[Federal Register Volume 67, Number 206 (Thursday, October 24, 2002)]
[Notices]
[Pages 65405-65408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27111]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Docket No. AB-167 (Sub-No. 1095X)]


Consolidated Rail Corporation--Abandonment Exemption--Lancaster 
and Chester Counties, PA

AGENCY: Surface Transportation Board, Transportation.

ACTION: Notice of reinitiation of the National Historic Preservation 
Act section 106 process and request for comments.

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SUMMARY: This notice to the parties discusses the background of the 
abandonment exemption proceeding, describes the Surface Transportation 
Board's reinitiation of the National Historic Preservation Act section 
106 process, and requests comments on several specific issues.

DATES: Comments are due by December 9, 2002.

[[Page 65406]]


ADDRESS: If you wish to file comments regarding this Notice, you should 
send an original and two copies to Surface Transportation Board, Case 
Control Unit, Washington, DC 20423, to the attention of Troy Brady. 
Please refer to Docket No. AB-167 (Sub-No. 1095X) in all correspondence 
addressed to the Board.

FOR FURTHER INFORMATION CONTACT: Troy Brady, the environmental contact 
for this case, by phone at (202) 565-1643 or by fax at (202) 565-9000. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: In Friends of the Atglen-Susquehanna Trail, 
Inc. v. Surface Transportation Bd., 252 F.3d 246 (3rd Cir. 2001) 
(FAST), the United States Court of Appeals for the Third Circuit 
vacated and remanded to the Surface Transportation Board (Board) a case 
involving the agency's historic review of a proposal to abandon 66.5 
miles of track called the Enola Branch in Lancaster and Chester 
Counties, PA. The Board's decision to allow abandonment of rail service 
on the Enola Branch is unaffected by the court's remand. However, the 
court ruled that the Board failed to comply fully with the procedural 
requirements of the National Historic Preservation Act, 16 U.S.C. 470f 
(NHPA), when in 1997 and 1999 the Board denied the requests of the 
Friends of the Atglen-Susquehanna Trail, Inc. (FAST) to reopen and 
broaden the historic preservation condition imposed by the Board's 
predecessor, the Interstate Commerce Commission (ICC),\1\ in a 1990 
decision permitting Consolidated Rail Corporation (Conrail) to fully 
abandon the Enola Branch except for the bridges.
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    \1\ The ICC Termination Act of 1995, Pub. L. 104-88, abolished 
the ICC and transferred certain rail functions, including the rail 
line abandonment functions at issue in this case, to the Board, 
effective January 1, 1996.
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    The Board's Section of Environmental Analysis (SEA) has reinitiated 
the section 106 historic review process pursuant to the court's remand. 
Since the court's decision, SEA has been working to bring the diverse 
parties with different interests together so that the Board can move 
the historic review process to completion in accordance with the law 
and the court's decision, as described further below.
    SEA consulted with the Advisory Council on Historic Preservation 
(ACHP) and the Pennsylvania State Historic Preservation Officer (SHPO) 
while preparing this Notice to the Parties (Notice), and provided them 
with the opportunity to review and comment on the Notice prior to 
issuance. The Notice incorporates the comments of ACHP and SHPO 
received to date. The intent of this Notice is threefold: (1) To bring 
all consulting parties up to date on the background of the case; (2) to 
describe the Board's reinitiation of the NHPA process and proposed next 
steps; and (3) to solicit comments on the five issues delineated at the 
end of this Notice.

I. Background

A. The NHPA

    Before authorizing a rail line abandonment, the Board must comply 
with section 106 of the NHPA, which requires Federal agencies to 
consider the effects of their decisions on historic properties. ACHP 
has issued regulations implementing the NHPA. See 36 CFR part 800. 
These regulations were revised in December 2000, and SEA is following 
the current ACHP regulations in the reinitiation of the NHPA process 
for this case.
    The requirements of the NHPA are procedural in nature and do not 
require a particular result. See FAST, 252 F.3d at 263. NHPA 
establishes a three-step process under which the agency must consult 
with the appropriate SHPO and other consulting parties to determine: 
(1) Which, if any, historic resources could be affected by the agency's 
action (Identification Phase); (2) whether those properties would be 
adversely affected by the agency's action (Assessment Phase); and, if 
so, (3) what conditions, if any, should be imposed to avoid, minimize 
or mitigate those adverse effects (Mitigation Phase). See 36 CFR 
800.1(a).
    During the Identification Phase, the agency must determine which 
properties that could be affected by the project are listed on or 
eligible for listing on the National Register of Historic Places 
(National Register). If the agency and the SHPO do not agree on this 
threshold eligibility question, or at ACHP's request, the agency must 
obtain an eligibility determination from an official in the Department 
of the Interior known as the Keeper of the National Register (Keeper).
    During the Assessment Phase, the agency must determine whether the 
properties identified as historic will be adversely affected by the 
proposed abandonment. The general practice of the Board has been to 
assume that the abandonment of a rail line will negatively impact any 
properties involved that are identified as historic.
    Finally, during the Mitigation Phase, the agency must develop 
appropriate mitigation measures to avoid, minimize or mitigate adverse 
effects on the historic properties so identified. Those measures must 
be crafted in consultation with the SHPO, ACHP, the railroad, and other 
consulting parties, with input from the public. The agency's mitigation 
plan is then formulated into a proposed Memorandum of Agreement (MOA), 
which, if agreed upon, is signed by the consulting parties. If no 
agreement on mitigation is reached, the consultation may be terminated, 
and the agency must request and take into account ACHP's formal 
comments prior to issuing a final decision.

B. This Case

    The Enola Branch extends across Lancaster County, PA, from 
approximately milepost 27 (1 mile east of Safe Harbor, at the 
confluence of Conestoga Creek with the Susquehanna River) easterly to 
the Chester County, PA, line at milepost 4.03. A short portion of the 
Enola Branch (between mileposts 4.03 and 0.0) lies in Chester County. 
The Enola Branch passes though the Townships of West Sadsbury, 
Sadsbury, Bart, Eden, Providence, Martic and Conestoga, and the Borough 
of Quarryville.
    In 1989 Conrail sought authority from the ICC to abandon the Enola 
Branch pursuant to 49 U.S.C. 10903 and ICC regulations codified at 49 
CFR 1152.50. The ICC issued a decision in 1990 allowing the abandonment 
subject to a condition, developed as a result of consultation with the 
SHPO, that Conrail retain its interest in, and take no steps to alter 
the historic integrity of, 83 bridges--the only properties on the line 
that had been identified as historic--until completion of the historic 
review process. The purpose of the condition was to allow the ICC to 
work with consulting parties to develop a plan to avoid, minimize, or 
mitigate any adverse effects of the abandonment on the bridges. The 
development of a mitigation plan was held in abeyance, however, pending 
negotiations to transfer the line for interim trail use/rail banking 
under 16 U.S.C. 1247(d) or other public use under former 49 U.S.C. 
10906 (now 49 U.S.C. 10905). When those negotiations proved 
unsuccessful, the NHPA process was resumed.
    Following extensive negotiations and consultations with Conrail and 
the Pennsylvania SHPO, SEA developed proposed historic preservation 
mitigation measures for the bridges. At the suggestion of the SHPO, 
Conrail would be required to document (to the level of Pennsylvania 
state standards) certain bridges prior to their removal,

[[Page 65407]]

and to fund and furnish materials for a display relating to the Enola 
Branch in a transportation museum administered by the SHPO.
    While this process was moving forward, FAST filed a petition with 
the Board to reopen the proceeding and broaden the NHPA condition so 
that it would apply to the entire line, rather than only the bridges on 
the line. The Board denied FAST's request in a decision issued in 1997. 
In that decision, the Board also narrowed the properties determined to 
be historic to 32 of the 83 bridges, in light of subsequent statements 
by the SHPO, and clarified that its condition embraced certain 
archeological sites.
    FAST sought Board reconsideration of the 1997 decision. FAST also 
sought the involvement of ACHP. In a March 1998 letter, ACHP advised 
the Board of ACHP's determination that the Board had not fully complied 
with NHPA requirements for the first two stages of the historic review 
process for the Enola Branch. In the meantime, SEA, which believed that 
only the Mitigation Phase of the NHPA process for the bridges remained 
open, had consulted with the SHPO and Conrail on appropriate mitigation 
for the identified bridges. SEA drafted a proposed MOA reflecting that 
consultation,\2\ which was sent to the SHPO, ACHP and Conrail for their 
signatures later in 1998.
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    \2\ The MOA would have provided for photographic documentation 
of all of the historic bridges and the development of a public, 
interpretative display, in the form of a 6-8 minute video, outlining 
the history of the Enola Branch.
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    The SHPO declined to sign the MOA until the Board consulted with 
ACHP. ACHP, in turn, explained that it believed that its consideration 
of the draft MOA was untimely, as the draft MOA could be properly 
considered only after the issue of whether the entire line should be 
subject to an historic review was resolved. ACHP then formally referred 
the eligibility matter to the Keeper, who concluded that the entire 
Enola Branch was eligible for inclusion in the National Register.\3\ 
Nevertheless, in 1999 the Board denied FAST's petition for 
reconsideration of the 1997 decision. The Board set out its view that 
the Identification Phase of the NHPA process had been completed in 1990 
for the non-bridge parts of the line and that only the Mitigation Phase 
remained open and only as to the bridges. Given the impasse with ACHP, 
which had declined to comment on bridge mitigation, the Board decided 
to terminate its consultation with ACHP and to impose a section 106 
condition consisting of the provisions of the unexecuted MOA as its 
bridge mitigation measures. FAST then sought judicial review.
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    \3\ The SHPO also had written a letter to the Pennsylvania 
Department of Transportation to the same effect.
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C. The Court's FAST Decision

    The court's concern that resulted in the remand was ``less with the 
substantive results reached by the [Board] on the historic eligibility 
of the Enola Branch than with the procedures and reasoning the [Board] 
followed in reaching those results.'' The NHPA is a ``stop, look, and 
listen'' provision, and the court concluded that the Board had not 
``touched all the procedural bases.'' FAST, 252 F.3d at 263.
    With respect to the Board's actions in the Identification Phase, 
the court found that the identification process under the ACHP 
regulations is a ``fluid and ongoing one'' in which changing 
perceptions of historical significance are considered. Id. Therefore, 
the court determined that, once ACHP brought the Keeper into the 
process, the Keeper's conclusions had to be considered. Id. at 264. The 
court was not persuaded that the Board had given the Keeper's 
determinations sufficient consideration. Id. The court also faulted the 
Board for not adequately involving ACHP in the process or considering 
evidence submitted by other parties (specifically Lancaster County) 
regarding the historic significance of the Enola Branch. Id. at 265-66. 
Finally, the court found that the Board had not followed the proper 
procedures for terminating consultation with ACHP, id. at 266-67, and 
directed that, on remand, the Board follow the procedures of the NHPA 
regulations in concluding the case, Id. at 267.

II. Reinitiation of the NHPA Section 106 Process

    In accordance with the court's remand, SEA is conducting the NHPA 
process anew in this case. Below, SEA sets forth the steps it has taken 
to date and outlines its plans to complete this proceeding.

A. Identification of Potential Consulting Parties

    SEA has undertaken consultations with ACHP, the SHPO, and other 
consulting parties, including the Commonwealth of Pennsylvania and the 
Lancaster County Planning Commission, to obtain information both on how 
to conclude the NHPA process here and on potential consulting parties. 
In addition to ACHP and the SHPO, SEA has identified 54 potential 
consulting parties.\4\ SEA is serving a copy of this Notice on each of 
these parties, and will publish this Notice in the Federal Register to 
alert any additional consulting parties to the opportunity to take part 
in the ongoing NHPA process.
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    \4\ These potential consulting parties include: parties 
previously involved in the case (Norfolk Southern Corporation, FAST, 
and the Keeper); members of Congress (Honorable Arlen Specter, 
United States Senate; Honorable Rick Santorum, United States Senate; 
and Honorable Joseph R. Pitts, United States House of 
Representatives); state leaders and agencies (Honorable Mark 
Schweiker, Governor; Pennsylvania Department of Transportation; 
Pennsylvania Public Utility Commission; Pennsylvania Bureau of State 
Parks; and Pennsylvania Department of Conservation and Natural 
Resources); tribes (Absentee-Shawnee Tribe of Oklahoma; Cayuga 
Nation; Delaware Nation, Oklahoma; Delaware Tribe of Indians, 
Oklahoma; Eastern Shawnee Tribe of Oklahoma; Oneida Indian Nation; 
Oneida Tribe of Indians of Wisconsin; Onondaga Indian Nation; Seneca 
Nation of Indians; Seneca-Cayuga Tribe of Oklahoma; St. Regis Mohawk 
Tribe; Stockbridge-Munsee Community of Wisconsin; Tonawanda Band of 
Seneca Indians; and Tuscarora Nation); local agencies and 
organizations (Atglen Borough, Chester County Planning Commission, 
Chester County Parks and Recreation Department, Delaware Valley 
Regional Planning Commission, Lancaster County Planning Commission, 
Lancaster County Department of Parks and Recreation, Bart Township 
Supervisors, Bart Township Planning Commission, Conestoga Township 
Supervisors, Conestoga Township Planning Commission, Eden Township 
Supervisors, Eden Township Planning Commission, Martic Township 
Supervisors, Martic Township Planning Commission, Parkesburg 
Borough, Providence Township Supervisors, Providence Township 
Planning Commission, Quarryville Borough Council, Quarryville 
Borough Planning Commission, Sadsbury Township Supervisors, Sadsbury 
Township Planning Commission, West Sadsbury Township Supervisors, 
and West Sadsbury Township Planning Commission); historic 
preservation organizations (Chester County Historic Preservation 
Network, Preservation Pennsylvania, Historic Preservation Trust of 
Lancaster County, and Central Pennsylvania Conservancy); Amtrak; and 
the Law Firm of Malatesta Hawke & McKeon LLP.
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B. Identification Phase

    As stated above, the identification of historic properties is the 
first phase of the section 106 process. As noted, in this case the 
Keeper has determined that the entire line is historic,\5\ rather than 
only selected bridges and archeological sites.\6\ Therefore, SEA will 
treat the entire line as historic in accordance with the Keeper's 
determination and the ACHP regulations.
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    \5\ Evidently, little if any track remains on the Enola Branch. 
However, in this case, ``the historical eligibility of the line as a 
whole does not require the presence of the tracks and other railroad 
equipment.'' See FAST, 252 F.3d at 262.
    \6\ As explained above, the historic preservation condition 
imposed in the Board's 1997 decision covered only certain bridges 
and archeological sites on the Enola Branch.
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C. Assessment Phase

    As stated above, the Board generally assumes that abandonment of a 
rail line would adversely impact any properties

[[Page 65408]]

involved that are identified as historic, unless it obtains evidence 
that there would be no adverse effect, and both ACHP and the SHPO agree 
with the Board that abandonment of the Enola Branch would adversely 
affect historic sites and structures.

D. Mitigation Phase

    In order to develop appropriate mitigation, SEA requests additional 
information from all consulting parties regarding the physical 
condition of the Enola Branch. After the court issued its decision in 
FAST, SEA requested a description of the current condition of the rail 
line from Norfolk Southern Corporation (NS), which acquired the Enola 
Branch from Conrail in 1998.\7\ NS submitted a letter stating that the 
road bed and embankments of the rail line are still intact, though 
there is substantial overgrowth in the area. While NS indicated that 
the Enola Branch has been subject to periodic inspections for right-of-
way clean up and Amtrak's maintenance of certain power lines, NS stated 
that there has been no comprehensive inspection of the rail line and 
associated structures in the last 10 years.
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    \7\ On June 23, 1997, NS and CSX Transportation Inc. sought 
permission from the Board to acquire Conrail and to divide its 
assets between them. On July 23, 1998, the Board approved the 
Conrail Acquisition. CSX Corp., et al. & Norfolk Southern Corp., et 
al.--Control and Operation Leases/Agreements--Conrail Inc., et al., 
STB Finance Docket No. 33388 (decision No. 89) (STB served July 23, 
1998). The Pennsylvania Rail Lines LLC, a subsidiary of Conrail, now 
owns the Enola Branch and leases it to NS.
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    The Enola Branch originally included 83 bridges, prior to Conrail's 
application for abandonment. In its letter, NS stated that 
approximately 65 grade-separated structures on the line remain in place 
and are in different states of usability. According to NS, the 
Pennsylvania Public Utility Commission has served orders for removal, 
conveyance to local municipalities, or assumption of maintenance 
responsibilities by the Commonwealth of Pennsylvania, regarding bridge 
structures on the rail line.
    As the ICC explained in its decision adopting the rules that 
continue to govern the Board's implementation of the NHPA,\8\ the 
agency's ability to protect historic properties is very limited. The 
Board cannot deny authority for a railroad to take an action that would 
otherwise meet the relevant statutory criteria solely on the ground 
that it would adversely affect historic resources. Moreover, with 
respect to rail line abandonments, the Board can impose historic 
preservation conditions only to the extent that the particular property 
is owned by the railroad seeking abandonment (either full ownership in 
fee or a long-term interest in the property) and the property has a 
sufficient nexus to the proposal under review. When the Board imposes 
historical preservation conditions on particular property, the Board 
cannot force the applicant to sell or donate its property, or impose a 
restrictive covenant upon the deed. Essentially, documentation of the 
historic resources (taking photographs or preparing a history) before 
they are altered or removed is the only form of nonconsensual 
mitigation the Board can require. Although the Board has limited 
authority to protect historic properties, if the consulting parties 
agree to undertake additional mitigation beyond what the Board may 
require (such as preservation of a resource), such consensual 
mitigation can be incorporated in the MOA.
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    \8\ See Implementation of Environmental Laws, 7 I.C.C.2d 807, 
828-29 (1991).
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    As stated above, in the 1990's a proposed MOA was developed for the 
Enola Branch that would have provided for photographic documentation of 
all of the historic bridges to Pennsylvania's state standards, and the 
development of a public, interpretative display, in the form of a 6-8 
minute video, outlining the history of the Enola Branch. SEA 
specifically requests comments on whether the provisions of this 
previously developed MOA proposal would constitute appropriate 
mitigation at this time and, if not, suggestions for additional or 
alternative mitigation measures.

E. Formulation of an MOA

    Based on public comment in response to this Notice and other input 
that SEA receives from the SHPO, ACHP, the railroad and others, SEA 
expects over the next several months to develop, in conjunction with 
the consulting parties, appropriate measures to avoid, minimize, or 
mitigate adverse effects on the historic properties identified in this 
case. After such mitigation measures have been determined, SEA will 
incorporate the proposed mitigation into an MOA and then circulate, 
and--as required under the law--seek public comment on the MOA. SEA 
requests comments on how it can best publicize the proposed MOA. Once 
an MOA is signed, the NHPA review in this case will be complete in 
accordance with the NHPA and the court's decision, and the section 106 
condition imposed in this case can be removed.\9\
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    \9\ Agency officials and consulting parties can expedite the 
section 106 process by addressing multiple steps simultaneously 
where appropriate, as long as the consulting parties and the public 
have an adequate opportunity to express their views and the SHPO 
(and Tribal Historic Preservation Officer(s), when involved) agree 
that it is appropriate. See FAST, 252 F.3d at 252; 36 CFR 800.3(g).
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III. Comments

    SEA specifically invites comments from consulting parties and 
members of the public on the following:
    1. Identification of additional consulting parties;
    2. Any need for further assessment of adverse effects on the line;
    3. Appropriate mitigation measures (including comments on the 
measures specified in the earlier MOA and suggestions for additional or 
alternative measures, as well as information regarding the current 
condition of the rail line);
    4. Methods or outlets for publicizing a proposed MOA; and
    5. Any other pertinent issues relevant to this proceeding.

    Decided: October 15, 2002.

    By the Board, Victoria Rutson, Chief, Section of Environmental 
Analysis.
Vernon A. Williams,
Secretary.
[FR Doc. 02-27111 Filed 10-23-02; 8:45 am]
BILLING CODE 4915-00-P