[Federal Register Volume 91, Number 57 (Wednesday, March 25, 2026)]
[Proposed Rules]
[Pages 14490-14511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-05791]
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SURFACE TRANSPORTATION BOARD
49 CFR Parts 1011 and 1105
[Docket No. EP 779]
Permitting Reform--Environmental Review Process
AGENCY: Surface Transportation Board.
ACTION: Notice of proposed rulemaking and request for comments.
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SUMMARY: The Surface Transportation Board (Board) proposes to clarify,
update, and streamline its existing environmental regulations
implementing the National Environmental Policy Act (NEPA) and to add
delegations of authority related to environmental review. The Board is
taking this action to conform its regulations to current practices and
changes in the law and to support government-wide consistency in the
NEPA process to the extent practicable and in accordance with Board
authorities. Among those changes are the Council on Environmental
Quality's (CEQ) rescission of its NEPA implementing regulations, the
2023 and 2025 amendments to NEPA, changes to other relevant statutes,
executive orders, and case law relating to the implementation of NEPA,
including recent U.S. Supreme Court precedent. These revisions will
also ensure the development and continuance of a sound rail
transportation system and reduce regulatory barriers to entry into and
exit from the rail industry. The Board asks for comments on the
proposed changes.
DATES: Comments on the proposed regulations are due by April 24, 2026.
ADDRESSES: All filings must be submitted to the Surface Transportation
Board either via e-filing on the Board's website or in writing
addressed to 395
[[Page 14491]]
E Street SW, Washington, DC 20423-0001. Filings will be posted to the
Board's website and need not be served on other commenters or any other
party to the proceeding.
FOR FURTHER INFORMATION CONTACT: Danielle Gosselin, Director of the
Office of Environmental Analysis, (202) 245-0300. For accommodations
under the Americans with Disabilities Act, please call (202) 245-0245.
SUPPLEMENTARY INFORMATION: Under the National Environmental Policy Act
of 1969 (NEPA), Public Law 91-190, 83 Stat. 852 (1970),\1\ the Board
considers the reasonably foreseeable environmental effects of the major
federal actions it takes, such as the authorization of a rail
construction project, before making a final decision on the action. The
Board's environmental regulations at 49 CFR part 1105 enable the agency
to meet its responsibilities under NEPA and related environmental laws,
including, but not limited to, the National Historic Preservation Act
(NHPA), the Coastal Zone Management Act (CZMA), and the Endangered
Species Act (ESA).\2\ Since the last major revision of the Board's
environmental regulations in 1991,\3\ substantial changes to the
Board's statutory authority have occurred, most notably with the ICC
Termination Act of 1995 (ICCTA), Public Law 104-88, 109 Stat. 803,
making many references in the Board's current regulations outdated.
Additionally, the interpretation and application of NEPA requirements
have evolved, technologies have advanced, the requirements of federal
statutes have changed, changes to other regulations have occurred, and
the Board's practices have changed.
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\1\ 42 U.S.C. 4321-4370m-11.
\2\ The NHPA, 54 U.S.C. 300101-307108, requires the Board to
consider the effects of its actions upon historic properties. Under
the CZMA, 16 U.S.C. 1451-1458, applicants seeking a license or
permit for a project that would affect land or water use in a
coastal zone are required to certify compliance with the coastal
zone management program of affected states. The ESA, 16 U.S.C. 1531-
1544, requires agencies to consider possible impacts to federally-
listed threatened and endangered species and their habitats.
\3\ Implementation of Env't L., 7 I.C.C.2d 807 (1991).
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First, on February 25, 2025, CEQ issued an interim final rule in
response to Executive Order (E.O.) 14154, Unleashing American Energy.
See Removal of Nat'l Env't Pol'y Act Implementing Reguls., 90 FR 10610
(Feb. 25, 2025). CEQ's interim final rule rescinded its NEPA
implementing regulations at 40 CFR parts 1500 through 1508. The
effective date of CEQ's interim final rule was April 11, 2025. Updates
to the Board's current regulations are therefore necessary, as they
refer to the now-rescinded CEQ regulations. See 49 CFR 1105.4,
1105.5(a).
Second, Congress amended NEPA in the Fiscal Responsibility Act of
2023 (FRA), Public Law 118-5, 137 Stat. 10, signed on June 3, 2023, in
which Congress added detail and direction in Title I of NEPA regarding
procedural issues that CEQ and individual acting agencies had
previously addressed in their own procedures. As amended by the FRA,
NEPA provides additional requirements to facilitate timely and
coordinated federal reviews, including provisions clarifying lead,
joint lead, and cooperating agency designations; directing agencies to
develop procedures for proposal sponsors to prepare Environmental
Assessments (EAs) and Environmental Impact Statements (EISs); and
prescribing page limits and deadlines. NEPA Sec. 107, 42 U.S.C. 4336a.
Congress again amended NEPA in 2025 through section 60026 of the One
Big Beautiful Bill Act, Public Law 119-21, 139 Stat. 157, signed on
July 4, 2025, adding section 112 of NEPA, entitled, ``Project Sponsor
Opt-in Fees for Environmental Reviews.'' This provision allows project
sponsors to pay a fee to obtain shortened NEPA review deadlines. The
Board recognizes the need to update its regulations considering these
substantial legislative changes.
Third, the U.S. Supreme Court recently issued a landmark decision
in Seven County Infrastructure Coalition v. Eagle County, Colo., 605
U.S. 168 (2025), which affirmed that agencies have broad discretion
when conducting NEPA reviews, including with regard to the scope of the
analysis in those reviews and the usefulness of those analyses to the
decisionmaker in light of the agency's authority. The Board has
incorporated this case's holdings into this proposed rule, which would
govern the Board's future NEPA reviews and consideration of
environmental impacts.
In addition, pursuant to E.O. 14154, CEQ issued NEPA implementation
guidance to federal agencies.\4\ The CEQ guidance includes a template
for agency procedures to implement NEPA, which CEQ states is ``intended
to provide clarity as to NEPA's requirements and promote consistency as
to NEPA's implementation.'' To support such consistency, the Board has
followed the agency procedures template to the extent practicable and
in accordance with the Board's governing authorities and where doing so
would not hinder the rail transportation policy to ensure the
development and continuance of a sound rail transportation system. 49
U.S.C. 10101(4).
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\4\ Memorandum for Heads of Federal Departments and Agencies:
Implementation of the National Environmental Policy Act (Sept. 29,
2025) (available at https://nepa.gov). See 90 FR 47734 (Oct. 2,
2025).
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Accordingly, the Board is proposing to revise its environmental
regulations to reflect current practices, recent court decisions, and
the intervening statutory and regulatory changes.\5\ The Board finds
that the proposed changes will improve the efficiency and quality of
the Board's environmental reviews and make it easier for applicants to
comply with the Board's environmental regulations. These revisions will
also ensure the development and continuance of a sound rail
transportation system and reduce regulatory barriers to entry into and
exit from the rail industry in accord with 49 U.S.C. 10101.
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\5\ Other parts of the Board's regulations include references to
the Board's environmental regulations. See, e.g., 49 CFR 1106.4(b),
1150.1(b), 1150.7, 1150.36, 1152.20(c), 1152.21(c), 1152.22,
1152.50(d)(2), 1155.20(c), 1155.23(b), 1155.24, Appendix A to Part
1155. The Board intends to issue technical revisions to those
regulations as necessary to make them consistent with any revisions
to its environmental regulations when it finalizes this rulemaking.
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Primary Proposed Updates and Revisions
The proposed regulations, which would govern the environmental
review process in Board proceedings, are set forth below. The key
updates and proposed revisions include:
Moving the delegation of authority from the Board to the
Director of the Office of Environmental Analysis (OEA) for consistency
with other Board regulations and revising those delegations to improve
and streamline environmental reviews and the decision making process;
Updating and clarifying the list of actions that do not
require environmental review under NEPA;
Clarifying the Board's process for determining the
appropriate level of NEPA review;
Proposing new ``categorical exclusions,'' or categories of
actions that the Board has determined normally would not significantly
affect the quality of the environment and, therefore, do not require
the preparation of an EA or EIS, including categorically excluding
abandonments and discontinuances from further environmental review
where they would not involve salvage or substantial traffic diversions;
Clarifying the Board's process for establishing, revising,
adopting,
[[Page 14492]]
removing, and applying categorical exclusions;
Updating the process for preparing EAs and EISs to conform
to current agency practice and to reflect statutory changes to NEPA,
including providing a more detailed description of the scoping and NOI
process, clarifying when OEA may publish draft or preliminary
documents, implementing deadlines and page limits, and updating the
list of agencies and entities that OEA consults with during the
environmental review process for abandonments and discontinuances;
Adding processes for designating and coordinating among
lead, cooperating, and participating agencies, consistent with NEPA;
Limiting the use of applicant-prepared environmental
reports to abandonments and discontinuances, modifying the information
required for environmental reports to facilitate and expedite review,
and requiring applicants who file environmental reports to begin agency
consultations earlier to reduce unnecessary delays;
Creating procedures for applicant-prepared EAs and EISs;
Creating procedures for environmental review in emergency
situations; and
Incorporating procedures for environmental reviews related
to the issuance of land-use-exemption permits for solid waste rail
transfer facilities under the Clean Railroads Act (CRA), 49 U.S.C.
10501(c)(2)(B) and 10908-10910.
A section-by-section discussion of the proposed changes is detailed
below. There are numerous minor changes to the regulations that are
meant to clarify the process and make it easier to navigate for
stakeholders and other interested entities but are not substantial
enough to warrant discussion.
Part 1011--Board Organization and Delegations of Authority
Sec. 1011.2--The Board; Sec. 1011.7--Delegations of Authority by the
Board to Specific Offices of the Board
The Board proposes to update existing delegations and delegate
additional authority to the Director of the OEA (Director) to
streamline environmental and historic reviews and the Board's decision-
making process in such matters. The Board also proposes to move the
existing delegations to the Director in 49 CFR 1105.2 to the Board's
general delegations in 49 CFR part 1011. Moving the delegations
provides consistency with other agency delegations. The move also
clarifies the appeal process applicable to Director decisions.
Some of the proposed delegations merely clarify the Director's
existing authority under the current regulations (e.g., to direct the
Board's implementation of NEPA and NHPA, to prepare documents under
these regulations and provide interpretation of the Board's NEPA and
NHPA processes, to reject applicant-prepared environmental reports not
prepared in compliance with the environmental regulations, and to sign
binding agreements pursuant to Section 106 of the NHPA). Consistent
with the new proposed regulation regarding applicant-prepared EAs and
EISs, the Director's delegated authority to reject applicant-prepared
materials will include the authority to reject EAs and EISs as well.
Two responsibilities that are currently delegated to the Chief Counsel
are proposed to be re-delegated to the Director: to determine whether
to impose, modify, or remove environmental and historic conditions and,
in abandonment notice of exemption proceedings, to issue a Finding of
No Significant Impact (FONSI).\6\ Under the current process, the Chief
Counsel's decisions simply implement OEA's recommendations. Therefore,
these re-delegations will cut out an unnecessary step in the decision-
making process and expedite the processing of these proceedings.
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\6\ Accordingly, the Board also proposes to amend 49 CFR
1011.7(a)(2) to remove these delegations.
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Additionally, with regard to historic reviews, the Board proposes
to delegate authority to the Director to act as the agency official for
purposes of the NHPA in determining whether a proposed federal action
is an undertaking and, if so, whether it is a type of activity that has
the potential to cause effects on historic properties; and to determine
the applicability of section 110(k) of the NHPA.
Part 1105--Procedures for Implementation of Environmental Laws
Sec. 1105.1--Purpose; Sec. 1105.2--Responsibility for Administration
of These Rules; Sec. 1105.3--Information and Assistance
The Board proposes minor changes to these sections that do not
warrant discussion.
Sec. 1105.4--Definitions
The Board proposes to add, update, and remove definitions to
reflect current statutes (such as the Clean Air Act, NEPA, and the
CRA), regulations, and judicial precedent, and to align with the
proposed procedures outlined in the proposed regulations.
Sec. 1105.5--Determining When NEPA Applies
The primary proposed revisions to this section identify categories
of actions that are not subject to NEPA review. References to the NHPA
have been removed from this section because it only addresses when NEPA
applies.
In paragraph (a), the Board proposes to delete obsolete references
to the rescinded CEQ regulations and to clarify when NEPA does not
apply to a proposed Board action.
In paragraph (b), the Board proposes to provide a non-exhaustive
list of Board actions that are not subject to NEPA because they do not
meet the definition of a ``major federal action.'' To conform with
changes in the law and promote efficiency, this list removes some of
the actions not subject to NEPA from the current regulation and adds
others.\7\
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\7\ See, e.g., Padgett v. STB, 804 F.3d 103, 110 (1st Cir. 2015)
(holding that the Board ``did not provide federal funds, approve or
license the [proposed action], or otherwise manifest `indicia of
control' over [the applicant] that would be sufficient to establish
a `major Federal action' '').
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With some clarifying edits, the Board retains two types of actions
that are not subject to NEPA under the current regulations, a
determination that a proposal or action is not within the Board's
jurisdiction is retained (proposed 49 CFR 1105.5(b)(1)), as well as
railbanking/interim trail use arrangements under the National Trails
System Act, 16 U.S.C. 1247(d) (proposed 49 CFR 1105.5(b)(3)).
The Board has received inquiries in the past regarding whether
environmental review is required for certain types of actions that do
not require approval from the Board, such as construction of ancillary
track excepted from Board licensing under 49 U.S.C. 10906; rail line
improvements, routine maintenance, operational changes; haulage
arrangements; improvements or traffic changes to existing rail lines;
construction of multiple tracks on an existing line; and track
relocations. To clear any confusion, the Board proposes to add a new
paragraph (proposed 49 CFR 1105.5(b)(2)) to describe types of
activities that are not subject to the Board's licensing authority and,
therefore, are also not subject to environmental review. The Board also
proposes to add orders that are purely procedural to those actions that
are not major federal actions (proposed 49 CFR 1105.5(b)(7)).
The Board has further determined that certain actions that are
categorically excluded from further environmental
[[Page 14493]]
review under our current regulations are more appropriately categorized
as not major federal actions and proposes to move those under these
regulations. The Board proposes to move declaratory orders and
interpretations or clarifications of operating authority from
categorical exclusions (current 49 CFR 1105.6(c)(1)(iii)) to actions
that are not major federal actions (proposed 49 CFR 1105.5(b)(5)),
pursuant to the holding and reasoning in Padgett. Based on the
reasoning in Padgett and other relevant caselaw, the Board also
proposes to move substitution of applicant and name changes from
categorical exclusions (current 49 CFR 1105.6(c)(1)(iii)) to actions
that are not major federal actions (proposed 49 CFR 1105.5(b)(6)).
Further, the Board proposes moving termination of freight service
under modified certificates from categorical exclusions (current 49 CFR
1105.6(c)(4)) and adding initiation of freight service under modified
certificates to those actions that are not major federal actions
(proposed 49 CFR 1105.5(b)(8)) because the Board's action in these
proceedings is essentially ministerial. See 49 CFR 1150.23, 1150.24
(permitting operations to ``commence immediately upon the filing'' of a
notice for a certificate of public convenience and necessity and to
cease service `upon 60 days' notice of ``intent to terminate the
service''). Finally, the proposed regulation removes ``NERSA''
abandonments (current 49 CFR 1105.5(c)(1)), as these are no longer
being processed by the Board,\8\ and moves financial assistance
arrangements under 49 U.S.C. 10904 (current 49 CFR 1105.5(c)(3)) to the
categorical exclusion category (proposed 49 CFR 1105.7(a)(6)), based on
changes in Board regulations, which have given the Board discretion to
reject offers of financial assistance.\9\
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\8\ The Northeast Rail Services Act of 1981 provided a window
(ending in 1985) during which Consolidated Rail Corporation could
qualify for streamlined abandonment procedures for its lines.
\9\ See Offers of Fin. Assistance, EP 729 (STB served June 29,
2017).
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Sec. 1105.6--Determining the Appropriate Level of NEPA Review
Promoting government-wide consistency, the Board proposes to add
this new section detailing OEA's process for determining the
appropriate level of NEPA review for each proposed action. The Board
proposes to move the lists of proposed actions that are categorically
excluded from further environmental review, or for which an EA or EIS
will normally be prepared, from the current 49 CFR 1105.6,
``Classification of actions,'' to specific new sections addressing
categorical exclusions, EAs, and EISs, as explained further below.
The proposed regulations also delegate authority to the Director of
OEA to reclassify or modify the environmental review requirements for
any proceeding. This provides the needed flexibility to address the
different environmental effects implicated in a particular proceeding,
and it allows the Director, when appropriate, to facilitate
environmental reviews for construction projects and eliminate
unnecessary delays while meeting the requirements of NEPA.
Sec. 1105.7--Categorical Exclusions
This proposed new section updates the Board's list of categorical
exclusions and, promoting government-wide consistency, establishes the
process that the Board will use in establishing, revising, adopting,
removing, and applying categorical exclusions, as well as relying on
other agencies' categorical exclusion determinations.
Types of Actions. The Board proposes to update and add several
categories to its existing categorical exclusions (See ``Substantiation
Record of Proposed New and Revised Categorical Exclusions under NEPA,''
publicly available at https://www.stb.gov/resources/environmental).\10\
These proposed changes would establish five new categorical exclusions,
modify six existing categorical exclusions, and remove three current
categorical exclusions.
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\10\ A copy of the ``Substantiation Record of Proposed New and
Revised Categorical Exclusions under NEPA'' will also be attached as
Appendix B to the version of this decision that will be posted on
the Board's website at www.stb.gov.
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These regulations propose to add one new categorical exclusion for
an action that has been added to the Board's jurisdiction since the
passage of the 1991 regulations: proceedings related to use of rail
carriers' facilities and services by the National Railroad Passenger
Corporation (Amtrak) under 49 U.S.C. 24308.\11\ The Board finds that
this action is unlikely to have significant environmental effects
unless it results in changes in operations that exceed the Board's
environmental thresholds.
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\11\ Section 24308 provides that, if a freight carrier and
Amtrak cannot agree to terms for sharing facilities or providing
services to Amtrak, the Board may, when appropriate, resolve the
dispute and set terms and compensation for use and services. It
further provides that the Board may order the freight carrier to
provide or allow for the operation of additional Amtrak trains over
such facilities.
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The Board also proposes to revise the existing categorical
exclusion at current 49 CFR 1105.6(c)(2) to include adjudications
regarding ``practices and service.'' (See proposed 49 CFR
1105.7(a)(2)). Adjudications regarding practices include claims
relating to unfair and discriminatory practices. These actions do not
normally have a substantial impact on future traffic volumes, and
therefore do not normally result in significant environmental impacts.
As to adjudications regarding service, rail operators on the lines
within the interstate rail system have a common carrier obligation
under 49 U.S.C. 11101, which means that rail carriers providing rail
service subject to the Board's jurisdiction must provide service upon
reasonable request. Adjudications involving service can involve a
determination of whether a carrier holds the obligation or whether a
carrier has met that obligation. These actions often involve economic
damages for past actions and do not normally have a substantial impact
on future traffic volumes. Therefore, the Board finds that these
actions do not normally cause environmental impacts requiring NEPA
review.
In proposed 49 CFR 1105.7(a)(7), the Board proposes a new
categorical exclusion to exclude reciprocal switching agreements from
further environmental review. Prescription of agreements under those
regulations are not expected to result in environmental effects and
have previously been found ``closely analogous'' to the common use of
rail terminals, which is categorically excluded under our current
regulations.\12\
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\12\ Cape Cod & Hyannis R.R.--Exemption from 49 U.S.C. Subtitle
IV, FD 31229, slip op. at 2 (ICC served Mar. 25, 1988).
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Additionally, the Board proposes new categorical exclusions for
some proposals that would typically require an EA under our current
regulations: the construction of connecting track and certain types of
abandonments and discontinuances. First, the Board proposes to
categorically exclude from further environmental review construction of
connecting track within an existing right-of-way or on land owned by
the connecting railroads or the applicant. In the Board's experience,
such projects rarely have environmental impacts due to their locations
on already disturbed, existing rights-of-way or in pre-existing
industrial areas.
Second, the Board proposes to expand the current categorical
exclusions regarding discontinuances and to add certain abandonments.
The Board's proposed regulations maintain the current categorical
exclusion for discontinuances of trackage rights where the affected
line will continue to
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be operated and add, for clarity, the phrase ``within Board
jurisdiction.'' (See current 49 CFR 1105.6(c)(5) and proposed 49 CFR
1105.7(a)(4)).
The Board also proposes to add a new categorical exclusion at
proposed 49 CFR 1105.7(a)(1)(ii) for abandonments and discontinuances
without traffic diversions that exceed the Board's environmental
thresholds and, in the case of abandonments, where salvage will not
occur prior to the consummation of abandonment authority or entry into
an interim trail use agreement. In the Board's experience, salvage and
traffic diversions are the only potentially reasonably foreseeable
activities caused by abandonments (or, in the case of traffic
diversions, discontinuances) that have the potential to affect the
environment.\13\
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\13\ The Board does not expressly authorize such diversions, nor
does it expressly authorize salvage except when issuing a
certificate or notice of interim trail use or abandonment pursuant
to 49 CFR 1152.29. And the Board generally does not regulate a
railroad's routing decisions or decisions it makes regarding
disposition of rail property. See, e.g., Norfolk S. Ry.--Aban.
Exemption--in the City of Greensboro, NC, AB 290 (Sub-No. 404X),
slip op. at 5 (STB served June 28, 2023) (``[R]ail carriers often
sell, lease, or transfer parts of their rights-of-way under state
law for other purposes, such as utility lines, and they are not
required to seek Board authority to do so.''); Protect Sudbury
Inc.--Pet. for Declaratory Ord., FD 36493, slip op. at 5 (STB served
Feb. 2, 2022) (recognizing that a carrier may ``even remove track on
a line over which it has a common carrier obligation, as long as no
shipper seeks service and the carrier is prepared to restore the
track should it receive a reasonable request for service''). The
Board considers potential environmental impacts from diversions (in
the case of discontinuance and abandonment) and salvage (in the case
of abandonment) because they may be reasonably foreseeable
consequences of those agency decisions. See also Iowa S. R.R.--
Exemption--Aban. in Pottawattamie, Mills, Fremont, & Page Cntys.,
Iowa, 5 I.C.C.2d 496, 501 (1989), aff'd, Goos v. ICC, 911 F.2d 1283
(8th Cir. 1990).
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When the current environmental regulations were implemented in
1991, the abandonment of rail lines with existing traffic was more
common. In contrast, most of the abandonments the Board authorizes now
are on rail lines that qualify for the class exemption at 49 CFR
1152.50. Such lines have not been used to support local service (i.e.,
rail movements originating or terminating on the line) for two years,
and often have not been used to support overhead traffic either, which
means that substantial traffic diversions from abandonments are rare
today. To account for the rare case in which an abandonment may result
in traffic diversions that could cause environmental effects, the
categorical exclusion would not apply to abandonments or
discontinuances when those diversions would exceed the Board's
environmental thresholds.
With regard to salvage, the proposed regulations categorically
exclude abandonments from further environmental review unless salvage
would occur prior to consummation of the abandonment or entry into an
interim trail use agreement. This limitation is proposed because rail
property is privately owned, and the Board has regulatory authority
over it only while it is part of the interstate rail system and subject
to the Board's jurisdiction. Once a railroad consummates the
abandonment, the Board has no jurisdiction over the rail line or any
control over disposition of the rail property.\14\ See also Seven
Cnty., 605 U.S. at 186-188 (holding that NEPA does not require that
agencies evaluate potential environmental effects arising from
``future'' projects, ``particularly'' those over which the Board does
not ``exercise regulatory authority''). Moreover, it is not always the
case that salvage occurs post-abandonment as the track, ties, and other
rail property may be used to support non-jurisdictional rail
activities, such as intrastate passenger excursion service and public
transportation provided by a local government authority. See, e.g., 49
U.S.C. 10501(c)(2); Denver & Rio Grande Ry. Hist. Found.--Pet. for
Declaratory Ord., FD 35496, slip op. 5 (STB served Mar. 24, 2015).
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\14\ Preseault v. ICC, 494 U.S. 1, 5 n.3 (1990); Hayfield N.
R.R. v. Chi. & NW Transp., 467 U.S. 622, 632 (1984) (explaining that
when a rail line is abandoned for purposes of the STB's regulatory
jurisdiction, the underlying right-of-way becomes ``ordinary real
property,'' and its disposition becomes subject to the application
of state property law).
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Further, as explained when promulgating the current version of the
Board's environmental regulations, the Board ``do[es] not have the
power to force a railroad to sell (or donate) its property, or impose a
restrictive covenant upon the deed, as a condition to obtaining
abandonment or acquisition authority.'' \15\ Without such authority,
there is no reason for the Board to consider the potential effects
arising from salvage that takes place post-abandonment.\16\ See Seven
Cnty., 605 U.S. at 183 (``doubly underscor[ing]'' that inherent in NEPA
is a rule of reason that ensures that agencies determine the extent of
environmental review ``based on the usefulness of any new potential
information to the decision making process'').
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\15\ Implementation of Env't Laws, 7 I.C.C.2d at 828-29; see
also id. at 829 (``We lack the statutory power to require a railroad
to sell a right-of-way for any purpose other than continued rail
service under 49 U.S.C. [ ] 10905, 10910 or (in limited
circumstances) 11343.''). The Board subsequently issued a non-
binding policy statement that included a statement suggesting that
the Board retained certain post-abandonment statutory authority.
Consummation of Rail Line Abans. that are Subject to Historic Pres.
& Other Env't Conditions, EP 678, slip op. at 5 (STB served April
23, 2008) (stating that an environmental condition on salvage
``remains in place as a condition that attaches to the property and
applies to salvage activities whenever they occur'' and that ``any
successor in interest [must] agree to the condition by referencing
the condition in the purchase contract''). For the reasons stated
above, the Board clarifies that such language in the 2008 policy
statement is rescinded and confirms here that, because it lacks any
authority over rail property that is no longer subject to Board
jurisdiction, it cannot impose conditions that attach to the
property following consummation.
\16\ In past proceedings, the Board has imposed conditions that
were not limited to pre-consummation applicability, many of which
related to consultation with third parties. See, e.g., Alcoa Energy
Services, Inc.--Aban. Exemption--in Milam Cnty., Tex., AB 1291X (STB
served March 9, 2020) (condition to notify the National Geodetic
Survey 90 days prior to any salvage activities). In this rulemaking,
the Board clarifies that it will be applying that limitation going
forward and, above, explains the legal basis for this clarification.
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The limitation of environmental review when there is salvage prior
to entry into an interim trail use agreement is also appropriate
because once the rail carrier has entered into an interim trail use
agreement, the Board has a largely ministerial role under the Nation
Trails Systems Act (Trails Act) 16 U.S.C. 1247(d).\17\ For that reason,
under current agency practice, the Board does not require compliance
with environmental and historic conditions with ``respect to any
portion of a line covered by the interim trail use agreement for the
duration of the agreement.'' See, e.g., E. Idaho R.R.--Aban.
Exemption--in Bonneville Cnty., Idaho, AB 1252 (Sub-No. 1X), slip op.
at 5 n.3 (STB served June 5, 2020); Final Env't. Assessment, E. Idaho
R.R.--Aban. Exemption--in Bonneville Cnty., Idaho, AB 1252 (Sub-No.
1X), slip op. at 3 (STB served June 2, 2020) (explaining that such
compliance is not required because interim trail use under the Trails
Act is not a ``federal action that is subject to environmental review
under NEPA'').
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\17\ See Citizens Against Rails-to-Trails v. STB, 267 F.3d 1144,
1151-52 (D.C. Cir. 2001); Goos v. ICC, 911 F.2d at 1295.
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In most discontinuances, salvage is not reasonably foreseeable
because the line remains within the Board's jurisdiction and available
for common carrier rail service.\18\ But there are some cases where
discontinuance terminates the Board's jurisdiction: for example where a
railroad has received authority
[[Page 14495]]
to operate over an already-abandoned line.\19\ But in those cases, the
Board has no control over the rail property post-discontinuance, or
authority to impose salvage-related environmental conditions, and thus
environmental review is not required under NEPA.
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\18\ The Board notes that the current regulations require an EA
for discontinuances, however, in discontinuances where the rail line
has not been authorized for abandonment, the Board typically does
not prepare an EA, because any such environmental review would occur
when abandonment authority is sought.
\19\ Iowa Traction Ry.--Discontinuance of Serv. Exemption--in
Cerro Gordo Cnty., Iowa, AB 1269 (Sub-No. 1X), slip op. at 3 (STB
served Apr. 6, 2020) (citing Wisc. Cent. Ltd. v. STB, 112 F.3d 881,
890 (7th Cir. 1997)); see also Midcoast Rail Serv. Inc.--
Discontinuance of Serv. Exemption--in Cumberland, Knox, Lincoln,
Sagadahoc Cntys., Me., AB 1341X, slip op. at 4-5 (STB served Dec. 3,
2024).
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As noted above, the Board proposes to move offers of financial
assistance from the category of actions that are not a major federal
action (current 49 CFR 1105.5(c)(3)) to the categorical exclusion
category (proposed 49 CFR 1105.7(a)(6)), and to move declaratory
orders, interpretations or clarifications of operating authority,
substitution of an applicant or name changes, and termination of
freight service under modified certificates from the categorical
exclusion category (current 49 CFR 1105.6(c)(1)(iii), (c)(4)) to the
category of actions that are not major federal actions (proposed 49 CFR
1105.5(b)(5), (6), (8)).
The proposed regulations also remove the categorical exclusion for
determinations of the fact of competition (which applied to water
carriers) because that type of determination is no longer within the
Board's jurisdiction. See ICCTA, Public Law 104-88 (1995) (removing
reference to ``determinations of the fact of competition'' from Board's
authorizing legislation).
1105.8--Environmental Assessments
The Board proposes to add a new section outlining the EA process.
This section adds the statutory standard for preparing an EA, lists the
types of actions for which an EA will typically be prepared,
incorporates amendments to NEPA, and outlines the different processes
for issuing EAs in abandonments or discontinuances, and all other
cases. This reflects the Board's current practice in which OEA
typically prepares the EA in abandonment and/or discontinuance cases,
while in other cases, the EA is typically prepared by a third-party
contractor under OEA's direction.
Types of Actions. The current regulations list actions that will
require an EA if the thresholds in current 49 CFR 1105.16(d) and (e)
are exceeded.\20\ The Board proposes adding an explicit reference to
``feeder line sales'' (which were already included in the provision
under 49 U.S.C. 10907) to the list of actions in 49 CFR 1105.8(b)(1)
requiring an EA when the action would exceed the thresholds or would be
part of an action that would require environmental documentation (such
as a new rail construction). The current regulations provide for
preparation of an EA in all abandonment and discontinuances under 49
U.S.C. 10903, and the proposed regulations would limit preparation of
an EA only to those resulting in diversion of traffic to other rail
lines that would exceed the thresholds, that are not part of another
action that would require environmental documentation, or, in the case
of an abandonment, if salvage would occur prior to consummation or
entry into an interim trail use agreement, as explained in more detail
above. Additionally, the Board proposes to delete references to NERSA
abandonments as they are no longer reviewed by the Board.\21\ Other
actions that the Board proposes to remove from actions requiring an EA
have been moved to categorical exclusions for the reasons explained
above.
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\20\ The Board's environmental regulations use traffic
thresholds to determine whether operational changes related to
certain types of actions that require Board authorization have the
potential to result in significant environmental effects. The
general thresholds for assessing environmental effects from
increased traffic are an increase in rail traffic of at least 100%
(measured in gross ton miles annually) or an increase of at least
eight trains per day. The Board's thresholds for assessing
environmental impacts from increased rail traffic have been moved
but remain unchanged from the current regulations.
\21\ Discontinuance of service over rail lines that were
abandoned under NERSA will be treated as any other discontinuance
under these rules.
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EA Process in Cases Other than Abandonments and Discontinuances.
With respect to cases other than abandonments and discontinuances, the
Board proposes to update the EA process to reflect updates to NEPA.\22\
The proposed EA process will be similar to that outlined in more detail
below for an EIS, but an EA is shorter and subject to shorter
deadlines. The section requires an applicant to provide written notice
of its proposal 45 days prior to seeking authority from the Board to
reduce waiver requests and make the EA and EIS processes consistent and
proposes to add procedures for prefiling notice and consultation with
OEA in the event an applicant elects to proceed under section 112 of
NEPA (42 U.S.C. 4336f) in a proceeding. It also explains that the
Director of OEA will determine whether to prepare an EA and includes a
description of the scoping process, as well as outlines agencies that
OEA may consult during the process of preparing an EA.
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\22\ See FRA, Public Law 118-5, 137 Stat. 10.
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The section also adds a new paragraph allowing for the issuance of
a Notice of Intent (NOI) after OEA determines that preparation of an EA
is appropriate. In contrast to the EIS process, which is described in
more detail below, NEPA does not require the issuance of an NOI or a
public comment period for EAs. Therefore, the Board proposes to issue
an NOI where appropriate when preparing an EA. The section also
outlines the content that an EA will generally contain and incorporates
the deadlines and page limits from recent amendments to NEPA.
Under the proposed EA process, OEA will prepare, and the Board
generally will publish, one EA document (instead of a draft followed by
a final). Notably the Board's current regulations for EAs do not
require a draft EA. In general, however, the Board's practice has been
to prepare and issue a draft EA. The Board intends to modify its
practice and issue a single EA consistent with the proposed EIS process
and the language in NEPA, as described in more detail below in the EIS
section. Nevertheless, the revisions reflect that during the process of
preparing an EA, OEA may publish draft or preliminary documents when,
in its judgment, doing so is needed to fulfill its responsibilities
under NEPA and these regulations.
EA Process in Abandonments and Discontinuances. The proposed
regulation outlines how OEA will prepare an EA in abandonment and/or
discontinuance cases, in line with OEA's current process. The Board
also proposes to update the list of agencies and entities that are
consulted when preparing an abandonment or discontinuance EA. Under the
current regulations, this list is contained in 49 CFR 1105.7(b). As
described below in detailing the proposed revisions to the Board's
environmental reports regulation, consultation with these agencies and
entities is necessary for OEA to meet the short regulatory deadlines
for environmental reviews in abandonment and discontinuance cases. The
Board proposes to add the National Marine Fisheries Service, the U.S.
Coast Guard, and state departments of transportation, and to remove
state clearinghouses as obsolete.
Sec. 1105.9--Environmental Impact Statements
The Board proposes to add a new section outlining the EIS process.
The new section primarily codifies existing Board practices and
incorporates the amendments to NEPA, as well as lists
[[Page 14496]]
the types of actions for which the Board typically prepares an EIS.
Types of Actions. The Board will continue to require preparation of
an EIS for new rail line construction proposals but will more clearly
limit it to those that are not categorically excluded or have not been
reclassified pursuant to a determination by the Director. In addition,
the Board proposes to require preparation of an EIS for a solid waste
rail transfer facility land-use-exemption under the CRA. The CRA
limited the Board's authority with regard to solid waste rail transfer
facilities to the issuance of land-use-exemption permits, a license
that preempts a facility from compliance with state laws, regulations,
orders, and other requirements affecting the siting of the
facility.\23\ Because solid waste rail transfer facilities have the
potential for significant environmental impacts, the Board has
concluded that an EIS should normally be prepared for each land-use-
exemption-permit application.\24\
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\23\ The Board, however, has the authority to require, as a
condition of the land-use exemption permit, compliance with state
laws, regulations, orders, and other requirements that affect the
siting of a facility. 49 U.S.C. 10909(f).
\24\ See Solid Waste Rail Transfer Facilities, EP 684 (STB
served Mar. 24, 2011).
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EIS Process. In actions that require or contemplate the preparation
of an EIS, the Board proposes to reduce the six-month prefiling notice
requirement in current 49 CFR 1105.10(a)(1) to 45 days. Because
applicants in these cases often have not finalized the details of their
proposals six months in advance, OEA receives a large number of
requests for waiver of the prefiling notice, and the Board believes
shortening this notice requirement to 45 days is reasonable and would
streamline the existing EIS process by reducing the number of waiver
requests.\25\ The Board also proposes to add procedures for prefiling
notice and consultation with OEA in the event an applicant elects to
proceed under section 112 of NEPA (42 U.S.C. 4336f) in a proceeding.
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\25\ While the proposed regulations do not specifically require
it, the Board strongly encourages applicants to file their petition
or application with the Board no later than 45 days after filing
their prefiling notice with OEA to prevent unnecessary delay. OEA
has found that it usually needs the detailed information concerning
rail operations in the petition or application to be able to move
forward expeditiously with the environmental review process.
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Additionally, the Board proposes to add the statutory standard for
preparing an EIS, provide a more detailed description of the scoping
process, outline the agencies that OEA is required to obtain comments
from pursuant to section 102 of NEPA, provide that the Director will
determine whether to prepare an EIS and notify the applicant in writing
of the determination, outline the content that an EIS will generally
contain, and incorporate the deadlines and page limits from amendments
to NEPA.\26\ The Board also proposes to add references to encourage e-
filing of comments and to note that an EA or EIS is publicly available
on the Board's website, and to delete as unnecessary the requirement in
our current regulations that copies of environmental communications
must be sent to the applicant.
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\26\ See FRA, Public Law 118-5, 137 Stat. 10.
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The Board further proposes to amend its current EIS process to
eliminate the preparation and publication of a draft EIS, which is not
statutorily required by NEPA. Instead, OEA will prepare, and the Board
generally will publish, one EIS document (instead of a draft followed
by a final). Nevertheless, the revisions reflect that during the
process of preparing an EIS, OEA may publish draft or preliminary
documents when, in its judgment, doing so is needed to fulfill its
responsibilities under NEPA and these regulations.
Consistent with NEPA, a public comment period will be provided
after the Board issues the Notice of Intent (NOI) to prepare an EIS.
The NOI will be more fulsome than under the current process and will
include a preliminary description of the proposed action and
alternatives, a summary of environmental effects, and other pertinent
information. The NOI will serve as an opportunity for interested
members of the public to provide substantive comments early in the
environmental review, and the EIS will be informed by any public
comments received on the NOI. The Board proposes to remove the
requirement to issue a Final Scope of Study after comments are received
on the NOI. The Board has determined that, consistent with the language
of NEPA and other agencies' practices, a Final Scope of Study is not
necessary to address public comments on the NOI (which is the Board's
current practice), as those will be addressed, as appropriate, in the
EIS. Overall, these changes will streamline and expedite the
environmental review process, while still maintaining a meaningful
opportunity for public comment.
The current regulations, at 49 CFR 1105.10(a)(4), provide that a
draft EIS will be made available to the public prior to any oral
hearing held on the transportation merits of a proposal. The Board
proposes removing this provision because the proposed regulations will
eliminate the draft EIS requirement, and a hearing on the
transportation merits is not part of the NEPA process. Moreover, there
is ample opportunity for public comment and participation in the EIS
process (both written and orally at public meetings). The current
regulations also provide for a 45-day comment period following service
of the draft EIS. Because the proposed regulations do not include a
requirement for a draft EIS, this comment period is extraneous, and the
Board proposes to remove it.
Sec. 1105.10--Supplements to Environmental Assessments and
Environmental Impact Statements
The Board proposes to provide more detail on the process for
determining when a supplemental EA or EIS will be prepared. These
additions are consistent with the Board's current process and are added
to provide clarity.
Sec. 1105.11--Lead, Cooperating, and Participating Agencies
The Board proposes to add a section with provisions addressing
lead, cooperating, and participating agencies.
Sec. 1105.12--Third-Party Contractors
The proposed regulations move the paragraphs addressing third-party
contractors in the current regulations (49 CFR 1105.4(j) and
1105.10(d)) to a new section and clarify the process for using them.
The only substantive proposed change is to require the contractor to
execute a disclosure statement certifying that it has no financial or
other interest in the outcome of the proposal.
Sec. 1105.13--Environmental Reports for Abandonments and
Discontinuances
Under the current regulations, before seeking Board licensing
authority for proposals that require the preparation of an EA or EIS,
applicants must consult with appropriate agencies and prepare and
submit environmental and historic reports under 49 CFR 1105.7 and
1105.8.\27\ The Board proposes to limit the use of environmental
reports only to abandonment and discontinuance proposals that are not
categorically excluded from further environmental review to align the
Board's regulations with its current practice and lessen the burden on
stakeholders by requiring them only in these circumstances. As
previously noted, in abandonments and discontinuances, OEA (rather than
a
[[Page 14497]]
third-party contractor) prepares the EA under short regulatory
deadlines based on information provided by the applicant. The
information in these reports assists OEA in evaluating potential
environmental effects and provides information needed for the public
and other agencies to comment on the proposal.
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\27\ In these proposed revisions, the Board retains its current
regulation regarding the historic review and reporting process.
Proposed 49 CFR 1105.14 retains all the language that is in current
49 CFR 1105.8.
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Consultations. Early consultation with federal, state and local
agencies, as well as affected communities, is essential to conducting
meaningful environmental review, and the proposed regulations continue
the Board's existing practice of requiring applicants to send
environmental reports to consulting agencies for comment prior to
filing them with the Board. As stated above, proposed 49 CFR
1105.8(d)(1) updates the list of agencies and entities with which
applicants must consult in preparing their environmental reports. The
Board also proposes to extend the timeframe for agency consultations
from 20 days prior to filing the environmental report to 45 days prior.
Consulting agencies frequently state that they lack enough time to
review the reports, and this change would give consulting agencies
sufficient review time to provide comments without unduly delaying the
time when applicants may seek Board authority.\28\
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\28\ In the Board's experience, agencies often submit
information late, after the current 20-day timeframe, or sometimes
not at all, which delays the Board's environmental review process.
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Further, to ensure that applicants submit complete environmental
reports with the current information needed for OEA to properly assess
the reports, proposed paragraphs (c) and (f) allow the Director to
reject an environmental report if it does not provide the appropriate
level of information for OEA to conduct the review or if the
environmental report includes outdated agency responses.\29\
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\29\ Responses or letters that predate the applicant's filing by
more than two years.
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Content. The proposed regulations require that environmental
reports include the content described in 49 CFR 1105.16. As explained
below in more detail, the Board has updated the content that will be
contained in environmental reports, EAs, and EISs. Most of the
information should be readily available to applicants or can be easily
located online.\30\ By requiring accurate and limited additional
information in environmental reports, consulting agencies should have a
better understanding of the nature of proposed abandonments and would
be more likely to provide useful input earlier in the consultation
process. As a result, OEA would be better able to evaluate the proposal
and its potential environmental impacts in the short regulatory time
period. Moreover, with improved environmental reports and more timely
and constructive feedback from agencies, the number of consultation
conditions should be significantly reduced because the Board would not
need to impose conditions based on lack of information.
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\30\ For example, when assessing impacts to biological
resources, we recommend that applicants use the U.S. Fish and
Wildlife Service's online system, IPaC (Information, Planning, and
Conservation System), which is available at http://ecos.fws.gov/ipac/. IPaC provides information about sensitive resources within
the vicinity of a proposed project and can facilitate applicants'
ability to report whether any federally threatened or endangered
species, designated critical habitat, or other natural resources of
concern may be affected by a proposal. Use of this online system
should result in more accurate and complete environmental reports,
which would reduce the time and effort needed to secure responses
from the U.S. Fish and Wildlife Service in individual cases.
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Sec. 1105.15--Applicant-Prepared Environmental Assessments and
Environment Impact Statements
The Board proposes to add a section establishing a process by which
an applicant can request and, if granted permission, prepare an EA or
EIS under the supervision of OEA. The proposed regulations exclude
abandonment and discontinuance proposals from this category, as OEA
will continue to prepare EAs in those cases that require environmental
review because of the short regulatory deadlines. The proposed
regulations outline criteria that must be met for permission to be
granted for an applicant-prepared EA or EIS.
Sec. 1105.16--Content in Environmental Assessments and Environmental
Impact Statements
The Board proposes to add a section outlining the content that will
be included in any EA or EIS. This subsection is also referenced as the
content that will be contained in an EA or EIS, see proposed 49 CFR
1105.8(c)(7) & (d)(3), 1105.9(i), and the content that must be
contained in an environmental report for abandonments and
discontinuances that require an environmental review, see proposed 49
CFR 1105.13(e). Much of this content is outlined in the current 49 CFR
1105.7(e); however, the Board proposes to clarify the requirements and
update them to reflect current law and practice, and ensure that
environmental reports, EAs, and EISs include the necessary information
and analysis. Some changes require additional information, while others
eliminate information requirements that are no longer relevant or
useful.
(a) Proposal. Proposed 49 CFR 1105.16(a) requires more detailed
information about the action proposed, such as current traffic on the
line and a more detailed map of the proposal. Maps that clearly show
the location of the rail line and the surrounding resources are
necessary for OEA to verify data provided. High quality maps also
expedite the environmental review process by saving OEA staff from
having to attempt to interpret deficient maps and by reducing the
number of information requests to applicants. This paragraph eliminates
the requirement to provide alternatives, as these are only applicable
in construction cases. It clarifies language regarding changes
associated with abandonments, from a description of ``planned
disposition (if any) of any . . . other structures that may be
involved'' to a description of ``land disturbance within and outside
the right-of-way'' and ``buildings, bridges, or other structures (to
include track and ties in abandonment proposals) to be removed.'' It
also removes the requirement to include a description of ``changes in
maintenance practices,'' as OEA generally does not find this
information relevant to its environmental review.
(b) Transportation System. Proposed 49 CFR 1105.16(b) adds
requirements to provide more information to be submitted when rail-to-
truck diversions are expected to occur, specifically to identify the
roadways to be impacted, the current average daily roadway traffic and
expected increase in traffic, and a description of roadway capacity
constraints.
(c) Land Use. The Board proposes to add designated flood zones and
erosion mitigation practices to our requirements for land use.\31\ The
Board also proposes to move requirements relating to the CZMA that are
in current 49 CFR 1105.9 to this paragraph and to update the reference
to the appropriate federal agency addressing prime agricultural land.
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\31\ E.O. 11988, ``Floodplain Management,'' requires Federal
agencies to avoid adversely impacting floodplains wherever possible
and to reduce the risk of flood loss and minimize the impact of
floods on human safety, health, and welfare.
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(d) Energy. The Board proposes to delete the current energy
requirements to describe the effect of the proposed action on
recyclable commodities, because such effects have not been an issue in
Board proceedings for many years, and to make additional non-
substantive clarifying changes.
[[Page 14498]]
(e) Air. The Board proposes to clarify the thresholds applicable to
attainment and nonattainment areas, but the thresholds remain the same.
As part of that clarification, the proposed regulation makes explicit
that, when a threshold is exceeded, the anticipated effect on air
emissions must be measured. The Board also proposes to eliminate the
requirement addressing whether diversion or rerouting of ozone
depleting materials is contemplated.\32\
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\32\ As a result of a phase out program established under the
Clean Air Act in the 1990s, chlorofluorocarbons (CFCs or ``freon'')
and other important ozone depleting substances are no longer being
manufactured or imported into the United States.
Hydrochlorofluorocarbons (HCFCs), which are lesser ozone depleting
substances, are also in the process of being phased out. Therefore,
it is unlikely that ozone depleting substances will be transported
by rail in substantial amounts. See U.S. Env't Prot. Agency,
Phaseout of Ozone-Depleting Substances, https://www.epa.gov/ods-phaseout (last visited March 18, 2026).
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(f) Noise and Vibration. The Board proposes to add the term
``vibration'' to this paragraph to reflect the fact that environmental
analyses typically evaluate noise and vibration together if the Board's
thresholds for noise impacts are met. With respect to noise impact
analysis, the Board proposes to remove the current requirement to state
whether the proposed action would cause an increase in noise levels of
three decibels Ldn \33\ or more or an increase to a noise level of 65
decibels Ldn or greater. Instead, the Board proposes to add that
environmental noise and vibration analysis will be conducted to
characterize any effects resulting from the proposed action. The Board
intends to use guidance from the Federal Transit Administration (FTA)
\34\ in these analyses because it is a more nuanced way to measure
noise impacts. The Board's current approach counts the number of
receptors exposed to 65 decibels Ldn and 3 decibels or greater, whereas
the FTA guidance characterizes the level of impact on each receptor.
Consistent with the practices of other rail-related agencies and based
on the Board's experience of following the FTA guidance in recent
cases, it has concluded that the purposes of NEPA are better served by
using this method.
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\33\ A decibel is the unit used to measure the magnitude of
sound level based on a logarithmic scale that compresses the range
of sound pressures audible to the human ear. The most commonly used
measure of noise is expressed in ``dBA,'' which refers to decibels
of noise on an ``A'' weighted scale (noise audible to human ear).
``Ldn'' means average noise exposure over a 24-hour period, with an
additional 10-decibel noise weighting during nighttime hours
(between 10 p.m. and 7 a.m.), to account for increased sensitivity
to noise at night.
\34\ Transit Noise & Vibration Impact Assessment Manual, FTA
(2018).
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(g) Safety. The Board proposes clarifying changes to this provision
to conform to current practice.
(h) Biological Resources. The Board proposes to clarify the nature
of its consultation with NOAA Fisheries (which has jurisdiction over
certain fish), add the option to reference U.S. Fish and Wildlife
Service's electronic database instead of direct consultation with U.S.
Fish and Wildlife Service when feasible, and add language for
consistency with the ESA.
(i) Water. The Board proposes to add requirements to consult with
federal water quality officials in addition to state water quality
officials and to indicate whether any waters of the United States
(including lakes, streams and wetlands) or navigable waterways would be
affected. The Board also proposes to add a reference to the River and
Harbors Act, and to remove other unnecessary language.
(j) Cultural Resources. The Board proposes to add this paragraph,
to reflect that it generally coordinates its historic reviews with its
environmental reviews, and to note that a section 106 review under the
NHPA must be conducted if required.
(k) Voluntary Mitigation. The Board proposes to add ``voluntary''
to this paragraph to clarify that an EA or EIS should include a
description of any proposed voluntary mitigation offered by applicants,
while OEA will determine whether to recommend any other mitigation, and
the Board will determine whether to impose any mitigation.
(l) Additional Information in Rail Construction Cases. The Board
proposes to update the additional information required for rail
constructions by deleting unnecessary provisions and requiring more
information on alternatives, rail operations, air, and safety impacts.
For example, an EA or EIS will include specific information on air and
safety impacts, such as the measurement of air quality effects based on
construction activities, idling vehicles at crossings, and reasonably
foreseeable changes in operations, as well as a description of the
procedures that would be used for storing and fueling construction
equipment. The inclusion of this information would expedite and improve
environmental review of proposed rail constructions by providing OEA
with more detailed, relevant, case-specific information at the
beginning of the environmental review process.
The Board will no longer require a description of ``down-line
impacts''--i.e., impacts from rail operations along existing rail line
segments from trains originating or terminating on a proposed new rail
line. Nevertheless, the Board has discretion to draw the lines as to
``how far'' it will ``go in considering the indirect effects that might
occur outside the area of the immediate project.'' Seven County, 605
U.S. at 182. As a result, project-specific determinations will be made
with respect to the analysis of indirect downline impacts.
The Board also proposes to align the Board's regulations with its
current practice requiring a noise and vibration analysis for every
construction or land-use-exemption permit, regardless of the projected
number of trains. Thresholds (which help OEA determine when a noise
analysis is required based on the projected increase in train traffic
or rail yard activity) are appropriate for certain actions involving
traffic changes on existing lines. However, in OEA's experience,
thresholds are generally not appropriate for proposals to build new
rail lines or requests for land-use-exemption permits, because these
types of rail projects introduce entirely new rail traffic and new
sources of noise and vibration (including temporary noise and vibration
associated with construction, and permanent noise and vibration
associated with rail operations).
Finally, the Board proposes to delete the requirement to discuss
impacts on essential public services, public roads, and adjoining
properties as redundant. The Board does not view this as a substantive
change because these impacts are required to be considered under other
resource areas, such as transportation system (at proposed 49 CFR
1105.16(b), noise and vibration (at proposed 49 CFR 1105.16(f)), and
safety (at proposed 49 CFR 1105.16(g)). The Board also proposes to
delete the requirement to discuss societal impacts as part of the
environmental review and may consider such issues as part of the
transportation merits review of the proposal.
(m) Additional Information for Solid Waste Rail Transfer Facility
Land-Use Exemptions. The same additional information for constructions
would be required for solid waste rail transfer facility land-use-
exemption proceedings.\35\
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\35\ Applicants seeking a land-use-exemption permit for a solid
waste rail transfer facility under the CRA would also be required to
include the information required by 49 CFR 1155.24 in the
environmental report.
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(n) Additional Information. The Board proposes to include that OEA
may require applicants to submit additional information regarding the
environmental effects of the proposed action, similar to a requirement
that is
[[Page 14499]]
in the Board's current regulations at 49 CFR 1105.7(f).
Sec. 1105.17--Board Decisions
This section includes certain requirements relating to the CZMA
that are located in current 49 CFR 1105.9. Consistent with its current
practice, the Board also proposes to add a paragraph providing that any
environmental or historic preservation conditions imposed by the Board
will be held in abeyance if the rail right-of-way is converted to
interim trail use subject to rail banking under the Trails Act. See
also, e.g., E. Idaho R.R.--Aban. Exemption--in Bonneville Cnty., Idaho,
AB 1252 (Sub-No. 1X), slip op. at 5 n.3 (STB served June 5, 2020);
Final Env't Assessment, E. Idaho R.R.--Aban. Exemption--in Bonneville
Cnty., Idaho, AB 1252 (Sub-No. 1X), slip op. at 3 (STB served June 2,
2020). This paragraph aligns the regulations with the Board's current
practice requiring that, if a trail condition is vacated in the future
for all or a portion of the right-of-way, any environmental condition
or historic preservation conditions imposed by the Board must be
satisfied before the abandonment may be consummated.\36\
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\36\ The Board does not conduct an environmental review of a
potential conversion to interim trail use/rail banking, because such
a conversion is a largely ministerial act not subject to NEPA. In
addition, many SHPOs view rails-to-trails as a preservation activity
that would not cause an adverse effect under NHPA.
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The Board also proposes changes to the paragraph addressing
Findings of No Significant Impact (FONSIs). The proposed regulations
add that FONSIs will typically be issued in the Board's decision. In
abandonment notice of exemption proceedings, pursuant to the new
authority delegated by the Board under the proposed regulations, the
Director of OEA will issue a FONSI if no environmental or historic
preservations issues are raised by any party or identified by OEA in
its independent review. The proposed regulations also identify what
will be included in FONSIs.
Sec. 1105.18--Emergencies
The Board proposes to add a new section stating that the Board will
consult with the Council on Environmental Quality if alternative
arrangements for compliance with NEPA are necessary in emergency
circumstances, and establishing a procedure for requesting emergency
consideration. The Board proposes adding this for consistency with
other agencies' practices and to ensure that the Board has the
flexibility to respond appropriately to an emergency situation.
Sec. 1105.19--Sample Transmittal Letter for Environmental and Historic
Reports and
Sec. 1105.20--Newspaper Notice for Abandonment Exemption Cases
The Board proposes minor changes to these sections (49 CFR 1105.19
& 1105.20) to make them compatible with the proposed regulations.
Regulatory Certifications
Regulatory Planning and Review
E.O. 12866 provides that the Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget will determine
whether a regulatory action is significant as defined by E.O. 12866 and
will review significant regulatory actions. OIRA has determined that
this proposed rule is not significant as defined by E.O. 12866. E.O.
13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, reduce uncertainty, and use the best, most innovative,
and least burdensome tools for achieving regulatory ends. The Board has
developed the proposed rule consistent with E.O. 13563.
National Environmental Policy Act
NEPA does not require agencies to prepare a NEPA analysis before
establishing or updating agency procedures for implementing NEPA.
Agency NEPA implementing procedures are not themselves subject to
NEPA.\37\ STB has determined that this rule will not have a significant
effect on the environment because it will not authorize any specific
agency activity or commit resources to a project that may affect the
environment. Therefore, STB does not intend to conduct a NEPA analysis
of this proposed rule.
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\37\ Heartwood v. U.S. Forest Serv., 230 F.3d 947, 954-955 (7th
Cir. 2000) (finding that neither NEPA nor the CEQ NEPA implementing
regulations required the Forest Service to conduct an EA or an EIS
prior to the promulgation of its procedures creating a categorical
exclusion).
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Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612,
generally requires a description and analysis of new rules that would
have a significant economic impact on a substantial number of small
entities. In drafting a rule, an agency is required to: (1) assess the
effect that its regulation will have on small entities; (2) analyze
effective alternatives that may minimize a regulation's impact; and (3)
make the analysis available for public comment. 5 U.S.C. 601-604. In
its notice of proposed rulemaking, the agency must either include an
initial regulatory flexibility analysis, 5 U.S.C. 603(a), or certify
that the proposed rule would not have a ``significant impact on a
substantial number of small entities,'' 5 U.S.C. 605(b). Because the
goal of the RFA is to reduce the cost to small entities of complying
with federal regulations, the RFA requires an agency to perform a
regulatory flexibility analysis of small entity impacts only when a
rule directly regulates those entities. In other words, the impact must
be a direct impact on small entities ``whose conduct is circumscribed
or mandated'' by the proposed rule. White Eagle Coop. v. Conner, 553
F.3d 467, 480 (7th Cir. 2009).
The changes proposed here are largely procedural and would not have
a significant economic impact on small entities within the meaning of
the RFA.\38\ The Board anticipates that the regulations would provide a
faster environmental review process at a lower cost. Therefore, the
Board certifies under 5 U.S.C. 605(b) that these proposed rules, if
promulgated, would not have a significant economic impact on a
substantial number of small entities within the meaning of RFA. In the
event that any parties disagree, the Board encourages them to comment
on any information relevant to the burden they believe the proposed
rule will have on small entities as defined by the RFA.
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\38\ For the purpose of RFA analysis for rail carriers subject
to the Board's jurisdiction, the Board defines a ``small business''
as only including those rail carriers classified as Class III rail
carriers under 49 CFR 1201.1-1. See Small Entity Size Standards
Under the Regul. Flexibility Act, EP 719 (STB served June 30, 2016)
(with Board Member Begeman dissenting). Class III carriers have
annual operating revenues of $20 million or less in 1991 dollars, or
$48,237,637 or less when adjusted for inflation using 2024 data. The
Board calculates the revenue deflator factor annually and publishes
the railroad revenue thresholds on its website. 49 CFR 1201.1-1;
Indexing the Ann. Operating Revenues of R.Rs., EP 748 (STB served
June 18, 2025).
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A copy of this decision will be served upon the Chief Counsel for
Advocacy, Office of Advocacy, U.S. Small Business Administration.
Civil Justice Reform
The Board has analyzed the proposed rule in accordance with the
principles and criteria in E.O. 12988, Civil Justice Reform. Upon
publication of the proposed rule, (1) all state and local laws and
regulations that conflict with the proposed rule or that impede its
full implementation will be preempted; (2) no retroactive effect will
be given to this proposed rule; and (3) it will not require
administrative proceedings before parties may file suit in court
challenging its provisions.
[[Page 14500]]
Under section 3(a) of E.O. 12988, agencies must review their
regulations to eliminate drafting errors and ambiguities, draft them to
minimize litigation, and provide a clear legal standard for affected
conduct. Section 3(b) provides a list of specific issues for review to
conduct the reviews required by section 3(a). The Board has conducted
this review and determined that this proposed rule complies with the
requirements of E.O. 12988.
Paperwork Reduction Act
The Board's proposal does not contain a new or amended information
collection requirement subject to the Paperwork Reduction Act of 1995,
44 U.S.C. 3501-3521.
It is ordered:
1. The Board proposes to amend its regulations as set forth in this
decision. Notice of the proposed rules will be published in the Federal
Register.
2. Comments are due by April 24, 2026.
3. A copy of this decision will be served upon the Chief Counsel
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
4. This decision is effective on its service date.
Decided: March 21, 2026.
By the Board, Board Members Fuchs, Hedlund, and Schultz. Board
Member Hedlund concurred with a separate expression.
Board Member Hedlund, concurring:
Today's NPRM proposes to categorically exclude abandonments from
environmental review unless the abandoning carrier announces an
intention to conduct salvage operations that would occur prior to
consummation of the abandonment or entry into an interim trail use
agreement.\39\ The NPRM justifies this exclusion on the basis that
``rail property is privately owned, and the Board has regulatory
authority over it only while it is part of the interstate rail system
and subject to the Board's jurisdiction. Once a railroad consummates
the abandonment, the Board has no jurisdiction over the rail line or
any control over disposition of the rail property.'' The accompanying
Substantiation Record further notes that ``typical'' conditions
currently imposed with respect to salvage operations are consultation
requirements, such as the requirement that the railroad consult with
(1) the U.S. Corps of Army Engineers to determine whether a permit is
needed, and (2) the relevant state department of environmental
protection pursuant to state laws requiring a permit to abandon a water
obstruction or encroachment. Perhaps in an effort to assuage concerns
about the impacts of the removal of STB jurisdiction relating to post-
abandonment salvage, the Substantiation notes that such notification/
consultation conditions impose obligations that would already be
required by applicable laws once the right-of-way is abandoned and no
longer within the STB's jurisdiction. The NPRM concedes that this new
limitation would expressly rescind a 2008 policy statement concluding
that the Board possessed the authority to impose certain conditions
that would apply to salvage operations conducted post-abandonment,\40\
a policy subsequently applied in a variety of cases.\41\
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\39\ Subject to certain exceptions (e.g., if the abandonment
would result in traffic diversions that would trip the relevant
thresholds).
\40\ Consummation of Rail Line Abans. that are Subject to
Historic Pres. & Other Env't Conditions, EP 678, slip op. at 5 (STB
served April 23, 2008) (stating that an environmental condition on
salvage ``remains in place as a condition that attaches to the
property and applies to salvage activities whenever they occur'').
This legal proposition has never been successfully challenged.
\41\ See, e.g., BNSF Ry.--Aban. Exemption--In Los Angeles Cnty.,
Cal., AB 6 (Sub-No. 477X), slip op. at 7 n.13 (STB served Sept. 16,
2011); Landowners--Motion for Declaratory Ord. & Injunctive Relief,
AB 1065 (Sub-No. 1X), slip op. at 5 n.5 (STB served Jan. 27, 2020);
Cent. Kan. Ry.--Aban. Exemption--In Clark & Comanche Cntys., Kan.,
AB 406 (Sub-No. 5X), slip op. at 2 n.5 (STB served Oct. 28, 2020).
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Pursuant to the new rule proposed in the NPRM, if a railroad wishes
to avoid the imposition by the STB of any environmental or historic
\42\ conditions that might attach to its salvage operations, it could
simply remain silent and defer salvage activities until after the
abandonment is consummated.
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\42\ While the NPRM by its terms is limited to proposing
revisions to the Board's environmental regulations, the underlying
legal principle would equally restrict the Board's ability to impose
historic conditions on salvage operations that would apply post-
abandonment.
---------------------------------------------------------------------------
I encourage stakeholders to submit comments on this aspect of the
NPRM, given that it proposes to reverse the Board's prior understanding
of governing law. If any parties have concerns about potential
environmental or historic impacts that could result from post-
consummation salvage activities that would otherwise not be addressed
by separate state and Federal laws, I hope they make their views known
in this proceeding. Such comments should address the legal basis for
the Board's imposition of conditions relating to post-consummation
salvage, whether on the owner of the Line or any subsequent purchaser.
List of Subjects
49 CFR Part 1011
Administrative practice and procedure, Authority delegations
(Government agencies), Organization and functions (Government
agencies).
49 CFR Part 1105
Environmental impact statements, Reporting and recordkeeping
requirements.
Eden Besera,
Clearance Clerk.
For the reasons set forth in the preamble above and pursuant to the
authorities listed below, the Surface Transportation Board proposes to
amend parts 1011 and 1105 of title 49, chapter X, of the Code of
Federal Regulations as follows:
PART 1011--BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY
0
1. The authority citation for part 1011 continues to read as follows:
Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 1301, 1321,
11123, 11124, 11144, 14122, and 15722.
0
2. Amend Sec. 1011.2 by revising paragraph (a)(7) to read as follows.
Sec. 1011.2 The Board
(a) * * *
(7) All appeals of initial decisions issued by the Chief Counsel
under the authority delegated by Sec. 1011.7(a), all appeals of
initial decisions issued by the Office of Public Assistance,
Governmental Affairs, and Compliance under the authority delegated by
Sec. 1011.7(b), and all appeals of initial decisions issued by the
Director of the Office of Environmental Analysis under the authority
delegated by Sec. 1011.7(c). Appeals must be filed within 10 days
after service of the initial decision or publication of the notice, and
replies must be filed within 10 days after the due date for appeals or
any extension thereof.
* * * * *
0
3. Amend Sec. 1011.7 by:
0
a. Revising paragraph (a)(3)(iii);
0
b. Removing paragraph (a)(3)(ix);
0
c. Redesignating paragraphs (a)(3)(x) through (a)(3)(xx) as paragraphs
(a)(3)(ix) through (a)(3)(xix); and
0
d. Adding a new paragraph (c).
The revision reads as follows:
Sec. 1011.7 Delegations of Authority by the Board to Specific Offices
of the Board
(a) * * *
(3) * * *
(iii) Whether, in abandonment proceedings, to impose public use
[[Page 14501]]
conditions under 49 U.S.C. 10905 and the implementing regulations at
Sec. 1152.28.
* * * * *
(c) The Director of the Office of Environmental Analysis is
delegated the authority to:
(1) Direct the Board's implementation of the National Environmental
Policy Act (NEPA), 42 U.S.C. 4321-4370m-11, and the National Historic
Preservation Act (NHPA), 54 U.S.C. 300101-307108;
(2) Prepare documents and provide interpretation of the Board's
NEPA and NHPA processes under part 1105 of this chapter;
(3) Render initial decisions on requests for waiver or modification
of any of the rules in part 1105 in individual proceedings;
(4) Reject applicant-prepared documents that are not in compliance
with part 1105 of this chapter;
(5) Determine whether to impose, modify, or remove environmental
conditions;
(6) In proceedings under Sec. 1152.50 of this chapter, issue a
decision under Sec. 1105.17(c) of this chapter making a Finding of No
Significant Impact where no environmental or historic preservation
issues have been identified or raised by any party;
(7) Act as the agency official for the purposes of the NHPA to:
(i) Determine whether a proposed federal action is an undertaking
and, if so, whether it is a type of activity that has the potential to
cause effects on historic properties pursuant to Sec. 800.3 of this
title;
(ii) Sign, on behalf of the Board, binding agreements pursuant to
section 106 of NHPA (36 CFR part 800);
(iii) Determine whether to impose, modify, or remove historic
conditions; and
(iv) Determine the applicability of section 110(k) of the NHPA.
PART 1105--PROCEDURES FOR IMPLEMENTATION OF ENVIRONMENTAL LAWS
0
4. The authority citation for part 1105 continues to read as follows:
Authority: 16 U.S.C. 1456 and 1536; 42 U.S.C. 4332 and 6362(b);
49 U.S.C. 1301 note (1995) (Savings Provisions), 1321(a), 10502, and
10903-10905; 54 U.S.C. 306108.
0
5. Revise Sec. Sec. 1105.1 through 1105.13 to read as follows:
Sec. 1105.1 Purpose.
These rules are designed to ensure adequate consideration of
environmental effects in the Board's decision making process pursuant
to the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370m-
11, the Energy Policy and Conservation Act, 42 U.S.C. 6362(b), and
related laws, including, but not limited to the Coastal Zone Management
Act, 16 U.S.C. 1451-1458, and the Endangered Species Act, 16 U.S.C.
1531-1544. The rules are also designed to ensure consideration of
effects to historic resources, implement the National Historic
Preservation Act (NHPA), 54 U.S.C. 300101-307108, and supplement its
implementing regulations (36 CFR part 800).
Sec. 1105.2 Responsibility for Administration of These Rules.
The Director of the Office of Environmental Analysis (Director)
shall have general responsibility for the overall management and
functioning of the Office of Environmental Analysis (OEA). The Director
is responsible for agency NEPA and NHPA implementation and for the
preparation of documents under these rules.
Sec. 1105.3 Information and Assistance.
Information and assistance regarding these rules and the Board's
environmental and historic review processes are available by writing to
the Surface Transportation Board, Office of Environmental Analysis, 395
E Street SW, Washington, DC 20423-0001; visiting the Board's website at
www.stb.gov; or calling the Board's Office of Public Assistance,
Governmental Affairs, and Compliance at (202) 245-0238.
Sec. 1105.4 Definitions.
As used in these regulations, terms have the meanings provided in
section 111 of NEPA (42 U.S.C. 4336e) and in the Advisory Council on
Historic Preservation's regulations implementing the NHPA (36 CFR
800.16). In addition:
(a) Applicant means any person or entity seeking Board action,
whether by application, petition, notice of exemption, or any other
means that initiates a formal Board proceeding. For the purposes of
sections 107(f) and (g) and section 112 of NEPA (42 U.S.C. 4336a(f)-
(g); 42 U.S.C. 4336f), an applicant is a project sponsor.
(b) Attainment Area means an area considered to have air quality as
good as or better than the National Ambient Air Quality Standards for
the criteria pollutants under the Clean Air Act (42 U.S.C. 7401-7675).
(c) Board means the Surface Transportation Board.
(d) Class I Area means an area granted special air quality and
visibility protections under the Clean Air Act and includes certain
national parks, wilderness areas, monuments, and other areas of special
national and cultural significance (42 U.S.C. 7472).
(e) Director in this part means the Director of the Office of
Environmental Analysis.
(f) Effects or Impacts mean changes to the human environment from
the proposed action or alternatives that are reasonably foreseeable and
have a reasonably close causal relationship to the proposed action or
alternatives.
(1) Effects may include ecological (such as the effects on natural
resources and on the components, structures, and functioning of
affected ecosystems), historic, or cultural effects, to the extent the
analysis of such effects can inform the Board's decision. Effects
appropriate for analysis under NEPA may be either beneficial or
adverse, or both, with respect to these values.
(2) A ``but for'' causal relationship is insufficient to make an
agency responsible for a particular effect under NEPA. Effects should
generally not be considered if they are remote in time, geographically
remote, or the product of a lengthy causal chain. Effects do not
include, among other things, those effects that the agency has no
ability to prevent due to the limits of its regulatory authority or
that would occur regardless of the proposed action, or the effects of a
third-party action lacking a reasonably close causal connection or a
legally proximate causal relationship to the action at hand.
(g) Environmental Report means a document prepared by the applicant
pursuant to Sec. 1105.13(a) and filed with the Board that provides
notice of an abandonment and evaluates potential environmental effects.
(h) Mitigation means measures that avoid, minimize, or compensate
for effects caused by a proposed action or the alternatives as
described in an environmental document or record of decision and that
have a nexus to those effects. While NEPA requires consideration of
mitigation, it does not mandate the form or adoption of any mitigation.
Mitigation may include:
(1) Avoiding the impact altogether by not taking a certain action
or parts of an action;
(2) Minimizing effects by limiting the degree or magnitude of the
action and its implementation;
(3) Rectifying the impact by repairing, rehabilitating, or
restoring the affected environment;
(4) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action; or
(5) Compensating for the impact by replacing or providing
substitute resources or environments.
[[Page 14502]]
(i) Nonattainment Area means an area that does not meet one or more
of the National Ambient Air Quality Standards for the criteria
pollutants under the Clean Air Act (42 U.S.C. 7401-7675).
(j) Office of Environmental Analysis (OEA) means the office within
the Board responsible for conducting environmental and historic
reviews, preparing Environmental Assessments (EAs) or Environmental
Impact Statements (EISs), or supervising the work of independent third-
party contractors, and providing technical advice and recommendations
to the Board on environmental and historic preservation matters.
(k) Participating Agency means a federal, state, Tribal, or local
agency participating in an environmental review or authorization of an
action.
(l) Scope means the range of actions, alternatives, and effects to
be considered in an EA or EIS. The scope of an individual EA or EIS may
depend on its relationship to other EAs or EISs.
(m) Solid Waste Rail Transfer Facility is defined at 49 U.S.C.
10908(e)(1)(H).
(n) State Implementation Plan means a federally enforceable plan
for each state which identifies how that state will attain and/or
maintain the primary and secondary National Ambient Air Quality
Standards set forth in the implementing rules of the Clean Air Act (40
CFR part 243).
Sec. 1105.5 Determining When NEPA Applies
(a) NEPA does not apply to a proposed Board action when:
(1) The proposed action does not result in final agency action
under the Administrative Procedure Act (see 5 U.S.C. 704) or other
relevant statute that also includes a finality requirement;
(2) The proposed action is exempted from NEPA by law;
(3) Compliance with NEPA would clearly and fundamentally conflict
with the requirements of another provision of law;
(4) In circumstances where Congress by statute has prescribed
decisional criteria with sufficient completeness and precision such
that the Board retains no residual discretion to alter its action based
on the consideration of environmental factors, then that function of
the Board is nondiscretionary within the meaning of section 106(a)(4)
and/or 111(10)(B)(vii) of NEPA (42 U.S.C. 4336(a)(4) and
4336e(10)(B)(vii), respectively), and NEPA does not apply to the action
in question;
(5) The proposed action is an action for which another statute's
requirements serve the function of the Board's compliance with NEPA; or
(6) The proposed action is not a ``major federal action.'' The
terms ``major'' and ``federal action,'' each have independent force.
NEPA applies only when both of these two criteria are met.
(b) In addition to the illustrative general categories set forth in
section 111(10) of NEPA (42 U.S.C. 4336e(10)), the Board has determined
that the following non-exhaustive list of actions are not subject to
NEPA, because they do not meet the definition of a ``major federal
action:''
(1) A determination that a proposal or action is not within the
Board's jurisdiction.
(2) Rail line improvements, routine maintenance, operational
changes, or other proposals that are not subject to the Board's
licensing authority (e.g., haulage arrangements; improvements or
traffic changes to existing rail lines; construction of multiple tracks
on an existing line; track relocations; and construction, abandonment,
or operation of ancillary (spur) track excepted from Board licensing
under 49 U.S.C. 10906).
(3) Railbanking/interim trail use arrangements under the National
Trails System Act, 16 U.S.C. 1247(d) (see Sec. 1152.29 of this
chapter).
(4) Abandonments that are authorized by a bankruptcy court or for
transfers of rail lines under plans of reorganization under 11 U.S.C.
1166, 1170, and 1172.
(5) Declaratory orders, and interpretations or clarifications of
operating authority.
(6) Substitution of applicant and name changes.
(7) Orders that are purely procedural in nature.
(8) Initiation and termination of freight service under modified
certificates issued under part 1150 of this chapter.
Sec. 1105.6 Determining the Appropriate Level of NEPA Review.
(a) If NEPA applies to a proposed action, the Director will then
determine the appropriate level of NEPA review in the following manner.
As part of its process, OEA will consider the proposed action at hand
and its effects.
(1) If the Board has established, or adopted pursuant to section
109 of NEPA (42 U.S.C. 4336c), a categorical exclusion that covers the
proposed action, the Board will apply the categorical exclusion to the
proposed action, if appropriate, pursuant to Sec. 1105.7(e).
(2) If another agency has already established a categorical
exclusion that covers the proposed action, the Director will consider
whether to adopt that exclusion pursuant to Sec. 1105.7(c) so that it
can be applied to the proposed action at issue.
(3) If the proposed action warrants the establishment of a new
categorical exclusion, or the revision of an existing categorical
exclusion, pursuant to Sec. 1105.7(b), the Director will consider
whether to propose establishing or revising, and if established by the
Board, applying the categorical exclusion to the proposed action
pursuant to Sec. 1105.7(e).
(4) If a categorical exclusion cannot be applied to the proposed
action consistent with paragraphs (a)(1)-(a)(3) of this section, OEA
will consider the proposed action's reasonably foreseeable effects
consistent with paragraph (c) of this section, and the Director will
determine whether to prepare an EA or EIS.
(b) The Director may reclassify or modify environmental review
requirements in this part for any individual proceeding subject to
review under NEPA.
(1) If the Director concludes that, in connection with an action
listed in Sec. 1105.7(a), extraordinary circumstances exist that
indicate a normally excluded agency action is likely to have a
reasonably foreseeable significant effect, the Director will evaluate
the action listed in Sec. 1105.7(a) pursuant to Sec. 1105.7(e).
(2) For actions that typically require an EA (see Sec. 1105.8(b)),
the Director may determine that an EIS is required where the particular
proposal is likely to have significant environmental effects.
Alternatively, for proposals typically requiring an EIS (see Sec.
1105.9(b)), the Director may determine, or an applicant can seek to
demonstrate (by providing OEA with detailed supporting information
after the conclusion of the scoping process), that an EA, rather than
an EIS, would be sufficient because the particular proposal is not
likely to have significant environmental effects or the effects are
unknown.
(c) When considering whether the reasonably foreseeable effects of
the proposed action are significant, OEA will analyze the potentially
affected environment and degree of the effects of the action. OEA may
use any reliable data source and will not undertake new research unless
it is essential to evaluating alternatives and the cost and time of
obtaining it are not unreasonable.
(1) In considering the potentially affected environment, OEA may
consider, as appropriate to the specific action, the affected area
(national, regional, or local) and its resources.
(2) In considering the degree of the effects, OEA may consider the
[[Page 14503]]
following, as appropriate to the specific action: both short- and long-
term effects; and both beneficial and adverse effects.
(d) Unless otherwise specified, the classifications in this section
apply without regard to whether the proposal is initiated by
application, petition, notice of exemption, or any other means that
initiates a formal Board proceeding.
Sec. 1105.7 Categorical Exclusions.
(a) Actions that are Categorically Excluded from Further
Environmental Review. An EA or EIS will normally not be prepared
(although additional review under section of 106 of the NHPA may be
required) for:
(1) Proposals that would not result in substantial changes in the
applicant's operations (i.e., changes that would not exceed the
thresholds established at Sec. 1105.16(d) or (e)), including, but not
limited to, all of the following:
(i) An acquisition, lease, feeder line sale, or operation under 49
U.S.C. 10901, 10902, or 10907, that does not fall under Sec.
1105.8(b)(1);
(ii) An abandonment (not including those proposed under the
Bankruptcy Act (11 U.S.C. 1170)), or discontinuance under 49 U.S.C.
10903, that does not fall under Sec. 1105.8(b)(1);
(iii) A consolidation, merger, or acquisition of control under 49
U.S.C. 11323 or 14303, that does not fall under Sec. 1105.8(b)(1);
(iv) A proceeding pursuant to 49 U.S.C. 24308;
(v) Transactions involving corporate changes (such as a change in
ownership or operator, the issuance of securities, or reorganization),
including grants of authority to hold position as an officer or
director;
(vi) Waivers of lease and interchange regulations; and
(vii) Pooling authorizations, approval of rate bureau agreements,
and approval of shipper antitrust immunity.
(2) Adjudications regarding rates, fares, tariffs, practices, and
service;
(3) Common use of rail terminals and trackage rights;
(4) Discontinuance of trackage rights where the affected line will
continue to be operated within Board jurisdiction;
(5) A rulemaking, policy statement, or legislative proposal that
has no potential for significant environmental effects;
(6) Offers of Financial Assistance to avoid abandonment and
discontinuance under 49 U.S.C. 10904 (see Sec. 1152.27 of this
chapter);
(7) A determination imposing or approving a reciprocal switching
agreement; and
(8) Construction of connecting track within an existing rail right-
of-way or on land owned by the connecting railroads and/or applicant
(see Sec. 1150.36 of this chapter), unless the construction of such
connecting track is not within the Board's licensing authority under 49
U.S.C. 10906 or exempt from review under Sec. 1105.5.
(b) Establishing and Revising Categorical Exclusions.
(1) To establish or revise a categorical exclusion, the Board will
determine that the category of actions normally does not significantly
affect the quality of the human environment. To support this
determination, OEA will:
(i) Develop a written record containing information to substantiate
its determination;
(ii) Consult with CEQ on its proposed categorical exclusion,
including the written record (typically for a period of 30 days) prior
to providing public notice as described in subparagraph (2).
(2) The Board will provide public notice in the Federal Register of
the establishment or revisions of the categorical exclusion and the
location (e.g., website) of availability of the written record.
(c) Adopting Categorical Exclusions from Other Federal Agencies.
(1) Consistent with section 109 of NEPA (42 U.S.C. 4336c), the
Board may adopt a categorical exclusion listed in another agency's NEPA
procedures. To support the adoption of a categorical exclusion, OEA
will:
(i) Identify the categorical exclusion listed in another agency's
NEPA procedures that covers its category of proposed or related
actions;
(ii) Consult with the agency that established the categorical
exclusion to ensure that the proposed adoption of the categorical
exclusion is appropriate;
(2) The Board will provide public notification of the categorical
exclusion that the Board is adopting, including a brief description of
the proposed action or category of proposed actions to which the Board
intends to apply the adopted categorical exclusion.
(3) The Board will document the adoption of the categorical
exclusion in a Board decision publicly available on the Board's
website.
(d) Removal of Categorical Exclusions. The Board may remove a
categorical exclusion from Sec. 1105.7(a).
(1) To support the removal of a categorical exclusion, OEA will:
(i) Develop a written explanation for the removal; and
(ii) Consult with CEQ on its proposed removal of the categorical
exclusion, including the written explanation (typically for a period of
30 days) prior to providing public notice as described in subparagraph
(2).
(2) The Board will provide public notice of the Board's removal of
the categorical exclusion and the written explanation in the Federal
Register. The Board may provide notice of the availability of the
explanation in the Federal Register notice (i.e., as a link to an
agency website) if OEA prepares the explanation as a separate document.
(e) Applying Categorical Exclusions. If a categorical exclusion
covers a proposed agency action, the categorical exclusion will be
applied unless the Director determines that extraordinary circumstances
indicate that a normally categorically excluded agency action is likely
to have a reasonably foreseeable significant adverse effect.
(1) If an extraordinary circumstance is present, the Director will
determine that the categorical exclusion applies to the proposed agency
action and conclude review if either:
(i) The Director determines that, notwithstanding the extraordinary
circumstance, the proposed agency action is not likely to result in
reasonably foreseeable adverse significant effects; or
(ii) The applicant modifies the proposal to avoid those effects.
(2) If the Director determines that it cannot apply the categorical
exclusion to the proposed action, OEA will prepare an EA or EIS, as
appropriate.
(f) Applying Legislative Categorical Exclusions. If the Director
determines that a categorical exclusion established through
legislation, or a categorical exclusion that Congress through
legislation has directed the Board to establish, covers a proposed
agency action, OEA will conclude review consistent with applicable law.
If appropriate, OEA may examine extraordinary circumstances, consult
with the applicant to consider modifying the proposal, or document the
determination that the legislative categorical exclusion applies,
consistent with paragraph (e) of this section and the legal authority
for the establishment of the legislative categorical exclusion.
(g) Reliance on Categorical Exclusion Determinations of Other
Agencies. The Board may also rely on another agency's determination
that a categorical exclusion applies to a particular proposed agency
action if the agency action covered by that determination and the
proposal before the Board are substantially the same, or if the
proposal before the Board is a subset of the agency action covered by
that determination. The Board will document its reliance on another
agency's categorical exclusion in a Board decision.
[[Page 14504]]
Sec. 1105.8 Environmental Assessments.
(a) Standard for Preparing an Environmental Assessment. Unless the
proposed action is excluded from further review under Sec. 1105.7(a),
the Board will prepare an EA when a proposed major federal action does
not have a reasonably foreseeable significant effect on the quality of
the human environment or if the significance of the effect is unknown.
(b) Actions in Which an Environmental Assessment Will Normally be
Prepared. An EA will normally be prepared for:
(1) An acquisition, lease, feeder line sale, operation, abandonment
(not including those proposed under the Bankruptcy Act (11 U.S.C.
1170)), or discontinuance under 49 U.S.C. 10901, 10902, 10903, or
10907, or consolidation, merger, or acquisition of control under 49
U.S.C. 11323 or 14303, if it would:
(i) Result in operational changes or traffic diversions that would
exceed any of the thresholds established in Sec. 1105.16(d) or (e);
(ii) Include actions that would normally require preparation of an
EA or EIS (such as construction of a new rail line); or
(iii) In the case of abandonment, if salvage will occur prior to
consummation or entry into an interim trail use agreement.
(2) A rulemaking, policy statement, or legislative proposal that
has the potential to cause significant environmental effects; and
(3) Any other proceeding not listed in Sec. Sec. 1105.7(a) or
1105.9(b).
(c) Environmental Assessments in Proceedings Not Involving an
Abandonment or Discontinuance.
(1) Prefiling Notice. Where an EA is required or contemplated, the
applicant must comply with the requirements of Sec. 1105.9(c). The
Director may waive or modify this requirement where appropriate.
(2) Scoping Process. OEA uses an early and open process to
determine the scope of issues for analysis in the EA, including
identifying substantive issues that meaningfully inform the
consideration of environmental effects. Scoping may begin as soon as
practicable after the proposal for action is sufficiently developed for
consideration. During the process of preparing an EA, OEA may obtain
the comments of any federal agency that has jurisdiction by law or
special expertise with respect to any environmental impact of the
action or project at hand or is authorized to develop and enforce
environmental standards that govern the action or project at hand; and
appropriate state, Tribal, and local agencies that are authorized to
develop and enforce environmental standards. When appropriate, OEA may
conduct a site visit as part of scoping.
(3) Determination to Prepare an Environmental Assessment. Based on
the record, including any input from federal, state, and local agencies
and Tribes, the Director will determine whether an EA is appropriate
and notify the applicant in writing of the decision.
(4) Notice of Intent. Where appropriate, OEA may publish a Notice
of Intent or other environmental review document on the Board's website
during the review process. The Notice of Intent may include: the
purpose and need for the proposed action; a preliminary description of
the proposed action and alternatives; a summary of expected effects; a
summary of anticipated reviews, consultations, permits and
authorizations; a description of the scoping process; contact
information for the person in the agency responsible for managing the
environmental review process; and identification of any cooperating and
participating agencies.
(5) Publishing Draft or Preliminary Documents. During the process
of preparing an EA, OEA may publish draft or preliminary documents on
the Board's website as in its judgment is needed to fulfill its
responsibilities under NEPA and this part.
(6) Additional Comment During the Environmental Assessment Process.
During the process of preparing an EA, OEA may request the comments of:
state, Tribal, or local governments that may be affected by the
proposed action; the applicant; and the public, including by
affirmatively soliciting comments in a manner designed to inform those
persons or organizations who may be interested in or affected by the
proposed action.
(7) Content of Environmental Assessment. An EA will contain, where
appropriate, analysis of the resource areas listed in Sec. 1105.16,
the purpose and need for the proposed action based on the goals of the
applicant and the Board's statutory authority, a reasonable range of
alternatives to the proposal to the extent required by section
102(2)(H) of NEPA, the reasonably foreseeable effects of the proposed
action and the alternatives considered, and recommended mitigation
measure(s), if any, for consideration by the Board. The scope of the
analysis will be defined in accordance with Sec. 1105.9(i)(1) and (2).
(8) Page Limits. In accordance with section 107(e)(2) of NEPA, an
EA will not exceed 75 pages (excluding citations and appendixes). The
appendices, formatting, and certification requirements of Sec.
1105.9(j)(1), (2), and (3) are incorporated by reference.
(9) Deadlines. In accordance with section 107(g)(1)(B) of NEPA, an
EA will be published on the Board's website not later than one year
after the Director makes a determination pursuant to paragraph (c)(3)
of this section that an EA is appropriate, unless the Director
determines that OEA is unable to meet that deadline. If OEA is unable
to meet that deadline, the Director will establish a new deadline, in
consultation with the applicant, to provide only so much additional
time as is necessary to complete the EA.
(i) Section 112. An EA for which a fee is paid under section 112 of
NEPA (42 U.S.C. 4336f) shall be completed not later than 180 days after
date on which the fee is paid.
(ii) Certification Regarding Deadlines. When the EA is published,
the Director will certify (and the certification will be incorporated
into the EA) that the resulting EA represents a good-faith effort to
fulfill NEPA's requirements within the congressional timeline; that
such effort is substantially complete; that in OEA's expert opinion it
has thoroughly considered the factors mandated by NEPA; and that in
OEA's judgment, the analysis contained therein is adequate to inform
the Board's final decision regarding the proposed federal action.
(10) Notice of Availability. When an EA is completed, OEA will
provide notice with a website link to the electronic document, as
appropriate, to all participants in the environmental and historic
review, as well as appropriate federal, state, and local agencies,
federally recognized Tribes, and any person requesting the document.
The notice will explain how to request a paper copy of the document, if
needed due to economic or other hardship. The full document will be
available on the Board's website.
(d) Environmental Assessments in Abandonment and Discontinuance
Proceedings. Where an EA is to be prepared under paragraph (b)(1) of
this section, after receiving any applicant-prepared environmental and
historic reports required under Sec. Sec. 1105.13 and 1105.14, OEA
will prepare the EA.
(1) In general and as appropriate with respect to the specific
proceeding, the following federal, state, and local agencies, and other
entities will be consulted:
(i) Appropriate regional office(s) of the U.S. Environmental
Protection Agency;
(ii) Appropriate regional office(s) and field office(s) of the U.S.
Fish and Wildlife Service;
[[Page 14505]]
(iii) Appropriate regional office(s) of the National Oceanic and
Atmospheric Administration (NOAA) Fisheries;
(iv) The Regulatory Division of the appropriate district office(s)
of the U.S. Army Corps of Engineers;
(v) Appropriate district office(s) of the U.S. Coast Guard;
(vi) Appropriate regional office(s) of the National Park Service;
(vii) Appropriate state office(s) of the Natural Resources
Conservation Service;
(viii) National Geodetic Survey;
(ix) State environmental protection agency for each state involved;
(x) State department of transportation for each state involved;
(xi) Coastal zone management agency for each state involved where
the proposed action would affect land or water uses within a state-
designated coastal zone;
(xii) Appropriate regional office(s) of the Federal Emergency
Management Agency;
(xiii) Appropriate official for each county or comparable political
entity in which the proposed action is located;
(xiv) Appropriate official for each federally recognized Tribe with
current or ancestral connections to the land in the county(s) in which
the proposed action is located; and
(xv) Any other agencies whose input may be needed for the
environmental review process under the circumstances of the case.
(2) OEA will issue an EA that complies with the requirements in
Sec. 1105.8(c)(7), (8), and (9) and publish it on the Board's website.
(3) The EA will contain, where appropriate, analysis of the
resource areas listed in Sec. 1105.16, and any recommended mitigation
measure(s) for consideration by the Board.
(4) Unless otherwise directed, comments may be submitted within 30
days of publishing the EA (15 days in the case of a notice of exemption
for abandonment under Sec. 1152.50 of this chapter). Comments will be
addressed, as appropriate, in the Board's decision.
Sec. 1105.9 Environmental Impact Statements.
(a) Standard for Preparing an Environmental Impact Statement. OEA
will prepare an EIS when the proposed action does not fall under Sec.
1105.5 and has a reasonably foreseeable significant effect on the
quality of the human environment. Whether an impact rises to the level
of ``significant'' is a matter of OEA's expert judgment.
(b) Actions in Which an Environmental Impact Statement Will
Normally be Prepared. An EIS will normally be prepared for:
(1) Rail construction proposals other than those described in Sec.
1105.7(a) or those reclassified pursuant to Sec. 1105.6(b); and
(2) Requests for solid waste rail transfer facility land-use
exemptions under the Clean Railroads Act (see 49 U.S.C. 10501(c)(2)(B)
and 10908-10910).
(c) Prefiling Notice. Where an EIS is required or contemplated, the
applicant must provide OEA with written notice of its forthcoming
proposal at least 45 days prior to filing an application, petition, or
notice of exemption with the Board. For rail construction proposals,
the prefiling notice must include the information required in Sec.
1105.16(l).
(1) Waiver. The Director may waive or modify this requirement where
appropriate. Requests for waiver of the prefiling notice required under
paragraph (c) of this section must describe the anticipated
environmental effects of the proposed action, include the information
required in Sec. 1105.16(l) if the proposal is a rail construction,
and explain why the 45-day lead period cannot be met.
(2) Section 112. In the event an applicant elects to proceed under
section 112 of NEPA (42 U.S.C. 4336f), the applicant shall file its
Prefiling Notice and consult with OEA prior to any submission to the
Council on Environmental Quality under section 112(a)(1).
(d) Scoping Process. OEA uses an early and open process to
determine the scope of issues for analysis in the EIS, including
identifying substantive issues that meaningfully inform the
consideration of environmental effects. Scoping may begin as soon as
practicable after the proposal for action is sufficiently developed for
consideration. During the process of preparing an EIS, OEA will obtain
the comments of any federal agency that has jurisdiction by law or
special expertise with respect to any environmental impact of the
action or project at hand or is authorized to develop and enforce
environmental standards that govern the action or project at hand; and
appropriate state, Tribal, and local agencies that are authorized to
develop and enforce environmental standards. When appropriate, OEA may
conduct a site visit as part of scoping.
(e) Determination to Prepare an Environmental Impact Statement.
Based on the record, including any input from federal, state, and local
agencies and Tribes, the Director will determine whether to prepare an
EIS and notify the applicant in writing of the decision.
(f) Notice of Intent. OEA will publish a Notice of Intent to
prepare an EIS on the Board's website and in the Federal Register.
(1) Content. The Notice of Intent shall include: the purpose and
need for the proposed action; a preliminary description of the proposed
action and alternatives; a summary of expected effects; a summary of
anticipated reviews, consultations, permits and authorizations; the
expected timeline for the environmental review; a description of the
public scoping process; contact information for the person in the
agency responsible for managing the environmental review process; and
identification of any cooperating and participating agencies. The
notice may preliminarily identify and eliminate from detailed study
issues that are not relevant and do not bear on the proposed action or
its effects or have been covered by prior environmental reviews.
(2) Public Comment on the Notice of Intent. The Notice of Intent
will include a request for public comment on alternatives or potential
effects and on relevant information, studies, or analyses with respect
to the proposed action. Comments should be as specific as possible, and
commenters are encouraged to file any comments with the Board
electronically. Where appropriate, the Notice of Intent may also
include notice of a meeting(s) open to interested members of the
public.
(g) Publishing Draft or Preliminary Documents. During the process
of preparing an EIS, OEA may publish on the Board's website draft or
preliminary documents as in its judgment is needed to fulfill its
responsibilities under NEPA and this part.
(h) Additional Comment During the Environmental Impact Statement
Process. During the process of preparing an EIS, OEA may request the
comments of: state, Tribal, or local governments that may be affected
by the proposed action; the applicant; and the public, including by
affirmatively soliciting comments in a manner designed to inform those
persons or organizations who may be interested in or affected by the
proposed action.
(i) Content of Environmental Impact Statement. An EIS will contain
each of the elements required in section 102(2)(C) of NEPA (42 U.S.C.
4332(2)(C)). In considering the reasonably foreseeable environmental
effects of the proposed action, the statement will include, where
appropriate, analysis of the resource areas listed in Sec. 1105.16. In
addition, the statement will include the purpose and need for the
proposed action based on the goals of the applicant and the Board's
statutory authority, and
[[Page 14506]]
recommended mitigation measure(s), if any, for consideration by the
Board. An EIS will also address any substantive comments received.
(1) Scope of Analysis. OEA will focus its analysis on whether the
environmental effects of the proposed action or project at hand are
significant. Similarly, OEA will document where and how it drew a
reasonable and manageable line relating to its consideration of any
environmental effects from the proposed action or project at hand that
extend outside the geographical territory of the project or might
materialize later in time.
(2) Proportionate analysis. OEA will discuss effects in proportion
to their significance. With respect to issues that are not of a
substantive nature and do not meaningfully inform the consideration of
environmental effects and the resulting decision on how to proceed,
there will be no more than the briefest possible discussion to explain
why those issues are not substantive and therefore not worthy of any
further analysis. The analysis will be concise and no longer than
necessary to comply with NEPA in light of the congressionally mandated
page limits and deadlines.
(j) Page Limits. In accordance with section 107(e)(1) of NEPA, an
EIS will not exceed 150 pages (excluding citations and appendices) and,
in cases of extraordinary complexity, will not exceed 300 pages
(excluding citations and appendices). OEA will determine at the
earliest possible stage of preparing an EIS whether the conditions for
exceeding the page limit are present.
(1) Appendices. Appendices are to be used for voluminous materials,
such as scientific tables, collections of data, statistical
calculations, and the like, which substantiate the analysis provided.
Appendices are not to be used to provide additional substantive
analysis, because that would circumvent the congressionally mandated
page limits.
(2) Formatting. EISs will be formatted for an 8.5'' x 11'' page
with one-inch margins using a word processor with 12-point
proportionally spaced font, single spaced. Footnotes may be in 10-point
font. Such size restrictions do not apply to explanatory maps,
diagrams, graphs, tables, and other means of graphically displaying
quantitative or geospatial information, although pages containing such
material do count towards the page limit. When an item of graphical
material is larger than 8.5'' x 11'', each such item will count as one
page.
(3) Certification as to Page Limits. The breadth and depth of
analysis will be tailored to ensure that the environmental analysis
does not exceed these page limits. The Director will certify (and the
certification will be incorporated into the EIS) that the EIS has
considered the factors mandated by NEPA and that the EIS represents
OEA's good-faith effort to prioritize documentation of the most
important considerations required by NEPA within the congressionally
mandated page limits; that this prioritization reflects OEA's expert
judgment; and that any considerations addressed briefly or left
unaddressed were, in OEA's judgment, comparatively not of a substantive
nature to meaningfully inform the decisionmaker's consideration of
environmental effects and the resulting decision on how to proceed.
(k) Deadlines. In accordance with section 107(g)(1)(A) of NEPA, an
EIS will be published on the Board's website not later than two years
after the Director makes a determination pursuant to paragraph (e) of
this section to prepare the EIS, unless the Director determines that
OEA is unable to meet that deadline. If OEA is unable to meet that
deadline, the Director will establish a new deadline, in consultation
with the applicant, to provide only so much additional time as is
necessary to complete the EIS.
(1) Section 112. An EIS for which a fee is paid under section 112
of NEPA (42 U.S.C. 4336f) shall be completed not later than 1 year
after the date of publication of the Notice of Intent to prepare the
EIS.
(2) Certification as to Deadlines. When the EIS is published, the
Director will certify (and the certification will be incorporated into
the EIS) that the resulting EIS represents a good-faith effort to
fulfill NEPA's requirements within the congressional timeline; that
such effort is substantially complete, and that in OEA's expert opinion
it has thoroughly considered the factors mandated by NEPA; and that in
OEA's judgment, the analysis contained therein is adequate to inform
the Board's final decision regarding the proposed federal action.
(l) Notice of Availability. When an EIS is completed, OEA will
provide notice with a website link to the electronic document, as
appropriate, to all participants in the environmental and historic
review, as well as appropriate federal, state, and local agencies,
federally recognized Tribes, and any person requesting the document.
The notice will explain how to request a paper copy of the document, if
needed due to economic or other hardship. The Board will file EISs with
the Environmental Protection Agency, Office of Federal Activities, for
publication in the Federal Register. The full document will be
available on the Board's website.
Sec. 1105.10 Supplements to Environmental Assessments and
Environmental Impact Statements.
(a) When Supplements Will Be Prepared. An EA or EIS will be
supplemented when:
(1) The applicant makes substantial changes to the proposed action
that are relevant to environmental effects; or
(2) The Director determines, in his or her discretion, that there
are substantial new circumstances or information relevant to
environmental effects.
(b) Process for Issuing Supplements. A Supplemental EA or
Supplemental EIS will be prepared and published in the same manner as
the original document, as appropriate, except that scoping may not be
conducted.
(c) Determining That a Supplement Is Not Required.
(1) If changes to a proposed action or new circumstances are
identified after an EA or EIS has been issued, and the Director
concludes that those changes or new circumstances are not substantial
and do not warrant the preparation of a supplement, those findings will
be documented.
(2) If changes to a proposed action or new circumstances are
identified subsequent to completion of OEA's review and findings but
prior to OEA issuing the EA or EIS, and the Director concludes that
those changes or new circumstances are not substantial and do not
warrant the preparation of a supplement, the Director will summarize
those findings in the EA or EIS.
Sec. 1105.11 Lead, Cooperating, and Participating Agencies.
(a) Lead Agency. The Board will generally act as the lead agency in
the environmental review process when the proposed action requires
Board authorization and is not federally funded. The designation and
the role of the lead agency is subject to section 107(a) of NEPA.
(1) In many instances, a proposed action is undertaken in the
context which entails activities or decisions undertaken by other
federal agencies (e.g., where multiple federal authorizations or
analyses are required with respect to an applicant's project). These
major federal actions are the responsibility of the particular agency,
but to the extent that the proposed action will require action by more
than one agency under NEPA, the multiple agencies involved shall
determine which of them will be the lead agency
[[Page 14507]]
pursuant to the criteria identified in section 107(a)(1)(A) of NEPA (42
U.S.C. 4336a(a)(1)(A)).
(2) When serving as the lead agency, the Board is responsible for
completing the NEPA process and will determine the scope of the project
at hand.
(3) When a joint lead relationship is established pursuant to
section 107(a)(1)(B) of NEPA (42 U.S.C. 4336a(a)(1)(B)), the Board and
the other joint lead agency or agencies are collectively responsible
for completing the NEPA process.
(b) Cooperating Agency. Pursuant to section 107(a)(3) of NEPA, any
qualifying agency may be designated as a cooperating agency in the
environmental review process.
(c) Participating Agency. Any interested federal, state, Tribal, or
local agency may be a participating agency in the environmental review
process.
Sec. 1105.12 Third-Party Contractors.
Except when documents are prepared under Sec. 1105.15, an
applicant should retain an independent third-party contractor to assist
OEA in the preparation of any necessary environmental or historic
documents. The applicant may provide input on the selection of the
third-party contractor, but the Director retains the authority to
approve or disapprove the selection of a third-party contractor. The
third-party contractor approved by the Director will be required to
execute a disclosure statement certifying that it has no financial or
other interest in the outcome of the proposal (or other disqualifying
conflict of interest). The third-party contractor acts on behalf of the
Board and works under OEA's sole direction, supervision, and control in
collecting, analyzing, and presenting any information required for the
environmental review of a proposed action. OEA reviews, verifies, and
approves all information and documentation provided by third-party
contractors. A list of permissible third-party contractors is available
on the Board's website at www.stb.gov.
Sec. 1105.13 Environmental Reports for Abandonments and
Discontinuances.
(a) An applicant seeking authority to abandon and/or discontinue a
rail line pursuant to part 1152 of this chapter that is not
categorically excluded from further environmental review under Sec.
1105.7(a) must prepare an environmental report, which shall be sent to
the agencies specified in Sec. 1105.8(d)(1) at least 45 days prior to
filing the report with the Board with the transmittal letter provided
in Appendix A to this part.
(b) The environmental report must be filed with the Board at the
same time as the application, petition, or notice of exemption.
Applicants are encouraged to file environmental reports with the Board
electronically.
(c) When the environmental report is filed with the Board, it must
include all written communication submitted to and received from
consulting agencies, including letters, emails, and attachments.
Substantive oral communications must be documented by date with a
written summary of the discussion, including name, telephone number,
and/or email, and, if applicable, affiliation and title of each
participant. Any communication occurring after an applicant's filing of
the environmental report must also be promptly provided to OEA.
Environmental reports that include consulting agency communications
that predate the filing date of the application, petition, or notice of
exemption by more than two years will be rejected. Environmental
reports filed with little or no consulting agency responses may also be
rejected.
(d) In its environmental report, the applicant must certify that it
consulted with the agencies listed in Sec. 1105.8(d)(1) and that it
sent the environmental report to those agencies at least 45 days before
filing its application, petition, or notice of exemption with the
Board. An applicant seeking authority to abandon and/or discontinue a
rail line pursuant to part 1152 of this chapter that is not
categorically excluded from further environmental review under Sec.
1105.7(a) must also certify that it has published a newspaper notice
that alerts the public of the proposed abandonment pursuant to the
requirements set forth at Sec. 1105.19. Newspaper notice requirements
for abandonment application cases are set forth at Sec. Sec. 1152.20
and 1152.21 of this chapter.
(e) Environmental reports shall include the content described in
Sec. 1105.16, unless the applicant explains why any reporting
requirement is not applicable.
(f) Conclusions regarding potential environmental effects must be
supported by specific information in the environmental report, and a
copy of, or appropriate citation to, any reference materials relied
upon in the report must also be provided. Environmental reports lacking
all the necessary information may be rejected.
0
6. Redesignate Sec. 1105.8 as Sec. 1105.14.
0
7. Add new Sec. Sec. 1105.15 through 1105.20 to read as follows:
Sec. 1105.15 Applicant-Prepared Environmental Assessments and
Environmental Impact Statements.
(a) Except in the case of an abandonment proposal, an applicant may
submit a written request for approval from the Director to prepare an
EA or EIS under the supervision of OEA. In such cases, the applicant
must consult with OEA and obtain approval from the Director prior to
preparing any EA or EIS, or the EA or EIS will be rejected by the
Director.
(b) The applicant's request for approval will include the names and
qualifications of persons preparing the EA or EIS or sections of the
document and include disclosure statements that certify that the
applicant's contractor has no financial or other interest in the
outcome of the proposed action.
(c) In reviewing the request, the Director will consider whether:
the applicant and the applicant's contractor have the expertise
necessary to prepare an EA or EIS that meets the requirements of Board
regulations, NEPA, and related environmental laws; OEA has the
resources necessary to independently evaluate the documentation;
Government-to-Government consultations with federally recognized Tribes
would be needed; and any other relevant project-specific
considerations.
(d) The following procedures will apply in proceedings where the
Director grants an applicant approval to prepare an EA or EIS under the
supervision of OEA:
(1) Content. An applicant-prepared EA or EIS must contain the
information and/or analysis identified in Sec. 1105.16, unless the
applicant explains why any requirement is not applicable.
(2) Page Limits. An applicant-prepared EA or EIS must conform to
the page limits in Sec. Sec. 1105.8(c)(8) and 1105.9(j). See 42 U.S.C.
4336a(e).
(3) Deadlines. As part of the approval, the Director will establish
mandatory deadlines for the applicant to provide the EA or EIS to OEA
for review and approval prior to publication by OEA. The Director will
set the deadlines to ensure compliance with Sec. Sec. 1105.8(c)(9) and
1105.9(k). See 42 U.S.C. 4336a(g).
(4) Independent Evaluation. OEA will independently evaluate the EA
or EIS and will take responsibility for its contents. If, at any point
during the environmental review process, the Director determines that
the applicant-prepared EA or EIS does not meet the requirements of
these regulations; is not adequate to meet the requirements of NEPA,
related environmental laws; and/or the applicant fails to meet the
deadlines discussed in paragraph (d)(3)
[[Page 14508]]
of this section, the EA or EIS may be rejected; approval for applicant-
prepared EA or EIS may be revoked; and the applicant may be required to
pay a third-party contractor to work under OEA's exclusive control and
direction as provided for in Sec. 1105.12 to prepare an EA or EIS
consistent with these regulations and the requirements of NEPA.
(5) Section 112. Section 112 of NEPA (42 U.S.C. 4336f) establishes
a separate process under which the EA or EIS may be prepared under an
expedited deadline. In the event that an applicant elects to proceed
under section 112(b)(2) of NEPA, an applicant-prepared EA or EIS
remains subject to the requirements of paragraphs (d)(1), (d)(2),
(d)(3), and (d)(4) of this section and any other applicable
requirements for applicant-prepared documents in these regulations.
Sec. 1105.16 Content in Environmental Assessments and Environmental
Impact Statements.
An EA or EIS will contain the following information and/or
analysis, as applicable:
(a) Proposal.
(1) Description of the proposed action, including commodities
transported; any possible changes in current operations; any current
traffic on the line; the planned disposition (if any) of the line; land
disturbance within and outside the right-of-way; buildings, bridges, or
other structures (to include tracks and ties in abandonment proposals)
to be removed.
(2) Accurate maps, sufficiently detailed to show the location of
the rail line (including the right-of-way), longitude and latitude
coordinates for beginning and end point milepost markers, bridges,
waterways and water bodies, roads and road crossings, and any other
relevant features and resources in the vicinity of the proposed action.
Digital maps are strongly encouraged (e.g., Shapefile, KML, or KMZ).
Standalone or static maps must be submitted in computer-readable,
electronic formats (e.g., GIF, JPEG, or PDF).
(b) Transportation System. Description of the anticipated effects
of the proposed action on regional or local transportation systems and
patterns. Estimates of the amount of traffic likely to be diverted to
other transportation systems or modes as a result of the proposed
action, if any. If rail-to-truck diversions are expected to occur,
identification of the roadways likely to be impacted, the annual
average daily traffic on those roadways, estimates of the potential
increase in daily roadway traffic as a result of the proposed action,
and descriptions of any potential roadway capacity constraints.
(c) Land Use.
(1) Based on consultation with local and regional planning agencies
or a review of the official planning documents prepared by such
agencies, assessment of whether the proposed action is consistent with
existing land use plans. Descriptions of any inconsistencies.
(2) Based on consultation with the Natural Resources Conservation
Service, descriptions of the effect of the proposed action on any prime
agricultural land.
(3) If the proposed action would affect land or water resources
within a designated coastal zone, documentation of the notification of
the relevant state, and a consistency review and certification if
required under Coastal Zone Management Act (16 U.S.C. 1451-1468) and
its implementing regulations.
(4) Based on consultation with the Federal Emergency Management
Agency (FEMA), or FEMA's online flood hazard mapping created under the
National Flood Insurance Program, descriptions of whether the proposed
action would occur within a designated flood zone.
(5) Descriptions of erosion mitigation practices to be used during
activities associated with the proposed action.
(d) Energy.
(1) Descriptions of the effect of the proposed action on energy
resources, i.e., increase or decrease in overall energy efficiency of
rail operations.
(2) Measurements of the proposed action's resulting net change in
energy consumption and the data and methodology used if the proposed
action would cause diversions from rail to truck of more than:
(i) 1,000 rail carloads a year, or
(ii) An average of 50 rail carloads per mile per year for any part
of the affected line.
(e) Air.
(1) Measure anticipated effect on air emissions (for the air
quality control region in which the proposed action is located) if the
proposed action is located in an attainment area and would result in:
(i) An increase in rail traffic of at least 100 percent (measured
in gross ton miles annually) or an increase of at least eight trains a
day on any segment of rail line affected by the proposed action,
(ii) An increase in rail yard activity of at least 100 percent
(measured by carload activity), or
(iii) An average increase in truck traffic of more than 10 percent
of the average daily traffic or 50 vehicles a day on any affected road
segment.
(iv) For proposed actions that involve reinstituting service over
an existing rail line that currently has no traffic, only the eight-
train a day provision in paragraph (e)(1)(i) of this section applies.
(2) Measure anticipated effect on air emissions (for the air
quality control region in which the proposed action is located), and
determination of whether any expected increase would be within the
parameters established by the relevant State Implementation Plan, if
the proposed action affects a class I or nonattainment area and would
result in:
(i) An increase in rail traffic of at least 50 percent (measured in
gross ton miles annually) or an increase of at least three trains a day
on any segment of rail line,
(ii) An increase in rail yard activity of at least 20 percent
(measured by carload activity), or
(iii) An average increase in truck traffic of more than 10 percent
of the average daily traffic or 50 vehicles a day on a given road
segment.
(iv) For proposed actions that involve reinstituting service over
an existing rail line that currently has no traffic, only the three-
train a day provision in paragraph (e)(2)(i) of this section applies.
(f) Noise and Vibration. If any of the thresholds identified in
paragraph (e)(1) of this section are exceeded, environmental noise and
vibration analysis, e.g., modeling and measurements, will be conducted
to measure any effects resulting from the proposed action.
(g) Safety.
(1) Describe any environmental effects of the proposed action on
safety, including at railroad grade crossings.
(2) If hazardous materials are expected to be transported,
identify:
(i) The materials and quantity;
(ii) The frequency of service;
(iii) Whether chemicals would be transported that, if mixed, could
react to form more hazardous compounds;
(iv) Safety practices (including any speed restrictions);
(v) The applicant's safety record, to the extent available, with
respect to derailments, accidents, and hazardous spills; and
(vi) Procedures for preventing and controlling spills.
(3) If there are any known hazardous waste sites or sites where
there have been known hazardous spills on the right-of-way, identify
the location of those sites and the types of hazardous materials
involved.
(h) Biological Resources.
(1) Based on consultation with the NOAA Fisheries and consultation
with the U.S. Fish and Wildlife Service or reference to the U.S. Fish
and Wildlife Service's electronic database(s), a statement of:
[[Page 14509]]
(i) Whether any federally listed threatened or endangered species
or areas designated as a critical habitat are present in or adjacent to
the area of the proposed action and how that determination was made;
and
(ii) Whether the proposed action is likely to adversely affect
federally listed threatened or endangered species or areas designated
as a critical habitat, and if so, describe the effects.
(2) Statement of whether wildlife sanctuaries or refuges, national
or state parks, or forests would be affected by the proposed action
and, if so, description of the effects.
(i) Water.
(1) Based on consultations with federal and state water quality
officials, explanation of whether the proposed action would be
consistent with applicable water quality standards, and description of
any inconsistencies.
(2) Based on consultation with the U.S. Army Corps of Engineers,
explanation of whether any permits under section 404 of the Clean Water
Act (33 U.S.C. 1344) or section 10 of the Rivers and Harbors Act (33
U.S.C. 401) would be required for the proposed action.
(3) Statement of whether any waters of the United States (including
lakes, streams and wetlands), navigable waterways, or 100-year flood
plains would be affected by the proposed action, and if so, description
of the effects.
(4) Statement of whether permits under section 402 of the Clean
Water Act (33 U.S.C. 1342) would be required for the proposed action.
(j) Cultural Resources. If historic review is required, a section
106 review under the implementing regulations (36 CFR part 800) for the
NHPA must be conducted.
(k) Voluntary Mitigation. Description of any voluntary mitigation
measures proposed by an applicant.
(l) Additional Information in Rail Construction Cases. In rail
construction cases, the EA or EIS must also include the following:
(1) Alternatives and Rail Operations.
(i) Description of any reasonable alternative routes considered,
and a no-build alternative, and explanation of why the alternative
routes were not selected as the preferred route. Description of new
access roads (if any) anticipated to be needed during rail
construction, and statement of whether those access roads would be
temporary or permanent.
(ii) Detailed description of the rail operations to be conducted on
the line, including estimates of freight (carloads and tonnage) to be
transported, commodities to be transported (if known), the anticipated
daily and annual number of train movements, number of cars per train,
types of cars, motive power requirements, proposed speeds, labor force,
and proposed maintenance-of-way practices.
(2) Safety. If hazardous materials are expected to be transported,
description of procedures that would be used for storing and fueling
construction equipment.
(3) Energy. If the proposed action would cause any diversion of
traffic from rail to truck, the EA or EIS will include the information
required in paragraph (d)(2) of this section.
(4) Air.
(i) Description of potential air quality effects and measurement of
the anticipated effect on air emissions (for the air quality control
region in which the proposed action is located) from:
(A) Construction activities;
(B) Idling vehicles delayed at public and/or private at-grade
crossings; and
(C) Reasonably foreseeable train operations, including changes in
operations on existing rail lines that would be impacted by the
proposal.
(ii) If the proposed action would affect a class I or nonattainment
area, then the EA or EIS will include the anticipated effect on air
emissions and determine whether any expected increased emissions would
be within the parameters established by the relevant State
Implementation Plan.
(5) Noise and Vibration. Regardless of the number of trains
expected to operate over a proposed rail line, environmental noise and
vibration analysis will be conducted to measure any effects resulting
from the proposed action.
(m) Additional Information for Solid Waste Rail Transfer Facility
Land-Use Exemptions. An EA or EIS for an applicant seeking a land-use
exemption permit under the Clean Railroads Act, 49 U.S.C.
10501(c)(2)(B), 10908-10910, will also include the information required
in paragraph (l) of this section, where applicable, and in Sec.
1155.24 of this chapter.
(n) Additional Information. The Director may require applicants to
submit additional information regarding the environmental effects of
the proposed action.
Sec. 1105.17 Board Decisions.
(a) Decision. As part of its final decision making in a proceeding
in which an environmental and/or historic review was conducted, the
Board will consider the entire environmental and historic record and
issue a decision. The decision will be posted on the Board's website.
(b) Conditions. The Board will decide what, if any, environmental
and historic conditions to impose upon the authority it is issuing,
except with respect to environmental and historic conditions in
proceedings under 49 CFR 1152.50 and historic requirements imposed
pursuant to agreements signed under Sec. 1011.7(c)(7)(ii) of this
chapter, based on the environmental and historic record and its
substantive responsibilities under the ICC Termination Act of 1995,
Public Law 104-88, as amended. The Board may withhold a decision, stay
the effective date of an exemption, or impose appropriate conditions
upon any authority granted, when an environmental or historic
preservation issue has not yet been resolved.
(1) The applicant shall comply with all conditions imposed by the
Board and shall ensure that any party acting on its behalf (such as a
construction contractor/subcontractor or rail salvage company) also
complies with the conditions imposed by the Board.
(2) Compliance with environmental conditions and historic
conditions imposed by the Board in rail abandonment and discontinuance
cases is not required with respect to any portion of a line covered by
an interim trail use agreement entered into pursuant to the National
Trails System Act, 16 U.S.C. 1247(d) and Sec. 1152.29 of this chapter,
for the duration of the agreement. If the interim trail use condition
subsequently is vacated, any environmental or historic conditions
previously imposed by the Board that are barriers to consummation must
be satisfied before abandonment may be completed.
(3) If there is consistency review under 15 CFR 930.54, the Board
and the applicant will comply with the consistency certification
procedures of 15 CFR part 930. Also, the Board will withhold a
decision, stay the effective date of a decision, or impose a condition
delaying consummation of the action, until the applicant has submitted
a consistency certification and either the state has concurred in the
consistency certification, or an appeal to the Secretary of Commerce
(under 15 CFR 930.64(e)) is successful.
(c) Finding of No Significant Impact.
(1) When the EA is complete, and the Board is able to determine
that a proposed action would have no significant environmental effects
(with or without mitigation), the Board will issue a Finding of No
Significant Impact (FONSI) setting forth the basis for its
determination, which will typically be included in the Board's
decision.
[[Page 14510]]
(2) In abandonment exemption proceedings under 49 CFR 1152.50, if
no environmental or historic preservation issues are raised by any
party or identified by OEA in its independent review, the Director will
issue a decision pursuant to Sec. 1011.7(c)(6) of this chapter that
includes a FONSI indicating that the environmental and historic record
has formally been considered. The Director's decision will be posted on
the Board's website.
(3) The FONSI will:
(i) Incorporate the EA by reference;
(ii) Document the reasons why the Board or the Director has
determined that the proposed action or project at hand will not have a
significant effect on the quality of the human environment;
(iii) State the authority for any mitigation that the Board has
adopted and any applicable monitoring or enforcement provisions. If the
Board finds no significant effects based on mitigation, the mitigated
finding of no significant impact will state any mitigation requirements
enforceable by the agency or voluntary mitigation commitments that will
be undertaken to avoid significant effects;
(iv) Identify any other documents related to the finding of no
significant impact; and
(v) State that an EIS will not be prepared for the proposed action
or project at hand, concluding the NEPA process for that action.
Sec. 1105.18 Emergencies.
Where emergency circumstances make it necessary to take an action
with reasonably foreseeable significant environmental effects without
observing the provisions of these regulations, the Board will consult
with the Council on Environmental Quality about alternative
arrangements for compliance with NEPA. A request for emergency
consideration may be filed in the formal docket, and the Board will
determine whether the circumstances merit alternative arrangements for
compliance with NEPA.
Sec. 1105.19 Transmittal Letter for Environmental and Historic
Reports.
When an environmental report is filed with the Board, the applicant
shall certify to the Board that it has sent a copy of the report to the
agencies and entities identified in Sec. 1105.8(d)(1) 45 days before
filing. When a historic report is filed with the Board, the applicant
shall certify to the Board that it has sent a copy of the report to the
agencies and entities identified in Sec. 1105.14(c) at least 20 days
before filing. The sample letter contained in Appendix A to this part
should be used in transmitting the environmental and historic reports
to the applicable agencies and entities identified in Sec.
1105.8(d)(1) and Sec. 1105.14(c).
Appendix A to Part 1105--Sample Transmittal Letter for Applicant's
Report
Re: (Name of proposed action and Board docket number)
On or about (date), we expect to file with the Surface
Transportation Board a (type of proceeding) seeking authority to ( )
located in (city or town) (state). Attached is an environmental
report and/or historic report describing the proposal and any
expected environmental and/or historic effects, as well as a
detailed map of the affected area.
We are providing this report so that you may review the
information that will form the basis for the Board's independent
environmental and/or historic analysis under the National
Environmental Policy Act (NEPA) and/or the National Historic
Preservation Act (NHPA) in this proceeding. If you believe any of
the information is incorrect or that information is missing, or if
you have any substantive comments regarding the proposal and its
potential effects, please file your comments electronically on the
Board's website at www.stb.gov. Alternatively, you may send your
written comments to Surface Transportation Board, Office of
Environmental Analysis (OEA) at 395 E Street SW, Washington, DC
20423-0001, and include the docket number for this proceeding.
Because the applicable statutes and regulations impose stringent
deadlines for processing this action, please provide written
comments to OEA within three weeks.
Your comments will be considered by the Board in evaluating the
environmental and/or historic effects of the contemplated proposal
under NEPA and section 106 of the NHPA. If you have any questions
about the Board's environmental or historic review process, please
contact OEA. Questions regarding this proposal, may be directed to
us or our representative, (name of applicant's representative), who
may be contacted at (telephone number), (email address), or (mailing
address).
Sec. 1105.20 Newspaper Notices for Abandonment Exemption Cases.
An applicant seeking authority to abandon and/or discontinue a rail
line pursuant to part 1152 of this chapter that is not categorically
excluded from further environmental review under Sec. 1105.7(a)(1)
shall publish a notice in a newspaper of general circulation, either
print or online, in each county in which the rail line is located and
certify to the Board that it has done so by the date its notice of
exemption or petition for exemption is filed. The notice shall alert
the public to: the proposed abandonment and/or discontinuance of
service; available alternatives, such as interim trail use and public
use; and how members of the public may participate in a Board
proceeding. A sample newspaper notice is provided in Appendix B to this
part.
Appendix B to Part 1105--Sample Newspaper Notice
Sample Local Newspaper Notice for Out-of-Service Notice of
Abandonment Exemptions
Notice of Intent To Abandon or To Discontinue Rail Service
(Name of applicant) gives notice that on or about (date notice
of exemption will be filed with the Board), it intends to file with
the Surface Transportation Board a notice of exemption under 49 CFR
1152 Subpart F--Exempt Abandonments permitting the (abandonment of
and/or discontinuance of service over) a ___ mile line of railroad
between milepost ___, near (station name or street name), and
milepost ___, near (station name or street name), which traverses
through (list ZIP codes) in (County, State). The docket number for
this proceeding is AB ___ (Sub-No. ___ X).
The Board's Office of Environmental Analysis will prepare an
Environmental Assessment (EA), which will typically be available 25
days after the filing of the notice of exemption. Comments on
environmental and historic preservation matters may be submitted no
later than 15 days after the EA becomes available to the public and
will be addressed as appropriate in the Board's decision, which will
be posted to the Board's website. Interested persons may obtain a
copy of the EA or make inquiries regarding environmental or historic
preservation matters by writing to the Surface Transportation Board,
Office of Environmental Analysis, 395 E Street SW, Washington, DC
20423-0001; or visiting the Board's website at www.stb.gov. Comments
may be submitted electronically on the Board's website at
www.stb.gov, or may be mailed to the address provided above.
Offers of financial assistance to continue rail service can be
filed with the Board under 49 U.S.C. 10904. Requests for
environmental or historic conditions, public use conditions under 49
U.S.C. 10905, or rail banking/interim trail use conditions under 16
U.S.C. 1247(d) and 49 CFR 1152.29, can also be filed with the Board.
Pleadings that raise matters other than environmental and historic
preservation issues (such as interim trail use, public use, and
offers of financial assistance) must be formally filed with the
Board in accordance with the Board's regulations at 49 CFR part
1104. Questions regarding offers of financial assistance, public use
or interim trail use may be directed to the Board's Office of Public
Assistance, Governmental Affairs, and Compliance at 202-245-0238.
Sample Local Newspaper Notice for Petitions for Abandonment
Exemptions
Notice of Intent To Abandon or To Discontinue Rail Service
(Name of applicant) gives notice that on or about (date petition
for abandonment exemption will be filed with the Board), it
[[Page 14511]]
intends to file with the Surface Transportation Board a petition for
exemption under 49 U.S.C. 10502 from the prior approval requirements
of 49 U.S.C. 10903, permitting the (abandonment of and/or
discontinuance of service over) a ___ mile rail line located between
milepost ___, near (station name or street name), and milepost ___,
near (station name or street name), which traverses through (list
ZIP codes) in ___ (County, State). The docket number for this
proceeding is AB ___ (Sub-No. ___ X).
The Board's Office of Environmental Analysis (OEA) will prepare
an Environmental Assessment (EA), which will typically be available
60 days after the filing of the petition for abandonment exemption.
Comments on environmental and historic preservation matters may be
submitted no later than 30 days after the EA becomes available to
the public and will be addressed as appropriate in the Board's
decision, which will be posted on the Board's website. Interested
persons may obtain a copy of the EA or make inquiries regarding
environmental and historic matters by writing to the Surface
Transportation Board, Office of Environmental Analysis, 395 E Street
SW, Washington, DC 20423-0001; or visiting the Board's website at
www.stb.gov. Comments may be mailed to the address provided above or
submitted electronically on the Board's website at www.stb.gov.
Offers of financial assistance to continue rail service can be
filed with the Board under 49 U.S.C. 10904. Requests for
environmental or historic conditions, public use conditions under 49
U.S.C. 10905, or rail banking/interim trail use conditions under 16
U.S.C. 1247(d) and 49 CFR 1152.29, can also be filed with the Board.
Pleadings that raise matters other than environmental and historic
preservation issues (such as interim trail use, public use, and
offers of financial assistance) must be formally filed with the
Board in accordance with the Board's regulations at 49 CFR part
1104. Questions regarding offers of financial assistance, public use
or interim trail use may be directed to the Board's Office of Public
Assistance, Governmental Affairs, and Compliance at 202-245-0238.
[FR Doc. 2026-05791 Filed 3-24-26; 8:45 am]
BILLING CODE 4915-01-P