[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]


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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: Final rule.

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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.
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    \1\ The notice of proposed rulemaking was published at 76 FR 
8992-95.
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    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.
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    \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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    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.
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    \3\ There is no substantive difference between rail banking 
authorized under a NITU and a CITU.
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    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).
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    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.
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    \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'').
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    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\
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    \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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    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.
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    \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).
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    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.
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    \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.''
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    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\
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    \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.
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    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