National Trails System Act and Railroad Rights-of-Way, 25910-25915 [2012-10467]
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Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules and Regulations
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[FR Doc. 2012–10346 Filed 5–1–12; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Part 1152
[Docket No. EP 702]
National Trails System Act and
Railroad Rights-of-Way
AGENCY:
Surface Transportation Board,
DOT.
ACTION:
Final rule.
The Surface Transportation
Board (Board or STB) is changing,
clarifying, and updating some of its
existing regulations and procedures
regarding the use of railroad rights-ofway (ROW) for rail banking and interim
trail use under the National Trails
System Act (Trails Act). New rules are
adopted that require the parties jointly
to notify the Board when an interim trail
use/rail banking agreement has been
reached. The new rules also require
parties to ask the Board to vacate a trail
condition and issue a replacement trail
condition covering the portion of right-
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SUMMARY:
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of-way subject to the trail use agreement
if their trail use agreement covers only
part of the right-of-way. In addition, the
final rules clarify that a new party who
assumes responsibility for a recreational
trail must acknowledge that the interim
trail use is subject to future reactivation
of the railroad line.
DATES: This rule is effective on May 30,
2012.
ADDRESSES: Information or questions
regarding this final rule should
reference Docket No. EP 702 and be in
writing addressed to: Chief, Section of
Administration, Office of Proceedings,
Surface Transportation Board, 395 E
Street SW., Washington, DC 20423–
0001.
FOR FURTHER INFORMATION CONTACT: Julia
Farr at (202) 245–0359. Assistance for
the hearing impaired is available
through the Federal Information Relay
Service (FIRS) at 1–800–877–8339.
SUPPLEMENTARY INFORMATION: On
February 16, 2011, the Board served a
notice of proposed rulemaking (NPRM),
in which it proposed to change, clarify,
and update some of its existing
regulations at 49 CFR 1152.29 regarding
the use of railroad rights-of-way for rail
banking and interim trail use under the
Trails Act, 16 U.S.C. 1247(d).1 The
Board asked for comments on a
proposed rule requiring the railroad and
the trail sponsor jointly to notify the
Board when a trail use agreement has
been reached and to notify the Board of
the exact location of the right-of-way
subject to the interim trail use
agreement by including a map and
milepost marker information. We also
proposed a rule to require parties to ask
the Board to vacate the Certificate of
Interim Trail Use (CITU) or Notice of
Interim Trail Use (NITU) when an
interim trail use agreement covers only
a portion of the right-of-way and request
a replacement CITU/NITU to cover the
portion of the right-of-way subject to the
trail use agreement. Finally, we
proposed a rule to clarify that a
substitute trail sponsor must
acknowledge that interim trail use is
subject to reactivation at any time and
suggested other minor modifications to
clarify and update the existing
regulations at 49 CFR 1152.29. In
addition to these specific proposals, we
invited comments on what, if any,
changes to the Trails Act rules would
address concerns about the Board’s
regulations specifying what a state must
do to satisfy the Trails Act’s
assumption-of-liability requirement, and
whether the current methods of
1 The notice of proposed rulemaking was
published at 76 FR 8992–95.
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providing notice to adjoining
landowners could be augmented by
additional methods of indirect notice
that take advantage of advances in
technology without creating an undue
burden on rail carriers.
Background. The Trails Act was
enacted in 1968 to establish a
nationwide system of recreation and
scenic trails. National Trails System
Act, Public Law. 90–543, § 2(b), 82 Stat.
919 (1968) (codified, as amended, at 16
U.S.C. 1241–1251). As originally
enacted, it did not contain any special
provisions for railroad rights-of-way. In
1983, however, Congress added a rail
section, codified at 16 U.S.C. 1247(d), to
advance two declared policies:
preserving unused railroad rights-ofway for possible future rail use and
promoting nature trails. See Preseault v.
ICC, 494 U.S. 1, 17–18 (1990).
The enactment of the ‘‘Rails-to-Trails’’
provision followed a history of
Congressional concern about the loss of
rail corridors as a national
transportation resource. See id. at 5; Birt
v. STB, 90 F.3d 580, 582–83 (DC Cir.
1996). Under 16 U.S.C. 1247(d), the STB
must ‘‘preserve established railroad
rights-of-way for future reactivation of
rail service’’ by prohibiting
abandonment where a trail sponsor
offers to assume managerial, tax, and
legal responsibility for a right-of-way for
use in the interim as a trail. Nat’l
Wildlife Fed’n v. ICC, 850 F.2d 694,
699–702 (DC Cir. 1988). The statute
provides that, if such interim use is
subject to restoration or reconstruction
for railroad purposes, the ‘‘interim use
shall not be treated, for purposes of any
law or rule of law, as an abandonment.
* * *’’ 16 U.S.C. 1247(d). Instead, the
right-of-way is ‘‘rail banked,’’ which
means that the railroad (or any other
approved rail service provider) may
reassert control at any time in order to
restore service on the line. 49 CFR
1152.29(c)(2), (d)(2); Birt, 90 F.3d at
583.2 If a line is rail banked and
designated for trail use, any reversion to
adjoining landowners that might
otherwise occur under state law upon
2 The Board’s predecessor, the Interstate
Commerce Commission (ICC), promulgated final
rules implementing the Trails Act in Rail Abans.—
Use of Rights-of-Way as Trails (49 CFR parts 1105
& 1152), 2 I.C.C. 2d 591 (1986) (Rail
Abandonments). The agency has modified or
clarified its Trails Act rules since that time. See,
e.g., Aban. & Discontinuance of Rail Lines & Rail
Transp. Under 49 U.S.C. 10903, 1 S.T.B. 894 (1996);
Policy Statement on Rails to Trails Conversions, EP
272 (Sub-No. 13B) (ICC served Jan. 29, 1990); Rail
Abans.—Use of Rights-of-Way as Trails—
Supplemental Trails Act Procedures, 4 I.C.C. 2d 152
(1987).
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abandonment is postponed. Preseault,
494 U.S. at 8; Birt, 90 F.3d at 583.
To invoke the Trails Act, a
prospective trail sponsor must first file
a request with the STB accompanied by
a Statement of Willingness to assume
responsibility for management, legal
liability, and payment of taxes, and an
acknowledgement that interim trail use
is subject to restoration of rail service at
any time. 49 CFR 1152.29(a), (d). If the
railroad indicates its willingness to
negotiate a rail banking/interim trail use
agreement, the STB will issue a CITU
(in an abandonment application
proceeding) or a NITU (in an
abandonment exemption proceeding)
for the line.3 49 CFR 1152.29(c)(1),
(d)(1). The CITU/NITU permits parties
to negotiate for a 180-day period (which
can be extended by Board order) to
reach a rail banking interim trail use
agreement. Id.; Preseault, 494 U.S. at 7
n.5; Birt, 90 F.3d at 583.
The terms of any subsequently
reached trail use agreement (including
compensation issues related to the
potential reactivation of rail service) are
the product of private negotiations
between the railroad and trail sponsor.
The Board has never required that trail
use agreements, or notice that the
parties have even reached an agreement,
be submitted to the agency. Ga. Great S.
Div.—Aban. & Discontinuance
Exemption—Between Albany & Dawson,
in Terrell, Lee, & Dougherty Counties,
Ga., 6 S.T.B. 902, 907 (2003).
If the parties reach an agreement, the
CITU/NITU automatically authorizes
rail banking/interim trail use. Preseault,
494 U.S. at 7 n.5. Without further action
from the STB, the trail sponsor may
then assume management of the rightof-way, subject to the right of a railroad
to reassert control of the property for
restoration or reconstruction of rail
service. 49 CFR 1152.29(c)(2), (d)(2);
Birt, 90 F.3d at 583. If, on the other
hand, no rail banking/interim trail use
arrangement is reached, then upon
expiration of the CITU/NITU 180-day
negotiation period (and any extension
thereof), the CITU/NITU authorizes the
railroad to ‘‘exercise its option to fully
abandon’’ the line by consummating the
abandonment, without further action by
the agency, see Birt, 90 F.3d at 583,
provided that there are no unmet
conditions imposed on the
abandonment authority that must be
satisfied. See 49 CFR 1152.29(c)(1) and
(d)(1); Consummation of Rail Line
Abans. That Are Subject to Historic
Pres. & Other Envtl. Conditions, EP 678,
slip op. at 3–4 (STB served Apr. 23,
3 There is no substantive difference between rail
banking authorized under a NITU and a CITU.
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2008); Puget Sound & Pacific R.R.—
Aban. Exemption—in Grays Harbor
Cnty., Wash., AB 1023 (Sub-No. 1X)
(STB served Sept. 13, 2011). During the
negotiating period, the railroad is
authorized to discontinue service and
salvage track materials from the line, as
such actions are fully consistent with
rail banking/interim trail use. Preseault,
494 U.S. at 7 n.5; Birt, 90 F.3d at 583,
586.
A rail banking/interim trail use
arrangement is subject to being cut off
at any time for the reinstitution of rail
service. 49 CFR 1152.29(c)(2), (d)(2). A
rail-banked line is not abandoned, but
rather remains part of the national rail
system, albeit temporarily unused for
railroad operations. Thus, if and when
a railroad wishes to restore rail service
on all or part of the property, it may
request that the CITU/NITU be vacated
to permit reactivation of the line for
continued rail service. See, e.g., Ga.
Great S., 6 S.T.B. at 906.
Alternatively, rail banking/interim
trail use may be terminated by the trail
sponsor, pursuant to any applicable
terms of the privately negotiated trail
use agreement. In that instance, upon
notice from the trail sponsor that it is
terminating interim trail use, the Board
will issue a decision vacating the CITU/
NITU and permitting immediate
abandonment for the involved portion
of the right-of-way, thereby allowing,
but not requiring, the railroad to
consummate abandonment, subject to
compliance with any conditions that
must be satisfied. 49 CFR 1152.29(c)(2)
and (d)(2); see 49 CFR 1152.29(e)(2).
Rail banking/interim trail use
authorization also may be transferred
from one trail sponsor to another. 49
CFR 1152.29(f). To effect a transfer, the
existing and proposed trail sponsors
jointly submit to the Board a copy of the
governing CITU/NITU, a statement of
the proposed trail sponsor’s willingness
to assume the management, liability,
and tax responsibilities for the trail, and
the date on which responsibility for the
right-of-way is to transfer to the new
trail sponsor. Id. The Board will then
reopen the abandonment proceeding to
vacate the existing CITU/NITU and
replace it with a new CITU/NITU
reflecting the new trail sponsor. Id.
The STB’s role under the Trails Act is
limited and largely ministerial. Citizens
Against Rails-to-Trails v. STB, 267 F.3d
1144, 1151–52 (D.C. Cir. 2001) (CART);
Goos v. ICC, 911 F.2d 1283, 1295 (8th
Cir. 1990) (agency has ‘‘little, if any,
discretion to forestall a voluntary
agreement to effect a conversion to trail
use’’). The STB plays no part in the
negotiations between trail sponsors and
railroads, nor does it analyze, approve,
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25911
or set the terms of rail banking/interim
trail use agreements. Ga. Great S., 6
S.T.B. at 907. The Board does not
‘‘regulate activities over the actual trail,
and [has] no involvement in the type,
level, or condition of the trail. * * *’’
Id. Moreover, the Board has no specific
fitness or qualification test for trail
sponsors; it requires only the Statement
of Willingness from the trail sponsor to
assume liability and to pay taxes, and
the acquiescence of the railroad in rail
banking. The Board has the authority to
terminate rail banking/interim trail use
if it determines that the trail sponsor
does not have the ability to continue to
meet the management, tax, and liability
conditions of interim trail use. See 49
CFR 1152.29(a)(3); Jost v. STB, 194 F.3d
79, 89–90 (D.C. Cir. 1999).
The STB retains jurisdiction over a
rail line throughout the CITU/NITU
negotiating period, any period of rail
banking/interim trail use, and any
period during which rail service is
restored. It is only upon a railroad’s
lawful consummation of abandonment
authority that the Board’s jurisdiction
ends. See 16 U.S.C. 1247(d); Preseault,
494 U.S. at 6. At that point, the rightof-way may revert to reversionary
landowner interests, if any, pursuant to
state law. Preseault, 494 U.S. at 5, 8.
Discussion. Pursuant to the
procedural schedule set forth in the
NPRM, comments were filed by the
Association of American Railroads
(AAR), Maryland Transit
Administration (MTA), Madison County
Transit (MCT), and the Rails-to-Trails
Conservancy (RTC). On May 12, 2011,
AAR filed a reply to the comments
submitted by MTA, MCT, and RTC. The
comments are summarized in the
discussion below.
Sovereign Immunity and the Statutory
Assumption of ‘‘Full Liability’’
Requirement. The plain language of 16
U.S.C. 1247(d) requires states and
political subdivisions, as well as
qualified private organizations, to
‘‘assume full responsibility for
management’’ of the right-of-way, for
‘‘any legal liability arising out of such
transfer or use’’ of a right-of-way for trail
purposes, and for ‘‘the payment of any
and all taxes that may be levied or
assessed against such rights-of-way.’’
Thus, the trail sponsor must agree to
take complete responsibility for
whatever legal liability might arise due
to interim trail use.
This acceptance-of-liability
requirement might seem potentially at
odds with the statutory language
expressly allowing states and political
subdivisions to be trail sponsors, given
that such entities often have some form
of immunity from legal liability. In
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1986, the ICC resolved this conundrum
by adopting a rule allowing an entity
with legal immunity to satisfy the
statutory requirement by filing a
Statement of Willingness agreeing either
to ‘‘assume full responsibility’’ or to
indemnify the railroad against any
potential liability. See 49 CFR
1152.29(a)(2), (3).
Questions have been raised about the
ability of state entity trail sponsors to
file the required Statements of
Willingness to indemnify the railroad.4
Thus, in the NPRM we requested
comments from the public on what, if
any, changes in our Trails Act rules
could accommodate concerns about the
indemnity requirement in our current
rules, given the plain language of the
statute.5
MTA, RTC, MCT, and AAR filed
comments addressing this issue. MTA
argues that the Board’s current
regulations fail to acknowledge state law
limitations that may prevent an entity
from fully satisfying a claim of liability
or indemnity at the time such a claim
arises because the state must first obtain
legislative authority to obligate funds.
MTA proposes a qualified Statement of
Willingness that would allow a trail
sponsor to express willingness to
assume full responsibility for any legal
liability arising out of the transfer or use
of the ROW, ‘‘to the fullest extent
allowed under applicable state law.’’
RTC and MCT contend that the
indemnification language in the
Statement of Willingness is not
statutorily required. MCT also notes
that, in most instances, the state sponsor
purchases all of the railroad’s interests
in the right-of-way. It claims that, by
accepting the deed, the state sponsor, as
the new owner, automatically assumes
full responsibility for taxes, legal
liability, and management. Thus, MCT
4 See, e.g., Chesapeake R.R.—Certificate of
Interim Trail Use and Termination of Modified Rail
Certificate, FD 32609 (STB served Feb. 24, 2011),
pet. for judicial review pending sub nom. Maryland
Transit Administration v. STB, No. 11–1412 (4th
Cir. filed Apr. 25, 2011) (Chesapeake), where we
declined to allow qualifications to a Statement of
Willingness that would limit the trail sponsor’s
legal liability.
5 As we noted in the NPRM, states interested in
rail banking also have the option to revise their
sovereign immunity laws to accommodate the
Trails Act or can designate trail sponsors other than
the state itself who would not be limited by the
state sovereign immunity laws. Moreover, state
entities have the ability to acquire railroad rightsof-way for use as recreational trails outside of the
framework of the Trails Act, either through
negotiations with the railroad after the line has been
abandoned or through their power of eminent
domain if it authorizes the state to acquire the
necessary property interests on lines that have been
abandoned. See e.g., Consol. Rail Corp.—Aban.
Exemption—in Lancaster & Chester Cntys., Pa., AB
167 (Sub-No. 1095X), slip op. at 4 (STB served Jan.
19, 2005).
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states, the issue of limitations on state
indemnification only arises in the
infrequent instances where the railroad
retains a fee interest and merely leases
or allows use of its property for a trail.
RTC further notes that there are ways in
which a governmental entity can
assume full responsibility without
indemnifying railroads. For instance, it
asserts that many states have enacted
recreational use statutes that protect
railroads from liability arising from
recreational trail use. RTC and MTA
urge the Board to refrain from
interfering with the private contractual
arrangements between trail sponsors
and railroads and suggest that the Board
should defer to the parties to negotiate
an agreement that adequately protects
railroads from any additional liability
resulting from interim trail use.
AAR opposes any changes that would
permit a state entity to qualify its
Statement of Willingness. AAR concurs
in the Board’s view in the NPRM that
the plain language of 16 U.S.C. 1247(d)
specifically requires a trail sponsor to
‘‘assume full responsibility’’ for any
legal liability arising out of the interim
trail use—or, as permitted by the
Board’s regulations, to indemnify the
railroad against any potential liability,
which is the functional equivalent.
Thus, it points out that, even if a
qualified Statement of Willingness were
to be acceptable to the parties, the
arrangement would not comply with the
express requirements of the Trails Act.
AAR also notes that the Board’s current
rule is consistent with the legislative
history, which makes it clear that one of
the policies of the Trails Act is to
encourage railroads to enter into Trails
Act arrangements by ensuring that they
will be protected from potential liability
during the period of interim trail use.6
It disagrees with MCT’s argument that,
where the Trails Act agreement involves
a sale or a donation of the railroad’s
property, state government entities with
immunity can satisfy the hold harmless
requirement simply by accepting title.
AAR explains that there is still a need
to protect an abandoning railroad from
potential legal liability and taxes where
the transfer of the railroad’s interest is
by sale or donation. That is because the
railroad often may not be the actual
owner of the right-of-way, but may be
only the holder of a railroad easement
6 See H.R. Rept. 98–28, 98th Cong. 1st Sess. 8–9
(if ‘‘a state, political subdivision, or qualified
private organization is prepared to assume full
responsibility for the management of such right-ofway, for any legal liability, and for the payment of
any and all taxes * * *—that is to save and hold
the railroad harmless from all these duties and
responsibilities—then the route will not be ordered
abandoned’’).
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that the railroad is permitting the trail
sponsor to use as a trail on an interim
basis, subject to the railroad’s right to
reactivate rail service pursuant to the
existing railroad easement should
circumstances warrant.
We will not adopt MTA’s proposed
qualification to the Statement of
Willingness. The proposal is
inconsistent with the plain language of
§ 1247(d), which specifically requires
that parties assume full responsibility
for legal liability, taxes, and
management of the right-of-way. MTA’s
proposed language potentially limits the
liability of the trail sponsor and thus
raises the possibility of a carrier being
legally liable for activities related to
interim trail use, depending on state law
provisions. This would be contrary to
the express statutory requirement that
every trail sponsor agree to accept ‘‘full
responsibility’’ for any legal liability
arising out of interim trail use. Further,
attempting to determine whether the
provisions of a given state’s laws
conform to the requirements of
§ 1247(d) would be inconsistent with
the Board’s generally ministerial role
under the Trails Act and Congress’
intent to adjudicate rail abandonments
expeditiously. Accordingly, for the
reasons discussed above and in
Chesapeake, with one exception,7 we do
not here make any changes to the
Statement of Willingness rules at 49
CFR 1152.29(a)(2), (3), other than the
minor clarifying changes proposed in
the NPRM.8
Notice of Trail Use Agreement: In the
NPRM, we proposed requiring parties to
notify the Board when an interim trail
use agreement has been reached through
a notice jointly filed by the railroad and
trail sponsor. The notice would require
parties to include a map and specific
description, by milepost markers, of the
right-of-way covered by the trail use
agreement, a certification that the trail
use agreement requires the user to fulfill
the obligations set forth at 49 CFR
1152.29(a)(2), and a statement as to
whether the agreement covers the entire
right-of-way under the CITU/NITU or
only a portion of that right-of-way.
AAR and MCT support a notification
requirement, and RTC does not object to
7 In addition to the changes proposed in the
NPRM, we are changing the word ‘‘user’s’’ to
‘‘sponsor’s’’ in the Statement of Willingness for
consistency of terminology.
8 There are some other prior decisions dealing
with non-conforming Statements of Willingness,
consisting of conflicting Director decisions, none of
which were appealed to the full Board or discussed
the liability issue in depth. In Chesapeake, we
expressly declined to rely on those decisions as
precedent because the Statements of Willingness in
those cases conflicted with the language of the
Trails Act, and we reaffirm that determination here.
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it. RTC and MCT, however, request that
the Board clarify what constitutes an
‘‘agreement’’ and address whether it
refers to an agreement in principle (i.e.,
an agreement to agree), a definitive
contract for sale (subject to customary
due diligence or financial conditions),
or a formal conveyance of a property
interest. MCT also opposes the
requirement that the notice be jointly
filed, stating that the extra level of
coordination required for the joint filing
is unnecessary.
We will adopt the rule as proposed in
the NPRM. We do not find it necessary
to define what constitutes an agreement
because the involved parties can
themselves determine when an
agreement has been reached. Requiring
parties to file the notice jointly will
ensure that parties have reached an
agreement and remove any uncertainty
as to which party is responsible for
filing the notice. Also, the joint-filing
requirement is not burdensome. In lieu
of a filing under the signatures of both
parties, one party may file the notice
and indicate that it has been authorized
to express the other party’s consent.
Modifying/vacating a CITU/NITU:
The Board proposed that, if a trail
sponsor and rail carrier reach an interim
trail use agreement that applies to less
of the right-of-way than is covered by
the CITU/NITU, the notice of trail use
agreement must also include: (1) a
request to vacate the CITU/NITU, thus
permitting abandonment of the portion
of the right-of-way not subject to the
interim trail use agreement; and (2) a
request for a replacement CITU/NITU
that covers only the portion of the rightof-way subject to the interim trail use
agreement.
MCT has no objection to this
proposed rule. AAR believes that the
proposed rule is unnecessarily
cumbersome and fails to reflect the fully
self-executing nature of the CITU/NITU
(that is, if parties are unable to reach a
trail use agreement, the CITU/NITU
automatically allows for a carrier to
exercise its right to abandon the portion
of the line not included in the trail use
agreement once the negotiation period
has expired). Also, AAR is of the view
that the new notice of interim trail use
agreement requirement would address
the Board’s need for information on any
portion of the ROW that the carrier is
authorized (and actually intends) to
abandon under the original CITU/NITU.
We will adopt the rule as proposed.
As explained in the NPRM, the new rule
will promote clarity and ensure that the
Board has accurate information about
any portions of the right-of-way that
will not be rail banked, particularly if a
trail use agreement for a portion of the
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right-of-way is reached before the end of
the negotiating period. The new rule
will not impose any appreciable burden
on the parties.
Providing Additional Notice to
Landowners: In the NPRM, we
explained that the Board and the ICC
previously declined to require
abandoning railroads to give actual
notice to adjacent landowners following
issuance of a CITU/NITU, because
providing actual notice would not be
practical. NPRM at 7–8.9 However, we
specifically requested comments on
whether there are additional means of
providing notification of CITU/NITUs to
landowners that could be used to
augment the current method of
newspaper and Federal Register notice
that could take advantage of advances in
technology but do not create an undue
burden on railroads.
No commenters proposed changes to
the Board’s current notice requirements
(beyond supporting providing notice of
trail use agreements). Moreover, both
AAR and MCT noted that in addition to
the Board’s longstanding notice
requirements, all filings and decisions
are now posted on the Board’s
electronic Web site, which improves
indirect notice to adjoining landowners
of the status of abandonment proposals
and interim trail use requests. As a
result, we will not make any changes to
our rules beyond those proposed in the
NPRM.
Other Issues
In the NPRM, the Board clarified that:
(1) Parties need not file a request to
extend the time for filing the notice of
abandonment consummation when legal
or regulatory conditions (including a
CITU/NITU) remain in effect that bar
consummation of abandonment until
the conditions have been satisfied or
removed; and (2) a substitute trail
sponsor must affirmatively acknowledge
that the continued interim trail use is
subject to possible future restoration of
the right-of-way and reactivation of rail
service. The Board also proposed to
clarify and update certain other
language in 49 CFR 1152.29.10
9 See Nat’l Ass’n of Reversionary Property Owners
v. STB, 158 F.3d 135 (DC Cir. 1998); Rail
Abandonments—Use of Rights-of-way as Trails—
Supplemental Trails Act Procedures, EP 274 (SubNo. 13) (ICC served July 28, 1994).
10 In addition to the changes proposed in the
NPRM, we are clarifying the language in 49 CFR
1152.29(c)(1), so that ‘‘30 days after the date it is
issued,’’ will now read ‘‘30 days after the date the
CITU is issued,’’ and ‘‘180 days after it is issued,’’
will now read, ‘‘180 days after the CITU is issued.’’
Similarly, we are changing the wording in 49 CFR
1152.29(d)(1), so that ‘‘30 days after the date it is
issued,’’ will now read ‘‘30 days after the date the
NITU is issued,’’ and ‘‘180 days after it is issued,’’
will now read, ‘‘180 days after the NITU is issued.’’
PO 00000
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25913
Specifically, we proposed to modify the
language in 49 CFR 1152.29(a)(2), (a)(3),
(c)(2), and (d)(2), so that the wording
more closely conforms to the language
of the Trails Act. We also proposed
minor modifications to the Statement of
Willingness in 49 CFR 1152.29(a)(3) to
describe more accurately the
responsibilities of an interim trail
sponsor. In addition, we proposed to
eliminate the reference to ‘‘NERSA
abandonment proceedings’’ in 49 CFR
1152.29(c), because NERSA is no longer
in effect. We further proposed to modify
the language in 49 CFR 1152.29(c)(1)
and (d)(1), to clarify that the Board will
issue a CITU/NITU for the portion of the
right-of-way as to which both parties are
willing to negotiate interim trail use,
rather than the portion ‘‘to be covered
by the agreement,’’ as what the
agreement may ultimately cover is
unknown at that time. Finally, we
proposed to modify the language in 49
CFR 1152.29(c)(2) to make clear that a
trail sponsor may choose to terminate
interim trail use over only a portion of
the right-of-way covered by the trail use
agreement, while continuing interim
trail use over the remaining portion of
the right-of-way covered by the trail use
agreement. We received no opposition
to these clarifications and thus will
adopt the clarifications as proposed.
Finally, MCT submitted comments
regarding service reactivation over rail
banked lines and compensation.
However, we specifically stated in the
NPRM that we would not address
reactivation issues in this proceeding.
Accordingly, we will not discuss those
comments here.
Applicability of New Rules. As stated
in the NPRM, when these rules become
effective, they will be applicable both to
new CITUs/NITUs and cases where the
CITU/NITU negotiating period has not
yet expired.
Paperwork Reduction Act. In our
NPRM, we described the proposed
collection of information, and we noted
that we had submitted this information
to the Office of Management and Budget
(OMB) for review under the Paperwork
Reduction Act (PRA), 44 U.S.C. 3507(d)
and OMB regulations at 5 CFR 1320.11.
By notice dated May 6, 2011, OMB
assigned to this information collection
OMB Control No. 2140–0017. We are
today submitting this final rule to OMB
for approval. Once approval is received,
we will publish a notice in the Federal
Register to announce the expiration date
assigned by OMB. The display of a
currently valid OMB control number for
this collection is required by law. Under
the PRA and 5 CFR 1320.8, an agency
may not conduct or sponsor, and a
person is not required to respond to, a
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02MYR1
25914
Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules and Regulations
collection of information unless the
collection displays a currently valid
OMB control number.
In our NPRM, we specifically sought
comments on the proposed collection
regarding: (1) Whether the particular
collection of information described
above is necessary for the proper
performance of the functions of the
Board, including whether the collection
has practical utility; (2) the accuracy of
the Board’s burden estimates; (3) ways
to enhance the quality, utility, and
clarity of the information collected; and
(4) ways to minimize the burden of the
collection of information on the
respondents, including the use of
automated collection techniques or
other forms of information technology,
when appropriate.
The comments received in response to
our NPRM give us no reason to modify
the regulations as proposed. No party
has challenged our burden estimates or
proposed a way to further minimize the
burden on respondents from collection
of the information and still provide the
required information.11
Regulatory Flexibility Act. The
Regulatory Flexibility Act of 1980, 5
U.S.C 601–612, generally requires a
description and analysis of rules that
would have significant economic impact
on a substantial number of small
entities. Pursuant to 5 U.S.C. 605(b), we
reaffirm our finding in the NPRM that
our action in this proceeding will not
have a significant impact on a
substantial number of small entities.
This action will not significantly
affect either the quality of the human
environment or the conservation of
energy resources.
List of Subjects in 49 CFR Part 1152
Administrative practice and
procedure, Railroads, Reporting and
recordkeeping requirements, Uniform
system of accounts.
emcdonald on DSK29S0YB1PROD with RULES
Decided: April 25, 2012.
By the Board, Chairman Elliott, Vice
Chairman Mulvey, and Commissioner
Begeman.
Derrick A. Gardner,
Clearance Clerk.
For the reasons set forth in the
preamble, the Surface Transportation
Board amends part 1152 of title 49,
chapter X, of the Code of Federal
Regulations as follows:
11 In the discussion pertaining to small entities in
our NPRM, we explained why the burden of
collection would be minimal. No party has disputed
our explanation.
VerDate Mar<15>2010
15:09 May 01, 2012
Jkt 226001
PART 1152—ABANDONMENT AND
DISCONTINUANCE OF RAIL LINES
AND RAIL TRANSPORTATION UNDER
49 U.S.C. 10903
1. The authority citation for Part 1152
continues to read as follows:
■
Authority: 11 U.S.C. 1170; 16 U.S.C
1247(d) and 1248; 45 U.S.C. 744; and 49
U.S.C. 701 note (1995) (section 204 of the ICC
Termination Act of 1995), 721(a), 10502,
10903–10905, and 11161.
2. Amend § 1152.29 by revising
paragraphs (a)(2), (a)(3), (c) heading,
(c)(1), (c)(2) introductory text, (c)(2)(iii),
(d)(1), (d)(2) introductory text, and
(d)(2)(iii) and by adding paragraphs
(f)(1)(iii) and (h) to read as follows:
■
§ 1152.29 Prospective use of rights-of-way
for interim trail use and rail banking.
(a) * * *
(2) A statement indicating the trail
sponsor’s willingness to assume full
responsibility for:
(i) Managing the right-of-way;
(ii) Any legal liability arising out of
the transfer or use of the right-of-way
(unless the user is immune from
liability, in which case it need only
indemnify the railroad against any
potential liability); and
(iii) The payment of any and all taxes
that may be levied or assessed against
the right-of-way; and
(3) An acknowledgment that interim
trail use is subject to the sponsor’s
continuing to meet its responsibilities
described in paragraph (a)(2) of this
section, and subject to possible future
reconstruction and reactivation of the
right-of-way for rail service. The
statement must be in the following form:
Statement of Willingness To Assume
Financial Responsibility
In order to establish interim trail use
and rail banking under 16 U.S.C.
1247(d) and 49 CFR 1152.29 with
respect to the right-of-way owned by
llllllll (Railroad) and
operated by llllllll
(Railroad), llllllll (Interim
Trail Sponsor) is willing to assume full
responsibility for: (1) Managing the
right-of-way, (2) any legal liability
arising out of the transfer or use of the
right-of-way (unless the sponsor is
immune from liability, in which case it
need only indemnify the railroad
against any potential liability), and (3)
the payment of any and all taxes that
may be levied or assessed against the
right of way. The property, known as
llllllll (Name of Branch
Line), extends from railroad milepost
llllllll near llllllll
(Station Name), to railroad milepost
llllll, near llllllll
PO 00000
Frm 00050
Fmt 4700
Sfmt 4700
(Station name), a distance of
llllll miles in [County(ies),
(State(s)]. The right-of-way is part of a
line of railroad proposed for
abandonment in Docket No. STB AB
llllllll (Sub-No.
llllllll). A map of the
property depicting the right-of-way is
attached.
llllllll (Interim Trail
Sponsor) acknowledges that use of the
right-of-way is subject to the sponsor’s
continuing to meet its responsibilities
described above and subject to possible
future reconstruction and reactivation of
the right-of-way for rail service. A copy
of this statement is being served on the
railroad(s) on the same date it is being
served on the Board.
*
*
*
*
*
(c) Regular abandonment
proceedings. (1) If continued rail service
does not occur pursuant to 49 U.S.C.
10904 and Sec. 1152.27, and a railroad
agrees to negotiate an interim trail use/
rail banking agreement, then the Board
will issue a CITU to the railroad and to
the interim trail sponsor for that portion
of the right-of-way as to which both
parties are willing to negotiate. The
CITU will: Permit the railroad to
discontinue service, cancel any
applicable tariffs, and salvage track and
material consistent with interim trail
use and rail banking, as long as it is
consistent with any other Board order,
30 days after the date the CITU is
issued; and permit the railroad to fully
abandon the line if no trail use
agreement is reached 180 days after the
CITU is issued, subject to appropriate
conditions, including labor protection
and environmental matters.
(2) The CITU will indicate that any
interim trail use is subject to future
restoration of rail service and to the
sponsor’s continuing to meet its
responsibilities described in paragraph
(a)(2) of this section. The CITU will also
provide that, if an interim trail use
agreement is reached (and thus interim
trail use established), the parties shall
file the notice described in paragraph
(h) of this section. Additionally, the
CITU will provide that if the sponsor
intends to terminate interim trail use on
all or any portion of the right-of-way
covered by the interim trail use
agreement, it must send the Board a
copy of the CITU and request that it be
vacated on a specified date. If a party
requests that the CITU be vacated for
only a portion of the right-of-way, the
Board will issue an appropriate
replacement CITU covering the
remaining portion of the right-of-way
subject to the interim trail use
agreement. The Board will reopen the
E:\FR\FM\02MYR1.SGM
02MYR1
emcdonald on DSK29S0YB1PROD with RULES
Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules and Regulations
abandonment proceeding, vacate the
CITU, and issue a decision permitting
immediate abandonment for the
involved portion of the right-of-way.
Copies of the decision will be sent to:
*
*
*
*
*
(iii) The current trail sponsor.
*
*
*
*
*
(d) * * *
(1) If continued rail service does not
occur under 49 U.S.C. 10904 and
1152.27 and a railroad agrees to
negotiate an interim trail use/rail
banking agreement, then the Board will
issue a Notice of Interim Trail Use or
Abandonment (NITU) to the railroad
and to the interim trail sponsor for the
portion of the right-of-way as to which
both parties are willing to negotiate. The
NITU will: Permit the railroad to
discontinue service, cancel any
applicable tariffs, and salvage track and
materials, consistent with interim trail
use and rail banking, as long as it is
consistent with any other Board order,
30 days after the date the NITU is
issued; and permit the railroad to fully
abandon the line if no agreement is
reached 180 days after the NITU is
issued, subject to appropriate
conditions, including labor protection
and environmental matters.
(2) The NITU will indicate that
interim trail use is subject to future
restoration of rail service and to the
sponsor’s continuing to meet its
responsibilities described in paragraph
(a)(2) of this section. The NITU will also
provide that, if an interim trail use
agreement is reached (and thus interim
trail use established), the parties shall
file the notice described in paragraph
(h) of this section. Additionally, the
NITU will provide that if the sponsor
intends to terminate interim trail use on
all or any portion of the right-of-way
covered by the interim trail use
agreement, it must send the Board a
copy of the NITU and request that it be
vacated on a specific date. If a party
requests that the NITU be vacated for
only a portion of the right-of-way, the
Board will issue an appropriate
replacement NITU covering the
remaining portion of the right-of-way
subject to the interim trail use
agreement. The Board will reopen the
exemption proceeding, vacate the NITU,
and issue a decision reinstating the
exemption for that portion of the rightof-way. Copies of the decision will be
sent to:
*
*
*
*
*
(iii) The current trail sponsor.
*
*
*
*
*
(f) (1) * * *
(iii) An acknowledgement that interim
trail use is subject to possible future
VerDate Mar<15>2010
15:09 May 01, 2012
Jkt 226001
reconstruction and reactivation of the
right-of-way for rail service.
*
*
*
*
*
(h) When the parties negotiating for
rail banking/interim trail use reach an
agreement, the trail sponsor and railroad
shall jointly notify the Board within 10
days that the agreement has been
reached. The notice shall include a map
depicting, and an accurate description
of, the involved right-of-way or portion
thereof (including mileposts) that is
subject to the parties’ interim trail use
agreement and a certification that the
interim trail use agreement includes
provisions requiring the sponsor to
fulfill the responsibilities described in
paragraph (a)(2) of this section.
Additionally, if the interim trail use
agreement establishes interim trail use
over less of the right-of-way than is
covered by the CITU or NITU, the notice
shall also include a request that the
Board vacate the CITU or NITU and
issue a replacement CITU/NITU for only
the portion of the right-of-way covered
by the interim trail use agreement. The
Board will reopen the abandonment
proceeding, vacate the CITU or NITU,
issue an appropriate replacement CITU
or NITU for only the portion of the
right-of-way covered by the interim trail
use agreement, and issue a decision
permitting immediate abandonment of
the portion of the right-of-way not
subject to the interim trail use
agreement. Copies of the decision will
be sent to:
(1) The rail carrier that sought
abandonment authorization;
(2) The owner of the right-of-way; and
(3) The current trail sponsor.
[FR Doc. 2012–10467 Filed 4–30–12; 11:15 am]
BILLING CODE 4915–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 120424023–1023–01]
RIN 0648–XA921
Fisheries Off West Coast States; West
Coast Salmon Fisheries; 2012
Management Measures
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; request for
comments; notice of availability of an
environmental assessment.
AGENCY:
PO 00000
Frm 00051
Fmt 4700
Sfmt 4700
25915
Through this final rule NMFS
establishes fishery management
measures for the 2012 ocean salmon
fisheries off Washington, Oregon, and
California and the 2013 salmon seasons
opening earlier than May 1, 2013.
Specific fishery management measures
vary by fishery and by area. The
measures establish fishing areas,
seasons, quotas, legal gear, recreational
fishing days and catch limits,
possession and landing restrictions, and
minimum lengths for salmon taken in
the U.S. exclusive economic zone (EEZ)
(3–200 NM) off Washington, Oregon,
and California. The management
measures are intended to prevent
overfishing and to apportion the ocean
harvest equitably among treaty Indian,
non-treaty commercial, and recreational
fisheries. The measures are also
intended to allow a portion of the
salmon runs to escape the ocean
fisheries in order to provide for
spawning escapement and to provide for
inside fisheries (fisheries occurring in
state internal waters). This document
also announces the availability of an
environmental assessment (EA)
analyzing the environmental impacts of
implementing the 2012 ocean salmon
management measures.
DATES: This final rule is effective from
0001 hours Pacific Daylight Time, May
1, 2012, until the effective date of the
2013 management measures, as
published in the Federal Register.
Comments must be received by May
17, 2012.
ADDRESSES: You may submit comments,
identified by NOAA–NMFS–2012–0079,
by any one of the following methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal e-Rulemaking Portal https://
www.regulations.gov. To submit
comments via the e-Rulemaking Portal,
first click the ‘‘submit a comment’’ icon,
then enter NOAA–NMFS–2012–0079 in
the keyword search. Locate the
document you wish to comment on
from the resulting list and click on the
‘‘Submit a Comment’’ icon on the right
of that line.
• Fax: 206–526–6736 Attn: Peggy
Mundy, or 562–980–4047 Attn: Heidi
Taylor.
• Mail: William W. Stelle, Jr.,
Regional Administrator, Northwest
Region, NMFS, 7600 Sand Point Way
NE., Seattle, WA 98115–0070 or to Rod
McInnis, Regional Administrator,
Southwest Region, NMFS, 501 West
Ocean Boulevard, Suite 4200, Long
Beach, CA 90802–4213.
Instructions: Comments must be
submitted by one of the above methods
to ensure that the comments are
SUMMARY:
E:\FR\FM\02MYR1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 85 (Wednesday, May 2, 2012)]
[Rules and Regulations]
[Pages 25910-25915]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-10467]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Part 1152
[Docket No. EP 702]
National Trails System Act and Railroad Rights-of-Way
AGENCY: Surface Transportation Board, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Surface Transportation Board (Board or STB) is changing,
clarifying, and updating some of its existing regulations and
procedures regarding the use of railroad rights-of-way (ROW) for rail
banking and interim trail use under the National Trails System Act
(Trails Act). New rules are adopted that require the parties jointly to
notify the Board when an interim trail use/rail banking agreement has
been reached. The new rules also require parties to ask the Board to
vacate a trail condition and issue a replacement trail condition
covering the portion of right-of-way subject to the trail use agreement
if their trail use agreement covers only part of the right-of-way. In
addition, the final rules clarify that a new party who assumes
responsibility for a recreational trail must acknowledge that the
interim trail use is subject to future reactivation of the railroad
line.
DATES: This rule is effective on May 30, 2012.
ADDRESSES: Information or questions regarding this final rule should
reference Docket No. EP 702 and be in writing addressed to: Chief,
Section of Administration, Office of Proceedings, Surface
Transportation Board, 395 E Street SW., Washington, DC 20423-0001.
FOR FURTHER INFORMATION CONTACT: Julia Farr at (202) 245-0359.
Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at 1-800-877-8339.
SUPPLEMENTARY INFORMATION: On February 16, 2011, the Board served a
notice of proposed rulemaking (NPRM), in which it proposed to change,
clarify, and update some of its existing regulations at 49 CFR 1152.29
regarding the use of railroad rights-of-way for rail banking and
interim trail use under the Trails Act, 16 U.S.C. 1247(d).\1\ The Board
asked for comments on a proposed rule requiring the railroad and the
trail sponsor jointly to notify the Board when a trail use agreement
has been reached and to notify the Board of the exact location of the
right-of-way subject to the interim trail use agreement by including a
map and milepost marker information. We also proposed a rule to require
parties to ask the Board to vacate the Certificate of Interim Trail Use
(CITU) or Notice of Interim Trail Use (NITU) when an interim trail use
agreement covers only a portion of the right-of-way and request a
replacement CITU/NITU to cover the portion of the right-of-way subject
to the trail use agreement. Finally, we proposed a rule to clarify that
a substitute trail sponsor must acknowledge that interim trail use is
subject to reactivation at any time and suggested other minor
modifications to clarify and update the existing regulations at 49 CFR
1152.29. In addition to these specific proposals, we invited comments
on what, if any, changes to the Trails Act rules would address concerns
about the Board's regulations specifying what a state must do to
satisfy the Trails Act's assumption-of-liability requirement, and
whether the current methods of providing notice to adjoining landowners
could be augmented by additional methods of indirect notice that take
advantage of advances in technology without creating an undue burden on
rail carriers.
---------------------------------------------------------------------------
\1\ The notice of proposed rulemaking was published at 76 FR
8992-95.
---------------------------------------------------------------------------
Background. The Trails Act was enacted in 1968 to establish a
nationwide system of recreation and scenic trails. National Trails
System Act, Public Law. 90-543, Sec. 2(b), 82 Stat. 919 (1968)
(codified, as amended, at 16 U.S.C. 1241-1251). As originally enacted,
it did not contain any special provisions for railroad rights-of-way.
In 1983, however, Congress added a rail section, codified at 16 U.S.C.
1247(d), to advance two declared policies: preserving unused railroad
rights-of-way for possible future rail use and promoting nature trails.
See Preseault v. ICC, 494 U.S. 1, 17-18 (1990).
The enactment of the ``Rails-to-Trails'' provision followed a
history of Congressional concern about the loss of rail corridors as a
national transportation resource. See id. at 5; Birt v. STB, 90 F.3d
580, 582-83 (DC Cir. 1996). Under 16 U.S.C. 1247(d), the STB must
``preserve established railroad rights-of-way for future reactivation
of rail service'' by prohibiting abandonment where a trail sponsor
offers to assume managerial, tax, and legal responsibility for a right-
of-way for use in the interim as a trail. Nat'l Wildlife Fed'n v. ICC,
850 F.2d 694, 699-702 (DC Cir. 1988). The statute provides that, if
such interim use is subject to restoration or reconstruction for
railroad purposes, the ``interim use shall not be treated, for purposes
of any law or rule of law, as an abandonment. * * *'' 16 U.S.C.
1247(d). Instead, the right-of-way is ``rail banked,'' which means that
the railroad (or any other approved rail service provider) may reassert
control at any time in order to restore service on the line. 49 CFR
1152.29(c)(2), (d)(2); Birt, 90 F.3d at 583.\2\ If a line is rail
banked and designated for trail use, any reversion to adjoining
landowners that might otherwise occur under state law upon
[[Page 25911]]
abandonment is postponed. Preseault, 494 U.S. at 8; Birt, 90 F.3d at
583.
---------------------------------------------------------------------------
\2\ The Board's predecessor, the Interstate Commerce Commission
(ICC), promulgated final rules implementing the Trails Act in Rail
Abans.--Use of Rights-of-Way as Trails (49 CFR parts 1105 & 1152), 2
I.C.C. 2d 591 (1986) (Rail Abandonments). The agency has modified or
clarified its Trails Act rules since that time. See, e.g., Aban. &
Discontinuance of Rail Lines & Rail Transp. Under 49 U.S.C. 10903, 1
S.T.B. 894 (1996); Policy Statement on Rails to Trails Conversions,
EP 272 (Sub-No. 13B) (ICC served Jan. 29, 1990); Rail Abans.--Use of
Rights-of-Way as Trails--Supplemental Trails Act Procedures, 4
I.C.C. 2d 152 (1987).
---------------------------------------------------------------------------
To invoke the Trails Act, a prospective trail sponsor must first
file a request with the STB accompanied by a Statement of Willingness
to assume responsibility for management, legal liability, and payment
of taxes, and an acknowledgement that interim trail use is subject to
restoration of rail service at any time. 49 CFR 1152.29(a), (d). If the
railroad indicates its willingness to negotiate a rail banking/interim
trail use agreement, the STB will issue a CITU (in an abandonment
application proceeding) or a NITU (in an abandonment exemption
proceeding) for the line.\3\ 49 CFR 1152.29(c)(1), (d)(1). The CITU/
NITU permits parties to negotiate for a 180-day period (which can be
extended by Board order) to reach a rail banking interim trail use
agreement. Id.; Preseault, 494 U.S. at 7 n.5; Birt, 90 F.3d at 583.
---------------------------------------------------------------------------
\3\ There is no substantive difference between rail banking
authorized under a NITU and a CITU.
---------------------------------------------------------------------------
The terms of any subsequently reached trail use agreement
(including compensation issues related to the potential reactivation of
rail service) are the product of private negotiations between the
railroad and trail sponsor. The Board has never required that trail use
agreements, or notice that the parties have even reached an agreement,
be submitted to the agency. Ga. Great S. Div.--Aban. & Discontinuance
Exemption--Between Albany & Dawson, in Terrell, Lee, & Dougherty
Counties, Ga., 6 S.T.B. 902, 907 (2003).
If the parties reach an agreement, the CITU/NITU automatically
authorizes rail banking/interim trail use. Preseault, 494 U.S. at 7
n.5. Without further action from the STB, the trail sponsor may then
assume management of the right-of-way, subject to the right of a
railroad to reassert control of the property for restoration or
reconstruction of rail service. 49 CFR 1152.29(c)(2), (d)(2); Birt, 90
F.3d at 583. If, on the other hand, no rail banking/interim trail use
arrangement is reached, then upon expiration of the CITU/NITU 180-day
negotiation period (and any extension thereof), the CITU/NITU
authorizes the railroad to ``exercise its option to fully abandon'' the
line by consummating the abandonment, without further action by the
agency, see Birt, 90 F.3d at 583, provided that there are no unmet
conditions imposed on the abandonment authority that must be satisfied.
See 49 CFR 1152.29(c)(1) and (d)(1); Consummation of Rail Line Abans.
That Are Subject to Historic Pres. & Other Envtl. Conditions, EP 678,
slip op. at 3-4 (STB served Apr. 23, 2008); Puget Sound & Pacific
R.R.--Aban. Exemption--in Grays Harbor Cnty., Wash., AB 1023 (Sub-No.
1X) (STB served Sept. 13, 2011). During the negotiating period, the
railroad is authorized to discontinue service and salvage track
materials from the line, as such actions are fully consistent with rail
banking/interim trail use. Preseault, 494 U.S. at 7 n.5; Birt, 90 F.3d
at 583, 586.
A rail banking/interim trail use arrangement is subject to being
cut off at any time for the reinstitution of rail service. 49 CFR
1152.29(c)(2), (d)(2). A rail-banked line is not abandoned, but rather
remains part of the national rail system, albeit temporarily unused for
railroad operations. Thus, if and when a railroad wishes to restore
rail service on all or part of the property, it may request that the
CITU/NITU be vacated to permit reactivation of the line for continued
rail service. See, e.g., Ga. Great S., 6 S.T.B. at 906.
Alternatively, rail banking/interim trail use may be terminated by
the trail sponsor, pursuant to any applicable terms of the privately
negotiated trail use agreement. In that instance, upon notice from the
trail sponsor that it is terminating interim trail use, the Board will
issue a decision vacating the CITU/NITU and permitting immediate
abandonment for the involved portion of the right-of-way, thereby
allowing, but not requiring, the railroad to consummate abandonment,
subject to compliance with any conditions that must be satisfied. 49
CFR 1152.29(c)(2) and (d)(2); see 49 CFR 1152.29(e)(2).
Rail banking/interim trail use authorization also may be
transferred from one trail sponsor to another. 49 CFR 1152.29(f). To
effect a transfer, the existing and proposed trail sponsors jointly
submit to the Board a copy of the governing CITU/NITU, a statement of
the proposed trail sponsor's willingness to assume the management,
liability, and tax responsibilities for the trail, and the date on
which responsibility for the right-of-way is to transfer to the new
trail sponsor. Id. The Board will then reopen the abandonment
proceeding to vacate the existing CITU/NITU and replace it with a new
CITU/NITU reflecting the new trail sponsor. Id.
The STB's role under the Trails Act is limited and largely
ministerial. Citizens Against Rails-to-Trails v. STB, 267 F.3d 1144,
1151-52 (D.C. Cir. 2001) (CART); Goos v. ICC, 911 F.2d 1283, 1295 (8th
Cir. 1990) (agency has ``little, if any, discretion to forestall a
voluntary agreement to effect a conversion to trail use''). The STB
plays no part in the negotiations between trail sponsors and railroads,
nor does it analyze, approve, or set the terms of rail banking/interim
trail use agreements. Ga. Great S., 6 S.T.B. at 907. The Board does not
``regulate activities over the actual trail, and [has] no involvement
in the type, level, or condition of the trail. * * *'' Id. Moreover,
the Board has no specific fitness or qualification test for trail
sponsors; it requires only the Statement of Willingness from the trail
sponsor to assume liability and to pay taxes, and the acquiescence of
the railroad in rail banking. The Board has the authority to terminate
rail banking/interim trail use if it determines that the trail sponsor
does not have the ability to continue to meet the management, tax, and
liability conditions of interim trail use. See 49 CFR 1152.29(a)(3);
Jost v. STB, 194 F.3d 79, 89-90 (D.C. Cir. 1999).
The STB retains jurisdiction over a rail line throughout the CITU/
NITU negotiating period, any period of rail banking/interim trail use,
and any period during which rail service is restored. It is only upon a
railroad's lawful consummation of abandonment authority that the
Board's jurisdiction ends. See 16 U.S.C. 1247(d); Preseault, 494 U.S.
at 6. At that point, the right-of-way may revert to reversionary
landowner interests, if any, pursuant to state law. Preseault, 494 U.S.
at 5, 8.
Discussion. Pursuant to the procedural schedule set forth in the
NPRM, comments were filed by the Association of American Railroads
(AAR), Maryland Transit Administration (MTA), Madison County Transit
(MCT), and the Rails-to-Trails Conservancy (RTC). On May 12, 2011, AAR
filed a reply to the comments submitted by MTA, MCT, and RTC. The
comments are summarized in the discussion below.
Sovereign Immunity and the Statutory Assumption of ``Full
Liability'' Requirement. The plain language of 16 U.S.C. 1247(d)
requires states and political subdivisions, as well as qualified
private organizations, to ``assume full responsibility for management''
of the right-of-way, for ``any legal liability arising out of such
transfer or use'' of a right-of-way for trail purposes, and for ``the
payment of any and all taxes that may be levied or assessed against
such rights-of-way.'' Thus, the trail sponsor must agree to take
complete responsibility for whatever legal liability might arise due to
interim trail use.
This acceptance-of-liability requirement might seem potentially at
odds with the statutory language expressly allowing states and
political subdivisions to be trail sponsors, given that such entities
often have some form of immunity from legal liability. In
[[Page 25912]]
1986, the ICC resolved this conundrum by adopting a rule allowing an
entity with legal immunity to satisfy the statutory requirement by
filing a Statement of Willingness agreeing either to ``assume full
responsibility'' or to indemnify the railroad against any potential
liability. See 49 CFR 1152.29(a)(2), (3).
Questions have been raised about the ability of state entity trail
sponsors to file the required Statements of Willingness to indemnify
the railroad.\4\ Thus, in the NPRM we requested comments from the
public on what, if any, changes in our Trails Act rules could
accommodate concerns about the indemnity requirement in our current
rules, given the plain language of the statute.\5\
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\4\ See, e.g., Chesapeake R.R.--Certificate of Interim Trail Use
and Termination of Modified Rail Certificate, FD 32609 (STB served
Feb. 24, 2011), pet. for judicial review pending sub nom. Maryland
Transit Administration v. STB, No. 11-1412 (4th Cir. filed Apr. 25,
2011) (Chesapeake), where we declined to allow qualifications to a
Statement of Willingness that would limit the trail sponsor's legal
liability.
\5\ As we noted in the NPRM, states interested in rail banking
also have the option to revise their sovereign immunity laws to
accommodate the Trails Act or can designate trail sponsors other
than the state itself who would not be limited by the state
sovereign immunity laws. Moreover, state entities have the ability
to acquire railroad rights-of-way for use as recreational trails
outside of the framework of the Trails Act, either through
negotiations with the railroad after the line has been abandoned or
through their power of eminent domain if it authorizes the state to
acquire the necessary property interests on lines that have been
abandoned. See e.g., Consol. Rail Corp.--Aban. Exemption--in
Lancaster & Chester Cntys., Pa., AB 167 (Sub-No. 1095X), slip op. at
4 (STB served Jan. 19, 2005).
---------------------------------------------------------------------------
MTA, RTC, MCT, and AAR filed comments addressing this issue. MTA
argues that the Board's current regulations fail to acknowledge state
law limitations that may prevent an entity from fully satisfying a
claim of liability or indemnity at the time such a claim arises because
the state must first obtain legislative authority to obligate funds.
MTA proposes a qualified Statement of Willingness that would allow a
trail sponsor to express willingness to assume full responsibility for
any legal liability arising out of the transfer or use of the ROW, ``to
the fullest extent allowed under applicable state law.''
RTC and MCT contend that the indemnification language in the
Statement of Willingness is not statutorily required. MCT also notes
that, in most instances, the state sponsor purchases all of the
railroad's interests in the right-of-way. It claims that, by accepting
the deed, the state sponsor, as the new owner, automatically assumes
full responsibility for taxes, legal liability, and management. Thus,
MCT states, the issue of limitations on state indemnification only
arises in the infrequent instances where the railroad retains a fee
interest and merely leases or allows use of its property for a trail.
RTC further notes that there are ways in which a governmental entity
can assume full responsibility without indemnifying railroads. For
instance, it asserts that many states have enacted recreational use
statutes that protect railroads from liability arising from
recreational trail use. RTC and MTA urge the Board to refrain from
interfering with the private contractual arrangements between trail
sponsors and railroads and suggest that the Board should defer to the
parties to negotiate an agreement that adequately protects railroads
from any additional liability resulting from interim trail use.
AAR opposes any changes that would permit a state entity to qualify
its Statement of Willingness. AAR concurs in the Board's view in the
NPRM that the plain language of 16 U.S.C. 1247(d) specifically requires
a trail sponsor to ``assume full responsibility'' for any legal
liability arising out of the interim trail use--or, as permitted by the
Board's regulations, to indemnify the railroad against any potential
liability, which is the functional equivalent. Thus, it points out
that, even if a qualified Statement of Willingness were to be
acceptable to the parties, the arrangement would not comply with the
express requirements of the Trails Act. AAR also notes that the Board's
current rule is consistent with the legislative history, which makes it
clear that one of the policies of the Trails Act is to encourage
railroads to enter into Trails Act arrangements by ensuring that they
will be protected from potential liability during the period of interim
trail use.\6\ It disagrees with MCT's argument that, where the Trails
Act agreement involves a sale or a donation of the railroad's property,
state government entities with immunity can satisfy the hold harmless
requirement simply by accepting title. AAR explains that there is still
a need to protect an abandoning railroad from potential legal liability
and taxes where the transfer of the railroad's interest is by sale or
donation. That is because the railroad often may not be the actual
owner of the right-of-way, but may be only the holder of a railroad
easement that the railroad is permitting the trail sponsor to use as a
trail on an interim basis, subject to the railroad's right to
reactivate rail service pursuant to the existing railroad easement
should circumstances warrant.
---------------------------------------------------------------------------
\6\ See H.R. Rept. 98-28, 98th Cong. 1st Sess. 8-9 (if ``a
state, political subdivision, or qualified private organization is
prepared to assume full responsibility for the management of such
right-of-way, for any legal liability, and for the payment of any
and all taxes * * *--that is to save and hold the railroad harmless
from all these duties and responsibilities--then the route will not
be ordered abandoned'').
---------------------------------------------------------------------------
We will not adopt MTA's proposed qualification to the Statement of
Willingness. The proposal is inconsistent with the plain language of
Sec. 1247(d), which specifically requires that parties assume full
responsibility for legal liability, taxes, and management of the right-
of-way. MTA's proposed language potentially limits the liability of the
trail sponsor and thus raises the possibility of a carrier being
legally liable for activities related to interim trail use, depending
on state law provisions. This would be contrary to the express
statutory requirement that every trail sponsor agree to accept ``full
responsibility'' for any legal liability arising out of interim trail
use. Further, attempting to determine whether the provisions of a given
state's laws conform to the requirements of Sec. 1247(d) would be
inconsistent with the Board's generally ministerial role under the
Trails Act and Congress' intent to adjudicate rail abandonments
expeditiously. Accordingly, for the reasons discussed above and in
Chesapeake, with one exception,\7\ we do not here make any changes to
the Statement of Willingness rules at 49 CFR 1152.29(a)(2), (3), other
than the minor clarifying changes proposed in the NPRM.\8\
---------------------------------------------------------------------------
\7\ In addition to the changes proposed in the NPRM, we are
changing the word ``user's'' to ``sponsor's'' in the Statement of
Willingness for consistency of terminology.
\8\ There are some other prior decisions dealing with non-
conforming Statements of Willingness, consisting of conflicting
Director decisions, none of which were appealed to the full Board or
discussed the liability issue in depth. In Chesapeake, we expressly
declined to rely on those decisions as precedent because the
Statements of Willingness in those cases conflicted with the
language of the Trails Act, and we reaffirm that determination here.
---------------------------------------------------------------------------
Notice of Trail Use Agreement: In the NPRM, we proposed requiring
parties to notify the Board when an interim trail use agreement has
been reached through a notice jointly filed by the railroad and trail
sponsor. The notice would require parties to include a map and specific
description, by milepost markers, of the right-of-way covered by the
trail use agreement, a certification that the trail use agreement
requires the user to fulfill the obligations set forth at 49 CFR
1152.29(a)(2), and a statement as to whether the agreement covers the
entire right-of-way under the CITU/NITU or only a portion of that
right-of-way.
AAR and MCT support a notification requirement, and RTC does not
object to
[[Page 25913]]
it. RTC and MCT, however, request that the Board clarify what
constitutes an ``agreement'' and address whether it refers to an
agreement in principle (i.e., an agreement to agree), a definitive
contract for sale (subject to customary due diligence or financial
conditions), or a formal conveyance of a property interest. MCT also
opposes the requirement that the notice be jointly filed, stating that
the extra level of coordination required for the joint filing is
unnecessary.
We will adopt the rule as proposed in the NPRM. We do not find it
necessary to define what constitutes an agreement because the involved
parties can themselves determine when an agreement has been reached.
Requiring parties to file the notice jointly will ensure that parties
have reached an agreement and remove any uncertainty as to which party
is responsible for filing the notice. Also, the joint-filing
requirement is not burdensome. In lieu of a filing under the signatures
of both parties, one party may file the notice and indicate that it has
been authorized to express the other party's consent.
Modifying/vacating a CITU/NITU: The Board proposed that, if a trail
sponsor and rail carrier reach an interim trail use agreement that
applies to less of the right-of-way than is covered by the CITU/NITU,
the notice of trail use agreement must also include: (1) a request to
vacate the CITU/NITU, thus permitting abandonment of the portion of the
right-of-way not subject to the interim trail use agreement; and (2) a
request for a replacement CITU/NITU that covers only the portion of the
right-of-way subject to the interim trail use agreement.
MCT has no objection to this proposed rule. AAR believes that the
proposed rule is unnecessarily cumbersome and fails to reflect the
fully self-executing nature of the CITU/NITU (that is, if parties are
unable to reach a trail use agreement, the CITU/NITU automatically
allows for a carrier to exercise its right to abandon the portion of
the line not included in the trail use agreement once the negotiation
period has expired). Also, AAR is of the view that the new notice of
interim trail use agreement requirement would address the Board's need
for information on any portion of the ROW that the carrier is
authorized (and actually intends) to abandon under the original CITU/
NITU.
We will adopt the rule as proposed. As explained in the NPRM, the
new rule will promote clarity and ensure that the Board has accurate
information about any portions of the right-of-way that will not be
rail banked, particularly if a trail use agreement for a portion of the
right-of-way is reached before the end of the negotiating period. The
new rule will not impose any appreciable burden on the parties.
Providing Additional Notice to Landowners: In the NPRM, we
explained that the Board and the ICC previously declined to require
abandoning railroads to give actual notice to adjacent landowners
following issuance of a CITU/NITU, because providing actual notice
would not be practical. NPRM at 7-8.\9\ However, we specifically
requested comments on whether there are additional means of providing
notification of CITU/NITUs to landowners that could be used to augment
the current method of newspaper and Federal Register notice that could
take advantage of advances in technology but do not create an undue
burden on railroads.
---------------------------------------------------------------------------
\9\ See Nat'l Ass'n of Reversionary Property Owners v. STB, 158
F.3d 135 (DC Cir. 1998); Rail Abandonments--Use of Rights-of-way as
Trails--Supplemental Trails Act Procedures, EP 274 (Sub-No. 13) (ICC
served July 28, 1994).
---------------------------------------------------------------------------
No commenters proposed changes to the Board's current notice
requirements (beyond supporting providing notice of trail use
agreements). Moreover, both AAR and MCT noted that in addition to the
Board's longstanding notice requirements, all filings and decisions are
now posted on the Board's electronic Web site, which improves indirect
notice to adjoining landowners of the status of abandonment proposals
and interim trail use requests. As a result, we will not make any
changes to our rules beyond those proposed in the NPRM.
Other Issues
In the NPRM, the Board clarified that: (1) Parties need not file a
request to extend the time for filing the notice of abandonment
consummation when legal or regulatory conditions (including a CITU/
NITU) remain in effect that bar consummation of abandonment until the
conditions have been satisfied or removed; and (2) a substitute trail
sponsor must affirmatively acknowledge that the continued interim trail
use is subject to possible future restoration of the right-of-way and
reactivation of rail service. The Board also proposed to clarify and
update certain other language in 49 CFR 1152.29.\10\ Specifically, we
proposed to modify the language in 49 CFR 1152.29(a)(2), (a)(3),
(c)(2), and (d)(2), so that the wording more closely conforms to the
language of the Trails Act. We also proposed minor modifications to the
Statement of Willingness in 49 CFR 1152.29(a)(3) to describe more
accurately the responsibilities of an interim trail sponsor. In
addition, we proposed to eliminate the reference to ``NERSA abandonment
proceedings'' in 49 CFR 1152.29(c), because NERSA is no longer in
effect. We further proposed to modify the language in 49 CFR
1152.29(c)(1) and (d)(1), to clarify that the Board will issue a CITU/
NITU for the portion of the right-of-way as to which both parties are
willing to negotiate interim trail use, rather than the portion ``to be
covered by the agreement,'' as what the agreement may ultimately cover
is unknown at that time. Finally, we proposed to modify the language in
49 CFR 1152.29(c)(2) to make clear that a trail sponsor may choose to
terminate interim trail use over only a portion of the right-of-way
covered by the trail use agreement, while continuing interim trail use
over the remaining portion of the right-of-way covered by the trail use
agreement. We received no opposition to these clarifications and thus
will adopt the clarifications as proposed.
---------------------------------------------------------------------------
\10\ In addition to the changes proposed in the NPRM, we are
clarifying the language in 49 CFR 1152.29(c)(1), so that ``30 days
after the date it is issued,'' will now read ``30 days after the
date the CITU is issued,'' and ``180 days after it is issued,'' will
now read, ``180 days after the CITU is issued.'' Similarly, we are
changing the wording in 49 CFR 1152.29(d)(1), so that ``30 days
after the date it is issued,'' will now read ``30 days after the
date the NITU is issued,'' and ``180 days after it is issued,'' will
now read, ``180 days after the NITU is issued.''
---------------------------------------------------------------------------
Finally, MCT submitted comments regarding service reactivation over
rail banked lines and compensation. However, we specifically stated in
the NPRM that we would not address reactivation issues in this
proceeding. Accordingly, we will not discuss those comments here.
Applicability of New Rules. As stated in the NPRM, when these rules
become effective, they will be applicable both to new CITUs/NITUs and
cases where the CITU/NITU negotiating period has not yet expired.
Paperwork Reduction Act. In our NPRM, we described the proposed
collection of information, and we noted that we had submitted this
information to the Office of Management and Budget (OMB) for review
under the Paperwork Reduction Act (PRA), 44 U.S.C. 3507(d) and OMB
regulations at 5 CFR 1320.11.
By notice dated May 6, 2011, OMB assigned to this information
collection OMB Control No. 2140-0017. We are today submitting this
final rule to OMB for approval. Once approval is received, we will
publish a notice in the Federal Register to announce the expiration
date assigned by OMB. The display of a currently valid OMB control
number for this collection is required by law. Under the PRA and 5 CFR
1320.8, an agency may not conduct or sponsor, and a person is not
required to respond to, a
[[Page 25914]]
collection of information unless the collection displays a currently
valid OMB control number.
In our NPRM, we specifically sought comments on the proposed
collection regarding: (1) Whether the particular collection of
information described above is necessary for the proper performance of
the functions of the Board, including whether the collection has
practical utility; (2) the accuracy of the Board's burden estimates;
(3) ways to enhance the quality, utility, and clarity of the
information collected; and (4) ways to minimize the burden of the
collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology, when appropriate.
The comments received in response to our NPRM give us no reason to
modify the regulations as proposed. No party has challenged our burden
estimates or proposed a way to further minimize the burden on
respondents from collection of the information and still provide the
required information.\11\
---------------------------------------------------------------------------
\11\ In the discussion pertaining to small entities in our NPRM,
we explained why the burden of collection would be minimal. No party
has disputed our explanation.
---------------------------------------------------------------------------
Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980,
5 U.S.C 601-612, generally requires a description and analysis of rules
that would have significant economic impact on a substantial number of
small entities. Pursuant to 5 U.S.C. 605(b), we reaffirm our finding in
the NPRM that our action in this proceeding will not have a significant
impact on a substantial number of small entities.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects in 49 CFR Part 1152
Administrative practice and procedure, Railroads, Reporting and
recordkeeping requirements, Uniform system of accounts.
Decided: April 25, 2012.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and
Commissioner Begeman.
Derrick A. Gardner,
Clearance Clerk.
For the reasons set forth in the preamble, the Surface
Transportation Board amends part 1152 of title 49, chapter X, of the
Code of Federal Regulations as follows:
PART 1152--ABANDONMENT AND DISCONTINUANCE OF RAIL LINES AND RAIL
TRANSPORTATION UNDER 49 U.S.C. 10903
0
1. The authority citation for Part 1152 continues to read as follows:
Authority: 11 U.S.C. 1170; 16 U.S.C 1247(d) and 1248; 45 U.S.C.
744; and 49 U.S.C. 701 note (1995) (section 204 of the ICC
Termination Act of 1995), 721(a), 10502, 10903-10905, and 11161.
0
2. Amend Sec. 1152.29 by revising paragraphs (a)(2), (a)(3), (c)
heading, (c)(1), (c)(2) introductory text, (c)(2)(iii), (d)(1), (d)(2)
introductory text, and (d)(2)(iii) and by adding paragraphs (f)(1)(iii)
and (h) to read as follows:
Sec. 1152.29 Prospective use of rights-of-way for interim trail use
and rail banking.
(a) * * *
(2) A statement indicating the trail sponsor's willingness to
assume full responsibility for:
(i) Managing the right-of-way;
(ii) Any legal liability arising out of the transfer or use of the
right-of-way (unless the user is immune from liability, in which case
it need only indemnify the railroad against any potential liability);
and
(iii) The payment of any and all taxes that may be levied or
assessed against the right-of-way; and
(3) An acknowledgment that interim trail use is subject to the
sponsor's continuing to meet its responsibilities described in
paragraph (a)(2) of this section, and subject to possible future
reconstruction and reactivation of the right-of-way for rail service.
The statement must be in the following form:
Statement of Willingness To Assume Financial Responsibility
In order to establish interim trail use and rail banking under 16
U.S.C. 1247(d) and 49 CFR 1152.29 with respect to the right-of-way
owned by ---------------- (Railroad) and operated by ----------------
(Railroad), ---------------- (Interim Trail Sponsor) is willing to
assume full responsibility for: (1) Managing the right-of-way, (2) any
legal liability arising out of the transfer or use of the right-of-way
(unless the sponsor is immune from liability, in which case it need
only indemnify the railroad against any potential liability), and (3)
the payment of any and all taxes that may be levied or assessed against
the right of way. The property, known as ---------------- (Name of
Branch Line), extends from railroad milepost ---------------- near ----
------------ (Station Name), to railroad milepost ------------, near --
-------------- (Station name), a distance of ------------ miles in
[County(ies), (State(s)]. The right-of-way is part of a line of
railroad proposed for abandonment in Docket No. STB AB ----------------
(Sub-No. ----------------). A map of the property depicting the right-
of-way is attached.
---------------- (Interim Trail Sponsor) acknowledges that use of
the right-of-way is subject to the sponsor's continuing to meet its
responsibilities described above and subject to possible future
reconstruction and reactivation of the right-of-way for rail service. A
copy of this statement is being served on the railroad(s) on the same
date it is being served on the Board.
* * * * *
(c) Regular abandonment proceedings. (1) If continued rail service
does not occur pursuant to 49 U.S.C. 10904 and Sec. 1152.27, and a
railroad agrees to negotiate an interim trail use/rail banking
agreement, then the Board will issue a CITU to the railroad and to the
interim trail sponsor for that portion of the right-of-way as to which
both parties are willing to negotiate. The CITU will: Permit the
railroad to discontinue service, cancel any applicable tariffs, and
salvage track and material consistent with interim trail use and rail
banking, as long as it is consistent with any other Board order, 30
days after the date the CITU is issued; and permit the railroad to
fully abandon the line if no trail use agreement is reached 180 days
after the CITU is issued, subject to appropriate conditions, including
labor protection and environmental matters.
(2) The CITU will indicate that any interim trail use is subject to
future restoration of rail service and to the sponsor's continuing to
meet its responsibilities described in paragraph (a)(2) of this
section. The CITU will also provide that, if an interim trail use
agreement is reached (and thus interim trail use established), the
parties shall file the notice described in paragraph (h) of this
section. Additionally, the CITU will provide that if the sponsor
intends to terminate interim trail use on all or any portion of the
right-of-way covered by the interim trail use agreement, it must send
the Board a copy of the CITU and request that it be vacated on a
specified date. If a party requests that the CITU be vacated for only a
portion of the right-of-way, the Board will issue an appropriate
replacement CITU covering the remaining portion of the right-of-way
subject to the interim trail use agreement. The Board will reopen the
[[Page 25915]]
abandonment proceeding, vacate the CITU, and issue a decision
permitting immediate abandonment for the involved portion of the right-
of-way. Copies of the decision will be sent to:
* * * * *
(iii) The current trail sponsor.
* * * * *
(d) * * *
(1) If continued rail service does not occur under 49 U.S.C. 10904
and 1152.27 and a railroad agrees to negotiate an interim trail use/
rail banking agreement, then the Board will issue a Notice of Interim
Trail Use or Abandonment (NITU) to the railroad and to the interim
trail sponsor for the portion of the right-of-way as to which both
parties are willing to negotiate. The NITU will: Permit the railroad to
discontinue service, cancel any applicable tariffs, and salvage track
and materials, consistent with interim trail use and rail banking, as
long as it is consistent with any other Board order, 30 days after the
date the NITU is issued; and permit the railroad to fully abandon the
line if no agreement is reached 180 days after the NITU is issued,
subject to appropriate conditions, including labor protection and
environmental matters.
(2) The NITU will indicate that interim trail use is subject to
future restoration of rail service and to the sponsor's continuing to
meet its responsibilities described in paragraph (a)(2) of this
section. The NITU will also provide that, if an interim trail use
agreement is reached (and thus interim trail use established), the
parties shall file the notice described in paragraph (h) of this
section. Additionally, the NITU will provide that if the sponsor
intends to terminate interim trail use on all or any portion of the
right-of-way covered by the interim trail use agreement, it must send
the Board a copy of the NITU and request that it be vacated on a
specific date. If a party requests that the NITU be vacated for only a
portion of the right-of-way, the Board will issue an appropriate
replacement NITU covering the remaining portion of the right-of-way
subject to the interim trail use agreement. The Board will reopen the
exemption proceeding, vacate the NITU, and issue a decision reinstating
the exemption for that portion of the right-of-way. Copies of the
decision will be sent to:
* * * * *
(iii) The current trail sponsor.
* * * * *
(f) (1) * * *
(iii) An acknowledgement that interim trail use is subject to
possible future reconstruction and reactivation of the right-of-way for
rail service.
* * * * *
(h) When the parties negotiating for rail banking/interim trail use
reach an agreement, the trail sponsor and railroad shall jointly notify
the Board within 10 days that the agreement has been reached. The
notice shall include a map depicting, and an accurate description of,
the involved right-of-way or portion thereof (including mileposts) that
is subject to the parties' interim trail use agreement and a
certification that the interim trail use agreement includes provisions
requiring the sponsor to fulfill the responsibilities described in
paragraph (a)(2) of this section. Additionally, if the interim trail
use agreement establishes interim trail use over less of the right-of-
way than is covered by the CITU or NITU, the notice shall also include
a request that the Board vacate the CITU or NITU and issue a
replacement CITU/NITU for only the portion of the right-of-way covered
by the interim trail use agreement. The Board will reopen the
abandonment proceeding, vacate the CITU or NITU, issue an appropriate
replacement CITU or NITU for only the portion of the right-of-way
covered by the interim trail use agreement, and issue a decision
permitting immediate abandonment of the portion of the right-of-way not
subject to the interim trail use agreement. Copies of the decision will
be sent to:
(1) The rail carrier that sought abandonment authorization;
(2) The owner of the right-of-way; and
(3) The current trail sponsor.
[FR Doc. 2012-10467 Filed 4-30-12; 11:15 am]
BILLING CODE 4915-01-P
