[Federal Register Volume 76, Number 32 (Wednesday, February 16, 2011)]
[Proposed Rules]
[Pages 8992-8995]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-3397]


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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: Notice of proposed rulemaking.

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SUMMARY: The Surface Transportation Board (STB or Board) has instituted 
a proceeding to clarify, update, and seek public comments on proposed 
changes to its existing regulations and procedures regarding the use of 
railroad rights-of-way for railbanking and interim trail use under the 
National Trails System Act (Trails Act).

DATES: Comments are due by April 12, 2011; replies are due by May 12, 
2011.

ADDRESSES: Comments on this proposal may be submitted either via the 
Board's e-filing format or in the traditional paper format. Any person 
using e-filing should attach a document and otherwise comply with the 
instructions at the E-FILING link on the Board's Web site, at http://www.stb.dot.gov. Any person submitting a filing in the traditional 
paper format should send an original and 10 copies to: Surface 
Transportation Board, Attn: Docket No. EP 702, 395 E Street, SW., 
Washington, DC 20423-0001.
    Copies of written comments will be available for viewing and self-
copying at the Board's Public Docket Room, Room

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131, and will be posted to the Board's Web site.

FOR FURTHER INFORMATION CONTACT: Valerie Quinn, (202) 245-0382. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION: The Board is instituting a proceeding to 
clarify, update, and seek public comments on proposed changes to its 
existing regulations and procedures regarding the use of railroad 
rights-of-way for railbanking and interim trail use under Section 8(d) 
of the National Trails System Act (Trails Act), 16 U.S.C. 1247(d).
    Specifically, the Board proposes to add a new rule to 49 CFR 
1152.29, the Board's regulations regarding the Trails Act, that would 
require 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. The 
Board's current rules provide no formal means of determining whether an 
actual interim trail use agreement is reached after the Board issues a 
Certificate of Interim Trail Use (CITU) or Notice of Interim Trail Use 
(NITU), and, if so, whether the agreement applies to the entire right-
of-way at issue. Therefore, it would be useful to the Board and to the 
public to require parties to notify the Board when an interim trail use 
agreement has been reached.
    The proposed rules would also require parties to ask the Board to 
vacate the CITU/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. Currently, the Board's regulations make CITU/NITUs self-
executing, and the rules contemplate that petitions to vacate or modify 
the CITU/NITU will be filed if rail service is to be reactivated, 
interim trail use ceases in whole or in part, or there is a change in 
trail sponsors. When an interim trail use agreement covers only a 
portion of the right-of-way that was proposed to be abandoned, the 
Board's regulations are unclear whether the CITU/NITU that was issued 
for the right-of-way could nonetheless continue in effect indefinitely, 
precluding the abandonment of the remainder of the right-of-way for 
which the CITU/NITU was issued. Thus, this proposed rule would clarify 
that if an interim trail use agreement applies to less of the right-of-
way than is covered by the CITU/NITU, the parties must petition the 
Board to modify or vacate the CITU/NITU.
    The proposed rules would clarify that a substitute trail sponsor 
must acknowledge that interim trail use is subject to restoration and 
reactivation at any time. The Board's rules at 49 CFR 1152.29(f)(1) 
currently require that, when a trail sponsor intends to terminate trail 
use and another person intends to become the trail sponsor, the 
substitute trail sponsor must acknowledge its willingness to assume 
financial responsibility for the right-of-way; but the rules are silent 
with regard to any acknowledgment that continued interim trail use 
remains subject to possible rail service restoration. Accordingly, the 
Board clarifies that the substitute trail sponsor (like Sec.  
1152.29(a)(3) requires of the original 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 is also proposing minor modifications to its regulations 
under 49 CFR 1152.29. This includes the following: clarification that, 
under Sec.  1152.29(e), parties do not need to file a request to extend 
the time for filing a notice of abandonment consummation when legal or 
regulatory conditions (including a CITU/NITU) remain in effect that bar 
consummation of abandonment until these conditions have been removed; 
modification of the language in Sec. Sec.  1152.29(a)(2), (a)(3), 
(c)(2), and (d)(2), to more closely resemble the language of the Trails 
Act; modifications of the language of the Statement of Willingness to 
Assume Financial Responsibility in Sec.  1152.29(a)(3) to more 
accurately describe the responsibilities of an interim trail sponsor; 
removal of the reference to ``NERSA abandonment proceedings'' in 49 CFR 
1152.29(c), because NERSA is no longer in effect; modification of 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 on which 
both parties are willing to negotiate interim trail use, rather than 
the portion ``to be covered by the agreement,'' as the portion that the 
agreement may ultimately cover is unknown at that time; and 
modification of the language in 49 CFR 1152.29(c)(2) to clarify that a 
trail sponsor may choose to terminate interim trail use over 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.
    In addition, in light of concerns regarding the ability of some 
states to assume liability and legal and financial responsibility for a 
right-of-way during the interim trail use period, the Board seeks 
comments on how to resolve state sovereign immunity issues. Also, the 
Board seeks comments on whether there are additional means of indirect 
notification of CITU/NITUs to reversionary landowners that can be used 
to augment the existing newspaper publication method.
    Additional information is contained in the Board's decision served 
on February 16, 2011. To obtain a copy of this decision, visit the 
Board's Web site at http://www.stb.dot.gov. Copies of the decision may 
also be purchased by contacting the Board's Office of Public 
Assistance, Governmental Affairs, and Compliance at (202) 245-0236.
    The Board certifies under 49 U.S.C. 605(b) that this proposed rule, 
if promulgated, will not have a significant economic impact on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act. The proposed notice requirement would 
require trail sponsors and railroads to file a notice with the Board 
when they have reached an interim trail use agreement. Some trail 
sponsors may qualify as a small entity, in that they may be a ``small 
organization'' within the meaning of 5 U.S.C. 601(4) or a ``small 
governmental jurisdiction'' within the meaning of 5 U.S.C. 601(5). Some 
railroads may qualify as a ``small business'' within the meaning of 5 
U.S.C. 601(3). However, the proposed notice that would be required here 
should involve little time and expense to draft and file, and thus 
should have little economic impact on a small-entity filer. The 
requirement is limited to only those small entities or small businesses 
who might be parties to interim trail use agreements. It therefore will 
not impact a substantial number of small entities.
    Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3519, 
and Office of Management and Budget (OMB) regulations at 5 CFR 
1320.8(d)(3), the Board also seeks comments regarding: (1) Whether the 
particular collection of information described below 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

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information technology, when appropriate. Information pertinent to 
these issues is included in the Appendix. These proposed rules are 
being submitted to OMB for review as required under the PRA, 44 U.S.C. 
3507(d) and 5 CFR 1320.11. Comments on the four questions prescribed 
above should be submitted to the Board, in accordance with the comment 
period described below.
    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: February 10, 2011.

    By the Board, Chairman Elliott, Vice Chairman Nottingham, and 
Commissioner Mulvey.

Jeffrey Herzig,
Clearance Clerk.

    For the reasons set forth in the preamble, the Surface 
Transportation Board proposes to amend 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

    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 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 user'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 it is issued; and permit the railroad to fully 
abandon the line if no trail use agreement is reached 180 days after it 
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 
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 Sec. 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 it is issued; and permit the railroad to fully 
abandon the line if no agreement is reached 180 days after it 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

[[Page 8995]]

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 railbanking/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.

    Note:  The following appendix will not appear in the Code of 
Federal Regulations.

Appendix

Notifications of Trail Use Agreement and Sponsor Substitution

    The additional information below is included to assist those who 
may wish to submit comments pertinent to review under the Paperwork 
Reduction Act:

Description of Collection

    Title: New submissions under the Board's Trails Act regulations.
    OMB Control Number: 2140-XXXX.
    STB Form Number: None.
    Type of Review: New collection.
    Respondents: Parties to an interim trail use agreement; 
substitute trail sponsors.
    Number of Respondents: 40 (potentially).
    Estimated Time per Response: 1 hour or less.
    Frequency: On occasion.
    Total Burden Hours (annually including all potential 
respondents): 40 hours.
    Total ``Non-hour Burden'' Cost: None identified.
    Needs and Uses: The new rule proposes to require parties 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 agreement, including a map and milepost marker information. 
This submission will ensure that the agency and the public have 
accurate information on the status of property after interim trail 
use conditions have been issued. As is already required for an 
original trail sponsor, the proposed rule would also clarify that a 
substitute trail sponsor must acknowledge that interim trail use is 
subject to restoration and reactivation at any time.
    Retention Period: These records are retained indefinitely.

[FR Doc. 2011-3397 Filed 2-15-11; 8:45 am]
BILLING CODE 4915-01-P