Consummation of Rail Line Abandonments That Are Subject to Historic Preservation and Other Environmental Conditions, 22002-22004 [E8-8771]
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Federal Register / Vol. 73, No. 79 / Wednesday, April 23, 2008 / Notices
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Supplemental Environmental Impact
Statement: I–70 Kansas City to St.
Louis, MO
Federal Highway
Administration (FHWA), DOT.
ACTION: Notice of Intent.
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AGENCY:
SUMMARY: The FHWA is issuing this
notice to advise the public that a
supplemental environmental impact
statement (EIS) will be prepared for the
approved I–70 First and Second Tier
environmental documents. The I–70
corridor for this Supplemental EIS is
from the I–470 interchange in Kansas
City to near the Lake St. Louis
interchange in St. Louis. The project
length is approximately 199 miles.
FOR FURTHER INFORMATION CONTACT: Ms.
Peggy Casey, Environmental Projects
Engineer, FHWA Division Office, 3220
West Edgewood, Suite H, Jefferson City,
MO 65109, Telephone: (573) 636–7104;
or Mr. Kevin Keith, Chief Engineer,
Missouri Department of Transportation,
P.O. Box 270, Jefferson City, MO 65102,
Telephone: (573) 751–2803.
SUPPLEMENTARY INFORMATION: The
FHWA, in cooperation with the
Missouri Department of Transportation
(MoDOT), will prepare a Supplemental
EIS to consider the impacts of dedicated
truck lanes. This Supplemental EIS will
include all necessary environmental,
cultural resource, social and economic
studies and will be coordinated closely
with the public, city and county
officials, Metropolitan Planning
Organizations, Regional Planning
Commissions, and resource agencies, as
appropriate.
The FHWA and MoDOT completed a
First Tier EIS for the I–70 corridor in
December, 2001. Subsequent to the First
Tier, FHWA and MoDOT completed
Second Tier environmental documents
for seven sections of independent utility
across the corridor. The Second Tier
documents were completed in 2006.
The First Tier evaluated the I–70
corridor in a general nature and
recommended the improvement strategy
of reconstructing and widening the
existing facility. The Second Tier
documents evaluated the environmental
impacts of this strategy. The evaluations
in these traditional environmental
documents were based on the I–70
facility consisting of three 12-foot lanes
in each direction with 12-foot shoulders
along with a 124-foot grassed median.
The only exceptions were in the urban
areas approaching Kansas City,
Columbia, through the Warrenton-
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Wright City-Wentzville area, and the
area known as Mineola Hill.
A study Management Group (SMG)
was assembled during the First Tier
environmental process and was
continued through the Second Tier
process. Periodic SMG progress
meetings were held during the First and
Second Tier processes with resource
agency personnel, including
representatives from the Missouri
Department of Natural Resources, the
Missouri Department of Conservation,
the U.S. Army Corps of Engineers, the
U.S. Fish and Wildlife Service, the
Natural Resources Conservation Service,
and the Environmental Protection
Agency. Coordination with the SMG has
been re-initiated for the Supplemental
EIS process.
This Supplemental EIS will begin
with an evaluation and comparison of a
truck-only strategy to the Preferred
Strategy identified in the original EIS. If
the evaluation process results in the
recommendation of the truck-only
strategy, several alternatives for
implementing truck-only lanes will be
developed and evaluated to determine
which are reasonable and which, if any,
are not. It is anticipated that truck-only
alternatives will provide four lanes of
travel in each direction—two lanes for
truck and two lanes for general-purpose
traffic. Also, there are several different
methods for providing access at
interchanges, ranging from simple
merge options to more complicated
truck/car interchanges. Interchange
operations and their related impacts
will be evaluated during the
supplemental process. In addition, the
Supplemental EIS will consider funding
options for the project. The study will
not recommend a specific option, but
will look at the issues and challenges
associated with applying these funding
options.
To date, a preliminary coordination/
scoping meeting was held on January
29, 2008. Resource agencies from the
reconvened SMG attended and
participated in the meeting. It was
agreed that existing coordinating and
cooperating agency agreements already
in place from the first and second tier
processes will remain in effect for the
supplemental process. Numerous
opportunities for public input will be
provided. The Improve I–70 project
website will be updated to include the
Supplemental EIS and there will be
regular outreach to both the local and
state-wide media. There will be two
separate series of public meetings. Each
will have meetings at three locations
along the study corridor. Community
advisory groups will be re-established in
Columbia and Kingdom City. A meeting
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with Kingdom City was held on January
23, 2008. Opportunities for briefing/
listening sessions with key statewide
stakeholders or groups will be provided.
A formal location public hearing will
take place at three locations along the
corridor, along with informal two-hour
drop-in centers prior to public meetings
and hearing. Public notice will be given
announcing the time and place of all
public meetings and the hearings. The
Supplemental Draft EIS will be available
for public and agency review and
comment prior to the public hearings.
To ensure that the full range of issues
related to this proposed action are
addressed and all significant issues are
identified, comments and suggestions
are invited from all interested parties.
Comments and questions concerning
this proposed action and the
Supplemental EIS should be directed to
the FHWA or MoDOT at the addresses
provided above.
(Catalog of Federal Domestic Assistance
Program Number 20.205, Highway Planning
and Construction. The regulations
implementing Executive Order 12372
regarding intergovernmental consultation on
Federal programs and activities apply to this
program.)
Issued on: April 17, 2008.
Peggy J. Casey,
Environmental Project Engineer, Jefferson
City.
[FR Doc. E8–8761 Filed 4–22–08; 8:45 am]
BILLING CODE 4910–22–P
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Ex Parte No. 678]
Consummation of Rail Line
Abandonments That Are Subject to
Historic Preservation and Other
Environmental Conditions
AGENCY:
Surface Transportation Board,
DOT.
ACTION:
Statement of board policy.
SUMMARY: The Surface Transportation
Board is issuing this policy statement to
clarify when, under the agency’s
regulation at 49 CFR 1152.29(e)(2), a
carrier may ‘‘consummate’’
abandonment and file a ‘‘notice of
consummation’’ of the abandonment of
a rail line where the Board has imposed
conditions on its abandonment
authorization in order to satisfy section
106 of the National Historic
Preservation Act (NHPA), 16 U.S.C.
470f, or the National Environmental
Policy Act, 42 U.S.C. 4321 et seq.
(NEPA). In cases where a condition is
imposed under NHPA, a notice of
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Federal Register / Vol. 73, No. 79 / Wednesday, April 23, 2008 / Notices
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consummation should not be filed for
any part of the line until the historic
review process is completed and the
condition is removed. However, where
a NHPA condition is needed only for a
segment of the line or for a particular
structure or structures, the railroad may
request that the Board modify the
condition to allow the railroad to
salvage the portions of the line not
affected by that condition. In contrast, a
condition imposed under NEPA that is
related to salvage activities is not a
regulatory barrier to consummation of
an abandonment.1 A notice of
consummation may be filed prior to
satisfying such a salvage condition.
However, filing a notice of
consummation in that situation does not
remove the condition, which must still
be satisfied if and when salvage
activities are conducted. If a property
encumbered with salvage conditions
changes ownership, the new owner
must show that it agrees to abide by the
salvage conditions at the time of
conveyance by referencing the
conditions in the instrument of
conveyance, and providing a copy of the
instrument of conveyance to the Board
so that it can be filed in the pertinent
abandonment proceeding. Additionally,
railroads are cautioned to comply fully
with section 106 of NHPA.
DATES: Effective Date: This policy
statement is effective on April 23, 2008.
FOR FURTHER INFORMATION CONTACT:
Joseph H. Dettmar, (202) 245–0395,
[Assistance for the hearing impaired is
available through the Federal
Information Relay Service (FIRS) at 1–
800–877–8339.]
SUPPLEMENTARY INFORMATION:
The Board is issuing this policy
statement to address when a ‘‘notice of
consummation’’—required under the
agency’s regulation at 49 CFR
1152.29(e)(2) to signify that a railroad
intends to fully abandon a line and
remove it from the national rail
transportation system—may be filed in
cases where the Board has imposed
conditions on its abandonment
authorization to satisfy section 106 of
NHPA or to satisfy NEPA. This policy
statement discusses each of these
situations.
1 See, e.g., Consummation notice filed by the
Santa Clara Valley Transportation Authority
(SCVTA) on May 8, 2007, in Santa Clara Valley
Transportation Authority—Abandonment
Exemption—In Santa Clara and Alameda Counties,
CA, STB Docket No. AB–980X (notifying the Board
of SCVTA’s consummation of abandonment
authority although it had not yet engaged in salvage
activities and, therefore, had not yet complied with
a salvage condition that the Board had attached to
that authority).
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16:58 Apr 22, 2008
Jkt 214001
A railroad may not ‘‘abandon’’ a rail
line (i.e., be relieved of its common
carrier obligation to provide rail service
over that line and dispose of the
property for non-rail use) without
express permission from the Board. Chi.
& N. W. Transp. Co. v. Kalo Brick & Tile
Co., 450 U.S. 311, 321–22 (1981). Under
49 U.S.C. 10903, the Board may
affirmatively approve the abandonment
of a line by determining that the public
convenience and necessity require or
permit the proposed abandonment.
Alternatively, the agency may authorize
abandonment by granting an exemption
(individually or by class of rail lines)
under 49 U.S.C. 10502. See 49 CFR
1152.50 and 1152.60. Under either
procedure, the Board must meet its
responsibilities under other Federal
statutes, including NEPA, NHPA, and
the National Trails System Act (Trails
Act) at 16 U.S.C. 1247(d). To meet those
responsibilities, the Board may need to
impose conditions that limit or
postpone the carrier’s ability to exercise
its abandonment authorization in whole
or in part.
The abandonment authority issued by
the Board is permissive authority that
the railroad may or may not decide to
exercise. The agency retains jurisdiction
over rail properties until abandonment
authority has been consummated.
Hayfield N. R.R. Co. v. Chi. & N. W.
Transp. Co., 467 U.S. 622, 633–34
(1984). Thus, it is important to be able
to determine with certainty when
abandonment authority is exercised.
To exercise the authority and
‘‘consummate’’ an abandonment, a
railroad must manifest a clear intent to
abandon through its statements and
actions, including discontinuing
operations and ‘‘salvage’’ of the line
(removing rails and other materials from
the property). See Birt v. STB, 90 F.3d
580, 585 (D.C. Cir. 1996) (Birt). Since
1997, under the Board regulation at 49
CFR 1152.29(e)(2), a railroad is required
to file a ‘‘notice of consummation’’ with
the agency within 1 year of the service
date of the decision permitting
abandonment to signify that it has
exercised the authority granted and
intends that the property be removed
from the interstate rail network. Under
the regulation, a notice of
consummation is deemed conclusive on
the issue of consummation if there are
no legal or regulatory barriers to
consummation (such as outstanding
conditions, including Trails Act
conditions that permit rail banking and
interim trail use on railroad rights-ofway that would otherwise be
abandoned). The regulation provides
that if, after 1 year from the date of
service of a decision permitting
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22003
abandonment, consummation has not
been effected by the railroad’s filing of
a notice of consummation, and there are
no legal or regulatory barriers to
consummation, the authority to
abandon automatically expires (unless
the Board has granted an extension).
Once abandonment authority expires, a
new proceeding would have to be
instituted if the railroad wants to
abandon the line. If, however, any legal
or regulatory barrier to consummation
exists at the end of the 1-year time
period, the notice of consummation is
due to be filed not later than 60 days
after satisfaction, expiration, or removal
of the legal or regulatory barrier. A
railroad can file a request for an
extension of time to file a notice, for
good cause shown, if it does so
sufficiently in advance of the expiration
of the deadline to allow for timely
processing.
Until 49 CFR 1152.29(e)(2) was
adopted, there was no rigid formula for
determining whether a railroad
intended to exercise its permissive
abandonment authority; rather, where
there was an issue regarding
consummation, the Board and the courts
examined the facts on a case-by-case
basis. Birt, 90 F.3d at 585–86; Black v.
ICC, 762 F.2d 106, 112–13 (D.C. Cir.
1985). Nor was there any specific time
period during which abandonment had
to be consummated. The notice of
consummation requirement was added
to provide certainty and reduce
litigation (primarily in cases involving
the Trails Act) regarding whether a
railroad’s actions demonstrated its
intent to abandon the line after an
abandonment authorization had become
effective. Compare Becker v. STB, 132
F.3d 60, 63 (D.C. Cir. 1997) and Fritsch
v. ICC, 59 F.3d 248, 253 (D.C. Cir. 1995)
(trail conditions could not be imposed
because abandonments had already
been consummated) with Birt, 90 F.3d at
588 (Board retained jurisdiction to
impose a trail condition because
railroad’s actions did not show an intent
to abandon).
Recently, however, there has been
some confusion regarding how the
notice of consummation requirement
applies to abandonment cases where
conditions have been imposed to meet
the Board’s obligations under NHPA or
NEPA. Because 49 CFR 1152.29(e)(2)
does not specifically address those
situations, the Board is issuing this
policy statement to clarify when a
notice of consummation may be filed (if
the railroad wishes to consummate the
abandonment) in such cases.
Historic Review Conditions Under
NHPA. Where the historic review
process is ongoing, the Board generally
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22004
Federal Register / Vol. 73, No. 79 / Wednesday, April 23, 2008 / Notices
imposes a condition prohibiting the
railroad from selling the line, altering
any sites or structures on the line, or
conducting salvage activities on the line
until the historic review process is
complete and the Board removes the
condition. This maintains the status quo
pending completion of the historic
review process. In some instances,
where it becomes apparent that
mitigation (i.e., documentation of the
historic resources) is necessary only for
a portion of the line or for a particular
structure or structures, the Board may
modify the condition to allow salvage of
the rest of the line. But otherwise,
abandonment may not be consummated,
and potentially historic property may
not be disturbed for any part of the line,
until either there is a formal final
determination by the Board’s Section of
Environmental Analysis (SEA) (acting
on behalf of the Board) that the project
would have no adverse effect on historic
resources or a Memorandum of
Agreement is entered into that sets forth
the appropriate mitigation (i.e.,
documentation) to satisfy section 106
and the historic review condition is
removed.
In some instances, railroads have
sought to consummate the abandonment
of part or all of a railroad line before the
historic review process required by
section 106 of NHPA is complete and
the historic preservation condition
imposed by the Board has been
modified or removed. By this policy
statement, the Board clarifies that,
regardless of whether a section 106
condition applies to the entire line or is
more limited, an historic preservation
condition is a regulatory barrier to
consummation. Therefore, a railroad
should not file a notice of
consummation seeking to remove the
property from the Board’s jurisdiction
until the historic review process has
been completed and the Board has
removed the section 106 condition.
The Board recognizes that in some
cases there can be an overriding need
for partial consummation and that
partial consummation could be in the
public interest (for example, where a
portion of the line is needed to complete
a highway project that is important to
the community and the historic
preservation condition applies only to
another part of the line or to a structure
that would not be disturbed by the
highway project), or could further a
legitimate private interest. Therefore,
the Board’s policy will be that, for good
cause shown, a railroad may make a
request to file a notice of consummation
for a portion of the line prior to formal
removal of a section 106 condition. The
Board would then consider, on a case-
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16:58 Apr 22, 2008
Jkt 214001
by-case basis, whether to waive its nopartial-consummation policy. The
Board’s primary concern in considering
such requests will be to assure that
partial consummation would not
compromise satisfactory completion of
the historic preservation process.
In some cases railroads have taken
actions affecting rail property without
first seeking abandonment authority.
When this occurs on inactive lines, we
generally do not discover these actions
until after the fact when the carrier
seeks abandonment authority. Such
actions are unlawful. Not only is the rail
line unlawfully severed from the
national transportation system when
this occurs, but the Board’s ability to
carry out its obligations under NEPA
and NHPA may then be adversely
affected. The Board will continue to
carry out its obligations under those
statutes and will take whatever steps
necessary to enforce compliance with
them. Railroads that take such actions
may find not only that obtaining
abandonment authority is delayed, but
that the Board will require historic
preservation training for the railroad’s
staff members who are involved with
abandonment projects and require the
railroad to document the in-house
measures that it will implement to
prevent such actions from occurring in
the future. Other possible actions the
Board may take include restricting the
railroad’s future ability to employ
expedited procedures to obtain
abandonment authority, imposing a
financial penalty, and seeking a legal
remedy against the railroad in a court of
law.
Other Environmental Conditions.
Most other environmental conditions
imposed by the Board in abandonment
cases relate to salvage activities. As
discussed above, salvage activities can
be one indicium of a railroad’s intent to
abandon. However, it is not necessary
for a railroad to salvage a rail line in
order to consummate abandonment
authority. A railroad may decide not to
salvage the line immediately upon being
relieved of its service obligations, but
rather to leave the track and ties in
place. Therefore, the Board’s policy is
that a salvage condition,2 unlike a
section 106 condition, typically is not a
regulatory barrier to the filing of a notice
of consummation, and thus the
existence of a salvage condition has no
bearing on the consummation deadline.
2 Salvage conditions are imposed on a case-bycase basis, but examples of conditions imposed in
the past include permitting the railroad to salvage
the line only during a particular time of year and
requiring the railroad to provide notice to, or
consult with, appropriate agencies prior to
salvaging the line.
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However, the salvage condition remains
in place as a condition that attaches to
the property and applies to salvage
activities whenever they occur, even if
salvage is conducted years later by a
successor interest. Therefore, our policy
will be to require any successor interest
to agree to the condition by referencing
the condition in the purchase contract
or other instrument of conveyance, and
by submitting a copy of that instrument
of conveyance to the Board so that it can
be filed in the docket of the relevant
abandonment proceeding.
This action will not significantly
affect either the quality of the human
environment or the conservation of
energy resources.
Regulatory Flexibility Certification
Pursuant to 5 U.S.C. 605(b), we
conclude that our action in this
proceeding will not have a significant
economic impact on a substantial
number of small entities. This action
clarifies that conditions imposed by the
Board under section 106 of NHPA are
barriers to abandonment consummation,
while NEPA salvage conditions are not.
It also requires successor interests in
properties encumbered with salvage
conditions to reference the conditions in
the instruments of conveyance, and to
provide a copy of the instrument of
conveyance to the Board so that it can
be filed in the pertinent abandonment
proceeding docket. These requirements
will require little additional work and
should not have a significant economic
impact on a substantial number of small
entities.
Decided: April 16, 2008.
By the Board, Chairman Nottingham, Vice
Chairman Mulvey, and Commissioner
Buttrey.
Anne K. Quinlan,
Acting Secretary.
[FR Doc. E8–8771 Filed 4–22–08; 8:45 am]
BILLING CODE 4915–01–P
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the
Currency
Agency Information Collection
Activities: Proposed Information
Collection; Comment Request
Office of the Comptroller of the
Currency (OCC), Treasury.
ACTION: Notice and request for comment.
AGENCY:
SUMMARY: The OCC, as part of its
continuing effort to reduce paperwork
and respondent burden, invites the
general public and other Federal
agencies to comment on a continuing
E:\FR\FM\23APN1.SGM
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]]>Agencies
[Federal Register Volume 73, Number 79 (Wednesday, April 23, 2008)]
[Notices]
[Pages 22002-22004]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8771]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Ex Parte No. 678]
Consummation of Rail Line Abandonments That Are Subject to
Historic Preservation and Other Environmental Conditions
AGENCY: Surface Transportation Board, DOT.
ACTION: Statement of board policy.
-----------------------------------------------------------------------
SUMMARY: The Surface Transportation Board is issuing this policy
statement to clarify when, under the agency's regulation at 49 CFR
1152.29(e)(2), a carrier may ``consummate'' abandonment and file a
``notice of consummation'' of the abandonment of a rail line where the
Board has imposed conditions on its abandonment authorization in order
to satisfy section 106 of the National Historic Preservation Act
(NHPA), 16 U.S.C. 470f, or the National Environmental Policy Act, 42
U.S.C. 4321 et seq. (NEPA). In cases where a condition is imposed under
NHPA, a notice of
[[Page 22003]]
consummation should not be filed for any part of the line until the
historic review process is completed and the condition is removed.
However, where a NHPA condition is needed only for a segment of the
line or for a particular structure or structures, the railroad may
request that the Board modify the condition to allow the railroad to
salvage the portions of the line not affected by that condition. In
contrast, a condition imposed under NEPA that is related to salvage
activities is not a regulatory barrier to consummation of an
abandonment.\1\ A notice of consummation may be filed prior to
satisfying such a salvage condition. However, filing a notice of
consummation in that situation does not remove the condition, which
must still be satisfied if and when salvage activities are conducted.
If a property encumbered with salvage conditions changes ownership, the
new owner must show that it agrees to abide by the salvage conditions
at the time of conveyance by referencing the conditions in the
instrument of conveyance, and providing a copy of the instrument of
conveyance to the Board so that it can be filed in the pertinent
abandonment proceeding. Additionally, railroads are cautioned to comply
fully with section 106 of NHPA.
---------------------------------------------------------------------------
\1\ See, e.g., Consummation notice filed by the Santa Clara
Valley Transportation Authority (SCVTA) on May 8, 2007, in Santa
Clara Valley Transportation Authority--Abandonment Exemption--In
Santa Clara and Alameda Counties, CA, STB Docket No. AB-980X
(notifying the Board of SCVTA's consummation of abandonment
authority although it had not yet engaged in salvage activities and,
therefore, had not yet complied with a salvage condition that the
Board had attached to that authority).
DATES: Effective Date: This policy statement is effective on April 23,
---------------------------------------------------------------------------
2008.
FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 245-0395,
[Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at 1-800-877-8339.]
SUPPLEMENTARY INFORMATION:
The Board is issuing this policy statement to address when a
``notice of consummation''--required under the agency's regulation at
49 CFR 1152.29(e)(2) to signify that a railroad intends to fully
abandon a line and remove it from the national rail transportation
system--may be filed in cases where the Board has imposed conditions on
its abandonment authorization to satisfy section 106 of NHPA or to
satisfy NEPA. This policy statement discusses each of these situations.
A railroad may not ``abandon'' a rail line (i.e., be relieved of
its common carrier obligation to provide rail service over that line
and dispose of the property for non-rail use) without express
permission from the Board. Chi. & N. W. Transp. Co. v. Kalo Brick &
Tile Co., 450 U.S. 311, 321-22 (1981). Under 49 U.S.C. 10903, the Board
may affirmatively approve the abandonment of a line by determining that
the public convenience and necessity require or permit the proposed
abandonment. Alternatively, the agency may authorize abandonment by
granting an exemption (individually or by class of rail lines) under 49
U.S.C. 10502. See 49 CFR 1152.50 and 1152.60. Under either procedure,
the Board must meet its responsibilities under other Federal statutes,
including NEPA, NHPA, and the National Trails System Act (Trails Act)
at 16 U.S.C. 1247(d). To meet those responsibilities, the Board may
need to impose conditions that limit or postpone the carrier's ability
to exercise its abandonment authorization in whole or in part.
The abandonment authority issued by the Board is permissive
authority that the railroad may or may not decide to exercise. The
agency retains jurisdiction over rail properties until abandonment
authority has been consummated. Hayfield N. R.R. Co. v. Chi. & N. W.
Transp. Co., 467 U.S. 622, 633-34 (1984). Thus, it is important to be
able to determine with certainty when abandonment authority is
exercised.
To exercise the authority and ``consummate'' an abandonment, a
railroad must manifest a clear intent to abandon through its statements
and actions, including discontinuing operations and ``salvage'' of the
line (removing rails and other materials from the property). See Birt
v. STB, 90 F.3d 580, 585 (D.C. Cir. 1996) (Birt). Since 1997, under the
Board regulation at 49 CFR 1152.29(e)(2), a railroad is required to
file a ``notice of consummation'' with the agency within 1 year of the
service date of the decision permitting abandonment to signify that it
has exercised the authority granted and intends that the property be
removed from the interstate rail network. Under the regulation, a
notice of consummation is deemed conclusive on the issue of
consummation if there are no legal or regulatory barriers to
consummation (such as outstanding conditions, including Trails Act
conditions that permit rail banking and interim trail use on railroad
rights-of-way that would otherwise be abandoned). The regulation
provides that if, after 1 year from the date of service of a decision
permitting abandonment, consummation has not been effected by the
railroad's filing of a notice of consummation, and there are no legal
or regulatory barriers to consummation, the authority to abandon
automatically expires (unless the Board has granted an extension). Once
abandonment authority expires, a new proceeding would have to be
instituted if the railroad wants to abandon the line. If, however, any
legal or regulatory barrier to consummation exists at the end of the 1-
year time period, the notice of consummation is due to be filed not
later than 60 days after satisfaction, expiration, or removal of the
legal or regulatory barrier. A railroad can file a request for an
extension of time to file a notice, for good cause shown, if it does so
sufficiently in advance of the expiration of the deadline to allow for
timely processing.
Until 49 CFR 1152.29(e)(2) was adopted, there was no rigid formula
for determining whether a railroad intended to exercise its permissive
abandonment authority; rather, where there was an issue regarding
consummation, the Board and the courts examined the facts on a case-by-
case basis. Birt, 90 F.3d at 585-86; Black v. ICC, 762 F.2d 106, 112-13
(D.C. Cir. 1985). Nor was there any specific time period during which
abandonment had to be consummated. The notice of consummation
requirement was added to provide certainty and reduce litigation
(primarily in cases involving the Trails Act) regarding whether a
railroad's actions demonstrated its intent to abandon the line after an
abandonment authorization had become effective. Compare Becker v. STB,
132 F.3d 60, 63 (D.C. Cir. 1997) and Fritsch v. ICC, 59 F.3d 248, 253
(D.C. Cir. 1995) (trail conditions could not be imposed because
abandonments had already been consummated) with Birt, 90 F.3d at 588
(Board retained jurisdiction to impose a trail condition because
railroad's actions did not show an intent to abandon).
Recently, however, there has been some confusion regarding how the
notice of consummation requirement applies to abandonment cases where
conditions have been imposed to meet the Board's obligations under NHPA
or NEPA. Because 49 CFR 1152.29(e)(2) does not specifically address
those situations, the Board is issuing this policy statement to clarify
when a notice of consummation may be filed (if the railroad wishes to
consummate the abandonment) in such cases.
Historic Review Conditions Under NHPA. Where the historic review
process is ongoing, the Board generally
[[Page 22004]]
imposes a condition prohibiting the railroad from selling the line,
altering any sites or structures on the line, or conducting salvage
activities on the line until the historic review process is complete
and the Board removes the condition. This maintains the status quo
pending completion of the historic review process. In some instances,
where it becomes apparent that mitigation (i.e., documentation of the
historic resources) is necessary only for a portion of the line or for
a particular structure or structures, the Board may modify the
condition to allow salvage of the rest of the line. But otherwise,
abandonment may not be consummated, and potentially historic property
may not be disturbed for any part of the line, until either there is a
formal final determination by the Board's Section of Environmental
Analysis (SEA) (acting on behalf of the Board) that the project would
have no adverse effect on historic resources or a Memorandum of
Agreement is entered into that sets forth the appropriate mitigation
(i.e., documentation) to satisfy section 106 and the historic review
condition is removed.
In some instances, railroads have sought to consummate the
abandonment of part or all of a railroad line before the historic
review process required by section 106 of NHPA is complete and the
historic preservation condition imposed by the Board has been modified
or removed. By this policy statement, the Board clarifies that,
regardless of whether a section 106 condition applies to the entire
line or is more limited, an historic preservation condition is a
regulatory barrier to consummation. Therefore, a railroad should not
file a notice of consummation seeking to remove the property from the
Board's jurisdiction until the historic review process has been
completed and the Board has removed the section 106 condition.
The Board recognizes that in some cases there can be an overriding
need for partial consummation and that partial consummation could be in
the public interest (for example, where a portion of the line is needed
to complete a highway project that is important to the community and
the historic preservation condition applies only to another part of the
line or to a structure that would not be disturbed by the highway
project), or could further a legitimate private interest. Therefore,
the Board's policy will be that, for good cause shown, a railroad may
make a request to file a notice of consummation for a portion of the
line prior to formal removal of a section 106 condition. The Board
would then consider, on a case-by-case basis, whether to waive its no-
partial-consummation policy. The Board's primary concern in considering
such requests will be to assure that partial consummation would not
compromise satisfactory completion of the historic preservation
process.
In some cases railroads have taken actions affecting rail property
without first seeking abandonment authority. When this occurs on
inactive lines, we generally do not discover these actions until after
the fact when the carrier seeks abandonment authority. Such actions are
unlawful. Not only is the rail line unlawfully severed from the
national transportation system when this occurs, but the Board's
ability to carry out its obligations under NEPA and NHPA may then be
adversely affected. The Board will continue to carry out its
obligations under those statutes and will take whatever steps necessary
to enforce compliance with them. Railroads that take such actions may
find not only that obtaining abandonment authority is delayed, but that
the Board will require historic preservation training for the
railroad's staff members who are involved with abandonment projects and
require the railroad to document the in-house measures that it will
implement to prevent such actions from occurring in the future. Other
possible actions the Board may take include restricting the railroad's
future ability to employ expedited procedures to obtain abandonment
authority, imposing a financial penalty, and seeking a legal remedy
against the railroad in a court of law.
Other Environmental Conditions. Most other environmental conditions
imposed by the Board in abandonment cases relate to salvage activities.
As discussed above, salvage activities can be one indicium of a
railroad's intent to abandon. However, it is not necessary for a
railroad to salvage a rail line in order to consummate abandonment
authority. A railroad may decide not to salvage the line immediately
upon being relieved of its service obligations, but rather to leave the
track and ties in place. Therefore, the Board's policy is that a
salvage condition,\2\ unlike a section 106 condition, typically is not
a regulatory barrier to the filing of a notice of consummation, and
thus the existence of a salvage condition has no bearing on the
consummation deadline. However, the salvage condition remains in place
as a condition that attaches to the property and applies to salvage
activities whenever they occur, even if salvage is conducted years
later by a successor interest. Therefore, our policy will be to require
any successor interest to agree to the condition by referencing the
condition in the purchase contract or other instrument of conveyance,
and by submitting a copy of that instrument of conveyance to the Board
so that it can be filed in the docket of the relevant abandonment
proceeding.
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\2\ Salvage conditions are imposed on a case-by-case basis, but
examples of conditions imposed in the past include permitting the
railroad to salvage the line only during a particular time of year
and requiring the railroad to provide notice to, or consult with,
appropriate agencies prior to salvaging the line.
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This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
Regulatory Flexibility Certification
Pursuant to 5 U.S.C. 605(b), we conclude that our action in this
proceeding will not have a significant economic impact on a substantial
number of small entities. This action clarifies that conditions imposed
by the Board under section 106 of NHPA are barriers to abandonment
consummation, while NEPA salvage conditions are not. It also requires
successor interests in properties encumbered with salvage conditions to
reference the conditions in the instruments of conveyance, and to
provide a copy of the instrument of conveyance to the Board so that it
can be filed in the pertinent abandonment proceeding docket. These
requirements will require little additional work and should not have a
significant economic impact on a substantial number of small entities.
Decided: April 16, 2008.
By the Board, Chairman Nottingham, Vice Chairman Mulvey, and
Commissioner Buttrey.
Anne K. Quinlan,
Acting Secretary.
[FR Doc. E8-8771 Filed 4-22-08; 8:45 am]
BILLING CODE 4915-01-P
