[Federal Register Volume 73, Number 79 (Wednesday, April 23, 2008)]
[Notices]
[Pages 22002-22004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8771]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Ex Parte No. 678]


Consummation of Rail Line Abandonments That Are Subject to 
Historic Preservation and Other Environmental Conditions

AGENCY: Surface Transportation Board, DOT.

ACTION: Statement of board policy.

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SUMMARY: The Surface Transportation Board is issuing this policy 
statement to clarify when, under the agency's regulation at 49 CFR 
1152.29(e)(2), a carrier may ``consummate'' abandonment and file a 
``notice of consummation'' of the abandonment of a rail line where the 
Board has imposed conditions on its abandonment authorization in order 
to satisfy section 106 of the National Historic Preservation Act 
(NHPA), 16 U.S.C. 470f, or the National Environmental Policy Act, 42 
U.S.C. 4321 et seq. (NEPA). In cases where a condition is imposed under 
NHPA, a notice of

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consummation should not be filed for any part of the line until the 
historic review process is completed and the condition is removed. 
However, where a NHPA condition is needed only for a segment of the 
line or for a particular structure or structures, the railroad may 
request that the Board modify the condition to allow the railroad to 
salvage the portions of the line not affected by that condition. In 
contrast, a condition imposed under NEPA that is related to salvage 
activities is not a regulatory barrier to consummation of an 
abandonment.\1\ A notice of consummation may be filed prior to 
satisfying such a salvage condition. However, filing a notice of 
consummation in that situation does not remove the condition, which 
must still be satisfied if and when salvage activities are conducted. 
If a property encumbered with salvage conditions changes ownership, the 
new owner must show that it agrees to abide by the salvage conditions 
at the time of conveyance by referencing the conditions in the 
instrument of conveyance, and providing a copy of the instrument of 
conveyance to the Board so that it can be filed in the pertinent 
abandonment proceeding. Additionally, railroads are cautioned to comply 
fully with section 106 of NHPA.
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    \1\ See, e.g., Consummation notice filed by the Santa Clara 
Valley Transportation Authority (SCVTA) on May 8, 2007, in Santa 
Clara Valley Transportation Authority--Abandonment Exemption--In 
Santa Clara and Alameda Counties, CA, STB Docket No. AB-980X 
(notifying the Board of SCVTA's consummation of abandonment 
authority although it had not yet engaged in salvage activities and, 
therefore, had not yet complied with a salvage condition that the 
Board had attached to that authority).

DATES: Effective Date: This policy statement is effective on April 23, 
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2008.

FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 245-0395, 
[Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.]

SUPPLEMENTARY INFORMATION:
    The Board is issuing this policy statement to address when a 
``notice of consummation''--required under the agency's regulation at 
49 CFR 1152.29(e)(2) to signify that a railroad intends to fully 
abandon a line and remove it from the national rail transportation 
system--may be filed in cases where the Board has imposed conditions on 
its abandonment authorization to satisfy section 106 of NHPA or to 
satisfy NEPA. This policy statement discusses each of these situations.
    A railroad may not ``abandon'' a rail line (i.e., be relieved of 
its common carrier obligation to provide rail service over that line 
and dispose of the property for non-rail use) without express 
permission from the Board. Chi. & N. W. Transp. Co. v. Kalo Brick & 
Tile Co., 450 U.S. 311, 321-22 (1981). Under 49 U.S.C. 10903, the Board 
may affirmatively approve the abandonment of a line by determining that 
the public convenience and necessity require or permit the proposed 
abandonment. Alternatively, the agency may authorize abandonment by 
granting an exemption (individually or by class of rail lines) under 49 
U.S.C. 10502. See 49 CFR 1152.50 and 1152.60. Under either procedure, 
the Board must meet its responsibilities under other Federal statutes, 
including NEPA, NHPA, and the National Trails System Act (Trails Act) 
at 16 U.S.C. 1247(d). To meet those responsibilities, the Board may 
need to impose conditions that limit or postpone the carrier's ability 
to exercise its abandonment authorization in whole or in part.
    The abandonment authority issued by the Board is permissive 
authority that the railroad may or may not decide to exercise. The 
agency retains jurisdiction over rail properties until abandonment 
authority has been consummated. Hayfield N. R.R. Co. v. Chi. & N. W. 
Transp. Co., 467 U.S. 622, 633-34 (1984). Thus, it is important to be 
able to determine with certainty when abandonment authority is 
exercised.
    To exercise the authority and ``consummate'' an abandonment, a 
railroad must manifest a clear intent to abandon through its statements 
and actions, including discontinuing operations and ``salvage'' of the 
line (removing rails and other materials from the property). See Birt 
v. STB, 90 F.3d 580, 585 (D.C. Cir. 1996) (Birt). Since 1997, under the 
Board regulation at 49 CFR 1152.29(e)(2), a railroad is required to 
file a ``notice of consummation'' with the agency within 1 year of the 
service date of the decision permitting abandonment to signify that it 
has exercised the authority granted and intends that the property be 
removed from the interstate rail network. Under the regulation, a 
notice of consummation is deemed conclusive on the issue of 
consummation if there are no legal or regulatory barriers to 
consummation (such as outstanding conditions, including Trails Act 
conditions that permit rail banking and interim trail use on railroad 
rights-of-way that would otherwise be abandoned). The regulation 
provides that if, after 1 year from the date of service of a decision 
permitting abandonment, consummation has not been effected by the 
railroad's filing of a notice of consummation, and there are no legal 
or regulatory barriers to consummation, the authority to abandon 
automatically expires (unless the Board has granted an extension). Once 
abandonment authority expires, a new proceeding would have to be 
instituted if the railroad wants to abandon the line. If, however, any 
legal or regulatory barrier to consummation exists at the end of the 1-
year time period, the notice of consummation is due to be filed not 
later than 60 days after satisfaction, expiration, or removal of the 
legal or regulatory barrier. A railroad can file a request for an 
extension of time to file a notice, for good cause shown, if it does so 
sufficiently in advance of the expiration of the deadline to allow for 
timely processing.
    Until 49 CFR 1152.29(e)(2) was adopted, there was no rigid formula 
for determining whether a railroad intended to exercise its permissive 
abandonment authority; rather, where there was an issue regarding 
consummation, the Board and the courts examined the facts on a case-by-
case basis. Birt, 90 F.3d at 585-86; Black v. ICC, 762 F.2d 106, 112-13 
(D.C. Cir. 1985). Nor was there any specific time period during which 
abandonment had to be consummated. The notice of consummation 
requirement was added to provide certainty and reduce litigation 
(primarily in cases involving the Trails Act) regarding whether a 
railroad's actions demonstrated its intent to abandon the line after an 
abandonment authorization had become effective. Compare Becker v. STB, 
132 F.3d 60, 63 (D.C. Cir. 1997) and Fritsch v. ICC, 59 F.3d 248, 253 
(D.C. Cir. 1995) (trail conditions could not be imposed because 
abandonments had already been consummated) with Birt, 90 F.3d at 588 
(Board retained jurisdiction to impose a trail condition because 
railroad's actions did not show an intent to abandon).
    Recently, however, there has been some confusion regarding how the 
notice of consummation requirement applies to abandonment cases where 
conditions have been imposed to meet the Board's obligations under NHPA 
or NEPA. Because 49 CFR 1152.29(e)(2) does not specifically address 
those situations, the Board is issuing this policy statement to clarify 
when a notice of consummation may be filed (if the railroad wishes to 
consummate the abandonment) in such cases.
    Historic Review Conditions Under NHPA. Where the historic review 
process is ongoing, the Board generally

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imposes a condition prohibiting the railroad from selling the line, 
altering any sites or structures on the line, or conducting salvage 
activities on the line until the historic review process is complete 
and the Board removes the condition. This maintains the status quo 
pending completion of the historic review process. In some instances, 
where it becomes apparent that mitigation (i.e., documentation of the 
historic resources) is necessary only for a portion of the line or for 
a particular structure or structures, the Board may modify the 
condition to allow salvage of the rest of the line. But otherwise, 
abandonment may not be consummated, and potentially historic property 
may not be disturbed for any part of the line, until either there is a 
formal final determination by the Board's Section of Environmental 
Analysis (SEA) (acting on behalf of the Board) that the project would 
have no adverse effect on historic resources or a Memorandum of 
Agreement is entered into that sets forth the appropriate mitigation 
(i.e., documentation) to satisfy section 106 and the historic review 
condition is removed.
    In some instances, railroads have sought to consummate the 
abandonment of part or all of a railroad line before the historic 
review process required by section 106 of NHPA is complete and the 
historic preservation condition imposed by the Board has been modified 
or removed. By this policy statement, the Board clarifies that, 
regardless of whether a section 106 condition applies to the entire 
line or is more limited, an historic preservation condition is a 
regulatory barrier to consummation. Therefore, a railroad should not 
file a notice of consummation seeking to remove the property from the 
Board's jurisdiction until the historic review process has been 
completed and the Board has removed the section 106 condition.
    The Board recognizes that in some cases there can be an overriding 
need for partial consummation and that partial consummation could be in 
the public interest (for example, where a portion of the line is needed 
to complete a highway project that is important to the community and 
the historic preservation condition applies only to another part of the 
line or to a structure that would not be disturbed by the highway 
project), or could further a legitimate private interest. Therefore, 
the Board's policy will be that, for good cause shown, a railroad may 
make a request to file a notice of consummation for a portion of the 
line prior to formal removal of a section 106 condition. The Board 
would then consider, on a case-by-case basis, whether to waive its no-
partial-consummation policy. The Board's primary concern in considering 
such requests will be to assure that partial consummation would not 
compromise satisfactory completion of the historic preservation 
process.
    In some cases railroads have taken actions affecting rail property 
without first seeking abandonment authority. When this occurs on 
inactive lines, we generally do not discover these actions until after 
the fact when the carrier seeks abandonment authority. Such actions are 
unlawful. Not only is the rail line unlawfully severed from the 
national transportation system when this occurs, but the Board's 
ability to carry out its obligations under NEPA and NHPA may then be 
adversely affected. The Board will continue to carry out its 
obligations under those statutes and will take whatever steps necessary 
to enforce compliance with them. Railroads that take such actions may 
find not only that obtaining abandonment authority is delayed, but that 
the Board will require historic preservation training for the 
railroad's staff members who are involved with abandonment projects and 
require the railroad to document the in-house measures that it will 
implement to prevent such actions from occurring in the future. Other 
possible actions the Board may take include restricting the railroad's 
future ability to employ expedited procedures to obtain abandonment 
authority, imposing a financial penalty, and seeking a legal remedy 
against the railroad in a court of law.
    Other Environmental Conditions. Most other environmental conditions 
imposed by the Board in abandonment cases relate to salvage activities. 
As discussed above, salvage activities can be one indicium of a 
railroad's intent to abandon. However, it is not necessary for a 
railroad to salvage a rail line in order to consummate abandonment 
authority. A railroad may decide not to salvage the line immediately 
upon being relieved of its service obligations, but rather to leave the 
track and ties in place. Therefore, the Board's policy is that a 
salvage condition,\2\ unlike a section 106 condition, typically is not 
a regulatory barrier to the filing of a notice of consummation, and 
thus the existence of a salvage condition has no bearing on the 
consummation deadline. However, the salvage condition remains in place 
as a condition that attaches to the property and applies to salvage 
activities whenever they occur, even if salvage is conducted years 
later by a successor interest. Therefore, our policy will be to require 
any successor interest to agree to the condition by referencing the 
condition in the purchase contract or other instrument of conveyance, 
and by submitting a copy of that instrument of conveyance to the Board 
so that it can be filed in the docket of the relevant abandonment 
proceeding.
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    \2\ Salvage conditions are imposed on a case-by-case basis, but 
examples of conditions imposed in the past include permitting the 
railroad to salvage the line only during a particular time of year 
and requiring the railroad to provide notice to, or consult with, 
appropriate agencies prior to salvaging the line.
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    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

Regulatory Flexibility Certification

    Pursuant to 5 U.S.C. 605(b), we conclude that our action in this 
proceeding will not have a significant economic impact on a substantial 
number of small entities. This action clarifies that conditions imposed 
by the Board under section 106 of NHPA are barriers to abandonment 
consummation, while NEPA salvage conditions are not. It also requires 
successor interests in properties encumbered with salvage conditions to 
reference the conditions in the instruments of conveyance, and to 
provide a copy of the instrument of conveyance to the Board so that it 
can be filed in the pertinent abandonment proceeding docket. These 
requirements will require little additional work and should not have a 
significant economic impact on a substantial number of small entities.

    Decided: April 16, 2008.

    By the Board, Chairman Nottingham, Vice Chairman Mulvey, and 
Commissioner Buttrey.
Anne K. Quinlan,
Acting Secretary.
 [FR Doc. E8-8771 Filed 4-22-08; 8:45 am]
BILLING CODE 4915-01-P