to obtain relief for service 

failures and the difficulty of satisfying 

certain informational burdens. Although 

carrier interests acknowledged that very 

few emergency service petitions had 

been filed in recent years, they 

nevertheless generally asserted that the 

existing procedures were sufficient, and 

noted that the Board’s Rail Customer 

and Public Assistance program (RCPA) 

had been helpful in resolving acute 

service issues informally. 

By decision served April 7, 2022, the 

Board announced that it would hold a 

hearing on April 26 and 27, 2022, on 

rail service problems impacting the 

network and the recovery efforts 

involving several Class I carriers.3 As 


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4The NPRM was published in the Federal 

Register, 87 FR 25609 (May 5, 2022). 

5Under the statute, an emergency situation can be 

created by ‘‘shortage of equipment, congestion of 

traffic, unauthorized cessation of operations, failure 

of existing commuter rail passenger transportation 

operations caused by a cessation of service by the 

National Railroad Passenger Corporation, or other 

failure of traffic movement.’’ 49 U.S.C. 11123(a). 

6 In the case of an alternative carrier providing 

service over an incumbent carrier’s lines, the 

carriers themselves may establish the terms of 

compensation and operations, with the Board 

available to resolve disputes, including disputes 

about compensation, if any arise. 49 U.S.C. 

11123(b)(2). 

7Opening comments were filed by the 

Association of American Railroads (AAR); the 

American Chemistry Council, the Corn Refiners 

Association, and The Fertilizer Institute 

(collectively, the Coalition Associations); American 

Fuel & Petrochemical Manufacturers (AFPM); 

Agricultural Retailers Association (ARA); the 

Brotherhood of Locomotive Engineers and 

Trainmen (BLET); CSX Transportation, Inc. (CSXT); 

Industrial Minerals Association—North America 

(IMA); the Military Surface Deployment and 

Distribution Command (SDDC); the National 

Association of Chemical Distributors (NACD); the 

National Mining Association (NMA); the National 

Grain and Feed Association (NGFA); Norfolk 

Southern Railway Company (NS); Private Railcar 

Food and Beverage Association (PRFBA); the 

Renewable Fuels Association (RFA); the 

Transportation Trades Department, AFL–CIO 

(TTD); the U.S. Department of Agriculture (USDA); 

the West Virginia Coal Association (WVCA); and 

the Western Coal Traffic League, Freight Rail 

Customer Alliance, National Coal Transportation 

Association, and Portland Cement Association 

(collectively, Shipper Groups). 

Reply comments were filed by AAR, the Coalition 

Associations, NGFA, the National Industrial 

Transportation League (NITL) and the Institute of 

Scrap Recycling Industries (ISRI), and the Shipper 

Groups. 

8 (See, e.g., AFPM Comment 2; ARA Comment 1; 

IMA Comment 2; NACD Comment 2; NGFA 

Comment 1–2; PRFBA Comment 2; RFA Comment 

2; Shipper Grps. Comment 1–2; SDDC Comment 1; 

USDA Comment 1.) 

the hearing notice explained, the Board 

had informally heard from a broad range 

of stakeholders about inconsistent and 

unreliable rail service throughout the 

network and across commodity groups. 

Urgent Issues in Freight Rail Serv., EP 

770, slip op. at 2. These challenges 

included tight car supply and unfilled 

car orders, delays in transportation for 

carload and bulk traffic, increased origin 

dwell time for released unit trains, 

missed switches, and ineffective 

customer assistance. Id. 

On April 22, 2022, the Board issued 

a notice of proposed rulemaking in this 

docket, proposing to amend its 

emergency service regulations. 

Revisions to Reguls. for Expedited Relief 

for Serv. Emergencies (NPRM), EP 762 

(STB served Apr. 22, 2022).4 The Board 

explained in the NPRM that if the 

service issues continue, they could 

result in an increased need for 

emergency Board action to meet the 

needs of the public. NPRM, EP 762, slip 

op. at 2. Indeed, since the issuance of 

the NPRM, the Board has issued orders 

to address service emergencies. See, e.g., 

Foster Poultry Farms—Ex Parte Pet. for 

Emergency Serv. Ord., FD 36609 (STB 

served June 17, 2022) (issuing, just two 

days after the filing of the petition 

seeking emergency service relief, an 

order under 49 U.S.C. 11123 directing 

Union Pacific to adhere, to the greatest 

extent possible, to a schedule that 

Union Pacific itself put forward). In 

addition, the Board has proposed new 

regulations that would, if adopted, 

establish additional procedures to 

govern reciprocal switching 

determinations related to service 

inadequacy. See Notice of Proposed 

Rulemaking, Reciprocal Switching for 

Inadequate Serv., EP 711 (Sub-No. 2) 

(STB served Sept. 7, 2023). 

Background 

Emergency service orders are 

designed to preserve rail service where 

there has been a substantial rail service 

issue or failure that requires immediate 

relief. Under 49 U.S.C. 11123(a), the 

Board may issue an emergency service 

order when it determines that there 

exists ‘‘an emergency situation of such 

magnitude as to have substantial 

adverse effects on shippers, or on rail 

service in a region of the United States, 

or that a rail carrier . . . cannot 

transport the traffic offered to it in a 

manner that properly serves the 

public.’’ 5 When the Board determines 

that such a situation exists, it may: ‘‘(1) 

direct the handling, routing, and 

movement of the traffic of a rail carrier 

and its distribution over its own or other 

railroad lines; (2) require joint or 

common use of railroad facilities; (3) 

prescribe temporary through routes; 

[and] (4) give directions for—(A) 

preference or priority in transportation; 

(B) embargoes; or (C) movement of 

traffic under permits;’’ or, when the 

service failure is caused by a cessation 

of service by Amtrak, direct the 

continuation of operations and related 

functions. 49 U.S.C. 11123(a). The 

Board may act on its own initiative or 

pursuant to a petition, and emergency 

service may be ordered summarily (i.e., 

without regard to the Administrative 

Procedure Act, 5 U.S.C. 551–559). 49 

U.S.C. 11123(b)(1). Board orders under 

49 U.S.C. 11123 are subject to an initial 

time limit of 30 days, but they may be 

extended up to an additional 240 days 

if the Board finds that emergency 

conditions continue to exist. 49 U.S.C. 

11123(a), (c).6

The current regulations at 49 CFR 

1146.1(a) require that a petitioner 

seeking relief show a substantial, 

measurable deterioration or other 

demonstrated inadequacy in rail service 

by the incumbent carrier over an 

identified period of time. Any petition 

for relief must demonstrate that the 

standard in 49 CFR 1146.1(a) is met, 

provide a summary of discussions the 

petitioner has had with the incumbent 

carrier regarding the service problems 

and the reasons why the incumbent is 

unlikely to restore adequate rail service 

within a reasonable period of time, and 

include a commitment from an 

alternative carrier to provide service 

that can be performed safely without 

degrading service to existing customers 

of the alternative carrier and without 

unreasonably interfering with the 

incumbent’s overall ability to provide 

service. 49 CFR 1146.1(b). A reply to the 

petition must be filed by the incumbent 

carrier within five business days, and a 

rebuttal by the party requesting relief 

may be filed within three business days 

following submission of the reply. 49 

CFR 1146.1(b)(2) and (3). 

In the NPRM, the Board proposed to 

amend part 1146 by (1) modifying the 

procedures for parties seeking a Board 

order directing an incumbent carrier to 

take action to remedy a service 

emergency, (2) indicating that the Board 

may act on its own initiative to direct 

emergency service, (3) modifying the 

informational requirements for parties 

in emergency service proceedings, (4) 

shortening the filing deadlines in 

emergency service proceedings and 

establishing a timeframe for Board 

decisions, and (5) establishing an 

accelerated process for certain acute 

service emergencies. In response to the 

NPRM, the Board received 18 opening 

comments and five reply comments.7

Below, the Board addresses the 

comments submitted and discusses the 

clarifications and modifications being 

adopted in this final rule. The text of the 

final rule is appended to this decision. 

Final Rule 

Several commenters express support 

for the Board’s proposal.8 For example, 

ARA comments that the proposal would 

reduce barriers and provide more 

certainty for both shippers and 

railroads, as well as enable the Board to 

better address emergency service 

situations, thus helping to prevent 

localized service issues from impacting 

the entire network. (ARA Comment 1.) 

NACD points to the efficiencies the 

proposal would bring, (NACD Comment 

2), and emphasizes that such 

‘‘[a]ccessible and efficient relief 

mechanisms are especially needed now 

in this unprecedented time of supply 

chain problems,’’ (id. at 4). Shipper 


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9AFPM requests that the Board investigate 

retribution by railroads toward shippers through 

rate increases, reduction in service days, and more. 

(AFPM Comment 6.) Similarly, WVCA asks the 

Board to ‘‘convene a specific examination and 

proceeding regarding rail service and the movement 

of coal.’’ (WVCA Comment 12.) While these 

requests are outside the scope of this proceeding, 

stakeholders may share information about these 

concerns through the Board’s RCPA program or 

request informal meetings with the Board, as 

appropriate. 

10NACD, NMA, and Shipper Groups express 

support for both clarifications. (See NACD 

Comment 3; NMA Comment 2; Shipper Grps. 

Comment 4.) CSXT,NITL, and ISRI state that they 

support clarifying that the Board may direct an 

emergency service order at the incumbent as well 

as the alternative carrier, (see CSXT Comment 2; 

NITL & ISRI Reply 1), while AFPM, IMA, and 

PRFBA state they support clarifying that the Board 

can act on its own initiative as well as on petition, 

(see AFPM Comment 6; IMA Comment 7; PRFBA 

Comment 7; NS Comment 2 (acknowledging that 

the statute provides the Board authority to act on 

its own initiative)). 

11The Board is subject to the Administrative 

Procedure Act when it establishes the terms of 

compensation if the railroads do not agree. 49 

U.S.C. 11123(b)(1) and (2). 

12The procedures in the proposed regulations do 

not address situations when the Board is acting on 

its own initiative. NS argues that the Board should 

ensure impacted rail carriers have an opportunity 

to comment—either in writing or by telephonic 

conference—before the Board orders emergency 

service in these situations. (NS Comment 4.) Absent 

extraordinary circumstances, the Board intends to 

afford carriers an opportunity to be heard even 

when the Board acts on its own initiative. 

Groups argue that the proposed changes 

would clarify substantive standards and 

improve the emergency service relief 

procedures, (Shipper Grps. Comment 1– 

2), as well as encourage carriers to act 

more responsibly to avoid emergency 

service issues in the first place, (id. at 

8). USDA agrees that the proposal 

would ‘‘improve rail service in times of 

disruption and incentivize railroads to 

maintain better service overall.’’ (USDA 

Comment 1.) 

AFPM, IMA, NACD, and PRFBA each 

note how infrequently the Board’s 

emergency service regulations have 

been utilized and argue that this lack of 

use justifies review of the provisions. 

(AFPM Comment 6; IMA Comment 7; 

NACD Comment 2–3; PRFBA Comment 

7.) According to AFPM, rather than 

pursuing emergency relief from the 

Board, refiners simply accept the 

temporary disruptions, often adjusting 

production, storage, or fleet size. (AFPM 

Comment 6–7; see also NACD Comment 

2–3.) IMA similarly states that its 

member companies have not petitioned 

the Board for emergency service because 

the existing process requires 

information unavailable to them and 

does not provide a timely result. (IMA 

Comment 3.) Several commenters note 

that shippers choose not to petition the 

Board for emergency relief because they 

fear retribution from railroads. (AFPM 

Comment 6–7; PRFBA Comment 8 n.6; 

IMA Comment 8 n.6.) 9

Other commenters support the 

proposal but assert that the Board 

should take further action. The 

Coalition Associations, for example, 

express strong support for the proposal, 

stating that it provides ‘‘critical 

improvements that will enhance the 

utility of emergency service orders for 

some circumstances,’’ but caution that 

the rulemaking will not solve all, or 

even most, service problems. (Coalition 

Ass’ns Comment 1–2; see also NMA 

Comment 2–3; NITL & ISRI Reply 1.) 

TTD likewise supports the proposal but 

also argues that the provisions in this 

rulemaking will not fully address the 

current rail service problems, which it 

claims stem primarily from the 

railroads’ staffing, equipment, and 

scheduling decisions. (TTD Comment 

1.) WVCA states it supports the NPRM 

and encourages the Board to continue 

its rail service oversight efforts. (WVCA 

Comment 2, 12.) 

AAR, CSXT, and NS each express 

their support of the Board’s efforts to 

ensure the accessibility of service relief 

when necessary in times of emergency. 

(AAR Comment 1; CSXT Comment 2; 

NS Comment 2.) AAR supports ‘‘the 

Board’s effort to properly structure 

expedited relief where appropriate and 

necessary to resolve emergency 

situations,’’ and proposes several 

modifications and additional 

clarifications. (AAR Comment 1–2.) 

CSXT expressly supports certain aspects 

of the proposed rule and expresses 

‘‘serious concerns’’ about others. (CSXT 

Comment 2–3.) NS ‘‘supports review 

and appropriate updates based on sound 

policy and evidence,’’ but it notes that 

the Board has ‘‘existing tools at its 

disposal . . . that remain useful and 

effective to address service issues in an 

expedited manner,’’ and it offers ‘‘three 

suggestions and minor modifications’’ to 

the proposed rule. (NS Comment 2.) 

Clarifying Remedial Pathways. In the 

NPRM, the Board proposed adding 

language to 49 CFR 1146.1(a) to clarify 

that it may direct an incumbent carrier 

or alternative carrier to provide service 

and that it can act on its own initiative 

as well as pursuant to a petition. NPRM, 

EP 762, slip op. at 5. The Board noted 

these changes would better align the 

Board’s regulations with its statutory 

authority and provide clarity to 

stakeholders. Id. Several commenters 

express support for one or both of these 

clarifications, which merely codify the 

Board’s existing statutory authority.10

Other commenters request additional 

modifications and clarifications to other 

aspects of part 1146.1(a). Specifically, 

the Coalition Associations request that 

the Board remove the phrase ‘‘over an 

identified period of time,’’ arguing that 

service emergencies can arise in short 

order and that this language suggests a 

shipper must wait for some time to pass 

before petitioning the Board for 

emergency service relief. (Coalition 

Ass’ns Comment 2.) NGFA and Shipper 

Groups ask the Board to address the 

Board’s authority to issue emergency 

service orders on an ex parte basis. 

(NGFA Comment 3; Shipper Grps. 

Comment 9 (citing Hasa, Inc. v. Union 

Pac. R.R., NOR 42165 (STB served Aug. 

21, 2019)).) According to Shipper 

Groups, the reply and rebuttal filings 

permitted in 49 CFR 1146.1(b) are 

unnecessary when a second carrier is 

not involved. (Shipper Grps. Comment 

9.) 

The Board finds it unnecessary to 

remove the phrase ‘‘over an identified 

period of time’’ from 49 CFR 1146.1(a). 

This language does not restrict 

petitioners from seeking emergency 

service orders in quickly emerging 

situations because the section prescribes 

no minimum period that must pass 

prior to filing. See Expedited Relief, EP 

628, slip op. at 8 n.14. In addition, as 

the Board has previously noted, the 

language of 49 CFR 1146.1(a) in its 

current format affords the Board the 

needed flexibility to address varying 

circumstances on a case-by-case basis. 

See Expedited Relief, EP 628, slip op. at 

8–9. 

Regarding the request from NGFA and 

Shipper Groups that the Board address 

its authority to issue emergency service 

orders on an ex parte basis, the Board 

agrees that 49 U.S.C. 11123 permits the 

Board to order emergency service 

without regard to Administrative 

Procedure Act requirements. See 49 

U.S.C. 11123(b)(1).11 Even though the 

Board is modifying its regulations to 

improve the processing time when 

emergencies occur, there may still be 

circumstances when the Board needs to 

act on an ex parte basis. Under the 

current proposal, the Board retains the 

statutory authority to order emergency 

service on an ex parte basis in 

appropriate circumstances and may 

waive its regulations when 

appropriate.12

AAR and NS ask the Board to 

articulate a standard for the types of 

emergency situations that would be 

eligible for relief under 49 CFR part 

1146. (AAR Comment 3; NS Comment 

3.) They argue that emergency service 

relief should be available only in ‘‘real’’ 

or ‘‘true’’ emergencies. (AAR Comment 

2; NS Comment 2.) According to AAR, 


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13 In support of its argument, Coalition 

Association cite to Granite State Concrete Company 

v. B&M Corporation, NOR 42083 (STB served Sept. 

15, 2003) (denying an emergency service order but 

commencing a proceeding); Keokuk Junction 

Railway—Alternative Rail Service—Line of Toledo, 

Peoria & Western Railway, FD 34397 (STB served 

Oct. 31, 2003) (denying an emergency service order 

because alleged service inadequacy was based 

primarily upon rate levels); and Ohio Valley 

Railroad—Petition to Restore Switch Connection & 

Other Relief, FD 34608 (STB served Feb. 23, 2005) 

(denying an emergency service order but granting 

relief under 49 U.S.C. 10742). 

14 In contrast, the Board has proposed using 

objective standards, rather than a flexible case-bycase approach, to determine when a reciprocal 

switching arrangement should be prescribed, since 

objective standards in that context ‘‘would create an 

incentive for rail carriers to provide adequate 

service in the first instance and because, if a rail 

carrier did not do so, the affected shippers and 

receivers would then have more certainty in their 

opportunities to obtain line-haul service from an 

alternate carrier.’’ See Notice of Proposed 

Rulemaking, Reciprocal Switching for Inadequate 

Serv., EP 711 (Sub-No. 2), slip op. at 9–10 (STB 

served Sept. 7, 2023). Those proposed objective 

standards seek to ‘‘provide the certainty that is 

needed to protect the public interest, as well as the 

interests of rail customers, in adequate service on 

a general and sustained basis.’’ Id. at 5. The Board 

made clear, however, that these standards should 

not be used ‘‘for the prescription of emergency 

service under part 1146.’’ Id. at 10–11. The Board 

finds that a more flexible approach is appropriate 

here, given the nature of an emergency finding, its 

related effects, and generally shorter remedy period. 

without further guidance, the 

regulations could be used to ‘‘secure 

leverage and immediate attention to 

their particular service complaints.’’ 

(AAR Comment 5.) On reply, various 

commenters argue AAR’s request is 

unnecessary and overly restrictive. (See 

Coalition Ass’ns Reply 9; NITL & ISRI 

Reply 3.) The Coalition Associations 

note that the existing process has been 

in place for ‘‘nearly 25 years without the 

objective standards AAR deems 

‘essential’ ’’ and that the Board has 

denied emergency relief when a 

petitioner has improperly invoked 49 

CFR 1146.1. (Coalition Ass’ns Reply 

9.) 13 They argue that a case-by-case 

approach is superior because the Board 

cannot anticipate every scenario that 

may arise. (Coalition Ass’ns Reply 9–10; 

see also NITL & ISRI Reply 3; Shipper 

Grps. Reply 2 (‘‘[w]hether relief is 

appropriate should be determined based 

on a full set of facts’’).) 

AAR also asks that the Board require 

petitioners seeking relief under 49 CFR 

part 1146 to ‘‘affirm that there are no 

alternative modes available or feasible.’’ 

(AAR Comment 17.) According to AAR, 

the Board could not find there was a 

‘‘real’’ emergency if the petitioner could 

shift its traffic to truck, barge, or another 

mode. (Id.) In response, the Coalition 

Associations note that it is unclear 

whether AAR is asking the Board to 

require the petitioner to include a sworn 

statement or market dominance analysis 

and that the latter would be impractical 

in an emergency. (Coalition Ass’ns 

Reply 14.) The Coalition Associations 

also assert that the ‘‘time, cost, and 

uncertainty of pursuing emergency 

service relief will always outweigh the 

additional cost of a non-rail 

transportation alternative to avoid the 

emergency,’’ so AAR’s inference that 

shippers would petition for an 

emergency service order when they 

have alternatives available is 

‘‘unrealistic and cynical.’’ (Coalition 

Ass’ns Reply 14; see also Shipper Grps. 

Reply 8 (‘‘[O]ne would expect that a 

shipper that had a viable, economic 

option to pursue would choose that 

option before seeking emergency 

relief.’’).) Shipper Groups claim that 

carriers are attempting to increase the 

burden on petitioners by inserting a 

‘‘mini-market dominance case’’ into 

emergency service proceedings. (Id.) 

AAR’s and NS’s proposal to limit the 

type of situations eligible for emergency 

relief under 49 CFR part 1146 is not 

necessary and would complicate the 

process, increase the burden on 

shippers, and undermine the flexibility 

provided by the current regulations.14 In 

addition, as various commenters have 

observed, the substantive standard in 

the part 1146 regulations has been in 

place for nearly 25 years without this 

limitation, during which time the Board 

has denied petitions where it found the 

situation did not constitute an 

emergency. See, e.g., S.F. Bay R.R.— 

Mare Island Pet. for Emergency Serv. 

Ord. & Pet. for Declaratory Ord.— 

Lennar Mare Island, LLC, FD 35360, slip 

op. at 3 (STB served Dec. 6, 2010) 

(denying an emergency service petition 

‘‘because the record does not show that 

an emergency exists’’). The Board has 

previously emphasized that the 

emergency service procedures are ‘‘not 

meant to redress minor service 

disruptions,’’ Expedited Relief, EP 628, 

slip op. at 2, but rather provide 

temporary relief for serious ones, id. at 

8. 

The Board also declines to adopt 

AAR’s suggestion to require petitioners 

to affirm that no alternative modes of 

transportation are feasible or available. 

Generally, it seems unlikely that a 

shipper would seek emergency service 

relief from the Board if it has easy 

access to other transportation options, 

as the Coalition Associations have 

observed. However, in evaluating 

emergency service petitions, the Board 

has considered and will continue to 

consider the transportation environment 

in which the emergency occurs and the 

impact of the inadequate rail service on 

the affected shippers. Roseburg Forest 

Prod. Co.—Alt. Rail Serv.—Cent. Or. & 

Pac. R.R., FD 35175, slip op. at 7–8 (STB 

served Mar. 4, 2009); Pioneer Indus. 

Ry.—Alt. Rail Serv.—Cent. Ill. R.R., FD 

34917, slip op. at 9–11 (STB served Jan. 

12, 2007). 

NS expresses its concern that the 

Board might base an emergency service 

order on the railroad performance data 

collected under 49 CFR part 1250 

without obtaining additional 

information from all parties involved. 

(NS Comment 3.) NS argues that, 

although railroad performance data 

might identify service trends, those 

trends do not necessarily amount to 

service emergencies under 49 U.S.C. 

11123. (Id.) The Board appreciates the 

significance of ordering emergency 

service and the operational, safety, and 

financial implications it may have on 

carriers, and it anticipates getting more 

information beyond service trends in 

individual emergency service cases to 

aid the Board in appropriately resolving 

these matters. The procedures in the 

proposed regulations thus allow an 

opportunity for carriers to provide 

specific information to the Board about 

the situation at hand. 

Lastly, AAR requests the Board either 

‘‘clarify that it will not invoke [49 CFR] 

1146.1 authority on its own motion if 

the issue has been the subject of [an] 

RCPA informal dispute resolution 

process about which the Board was 

aware,’’ or add a requirement that the 

Board ‘‘certify when it invokes its [49 

CFR] 1146.1 authority on its own 

motion, that none of the information 

leading to such invocation came from an 

RCPA informal dispute resolution 

process.’’ (AAR Comment 15.) As the 

Board explained in the NPRM, RCPA 

serves as a resource for the Board’s 

stakeholders, and a key part of RCPA’s 

mission involves providing informal 

facilitation services to shippers and 

other parties without charge to resolve 

disputes with railroads. Requests for 

RCPA assistance, including informal 

facilitation services, are kept 

confidential and not shared with other 

STB offices. Accordingly, the Board 

does not find it necessary to add the 

language requested by AAR. 

Modifying Petition Requirements. 

Currently, under 49 CFR 

1146.1(b)(1)(iii), a petitioner must have 

a commitment from another available 

railroad to provide alternative service 

and explain how the alternative service 

would be provided safely without 

degrading service to the alternative 

carrier’s existing customers and without 

unreasonably interfering with the 

incumbent’s overall ability to provide 

service. As the Board discussed in the 


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NPRM, many proponents of a rule 

modification have expressed frustration 

with the requirement to secure an 

alternative carrier in advance (i.e., a 

commitment to be included in a 

petition) during a service emergency 

because potential alternative carriers 

may be reluctant to participate in 

emergency alternative service. NPRM, 

EP 762, slip op. at 5. The Board stated 

in the NPRM that requiring an advance 

commitment from an alternative carrier 

as a condition to filing an emergency 

service petition is an unnecessary 

burden on petitioners experiencing a 

service crisis that undermines the 

usefulness of this important statutory 

remedy. Id. at 5–6. Accordingly, the 

Board proposed removing that 

requirement and instead requiring 

petitioners to submit only a list of 

possible alternative carriers, based on 

the petitioner’s understanding of other 

rail carriers’ nearby operations. Id. at 6. 

The Board also proposed requiring the 

incumbent carrier and alternative 

carriers, if any, to address in the first 

instance whether the specific remedy 

proposed by the petitioner would be 

unsafe or infeasible, or whether it would 

substantially impair the replying 

carrier’s ability to serve its other 

customers adequately or fulfill its 

common carrier obligations. Id. 

Regarding the requirement that petitions 

include an explanation of reasons why 

the incumbent carrier is unlikely to 

restore rail service, the Board proposed 

to clarify that the explanation need only 

take the form of a ‘‘summary’’ to the 

extent that such information is available 

to the petitioner. Id. The Board reasoned 

that these changes would place the 

informational requirements on the 

parties most likely to have the 

information. Id. 

According to NGFA, these changes are 

‘‘an extremely equitable and more 

efficient way to ensure the Board is 

presented with the evidence it needs to 

make a decision in an efficient manner.’’ 

(NGFA Comment 4–5.) Shipper Groups, 

AFPM, IMA, and PRFBA each express 

support for how these changes place the 

burden to provide certain relevant 

information on the entity likely to have 

direct knowledge of it. (AFPM Comment 

8; IMA Comment 10; PRFBA Comment 

10; Shipper Grps. Comment 5–6.) 

Shipper Groups argue that the changes 

would ‘‘lead to the development of a 

better evidentiary record and more 

efficient and expeditious decisionmaking,’’ further the rail transportation 

policy goals of requiring fair and 

expeditious regulatory decisions when 

regulation is required, and provide for 

the expeditious handling and resolution 

of proceedings. (Shipper Grps. 

Comment 5–6 (citing 49 U.S.C. 

10101(2), (15)).) AFPM, IMA, and 

PRFBA note that these changes would 

incentivize rail shippers to bring cases 

that may have gone unfiled in the past 

for lack of evidence not within the 

petitioner’s control. (AFPM Comment 8; 

IMA Comment 10; PRFBA Comment 

10.) 

RFA projects that the Board’s 

proposal to eliminate the requirement 

for an advance commitment from an 

alternative carrier and instead require 

only a list of potential alternative 

carriers would ease the burden on 

petitioners, streamline the petition 

process, and minimize disruptions in 

important customer service dynamics 

with carriers. (RFA Comment 1.) 

According to NACD, NGFA, and 

Shipper Groups, the advance 

commitment requirement has made it 

excessively difficult for shippers 

seeking relief as the regulations 

intended. (NACD Comment 3; NGFA 

Comment 4; Shipper Grps. Reply 6; see 

also Shipper Grps. Comment 6.) 

According to Shipper Groups, an 

alternative carrier ‘‘may be reluctant to 

commit publicly in advance to 

providing alternative service, especially 

if it is otherwise dependent on the 

incumbent carrier in some way, such as 

a short line that is beholden to the 

affected carrier for all or much of its 

business or otherwise subject to ‘paper 

barriers’ established by the incumbent.’’ 

(Shipper Grps. Reply 6.) NITL and ISRI 

contend that this change will enhance 

the utility of the emergency service 

remedy. (NITL & ISRI Reply 2.) 

On the other hand, AAR and CSXT 

oppose this change. AAR argues that 

deferring the question of whether an 

alternative carrier is available and able 

to provide emergency service would be 

impractical given the short time frames, 

‘‘unfairly penalize the alternative carrier 

by suddenly dragging them into an 

emergency proceeding as to which they 

had no prior knowledge,’’ and hinder 

the Board’s ability to ‘‘act quickly and 

decisively, with knowledge of all 

relevant facts.’’ (AAR Comment 7.) 

According to AAR, for the Board to be 

aware of factors affecting an alternative 

carrier’s ability to provide service, such 

as restrictions on service in labor 

contracts or operational difficulties 

being experienced by the alternative 

carrier, the alternative carrier must be 

‘‘involved on the frontend.’’ (Id. at 9.) 

AAR claims its concerns are exacerbated 

by the tight timelines proposed. (Id.) 

CSXT argues that retaining the 

requirement for an advance 

commitment would promote the speed 

and success of the emergency service 

process and would ensure that any 

Board action is consistent with the 

prohibition in 49 U.S.C. 11123 of any 

Board action that would ‘‘cause a rail 

carrier to operate in violation of this 

part’’ or ‘‘impair substantially the ability 

of a rail carrier to serve its own 

customers adequately, or to fulfill its 

common carrier obligations.’’ (CSXT 

Comment 6 (quoting 49 U.S.C. 

11123(c)(2)(A)–(B)).) CSXT further 

argues that requiring petitioners to 

obtain advance commitment from an 

alternative carrier is not ‘‘an 

obstruction’’ to their ability to obtain 

relief but rather ‘‘essential’’ because it 

‘‘can only expedite the process by 

ensuring the [alternative] carrier is 

ready, willing, and able to act at the 

earliest possible point in the remedial 

process.’’ (Id. at 7.) 

AAR and CSXT both note that the 

Board—when it adopted 49 CFR 

1146.1—considered and rejected the 

position the Board took in the NPRM. 

(AAR Comment 8 (quoting Expedited 

Relief, EP 628, slip op. at 11); CSXT 

Comment 7.) AAR argues that nothing 

has changed since then that would make 

an alternative carrier’s advance 

commitment less essential, (AAR 

Comment 8), and CSXT asserts that ‘‘the 

Board must offer a reasoned decision 

supported by substantial evidence for 

making any change to [its] conclusion.’’ 

(CSXT Comment 7–8 (citing Jicarilla 

Apache Nation v. Dep’t of Interior, 613 

F.3d 1112, 1120 (D.C. Cir. 2010)).) 

In response to these concerns, the 

Coalition Associations suggest the Board 

require petitioners to serve their 

petitions on the identified alternative 

carriers and to mandate that those 

carriers participate in the process. 

(Coalition Ass’ns Reply 6, see also 

NGFA Comment 5–6 (suggesting the 

Board mandate that identified 

alternative carriers reply to a petition).) 

NGFA urges the Board to ‘‘err on the 

side [of] collecting as much relevant 

information as possible, as quickly as 

possible, from the incumbent and an 

identified alternative carrier.’’ (NGFA 

Comment 6.) NITL and ISRI also oppose 

the carriers’ proposal to retain the 

advance commitment requirement, 

arguing that elimination of this 

requirement would increase the 

usefulness of the emergency service 

regulations. (NITL & ISRI Reply 3.) 

The Board does not find AAR’s and 

CSXT’s concerns persuasive and finds it 

in the public interest to eliminate the 

advance commitment requirement, as 

was proposed in the NPRM. Requiring 

shippers to obtain an advance 

commitment from an alternative carrier 

has unduly hindered the objectives of 

the emergency service process for the 

reasons stated in the NPRM, slip op. at 


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Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Rules and Regulations 4569 

15 (See, e.g., AFPM Comment 8; BLET Comment 

4; IMA Comment 10; NACD Comment 3; PRFBA 

Comment 10; USDA Comment 1.) 

16The Board is mindful that whether railroad 

operations are safe is generally within the purview 

of the Federal Railroad Administration (FRA). The 

Board’s regulations accordingly require that 

petitions for emergency service relief under part 

1146 be served on FRA. See 49 CFR 1146.1(e), 

1146.2(e). Carriers should demonstrate that they 

have undertaken the requisite advance planning 

necessary to assure safe operations, including 

consideration of FRA safety regulations. See 

Expedited Relief, EP 628, slip op. at 13 n.19. 

5–6, and by various commenters, see 

supra at 9–10, and removing this 

obstacle will help the process work 

more effectively. As the Board 

acknowledged in the NPRM, and as 

AAR and CSXT point out, the Board 

took a different position in the 1998 

decision, stating that the absence of an 

advance commitment could create 

safety concerns, impair service to the 

alternative carrier’s customers, or hurt 

the alternative carrier’s finances. NPRM, 

slip op. at 5 (citing Expedited Relief for 

Serv. Inadequacies, EP 628, slip op. at 

11). However, as the Board explained in 

the NPRM, feedback from rail users and 

the agency’s own observations have led 

the Board to conclude that the 

disadvantages of the advance 

commitment requirement outweigh any 

potential advantages, and that the 

concerns expressed in the 1998 decision 

can be adequately addressed when 

considering individual requests. See id. 

Moreover, the inability of shippers to 

obtain such advance commitments from 

alternative carriers appears to have been 

a key driver in shippers’ failure to use 

the regulatory process at all. Id. In 

promulgating the original regulations in 

1998, the Board did not anticipate that 

the alternative carrier commitment 

requirement would lead to that result, 

and AAR and CSXT cite no precedent 

requiring the Board to ignore its 

experience under the regulations. With 

regard to the NGFA’s suggestion, the 

Board will require an identified 

alternative carrier to reply to a petition. 

Though the Board noted in the NPRM 

that it could take appropriate action to 

request more information from an 

alternative carrier, it has determined 

that—for the Board to best meet its 

information needs and carry out its 

statutory obligations in a more efficient 

manner—the Board will require that an 

alternative carrier address whether the 

specific remedy would be unsafe or 

infeasible, or would substantially impair 

the carrier’s ability to serve its other 

customers adequately or fulfill its 

common carrier obligations. 

Numerous commenters support the 

Board’s proposal to require incumbent 

carriers to first address whether the 

proposed remedy would be unsafe or 

infeasible or whether it would 

substantially impair the replying 

carrier’s ability to adequately serve its 

other customers or fulfill its common 

carrier obligations.15 AFPM, IMA, and 

PRFBA assert that such a procedural 

shift makes sense in proceedings where 

the ‘‘use of the discovery process 

[would be] too slow to allow the Board 

to act expediently.’’ (AFPM Comment 9; 

IMA Comment 10; PRFBA Comment 

10.) NACD also supports this proposed 

change, calling it a ‘‘common sense 

reform,’’ (NACD Comment 3), and CSXT 

agrees that it is appropriate to ask the 

rail carrier rather than the shipper to 

address the safety and feasibility of the 

requested service, (CSXT Comment 3). 

BLET supports the Board’s proposal to 

allow an alternative carrier to reply to 

the petition, arguing that its employees 

and members could provide valuable 

insight into how operations are 

happening in the field. (BLET Comment 

4.) 

The Coalition Associations suggest 

the Board consider requiring railroads to 

provide certain minimum information 

to validate their claims that a remedy is 

unsafe or infeasible, or that it will 

interfere with their ability to serve their 

other customers. (Coalition Ass’ns 

Comment 7.) Similarly, Shipper Groups 

ask the Board to require carriers to make 

a ‘‘specific and documented showing,’’ 

rather than ‘‘conclusory assertions,’’ of 

substantial impairment in order to 

defeat a request for emergency service 

relief. (Shipper Grps. Comment 7.) 

According to Shipper Groups, carriers 

will seek to preserve service that is more 

profitable or that limits liquidated 

damages or other contractual exposure. 

(Id.) The Coalition Associations also ask 

the Board to clarify that a petition 

would not be defeated automatically if 

the proposed emergency service would 

affect another shipper. (Coalition Ass’ns 

Comment 8.) 

AFPM, IMA, and PRFBA argue the 

Board should shift the burden of proof 

to the railroads if a petitioner can 

demonstrate a prima facie case of ‘‘a 

substantial, measurable service 

deterioration or other demonstrated 

inadequacy over an identified period of 

time by the incumbent carrier.’’ (AFPM 

Comment 9; IMA Comment 10; PRFBA 

Comment 10.) They further ask the 

Board to establish a defined standard for 

that prima facie showing of service 

deterioration, which could be based on, 

for example, the percentage of missed 

switches for first mile/last mile, trip 

plan compliance data, or plant/facility 

shutdown/slowdown in the past, 

present, or future. (AFPM Comment 9– 

10; IMA Comment 10–11; PRFBA 

Comment 11.) AFPM, IMA, and PRFBA 

also suggest that in cases where the 

incumbent railroad’s reply fails to 

adequately rebut the petitioner’s prima 

facie case, the Board should issue its 

order five days after the reply, 

effectively eliminating the rebuttal 

period and expediting the case by two 

days. (AFPM Comment 11; IMA 

Comment 13; PRFBA Comment 13.) 

AAR opposes this request, arguing that 

the Board’s authority under 49 U.S.C. 

11123 is ‘‘limited to emergency 

situations, not generalized service 

complaints,’’ and that service metrics, 

‘‘whether based on first-mile/last-mile 

data or trip plan compliance, are illsuited to the identification of 

emergencies.’’ (AAR Reply 4–5.) AAR 

further argues that proponents of a 

Board order are required to make their 

case in support of the order, and that it 

would be unfair to further shorten a 

carrier’s response time while also 

shifting the burden to the carrier. (Id. at 

5.) 

Since emergencies can take various 

forms, flexibility is critical in 

determining whether a particular 

situation constitutes an emergency 

requiring expeditious Board action. The 

Board will not attempt to define the 

required minimum information 

appropriate for every case, nor will it 

establish a requirement for a carrier to 

make ‘‘a specific and documented 

showing’’ of substantial impairment in 

its ability to serve its other customers to 

defeat a request for an emergency 

service order. The Board seeks to gain 

a quick and accurate understanding of 

the circumstances underlying requests 

for relief so it can act to serve the public 

when necessary, not bog proceedings 

down with technical requirements that 

might undermine the purpose of these 

emergency proceedings. To be sure, 

especially given the expedited 

timelines, the Board expects that parties 

will support their claims with available 

evidence. The Board will not accept 

bald assertions regarding feasibility or 

safety as evidence of such, but 

circumstances will unfold differently 

from case to case, and the Board must 

maintain flexibility so it can evaluate all 

aspects of a case and act 

appropriately.16 Additionally, 

emergencies often arise from 

unexpected or unanticipated 

circumstances, and the Board must have 

the flexibility to respond to those 

circumstances promptly. 

The Board also clarifies that petitions, 

regardless of whether they seek 

emergency service from incumbent 

carrier or an alternative, will not 

automatically be defeated simply 


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17See also Notice of Proposed Rulemaking, 

Reciprocal Switching for Inadequate Serv., EP 711 

(Sub-No. 2), slip op. at 10 (STB served Sept. 6, 

2023) (distinguishing the standard for obtaining a 

reciprocal switching order from complaint-based 

common carrier obligation cases under 49 U.S.C. 

11101(a)). 

18 (See AFPM Comment 10–11; BLET Comment 4; 

IMA Comment 13; NACD Comment 3; NGFA 

Comment 5; PRFBA Comment 13; RFA Comment 2; 

Shipper Grps. Comment 8; USDA Comment 1.) 

because the proposed emergency service 

order would affect another party. 

Rather, the concern lies with whether a 

proposal would ‘‘substantially impair’’ a 

carrier’s ability to serve its other 

customers or fulfill its common carrier 

obligations, which is why the Board is 

asking for replies from carriers to 

address this matter. Pursuant to 49 

U.S.C. 1146.1(a), the Board will then 

consider this information and the effects 

on other shippers of ordering emergency 

service as part of its analysis when 

determining whether emergency service 

is suitable under the circumstances and 

whether to order relief. 

In addition, the Board declines to 

shift the burden of proof onto carriers by 

requiring a petitioner only to make a 

defined prima facie showing of a 

substantial and measurable service 

deterioration or another demonstrated 

service inadequacy, as requested by 

certain shipper interests. As AAR notes, 

this would shift the burden from 

petitioners to carriers while also giving 

carriers less time to respond. While the 

regulations adopted here seek to remove 

unnecessary burdens on petitioners, 

such as obtaining the advance 

commitment from alternative carriers, 

petitioners must still bear the burden of 

establishing the need for such relief. 

CSXT and NS ask the Board to require 

petitioners seeking relief under 49 CFR 

1146.1 to describe the efforts taken to 

resolve the issue through other means, 

as the Board is proposing for the new, 

accelerated process under 49 CFR 

1146.2. (CSXT Comment 11; NS 

Comment 12.) According to CSXT, ‘‘it 

would be appropriate to likewise 

encourage good faith efforts at informal 

dispute resolution prior to seeking the 

extraordinary relief of an emergency 

service order.’’ (CSXT Comment 11.) NS 

notes that the Board’s reasoning for 

including this requirement in 49 CFR 

1146.2, which it states appears related 

to the timeline of the accelerated 

process, seems to apply equally to the 

49 CFR 1146.1 process, which the Board 

also proposes to shorten. (NS Comment 

12.) 

The Board agrees that it is appropriate 

to require petitioners seeking relief 

under 49 CFR 1146.1 to describe efforts 

taken to resolve issues prior to the filing 

of the petition. The Board prefers 

informal resolution of disputes 

whenever possible, and requiring 

petitioners to describe efforts taken to 

arrive at solutions prior to emergency 

service will encourage parties to make 

such efforts in good faith rather than 

seeking an order from the Board as a 

matter of first resort. Moreover, many 

petitions already include this 

information to some degree, given that 

the current regulations require petitions 

to include a ‘‘summary of the 

petitioner’s discussions with the 

incumbent carrier of the service 

problems,’’ so mandating that 

petitioners describe their efforts at 

resolution in 49 CFR 1146.1 would not 

significantly increase their burden. 

Finally, requiring this information in 49 

CFR 1146.1 petitions would better align 

that process with the 49 CFR 1146.2 

process and help ensure that the Board 

receives all information necessary to 

understand the underlying emergency 

and overall circumstances. 49 CFR 

1146.1(b)(ii) will be amended to adopt 

this requirement. 

Shipper Groups argue that a carrier 

should face additional consequences, 

such as penalties or damages, when it 

has ‘‘deprived itself of the ability to 

meet its commitments and obligations’’ 

due to underinvestment in employees 

and other resources, particularly when 

it cannot provide emergency service due 

to this underinvestment. (Shipper Grps. 

Comment 8.) According to Shipper 

Groups, penalties would incentivize 

carriers to act more proactively to 

maintain their service commitments and 

reduce the need for emergency service 

orders altogether. (Id.) NGFA agrees, 

adding that the Board should more 

aggressively penalize carriers that do 

not comply with emergency service 

orders or are unable to provide 

emergency service relief due to business 

or operational decisions. (NFGA Reply 

3–4.) NGFA further contends that the 

Board should interpret the phrase ‘‘each 

violation’’ more broadly, for example, 

on a per-car basis instead of a per-train 

basis. (Id. at 4.) AAR, in contrast, 

maintains that a punitive approach is 

not authorized by 49 U.S.C. 11123, 

which contemplates alternative carriers 

compensating incumbent carriers for the 

use of incumbents’ equipment and 

facilities. (AAR Reply 2–3 (quoting Pyco 

Indus., Inc.—Alt. Rail Serv.—S. Plains 

Switching, Ltd. Co., FD 34889 et al, slip 

op. at 4–5 (STB served Jan. 11, 2008)).) 

The Board will not adopt these 

changes suggested by Shipper Groups 

and NGFA. Section 11123, from which 

the Board derives its emergency 

authority, contains no language or 

provision authorizing penalties or 

damages. Furthermore, the Board 

rejected similar arguments when 

adopting the existing regulations, noting 

that emergency service relief ‘‘is to be 

used for restorative or alleviative 

purposes only, and not as a punitive or 

preventive measure.’’ Expedited Relief, 

EP 628, slip op. at 7.17

Finally, APFM, IMA, and PRFBA 

want the Board to create a ‘‘reasonable 

railroad standard’’ requiring ‘‘the 

incumbent railroad to cooperate in a 

reasonable manner with the petitioner 

and the alternative carrier, while the 

[emergency service] order is in effect.’’ 

(AFPM Comment 10; IMA Comment 11– 

12; PRFBA Comment 11–12.) The Board 

finds that implementing such a 

‘‘reasonable railroad’’ standard is not 

necessary because acting reasonably, in 

good faith and in compliance with 

Board orders, is already required. See 49 

U.S.C. 10702. Any allegation of 

unreasonableness, bad faith or noncompliance can and will be dealt with 

on a case-by-case basis. 

Modifying the Regulatory Timeframe. 

In response to stakeholders’ previouslyexpressed concerns about the overall 

length of the current 49 CFR 1146.1 

process, as well as the lack of a date 

certain by which a Board decision can 

be expected, the Board proposed in the 

NPRM to shorten the filing deadlines for 

replies and rebuttals set forth in 49 CFR 

1146.1 and to establish a target 

timeframe for a Board decision. NPRM, 

EP 762, slip op. at 7. The Board 

explained that by shortening the 

timeframe and indicating when the 

parties can expect a decision by the 

Board, the proposed amendments would 

further streamline the process for all 

parties involved in an emergency 

service proceeding. Id. 

Many commenters support this aspect 

of the Board’s proposal.18 AFPM, IMA, 

and PRFBA assert that shortening the 

procedural timeline would expedite the 

proceeding where time is clearly of the 

essence. (AFPM Comment 10–11; IMA 

Comment 13; PRFBA Comment 13.) 

NGFA asserts that a short timeline is 

imperative to avoid severe damage to a 

petitioner’s business and customers 

since shippers will have exhausted all 

commercial remedies before seeking 

Board intervention. (NGFA Comment 5.) 

According to Shipper Groups, the 

Board’s proposal to shorten the filing 

deadlines and establish a target 

timeframe for a Board decision is 

reasonable and appropriate. (Shipper 

Grps. Comment 8.) 

Several commenters ask the Board to 

shorten the 49 CFR 1146.1 timeline 

further still. According to RFA, ‘‘the 

modified timeline is too lengthy to 


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19BLET asks the Board to permit extension of the 

deadlines if all parties agree, (BLET Comment 4), 

and AFPM, IMA, and PRFBA urge the Board to 

grant extension requests in extraordinary 

circumstances only, (AFPM Comment 11, IMA 

Comment 13; PRFBA Comment 13). In most cases, 

extension requests agreed upon by all parties to an 

emergency service proceeding are likely to be 

appropriate. However, given the urgent nature of 

the situations underlying emergency service 

proceedings, the Board will grant unilateral 

extension requests only for good cause. The Board 

will amend 49 CFR 1104.7 to clarify that requests 

for an extension under 49 CFR part 1146 must be 

filed as early as possible under the circumstances. 

20Because the statute limits the Board’s 

emergency service authority to the actions 

enumerated in 49 U.S.C. 11123(a), the proposal 

limited any relief ordered pursuant to the 

accelerated process to the actions listed in the 

statute. NPRM, EP 762, slip op. at 7 n.9. 

efficiently address emergencies in a 

timely manner.’’ (RFA Comment 2.) 

RFA explains that because ethanol 

facilities can typically store less than 

one week’s production on-site, 

shortening the process by a few days 

would not fully address emergency 

situations at these facilities. (Id.) ARA 

presents a similar argument, noting that 

timely delivery of products, such as 

fertilizer, is critical for agricultural 

retailers as crop production is weatherdependent and seasonal. (ARA 

Comment 1.) 19

AAR opposes shortening the timeline 

under 49 CFR 1146.1, arguing that 

‘‘[r]educing the time available for the 

parties to make an adequate record is 

not the solution to uncertainty over how 

quickly relief will be ordered,’’ and 

suggests that modifying the proposed 

rule to provide firm decision deadlines 

may help alleviate this concern. (AAR 

Comment 13; see also CSXT Comment 

12 (asking the Board to provide firm 

decision deadlines for 49 CFR 1146.1 

and 1146.2).) AAR notes that the Board 

previously rejected shorter timelines 

and argues that the concerns expressed 

in that decision remain valid today. 

(AAR Comment 12 (quoting Expedited 

Relief, EP 628, slip op. at 16 (‘‘[w]e do 

not believe that a shorter time frame is 

feasible, given the nature of the relief 

sought, the need for an adequately 

developed record regarding the factual 

predicate for such action, and the ability 

of the parties to implement the 

proposed arrangement safely and 

without harm to either railroad or their 

other shippers.’’).) According to AAR, 

shortening the timeline is even less 

feasible under the current proposal 

because the Board is also eliminating 

the requirement that petitioners obtain 

an advance commitment from an 

alternative carrier. (Id.) AAR asserts 

petitioners can consider the total 

timeline when deciding when to file a 

petition. (Id. at 13.) In addition, AAR 

urges the Board to reject the requests to 

further shorten the proposal’s timelines. 

(AAR Reply 6.) AAR claims the 

proposal’s timelines are ‘‘already so 

short as to strain feasibility’’ and asserts 

shippers can time the filing of their 

petitions ‘‘to ensure relief can be 

provided in the correct amount of time.’’ 

(Id.) 

On reply, Shipper Groups assert that 

AAR’s proposals are unnecessary or at 

least speculative at this time, and they 

state that a firm decision deadline might 

prevent the Board from taking the time 

that is needed in complex situations. 

(Shipper Grps. Reply 7.) The Coalition 

Associations state they are amenable to 

forgoing the shortening of the timelines 

in 49 CFR 1146.1 since the Board has 

proposed an accelerated process in 49 

CFR 1146.2. (Coalition Ass’ns Reply 6– 

7.) 

The Board is not persuaded by AAR’s 

arguments for retaining the existing 

timeline in 49 CFR 1146.1. As explained 

in the NPRM, the Board agrees with 

stakeholders that have expressed 

concern that the process in 1146.1 is too 

lengthy in the context of a service 

emergency. NPRM, EP 762, slip op. at 7. 

Although the Board rejected a shorter 

timeframe in 1998, its subsequent 

experience with 49 CFR 1146.1 has 

convinced the Board that a shorter time 

frame would in fact be feasible, contrary 

to what the Board anticipated when it 

adopted these regulations. See Foster 

Farms—Ex Parte Pet. for Emergency 

Serv. Ord., FD 36609 (STB served June 

17, 2022). 

Because the final rule includes an 

accelerated process for acute service 

emergencies, the Board does not find it 

necessary to further shorten the 

timelines in 49 CFR 1146.1 beyond the 

periods initially proposed in the NPRM. 

The Board will also refrain from setting 

a firm decision deadline in the 

regulations. The Board intends to issue 

decisions within five days of the 

rebuttal deadline, as proposed in the 

NPRM, but setting a firm deadline for 

this part of the regulations would serve 

only to complicate the decision-making 

process by constraining the Board (or 

requiring additional procedural 

decisions) in situations where a specific 

deadline might prove to be 

impracticable. The Board again 

emphasizes that flexibility is vital in 

conducting these proceedings. 

Establishing an Accelerated Process to 

Handle Acute Service Emergencies. In 

an effort to more efficiently address the 

most urgent service emergencies in a 

more expeditious manner, the Board 

proposed in the NPRM to establish a 

new, accelerated process at new 49 CFR 

1146.2 for certain acute service 

emergencies presenting potential 

imminent harm and threatening 

potentially severe adverse consequences 

to the petitioner, its customers, or the 

public. NPRM, EP 762, slip op. at 7. 

Under the new process proposed by the 

Board, a petitioner seeking accelerated 

relief must indicate that it is seeking 

such relief pursuant to that process, 

include a description of specific and 

particularized actions that can be 

performed by the incumbent or an 

alternative carrier and ordered by the 

Board,20 and demonstrate that the 

described emergency presents an 

imminent significant harm and 

threatens potentially severe adverse 

consequences to the petitioner, its 

customers, or the public. Id. To satisfy 

this standard, the Board proposed that 

the petitioner must demonstrate the 

alleged harm will occur before any relief 

could be ordered under 49 CFR 1146.1 

and that any relief ordered by the Board 

pursuant to 49 CFR 1146.1 would be 

rendered ineffective. NPRM, EP 762, 

slip op. at 7. The Board noted that such 

severe adverse circumstances would 

exist when there is a clear and present 

threat to public health, safety, or food 

security, or a high probability of 

business closures or immediate and 

extended plant shutdowns. Id. 

Additionally, the Board proposed that 

the petition must include a verified 

description of any efforts taken to 

resolve the issue through other means, 

such as consultation with RCPA or 

direct discussions with the incumbent 

railroad. Id. at 8. The Board proposed to 

limit the length of petitions to three 

substantive pages (not including cover 

page, verifications, or certificate of 

service), noting that a petitioner could 

present further evidence in support of 

its petition during a telephonic or 

virtual hearing. Id. 

Under the Board’s proposal, a petition 

filed under the proposed 49 CFR 1146.2 

would be assigned to a designated Board 

Member for initial resolution. NPRM, EP 

762, slip op. at 8. The Board proposed 

that the Board Member designation 

would rotate on a quarterly basis, and if 

the designated Board Member is 

unavailable, the next Board Member in 

the rotation would be assigned to 

evaluate the petition. Id. The designated 

Board Member would notify the parties 

regarding a telephonic or virtual hearing 

to be held between 24 and 48 hours after 

receipt of the petition or as soon 

thereafter as logistically possible. Id. 

Given the accelerated process, the 

Board’s proposed schedule did not 

include a period for written replies— 

oral replies to the petition would occur 

during the hearing—however, the 

designated Board Member could order 


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21The Board appreciates the Coalition 

Associations’ suggestion that 1146.2 might make it 

possible to discard its proposal to shorten the 

deadlines for 1146.1, but concludes that the best 

solution is to adopt 1146.2 and to shorten the 

deadlines under 1146.1. The situations that justify 

the use of 1146.1 are emergencies, even if they are 

not ‘‘acute’’ emergencies, so a faster timeline will 

be beneficial. 

the carriers to submit, or the carriers 

could voluntarily submit, an alternative 

plan to address the emergency within 24 

hours of the hearing. Id. The Board’s 

proposal contemplated an initial 

decision on the merits of the petition by 

the designated Board Member within 

two business days after completion of 

the hearing. Id. That initial decision 

could be appealed to the entire Board 

pursuant to 49 CFR 1115.2. Id. 

The Board proposed that any relief 

granted under 49 CFR 1146.2 clearly 

avoid any substantial impairment of the 

ability of a rail carrier to serve its own 

customers adequately or to fulfill its 

common carrier obligations. NPRM, EP 

762, slip op. at 8–9. Given the 

accelerated nature of this process, the 

Board also proposed a 20-day limit on 

relief, which it stated should provide 

petitioners with sufficient time to 

pursue relief up to 240 days, if 

necessary, under 49 CFR 1146.1. Id. at 

9. Under the Board’s proposal, if a 

petition for relief under 49 CFR 1146.2 

is denied for failure to satisfy the 

standard for relief, the petitioner may 

appeal that ruling to the entire Board, or 

the petitioner may file a new petition 

pursuant to 49 CFR 1146.1 regarding the 

same service emergency. NPRM, EP 762, 

slip op. at 8. 

According to the Coalition 

Associations, the creation of this new 

accelerated process is the ‘‘single most 

impactful proposal’’ in the NPRM. 

(Coalition Ass’ns Comment 2.) NACD 

also supports the creation of this new 

accelerated process, noting that 

emergencies require immediate action 

and accelerating the timeliness would 

facilitate relief in emergency situations. 

(NACD Comment 3.) SDDC states that it 

‘‘sees the potential for a significant 

improvement from adding [49 CFR] 

1146.2,’’ (SDDC Comment 1), and NITL 

and ISRI state that the creation of this 

new process is a critical change that will 

enhance the usefulness of the Board’s 

emergency service regulations, (NITL & 

ISRI Reply 1–2). AFPM, IMA, NGFA, 

RFA, and USDA also indicated their 

support of the new proposed process at 

49 CFR 1146.2. (AFPM Comment 12; 

IMA Comment 14; NGFA Comment 6; 

RFA Comment 2; USDA Comment 1.) 

AAR, CSXT, and NS urge the Board 

to discard its proposal for a new 

accelerated process. According to AAR, 

the new accelerated process is 

‘‘fundamentally unfair and 

impracticable,’’ and the ‘‘extreme 

limitations on development of a record 

and meaningful opportunity to be heard 

present substantial questions of 

procedural fairness and due process.’’ 

(AAR Comment 13.) AAR notes that 

neither the incumbent nor any 

alternative carrier would have the 

opportunity to reply in writing to a 

petition and claims ‘‘the incumbent 

(and any alternative carrier) will have 

virtually no time to investigate the few 

facts provided’’ in the three-page 

petition. (Id.) AAR doubts the timeline 

would allow the Board to ‘‘make a 

responsible decision’’ and asserts its 

concerns are exacerbated by the fact that 

petitioners would not be required to 

obtain an advance commitment from an 

alternative carrier. (AAR Comment 13– 

14; see also CSXT Comment 10 (‘‘The 

proposed acceleration to the [49 CFR] 

1146.1 process is as fast as the Board 

could reasonably act in a manner that 

ensures that the parties and the Board 

have sufficient time to both gather and 

analyze the available information to 

make a wise decision with such an 

extraordinary power.’’) (emphasis 

omitted); NS Comment 4 (‘‘[T]he 

proposed accelerated process will not 

allow for the development of a factual 

record upon which the Board can 

act.’’).) 

CSXT argues it is unnecessary to 

create a second process when the Board 

is shortening the existing process. 

(CSXT Comment 9.) According to CSXT, 

because the Board’s authority under 49 

U.S.C. 11123 is limited to acute service 

emergencies, there is ‘‘no authority for 

an even more extraordinary remedy for 

a different category of emergency— 

emergent is emergent.’’ (CSXT Comment 

9.) CSXT also asserts the Board has not 

explained why ‘‘acute service 

emergencies’’ cannot be handled under 

49 CFR 1146.1 or through the Board’s 

injunctive authority at 49 U.S.C. 

1321(b)(4). (CSXT Comment 9.) 

NS likewise cites to the Board’s 

injunctive authority as a reason for 

discarding the proposed new process, 

noting that the Board has in the past 

granted an injunction where emergency 

service was sought. (NS Comment 5 n.4 

(citing Cent. Valley Ag Grinding, Inc. v. 

Modesto & Empire Traction Co., NOR 

42159, slip op. at 7 (STB served June 12, 

2018).) NS further argues that the Board 

previously declined to shorten the 

timeline of 49 CFR 1146.1 and that there 

is no evidence a faster process is 

‘‘needed or superior to the current 

expedited timeline in [49 CFR] 1146.1.’’ 

(NS Comment 5.) NS asserts that if the 

Board is concerned about the timeline of 

the 49 CFR 1146.1 process, the Board 

can eliminate the rebuttal period. (NS 

Comment 5 n.4.) 

On reply, the Coalition Associations 

urge the Board to reject the carriers’ 

requests to abandon the accelerated 

process and suggest several 

modifications to address the concerns 

raised. (Coalition Ass’ns Reply 8.) First, 

the Coalition Associations suggest that 

rather than discarding the new 

accelerated process, the Board could 

discard its proposal to shorten the 

existing 49 CFR 1146.1 process. 

(Coalition Ass’ns Reply 8.) According to 

the Coalition Associations, the 

accelerated process would sufficiently 

address shippers’ concerns that the 49 

CFR 1146.1 process is ‘‘too slow and 

cumbersome for the most time-sensitive 

emergencies.’’ (Coalition Ass’ns Reply 

8.) The Coalition Associations also state 

they are open to limiting the relief 

available under 49 CFR 1146.2 to 

incumbent-based relief only. (Coalition 

Ass’ns Reply 8–9.) 

NITL and ISRI also oppose the 

carriers’ proposal to jettison the 

accelerated process, noting that it offers 

one of the ‘‘greatest opportunit[ies] to 

improve the usefulness of the [Board’s 

regulations].’’ (NITL & ISRI Reply 3.) 

Shipper Groups argue that ‘‘[t]here is no 

basis to conclude at this stage that any 

railroad will be deprived of a fair 

hearing without the opportunity to 

make a written presentation.’’ (Shipper 

Grps. Reply 8.) 

The Board finds that an accelerated 

process is warranted to address acute 

service emergencies more efficiently. As 

noted in the NPRM, the most serious 

issue identified by stakeholders was the 

timeliness of regulatory action in 

situations involving acute service 

emergencies. In certain instances, the 

process in 49 CFR 1146.1 would simply 

take too long (even under the shortened 

1146.1 timeline adopted in this final 

rule) for a shipper facing an acute 

emergency to utilize it effectively, even 

though the shipper might otherwise 

qualify for emergency service relief. The 

accelerated process addresses this 

timeliness issue by streamlining the 

petition process in certain emergency 

situations to allow the Board to act 

quickly while providing it with enough 

time to make a responsible decision 

while maintaining adequate due process 

for carriers.21

Although the process will be short, 

carriers will have a meaningful 

opportunity to reply to the petition, and 

the provision of an oral response at a 

hearing is consistent with 49 U.S.C. 

11123, which intended summary 

procedures in these emergency 


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22As noted above, the Board’s decision would not 

be subject to the APA. See 49 U.S.C. 11123(b)(1). 

23NS contends that the Board should not adopt 

a shorter 1146.2 process because it rejected a 

shorter 1146.1 process when it adopted the rule in 

1998. (NS Comment 5.) But the fact that relief under 

1146.2 is significantly more limited than relief 

under 1146.1 (a distinction that did not exist in 

1998) weighs in favor of a shorter time frame. See 

Expedited Relief, EP 628, slip op. at 16. Also, the 

absence of rebuttal and reply periods in 1146.2 will 

facilitate a faster process. Moreover, as explained 

above in connection with 1146.1, the Board has 

reevaluated its views of the feasibility of faster 

timelines than the one established in 1998. 

24NS argues that the 1146.2 process is 

unnecessary because the Board could issue 

preliminary injunctions instead, but the emergency 

service standard is different from the preliminary 

injunction standard, as discussed in more detail 

below. The fact that the Board has found it 

appropriate under certain circumstances to issue 

preliminary injunctions in lieu of emergency 

service orders does not mean that preliminary 

injunctions are an adequate substitute for 1146.2. 

25The Board agrees that not all ‘‘immediate plant 

shutdowns’’ are genuine emergencies that would 

qualify for relief under 1146.2 and, as reflected in 

the language of 1146.2, that it is highly unlikely that 

a plant ‘‘slowdown’’ would ever constitute a 

genuine emergency under 1146.2. 

26The Coalition Associations further note that 

captive shippers, which they claim have the 

greatest need for emergency service, have the least 

ability to use alternative transportation. (Coalition 

Ass’ns Reply 10–11.) 

27 49 CFR 1146.2 will also be revised to include 

reference to 49 U.S.C. 11123 in a manner similar 

to 49 CFR 1146.1. 

situations.22 Additionally, the 

regulations do not preclude the 

provision of written comments by the 

rail carriers; it simply does not provide 

specific extra time for them in the 

necessarily short schedule. Nor will the 

filing of a petition be the first 

opportunity for carriers to investigate 

the circumstances surrounding the 

particular service issue. Prior to filing at 

the Board, a petitioner would have to 

engage in the process mandated by 49 

CFR 1146.2(a), which requires that 

parties seek, in good faith, to resolve 

any service issues through an informal 

dispute resolution process first. Finally, 

the accelerated process limits relief to 

no more than 20 days, and parties may 

petition the Board to reconsider its 

decision.23 The Board understands the 

gravity of issuing emergency service 

orders and finds that this new process 

will accommodate the procedural rights 

of all parties while affording the Board 

the ability to swiftly act on behalf of the 

public interest in necessary situations, 

as Congress intended.24

Concerning the standard for relief 

proposed by the Board, the Coalition 

Associations state that the proposal 

‘‘reasonably restricts this process to 

circumstances that threaten severe 

consequences to the shipper, its 

customers, or the public that cannot be 

avoided using the [49 CFR] 1146.1 

procedures.’’ (Coalition Ass’ns 

Comment 3.) However, several 

commenters ask the Board to define 

‘‘acute service emergency’’ more clearly. 

AFPM, IMA, and PRFBA urge that the 

Board permit any plant shutdown to 

qualify for relief under this new process, 

arguing that any shutdown is acute. 

(AFPM Comment 12; IMA Comment 14; 

PRFBA Comment 14.) AFPM suggests 

removing the requirement that plant 

shutdowns be ‘‘extended,’’ (AFPM 

Comment 12), and IMA and PRFBA 

suggest removing the requirement that 

plant shutdowns be ‘‘immediate and 

extended,’’ (IMA Comment 14; PRFBA 

Comment 14). NMA expresses concern 

that entities may interpret ‘‘acute 

service emergency’’ differently and 

notes that if there are multiple 

emergencies at the same time, the Board 

may need to weigh one emergency over 

the other. (NMA Comment 3.) 

AAR opposes allowing any plant 

slowdown or shutdown to qualify under 

49 CFR 1146.2, arguing that not all plant 

slowdowns, shutdowns, or even 

closures are genuine emergencies that 

would qualify for emergency service 

relief.25 (AAR Reply 5–6.) According to 

AAR, ‘‘shutdowns and closures can 

often be remedied with monetary 

damages.’’ (AAR Comment 6.) AAR and 

NS both argue the accelerated process, 

if adopted, should be more narrowly 

tailored, available only if the petitioner 

will experience immediate and 

irreparable harm, as is required for a 

preliminary injunction or temporary 

restraining order. (AAR Comment 6; NS 

Comment 6–7.) NS notes emergency 

service orders are similar to preliminary 

injunctions in that both are 

extraordinary remedies, (NS Comment 

7), and AAR argues that much like 

temporary restraining orders, petitions 

brought under 49 CFR 1146.2 would be 

decided pursuant to a short procedural 

schedule with ‘‘minimal opportunity for 

response from the involved railroad[s],’’ 

(AAR Comment 6 (brackets in original)). 

Shipper Groups and the Coalition 

Associations both take issue with AAR’s 

suggestion that not all plant shutdowns 

meet the statutory requirements for an 

emergency under 49 U.S.C. 11123. 

(Shipper Grps. Reply 2; Coalition Ass’ns 

Reply 10.) According to Shipper 

Groups, the basis for relief should be 

decided in individual adjudications, not 

based on hypothetical facts at the 

rulemaking stage. (Shipper Grps. Reply 

2.) 

Shipper Groups and the Coalition 

Associations also both oppose applying 

the standard for injunctions at 49 U.S.C. 

1321(b)(4) to emergency service 

petitions. (Shipper Grps. Reply 4; 

Coalition Ass’ns Reply 12.) The 

Coalition Associations argue that the 

irreparable harm standard considers 

whether the petitioner could be made 

whole, whereas the Board’s emergency 

service authority is also exercised for 

the public interest. (Coalition Ass’ns 

Reply 12–13). According to Coalition 

Associations, ‘‘[i]t is entirely 

conceivable that the petitioner could be 

made whole with monetary damages, 

but the broader public interest could 

not.’’ (Id. at 13.) The Coalition 

Associations further argue that 

monetary damages are not a realistic 

remedy for plant shutdowns as most 

contracts and tariffs allow only for 

direct damages (i.e., primarily the 

additional cost of alternative 

transportation) but not consequential 

damages.26 (Id. at 10.) According to 

Shipper Groups, the fact that shippers 

need to seek emergency relief in the first 

place is evidence that the ‘‘other types 

of proceedings’’ AAR references are 

insufficient and fail to deter carriers 

from curtailing service. (Shipper Grps. 

Reply 2 (quoting AAR Comment 5).) 

According to Shipper Groups, the 

economic losses shippers face from rail 

service failures can be massive, and the 

carriers’ proposal would ‘‘categorically 

preclude[]’’ shippers and their 

customers from receiving emergency 

service. (Shipper Grps. Reply 3–4.) 

The Board will revise the portion of 

49 CFR 1146.2(a) that states ‘‘immediate 

and extended plant shutdowns’’ to 

simply state ‘‘immediate plant 

shutdowns.’’ Striking ‘‘extended’’ as a 

qualifier allows the Board to consider 

how the impact of a shutdown will vary 

by industry. In some industries, for 

example, imminent significant harm 

and severe adverse consequences could 

occur immediately upon plant 

shutdown. This change will allow the 

Board to better assess petitions for 

emergency relief based on the 

circumstances of the underlying 

emergency.27

The irreparable harm standard 

applicable to injunctions under section 

49 U.S.C. 1321(b)(4) will not be 

imported by the Board to its 

consideration of emergency petitions 

under 49 U.S.C. 11123. Congress has 

kept separate the emergency service and 

preliminary injunction powers of the 

Board. The Board sees no reason to 

conflate the general preliminary 

injunction standard in 49 U.S.C. 

1321(b)(4) with the more specific 

emergency issues arising under 49 

U.S.C. 11123, which provides an 

independent standard for when it 

applies, see 49 U.S.C. 11123(a). 


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28NS notes the NPRM did not propose to amend 

the Board regulations at 49 CFR 1011.4 to delegate 

this authority to an individual Board Member. (NS 

Comment 11 n.10.) Because the regulations adopted 

in this final rule provide for a full Board decision, 

this modification is unnecessary. 

NGFA and AAR ask the Board to 

clarify the phrase ‘‘food security.’’ More 

specifically, NGFA asks the Board to 

clarify that the new accelerated process 

could be used in situations presenting a 

‘‘clear and present threat to the health 

of livestock.’’ (NGFA Comment 6.) 

NGFA states that railroads’ failures to 

deliver corn, which its members process 

into feed for livestock, can be damaging 

and potentially catastrophic to the 

health of livestock populations. (Id.) 

AAR questions what the phrase would 

include (e.g., does it cover a shortage of 

pet food, livestock feed, potato chips, or 

soda) and asserts it is not clear ‘‘what a 

threat to ‘food security’ would entail in 

the railroad context.’’ (AAR Comment 

7.) The Coalition Associations argue that 

‘‘food security’’ need not be defined 

more clearly as it is ‘‘common sense’’ 

and note that food security is ‘‘traced 

back to the ultimate food sources, not 

the manufactured products in the AAR’s 

hypotheticals.’’ (Coalition Ass’ns Reply 

11.) 

Further clarification of ‘‘food 

security’’ is unnecessary at this time. 

While the Board agrees with the 

Coalition Associations that shortages of 

the ultimate food sources are more 

likely to constitute an emergency than 

shortages of manufactured products, the 

Board cannot anticipate all 

circumstances of potential food 

security-related emergencies. Instead, a 

case-by-case application that affords the 

Board flexibility in addressing 

situations based on the specific 

conditions of each case will best allow 

the Board to apply these regulations 

appropriately. 

SDDC requests the Board add ‘‘a 

threat to national defense’’ to the 

standard for relief under 49 CFR 1146.2. 

(SDDC Comment 1.) SDDC states that 

‘‘national defense is one very important 

aspect of the public interest, and the 

timely deployment of military units to 

a port or timely movement of critical 

defense materiel are important to that 

end.’’ (Id.) AAR states it does not object 

to this change if the accelerated process 

is adopted. (AAR Reply 7.) The Board of 

course agrees that national defense is 

critical to the public interest and will 

therefore include language in 49 CFR 

1146.2 to reflect that the accelerated 

process is an appropriate mechanism for 

addressing threats to national defense 

related to rail service. 

Regarding the proposed petition 

requirements under 49 CFR 1146.2, 

AAR requests that the Board require a 

petitioner to include in its petition that 

it has ‘‘previously notified the 

incumbent railroad of the emergency 

and its intent to file.’’ (AAR Comment 

17.) According to AAR, while the 

proposal requires a good faith effort to 

resolve the dispute before filing, it does 

not require the petitioner to notify the 

incumbent carrier of the emergency. 

(Id.) AAR asserts that this modification 

would ensure the incumbent carrier has 

sufficient notice to prepare a response to 

a petition and that the Board has the 

most complete information. (Id.) 

Shipper Groups argue this concern is 

unfounded. (Shipper Grps. Reply 8.) 

Additionally, Shipper Groups express 

concern with the Board’s proposal to 

limit petitions under 49 CFR 1146.2 to 

three substantive pages. According to 

Shipper Groups, this page limit may 

lead to skeletal filings that could cause 

uncertainty, confusion, and longer 

hearings. (Shipper Grps. Comment 10.) 

Shipper Groups suggest that a word 

count limitation would be less subject to 

manipulation. (Id.) 

The Board agrees with Shipper 

Groups regarding AAR’s concerns here. 

It is redundant to require petitions to 

state that petitioners have notified 

incumbent carriers of emergencies and 

their intent to file for emergency service 

given that shippers are required in good 

faith to seek informal resolution of the 

matter before filing under 49 CFR 

1146.2 and to describe those efforts in 

their petitions. The Board expects that 

shippers facing such an emergency 

would make the impact of the service 

issue on their business clear to the 

railroad during informal discussions. 

The Board declines to adopt Shipper 

Groups’ suggestion that it address 

concerns about the page limitation by 

using a word limit instead. It is not clear 

from Shipper Groups’ argument why 

such a change would be meaningful, 

and doing so would depart from 

standard Board practice. See, e.g., 49 

CFR 1115.2(d), 1115.3(d), 1115.5(c). 

Moreover, 49 CFR 1104.2 sets forth 

requirements such as page size, font 

size, and line spacing, which will help 

prevent parties from manipulating the 

limitations. The Board will, however, 

expand the petition page limit from 

three substantive pages to five 

substantive pages to accommodate the 

requirements that petitions include a 

particularized description of the 

commodities and volumes subject to the 

requested relief and the timing 

necessary for such relief, including why 

relief under 1146.1 would be ineffective; 

as well as a particularized description of 

how the measurable deterioration or 

other demonstrated inadequacy, absent 

the requested relief, presents imminent 

significant harm and threatens 

potentially severe consequences as 

specified in 1146.2(a). 

AAR expresses concern about the 

Board’s proposal to rotate, on a 

quarterly basis, the Board Member 

assigned to evaluate petitions for 

emergency relief and issue the initial 

decision. AAR projects that a single 

quarter may see a large number of 

complaints, which could tax a single 

Board Member; AAR goes so far as to 

speculate that single-Member decision 

making could even lead to ‘‘judge 

shopping’’ by shippers. (AAR Comment 

15–16.) AAR suggests that the Board 

‘‘shorten the rotation, not make it 

public, and allow for at least two 

Members’’ to resolve cases or allow 

Board staff to hold a conference before 

making a recommendation to the full 

Board, as is done for motions to compel. 

(Id. at 16.) The Coalition Associations 

do not object to AAR’s proposals 

intended to mitigate the burdens that 

could fall unduly upon a single Board 

Member; however, they object to AAR’s 

statement that petitioners would ‘‘judge 

shop.’’ (Coalition Ass’ns Reply 14.) 

According to the Coalition Associations, 

‘‘any circumstance in which a shipper 

can afford to wait until the following 

calendar quarter to have its petition 

decided by a different Board Member 

would not qualify for the [49 CFR] 

1146.2 process.’’ (Coalition Ass’ns Reply 

14–15.) Shipper Groups argue that 

AAR’s concerns may never materialize, 

and if they do, the Board can address 

them at that time. (Shipper Grps. Reply 

7.) 28

After considering the concerns raised 

in the comments, the Board finds that 

the objectives of the new 49 CFR 1146.2 

process would be best achieved through 

a full Board decision rather than 

through delegation to a single Board 

Member. The Board’s emergency service 

powers, when exercised, undoubtedly 

have a significant impact on various 

parties and the interstate rail network as 

a whole. Consideration by the full Board 

better lends itself to the exercise of that 

power, even in the accelerated process. 

Moreover, consideration by the full 

Board in the first instance (rather than 

upon appeal of a single-Member 

decision) will allow the process to be 

more efficient while still protecting the 

right to appeal by petitioning the Board 

for reconsideration. Accordingly, the 

regulations adopted in this final rule 

provide for a full Board decision on the 

merits of petitions seeking relief under 

49 CFR 1146.2. To accommodate this 

procedural change but still allow 

proceedings to move quickly, instead of 

a hearing before the designated single 


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29 Designated Board staff will not be recused from 

handling substantive elements of the case. 

30The Board Members may do so ‘‘without regard 

to subchapter II of chapter 5 of title 5.’’ 49 U.S.C. 

11123(b)(1). 

31Shipper Groups assert that the possibility for 

consecutive appeals—first, to the entire Board, 

followed by a petition for reconsideration of the full 

Board decision—could dissuade petitioners from 

utilizing the accelerated process because the 49 CFR 

1146.1 process, which takes 10 business days, 

would appear to be less burdensome. (Shipper 

Grps. Comment 10–11.) On reply, AAR argues that 

the right to appeal is ‘‘fundamental and already 

required by the Board’s own regulations’’ and that 

‘‘prohibiting appeal from the decision of a single 

Board [M]ember would be patently unfair and a 

denial of due process.’’ (AAR Reply 4.) Now that 

the entire Board will decide on petitions under 49 

CFR 1146.2, parties will no longer need to appeal 

these decisions to the full Board before then 

petitioning for reconsideration. However, petitions 

for reconsideration will be permitted under a 

shortened timeline, similar to the timeline provided 

for appeals in the NPRM, given the nature of 

proceedings under the accelerated process. The 

Board will amend 49 CFR 1115.3 accordingly. 

32AAR notes the proposed language for 49 CFR 

1146.2 in the NPRM did not include a requirement 

to provide even an identification of an alternative 

carrier, although potential alternative carriers 

would be required to attend the hearing. (AAR 

Comment 11 n.16.) However, 49 CFR 1146.2(e) 

requires service on other parties, which, as 

discussed below, includes any proposed alternative 

carriers. Accordingly, the contact information for 

any potential alternative carriers should be 

provided on the certificate of service. 

Board Member as was proposed in the 

NPRM, Board staff will hold a staff-led 

conference with parties, as suggested by 

AAR.29 (AAR Comment 16.) Board 

Members may attend the staff-led 

conference.30 A transcript or recording 

of the staff-led conference will be made 

available to all Board Members before 

they make their decision and will be 

posted in the docket following any 

necessary redactions for confidentiality. 

In addition, given the change from a 

single Member to full Board decision, 

the Board will endeavor to issue a 

decision on the merits within three 

business days, rather than two as was 

proposed in the NPRM. This process is 

intended to be quick and flexible while 

also respecting the regulatory powers 

involved in the emergency service 

process.31 Moreover, including a staffled conference might encourage 

discussion and resolution among parties 

to a proceeding. 

NGFA asks the Board to require 

potential alternative carriers to address 

at the hearing proposed by the Board in 

the NPRM ‘‘whether the remedy 

proposed by the petitioner is unsafe, 

infeasible, or will substantially impair 

the replying carrier’s ability to serve its 

other customers adequately or fulfill its 

common carrier obligations,’’ as the 

proposed regulations required of 

incumbent carriers. (NGFA Comment 6– 

7.) Additionally, CSXT and NS argue 

that if the Board adopts the accelerated 

process, it should modify the proposed 

treatment of confidential information 

because closing portions of the 

proposed hearing to certain parties is 

unnecessary and would be unfair, 

prejudicial, and inconsistent with how 

the Board treats confidential 

information in other proceedings 

(accessible subject to a protective order). 

(CSXT Comment 13; NS Comment 11.) 

Potential alternative carriers will be 

required to attend the staff conference 

where that information can be discussed 

and will be required to identify, at the 

conference, facts showing whether the 

proposed alternative service would be 

infeasible, or substantially impair the 

replying carrier’s service to other 

customers. As for CSXT’s and NS’s 

positions on modifying the treatment of 

confidential information, the Board 

finds it is best to adopt this aspect of the 

regulation as proposed in order to 

maintain flexibility. This flexibility is 

imperative, for example, if a case 

involves multiple carriers and requires 

discussion of highly confidential 

information. While the Board will leave 

this aspect of the proposal unchanged, 

the Board emphasizes that transparency 

will be pursued to the greatest extent 

possible. 

Regarding the proposed limitations on 

relief available under the new process, 

BLET argues the 20-day relief limit 

would provide a ‘‘back-stop to causing 

most major harms.’’ (BLET Comment 4– 

5.) CSXT asks the Board to clarify in the 

regulations that orders under 49 CFR 

1146.2 may not be extended beyond the 

20-day period and that additional relief 

would require a petition under 49 CFR 

1146.1. (CSXT Comment 12.) AAR and 

NS argue that relief under the proposed 

new accelerated process should be 

limited to incumbent-based relief. (AAR 

Comment 10–11; see also NS Comment 

5.) Both carrier interests argue it would 

be impractical for an alternative carrier 

to provide service for 20 days and that, 

for safety reasons, crews from the 

alternative carrier must be qualified to 

operate on the incumbent’s tracks. (AAR 

Comment 10–11; NS Comment 5–6.) 

AAR adds that if an incumbent crew is 

available to train the crew of the 

alternative carrier, the incumbent crew 

could simply be directed to provide the 

service itself. (AAR Comment 10–11.) 

AAR asserts that limiting 49 CFR 1146.2 

to incumbent-based relief would 

provide more time to identify an 

alternative carrier for continued relief 

under 49 CFR 1146.1. (AAR Comment 

11.) 32 The Coalition Associations state 

they are amenable to limiting the relief 

under 49 CFR 1146.2 to ‘‘incumbentbased relief’’ only, which they 

understand to include relief that does 

not involve the grant of trackage rights 

to an alternative carrier but could 

include granting an alternative through 

route using an alternative carrier. 

(Coalition Ass’ns Reply 7.) 

The Board will adopt language 

clarifying that relief under 49 CFR 

1146.2 may not be extended beyond the 

20-day period and any additional relief 

will require a separate petition under 49 

CFR 1146.1. This will provide a clearer 

pathway for any party wishing to seek 

additional emergency relief. However, 

the Board will not limit 49 CFR 1146.2 

to provide for incumbent-based relief 

only. Section 1146.1 allows the Board to 

provide for trackage rights to an 

alternative carrier with the same safety 

and feasibility concerns present as those 

raised regarding 49 CFR 1146.2. 

Additionally, while the Board expects 

incumbent-based relief to be utilized in 

the vast majority of instances, the Board 

finds it important to maintain flexibility 

in its process since, for example, there 

may be situations where arrangements 

between parties could make trackagerights relief more feasible. Nevertheless, 

the Board emphasizes that feasibility 

will be considered in determining what 

relief is appropriate in a given case and 

that it will not order a remedy that it 

deems infeasible. 

Several commenters asked the Board 

to clarify the proposed service 

requirements. CSXT questions whether 

the Board is suggesting that all 

pleadings must be e-filed with the 

Board, or whether it is proposing to 

introduce electronic service of 

pleadings, which cannot be 

accomplished through e-filing. (CSXT 

Comment 12.) AAR and NS each ask the 

Board to clarify that e-filing alone is not 

considered sufficient service since efiling on the Board’s website does not 

effectuate service on other parties or the 

FRA. (AAR Comment 16; NS Comment 

10.) NS states it ‘‘supports the Board 

adding a method of electronic service 

and suggests that the Board consider 

using language similar to that contained 

in 49 CFR 1104.12, which governs 

service of documents.’’ (NS Comment 

11.) The Coalition Associations agree 

that the requested clarifications are 

needed. (Coalition Ass’ns Reply 15.) 

They also ask the Board to consider 

requiring all Class I carriers to file with 

the Board the name and electronic 

address for service of petitions, which it 

states would ensure faster delivery to 

those carriers and maximize their 

response time. (Id.) 

The Board agrees that the proposed 

service provisions were unclear and will 

clarify them by revising the text to read 


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more like that in 49 CFR 1104.12. The 

Board should be served by e-filing on 

the Board’s website, given the short 

timeline of these proceedings. Service 

on other parties, including any 

proposed alternative carriers, and the 

FRA may be done by email, hand, or 

overnight delivery. In addition, all 

pleadings should also be emailed to 

ServiceEmergency@stb.gov. However, 

the Board will not at this time require 

the Class I carriers to file the name and 

electronic address for service of 

petitions. The contact information for 

the serving carrier is the type of 

information that should already be in 

the possession of the petitioner. 

Moreover, parties are required to make 

a good faith effort to resolve any service 

issues through an informal dispute 

resolution process, during which time 

they can obtain this information from 

the carrier, if needed. 

BLET expresses concern that 

emergency service for acute service 

emergencies might undermine collective 

bargaining agreements (CBAs). (BLET 

Comment 5.) The Board does not 

anticipate that CBAs will be an issue in 

most emergency service proceedings, 

but notes that any such issues are best 

resolved on a case-by-case basis in any 

event. 

Lastly, NMA cautions that the new 

process, if codified, should be used 

sparingly because, although ‘‘it is not 

the intent of the [Board] to create a new 

program to regulate rail, this proposed 

rulemaking is a slippery slope that has 

the potential to be abused by bad 

actors.’’ (NMA Comment 3; see also 

AAR Reply 8–9 (noting that it shares the 

concerns expressed by NMA).) While 

the accelerated process may impact 

informal dispute resolution between the 

parties, the Board finds no reason to 

assume potential abuse of the 

accelerated process itself. By its own 

definition, 49 CFR 1146.2 will be used 

only sparingly because it is much 

narrower than 49 CFR 1146.1, and the 

circumstances under which it can be 

used are limited. Moreover, it is in the 

interest of all parties to act in good faith, 

and the Board will deny petitions filed 

in bad faith or that otherwise abuse the 

Board’s processes. 

Contract and Exempt Traffic. Various 

carrier interests also ask the Board to 

clarify that traffic moving pursuant to a 

contract is not eligible for relief under 

the Board’s proposal. (AAR Comment 

18–19, CSXT Comment 12; NS 

Comment 7–10.) According to NS, the 

plain language of 49 U.S.C. 10709(c)(1) 

makes clear that traffic moving pursuant 

to a contract is outside the Board’s 

jurisdiction, but the Board’s final rule 

adopting 49 CFR 1146.1 ‘‘injected 

unnecessary ambiguity’’ into the issue. 

(NS Comment 7–10 (citing Expedited 

Relief, EP 628, slip op. at 10).) NS argues 

that even if a railroad stops service, if 

that service is governed by a contract, 

‘‘any relief . . . is wholly outside the 

Board’s jurisdiction,’’ and any remedies 

‘‘must be provided for in the contract 

itself (e.g., a force majeure provision) 

and are enforceable only in the courts 

and subject to applicable state law.’’ (Id. 

at 9 (citing 49 U.S.C. 10709(c)(2)).) 

CSXT asks that the Board require all 

petitions filed under part 1146 to 

include a verification that the 

transportation for which relief is sought 

is not governed by a contract. (CSXT 

Comment 12.) AAR also argues exempt 

traffic should be ineligible for relief 

under part 1146 because the expedited 

timelines would not provide sufficient 

time for the Board to complete the 

analysis required by statute to revoke an 

exemption. (AAR Comment 19.) AAR 

further argues that revocation of an 

exemption requires a decision of the full 

Board, not an individual Board Member 

as contemplated by 49 CFR 1146.2. 

(AAR Comment 20.) 

The Coalition Associations disagree, 

arguing the Board may exercise its 

authority to order emergency service 

over traffic covered by a contract. 

(Coalition Ass’ns Reply 3.) According to 

the Coalition Associations, Congress 

would not have granted the Board the 

broad emergency authority it did in 49 

U.S.C. 11123 only to carve out in 49 

U.S.C. 10709 the substantial volume of 

traffic covered by a contract, nor would 

Congress have subordinated the public 

interest to a private contract. (Coalition 

Ass’ns Reply 4.) The Coalition 

Associations contend that ‘‘[t]he 

transportation that occurs pursuant to 

an emergency service order is not 

occurring under a contract,’’ but rather 

is ‘‘alternate service pursuant to [49 

U.S.C.] 11123,’’ (Coalition Ass’ns Reply 

5), and they identify a prior instance 

where the Board exercised its 49 U.S.C. 

11123 authority over contract traffic, 

(Coalition Ass’ns Reply 4 (citing Joint 

Pet. for Serv. Ord., SO 1518 (STB served 

Oct. 31, 1997), modified and extended 

(STB served Dec. 4, 1997), further 

modified and extended (STB served 

Feb. 17 and 25, 1998), terminated with 

wind-down period (STB served July 31, 

1998).) 

NGFA also disagrees with the 

proposition that contract traffic is not 

eligible for emergency service relief, 

pointing to the Board’s rejection of this 

very argument made by AAR in the 

1998 final rule in Docket No. EP 628, 

and asserting that the Board ‘‘clearly 

established that it has jurisdiction to 

issue an order under [49 U.S.C.] 11123 

for movements subject to a 

transportation contract if the facts and 

circumstances require it.’’ (NGFA Reply 

1–2 (citing Expedited Relief, EP 628, 

slip op. at 10.)) NGFA likewise urges the 

Board to decline NS’s request for the 

Board to clarify that its emergency 

service authority does not apply to 

contract traffic, observing that the 

adoption of such a ‘‘blanket, 

overreaching prohibition’’ would be bad 

public policy because it would render 

the Board powerless to act when rail 

service failures significantly harm 

businesses and the public merely 

because the service is governed by a 

contract. (Id. at 3.) Rather, NGFA asks 

the Board to reaffirm its decision that 49 

U.S.C. 11123 grants the Board authority 

‘‘to act in the public interest to avert rail 

service emergencies, regardless of 

whether the service the railroad has 

failed to provide is governed by a tariff 

or a contract, subject to the restrictions 

set forth in [Expedited Relief, EP 628].’’ 

(NGFA Reply 3.) In a similar vein, 

NGFA disputes the claim that exempt 

traffic is ineligible for emergency 

service, citing Expedited Relief, EP 628, 

where the Board noted that this 

argument ‘‘is clearly wrong’’ because the 

Board ‘‘retain[s] full jurisdiction to deal 

with exempted transportation, as [the 

Board] can revoke the exemption at any 

time, in whole or in part, under [49 

U.S.C.] 10502(d).’’ (NGFA Reply 2 

(quoting Expedited Relief, EP 628, slip 

op. at 10).) 

NITL and ISRI similarly dispute 

carrier arguments that the Board lacks 

the power to exercise its emergency 

service authority over contract and 

exempt traffic. With respect to contract 

traffic, NITL and ISRI assert the carriers’ 

arguments ‘‘are factually and legally 

incorrect and contrary to the intent of 

Congress.’’ (NITL & ISRI Reply 3.) As for 

exempt traffic, NITL and ISRI request 

that the Board partially revoke existing 

class exemptions so they will not apply 

to requests for emergency service. (Id. at 

8.) NITL and ISRI argue there are 

‘‘substantial similarities’’ between the 

Board’s ‘‘partial revocation of the 

exemption for agricultural commodities 

and the circumstances involving exempt 

traffic and emergency service orders,’’ 

which would justify the Board partially 

revoking existing exemptions to permit 

shippers of exempt commodities to 

access the Board’s emergency service 

regulations. (Id. at 3–8.) 

Shipper Groups contend that the 

carriers have not presented any basis for 

the Board to depart from its decision in 

Expedited Relief, EP 628, (Shipper Grps. 

Reply 4), and argue that this issue is 

outside the scope of the proceeding 


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33For the purpose of Regulatory Flexibility Act 

analysis for rail carriers subject to Board 

jurisdiction, the Board defines a ‘‘small business’’ 

as only including those rail carriers classified as 

Class III rail carriers under 49 CFR part 1201, 

General Instructions 1–1. See Small Entity Size 

Standards Under the Regul. Flexibility Act, EP 719 

(STB served June 30, 2016). 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 but 

more than $40.4 million in 2019 dollars. The Board 

calculates the revenue deflator factor annually and 

publishes the railroad revenue thresholds in 

decisions and on its website. 49 CFR 1201.1–1; 

Indexing the Annual Operating Revenues of R.Rs., 

EP 748 (STB served June 29, 2023). 

because it was not included in the 

NPRM, (id. at 5). 

The NPRM did not make any new 

proposal regarding the application of 

section 11123 to contract traffic. In 

Expedited Relief, EP 628, the Board 

concluded that any advance rejection of 

all authority to address situations where 

a contract exists in an emergency would 

be inappropriate and declined to 

include any bright-line prohibition. 

Expedited Relief, EP 628, slip op. at 10. 

In the NPRM, the Board made no 

proposals changing the status of existing 

law on this issue and sees no reason to 

revisit that position here. 

As for exempt traffic, the Board 

reiterates that it has the authority to 

revoke exemptions when appropriate. 

Petitioners may request partial 

revocations in their filings at 49 CFR 

1146.1 or the new accelerated process at 

49 CFR 1146.2 (which will not be 

decided by a single Member, as the 

NPRM originally proposed, but by the 

full Board). See supra at 23–24. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(Regulatory Flexibility Act), 5 U.S.C. 

601–612, generally requires a 

description and analysis of new rules 

that would have a significant economic 

impact of 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 regulation’s impact, 

and (3) make the analysis available for 

public comment. 5 U.S.C. 601–604. In 

its final rule, the agency must either 

include a final regulatory flexibility 

analysis, 5 U.S.C. 604(a), or certify that 

the proposed rule would not have a 

‘‘significant impact on a substantial 

number of small entities,’’ 5 U.S.C. 

605(b). 

Because the goal of the Regulatory 

Flexibility Act is to reduce the cost to 

small entities of complying with federal 

regulations, the Regulatory Flexibility 

Act requires an agency to perform a 

regulatory flexibility analysis of small 

entity impacts 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 

under 5 U.S.C. 605(b) that the proposed 

rule would not have a significant 

economic impact on a substantial 

number of small entities within the 

meaning of the Regulatory Flexibility 

Act.33 The Board explained that the 

proposed changes were intended to 

improve the Board’s directed service 

procedures and would not mandate or 

circumscribe the conduct of small 

entities. Rather, the Board said, the 

changes would be largely procedural 

and would not have a significant 

economic impact on the Class III rail 

carriers to which the Regulatory 

Flexibility Act applies. Because affected 

shippers or railroads could seek the 

relief under 49 CFR part 1146 to obtain 

temporary relief from serious, localized 

service problems more quickly and 

effectively, the Board certified under 5 

U.S.C. 605(b) that the proposed rules, if 

promulgated, would not have a 

significant economic impact on a 

substantial number of small entities 

within the meaning of Regulatory 

Flexibility Act. 

The final rule adopted here revises 

the rules proposed in the NPRM; 

however, the same basis for the Board’s 

certification of the proposed rule 

applies to the final rule. Thus, the Board 

again certifies under 5 U.S.C. 605(b) that 

this final rule will not have a significant 

economic impact on a substantial 

number of small entities as defined by 

the Regulatory Flexibility Act. A copy of 

this decision will be served upon the 

Chief Counsel for Advocacy, Office of 

Advocacy, U.S. Small Business 

Administration, Washington, DC 20416. 

Paperwork Reduction Act 

In the NPRM, the Board sought 

comments pursuant to the Paperwork 

Reduction Act (PRA), 44 U.S.C. 3501– 

3521, Office of Management and Budget 

(OMB) regulations at 5 CFR 

1320.8(d)(3), and Appendix B, about the 

impact of the collection for the Directed 

Service Regulations (OMB Control No. 

2140–XXXX), concerning: (1) whether 

the collections of information, as added 

in the proposed rule, and further 

described in Appendix A, are necessary 

for the proper performance of the 

functions of the Board, including 

whether the collections have practical 

utility; (2) the accuracy of the Board’s 

burden estimates; (3) ways to enhance 

the quality, utility, and clarity of the 

information collected; and (4) ways to 

minimize the burden of the collection of 

information on the respondents, 

including the use of automated 

collection techniques or other forms of 

information technology, when 

appropriate. 

The Board estimated in the NPRM 

that the proposed requirements will 

have a total hourly burden of 2,710 

hours. There were no proposed nonhourly burdens associated with these 

collections. No comments were received 

pertaining to the collections of this 

information under the PRA. The new 

collections will be submitted to OMB 

for review as required under the PRA, 

44 U.S.C. 3507(d) and 5 CFR 1320.11. 

Congressional Review Act. Pursuant 

to the Congressional Review Act, 5 

U.S.C. 801–808, the Office of 

Information and Regulatory Affairs has 

designated this rule as a non-major rule, 

as defined by 5 U.S.C. 804(2). 

List of Subjects 

49 CFR Part 1011 

Administrative practice and 

procedure, Authority delegations 

(Government agencies), Organization 

and functions (Government agencies). 

49 CFR Part 1104 

Administrative practice and 

procedure. 

49 CFR Part 1115 

Administrative practice and 

procedure. 

49 CFR Part 1146 

Railroads. 

It is ordered: 

1. The Board adopts the final rule as 

set forth in this decision. Notice of the 

adopted rule will be published in the 

Federal Register. 

2. This decision is effective February 

23, 2024. 

3. A copy of this decision will be 

served upon the Chief Counsel for 

Advocacy, Office of Advocacy, U.S. 

Small Business Administration. 

Decided: January 18, 2024. 

By the Board, Board Members Fuchs, 

Hedlund, Oberman, Primus, and Schultz. 

Jeffrey Herzig, 

Clearance Clerk. 

For the reasons set forth in the 

preamble, the Surface Transportation 

Board proposes to amend title 49, 

chapter X, parts 1011, 1104, 1115, and 

1146 of the Code of Federal Regulations 

as follows: 


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PART 1011—BOARD ORGANIZATION; 

DELEGATIONS OF AUTHORITY 

■ 1. The authority citation for part 1011 

continues to read as follows: 

Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 

49 U.S.C. 1301, 1321, 11123, 11124, 11144, 

14122, and 15722. 

■ 2. Add § 1011.7(a)(2)(xx) to read as 

follows: 

§ 1011.7 Delegations of authority by the 

Board to specific offices of the Board. 

(a) * * * 

(2) * * * 

(xx) To delegate to Board staff any 

necessary parties for purposes of 

accelerated emergency service 

proceedings at § 1146.2 of this chapter. 

* * * * * 

PART 1104—FILING WITH THE 

BOARD–COPIES–VERIFICATION– 

SERVICE–PLEADINGS, GENERALLY 

■ 1. The authority citation for part 1104 

continues to read as follows: 

Authority: 5.U.S.C. 553 and 559; 18 U.S.C. 

1621; and 49 U.S.C. 1321. 

■ 2. Revise § 1104.7(b) to read as 

follows: 

§ 1104.7 Computation and extension of 

time. 

* * * * * 

(b) Extensions. Any time period, 

except those provided by law or 

specified in these rules respecting 

informal complaints seeking damage, 

may be extended by the Board in its 

discretion, upon request and for good 

cause. Requests for extensions must be 

served on all parties of record at the 

same time and by the same means as 

service is made on the Board. However, 

if service is made on the Board in 

person and personal service on other 

parties is not feasible, service on other 

parties should be made by first class or 

express mail. A request for an extension 

must be filed not less than 10 days 

before the due date, except that in cases 

seeking expedited relief for service 

emergencies under part 1146 of this 

chapter, a request for an extension must 

be made within 24 hours of service of 

the petition, reply, or other filing or 

procedural order of the Board as 

applicable. Only the original of the 

request and certificate of service need be 

filed with the Board. If granted, the 

party making the request should 

promptly notify all parties to the 

proceeding of the extension and so 

certify to the Board, except that this 

notification is not required in 

rulemaking proceedings. 

* * * * * 

PART 1115—APPELLATE 

PROCEDURES 

■ 1. The authority citation for part 1115 

continues to read as follows: 

Authority: 5 U.S.C. 559; 49 U.S.C. 1321; 

49 U.S.C. 11708. 

■ 2. Revise § 1115.3(e) to read as 

follows: 

§ 1115.3 Board actions other than initial 

decisions. 

* * * * * 

(e) Petitions must be filed within 20 

days after the service of the action or 

within any further period (not to exceed 

20 days) as the Board may authorize. 

However, in cases under Final Offer 

Rate Review and in cases seeking 

expedited relief for service emergencies 

under the accelerated process at 49 CFR 

1146.2, petitions must be filed within 5 

days after the service of the action, and 

replies to petitions must be filed within 

10 days after the service of the action. 

* * * * * 

PART 1146—EXPEDITED RELIEF FOR 

SERVICE EMERGENCIES 

■ 1. The authority citation for part 1146 

continues to read as follows: 

Authority: 49 U.S.C. 1321, 11101, and 

11123. 

■ 2. Revise § 1146.1 to read as follows: 

§ 1146.1 Prescription of alternative rail 

service or directed action by an incumbent 

carrier. 

(a) General. Alternative rail service, or 

directed action by an incumbent carrier, 

will be prescribed under 49 U.S.C. 

11123(a) if the Board determines that, 

over an identified period of time, there 

has been a substantial, measurable 

deterioration or other demonstrated 

inadequacy in rail service provided by 

the incumbent carrier. In prescribing the 

relief described herein, the Board may 

act on its own initiative or pursuant to 

a petition. 

(b) Procedure for petition for relief— 

(1) Petition for relief. Affected shippers 

or railroads may seek the relief 

described in paragraph (a) of this 

section by filing an appropriate petition 

containing: 

(i) A full explanation, together with 

all supporting evidence, to demonstrate 

that the standard for relief contained in 

paragraph (a) of this section is met; 

(ii) A summary of both the petitioner’s 

discussions with the incumbent carrier 

of the service problems (including a 

description of the efforts taken to 

resolve the matter prior to filing of the 

petition, verified by a person or persons 

with knowledge of the efforts taken to 

resolve the matter), and the reasons why 

the incumbent carrier is unlikely to 

restore adequate rail service consistent 

with the petitioner’s current 

transportation needs within a 

reasonable period of time; 

(iii) In a petition that seeks alternative 

rail service, identification of at least one 

possible rail carrier to provide 

alternative service, based on the 

petitioner’s understanding of other rail 

carriers’ nearby operations, that would 

meet the current transportation needs of 

the petitioner; and 

(iv) A detailed explanation of the 

specific remedy that is being sought. 

(2) Reply. The incumbent carrier and 

any proposed alternative carriers must 

file a reply to a petition under this 

paragraph within three (3) business days 

of service of the petition. If applicable, 

any reply must address whether the 

specific remedy proposed by the 

petitioner would be unsafe or infeasible, 

or would substantially impair the 

carrier’s ability to serve its other 

customers adequately or fulfill its 

common carrier obligations. 

(3) Rebuttal. The party requesting 

relief may file rebuttal no more than two 

(2) business days after the reply is filed. 

(4) Board Decision. The Board will 

endeavor to issue a decision five (5) 

business days after receiving the 

rebuttal or time has expired for the party 

requesting relief to file a rebuttal, 

whichever is earlier. 

(c) Presumption of continuing need. 

Unless otherwise indicated in the 

Board’s order, a Board order issued 

under paragraph (a) of this section shall 

establish a rebuttable presumption that 

the transportation emergency will 

continue for more than 30 days from the 

date of that order. 

(d) Procedure for petition to terminate 

relief—(1) Petition to terminate relief. 

Should the Board prescribe alternative 

rail service under paragraph (a) of this 

section the incumbent carrier may 

subsequently file a petition to terminate 

that relief. Such a petition shall contain 

a full explanation, together with all 

supporting evidence, to demonstrate 

that the carrier is providing, or is 

prepared to provide, adequate service. 

Carriers are admonished not to file such 

a petition prematurely. 

(2) Reply. Parties must file replies to 

petitions to terminate filed under this 

paragraph (d) within five (5) business 

days. 

(3) Rebuttal. The incumbent carrier 

may file any rebuttal no more than three 

(3) business days later. 

(e) Service. Every document filed with 

the Board under this section must 

include a certificate showing 

simultaneous service upon all parties to 


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the proceeding, including any proposed 

alternative carriers and the Federal 

Railroad Administration. Service on the 

parties must be by the same method and 

class of service used in serving the 

Board, with charges, if any, prepaid. 

One copy must be served on each party. 

If service is made on the Board in 

person, and personal service on other 

parties is not feasible, service must be 

made by overnight delivery. If a 

document is filed with the Board 

through the e-filing process, a copy of 

the e-filed document must be emailed to 

other parties if that means of service is 

acceptable to those other parties. If 

email is not acceptable to the receiving 

party, a paper copy of the document 

must be personally served on the other 

parties. If neither email nor personal 

service is feasible, service of a paper 

copy must be by overnight delivery. 

When a party is represented by a 

practitioner or attorney, service upon 

the practitioner is deemed to be service 

upon the party. All pleadings under this 

section must also be emailed to 

ServiceEmergency@stb.gov. 

■ 3. Add § 1146.2 to read as follows: 

§ 1146.2 Accelerated process. 

(a) Request for accelerated process. 

After making a good faith effort to 

resolve its service issue through an 

informal dispute resolution process or 

service of the Board, affected shippers 

or railroads may seek accelerated 

temporary interim relief under 49 U.S.C. 

11123(a) for substantial, measurable 

deterioration or other demonstrated 

inadequacy in rail service provided by 

the incumbent carrier that presents 

potential imminent significant harm and 

threatens potentially severe adverse 

consequences to the petitioner, its 

customers, or the public. Such 

emergencies exist when there is a clear 

and present threat to public health, 

safety, national defense, or food 

security, or a high probability of 

business closures or immediate plant 

shutdowns. The timing of potential 

harm and consequences must render 

potential relief under § 1146.1 

ineffective. The relief requested must be 

feasible and clearly avoid any 

substantial impairment of the ability of 

a rail carrier to serve its own customers 

adequately, or to fulfill its common 

carrier obligations. 

(b) Procedure for accelerated 

process—(1) Petition for relief. A 

petitioner seeking accelerated relief 

must indicate in its petition that it is 

seeking such relief pursuant to 

paragraph (a) of this section and must 

demonstrate circumstances that meet 

the standard set forth in that paragraph. 

The petition must include: 

(i) A particularized description of the 

commodities and volumes which would 

be subject to the requested relief and the 

timing necessary for such relief, 

including why potential relief under 

§ 1146.1 would be ineffective; 

(ii) A particularized explanation of 

how the measurable deterioration or 

other demonstrated inadequacy, absent 

the requested relief, presents imminent 

significant harm and threatens 

potentially severe adverse consequences 

as specified in paragraph (a) of this 

section; 

(iii) A description of specific and 

particularized action that could be 

performed by the incumbent carrier or 

an alternative carrier and ordered by the 

Board to relieve the potential harm and 

adverse consequences; 

(iv) A summary description of the 

efforts taken to resolve the matter prior 

to filing the petition, which must be 

verified by a person or persons with 

knowledge of the efforts taken to resolve 

the matter; and 

(v) Contact information for the 

incumbent carrier. 

(vi) The petition will be limited to 

five (5) substantive pages, not including 

the cover page, verifications, or 

certificate of service. 

(2) Staff conference. When the Board 

receives a petition seeking accelerated 

relief under paragraph (a) of this 

section, the petition will be evaluated 

on its merits by the Board. 

(i) After the Board receives the 

petition for accelerated relief, a 

telephonic or virtual conference, led by 

designated Board staff, will be held no 

sooner than 24 hours after receipt of the 

filing, but no later than 48 hours after 

receipt of the filing, if practicable. 

Designated Board staff may continue to 

work on the case after the conference. 

(ii) Required parties for the 

conference include the petitioner(s), the 

incumbent carrier, and any proposed 

potential alternative carriers and other 

parties deemed necessary by the Board. 

Portions of the conference may be 

closed to certain parties if confidential 

business information needs to be 

discussed. The conference will be 

recorded and later transcribed (with 

redactions, if necessary), and placed in 

the public docket of the proceeding. 

(iii) If applicable, the incumbent 

carrier or any alternative carrier shall 

address at the conference whether the 

remedy proposed by the petitioner is 

unsafe, infeasible, or will unreasonably 

impair the carrier’s ability to serve other 

customers. The Board may order the 

incumbent carrier to submit, or if no 

such order is issued, the incumbent 

carrier may choose to submit, within 24 

hours of the completion of the 

conference, an alternative service plan 

for the Board to consider. Any 

alternative carrier may also submit, 

within 24 hours of the completion of the 

conference, an alternative service plan 

for the Board to consider. The Board 

may choose to receive such information 

either via written submission or a 

second virtual or telephonic conference, 

if practicable. 

(3) Board decision. The Board will 

endeavor to issue an initial decision on 

the merits of the petition requesting 

accelerated relief within three (3) 

business days of the completion of the 

conference. The Board shall not award 

relief under this section for more than 

20 days, and any relief ordered under 

this section shall not be extended 

beyond the 20-day period. A party may 

petition the Board for subsequent relief 

under § 1146.1. 

(c) Petition for reconsideration. After 

the Board issues an initial decision on 

the merits of the petition requesting 

accelerated relief, parties may petition 

the Board for reconsideration. The 

petition for reconsideration will be 

subject to § 1115.3 of this chapter. The 

record is to include any filings by the 

parties in the proceeding and the 

unredacted recording of the conference. 

(d) Stay of relief. Notwithstanding 

§ 1115.3 of this chapter, parties seeking 

a stay of the relief issued by the Board 

must concurrently file a petition for 

reconsideration of the decision and a 

petition to stay. 

(e) Service. Every document filed with 

the Board under this section must 

include a certificate showing 

simultaneous service upon all parties to 

the proceeding, including any proposed 

alternative carriers and the Federal 

Railroad Administration. One copy 

must be served on each party. Service 

on the Board must be made through the 

e-filing process, and a copy of the e-filed 

document must be emailed to other 

parties if that means of service is 

acceptable to those other parties. If 

email is not acceptable to the receiving 

party, a paper copy of the document 

must be personally served on the other 

parties. If neither email nor personal 

service is feasible, service of a paper 

copy must be by overnight delivery. 

When a party is represented by a 

practitioner or attorney, service upon 

the practitioner is deemed to be service 

upon the party. All pleadings under this 

section must also be emailed to 

ServiceEmergency@stb.gov. 

[FR Doc. 2024–01365 Filed 1–23–24; 8:45 am] 

BILLING CODE 4915–01–P 


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