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1Exemptions may be revoked, in whole or in part, 

pursuant to 49 U.S.C. 10502(d). 

TABLE 2—WASTES EXCLUDED FROM SPECIFIC SOURCES—Continued 

Facility Address Waste description 

*******

Aroclor [total of Aroclors 1016, 1221, 1232, 1242, 1248, 1254, 

1260]—5.0 × 10¥4

* * * * * * * 

* * * * * 

[FR Doc. 2021–11341 Filed 6–4–21; 8:45 am] 

BILLING CODE 6560–50–P 

SURFACE TRANSPORTATION BOARD 

49 CFR Part 1180 

[Docket No. EP 282 (Sub-No. 21)] 

Petition for Rulemaking—Railroad 

Consolidation Procedures—Exemption 

for Emergency Temporary Trackage 

Rights 

AGENCY: Surface Transportation Board. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Surface Transportation 

Board (Board) grants a petition filed by 

the Association of American Railroads 

(AAR) to initiate a rulemaking 

proceeding to establish a new class 

exemption for emergency temporary 

trackage rights. The Board also proposes 

certain other related changes to the class 

exemptions for trackage rights and 

temporary trackage rights. 

DATES: Comments are due by July 12, 

2021. Reply comments are due by 

August 11, 2021. 

ADDRESSES: Comments and replies may 

be filed with the Board via e-filing and 

will be posted to the Board’s website at 

www.stb.gov. 

FOR FURTHER INFORMATION CONTACT: 

Nathaniel Bawcombe at (202) 245–0376. 

Assistance for the hearing impaired is 

available through the Federal Relay 

Service at (800) 877–8339. 

SUPPLEMENTARY INFORMATION: On 

October 9, 2020, AAR filed a petition 

requesting that the Board initiate a 

rulemaking proceeding to establish a 

new emergency temporary trackage 

rights class exemption that could be 

invoked in specific situations and 

would allow emergency temporary 

trackage rights to take effect 

immediately, without need for the 30- 

day notice requirement under 49 CFR 

1180.4(g)(1). On November 4, 2020, 

Samuel J. Nasca, for and on behalf of 

SMART-Transportation Division-New 

York State Legislative Board (SMART/ 

TD–NY), filed a reply in opposition to 

AAR’s petition. 

On February 5, 2020, after considering 

the petition and reply, the Board 

granted AAR’s petition to initiate a 

rulemaking proceeding to establish a 

new emergency temporary trackage 

rights class exemption. The rule 

proposed here, which is set forth below, 

differs in some respects from AAR’s 

request, as explained below. The Board 

also proposes certain other related 

changes to the class exemptions for 

trackage rights and temporary trackage 

rights, also explained below. 

Background 

Pursuant to 49 U.S.C. 11323(a)(6), 

prior Board approval is required for a 

rail carrier to acquire trackage rights 

over a rail line owned or operated by 

another rail carrier. Under 49 U.S.C. 

11324(d), the Board is required to 

approve trackage rights applications 

unless it finds that: (1) As a result of a 

transaction, there is likely to be 

substantial lessening of competition, 

creation of a monopoly, or restraint of 

trade in freight surface transportation in 

any region of the United States; and (2) 

the anticompetitive effects of the 

transaction outweigh the public interest 

in meeting significant transportation 

needs. 

Under 49 U.S.C. 10502, the Board is 

directed, to the maximum extent 

consistent with 49 U.S.C. subtitle IV 

part A, to exempt a person, class of 

persons, or a transaction or service from 

regulation whenever it finds that: (1) 

Regulation is not necessary to carry out 

the rail transportation policy (RTP) of 49 

U.S.C. 10101; and (2) either the 

transaction or service is of limited scope 

or regulation is not needed to protect 

shippers from an abuse of market 

power. 

The Board may exempt not only a 

single transaction but also an entire 

class of transactions that meets the 

exemption criteria of 49 U.S.C. 10502. A 

class exemption for transactions 

otherwise subject to Board licensing 

does not place those transactions 

beyond the Board’s jurisdiction; rather, 

it is a means by which a carrier may 

obtain Board authorization without 

going through the otherwise-applicable 

full licensing process.1

In 2003, the Board adopted a class 

exemption at 49 CFR 1180.2(d)(8) for 

temporary overhead trackage rights of 

not more than one year in duration. See 

R.R. Consolidation Procs.—Exemption 

for Temp. Trackage Rts., EP 282 (SubNo. 20) (STB served May 23, 2003), 

modified (STB served May 17, 2004). 

Under 49 CFR 1180.4(g)(1), exemptions 

sought under § 1180.2(d)(8) (and various 

other class exemptions under 

§ 1180.2(d)) cannot become effective 

until at least 30 days after a railroad 

files a verified notice of the transaction. 

As a result, when a railroad seeks to 

have a temporary trackage rights 

exemption become effective in less than 

30 days, the railroad must petition for 

waiver of the 30-day period. In such 

cases, in addition to serving and 

publishing the notice of the exemption 

in the Federal Register, the Board also 

issues a separate decision acting on the 

waiver request and setting the effective 

date of the exemption. See, e.g., Union 

Pac. R.R.—Temp. Trackage Rts. 

Exemption—BNSF Ry., FD 36424 et al. 

(STB served Aug. 10, 2020) (granting a 

waiver of the 30-day notice period for a 

trackage rights exemption under 

§ 1180.2(d)(8) and setting effective date); 

Ala. & Gulf Coast Ry.—Temp. Trackage 

Rts. Exemption—Kan. City S. Ry., FD 

36418 (STB served July 2, 2020) (same). 

AAR’s Requested Exemption. AAR 

asks the Board to initiate a rulemaking 

to create a new emergency temporary 

trackage rights class exemption. Under 

AAR’s request, the 30-day notice 

requirement under 49 CFR 1180.4(g)(1) 

would not apply to individual 

exemptions sought under the new 

exemption provision; the temporary 

trackage rights would take effect 

immediately upon publication of a 

notice of the transaction by the Board in 

the Federal Register, which, according 

to AAR, would take place within 5 days 

of a party’s filing of a verified notice of 

exemption. (Pet., App. A at 

§§ 1180.2(d)(9), 1180.4(g)(5)(ii).) As 

requested by AAR, the temporary 

trackage rights could be requested for a 


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2Specifically, the grant of the trackage rights 

would be subject to the employee protective 

conditions in Norfolk & Western Railway— 

Trackage Rights—Burlington Northern, 354 I.C.C. 

605 (1978), as modified by Mendocino Coast 

Railway—Lease & Operate—California Western 

Railroad, 360 I.C.C. 653 (1980), and the 

discontinuance of operations would be subject to 

the employee protective conditions in Oregon Short 

Line Railroad—Abandonment Portion Goshen 

Branch Between Firth & Ammon, in Bingham & 

Bonneville Counties, Idaho, 360 I.C.C. 91 (1979). 

(Pet. 4–5.) 

period of no more than six months; 

however, the requestor could, prior to 

expiration of that period, seek a renewal 

for up to six additional months. (Id. at 

App. A at § 1180.2(d)(9).) 

Under AAR’s request, to qualify for 

the new exemption, a rail carrier would 

be required to provide certain 

information regarding the transaction 

that is required for other notices of 

exemption under 49 CFR part 1180 and 

the trackage rights would have to be: (1) 

Based on written agreements; (2) not 

filed or sought in responsive 

applications in rail consolidation 

proceedings; (3) for overhead operations 

only; and (4) as certified by the rail 

carrier, sought in response to a track 

outage expected to last more than seven 

days and where there is no reasonable 

alternative for maintaining pre-outage 

service levels. (See id., App. A at 

§§ 1180.2(d)(9), 1180.4(g)(5)(i).) Every 

30 days during the initial exemption 

period, the rail carrier would be 

required to recertify to the Board that 

the outage continues to exist and the 

temporary trackage rights continue to be 

necessary to maintain service. (Id., App. 

A at § 1180.2(d)(9).) AAR further 

requests that, as under the existing class 

exemption for temporary trackage rights, 

rail carriers availing themselves of the 

proposed class exemption would not 

need to file for discontinuance authority 

at the end of the authorized period, (Id., 

App. A at § 1180.2(d)(9)), and would be 

subject to applicable statutory labor 

protective conditions.2

AAR argues that the current two-step 

approach for obtaining temporary 

trackage rights without having to wait 

30 days for them to become effective is 

inefficient, and asserts that its proposed 

class exemption would benefit shippers, 

railroads, and the Board by providing a 

streamlined and simple approach for 

obtaining temporary trackage rights in 

emergency situations, ensuring the 

continued flow of commerce without 

any decrease in regulatory oversight. 

(Pet. 1–4.) 

As noted above, on November 4, 2020, 

SMART/TD–NY filed comments 

opposing AAR’s petition. SMART/TD– 

NY argues that the Board should deny 

AAR’s petition and decline to institute 

a rulemaking proceeding because an 

emergency temporary trackage rights 

exemption is unwarranted given the 

existing trackage rights exemptions and 

because the proposed exemption would 

threaten rail safety. (SMART/TD–NY 

Reply 3–4.) SMART/TD–NY states that 

detour arrangements in the railroad 

industry provide for pilot employees 

from the landlord carrier to provide 

guidance for the tenant carrier’s 

operation in emergency situations. (Id. 

at 4.) According to SMART/TD–NY, the 

proposed exemption would allow for 

the ‘‘immediate cessation of detour 

operation[s]’’ or even the avoidance of 

detour operations altogether and thereby 

allow operation solely by tenant carrier 

personnel unfamiliar with the line over 

which the trackage rights have been 

granted. (Id.) 

The Statutory Exemption Criteria 

As noted above, 49 U.S.C. 10502 

directs the Board to exempt a person, 

class of persons, or a transaction or 

service from regulation whenever it 

finds that: (1) Regulation is not 

necessary to carry out the RTP; and (2) 

either the transaction or service is of 

limited scope or regulation is not 

needed to protect shippers from an 

abuse of market power. 

The Board agrees that the current 

process for obtaining temporary trackage 

rights in emergency situations can be 

inefficient, and notes that petitions for 

waiver of the 30-day notice requirement 

are routinely granted. See, e.g., Union 

Pac. R.R., FD 36424 et al., slip op. at 2 

(granting a waiver of the 30-day notice 

period); Ala. & Gulf Coast Ry., FD 

36418, slip op. at 2 (same). A class 

exemption for emergency temporary 

trackage rights, as proposed below, 

would meet the requirements of section 

10502 and would advance the RTP in 

several ways. It would provide for the 

expeditious handling and resolution of 

proceedings, 49 U.S.C. 10101(15), and 

encourage the efficient management of 

railroads, 49 U.S.C. 10101(9), by making 

the process of obtaining temporary 

trackage rights in emergencies more 

efficient by eliminating the need for a 

waiver of the 30-day notice period 

under 49 CFR 1180.4(g)(1) and more 

predictable by requiring the Board to act 

within a set number of days. It would 

also promote the continuation of a 

sound rail system, 49 U.S.C. 10101(4), 

and coordination between carriers, 49 

U.S.C. 10101(5), by facilitating the 

process of line repair and approval of 

trackage rights agreements. 

The class exemption proposed in this 

decision is limited in scope, in terms of 

both the duration of the rights and the 

circumstances in which the exemption 

would apply. Indeed, the proposed 

exemption is a more limited form—in 

terms of both duration and 

circumstances—of the existing 

temporary trackage rights exemption, 

which the Board in 2003 found to be of 

limited scope. See R.R. Consolidation 

Procs.—Exemption for Temp. Trackage 

Rts., 6 S.T.B. 910, 913 n.8 (2003). 

Regulation is not needed to protect 

shippers from an abuse of market 

power. The proposed class exemption 

would not reduce competition because 

the temporary trackage rights would be 

for overhead operations only, and 

therefore the competitive status quo 

would not be altered with respect to 

service to shippers on the affected lines. 

In addition, the exemption would 

benefit shippers by enhancing the 

ability of carriers to maintain service in 

emergency situations. 

SMART/TD–NY’s arguments in 

opposition to the proceeding here are 

unpersuasive. The proposed class 

exemption is warranted because it 

would make the process of obtaining 

temporary trackage rights in an 

emergency more efficient and 

predictable. Moreover, based on the 

record to date, the Board does not see 

merit in SMART/TD–NY’s claim that 

the proposed class exemption would 

threaten rail safety. This proposal would 

not alter or impact the existing rail 

safety operating regulations 

administered by the Federal Railroad 

Administration, which is the Federal 

agency with primary responsibility over 

rail safety matters. See, e.g., 49 CFR 

240.229 (prohibiting a carrier in control 

of operations on a line from allowing an 

engineer of a foreign carrier to operate 

a train on that line without a pilot 

engineer from the controlling carrier 

unless the engineer of the foreign carrier 

has the necessary knowledge of the 

controlling carrier’s operating rules and 

the necessary familiarity with the 

physical characteristics of the line). 

The Proposed Class Exemption 

For the reasons discussed above, and 

as set forth below, the Board proposes 

to establish a new class exemption for 

emergency temporary trackage rights. As 

explained further below, the Board’s 

proposed rule differs in various respects 

from AAR’s request and includes certain 

related changes to the existing class 

exemptions for trackage rights and 

temporary trackage rights. 

Circumstances in which the proposed 

rule would apply. AAR’s requested new 

class exemption would apply where 

there is a track outage that is expected 

to last more than seven days and there 

is no reasonable alternative to maintain 

pre-outage levels of service. (Pet., App. 


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3See, e.g., Union Pac. R.R., FD 36424, slip op. at 

2 (granting waiver of 30-day notice period for 

trackage rights agreement with a term of a little over 

one month); Ala. & Gulf Coast Ry, FD 36418, slip 

op. at 1 n.3 (granting waiver of 30-day notice period 

for trackage rights agreement with a term of just less 

than two months); Norfolk Southern Railway 

Company Petition for Waiver 3, Norfolk S. Ry.— 

Temp. Trackage Rts. Exemption—Kan. City S. Ry., 

FD 36359 (railroad anticipates that need for 

trackage rights operations would last for several 

weeks or months); Kan. City S. Ry.—Temp. 

Trackage Rts. Exemption—Norfolk S. Ry., FD 36314 

et al., slip op. at 1–2 (STB served June 13, 2019) 

(providing notice of exemption for trackage rights 

agreement with a term of less than three months); 

Terminal Railway Alabama State Docks Verified 

Notice of Exemption at 2, Apr. 27, 2018, Terminal 

Ry. Ala. State Docks—Temp. Trackage Rts. 

Exemption—Norfolk S. Ry., FD 36190 (seeking 

exemption for trackage rights agreement with a term 

of six months but stating that trackage rights likely 

only needed for approximately one month). 

4Under § 1180.4(g), stay petitions for notices filed 

under § 1180.2(d) must be filed at least 7 days 

before the exemption becomes effective. The Board 

proposes to specify that, for notices filed under 

§ 1180.2(d)(9), stay petitions be filed as soon as 

possible before the exemption becomes effective. 

Under 49 U.S.C. 10502(d), petitions to revoke the 

exemption can be filed at any time. 

5AAR requests to include the caption summary 

and other requirements under new § 1180.4(g)(5). 

Many of the requirements in new proposed 

§ 1180.4(g)(5) are duplicative of requirements 

already contained in § 1180.4(g)(1), which is 

applicable to all exemptions under § 1180.2(d), 

including the new proposed § 1180.2(d)(9). Rather 

than proposing a new § 1180.4(g)(5), as suggested by 

AAR, the Board proposes to incorporate the 

requirements of this § into the existing 

§ 1180.4(g)(1) to the extent they are not already 

contained therein. 

6The caption summary regulations originally 

indicated that caption summaries themselves would 

be published in the Federal Register. R.R. 

Consolidation Procs.—Exemption for Temp. 

Trackage Rts., EP 282 (Sub-No. 20), slip op. at 9 

(STB served May 23, 2003); R.R. Consolidation 

Procs.—Trackage Rts. Exemption, 1 I.C.C. 270, 283 

(1985). See also 49 CFR 1180.4(g)(2)(i) and (ii) 

(requiring caption summaries to be ‘‘suitable for 

publication in the Federal Register’’). 

7AAR’s request does not address the issue of 

certification of interchange commitments. 

A at § 1180.2(d)(9).) The Board finds 

that further clarification is needed to 

ensure that use of the class exemption 

would be restricted so that it applies 

only to emergency situations and not to 

situations where routine temporary 

trackage rights authority was not sought 

in a timely manner. Specifically, the 

Board proposes to require that the new 

exemption be available only for 

‘‘unforeseen’’ track outages expected to 

last more than seven days and there is 

no reasonable alternative to maintain 

pre-outage levels of service. Examples of 

emergency situations that result in such 

unforeseen track outages include, but 

are not limited to, natural disasters and 

accidents or derailments. This 

clarification appears consistent with 

AAR’s intent. (Pet. 1–3, 9 (describing 

the need for the exemption in cases of 

‘‘unpredictable’’ or ‘‘unexpected’’ events 

such as accidents or natural disasters).) 

The Board also proposes a requirement 

that, when railroads certify that trackage 

rights are needed for an unforeseen 

track outage, the verified notice should 

provide a description of the situation 

that includes, to the extent possible, the 

following information: 

1. The nature of the event that caused 

the unforeseen outage; 

2. The location of the outage; 

3. The date that the emergency 

situation occurred; 

4. The date the track outage was 

discovered; and 

5. The expected duration of the 

outage. 

Duration of the exemption. AAR 

requests that the temporary trackage 

rights would be approved for an initial 

period of no longer than six months, 

with the option to request a renewal for 

an additional six months. The Board’s 

proposal limits the emergency 

temporary trackage rights to an initial 

period not to exceed three months, with 

the option to request a renewal for an 

additional three months. A review of 

recent cases in which the Board waived 

the 30-day notice requirement for 

temporary trackage rights in emergency 

situations suggests that trackage rights 

would rarely be needed for a period 

longer than three months.3

Certification every 30 days. AAR’s 

request would require a rail carrier to 

certify every 30 days that the track 

outage continues to exist and that the 

temporary trackage rights continue to be 

necessary to maintain service. However, 

the Board’s proposal would not require 

such certifications. Rather, the Board 

would only require that the carrier file 

a notice stating that the outage has been 

resolved and that trackage rights are no 

longer needed, as well as the date on 

which use of the trackage rights ceased, 

should the track outage be resolved and 

use of the trackage rights become 

unnecessary prior to the expiration of 

the exemption period. Any such notice 

should be filed within 5 business days 

of the date on which use of the trackage 

rights ceased. The Board finds that the 

reduction of the exemption period from 

six months to three months, combined 

with the requirement for parties to 

inform the Board if use of trackage 

rights has ceased prior to when the 

exemption period would have otherwise 

expired renders the 30-day certifications 

affirming the continued need for the 

trackage rights unnecessary. 

Effective date of the exemption. AAR 

requests that exemptions under the new 

provision become effective immediately 

upon publication of the Board’s notice 

in the Federal Register, which would be 

required within five days after a verified 

notice of exemption is filed. However, 

due to requirements of the Federal 

Register publication process that are 

outside the Board’s control, publication 

within five days may not be possible in 

certain situations. For that reason, the 

Board proposes that the exemption 

would become effective not upon 

publication in the Federal Register but 

rather upon service of the Board’s 

notice, which would occur within five 

days of filing of the railroad’s verified 

notice of exemption.4 The Board’s 

notice would be published in the 

Federal Register concurrently with 

service if possible, or as soon thereafter 

as practicable. 

Caption summary. Under AAR’s 

request, parties seeking an exemption 

under the new § 1180.2(d)(9) would 

include in its verified notice a caption 

summary suitable for publication in the 

Federal Register containing certain 

information regarding the proposed 

transaction.5 This requirement mirrors 

the requirement of a caption summary 

for exemptions sought under 

§ 1180.2(d)(7) and (d)(8). Originally, the 

purpose of this requirement was to 

facilitate Federal Register publication 

by providing the Board with a document 

that could be published as the Board’s 

notice.6 However, in practice, caption 

summaries have not routinely been used 

for that purpose. Accordingly, the Board 

proposes not to require a caption 

summary for exemptions under 

§ 1180.2(d)(9) and to eliminate the 

existing caption summary requirements 

for exemptions under § 1180.2(d)(7) and 

§ 1180.2(d)(8). Pursuant to the Board’s 

proposal, the caption summary 

requirements would be replaced by a 

requirement that the parties provide in 

their notices the same information 

currently required in caption 

summaries. 

Certification regarding interchange 

commitments. Under § 1180.4(g)(4), 

parties seeking Board approval for 

transactions under 49 CFR part 1180 

must certify ‘‘whether or not a proposed 

acquisition or operation of a rail line 

involves a provision or agreement that 

may limit future interchange with a 

third-party connecting carrier, whether 

by outright prohibition, per-car penalty, 

adjustment in the purchase price or 

rental, positive economic inducement, 

or other means.’’ On its face, this 

provision could be read to require such 

a certification in connection with the 

emergency temporary trackage rights 

exemption proposed here.7

The Board adopted the interchange 

commitment certification requirement 

in Information Required in Notices & 


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8The Jackson & Lansing decision, which 

embraced three separate proceedings, addressed 

issues related to an interchange commitment 

disclosed as part of a lease transaction, not the 

trackage rights transaction. Further, that decision in 

several instances referred to interchange 

commitments being part of lease and sale 

transactions. Jackson & Lansing, FD 35418 et al., 

slip op. at 6, 7 n.23, 8. 

9See, e.g., Grand Trunk W. R.R.—Trackage Rts. 

Exemption—Norfolk S. Ry., FD 36267 (STB served 

May 16, 2019); Ind. Rail Road—Trackage Rts. 

Exemption—CSX Transp., Inc., FD 36068 (STB 

served Oct. 14, 2016); Ind. Rail Road—Amended 

Trackage Rts. Exemption—CSX Transp., Inc., FD 

35283 (Sub-No. 1) (STB served Apr. 28, 2017). 

10See, e.g., Ala. & Gulf Coast Ry.—Temp. 

Trackage Rts. Exemption—Kan. Cty. S. Ry., FD 

36418; Union Pac. R.R.—Temp. Trackage Rts. 

Exemption—Kan. Cty. S. Ry., FD 36135 (STB served 

July 26, 2017); Allegheny Valley R.R.—Temp. 

Trackage Rts. Exemption—Norfolk S. Ry., FD 36015 

(STB served May 6, 2016). 

11Class III carriers have annual operating 

revenues of $20 million or less in 1991 dollars or 

$40,384,263 or less when adjusted for inflation 

using 2019 data. Class II rail carriers have annual 

operating revenues of less than $250 million or 

$504,803,294 when adjusted for inflation using 

2019 data. The Board calculates the revenue 

deflator factor annually and publishes the railroad 

revenue thresholds on its website. 49 CFR 1201.1– 

1; Indexing the Annual Operating Revenues of 

R.Rs., EP 748 (STB served June 10, 2020). 

Petitions Containing Interchange 

Commitments, EP 714 (STB served Sept. 

5, 2013). In the notice of proposed 

rulemaking (NPRM) in that proceeding, 

the Board did not specifically address 

the applicability of the interchange 

certification to trackage rights 

transactions, though it did cite one 

previous trackage rights exemption 

proceeding. Info. Required in Notices & 

Pets. Containing Interchange 

Commitments, EP 714, slip op. at 4–5, 

nn.17, 18, 20 (STB served Nov. 1, 2012) 

(citing Jackson & Lansing R.R.— 

Trackage Rts. Exemption—Norfolk S. 

Ry., FD 35418 et al. (STB served Sept. 

27, 2011)).8

Nor did the final rule in Docket No. 

EP 714 specifically address the 

applicability of the interchange 

commitment certification to railroads 

obtaining trackage rights. The NPRM 

refers only to the interchange 

commitment certification requirement 

applying to a ‘‘purchaser’’ or ‘‘lessee’’ 

railroad. Info. Required in Notices & 

Pets. Containing Interchange 

Commitments, EP 714, slip op. at 4–6 

(STB served Nov 1, 2012). Further, the 

Board has generally interpreted this 

requirement as not applying to trackage 

rights agreements under § 1180.2(d)(7) 9

or § 1180.2(d)(8).10

Therefore, the Board proposes to 

clarify that § 1180.4(g)(4) would not 

apply to transactions under the 

proposed new § 1180.2(d)(9). In 

addition, the Board proposes to clarify 

that § 1180.4(g)(4) also does not apply to 

trackage rights transactions under 

§ 1180.2(d)(7) or § 1180.2(d)(8), an issue 

that has been the cause of some 

confusion among parties in the past. 

Regulatory Flexibility Act. The 

Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601–612, generally 

requires a description and analysis of 

new rules that would have a significant 

economic impact on a substantial 

number of small entities. In drafting a 

rule, an agency is required to: (1) Assess 

the effect that its regulation will have on 

small entities; (2) analyze effective 

alternatives that may minimize a 

regulation’s impact; and (3) make the 

analysis available for public comment. 

Sections 601–604. In its notice of 

proposed rulemaking, the agency must 

either include an initial regulatory 

flexibility analysis, section 603(a), or 

certify that the proposed rule would not 

have a ‘‘significant impact on a 

substantial number of small entities,’’ 

section 605(b). Because the goal of the 

RFA is to reduce the cost to small 

entities of complying with federal 

regulations, the RFA requires an agency 

to perform a regulatory flexibility 

analysis of 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). 

The Board’s proposed changes to its 

regulations here are intended to make 

the process of obtaining Board approval 

of temporary trackage agreements in 

emergency situations more efficient and 

predictable and do not mandate the 

conduct of small entities. For the 

purpose of RFA analysis for rail carriers 

subject to the Board’s jurisdiction, the 

Board defines a ‘‘small business’’ as 

only including those rail carriers 

classified as Class III rail carriers under 

49 CFR 1201.1–1. See Small Entity Size 

Standards Under the Regul. Flexibility 

Act, EP 719 (STB served June 30, 2016) 

(with Board Member Begeman 

dissenting).11 Currently, if small entities 

wish to receive temporary trackage 

rights in emergency situations, they 

must file for a notice of exemption in 

addition to filing a petition for waiver. 

The proposed rule, if promulgated, 

provides a more expedited procedural 

mechanism for carriers to quickly obtain 

approval for trackage rights in 

emergency situations without having to 

obtain a waiver of the 30-day notice 

period under § 1180.4(g)(1). The 

regulations require the carrier utilizing 

the trackage rights to file a notice if the 

carrier ceases to use the trackage rights 

prior to when the exemption period 

would have otherwise expired. 

However, because such notices would 

consist of a brief statement that use of 

the trackage rights has ceased and the 

date on which use of the trackage rights 

ceased, the Board does not believe that 

the burden associated with these notices 

would outweigh the reduction in 

burden associated with eliminating the 

requirement to file a petition for waiver 

of the 30-day notice period under 

§ 1180.4(g)(1). The Board, therefore, 

expects the impact of the proposed rule 

would slightly reduce the paperwork 

burden for small entities. Accordingly, 

the economic impact of the proposed 

rule, if any, would be minimal as the 

burdens associated with obtaining 

approval of temporary trackage rights 

agreements in emergencies would be 

slightly reduced and the rule would 

likely provide some economic benefit by 

expediting, in some cases, the process of 

approving trackage rights agreements 

necessary to restore service at preoutage levels. Therefore, the Board 

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

proposed rules, if promulgated, would 

not have a significant economic impact 

on a substantial number of small entities 

within the meaning of the RFA. This 

decision will be served upon the Chief 

Counsel for Advocacy, Offices of 

Advocacy, U.S. Small Business 

Administration, Washington, DC 20416. 

Paperwork Reduction Act. 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 in 

the Appendix, the Board seeks 

comments about the impact of the 

revisions in the proposed rule to the 

currently approved collection of 

Statutory Licensing Authority (OMB 

Control Number: 2140–0023), 

concerning: (1) Whether the collection 

of information, as modified or added in 

the proposed rule, and further described 

below, is necessary for the proper 

performance of the functions of the 

Board, including whether the collection 

has 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 estimates that the proposed 

requirements would save a total hourly 

burden of 54 hours per year as 

compared to the current procedures for 

obtaining emergency temporary trackage 

rights involving the filing of verified 

notice of exemption and a petition for 


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waiver of the 30-day notice period. The 

new emergency temporary trackage 

rights notice would incorporate 

additional language, resulting in 

approximately 5% more burden hours 

to prepare than the average notice of 

exemption, and it is estimated that two 

notices regarding the cessation of 

trackage rights would be filed annually. 

There are no changes to the estimated 

non-hourly burdens associated with this 

collection. The Board welcomes 

comment on the estimates of actual time 

and costs of the collection of the 

proposed emergency trackage rights 

notices of exemptions, as detailed below 

in the Appendix. Other information 

pertinent to this collection is also 

included in the Appendix. The 

proposed rule will be submitted to OMB 

for review as required under 44 U.S.C. 

3507(d) and 5 CFR 1320.11. Comments 

received by the Board regarding these 

information collections will also be 

forwarded to OMB for its review when 

the final rule is published. 

List of Subjects in 49 CFR Part 1180 

Administrative practice and 

procedure, Railroads, Reporting and 

recordkeeping requirements. 

It is ordered: 

1. Comments are due by July 12, 2021. 

Reply comments are due by August 11, 

2021. 

2. Notice of this decision will be 

published in the Federal Register. 

3. A copy of this decision will be 

served upon the Chief Counsel for 

Advocacy, Office of Advocacy, U.S. 

Small Business Administration. 

4. This decision is effective on its 

service date. 

Decided: May 28, 2021. 

By the Board, Board Members Begeman, 

Fuchs, Oberman, Primus, and Schultz. 

Jeffrey Herzig, 

Clearance Clerk. 

For the reasons set forth in the 

preamble, the Surface Transportation 

Board proposes to amend part 1180 of 

title 49, chapter X, of the Code of 

Federal Regulations as follows: 

PART 1180—RAILROAD ACQUISITION, 

CONTROL, MERGER, 

CONSOLIDATION PROJECT, 

TRACKAGE RIGHTS, AND LEASE 

PROCEDURES 

■ 1. The authority citation for part 1180 

continues to read as follows: 

Authority: 5 U.S.C. 553 and 559; 11 U.S.C. 

1172; 49 U.S.C. 1321, 10502, 11323–11325. 

■ 2. Amend § 1180.2 as follows: 

■ a. Revise the first sentence of 

paragraph (d) introductory text; 

■ b. In paragraph (d)(8)(iv), remove the 

words ‘‘49 CFR 1180.4(g)(2)(iii)’’ and 

add in their place the words ‘‘49 CFR 

1180.4(g)(1)(ii)’’, and remove the words 

‘‘these rules’’ and add in their place the 

words ‘‘this paragraph (d)(8)’’; 

■ c. Add paragraph (d)(9). 

§ 1180.2 Types of transactions. 

* * * * * 

(d) A transaction is exempt if it is 

within one of the nine categories 

described in paragraphs (d)(1) through 

(9). * * * 

* * * * * 

(9)(i) Acquisition of emergency 

temporary trackage rights by a rail 

carrier over lines owned or operated by 

any other rail carrier or carriers that are: 

(A) Based on written agreements, 

(B) Not filed or sought in responsive 

applications in rail consolidation 

proceedings, 

(C) For overhead operations only, 

(D) Scheduled to expire on a specific 

date not to exceed three months from 

the effective date of the exemption, and 

(E) Sought in response to an 

unforeseen track outage and expected to 

last more than seven days where there 

is no reasonable alternative to maintain 

pre-outage levels of service. 

(ii) If during the exemption period, 

the outage is resolved and use of the 

temporary emergency trackage rights 

ceases to be necessary to maintain 

service at pre-outage levels, the rail 

carrier must file a notice stating that the 

outage has been resolved and that use of 

the trackage rights has ceased and 

identifying the date on which use of the 

trackage rights ceased. Such a notice 

should be filed within 5 business days 

of the date on which use of the trackage 

rights ceased. The emergency temporary 

trackage rights authority expires upon 

the official filing date of the notice. If 

the operations contemplated by the 

exemption will not be concluded within 

the initial exemption period, the rail 

carrier may, prior to expiration of the 

period, file a request for a renewal of the 

temporary rights for an additional 

period of up to 3 months, including the 

reason(s) therefor. Rail carriers 

acquiring temporary trackage rights 

need not seek authority from the Board 

to discontinue the trackage rights as of 

the expiration date specified under 

§ 1180.4(g)(1)(ii). All transactions under 

this paragraph (d)(9) will be subject to 

applicable statutory labor protective 

conditions. 

■ 3. Amend § 1180.4 as follows: 

■ a. Revise paragraph (g)(1); 

■ b. Remove paragraph (g)(2); 

■ c. Redesignate paragraphs (g)(3) and 

(4) as paragraphs (g)(2) and (3); 

■ d. Revise newly redesignated (g)(2); 

and 

■ e. Amend newly redesignated (g)(3) by 

■ i. Removing the paragraph heading 

‘‘Transactions imposing interchange 

commitments’’; 

■ ii. Revising the first sentence of 

paragraph (g)(3)(i). 

The revisions read as follows: 

§ 1180.4 Procedures. 

* * * * * 

(g) Notice of exemption. (1) To qualify 

for an exemption under § 1180.2(d), a 

railroad must file a verified notice of the 

transaction with the Board. Except for 

verified notices filed under 

§ 1180.2(d)(9), all verified notices under 

§ 1180.2(d) must be filed at least 30 days 

before the transaction is consummated, 

indicating the proposed consummation 

date. Verified notices filed under 

§ 1180.2(d)(9) will become effective 

upon service of notice of the transaction 

by the Board. Before a verified notice is 

filed, the railroad shall obtain a docket 

number from the Board’s Section of 

Administration, Office of Proceedings. 

(i) All notices filed under § 1180.2(d) 

shall contain the information required 

in § 1180.6(a)(1)(i)–(iii), (a)(5)–(6), and 

(a)(7)(ii), and indicate the level of labor 

protection to be imposed. 

(ii) Notices filed under 

§§ 1180.2(d)(7), 1180.2(d)(8), or 

1180.2(d)(9) shall also contain the 

following information: 

(A) The name of the tenant railroad; 

(B) The name of the landlord railroad; 

(C) A description of the trackage 

rights, including a description of the 

track. For notices under § 1180.2(d)(8) 

and (9), the notice must state that the 

trackage rights are overhead rights. For 

notices under § 1180.2(d)(7), the notice 

must state whether the trackage rights 

are local or overhead; 

(D) The date the trackage rights 

transaction is proposed to be 

consummated; 

(E) The date temporary trackage rights 

will expire, if applicable; and 

(F) For notices under § 1180.2(d)(9), a 

description of the situation resulting in 

the outage in sufficient detail to allow 

the Board to determine an emergency 

exits, including, to the extent possible, 

the nature of the event that caused the 

unforeseen outage, the location of the 

outage, the date that the emergency 

situation occurred, the date the outage 

was discovered, and the expected 

duration of the outage. 

(iii) Except for notices filed under 

§ 1180.2(d)(9), the Board shall publish a 

notice of exemption in the Federal 

Register within 16 days of the filing of 

the notice. For notices filed under 

§ 1180.2(d)(9), the Board shall serve a 


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30248 Federal Register / Vol. 86, No. 107 / Monday, June 7, 2021 / Proposed Rules 

notice of exemption on parties of record 

within 5 days after the verified notice of 

exemption is filed and shall publish that 

notice in the Federal Register. The 

publication of notices under § 1180.2(d) 

will indicate the labor protection 

required. 

(iv) If the notice contains false or 

misleading information that is brought 

to the Board’s attention, the Board shall 

summarily revoke the exemption for 

that carrier and require divestiture. 

(v) The filing of a petition to revoke 

under 49 U.S.C. 10502(d) does not stay 

the effectiveness of an exemption. 

Except for notices filed under 

§ 1180.2(d)(9), stay petitions must be 

filed at least 7 days before the 

exemption becomes effective. For 

notices filed under § 1180.2(d)(9), stay 

petitions should be filed as soon as 

possible before the exemption becomes 

effective. 

(vi) Other exemptions that may be 

relevant to a proposal under this 

provision are codified at 49 CFR part 

1150, subpart D, which governs 

transactions under 49 U.S.C. 10901. 

* * * * * 

(3)(i) Except for notices filed under 

§ 1180.2(d)(7), (8), or (9), the filing party 

must certify whether a proposed 

acquisition or operation of a rail line 

involves a provision or agreement that 

may limit future interchange with a 

third-party connecting carrier, whether 

by outright prohibition, per-car penalty, 

adjustment in the purchase price or 

rental, positive economic inducement, 

or other means (‘‘interchange 

commitment’’). * * * 

Note: The following will not appear in the 

Code of Federal Regulations. 

Appendix 

Information Collected Under the Paperwork 

Reduction Act 

As part of its continuing effort to reduce 

paperwork burdens, and as required by the 

Paperwork Reduction Act of 1995 (PRA), 44 

U.S.C. 3501–3521, the Surface Transportation 

Board (Board) gives notice that it is 

requesting from the Office of Management 

and Budget (OMB) approval for the revision 

and extension of the currently approved 

information collection, Statutory Licensing 

Authority (OMB Control Number: 2140– 

0023), as described below. The requested 

revision to the existing, approved collection 

by this notice of proposed rulemaking 

(NPRM) is expected to (1) provide parties 

with an emergency temporary trackage rights 

exemption (to replace the need for submitting 

both a notice of exemption and a separate 

petition for waiver) and (2) in the event that 

the use of the temporary emergency trackage 

rights ceases to be necessary during the 

exemption period, require a short notice 

stating such. 

Description of Collection 

Title: Statutory Licensing Authority. 

OMB Control Number: 2140–0023. 

STB Form Number: None. 

Type of Review: Revision of a currently 

approved collection. 

Respondents: Rail carriers and non-carriers 

seeking statutory licensing or consolidation 

authority or an exemption from filing an 

application for such authority (including, in 

some circumstances, a certification regarding 

whether the transaction at issue imposes 

interchange commitments). 

Number of Respondents: 80. 

Total Burden Hours (annually including all 

respondents): 4,203 (sum of estimated hours 

per response × number of responses for each 

type of filing, including the increase and 

decrease in burdens under the NPRM). The 

tables below show the burden impact of the 

NPRM, including the (a) current estimates for 

the existing collection, (b) reduction in 

estimates due to the NPRM, and (c) increase 

in estimates due to the NPRM. 

As provided in Table 1—Estimated 

Average Number of Responses below, the 

Board maintains its existing, approved 

collection of three applications, 12 petitions 

for exemption, 103 notices of exemption, and 

four certifications regarding interchange 

commitments annually based on an actual 

three-year average (FY 2018–2020) of filings. 

Table 1 also shows the expected decrease 

and increase in filings under the NPRM. 

Similarly, Table 2—Estimated Number of 

Hours per Response shows both the existing 

estimated burden hours for each existing 

response and provides the estimated burdens 

for the increase and decrease of responses 

under the NPRM. When multiplied by the 

number of hours for each type of filing, as 

provided in Table 2, the estimated annual 

burden hours for 122 responses are 4,203 

hours (sum of estimated hours per response 

× number of responses for each type of 

filing), as shown in Table 3—Total Estimated 

Annual Burden Hours. 

Frequency: On occasion. 

TABLE 1—ESTIMATED AVERAGE NUMBER OF RESPONSES

Type of filing Average number 

of filings per year 

Existing filings: 

Applications .............................................................................................................................................................................. 3 

Petitions .................................................................................................................................................................................... 12 

Notices ...................................................................................................................................................................................... 103 

Interchange commitments certifications ................................................................................................................................... 4 

Reductions in filings—Proposed: 

Notices (previously used) ......................................................................................................................................................... (2) 

Petitions for waiver (no longer necessary) ............................................................................................................................... (2) 

Additions in filings—Proposed: 

New Notices (emergency trackage rights exemptions) ........................................................................................................... 2 

New notices regarding cessation of trackage rights ................................................................................................................ 2 

Total estimated filings ....................................................................................................................................................... 122 

TABLE 2—ESTIMATED NUMBER OF HOURS PER RESPONSE

Type of filing Number of hours 

per response 

Existing filings: 

Applications .............................................................................................................................................................................. 524 

Petitions .................................................................................................................................................................................... 58 

Notices ...................................................................................................................................................................................... 19 

Interchange commitments certifications ................................................................................................................................... 8 

Reductions in filings—Proposed: 

Notices (previously used) ......................................................................................................................................................... (19) 

Petitions for waiver (no longer necessary) ............................................................................................................................... (29) 


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TABLE 2—ESTIMATED NUMBER OF HOURS PER RESPONSE—Continued 

Type of filing Number of hours 

per response 

Additions in filings—Proposed: 

New Notices (emergency trackage rights exemptions) ........................................................................................................... 20 

New notices regarding cessation of trackage rights ................................................................................................................ 1 

TABLE 3—TOTAL ESTIMATED ANNUAL BURDEN HOURS

Type of filing Hours per 

response 

Annual number 

of filings 

Total annual 

burden hours 

Existing filing: 

Applications .............................................................................................................. 524 3 1,572 

Petitions .................................................................................................................... 58 12 696 

Notices ...................................................................................................................... 19 103 1,957 

Interchange commitments ........................................................................................ 8 4 32 

Total Existing Annual Burden Hours ................................................................. ............................ ............................ 4,257 

Reductions in filings—Proposed: 

Notices (previously used) ......................................................................................... (19) 2 (38) 

Petitions for waiver (no longer necessary) ............................................................... (29) 2 (58) 

Additions in filings—Proposed: 

New Notices (emergency trackage rights exemptions) ........................................... 20 2 40 

New notices regarding cessation of trackage rights ................................................ 1 2 2 

Total new annual burden hours ........................................................................ ............................ ............................ 4,203 

Total ‘‘Non-hour Burden’’ Cost: Because 

Board collections are submitted 

electronically to the Board, there is no cost 

for filing with the Board. However, for some 

filings, respondents may be required to send 

consultation letters to various other 

governmental agencies. Copies of these 

letters are part of an environmental and 

historic report that must be filed with this 

collection (unless waived by the Board). 

Because some of these other agencies may 

require hard copy letters, there may be some 

limited mailing costs, which staff estimates 

in total to be approximately $1,750. 

Needs and Uses: As mandated by Congress, 

persons seeking to construct, acquire, or 

operate a line of railroad and railroads 

seeking to abandon or to discontinue 

operations over a line of railroad or, in the 

case of two or more railroads, to consolidate 

their interests through merger or a commoncontrol arrangement are required to file an 

application for prior approval and authority 

with the Board. See 49 U.S.C. 10901–03, 

11323–26. Under 49 U.S.C. 10502, persons 

may seek an exemption from many of the 

application requirements of §§ 10901–03 and 

§§ 11323–26 by filing with the Board a 

petition for exemption or notice of exemption 

in lieu of an application. The collection by 

the Board of these applications, petitions, 

and notices (including collection of 

disclosures of rail interchange commitments 

under 49 CFR 1121.3(d), 1150.33(h), 

1150.43(h), and 1180.4(g)(4)) enables the 

Board to meet its statutory duty to regulate 

the referenced rail transactions. In cases in 

which the requests for authority involve 

agreements with interchange commitments 

that may limit the future interchange of 

traffic with third parties, certain information 

must be disclosed to the Board about those 

commitments. 49 CFR 1121.3(d), 1150.33(h), 

1150.43(h), 1180.4(g)(4). The collection of 

this information facilitates the case-specific 

review of interchange commitments and 

enables the Board’s monitoring of their usage 

generally. 

[FR Doc. 2021–11889 Filed 6–4–21; 8:45 am] 

BILLING CODE 4915–01–P 


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