[Federal Register Volume 68, Number 202 (Monday, October 20, 2003)]
[Notices]
[Pages 59988-59995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26384]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

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


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

AGENCY: Surface Transportation Board, Department of Transportation.

ACTION: Notice responding to comments received on the October 2002 
notice to the parties and requesting comments on an attached proposed 
draft memorandum of agreement.

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SUMMARY: This Notice to the Parties responds to the comments received 
on the October 2002 Notice to the Parties in this rail line abandonment 
proceeding, discusses the possibility of trail use for the rail line 
right-of-way, describes and solicits comments on the attached proposed 
draft Memorandum of Agreement, and provides information for a public 
meeting to be held on November 19, 2003.

DATES: Comments are due by December 3, 2003.

ADDRESS: If you wish to file written comments regarding the attached 
proposed draft Memorandum of Agreement, please send an original and two 
copies to the Surface Transportation Board, Case Control Unit, 1925 K 
Street, NW., Washington, DC 20423-0001, 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: If you have questions regarding this 
Notice, you should 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: On October 24, 2002, the Surface 
Transportation Board (Board) issued a Notice to the Parties (October 
2002 Notice) in the above-titled rail abandonment proceeding. The 
October 2002 Notice set forth the background of the case, described the 
Board's reinitiation of the section 106 process of the National 
Historic Preservation Act (NHPA), 16 U.S.C. 470f, pursuant to the 
decision of the United States Court of Appeals for the Third Circuit in 
Friends of the Atglen-Susquehanna Trail, Inc. v. Surface Transportation 
Bd., 252 F.3d 246 (3rd Cir. 2001) (FAST), and solicited comments on 
certain issues regarding this reinitiation. In response to the October 
2002 Notice, the Board received 18 comment letters, as well as a letter 
replying to the comments of other parties, all of which were placed on 
the Board's Web site.
    The Board's Section of Environmental Analysis (SEA) has reviewed 
the comments. Based on the information therein as well as ongoing 
consultations with the Advisory Council on Historic Preservation 
(ACHP), the Pennsylvania State Historic Preservation Officer (SHPO), 
and Norfolk Southern Railway Corporation (NS), SEA has developed a plan 
to complete the section 106 process for this proceeding. The ACHP, the 
SHPO, and NS have indicated their approval of SEA's plan, as well as 
their willingness to sign the attached proposed draft Memorandum of 
Agreement (MOA). Changes suggested pursuant to consulting party and 
public review and comment will be considered. Below, SEA (1) summarizes 
and responds to the comments, including those that favor converting 
this railroad right-of-way to interim trail use/rail banking pursuant 
to 16 U.S.C. 1247(d) (Trails Act), or a privately negotiated trail use 
agreement entered into after the abandonment is consummated, (2) 
discusses the remaining steps in the section 106 process for this case, 
assuming that trail use here is unsuccessful, and (3) describes the 
attached proposed draft Memorandum of Agreement (MOA) setting forth 
proposed section 106 mitigation. As discussed in more detail below, SEA 
has also scheduled a public meeting on this case and the proposed draft 
MOA and is providing a 45-day period for interested parties to file 
written comments on the proposed draft MOA.

I. Comment Summary and Response

A. Historic Eligibility of the Enola Branch Rail Line

    Comment. NS states that it disagrees with the designation of the 
Keeper of the National Register of Historic Places (Keeper) that the 
entire line is historic.
    Response. As explained in the October 2002 Notice, pursuant to the 
Keeper's determination, the ACHP regulations, and the court's holding 
in FAST, the entire line is historic. NS has not provided any 
compelling reasons that would undermine the conclusions of the Keeper, 
the ACHP, and the court.

B. Clarification of the Length and Location of NS's Remaining Line

    Comment. NS's reply comments attempt to clarify the name, exact 
length and location of the rail line that is the subject of this 
proceeding. NS states that the proper name for the rail line was the 
Atglen and Susquehanna Branch, because the rail line runs from a 
location near Atglen, PA to a location near the Susquehanna River. 
According to NS, the notice of exemption Consolidated Rail Corporation 
(Conrail) filed in 1989 was for 66.5 miles of track, but only 33.9 
miles of this is actual rail right-of-way. NS states that the rail line 
extends from Milepost 0.0 at CP ``Park'' in Parkesburg, PA to Milepost 
33.9 near a connection with the Port Road Brach at CP ``Port'' in Manor 
Township, PA. The other 32.6 miles of track referred to in the notice 
of exemption refer to the second track of the double tracked rail line 
between approximately Milepost 1.1 and Milepost 33.7. Subsequently, NS 
has indicated that it will return to the use of the designation ``Enola 
Branch'' for this line in this proceeding because of Conrail's use of 
this name during the period that it operated the line and the long use 
of this name in this proceeding.
    NS also states that it currently intends to retain the property 
between Milepost 27.0 at Safe Harbor, PA and Milepost 33.9 at Port, PA 
in connection with its operation of the Port Road Branch; and between 
Milepost 0.0 at Parkesburg, PA and Milepost 1.5 at Lenover, PA, except 
for Amtrak's bridge, for use as the Parkesburg Industrial Track. 
According to NS, no abandonment authority or exemption was necessary 
because these line segments will continue to be owned by NS and used 
for railroad purposes; only one of the two tracks will be removed. For 
the same reason, NS states that there will be no adverse effect on 
historic properties on these segments.
    NS also states that Conrail sold the portion of the rail line 
between Milepost 1.5 at Lenover to Milepost 4.0 near the Chester 
County-Lancaster County line to Southeastern Pennsylvania 
Transportation Authority (SEPTA) in 1996. Thus, according to NS, the 
only portion of the rail line (if any) that is subject to this section 
106 process is from about Milepost 4.0 in Chester County, PA (the end 
of a bridge over Noble Road and Octoraro Creek and about 50 yards of 
access to the bridge) to Milepost 27.0 at Safe Harbor, or approximately 
23 miles of rail right-of-way.
    Response. Conrail described the line to be abandoned in its 1989 
notice of

[[Page 59989]]

exemption filing as two parallel tracks of a double tracked line. 
According to Conrail, track number 1 extended 32.6 miles from Milepost 
1.1 in Parkesburg to Milepost 33.7 in Manor Township. Track number 2 
extended 33.9 miles from Milepost 0.0 in Parkesburg to Milepost 33.9 in 
Manor Township. Subsequent descriptions of the line mistakenly referred 
to the total length of the line to be abandoned as either 66.5 miles of 
track or 66.5 miles of rail line. SEA agrees with NS that the length of 
the line is the actual length of the right-of-way. Thus, the line 
originally at issue here extended 33.9 miles, from Milepost 0.0 in 
Parkesburg to Milepost 33.9 in Manor Township.\1\
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    \1\ The October 2002 Notice incorrectly described the line as 
extending from Milepost 0.0 to Milepost 27.0.
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    Moreover, it now appears that Conrail sold the portion of the line 
between Milepost 1.5 to Milepost 4.0 to SEPTA in 1996, so that NS now 
retains ownership only of the line from Milepost 0.0 to Milepost 1.5 
and from Milepost 4.0 to Milepost 33.9. As the court stated in FAST, 
``[i]f, on remand, the [Board] concludes that [NS] has disposed of some 
portion of the line, the [Board] will be without power to expand the 
historical condition to cover that property already sold.'' See FAST 
252 F.3d at 262. Accordingly, this proceeding, pursuant to the court's 
remand, will be applicable to the NS-owned portions of the line from 
Mileposts 0.0 to 1.5 and Mileposts 4.0 to 33.9.
    NS suggests that this proceeding does not apply to the line between 
approximately Mileposts 0.0 and 1.5, and between Mileposts 27.0 and 
33.9 because NS intends to retain that portion of the Enola Branch as 
industrial track. However, NS never sought to dismiss its request for 
authority to abandon that track, and, under the court's remand, this 
proceeding includes that track.

C. The Possibility of Trail Use Here

    Comment. Friends of the Atglen-Susquehanna Trail, Inc. (FAST), the 
Pennsylvania Department of Conservation and Natural Resources 
(DCNR),\2\ the County of Chester, the Historic Preservation Trust of 
Lancaster County, and certain individuals commented that interim trail 
use/rail banking would be appropriate here, which, if an agreement 
could be entered into, would result in preservation on any railbanked 
portions of the right-of-way for the duration of the interim trail use. 
In consultations, the SHPO indicated that, if the Trails Act remains 
available, and if a Trails Act agreement could be reached that would 
preserve the contributing resources on the rail line right-of-way, 
there would be no adverse effect on historic properties, thereby 
presumably mooting the need to continue with the mitigation stage of 
the section 106 process (development of an appropriate MOA).
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    \2\ DCNR stated that the Lancaster County Commissioners have 
expressed interest in sponsoring a rail-to-trail project.
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    Comment. NS has stated that it would consider a proposal for trail 
use that meets certain criteria. Specifically, NS states \3\ that it 
would seriously consider any proposal for trail use that is made 
promptly so as not to delay the conclusion of this proceeding and that:

    \3\ See NS Reply Comments at 47.
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    (1) Does not result in the commitment of any additional railroad 
funds than are already committed to this project, (2) does not 
result in the commitment of any substantive amount of railroad time 
to the project, (3) does not result in any additional liability for 
the railroad, (4) does not result in any continuing responsibility 
to the project by the railroad after it has consummated that 
abandonment and conveyed the relevant segment of the [l]ine, (5) 
completely satisfies all of the [Townships of West Sadsbury, 
Sadsbury, Eden, Bart, Providence, Martic, and Conestoga (Townships)] 
and [Pennsylvania Department of Transportation (PennDOT)], and (6) 
is acceptable to the [Pennsylvania Public Utility Commission (PUC)] 
in substitution for its previous order.

    NS also has indicated that it will honor the settlement agreements 
entered into by Conrail and approved by PUC. Specifically, Conrail 
entered into an agreement with the Townships under which it would 
convey segments of the abandoned line to the respective Township 
through which each segment passed; the Townships would assume future 
ownership and maintenance responsibility for the line and the crossing 
structures; Conrail would contribute an agreed sum of money to the 
Townships for the future maintenance of the crossing structures that 
are to remain in place; and certain other crossing structures deemed to 
constitute serious highway safety hazards would be removed by either 
Conrail or a specified Township. Conrail entered into a similar 
settlement agreement with PennDOT. See PUC Docket Nos. A-00111016 and 
C-00913256, Board of Supervisors of Bart Township v. Consolidated Rail 
Corporation, Pennsylvania Department of Transportation, and Lancaster 
County, et al., October 9, 1997. NS has indicated that any agreement 
with a potential trail sponsor to use the right-of-way as a trail would 
have to be acceptable to the Townships and PennDOT.
    Response. The Trails Act allows rail line that would otherwise be 
abandoned to be preserved (rail banked) and used in the interim as 
trails. See Preseault v. ICC, 494 U.S. 1 (1990). The trail sponsor must 
assume responsibility for any taxes on, and tort liability for, the 
property. 16 U.S.C. 1247(d). The Trails Act delays abandonment of a 
line (and any consequent reversion of rail easements to adjacent 
property owners) as a matter of law while the line is rail banked and 
interim trail use continues, and provides that the line may be 
reactivated for rail service at any time. Id. Alternatively, if the 
railroad owns the property in fee, a railroad can convert its property 
to trail use outside the auspices of the Trails Act after the 
abandonment is consummated. See Hayfield N. R. Co. v. Chicago & North 
Western Transp. Co., 467 U.S. 622, 633-34 (1984) (Hayfield Northern) 
(following abandonment, rail right-of-way is like any other 
property).\4\
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    \4\ Just as with interim trail use under 16 U.S.C. 1247(d) there 
presumably would be no adverse effect on historic properties under a 
private trail arrangement that would preserve the contributing 
resources on the rail line right-of-way and the need to continue 
with the mitigation phase of the NHPA process could be mooted.
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    The Board's procedures for establishing interim trail use/rail 
banking on a rail line proposed for abandonment pursuant to 16 U.S.C. 
1247(d) are detailed in the Board's regulations at 49 CFR 1152.29 and 
are separate from the section 106 process. Parties interested in 
pursuing interim trail use under the Trails Act for this proceeding 
would have to follow the Board's regulations to do so. Although trail 
use requests are normally due within 10 days after the date on which 
the notice of exemption is published in the Federal Register for notice 
of exemption abandonment proceedings, the Board generally accepts late-
filed requests for interim trail use as long as it retains jurisdiction 
over the subject rail line in a particular proceeding. However, interim 
trail use under 16 U.S.C. 1247(d) is voluntary on the part of both the 
railroad and the potential trail sponsor,\5\ and the Board cannot 
impose an interim trail use arrangement upon unwilling parties. Thus, 
while it is possible that interim trail use under the Trails Act could 
occur in this case on

[[Page 59990]]

the portion of the line that NS still owns and controls \6\--if a 
potential trail sponsor files an interim trail use/rail banking request 
in accordance with 49 CFR 1152.29 during this remanded proceeding, NS 
agrees to negotiate with the potential trail sponsor, and the parties 
ultimately enter into a Trails Act arrangement--it would be 
inappropriate for the Board to force the parties to negotiate or to 
include a trail use condition as part of the section 106 mitigation 
measures for this proceeding.\7\
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    \5\ A railroad is under no obligation either to negotiate 
concerning or enter into an interim trail use/rail banking 
arrangement. See 49 CFR 1152.29(b)(1); Connecticut Trust for 
Historic Preservation v. ICC, 841 F.2d 479, 482-483 (2d Cir. 1988); 
National Wildlife Fed'n v. ICC, 850 F.2d 694, 696 (D.C. Cir. 1988); 
Washington State Dep't of Game v. ICC, 829 F.2d 877, 879-82 (9th 
Cir. 1987).
    \6\ See discussion above on pages 2-3.
    \7\ NS has indicated that although it might agree to a proposal 
to use this right-of-way as a trail under the circumstances 
discussed above, it does not believe that issuance of a trail 
condition by the Board (a notice of interim trail use or NITU) would 
be appropriate here. If NS continues to take this position, any 
trail use would have to be by private arrangement of the parties 
following consummation of the abandonment and conclusion of the 
section 106 process.
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D. Summary of Other Comments and SEA's Response

    Assuming that there is no agreement for trail use and that the 
mitigation phase of the section 106 process goes forward for the NS-
owned portions of the line from Mileposts 0.0 to 1.5 and Mileposts 4.0 
to 33.9, this section discusses the comments and responses received 
regarding section 106.
    1. Identification of additional consulting parties to the section 
106 process. Comment. FAST commented that SEA needs to make a greater 
effort to identify as many consulting parties as possible, and should 
include local community groups in the consultation process. FAST and 
other commenters requested that certain specific parties be included as 
consulting parties to the proceeding.
    Response. Prior to issuing the October 2002 Notice and pursuant to 
the ACHP's regulations for implementing the section 106 process, 36 CFR 
800.3(f), SEA consulted with the SHPO to identify possible consulting 
parties. SEA also conducted internet searches, contacted local 
government entities, and obtained updated addresses for parties that 
had been interested in earlier stages of the case. The Board then 
served the October 2002 Notice on 149 parties, placed the October 2002 
Notice on the Board's Web site, and published the October 2002 Notice 
in the Federal Register, requesting comments and information on the 
identification of additional consulting parties. The Historic 
Preservation Trust of Lancaster County, Lancaster County Conservancy, 
Lancaster Farmland Trust, the Northeast Regional Field Office of the 
Rails-to-Trails Conservancy, PennDOT, and Southern End Community 
Association have requested to be granted official consulting party 
status. SEA agrees that these six parties should be consulting parties, 
and, based on the history of this proceeding, has also included FAST 
and the Townships as official consulting parties for this section 106 
process. All of these parties will be invited to concur on the terms of 
the final MOA.
    Furthermore, SEA has added the names of all additional parties 
identified by commenters to the service list for this proceeding,\8\ 
and has updated the names of the elected officials on the service list. 
The service list now stands at 211 parties.\9\ SEA believes that its 
efforts to identify consulting parties have been extensive.
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    \8\ SEA was unable to locate the addresses of several of the 
additional organizations submitted by FAST. These organizations are: 
Town and Country Garden Club, Christiana Lions Club, Lancaster 
County Wildlife Center, the Lancaster Environmental Alliance, 
Octoraro Area Trail Society, Penn Manor Neighborhood of Girl Scouts, 
and a high school track and cross country club.
    \9\ The 51 potential consulting parties identified in the 
October 2002 Notice were primarily group entities or organizations. 
For some of these parties, multiple names were acquired and added to 
the service list for this proceeding. Therefore, the total number of 
211 parties includes multiple individuals affiliated with the same 
organization, as well as individuals unaffiliated with any 
organization.
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    All official consulting parties as well as all parties on the 
service list will receive a copy of the attached proposed draft MOA, an 
opportunity to provide written comments on the proposed draft MOA, and 
information on how to participate in a planned public meeting. 
Opportunities for public involvement are discussed in more detail below 
in Section II.
    2. Any need for further assessment of adverse effects on the line.
    Comment. PennDOT submitted comments stating that if any of the 
bridges on the line are individually eligible for inclusion in the 
National Register of Historic Places (National Register), then the 
effects of the proposed abandonment on the individually eligible 
bridges should be determined and taken into consideration when 
developing appropriate mitigation.
    Response. As stated above and in the October 2002 Notice at 4-6, 
the Keeper has determined that the entire line is historic, including 
all sites and structures on the line. Therefore, SEA will treat the 
entire line as historic in accordance with the Keeper's determination 
and the ACHP regulations. Separate review of the bridges on the line is 
unnecessary because all bridges on the line will be treated as 
historic.
    Comment. FAST commented that a current analysis of the historic and 
archeological resources, and a new environmental study of the 
environmental and physical characteristics of the line should be 
performed. FAST also recommended that a title search be undertaken and 
that the assessment of adverse effects should be extended to a 
continuation of the line in Cumberland and York Counties.
    Response. Because SEA is considering the entire line to be 
historic, including all sites and structures on the line, conducting a 
survey of all the archeological and historic resources on the line 
before developing mitigation measures is unnecessary. However, a SEA 
staff member has driven by portions of the right-of-way and inspected 
the current physical condition of the line. As stated in the October 
2002 Notice, the tracks and ties have mostly been removed, and though 
there is some overgrowth of vegetation in the area, the right-of-way on 
NS's line appears to be intact.\10\ Additionally, because the tracks 
and ties have already been removed from much of the right-of-way, there 
is little chance that the abandonment will affect previously 
undisturbed ground or impact archeological sites.\11\ However, after 
completion of the section 106 process and the conclusion of the 
abandonment proceeding before the Board, NS would be able to remove the 
structures on the line and any remaining track and ties, which could 
disturb previously undisturbed ground. As discussed in more detail in 
Section III, the proposed draft MOA contains provisions for protecting 
any potential archeological resources from unforeseen impacts.
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    \10\ In its reply comments, NS explains that portions of the 
line have been retained by NS and are still being used for 
industrial track use.
    \11\ NS has stated that it plans to remove a limited number of 
structures on the line, and that ``little land will be disturbed by 
the removal of these structures which are mainly above ground.'' See 
NS Reply Comments at 61.
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    In accordance with the National Environmental Policy Act (NEPA), 
the Board issued an Environmental Assessment for this proceeding in 
1989. According to the Council on Environmental Quality's regulations 
for implementing the procedural provisions of NEPA, environmental 
analyses should be supplemented if ``[t]here are significant new 
circumstances or information relevant to environmental concerns and 
bearing on the proposed action or its impacts.'' 40 CFR 1502.9(c). The 
NEPA review of this proceeding was completed long ago. No party has 
submitted any evidence indicating new

[[Page 59991]]

circumstances or information that would warrant the undertaking of a 
supplemental environmental analysis at this late date. Furthermore, the 
court in FAST only remanded this proceeding to the Board to deal with 
procedural matters related to the historic review process under section 
106. Therefore, SEA need not reconsider the adequacy of its NEPA review 
here.
    SEA does not believe that a title search need be undertaken as part 
of the section 106 process. The Board cannot compel post-abandonment 
use of a rail line for non-transportation purposes. See Hayfield 
Northern. Therefore, the ownership of the property after an abandonment 
is consummated is not affected by the Board's action and not part of 
the Board's section 106 review.
    The Board cannot extend the assessment of adverse effects to areas 
in Cumberland and York Counties that are not on the line because this 
proceeding is necessarily limited to the rail line proposed for 
abandonment. See Implementation of Environmental Laws, 7 I.C.C.2d 807, 
828-29 (1991).\12\
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    \12\ The Enola Branch rail line is part of a larger rail 
corridor that extends into Cumberland and Dauphin Counties. Although 
the proceeding before the Board and this section 106 process 
pertains only to the right-of-way described above in Section II(B), 
it should be noted that the SHPO has determined that the portions of 
the rail corridor in Cumberland and Dauphin Counties are eligible 
for listing in the National Register.
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    3. Appropriate section 106 mitigation measures. As stated in the 
October 2002 Notice at 6-7, the Board's ability to protect historic 
properties is very limited. 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 that 
the Board can require. The Board does not have the power to force a 
railroad to sell (or donate) its property, or impose a restrictive 
covenant upon the railroad's transfer of its property, as a condition 
to obtaining abandonment authority. Any attempt to either preclude or 
force a railroad to sell (or donate) property for a non-rail purpose, 
as a condition to obtaining abandonment authority, would plainly 
constitute an unauthorized taking under the Fifth Amendment. See 
Implementation of Environmental Laws, 7 I.C.C.2d at 828-29, and cases 
cited therein.
    The October 2002 Notice requested comment on appropriate historic 
preservation mitigation measures, including comments on the measures 
specified in a proposed draft MOA for this line developed earlier, and 
suggestions for additional or alternative measures, as well as 
information regarding the current condition of the rail line. As stated 
in the October 2002 Notice at 3, the earlier proposed draft MOA would 
have provided for photographic documentation of certain 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.
    Comment. NS commented that it has complied with the terms of the 
earlier proposed draft MOA. NS states that the five bridges that the 
PUC has ordered to be removed for safety reasons have been recorded to 
state standards, and that NS has paid $15,437 to the Pennsylvania 
Railroad Museum to develop a video and exhibit of the rail line. NS 
states that the settlement agreement between Conrail and the Townships 
should also be considered a mitigation measure.
    Comment. PennDOT states that mitigation should provide for 
documenting a sampling of the bridges rather than all of the bridges on 
the line. PennDOT also suggests that additional outreach and 
preservation should be conducted, such as publishing a more 
comprehensive history of the line and providing money to municipalities 
to take over the maintenance of as many bridges as possible.
    Response. As discussed in more detail in Section III and the 
proposed draft MOA, the Board, the SHPO, and NS will work together to 
develop a list of appropriate representative structures to be 
documented. Documentation of these representative structures will serve 
to document the historic nature of the line as a whole. Moreover, NS 
will be required to conduct archival research and to consolidate all 
information--documentation and the results of the archival research--
into one cohesive document to be archived at the SHPO's office. The 
mitigation in the proposed draft MOA constitutes a marked change from 
the first proposed draft MOA, which treated only six bridges as 
historic, not the line as a whole, and did not require archival 
research. As stated above, NS's settlement agreements with the 
Townships and with PennDOT provide for local maintenance of structures 
that would remain intact. However, because the Board's ability to 
impose mitigation for the protection of historic resources is limited, 
such agreements, if any, must be entered into voluntarily and are not 
within the scope of this section 106 process. As discussed in Section 
III below, SEA believes that the archival research discussed above and 
documentation of the line to Pennsylvania state standards \13\ using 
representative structures on the Enola Branch is sufficient and that, 
given the mitigation that NS has already undertaken, a more 
comprehensive history of the line need not be prepared.\14\
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    \13\ Pennsylvania state standards are outlined in the guidance 
document titled ``How To Complete the Pennsylvania Historic Resource 
Survey Form,'' available from the SHPO, and require the submission 
of a photo/site plan sheet, a data sheet, and a narrative sheet.
    \14\ As indicated above, NS has already paid to the Pennsylvania 
Railroad Museum $15,437 to fund an exhibit or video of the history 
of the Enola Branch.
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    4. Methods or outlets for publicizing a proposed MOA. Comment. 
Commenters recommend widespread notification and public participation 
in the section 106 process, including press releases and public 
meetings.
    Response. To ensure widespread notice and opportunity for public 
participation the Board placed all comments received in response to the 
October 2002 Notice on the Board's Web site, and informed all 
interested parties of the availability of the comments on the Web site. 
SEA is sending this current Notice to the Parties (October 2003 Notice) 
to all 211 parties on the service list for this proceeding, as well as 
publishing the October 2003 Notice in the Federal Register and posting 
it on the Board's Web site. The Board has also issued a press release 
describing the contents of the October 2003 Notice.
    As discussed in more detail below, SEA will accept written comments 
on the attached proposed draft MOA, and will also hold a public meeting 
before the close of the comment period to enable interested parties to 
provide oral comments. As a result, there will be ample opportunity for 
public participation and broad notice of the continuing section 106 
process here.
    Comment. PennDOT states that public input is required while 
developing the proposed draft MOA and before deciding how to resolve 
adverse effects of the undertaking, rather than after the proposed 
draft MOA is developed. PennDOT also states that the Board should 
provide the documentation regarding the section 106 process to the 
public in the manner set forth in 36 CFR 800.11(e).
    Response. The October 2002 Notice provided members of the public 
with the opportunity to comment on all aspects of this proceeding, 
including ways to mitigate adverse effects. All comments received were 
placed on the Board's Web site, and the proposed draft MOA is also 
being distributed for public comment and placed on the Board's Web 
site. Moreover, as discussed in

[[Page 59992]]

detail below, SEA will host a public meeting to receive additional 
public input on this proceeding in Quarryville, Pennsylvania on 
November 19, 2003. Thus, SEA believes that ample opportunity has been 
provided to the public to participate in the section 106 process here.
    Section 800.11(e) of 36 CFR outlines the documentation that must be 
made available to the public when an agency determines that an action 
will have an adverse effect on historic properties. SEA believes that 
all of the required documentation already has been prepared and made 
publicly available.\15\
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    \15\ Section 800.11(e) states that documentation of a finding of 
adverse effect ``shall include: (1) A description of the undertaking 
specifying the Federal involvement, and its area of potential 
effects, including photographs, maps, and drawings, as necessary; 
(2) A description of the steps taken to identify historic 
properties; (3) A description of the affected historic properties, 
including information on the characteristics that qualify them for 
the National Register; (4) A description of the undertaking's 
effects on historic properties; (5) An explanation of why the 
criteria of adverse effect were found applicable or inapplicable, 
including any conditions or future actions to avoid, minimize or 
mitigate adverse effects; and (6) Copies or summaries of any views 
provided by consulting parties and the public.'' Here, the October 
2002 Notice described the undertaking, specified the area of 
potential effects, described the steps taken to identify historic 
properties, described the determination of eligibility of the line 
for inclusion on the National Register, and discussed the finding of 
adverse effect. As discussed above, all comments received in 
response to the October 2002 Notice have been made publicly 
available.
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    5. Other concerns.
    Comment. Several parties commented that they are concerned about 
public safety at the road crossings along the right-of-way of the line, 
and advocated bringing the section 106 process to a close as soon as 
possible. Commenters also state that the PUC issued an order addressing 
existing safety issues, which has been stayed pending the outcome of 
this section 106 process.
    Response. SEA acknowledges the public safety concerns expressed by 
the commenters. SEA is working to complete the section 106 process as 
expeditiously as possible, pursuant to the relevant regulations and 
procedures.
    Comment. FAST states that NS's plans regarding the line should be 
made known.
    Response. In its reply comments at 50, NS directly responded to 
FAST's request to detail its plans regarding the line. SEA has made all 
comments received to date, including NS's reply comments, available to 
all on the Board's Web site. NS's response is as follows:

[NS] now intends to retain that portion of the Line between Milepost 
0.0 at Parkesburg, PA and Milepost 1.5 at Lenover, PA, except for 
Amtrak's bridge, for use as the Parkesburg Industrial Track. Conrail 
sold the Line between Milepost 1.5 at Lenover, PA and Milepost 4.0 
near the Lancaster County/Chester County Line to SEPTA. [NS] intends 
to honor the Settlement Agreements with PennDOT and the Townships 
pertaining to disposition of the Line between Milepost 4.0 near the 
county line and Milepost 27.0 near Safe Harbor, PA to the Townships 
and with respect to the bridges to be removed. [NS] intends to 
retain possession of the property between Milepost 27.0 near Safe 
Harbor, PA and Milepost 33.9 at Port, PA in connection with its 
operation of, and in order to protect, the Port Road Branch. It may 
retain or place excepted track on all or a portion of this Line.

    Comment. FAST states that the PUC order approving the settlement 
agreement with the Townships conflicts with the section 106 process 
because the order does not include mitigation, does not incorporate the 
viewpoints of all the consulting parties, and was formulated prior to 
the issuance of the Keeper's determination and the court's decision. 
FAST states that NS should acknowledge that the order may need to be 
modified or vacated depending on the outcome of the section 106 
process.
    Response. The requirements of NHPA and the ACHP's regulations apply 
to the abandonment action pending before the Board. Post-abandonment 
use of the line's right-of-way is outside of the Board's jurisdiction. 
The settlement agreement is thus outside the Board's abandonment 
process, including section 106.
    Comment. NS argues that the section 106 process does not apply to 
rail line abandonment proceedings, because rail abandonment proceedings 
and the railroad's post-abandonment activities are not Federal 
undertakings for the purposes of section 106 review, as specified at 16 
U.S.C. 470w(7). NS argues that a project must be Federally funded in 
whole or in part to be considered a Federal undertaking, and notes that 
in notice of exemption proceedings, such as this abandonment, Federal 
funding is not involved. Furthermore, according to NS, in notices filed 
pursuant to a class exemption, the Board's responsibilities are 
ministerial in nature, because the exercise of the class exemption must 
be allowed so long as the statutory and regulatory criteria are met. NS 
also states that the Board's jurisdiction over a rail line ceases as 
soon as an abandonment is consummated, and that the Board cannot 
control a railroad's post-abandonment activities regarding the rail 
line, which is private property. Therefore, NS argues, the section 106 
process causes unnecessary delay, and the Board should discontinue the 
section 106 process in this proceeding and in all other rail line 
abandonment proceedings.\16\
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    \16\ NS has subsequently indicated that because this argument 
was raised in comments to the October 2002 Notice rather than a 
formal motion before the Board, it is not requesting a response from 
the Board on this matter at this time. SEA's response is provided 
here to clarify SEA's position on the section 106 process for this 
proceeding, and should not be construed as a formal Board response 
to NS's argument.
---------------------------------------------------------------------------

    Response. It is well settled that section 106 of NHPA applies to 
all rail line abandonment proceedings. See Implementation of 
Environmental Laws, 7 I.C.C.2d at 826; Illinois Commerce Comm'n v. ICC, 
848 F.2d 1246, 1260-61 (D.C. Cir. 1988) cert. denied, 488 U.S. 1004 
(1989). Indeed, in FAST, the court specifically found that rail 
abandonment proceedings, including this particular notice of exemption 
proceeding, were subject to section 106. See 252 F.3d at 251. An 
undertaking for the purposes of NHPA clearly includes actions that 
require Federal approval, not simply those that are federally funded. 
The ACHP's regulations implementing NHPA define an undertaking covered 
by NHPA as embracing ``a project, activity, or program * * * requiring 
a Federal permit, license or approval.'' See 36 CFR 800.16(y). A 
railroad must obtain Board authority under 49 U.S.C. 10903 or 49 U.S.C. 
10502 to abandon a common carrier line of railroad such as the Enola 
Branch. Moreover, use of a class exemption for an abandonment can be 
revoked for a particular line, when the STB finds that regulation is 
necessary to carry out the national rail transportation policy. 49 
U.S.C. 10502(d). Thus, section 106 applies to notice of exemption 
abandonment proceedings such as this abandonment.
    Comment. FAST states that the comments provided by the SHPO and the 
ACHP on the October 2002 Notice prior to its issuance should be made 
public.
    Response. The October 2002 Notice incorporated the comments that 
the SHPO and the ACHP provided. The written comments provided by the 
SHPO and the ACHP prior to the issuance of the October 2002 Notice have 
been placed in the public docket for this proceeding and thus are 
available to the public.

II. Next Steps in the Section 106 Process

A. Public Meeting

    The Board will hold a public meeting to solicit oral comments on 
this case and the attached proposed draft MOA. The meeting will be held 
at the Hoffman Building, located at the Solanco Fair Ground in 
Quarryville, PA, on

[[Page 59993]]

November 19, 2003 from 3 p.m. to 5 p.m. and from 6 p.m. to 8 p.m. SEA 
will give a brief presentation and interested parties may submit 
written comments or make oral comments. SEA will have a court reporter 
available at each session to ensure that oral comments are accurately 
captured. Both the afternoon and evening sessions will follow the same 
format and utilize the same agenda; it is not necessary to attend both 
sessions.
    Persons wanting to speak at the public meeting are strongly urged 
to pre-register by calling (202) 565-1643 and providing their name, 
telephone number, the name of any group, business, or agency they are 
representing, if applicable, and whether they wish to speak at the 
afternoon or evening session. The deadline for pre-registration is 
November 7, 2003. Persons will be called to speak in the order in which 
they pre-registered. Those wishing to speak but that did not pre-
register will be accommodated at each session as time allows. Those 
wishing to speak at both the afternoon and evening sessions will also 
be accommodated as time allows and after all others have had an 
opportunity to participate in the evening session. As SEA desires for 
as many persons as possible to participate and given that there will be 
a limited amount of time, all speakers are strongly encouraged to 
prepare summary oral comments, and submit detailed comments in writing. 
SEA also encourages groups of individuals with similar comments to 
designate a representative to speak for them.

B. Final Memorandum of Agreement

    After the close of the 45-day comment period on the attached 
proposed draft MOA, SEA will review all written comments, as well as 
any oral comments received at the public meeting. If trail use is 
unsuccessful, SEA will then prepare a final MOA.

III. Description of the Proposed Draft Memorandum of Agreement

    Based on the comments received in the October 2002 Notice and in 
consultation with the ACHP, the SHPO, and NS, SEA has developed a 
proposed draft MOA for this proceeding, assuming that no agreement for 
trail use is reached. The proposed draft MOA briefly summarizes the 
background of this proceeding and then sets forth several stipulations. 
As discussed above, because imposition of any nonconsensual mitigation 
other than documentation would be an unauthorized taking under the 
Fifth Amendment, the mitigation measures in the proposed draft MOA are 
limited to documentation.
    The SHPO, NS, and SEA are currently working together to develop a 
list of representative structures on the line. Documentation of these 
structures will serve to document the historic qualities of the line as 
a whole. The first stipulation of the draft MOA contains a provision 
requiring the list of representative structures to be completed prior 
to the commencement of any documentation efforts. The first stipulation 
also requires NS to document the NS-controlled portion of the rail line 
by documenting appropriate representative sites and structures on the 
line, to Pennsylvania state standards, as described in footnote 13. SEA 
believes that documentation to Pennsylvania state standards is 
appropriate in this proceeding. Previously, the SHPO, Conrail, and the 
Board had all agreed that documentation to Pennsylvania state standards 
was the appropriate level of documentation when formulating the 
previous proposed draft MOA for this proceeding, and SEA has received 
no new information to indicate that the level of documentation should 
now be different. In addition, the stipulation requires NS to conduct 
archival research and to consolidate all information--documentation and 
the results of the archival research--into one cohesive document to be 
archived at the SHPO's office.
    Although the tracks and ties have already been removed from most of 
the right-of-way, the proposed draft MOA also sets forth provisions for 
the protection of unexpected discoveries of historic resources, 
including archeological resources, in the event that documentation 
efforts identify a potential for unanticipated effects on archeological 
sites or in the event that one or more archeological sites, any 
additional cultural resources, or human remains are discovered during 
any remaining salvage activities associated with the abandonment.
    Date made available to the public: October 20, 2003.

    By the Board, Victoria Rutson, Chief, Section of Environmental 
Analysis.
Vernon A. Williams,
Secretary.

Attachment to STB Docket No. AB-167 (Sub-No. 1095X) Notice to the 
Parties--Memorandum of Agreement Among the Surface Transportation Board 
and the Advisory Council on Historic Preservation and the Pennsylvania 
Historical and Museum Commission and Norfolk Southern Railway Company 
Regarding Docket No. AB-167 (Sub-No. 1095X) Consolidated Rail 
Corporation--Abandonment Exemption--Lancaster and Chester Counties, 
Pennsylvania

    Whereas, in 1989 Consolidated Rail Corporation (Conrail) filed a 
notice of exemption with the Interstate Commerce Commission (ICC) 
\1\ pursuant to 49 CFR 1152.50 seeking an exemption from the 
requirements of 49 U.S.C. 10903 to abandon a segment of a line of 
railroad commonly known as the Enola Branch. The Enola Branch 
extends generally westward from Milepost 0.0 in Parkesburg, Chester 
County, PA to Milepost 33.9 at Port in Lancaster County, PA.\2\ The 
Enola Branch passes through the Townships of Sadsbury, Bart, Eden, 
Providence, Martic, Conestoga, and Manor, and the Borough of 
Quarryville in Lancaster County, and the Township of West Sadsbury, 
the Borough of Atglen, and the City of Parkesburg in Chester County;
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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 Surface 
Transportation Board (Board), effective January 1, 1996.
    \2\ Conrail described the Enola Branch in its 1989 notice of 
exemption filing as two parallel tracks of a double tracked line. 
Track number 1 extended 32.6 miles from Milepost 1.1 in Parkesburg 
to Milepost 33.7 in Manor Township. Track number 2 extended 33.9 
miles from Milepost 0.0 in Parkesburg to Milepost 33.9 in Manor 
Township.
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    Whereas, the portions of the Enola Branch that are the subject 
of this Memorandum of Agreement are the portions between Mileposts 
0.0 to 1.5 and between Mileposts 4.0 to 33.9.\3\
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    \3\ Conrail sold the portion of the Enola Branch from Milepost 
1.5 to Milepost 4.0 to the Southeastern Pennsylvania Transportation 
Authority in 1996. On June 23, 1997, Norfolk Southern Railway 
Company (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.--Control--Conrail Inc., et al., 3 S.T.B 196 (1998). 
The Enola Branch property was allocated to Pennsylvania Line LLC, a 
subsidiary of Conrail, as part of the Conrail Acquisition 
transaction. NS operates the Pennsylvania Line LLC allocated assets 
under an operating agreement approved by the Board. This Memorandum 
of Agreement pertains to the NS-controlled portions of the Enola 
Branch.
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    Whereas, the ICC issued a decision served February 22, 1990 
allowing the abandonment subject to a condition, developed as a 
result of consultation with the Pennsylvania State Historic 
Preservation Officer (SHPO), that Conrail take no steps to alter the 
historic integrity of the bridges--the only properties on the Enola 
Branch that had been identified

[[Page 59994]]

as potentially eligible for inclusion on the National Register of 
Historic Places (National Register)--until completion of the section 
106 process of the National Historic Preservation Act (NHPA), 16 
U.S.C. 470f;
    Whereas, 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 Enola Branch for interim trail 
use/rail banking under 16 U.S.C. 1247(d) (Trails Act) or other 
public use under former 49 U.S.C. 10906 (now 49 U.S.C. 10905). When 
those negotiations proved unsuccessful,\4\ the agency resumed the 
NHPA process;
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    \4\ The ICC terminated the trail use negotiation condition with 
respect to the Enola Branch in a decision served April 19, 1993.
---------------------------------------------------------------------------

    Whereas, while the Board's Section of Environmental Analysis 
(SEA) was working through the steps of the NHPA process, Friends of 
the Atglen-Susquehanna Trail, Inc. (FAST) filed a petition with the 
Board to reopen the proceeding and broaden the NHPA condition so 
that it would apply to the entire Enola Branch;
    Whereas, the Board denied FAST's request in a decision served 
October 2, 1997, and FAST filed a petition for reconsideration;
    Whereas, the Board, in a decision served August 13, 1999, 
believing that the only part of the NHPA process that remained open 
was the development of mitigation for the bridges determined to be 
historic, denied FAST's petition for reconsideration of the 1997 
decision and FAST then sought judicial review;
    Whereas, in Friends of the Atglen-Susquehanna Trail, Inc. v. 
Surface Transportation Bd., 252 F.3d 246 (3rd Cir. 2001), the United 
States Court of Appeals for the Third Circuit vacated the Board's 
1997 and 1999 decisions and remanded the case back to the Board, 
ruling that the Board had failed to comply fully with the procedural 
requirements of the NHPA;
    Whereas, SEA has reinitiated the section 106 historic review 
process pursuant to the court's remand and the procedural provisions 
of the NHPA;
    Whereas, SEA has consulted with the Advisory Council on Historic 
Preservation (ACHP), the SHPO, and NS, and in two separate Notices 
to the Parties and a public meeting solicited comments from 
consulting parties and the public regarding the possibility of using 
the portions of the Enola Branch that are the subject of this 
Memorandum of Agreement for interim trail use/rail banking, and 
assuming that trail use is unsuccessful, completion of the 
mitigation phase of the section 106 process;
    Whereas, based on the Keeper of the National Register's 1999 
finding that the entire Enola Branch is eligible for inclusion in 
the National Register, and in consultation with the ACHP and the 
SHPO, SEA has determined that the entire Enola Branch is eligible 
for inclusion in the National Register;
    Whereas, based on consultation with the ACHP and the SHPO and 
the public comments, SEA has determined that the abandonment at 
issue here would adversely affect the Enola Branch;
    Whereas, NS already has paid to the Pennsylvania Railroad Museum 
$15,437 to fund an exhibit or video of the history of the Enola 
Branch;
    Whereas, based on consultation with the ACHP, the SHPO, NS, and 
on all of the comments received from interested and official 
consulting parties, SEA has devised additional measures to mitigate 
the adverse effects on the Enola Branch that would be caused by the 
abandonment;
    Now Therefore, the Board, the ACHP, the SHPO, and NS agree that 
the consummation of the abandonment of the Enola Branch shall be 
subject to the following stipulations to take into account and to 
mitigate the effect of the abandonment on historic properties.

Stipulations

    The Board shall ensure that the following measures are carried 
out. The Board may direct NS (and its contractor) to assist in 
fulfilling these stipulations or may use an independent third party 
contractor, working under SEA's supervision, direction and control, 
and at NS's expense, to assist in fulfilling these stipulations.

I. Additional Documentation Requirements

    NS shall retain a professional historian to prepare 
documentation and to conduct archival research of the history of the 
Enola Branch rail line (to include the segments of the Enola Branch 
from Milepost 0.0 to Milepost 1.5 and Milepost 4.0 to Milepost 33.9 
and appropriate representative structures). The documentation shall 
be completed in accordance with the relevant state standards as 
specified by the SHPO and outlined in the guidance document titled 
``How To Complete The Pennsylvania Historic Resource Survey Form.'' 
The historian also shall prepare a written report discussing the 
methods and results of the archival research.\5\ Prior to the 
commencement of documentation efforts, the Board, the SHPO, and NS 
shall work together to develop a list of representative structures 
on the Enola Branch. Documentation of these structures shall serve 
to document the historic qualities of the line as a whole.
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    \5\ Archival research that is conducted from information or 
records supplied by or available at the railroad, the Pennsylvania 
Historical and Museum Commission, the Pennsylvania State Archives, 
the Lancaster County Historical Society, the Southern Lancaster 
Historical Society, the Chester County Historical Society, the 
Railroad Museum of Pennsylvania and the Pennsylvania Railroad 
Technical and Historical Society (as available) shall satisfy this 
requirement.
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    Upon completion of the documentation and archival research, NS 
shall consolidate all information into one cohesive document and 
submit the document to the Board's Federal Preservation Officer 
(FPO) (the Chief of SEA), the ACHP, and the SHPO for review.
    As provided in Pennsylvania state standards, this document shall 
include:
    A. a Photo/Site Plan Sheet, which will contain: (1) Historic 
name of the property; (2) county; (3) non-color coded sketch maps or 
other non-color maps showing the location of the rail line; and (4) 
photographs of the representative structures;
    B. a Data Sheet, which will describe the rail line, its historic 
function and current use, the representative structures, including, 
relevant historical and descriptive information such as the 
architectural classification, composition of the exterior materials, 
classification of the structural system, width, depth and height 
measurements, dates of construction and known significant changes or 
rebuilding, proposed disposition of the structures after 
abandonment, and, to the extent relevant information exists in 
railroad or local libraries, museums or archives, cultural 
affiliations, associated individuals or events, and names of 
builders or craftsmen who constructed the rail line;
    C. a Narrative Sheet, which will include a physical description 
(a brief description of the current and historic physical appearance 
and condition of the rail line segments and all associated 
structures) and a historical narrative (a summary of the history and 
significance of the property);
    In addition to the requirements of the Pennsylvania state 
recordation standards, the document shall also include:
    A. a written report describing the methods and results of the 
archival research; and
    B. copies of any relevant historical documents found pursuant to 
the archival research, as well as any available maps of the rail 
line and local area. The Board's FPO, the ACHP, and the SHPO shall 
have 30 days to review and comment on the draft document. At the end 
of the 30 day period, NS shall prepare a final version of the 
document, taking into consideration any comments received, and 
submit the final document to the Board, the ACHP, and the SHPO. NS 
shall also submit two (2) additional copies of the final document to 
the SHPO to be archived at the SHPO's office.

II. Dispute Resolution

    Disagreement and misunderstanding about how this Memorandum of 
Agreement is or is not being implemented shall be resolved in the 
following manner:
    A. If the SHPO or NS should object in writing to the Board's FPO 
regarding any action carried out or proposed with respect to the 
undertaking or implementation of this Memorandum of Agreement, then 
the Board's FPO shall consult with the objecting party to resolve 
this objection. If after such consultation the Board's FPO 
determines that the objection cannot be resolved through 
consultation, then the Board's FPO shall forward all documentation 
relevant to the objection to the ACHP, including the Board's 
proposed response to the objection. Within 45 days after receipt of 
all pertinent documentation, the ACHP shall exercise one of the 
following options:
    1. Provide the Board with a staff-level recommendation; or
    2. Notify the Board that the objection will be referred for 
formal comment pursuant to 36 CFR 800, and proceed to refer the 
objection and comment.
    B. The Board shall take into account any ACHP comment or 
recommendations in reaching a final decision regarding its

[[Page 59995]]

response to an objection. The Board's responsibility to carry out 
all actions under the Memorandum of Agreement that are not the 
subjects of the objection shall remain unchanged.

III. Post Review Discovery

    In the event that the professional historian identifies a 
potential for unanticipated effects on archeological sites during 
the implementation of this Memorandum of Agreement, NS shall notify 
the Board's FPO. The Board's FPO shall then consult with the SHPO to 
determine whether additional mitigation measures are necessary. If 
the Board's FPO and the SHPO determine that additional mitigation 
measures are required, all signatories shall consult to devise 
appropriate mitigation measures and amend the Memorandum of 
Agreement, pursuant to Part IV of this Memorandum of Agreement.
    In the event that one or more archeological sites, any 
additional cultural resources, or human remains are discovered 
during NS's salvage activities, NS shall immediately cease all work 
and notify the Board's FPO. The Board's FPO shall then consult with 
the SHPO to determine whether additional mitigation measures are 
necessary. If the Board's FPO and the SHPO determine that additional 
mitigation measures are required, all signatories shall consult to 
devise appropriate mitigation measures and amend the Memorandum of 
Agreement, pursuant to Part IV of this Memorandum of Agreement.
    Any additional mitigation developed shall be consistent with the 
provisions of the Pennsylvania Historic & Museum Commission's Policy 
on the Treatment of Human Remains adopted March 10, 1993, the Native 
American Graves Protection and Repatriation Act, and ACHP guidance 
documents, such as the ACHP's Recommended Approach for Consultation 
on Recovery of Significant Information From Archaeological Sites.

IV. Amendment

    Any Signatory to this Memorandum of Agreement may request that 
it be amended, whereupon the parties shall consult to consider the 
proposed amendment. 36 CFR part 800 shall govern the execution of 
any such amendment.

V. Termination

    A. If the terms of this Memorandum of Agreement have not been 
implemented within 1 year of the execution of this agreement, this 
Memorandum of Agreement shall be considered null and void, unless 
the parties agree to a written extension. In such an event, the 
Board shall notify the parties to this Memorandum of Agreement, and 
if NS chooses to continue with this undertaking, the Board shall re-
initiate review of this undertaking in accordance with 36 CFR part 
800.
    B. Any signatory to the Memorandum of Agreement may terminate it 
by providing thirty (30) days notice to the other parties, provided 
that the parties shall consult during the period prior to 
termination to seek agreement on amendments or other actions that 
would avoid termination. In the event of termination, the Board 
shall comply with 36 CFR 800 with regard to the review of the 
undertaking.

VI. Scope of Agreement

    This Memorandum of Agreement is limited in scope to the 
abandonment of the portions of Enola Branch from Milepost 0.0 to 1.5 
and Milepost 4.0 to 33.9 and is entered into solely for that 
purpose. Execution and implementation of this Memorandum of 
Agreement by the Board, the ACHP, the SHPO, and NS evidences that 
the Board has afforded the ACHP an opportunity to comment on the 
project and its effects on historic properties, and has taken into 
account the effects of the undertaking on those properties, and has, 
therefore, satisfied its section 106 responsibilities for this 
undertaking.

Signatories

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Advisory Council on Historic Preservation

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State Historic Preservation Officer
Pennsylvania Historical and Museum Commission, Bureau for Historic 
Preservation

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Surface Transportation Board

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Norfolk Southern Railway Company

Concurring Parties

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Friends of the Atglen-Susquehanna Trail

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Historic Preservation Trust of Lancaster County
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Lancaster County Conservancy

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Lancaster Farmland Trust

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Northeast Regional Field Office of the Rails-to-Trails Conservancy

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Pennsylvania Department of Transportation

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Southern End Community Association

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Township of Bart

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Township of Conestoga

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Township of Eden

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Township of Martic

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Township of Providence

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Township of Sadsbury

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Township of West Sadsbury

[FR Doc. 03-26384 Filed 10-17-03; 8:45 am]
BILLING CODE 4915-00-P