STB Establishes New Class Exemption for Emergency Temporary Trackage Rights

Written by Marybeth Luczak, Executive Editor
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The Surface Transportation Board (STB) has adopted a final rule establishing a new “emergency temporary trackage rights class exemption” that could be invoked during natural disasters, accidents or derailments; the rule is effective Dec. 30, 2021.

STB on Nov. 30 reported that the final rule “eliminates the 30-day notice period in certain circumstances, speeding up the process for authorizing trackage rights in response to an unforeseen track outage, and providing benefits to shippers, carriers and the public.”

The Association of American Railroads (AAR) on Oct. 9, 2020, petitioned the STB to institute a new class exemption for emergency temporary trackage rights “for specific limited situations that would allow emergency temporary trackage rights to take effect within five days of filing without requiring a waiver of the 30-day notice requirement,” according to STB.

“The AAR’s proposal creates an efficient regulatory process for use in only the most exigent circumstances,” the association wrote in its filing (download below). “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.” In addition, “rail carriers and their customers will have certainty that service can be maintained when an unexpected event occurs,” AAR noted. “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.”

In its May 28, 2021 decision (download below), STB agreed “that the current process for obtaining temporary trackage rights in emergency situations can be inefficient”; outlined a new class exemption that built upon the AAR proposal; and issued a Notice of Proposed Rulemaking (NPRM), for which comments were due by July 12.

“After careful consideration of the comments, the Board adopts the final rule as proposed in the NPRM without modification,” STB reported on Nov. 30. “The new emergency trackage rights exemption would make the process of obtaining trackage rights to restore service in an emergency more efficient and predictable, promoting the rail transportation policy set forth in 49 U.S.C. § 10101.”

STB explained the final rule in its decision (download below):

• The exemption “would be available only for ‘unforeseen’ track outages expected to last more than seven days where there is no reasonable alternative to maintain pre-outage levels of service.”

• 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: 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.”

• 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 after the railroad’s verified notice of exemption is filed. … The Board’s notice would be published in the Federal Register concurrently with service if possible, or as soon thereafter as practicable.”

• Should the track outage be resolved and use of the trackage rights become unnecessary prior to the expiration of the exemption period, carriers would “be required to 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.”

• Caption summary requirements “would be replaced by a requirement that the parties provide in their verified notices the same information currently required in caption summaries.”

• The rule clarifies “that the Board’s regulation at 49 C.F.R. § 1180.4(g)(4), pertaining to interchange commitments, would not apply to transactions under the proposed new 49 C.F.R. § 1180.2(d)(9) or to trackage rights transactions under 49 C.F.R. § 1180.2(d)(7) or 49 C.F.R. § 1180.2(d)(8), an issue that has been the cause of some confusion among parties in the past.”

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