Surface Transportation Board 2008 – Federal Register Recent Federal Regulation Documents

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 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.

On April 15, 2008, the Board served a decision to update its computation of the railroad industry's cost-of-capital for 2006. The composite after-tax cost-of-capital rate for 2006 is found to be 9.94%, based on a current cost-of-debt of 5.97%; a cost of common equity capital of 11.13%; and a capital structure mix comprised of 23.05% debt and 76.95% common equity. The cost-of-capital finding made in this proceeding will be used in a variety of Board proceedings.

The Board is publishing notice of an application filed by the United States Department of Energy (DOE) seeking authority to construct and operate an approximately 300-mile rail line, to be known as the Caliente Line, connecting an existing Union Pacific Railroad Company line near Caliente, NV, to a proposed geologic repository at Yucca Mountain, Nye County, NV. The purpose of this proposed rail line is to allow DOE to transport spent nuclear fuel and high-level radioactive waste for disposal at the proposed geologic repository, as well as to provide common carrier rail service to communities situated along the proposed line. The Board, on its own motion, is adopting a procedural schedule that calls for notices of intent to participate and establishes filing dates for submissions on whether this application meets the criteria of 49 U.S.C. 10901.

On March 13, 2008, Stagecoach Group PLC (Stagecoach) and its subsidiary, Coach USA, Inc. (Coach), noncarriers, and various subsidiaries of each (collectively, applicants) filed an application under 49 U.S.C. 14303 to acquire control of the newly created Megabus Northeast LLC (Northeast), which is owned by co-applicant Independent Bus Company, Inc. (Independent), a motor passenger carrier and wholly owned subsidiary of Coach. Independent also wholly owns Megabus USA, LLC, a motor carrier of passengers. Applicants state that currently Northeast does not hold federally issued authority to operate as a motor common carrier of passengers. Applicants supplemented the application in a March 19, 2008 filing. This application is filed on the premise that Northeast actually obtains the authority it seeks. Persons wishing to oppose this application must follow the rules at 49 CFR 1182.5 and 1182.8. The Board has tentatively approved the transaction, and, if no opposing comments are timely filed, this notice will be the final Board action.

In a decision served on February 22, 2008, we proposed to adopt 1.008 (0.8% per year) as the measure of average change in railroad productivity for the 2002-2006 (5-year) averaging period. This value was a decline of 0.9 of a percentage point from the current measure of 1.7% that was developed for the 2001-2005 period. That decision stated that comments may be filed addressing any perceived data and computational errors in our calculation. It also stated that, if there were no further action taken by the Board, the proposed productivity adjustment would become effective on March 17, 2008. On March 13, 2008, the Board received comments from both the Association of American Railroads and the Western Coal Traffic League. Both parties requested that the Board revisit the development of the output index calculation and make certain other clarifications. By a decision served on March 17, 2008, we postponed the effective date of the annual productivity adjustment. We have reviewed the calculations of the output index for 2006. During that review, we found inconsistencies in the weights associated with certain movements reported in the waybill sample data, and found that these inconsistencies caused a distortion in the resulting productivity calculation. This circumstance has been rectified and the Board is issuing modifications to its annual productivity decision. The Board's original calculation of the output index for 2006 of 0.994 should be modified to 1.018. We will adopt 1.013 (1.3% per year) as the measure of average change in railroad productivity for the 2002-2006 (5-year) averaging period. This value is a decline of 0.4 of a percentage point from the current measure of 1.7% that was developed for the 2001-2005 period. The proposed 5-year (2002-2006) productivity trend calculated using a geometric average is 1.012, or 1.2% per year.

The Board, under 49 U.S.C. 10502, revokes the class exemption as it pertains to the modified trackage rights described in STB Finance Docket No. 34554 (Sub-No. 8) \1\ to permit the trackage rights to expire on or about December 31, 2008, in accordance with the agreement of the parties,\2\ subject to the employee protective conditions set forth in Oregon Short Line R. Co.AbandonmentGoshen, 360 I.C.C. 91 (1979).

The Surface Transportation Board seeks public comments on a proposal to require railroads to include a disclosure statement in any document that they consider to be a rail transportation contract under 49 U.S.C. 10709.

The Surface Transportation Board proposes to adopt 1.008 (0.8%) as the measure of average change in railroad productivity for the 2002-2006 (5-year) averaging period. This value is a decline of 0.9 of a percentage point from the current measure of 1.7% that was developed for the 2001-2005 period.

On February 1, 2008, Fenway Partners Capital Fund III, L.P. (Fenway), a noncarrier, and Coach America Holdings, Inc. (Coach America) (collectively, applicants), a noncarrier, have filed an application under 49 U.S.C. 14303 to acquire control of Lakefront Lines, Inc. (Lakefront), and Hopkins Airport Limousine Service, Inc. (Hopkins), both of which are federally regulated motor carriers of passengers. Persons wishing to oppose this application must follow the rules at 49 CFR 1182.5 and 1182.8. The Board has tentatively approved the transaction, and, if no opposing comments are timely filed, this notice will be the final Board action.

The Alaska Railroad Corporation (ARRC) plans to file a petition with the Surface Transportation Board (Board) pursuant to 49 U.S.C. 10502 for authority to construct and operate approximately 30 to 45 miles of new rail line connecting the Matanuska-Susitna Borough's Port MacKenzie (or Port) in south-central Alaska to a point on the ARRC main line between Wasilla and north of Willow, Alaska. The proposed Port MacKenzie Rail Extension (or Project) would provide freight services between the Port and Interior Alaska and would support the Port's continuing development as an intermodal and bulk material resources export and import facility. The Port is owned by the Matanuska-Susitna Borough (MSB) and MSB is a co-sponsor of the Project. Because the construction and operation of this Project has the potential to result in significant environmental impacts, the Board's Section of Environmental Analysis (SEA) has determined that the preparation of an Environmental Impact Statement (EIS) is appropriate pursuant to the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.). The purpose of this Notice of Intent is to notify individuals and agencies interested in or affected by the proposed Project of the decision to prepare an EIS. SEA will hold public scoping meetings as part of the NEPA process associated with the development of the EIS. Additionally, as part of the scoping process, SEA has developed a draft Scope of Study for the EIS for review and comment. Public meeting dates and locations, along with the draft Scope of Study, are provided herein. Dates and Locations: The public scoping meetings will be held at the following locations: March 3, 2008, 5-8 p.m. at Knik Elementary School, 6350 West Hollywood, Wasilla, AK. March 4, 2008, 5-8 p.m. at Big Lake Elementary School, 3808 South Big Lake Road, Big Lake, AK. March 5, 2008, 5-8 p.m. at Willow Area Community Center, Mile 70 Parks Highway, Willow, AK. March 6, 2008, 5-8 p.m. at Houston Middle School, 12801 W. Hawk Lane, Houston, AK. March 10, 2008, 5-8 p.m., at Wasilla Multi-Use Sports Complex, 1001 S. Mack Drive, Wasilla, AK. March 11, 2008, 5-8 p.m. at Anchorage Senior Center, 1300 East 19th Avenue, Anchorage, AK. The scoping meetings will be held in an informal workshop format during which interested persons may ask questions about the proposed Project and the Board's environmental review process, and advise SEA staff about potential environmental effects of the Project. No formal presentations will be made by agency representatives. SEA staff will be available to answer questions and receive comments individually. The meeting locations comply with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.). Persons that need special accommodations should telephone SEA's toll-free number for the Project at 1-888-257-7560. Interested parties are invited to submit written comments on the draft Scope of Study, alternative routes for the proposed rail line, and other environmental issues and concerns by March 21, 2008, to assure full consideration during the scoping process. SEA will issue a final Scope of Study after the close of the scoping comment period. Summary of the Board's Environmental Review Process: The NEPA process is intended to assist the Board and the public in identifying and assessing the potential environmental consequences of a proposed action before a decision on the proposed action is made. SEA is responsible for ensuring that the Board complies with NEPA and related environmental statutes. The first stage of the EIS process is scoping. Scoping is an open process for determining the scope of environmental issues to be addressed in the EIS. As part of the scoping process, SEA has developed, and has made available in this notice, a draft Scope of Study for the EIS. Concurrently, scoping meetings will be held to provide further opportunities for public involvement and input during the scoping process. In addition to the Scope of Study, interested parties are also encouraged to comment on potential routes for the proposed Project. SEA is currently considering eight alternative routes that have been identified by MSB and ARRC. At the conclusion of the scoping and comment period, SEA will issue a final Scope of Study for the EIS. After issuing the final Scope of Study, SEA will prepare a Draft EIS for the Project. The Draft EIS will address the environmental issues and concerns identified during the scoping process. It will also contain SEA's preliminary recommendations for environmental mitigation measures. The Draft EIS will be made available upon its completion for review and comment by the public, government agencies, and other interested parties. SEA will prepare a Final EIS that considers comments on the Draft EIS. In reaching its decision in this case, the Board will take into account the Draft EIS, the Final EIS, and all environmental comments that are received. SEA has recently invited several agencies to participate in this EIS process as cooperating agencies on the basis of their special expertise or jurisdiction by law. These agencies include: U.S. Army Corps of EngineersAlaska District; Alaska Department of Natural Resources; and U.S. Department of Transportation, Federal Railroad Administration. Filing Environmental Comments: Comments submitted by mail should be addressed to: David Navecky, Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001, Attention: Environmental Filing, STB Finance Docket No. 35095. Comments may also be filed electronically on the Board's Web site, https://www.stb.dot.gov, by clicking on the ``E-FILING'' link. Please refer to STB Finance Docket No. 35095 in all correspondence, including e-filings, addressed to the Board. Comments are due by March 21, 2008.