Class Exemption for the Construction of Connecting Track and Rail Construction Under 49 U.S.C. 10901

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1150

[Ex Parte No. 392 (Sub-Nos. 2 and 3)]

Class Exemption for the Construction of Connecting Track and Rail

Construction Under 49 U.S.C. 10901

AGENCY: Surface Transportation Board.

ACTION: Final rule.

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SUMMARY: The Surface Transportation Board (the Board) grants final

approval to a class exemption for the construction and operation of

connecting railroad track in Ex Parte No. 392 (Sub-No. 2) and

terminates the Ex Parte No. 392 (Sub-No. 3) proceeding that proposed to

adopt a different class exemption for all rail construction projects

not covered by the connecting track exemption. Final regulations

establishing the exemption for connecting track are set forth below.

EFFECTIVE DATE: July 13, 1996.

FOR FURTHER INFORMATION CONTACT: Joseph Dettmar, (202) 927-5660. [TDD

for the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: The exemption for the construction of

connecting track was initially proposed in Ex Parte No. 392 (Sub-No.

2). By decision served on September 15, 1992, and notice of proposed

rulemaking published in the Federal Register on September 16, 1992 (57

FR 42733), our predecessor agency, the Interstate Commerce Commission

(ICC), sought public comments on proposed changes to 49 CFR Part 1150

that would establish a class exemption for all rail construction, or,

alternatively, for construction of connecting railroad tracks. The

Board is adopting (with minor changes) the proposed class exemption for

the construction and operation of connecting tracks. We believe the

changes will facilitate expanded rail service and reduce regulatory

delay and also satisfy the requirements of the environmental laws,

because the exemption has been structured so as to assure that there

will be a full and timely environmental review in each case. We do not

believe a class exemption for other rail constructions is warranted.

Therefore, we will terminate the Ex Parte No. 392 (Sub-No. 3)

proceeding and simply continue our practice of expeditiously handling

individual construction exemption requests as an alternative to the

class exemption the ICC had proposed. Additional information is

contained in the Board's decision served on June 13, 1996. To purchase

a copy of the decision, write to, call, or pick up in person from: DC

News & Data, Inc., 1201 Constitution Avenue, N.W., Room 2229,

Washington, D.C. 20423. (Assistance for the hearing impaired is

available through TDD service (202) 927-5721.)

List of Subjects in 49 CFR Part 1150

Administrative practice and procedure, Railroads.

Decided: May 29, 1996.

By the Board, Chairman Morgan, Vice Chairman Simmons, and

Commissioner Owen.

Vernon A. Williams,

Secretary.

For the reasons set forth in the preamble, Title 49, Chapter X,

part 1150 is amended as set forth below:

PART 1150--CERTIFICATE TO CONSTRUCT, ACQUIRE, OR OPERATE RAILROAD

LINES

1. The authority citation for part 1150 is revised to read as

follows:

Authority: 5 U.S.C. 553 and 559; 49 U.S.C. 701 note (sec. 204 of

the ICC Termination Act of 1995), 721(a), 10502, and 10901.

2. A new Sec. 1150.36 is added to read as follows:

[[Page 29974]]

Sec. 1150.36 Exempt construction of connecting track.

(a) Scope. This class exemption applies to proceedings involving

the construction and operation of connecting lines of railroad within

existing rail rights-of-way, or on land owned by connecting railroads,

under 49 U.S.C. 10901 (a), (b), and (c). (See the reference to

connecting track in 49 CFR 1105.6(b)(1).) This class exemption is

designed to expedite and facilitate connecting track construction while

ensuring full and timely environmental review. The Surface

Transportation Board (Board) has found that its prior review of

connecting track construction and operation is not necessary to carry

out the rail transportation policy of 49 U.S.C. 10101; that continued

regulation is not necessary to protect shippers from abuse of market

power; and that the construction of connecting track would be of

limited scope. See 49 U.S.C. 10502. To use this class exemption, a pre-

filing notice, environmental report, historic report, and notice of

exemption must be filed that complies with the procedures in

Sec. 1150.36 (b) and (c), and the Board's environmental rules, codified

at 49 CFR part 1105.

(b) Environmental requirements. The environmental regulations at 49

CFR part 1105 must be complied with fully. An environmental report

containing the information specified at 49 CFR 1105.7(e), as well as an

historic report containing the information specified at 49 CFR

1105.8(d), must be filed either before or at the same time as the

notice of exemption is filed. See 49 CFR 1105.7(a). The entity seeking

the exemption authority must also serve copies of the environmental

report on the agencies listed at 49 CFR 1105.7(b). Because the

environmental report must include a certification that appropriate

agencies have been consulted in its preparation (see 49 CFR 1105.7(c)),

parties should begin environmental and historic consultations well

before the notice of exemption is filed. Environmental requirements may

be waived or modified where a petitioner demonstrates in writing that

such action is appropriate. See 49 CFR 1105.10(c). It is to the

advantage of parties to consult with the Board's Section of

Environmental Analysis (SEA) at the earliest possible date to begin

environmental review.

(c) Procedures and dates. (1) At least 20 days prior to the filing

of a notice of exemption with the Board, the party seeking the

exemption authority must notify in writing: the State Public Service

Commission, the State Department of Transportation (or equivalent

agency), and the State Clearinghouse (if there is no clearinghouse, the

State Environmental Protection Agency), of each State involved. The

pre-filing notice shall include: the name and address of the railroad

(or other entity proposing to construct the line) and the proposed

operator; a complete description of the proposed construction and

operation, including a map; an indication that the class exemption

procedure is being used; and the approximate date that construction is

proposed to begin. This pre-filing notice shall include a certification

that the petitioner will comply with the Board's environmental

regulations, codified at 49 CFR part 1105, and a statement that those

regulations generally require the Board to:

(i) Prepare an environmental assessment (EA) (or environmental

impact statement (EIS) if necessary),

(ii) Make the document (EA or EIS, as appropriate) available to the

parties (and to the public, upon request to SEA); and

(iii) Accept for filing and consideration comments on the

environmental document as well as petitions for stay and

reconsideration.

(2) Petitioner must file a verified notice of exemption with the

Board at least 90 days before the construction is proposed to begin. In

addition to the information contained in Sec. 1150.36(c)(1), the notice

shall include a statement certifying compliance with the environmental

rules at 49 CFR part 1105 and the pre-filing notice requirements of 49

CFR 1150.36(c)(1).

(3) The Board, through the Director of the Office of Proceedings,

shall publish a notice in the Federal Register within 20 days after the

notice of exemption is received that describes the construction project

and invites comments. SEA will then prepare an EA (or, if necessary, an

EIS). The EA generally will be made available 15 days after the Federal

Register notice. It will be served on all parties and appropriate

agencies. Others may request a copy from SEA. The deadline for

submission of comments on the EA will generally be within 30 days of

its availability (see 49 CFR 1105.10(b)). If an EIS is prepared, the

time frames and procedures set forth in 49 CFR 1105.10(a) generally

will apply.

(4) The Board's environmental document (together with any comments

and SEA's recommendations) shall be used in deciding whether to allow

the particular construction project to proceed under the class

exemption and whether to impose appropriate mitigating conditions upon

its use (including use of an environmentally preferable route). If the

Board concludes that a particular project will result in serious

adverse environmental consequences that cannot be adequately mitigated,

it may deny authority to proceed with the construction under the class

exemption (the ``no-build'' alternative). Persons believing that they

can show that the need for a particular line outweighs the adverse

environmental consequences can file an application for approval of the

proposed construction under 49 U.S.C. 10901.

(5) No construction may begin until the Board has completed its

environmental review and issued a final decision.

(6) Petitions to stay the effective date of the notice of exemption

on other than environmental and/or historic preservation grounds must

be filed within 10 days of the Federal Register publication. Petitions

to stay the effective date of the notice on environmental and/or

historic preservation grounds may be filed at any time but must be

filed sufficiently in advance of the effective date to allow the Board

to consider and act on the petition before the notice becomes

effective. Petitions for reconsideration must be filed within 20 days

of the Federal Register publication.

(7) The exemption generally will be effective 70 days after

publication in the Federal Register, unless stayed. If the notice of

exemption contains false or misleading information, the exemption is

void ab initio and the Board shall summarily reject the exemption

notice.

(8) Where significant environmental issues have been raised or

discovered during the environmental review process, the Board shall

issue, on or before the effective date of the exemption, a final

decision allowing the exemption to become effective and imposing

appropriate mitigating conditions or taking other appropriate action

such as selecting the ``no build'' alternative.

(9) Where there has been full environmental review and no

significant environmental issues have been raised or discovered, the

Board, through the Director of the Office of Proceedings, shall issue,

on or before the effective date of the exemption, a final decision

consisting of a Finding of No Significant Impact (FONSI) to show that

the environmental record has been considered (see 49 CFR 1105.10(g)).

(10) The Board, on its own motion or at the request of a party to

the case, will stay the effective date of individual notices of

exemption when an informed decision on environmental issues cannot be

made prior to the date that the exemption authority would otherwise

become effective. Stays will be granted initially for a period of 60

days to

[[Page 29975]]

permit resolution of environmental issues and issuance of a final

decision. The Board expects that this 60-day period will usually be

sufficient for these purposes unless preparation of an EIS is required.

If, however, environmental issues remain unresolved upon expiration of

this 60-day period, the Board, upon its own motion, or at the request

of a party to the case, will extend the stay, as necessary to permit

completion of environmental review and issuance of a final decision.

The Board's order will specify the duration of each extension of the

initial stay period. In cases requiring the preparation of an EIS, the

Board will extend the stay for a period sufficient to permit compliance

with the procedural guidelines established by the Board's environmental

regulations.

(d) Third-Party Consultants. An environmental and historic report

required under 49 CFR 1105.7 and 1105.8 will not be required where a

petitioner engages a third-party consultant who is approved by SEA and

acts under SEA's direction and supervision in preparing the EA or EIS.

In such a case, the third-party consultant must act on behalf of the

Board, working under SEA's direction to collect the environmental

information that is needed and to compile it into a draft EA or EIS,

which is prepared under SEA's direction and then submitted to SEA for

its final review and approval. See 49 CFR 1105.10(d).

[FR Doc. 96-14902 Filed 6-12-96; 8:45 am]

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