Time for a New Class Exemption for Emergency Temporary Trackage Rights?

The Association of American Railroads (AAR) filed a petition for the proceeding on Oct. 9, 2020, explaining that an exemption “would allow emergency temporary trackage rights to take effect immediately, without need for the 30-day notice requirement under 49 C.F.R. § 1180.4(g)(1).”

“The AAR’s proposal creates an efficient regulatory process for use in only the most exigent circumstances,” the association wrote in its filing. “The Board and its staff have worked diligently to grant petitions for waiver in prior emergency circumstances, but this streamlined approach will conserve Board resources and time. And by allowing a rail carrier to file a notice of exemption that would be effective immediately upon publication of the notice, rail carriers and their customers will have certainty that service can be maintained when an unexpected event occurs. Prior examples include damaged bridges, washouts, significant flooding, and severe weather events. These situations are unpredictable, creating unsafe operating conditions on the railroad. Allowing greater procedural efficiency and certainty in such times of need will promote safety and reduce interruptions in service.” AAR also noted the proposal “would not affect any substantive labor protection rights.” (Download the proposal below.)

Current Requirements

In 2003, STB adopted a class exemption at 49 C.F.R. § 1180.2(d)(8) for temporary overhead trackage rights of not more than one year in duration. “Under 49 C.F.R. § 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,” according to STB. “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.”

Proposed New Requirements

The STB granted the AAR’s petition on Feb. 5, 2021. In a May 28, 2021 decision, the agency agreed “that the current process for obtaining temporary trackage rights in emergency situations can be inefficient,” and outlined a new class exemption (download below) that builds on the AAR proposal:

• The new exemption would “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.”  

•  “[W]hen 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: 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 track outage was discovered; and the expected duration of the outage.”

• The emergency temporary trackage rights would be limited “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.”

• Should the track outage be resolved and use of the trackage rights become unnecessary prior to the exemption period’s expiration, STB 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.” Any such notice “should be filed within five business days of the date on which use of the trackage rights ceased,” according to STB.

• The exemption would become effective “upon service of the Board’s notice, which would occur within five days of filing of the railroad’s verified notice of exemption. The Board’s notice would be published in the Federal Register concurrently with service if possible, or as soon thereafter as practicable.”

Additionally, in its May 28 decision, STB noted that Samuel J. Nasca, for and on behalf of SMART-Transportation Division-New York State Legislative Board (SMART/TDNY), opposed the AAR’s petition. He stated in a Nov. 4, 2020 filing that “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.”

STB said it “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.”

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