[Federal Register Volume 78, Number 79 (Wednesday, April 24, 2013)]
[Pages 24309-24310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09682]



Surface Transportation Board

[Docket No. FD 35724]

California High-Speed Rail Authority--Construction Exemption--in 
Merced, Madera and Fresno Counties, Cal

    On March 27, 2013, California High-Speed Rail Authority 
(Authority), a noncarrier state agency, filed a petition for exemption 
(Petition) under 49 U.S.C. 10502 from the prior approval requirements 
of 49 U.S.C. 10901 to construct an approximately 65-mile dedicated 
high-speed passenger rail line between Merced and Fresno, California 
(the Project). Concurrently, the Authority filed a motion to dismiss 
the Petition for lack of jurisdiction (Motion to Dismiss), asserting 
that the Project does not require Board approval under 49 U.S.C. 10901 
because it will be located entirely within California, will provide 
only intrastate passenger rail service, and will not be constructed or 
operated ``as part of the interstate rail network'' under 49 U.S.C. 
    The Project is one section of the planned California High-Speed 
Train System (HST). Also referred to as the Merced to Fresno HST 
Section,\1\ the Project would be the first of nine sections of the HST, 
which, when complete, would provide intercity passenger rail service at 
speeds up to 220 miles per hour over more than 800 miles of rail line, 
primarily between San Diego and San Francisco.\2\ The Authority intends 
to construct the Project in segments and plans to award contracts for 
the final design and construction of the first 29-mile portion of the 
approximately 65-mile line in the Project in the spring or summer of 
2013.\3\ For that reason, the Authority requests expedited 
consideration of the Petition and Motion to Dismiss and a decision 
effective by June 17, 2013.

    \1\ Pet. 2.
    \2\ Pet. 3. The entire HST system will connect the major 
population centers of Sacramento, the San Francisco Bay Area, the 
Central Valley, Los Angeles, the Inland Empire, Orange County, and 
San Diego. Id.
    \3\ Pet. 4, 13-14.

    To date, the Board has received comments from Federal, state and 
local elected officials, residents, landowners, water districts, school 
districts, grassroots organizations, and other interested parties. 
Several of those parties have requested an extension of the 20-day 
period for replies under 49 CFR 1104.13(a). On April 11, 2013, the 
Authority responded that it would have no objection to a 15-day 
extension of the deadline for filing replies to the Motion to Dismiss 
and Petition (to May 1) but would object to a longer extension.\4\ By 
decision served April 15, 2013, the Board instituted a proceeding and 
tolled the period for filing responses to the Petition and the Motion 
to Dismiss pending further Board order.

    \4\ Authority Reply 3-4.

    Motion to Dismiss. The record currently before the Board, along 
with other publicly available materials, provides sufficient 
information for the Board to conclude that it has jurisdiction over 
construction of the California HST system, including the Project. 
Therefore, replies to the Motion to Dismiss are unnecessary, and the 
Motion to Dismiss will be denied. The Board will set forth its reasons 

[[Page 24310]]

denying the Motion to Dismiss in its subsequent decision on the merits.
    Replies to the Petition for Exemption. Given the significant 
interest in public participation in this proceeding, the period for 
replies to the Petition will be extended to May 8, 2013, to permit 
sufficient time for interested persons to prepare and file responses. 
The Board will determine whether the exemption criteria under 49 U.S.C. 
10502(a) are satisfied after reviewing the public comments.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. The Authority's Motion to Dismiss is denied.
    2. Replies to the Petition are due by May 8, 2013.
    3. This decision will be published in the Federal Register.
    4. This decision is effective on its service date.
    By the Board, Chairman Elliott, Vice Chairman Begeman, and 
Commissioner Mulvey. Vice Chairman Begeman concurred in part and 
dissented in part.
    Vice Chairman Begeman, concurring in part and dissenting in part:
    I agree that sufficient information exists about the proposed 
California High-Speed Train System (HST) to conclude that the Board has 
jurisdiction over it, based largely on the publicly available 
information that I have been reviewing since the Petition and Motion to 
Dismiss were filed last month. But that is where my agreement with this 
decision ends.
    The Board's finding of jurisdiction should be accompanied by a 
rationale to support that finding, instead of waiting to disclose it in 
a subsequent decision, which could be weeks, if not months, from today. 
Such an approach is rare by this agency and is one that I cannot 
support here, not only because it is important for the California High-
Speed Rail Authority to know the reasons we reached this finding, but 
also to inform other States that are planning high-speed rail projects 
so they can ensure full compliance with our regulations, as 
    Further, I believe that if we have enough information to conclude 
that we have jurisdiction over this matter, we also have enough 
information to determine whether it falls within the statutory 
exemption criteria under 49 U.S.C. 10502. In my view, continued 
regulation by the Board is necessary here to carry out the rail 
transportation policy of 49 U.S.C. 10101, and a project of this size 
and magnitude in terms of cost and miles--estimated at over $68 billion 
and 800 miles of rail line--is not one of ``limited scope.'' We should 
direct the Authority to file an application so that the Board can fully 
review and analyze the proposal. The scope of the project and 
significant interest in public participation, which this decision 
itself recognizes, mandates it.
    I can appreciate the Board's desire to meet the Authority's request 
for expedited consideration, and it is unfortunate that the Authority 
didn't come to the Board in a more timely manner than it did. But the 
Authority's own deadline should not come at the expense of a full and 
thorough review by the Board.

Derrick A. Gardner,
Clearance Clerk.
[FR Doc. 2013-09682 Filed 4-23-13; 8:45 am]