# Abandonment and Discontinuance of Rail Lines and Rail Transportation Under 49 U.S.C. 10903

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URL: https://www.frixlaw.com/law-library/documents/fr%3A96-32229

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** December 24, 1996
- **Citation:** 61 FR 67876

## Text

SUMMARY: The ICC Termination Act of 1995 revised the law governing
applications by rail carriers to abandon or discontinue service over
lines of railroad and related offers of financial assistance that would
continue rail service after approval of abandonment or discontinuance
by the Surface Transportation Board (Board). The Board now revises part
1152 to implement the changes and update the pertinent regulations, and
to streamline the abandonment and discontinuance processes consistent
with the new law. While making a number of changes, both substantive
and conforming, the Board has not undertaken a comprehensive revision
or rewrite of all of the existing regulations at part 1152 in this
proceeding. The Board also is making conforming changes to the
environmental rules at part 1105.

EFFECTIVE DATE: The rules are effective January 23, 1997.

FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 927-5660.
[TDD for the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: The ICC Termination Act of 1995, Public Law
104-88, 109 Stat. 803 (1995) (ICCTA), abolished the Interstate Commerce
Commission (ICC) and transferred the responsibility for regulating rail
transportation, including the proposed abandonment and discontinuance
of rail lines, to the Surface Transportation Board (Board). Section
204(b)(1) of the ICCTA provides that proceedings and applications
pending before the ICC on January 1, 1996, insofar as they involve
functions retained by the ICCTA, including abandonment proceedings and
applications, shall be decided under the law in effect prior to January
1, 1996. Abandonment applications and proceedings filed on or after
January 1, 1996, shall be decided under the law as revised in the
ICCTA. Under section 204(a), regulations, including those at 49 CFR
part 1152, issued by the ICC and effective as of January 1, 1996, shall
remain in effect ``until modified, terminated, superseded, set aside,
or revoked in accordance with law by the Board * * *.''
On March 15, 1996, we served a Notice of Proposed Rulemaking (NPR)
in this proceeding, published at 61 FR 11174 (March 19, 1996). In that
notice, we proposed to revise part 1152 to implement the changes
brought about by the ICCTA and to streamline and update the
regulations. Included in the proposed revisions were deletions of
obsolete references. We stated that, while we were not proposing major
revisions at this time to our environmental rules at 49 CFR part 1105,
or our National Trails System Act (Trails Act) rules at 49 CFR 1152.29,
we were proposing some notice and timing changes to those regulations
in this proceeding, because the changes were directly related to our
efforts to streamline and improve the abandonment process. For the same
reason, we proposed some conforming changes to our procedures for
handling abandonments exempted as a class, and petitions for individual
abandonment exemptions, to reflect statutory changes resulting from the
ICCTA.
Comments in response to the NPR were received from various
categories of entities. The Association of American Railroads (AAR)
filed on behalf of its member railroads. The Rails to Trails
Conservancy (RTC) filed as an advocate of trail use/rail banking.
Comments were filed by the National Association of Reversionary
Property Owners (NARPO), which is a nationwide organization with
members interested in reversionary and other property rights. In
addition, comments were filed by: (1) Numerous Federal, state, and
local government agencies and entities; (2) labor unions; (3) trade
associations; and (4) a large number of individual landowners and
institutions representing landowners. Basically, the commenters, while
expressing certain reservations and having questions concerning certain
sections, embrace the changes and revisions to the abandonment
regulations that we have proposed.
Before addressing the specific comments, some matters bear
repeating from the NPR. We continue to view the ICCTA as reform
legislation and thus our effort has been to reform and streamline the
existing rules and process. As we stated in the NPR, our goal has been
to revise part 1152 to meet the letter and spirit of the ICCTA and to
update the regulations to improve notice to the public and ensure ample
opportunity for full public participation early in our proceedings. We
continue to believe that this will result in a timely, expeditious
resolution of abandonment cases and allow all interested parties to
participate fully. We emphasize, however, that the purpose of this
rulemaking proceeding is to implement the changes mandated by the ICCTA
along with conforming amendments; we have not attempted to conduct a
comprehensive revision or rewrite of all of the existing regulations at
part 1152. Also, we note that the parties themselves in their comments
have not suggested a wholesale ``cleanup'' of these regulations.
We now turn to the major issues raised by the commenting
parties.1
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\1\ All comments have been carefully considered. Due to the
large number of filings, however, not every specific issue raised by
the commenters will be discussed here.
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1. Uniform schedule. In the NPR, we proposed a new time schedule
for processing abandonment applications:

Day 0--Application filed, including applicant's case in chief.
Day 10--Due date for oral hearing requests.
Day 15--Due date for Board decision on oral hearing requests.
Day 20--Due date for Notice of Application to be published in the
Federal Register.
Day 45--Due date for protests and comments, including opposition case
in chief, and for public use and trail use requests.
Day 60--Due date for applicant's reply to opposition case and for
applicant's response to trail use requests.
Day 110--Due date for service of decision on the merits.
Day 120--Due date for offers of financial assistance, except that if an
application has been granted by decision issued sooner than Day 110,
the offer of financial assistance shall be due 10 days after service of
the decision granting the application.

We also stated that we viewed the notice of intent requirement as
an important early warning of proposed abandonments and intended to
retain its use. Accordingly, an applicant would be required to file
with the Board a notice of intent to abandon a line no more than 30
days and no less than 15 days before the application is filed. In
addition, we proposed to update the list of entities due to receive the
notice, including the addition of RTC and NARPO, to provide the
earliest possible notice that a particular right-of-way might be used
as a trail.
Although several parties raised concerns about the time frames in
their comments, we find no reason to alter the proposed time frames. We
continue to believe that the schedule we had

[[Page 67877]]

proposed will allow for full public participation and timely
resolution, thus benefiting all interested parties. For instance, some
commenters urged that the notice of intent be submitted up to 120 days
before the filing of the application. While that would obviously allow
additional time for parties to gather information and formulate
strategy for offers of financial assistance (OFAs), trail use, etc., it
would also unnecessarily delay many proceedings and has no statutory
basis.\2\ Moreover, the shorter time frame we proposed is in keeping
with the spirit of the ICCTA, which (in section 10904) establishes a 4-
month deadline after an application is filed for the submission of
OFAs. Also, as stated in the NPR, the 110-day outer limit for the Board
to issue a final decision is just that--a maximum time frame. In some
instances, the Board will be able to render a final decision well
before the 110th day.
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\2\ Rather, section 10903(a)(3)(E) requires merely that a rail
carrier certify to the Board with its application that the carrier
has satisfied the notice requirements of section 10903(a)(3) (A)--
(D) within the most recent 30-day period prior to the filing date of
the application.
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NARPO and RTC both oppose our proposal to include them in the list
of entities due to receive the notice of intent. Since notice to these
organizations apparently would not further our goal of achieving the
earliest possible notice that a particular right-of-way might be used
as a trail (and neither expresses willingness or ability to take on
notification responsibilities to persons interested in, or potentially
interested in, trails), we will not include this requirement in our
final rules.
Contrary to the position of RTC and NARPO, the Transportation
Trades Department of the AFL-CIO requests that carriers provide this
advance notice to the duly certified labor organizations that represent
employees on the affected rail line. The request is reasonable and we
will include these organizations on the list of entities to receive the
notice of intent.
A number of individuals, presumably adjoining property owners or
their supporters, argue that applicants should be required to provide
actual notice to each adjoining landowner when filing for abandonment
or when a trail condition is requested. However, actual notice has not
been shown to be feasible or necessary to ensure that affected
landowners and other interested parties receive adequate notice. Our
current procedures ensure extensive notice to the public of proposed
abandonments and the possibility that the right-of-way may be used as a
trail. A notice of every abandonment proposal is published in the
Federal Register. A local newspaper notice also must be published in
every abandonment case in each county affected. Furthermore, local
public hearings on trail use proposals typically are held and there is
usually widespread local publicity. Also, landowners can contact the
Board, the railroad, or the trail group for information on particular
abandonment or trail use plans.
Moreover, it would be difficult to identify, locate and
individually identify each landowner along a line proposed for
abandonment and/or trail use. Hundreds if not thousands of landowners
could potentially be interested in a single line. More importantly, no
available source provides readily ascertainable information on the
chain of title, the names and addresses of current landowners, the
nature of their property interests, and the circumstances, if any, that
might trigger a reversion in a particular state. Thus, there simply is
no practical way to name and locate all of the landowners that might
have a reversionary interest in a railroad right-of-way, as the ICC
concluded in Rail Abandonments--Use of Rights-of-Way as Trails--
Supplemental Trails Act Procedures, Ex Parte No. 274 (Sub-No. 13) (ICC
served May 26, 1989, Feb. 21, 1990, and July 28, 1994), 1994 decision
aff'd mem. 70 F.3d 638 (D.C. Cir. 1995), cert. denied, 116 U.S. 1323
(1996).
While we will not require actual notice to landowners, we will make
other changes to facilitate and improve notice to the public. For
example, RTC recommends that the newspaper and Federal Register notices
we require should specifically alert the public of the possibility
that, following the abandonment of rail service and salvage of the
line, the line may be suitable for other public use, including interim
trail use, and advise how the public may participate in the Board
proceeding (pro or con). We agree with RTC. As RTC states, newspaper
notice and Federal Register notice containing this information will
give adequate notice to the public of the Board's abandonment
proceedings and ensure that interested parties can take such action as
they deem appropriate, if they wish to participate.
In the NPR, we also proposed to change the environmental rules by
amending 49 CFR 1105.7 and 1105.8 to require railroads to serve their
environmental and/or historic reports on the required agencies at least
20 days prior to filing their case in chief with the Board. Also, we
proposed that railroads, in order to facilitate identification of lines
proposed for abandonment, be required to identify those lines by United
States Postal Service Zip Codes. We will adopt both changes. The
earlier distribution of environmental and historic reports will
expedite the environmental review process (by giving participating
agencies additional lead time to conduct their analysis) without being
unduly burdensome on the railroads. While comments on the use of Zip
Codes were mixed, the use of Zip Codes is a means to provide notice to
the public that a line near them has been proposed to be abandoned.
Therefore, we will require use of Zip Codes in the final rules.
Finally, the Department of the Army has requested that the Military
Traffic Management Command Transportation Engineering Agency (MTMCTEA)
continue to receive a copy of abandonment notices. It states that
MTMCTEA is responsible for maintaining a rail network for national
defense purposes and that MTMCTEA must receive notice to determine if
the line designated for abandonment is an essential element in the rail
network.
We have retained MTMCTEA on the list of agencies on which notices
must be served. See Secs. 1152.20(a)(2) (requiring service of notice of
intent on MTMCTEA) and 1152.50(d)(1). We have also assured that MTMCTEA
will receive copies of petitions for exemption in new Sec. 1152.60(d).
2. Federal Register Publication. Commenters overwhelmingly
supported our proposal to publish a notice of an abandonment
application or a petition for an individual exemption in the Federal
Register 20 days after the application or petition is filed.3
Accordingly, we will adopt that proposal in our final rules. The
Federal Register notice will describe the proposal, advise the public
about the due dates for offers of financial assistance and requests for
public use and trail use conditions, and explain how to participate
(pro or con) in the Board's proceeding. Abandonment applicants and
petitioners will be required to file draft Federal Register notices
that can be used to announce the filing.
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\3\ We proposed no changes for the publication of Federal
Register notices for the procedural timing of abandonments covered
by the class exemption embraced in subpart F.
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RTC argues that, in addition, we should continue our current
practice of publishing another Federal Register notice when, and if,
the abandonment authority is granted. We disagree. Because there will
be Federal Register notice and newspaper notice at the beginning of the
process specifically advising the public as to how to

[[Page 67878]]

participate (pro or con), any interested person can become a party or
can ask to be put on the service list of a proceeding and thus receive
copies of all subsequent decisions in the case.4 Moreover, Federal
Register notice is extremely costly; we lack the financial and staff
resources to publish multiple Federal Register notices in abandonment
cases.
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\4\ We note that the timing for Federal Register notices we are
adopting for applications and petitions for exemption is similar to
what has been done under the class exemption at subpart F for many
years. Under the class exemption, as here, the only Federal Register
notice is at the beginning of the process.
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Also RTC suggests that we not use the term ``must'' in the portion
of the draft Federal Register notice informing requesters of a public
use condition or trail use condition that such requests are due within
45 days of the filing of the application, 40 days of the filing of a
petition, or 10 days after the publication of a notice of exemption.
RTC argues that the use of ``must'' will lead to claims by anti-trail
groups that no late-filed requests should ever be granted. We have not
made the suggested change. Trail use requests, like all other requests,
need to be timely filed if at all possible so our uniform schedule can
be met.5 Moreover, we will specifically retain our current policy
of accepting filings after the due date when good cause is shown.
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\5\ We see no reason why trail use requests cannot typically be
filed on time. Filing a trail use request is not onerous. Moreover,
a party can request a trail condition before there is an arrangement
for interim trail use; the condition simply provides time to
negotiate.
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Finally, the comments received regarding changes to our rules for
abandonments covered by the class exemption embraced in subpart F raise
issues that are inappropriate for resolution on the current record.
Accordingly, we will not attempt to change or modify our regulations
concerning the class exemption at this time but reserve the right to
address these issues further in a separate proceeding at a later date.
3. System Diagram Maps. The ICCTA retains the requirement that rail
carriers prepare, file, and amend, as appropriate, system diagram maps
(SDMs) that identify lines that are, or soon will be, the subject of an
abandonment application. In the NPR we proposed several changes to part
1152 regarding SDMs to eliminate unnecessary regulatory and paperwork
burdens. These changes include the following:
(1) Because of the potential burden on small carriers, we proposed
to require only Class I and Class II railroads to prepare and file
SDMs.
(2) In lieu of an annual filing of these maps, we proposed a one-
time filing of a complete and current set of maps within 60 days of the
effective date of these regulations. The carrier would decide when
changes have been extensive enough to warrant the filing of a new,
updated SDM, but the Board would retain the discretion to require an
updated SDM if that became necessary.
(3) We proposed to require only 3 (instead of 6) copies whenever an
SDM or an update is filed.
(4) We proposed to reject an abandonment application of a Class I
or Class II railroad for a line that has not been identified on a SDM
in category 1 for at least 30 days.
Many commenters expressed views on this subject. First, there was
strong opposition to our excusing Class III carriers from filing SDMs.
Commenters pointed out that Class III carriers now comprise a
substantial portion of the rail network, both in numbers of carriers
and length of track operated.6 Commenters (including several state
agencies) argued that to excuse such a large portion of the rail
network from these filing requirements would work a severe hardship
upon parties opposing abandonments. Moreover, commenters argued that,
because rail lines by statute may qualify for feeder line applications
under 49 U.S.C. 10907 if they have been identified on an SDM, our
proposal would in effect limit the use of the feeder line provisions
for lines owned by Class III carriers.
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\6\ According to the National Grain and Feed Association, as of
1994, there were 487 Class III carriers operating 25,999 miles of
track. This was approximately 21 percent of the total track operated
by Class I railroads (123,355 miles in 1994).
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Based on the comments, we have decided to continue to require Class
III carriers to file the information normally found in an SDM. Because
we recognize, however, that the extensive SDM filing requirements under
our current rules could be unnecessarily burdensome on smaller
entities, we will give Class III carriers the option of filing a map or
filing only a narrative description of its lines as provided under
Sec. 1152.11.
A number of commenters also opposed our proposal to shorten the
period of time that a carrier must identify a line in category 1 of its
SDM before filing an application to abandon the line. Because the ICCTA
deleted the 4-month requirement under the prior law, we proposed
requiring that a carrier identify a line in category 1 at least 30 days
prior to filing an abandonment application, believing that period to be
adequate to meet the various parties' planning needs. A significant
number of parties maintained that 30 days was too short a period of
time to properly notify persons who might wish to file statements in
opposition to an abandonment or for public agencies and shippers to
prepare an OFA for the line or otherwise plan for alternative
transportation. Many commenters supported retention of the 4-month
period provided under prior law and implementing regulations.
We are persuaded by the comments that 30 days may be insufficient
time for parties to properly oppose an abandonment or to make
alternative service plans. At the same time, we continue to believe
that 4 months is too long and unduly delays the overall process.
Therefore, our final rules provide for rejection of any abandonment
application for a line that has not been identified on an SDM 7 in
category 1 for at least 60 days. The additional time should be adequate
to meet the planning needs of shippers and state and local governments
while avoiding unnecessary delay.
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\7\ For Class III carriers, the term SDM shall include the
filing of a narrative description without an actual map.
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Some commenters, including AAR, recommend that we eliminate
categories (2), (3), and (4) from the SDM. We see no need to do so. By
adopting a one-time filing requirement (unless extensive changes
occur), we have already eliminated much of the extensive work and
burdensome procedures required under our prior rules.
A number of parties have also argued that we should retain the
prior requirement concerning the annual filing of updated maps or at
least require updates on a specific, periodic basis. We believe these
requirements would result in more burdens on the carriers than benefits
to the shipping public. We emphasize that carriers must continue to
file revisions when changing the category of a line, and must file
updated SDMs as appropriate or when ordered by us.
MTMCTEA asks that it continue to receive updated copies of SDMs. We
have provided copies of SDMs and updates to MTMCTEA in the past on an
informal basis. As this procedure apparently has worked well, we will
continue to provide the information to MTMCTEA as before.
4. Summary application. Absent meaningful opposition, we will
finalize our intention to delete the ``Summary Application''
provisions. By doing so, we will have a uniform, streamlined process
for all applications.

[[Page 67879]]

5. Abandonment procedures for bankrupt railroads. As part of our
proposal to adopt a streamlined process appropriate for all
applications, we preliminarily indicated in the NPR that no need
existed to continue to have separate procedures in subpart E for
bankrupt railroads. However, we did propose to include as special
provisions for bankrupt railroads in the general abandonment procedures
the requirements that abandonment applications filed by bankrupt
railroads, and protests or other public responses to the applications,
be filed with the bankruptcy court; that Board decisions or reports on
abandonment applications by bankrupt railroads be filed with the
bankruptcy court; and that special processing schedules would be
established to meet court deadlines, so long as a reasonable period of
time is allowed to obtain public responses and build a record in an
abandonment application by a bankrupt railroad. The commenters either
support, or fail to show harm from, these proposals, and we will adopt
them as part of our final regulations.
6. Due date for filing public use requests and trail use requests.
In the NPR, we proposed changes in due dates for these filings to
further our goal of compiling a full record for disposition as early as
possible. In abandonment applications, we proposed that trail use
requests and public use requests be filed at the same time as protests
and other written comments (within 45 days after the application is
filed). An applicant would then be required to respond regarding
willingness to negotiate for trail use within 15 days (or within 60
days after the application is filed). For abandonments covered by the
class exemption at subpart F, we proposed to continue to require trail
use/rail banking requests to be filed within 10 days after Federal
Register publication of the exemption and public use requests to be
filed within 20 days after Federal Register publication. For petitions
for individual exemption, we proposed to require that trail use/rail
banking requests and public use requests be filed within 20 days after
Federal Register publication of the notice of the filing of the
petition (40 days from the filing of the petition). For both class
exemptions and petitions for exemption, we proposed to require the rail
carrier to respond to trail use/rail banking requests within 10 days
after the request is filed.
Commenters have for the most part agreed with our proposed rules,
which we will adopt. Some have sought additional or more comprehensive
changes to the regulations governing public use and trail use
conditions. We will not, however, address those requests here, because
we did not set out in this proceeding to undertake a detailed re-
examination of all aspects of our handling of public use and trail use
requests. In short, our purpose in proposing to modify these due dates
was to find a way to complete a full record as early as practicable to
expedite and streamline the abandonment process.
Finally, several commenters suggest that we should undertake a
``takings implication assessment'' whenever we issue a trail condition,
pursuant to Executive Order 12630, Governmental Actions And
Interference With Constitutionally Protected Property Rights. See 53 FR
8859 (March 18, 1988). But, as the ICC had explained, the Executive
Order applies only to executive agencies, and not to independent
agencies like the ICC.8 The Executive Order does not apply to the
Board, which was created as the successor agency to the ICC.9
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\8\ Burlington Northern Railroad Company--Aband. Exemption--In
Skagit County, WA, Docket No. AB-6 (Sub. No. 299X) (ICC served June
23, 1989).
\9\ While the Board is lodged within the Department of
Transportation, just as the Federal Energy Regulatory Commission is
lodged within the Department of Energy, the Board was created as an
independent establishment of the United States Government. See 49
U.S.C. 703(a).
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7. Notice of consummation. To arrive at more definitive standards
to be used in resolving the issue of when an abandonment has been
consummated, or fully exercised, we proposed in the NPR to require that
carriers file with the Board a notice of consummation, and to give
conclusive effect to the filing of such notice.10 We did not
propose a deadline for filing, or a penalty for failure to file. We
indicated that, if no notice of consummation of abandonment had been
filed, we would continue to look at the other facts and circumstances
to determine if consummation of the abandonment had occurred.
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\10\ Until 1984, the ICC required a railroad to send the agency
a letter confirming that it had consummated an abandonment within 1
year after the abandonment was authorized. Since then, some carriers
have continued to send in these letters. Moreover, the courts have
considered these letters in determining whether the line is still
part of the interstate rail network, and thus available for interim
trail use under 16 U.S.C. 1247(d), or public use under 49 U.S.C.
10905.
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After considering the comments, we continue to believe that a
notice of consummation requirement would help clarify the consummation
issue and prevent consummation disputes from arising in the future.
Several commenters, however, criticize our failure to include a filing
deadline in our proposal, on grounds that it would leave the railroad
free never to consummate an abandonment and thus would be unfair to
adjoining landowners with a reversionary interest in the right-of-way.
Based on the comments, we have decided to set a 1-year time limit by
which time a railroad must exercise the authority to abandon and inform
us that it has done so by sending us a consummation notice.11
Accordingly, our final rules provide that, if after 1 year from the
date of service of a decision permitting abandonment, consummation has
not been effected by the railroad's filing of a notice of
consummation--and there are no legal or regulatory barriers to
consummation (i.e., outstanding conditions, including Trails Act
conditions)--the authority to abandon will automatically expire. That
means that a new proceeding would have to be instituted if the railroad
wanted to abandon the line.12
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\11\ Several parties suggest shorter time periods ranging from
30 to 180 days. AAR supports our initial decision to have no time
period at all, noting that a railroad may have reason to delay
consummation of an abandonment for a substantial period of time. We
believe that a 1-year time period is appropriate. That time period
ensures that the consummation issue will not be left open
indefinitely. At the same time, it is long enough to give carriers
that do not want to exercise their abandonment authority immediately
time to hold open the possibility that new shippers will seek rail
service or that the right-of-way could be used for interim
recreational or conservation purposes under 16 U.S.C. 1247(d), or
public use under 49 U.S.C. 10905.
\12\ There is nothing inconsistent about this approach and our
rules that permit states to acquire lines that have not been fully
abandoned upon the mere filing of a notice. See 49 CFR 1150.22. If
the line is acquired during the first year after we authorize
abandonment, and before a notice of consummation is filed, the line
has not been fully abandoned and can be acquired under our rules.
After a year has passed, if there is no notice of consummation, the
railroad's abandonment authority lapses, and the line cannot be
abandoned (or acquired by a state or any one else) without further
authority from us.
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We reject the suggestion of some commenters that we should not
adopt a notice of consummation requirement because the issue of when
abandonment has been consummated has been settled by Fritsch v. ICC, 59
F.3d 248 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 1262 (1996). In
Fritsch, the court held that a public use condition imposed under
former section 10906 (now 49 U.S.C. 10905) did not prevent consummation
of the abandonment and the vesting of reversionary interests in the
right-of-way in the circumstances of that case. The courts, however,
have expressly declined to read Fritsch as holding that abandonment is
necessarily triggered upon a showing of any single piece of

[[Page 67880]]

evidence indicative of an intent to abandon. See Conrail v. STB, 93
F.3d 793, 799 (D.C. Cir. 1996); Birt v. STB, 90 F.3d 580, 588 n.15
(D.C. Cir. 1996); Grantwood Village v. Missouri Pacific RR, 95 F.3d
654, 659 n.6 (8th Cir. 1996). Moreover, the court in Fritsch
essentially viewed the railroad's letters to the ICC declaring that it
had abandoned the line as conclusive evidence that abandonment had been
consummated, therefore depriving the ICC of jurisdiction to impose a
trail condition. See 59 F.3d at 253. Thus, our adoption of a notice of
consummation requirement here will codify that portion of the court's
ruling in Fritsch and prevent similar disputes from arising in the
future.
Finally, the Oregon and Montana Departments of Transportation
suggest that we require notices of consummation to be filed with the
appropriate state agencies (DOT, Public Service Commission) as well as
with us. We will grant that request, and require that the railroads
file notices of consummation with the State Public Service Commission
(or equivalent agency) in each state through which the line passes,
because it will help keep the states apprised of the status of lines
authorized to be abandoned and is not unduly burdensome.
8. Certificate of abandonment. Since the ICCTA does not
specifically require that ``certificates'' be issued when abandonment
applications are granted, in the NPR we proposed to dispense with the
issuance of certificates and instead simply issue ``decisions
granting'' an application. However, we proposed to continue to refer to
``Certificates of Interim Trail Use or Abandonment'' in the trail use
context in part to distinguish an application proceeding from an
exemption proceeding. We received a few comments regarding this issue
but no commenter presents strong objections to our proposal. Because
the term ``certificate'' is widely known in the trail use context, we
will continue to use it for trail use purposes alone.
9. Contents of the application. In the NPR, we initially determined
that applicants should be required to submit their entire case as part
of the application. We then indicated that applicants must include all
relevant workpapers and supporting documents with each application.
AAR, in its comments, objects to the necessity of supplying all
workpapers and supporting documents. It argues that this would be a
step backward in our effort to streamline the application process. AAR
explains that differences of opinion would arise concerning what
constitutes ``workpapers'' and that the gathering of all materials
would be an unnecessary burden on applicants and produce copious
documents with little practical use. We agree with the comments and
emphasize that we did not intend to create a more burdensome process
than exists today. We clarify that what we meant by the use of the word
``all'' was that we expect each applicant to submit sufficient (or all
that the applicant believes is necessary) workpapers and supporting
documents to present a complete or prima facie case. We will modify the
regulations accordingly, but we emphasize that the burden is on the
applicant to show that the proposed abandonment or discontinuance is in
the public interest.
a. Service data. In the NPR we proposed to streamline the
requirements for abandonment applications by excluding all branch line
(line proposed for abandonment) service data for time periods prior to
the Base Year period, with the exception of data on changes in train
service. The current regulations require data for the 2 preceding
calendar years and that portion of the current calendar year for which
data are available.13
---------------------------------------------------------------------------

\13\ As we stated in the NPR, this change had been proposed by
the ICC in a notice of proposed rulemaking in Abandonment
Proceedings: Elimination of the Revenue and Cost Data for All Years
Prior to the Base Year Period, Ex Parte No. 274 (Sub-No. 26) (ICC
served Nov. 9, 1992), to reduce the reporting burden on the
carriers. Comments were received but a final rule was never issued.
---------------------------------------------------------------------------

We also proposed changes to the service and traffic data required
to be provided in three specific areas. First, we proposed that the
carload data on the line would have to show only the total carloads for
each commodity group. Second, we proposed that data pertaining to
overhead or bridge traffic would have to be included only if the
serving carrier would not retain this traffic after approval of the
abandonment. Finally, we proposed that only changes in train service in
the last 2 years (instead of the last 5 years) would need to be
discussed.
A number of commenters raised concerns about the proposed exclusion
of historic operational data in the application. Reasons for their
concern vary but include: (1) Base Year data could be intentionally
distorted; (2) historical calendar year evidence reflects trends in
rail line profitability; (3) 1 or 2 years of data are inadequate to
make a determination on the viability of a rail line; and (4) without
the data from past periods, it will be difficult to determine if
intentional downgrading has occurred.
We do not entirely agree with the commenters that urge that there
is a need for more historical data. Under our proposed rules,
applicants would have to include and discuss changes in train service
for the last 2 years. In addition, applicants would also be required to
supply, under proposed Sec. 1152.22(e)(2), a list of significant
shippers and their tonnage and/or carload data for the last 2 calendar
years and, under proposed Sec. 1152.22(c)(4), total carloads by each
commodity group on the line during the Base Year. This information
should give protestants sufficient data to address alleged downgrading
and the other concerns outlined above.
Nevertheless, in response to commenters and their concerns, we have
decided to expand our traffic data requirements somewhat. Specifically,
the data required for significant users under Sec. 1152.22(e)(2) of our
final rules will include the tonnage and carloads for each commodity
group for the last 2 calendar years, any part of the current calendar
year for which data are available, and the Base Year. In addition, we
will require that the total tonnages and carloads for each commodity
group originating and/or terminating on the line segment (not limited
to significant users) be shown for the same time periods as those for
the significant users. Consistent with these changes, we also will
expand proposed Sec. 1152.22(c)(4) to require inclusion of total tons
and carloads by each commodity group on the line. With these changes,
we believe that an application will contain sufficient service and
traffic data to allow appropriate analysis of all issues relevant to
service on the subject line.
b. Financial data. In the NPR, we proposed to exclude computations
for the revenue and cost data developed for the branch line for the
prior 2 calendar years and any portion of the current year. Revenue and
cost data would be computed only for the Base Year, Forecast Year, and
Subsidy Year.14
---------------------------------------------------------------------------

\14\ These changes also had been proposed in the ICC's
rulemaking in Ex Parte No. 274 (Sub-No. 26).
---------------------------------------------------------------------------

We also proposed to delete the requirements that the impact of the
abandonment on the carrier's net railway operating income (NROI) for
the past 2 calendar years be developed and that the impact on the NROI
of other carriers operated under common control of the abandoning
railroad be submitted. In addition, we proposed to delete the
requirement that the railroad's balance sheet and income statements be
filed.
Commenters voice concern regarding the absence of financial
operating results in prior years and object to the

[[Page 67881]]

proposal to delete the requirements concerning NROI and the filing of
balance sheets and income statements. They make the same arguments
against the elimination of these data as they make regarding the
elimination of historic service data. Regarding common control, some
commenters argue that the financial effect of abandonment by one
``family'' member affects another. Also, they argue that financial
statements are needed because they show the overall financial condition
of the applicant, which can be important in the Board's weighing of the
evidence under its public convenience and necessity standard.
We do not believe that the benefits of requiring a carrier to
submit all of these data justify the very real burden on the applicant
of preparing the data. Profits or losses on a line segment in prior
years typically do not provide a proper basis on which to judge the
line's current and future financial viability. The Board's primary
measures of financial condition are the operations in the Base Year and
Forecast Year, which recognize the current and future financial
viability of the line segment. Moreover, changes in traffic are in most
instances the main cause of changes in operating results from a profit
to a loss, and necessary traffic information is included in the data
applicant is required to file. For these reasons, we will not make the
requested changes to our proposal.
c. Other application changes. In the NPR, we proposed to delete the
requirements that the carrier identify in detail the sources of
alternate transportation available and describe its efforts to solicit
traffic on the line. Instead, we proposed to require only a general
description of alternative transportation sources. We also proposed
that the carrier no longer be required to describe its efforts to
solicit traffic on the branch line in every case, but that we would
permit the carrier instead to provide a description of its efforts if
it believes that the information would aid its case regarding
protestants' claims of either potential increases in traffic or
deliberate downgrading. Comments specifically addressing these points
were unpersuasive. Accordingly, we will incorporate these changes in
our final rules.
d. Summary. We will adopt in our final rules the modifications
discussed in subparts a-c above. We believe that the information
required to be provided in the application, along with information that
the parties already have, or may readily obtain, will afford all
interested parties a fair opportunity to analyze and present argument
on every issue relevant to the abandonment process that is related to
the above data. Moreover, we remind applicants that the burden of proof
in these proceedings remains on them, and that they may wish to provide
additional data with their applications where doing so would help
assure that they have met their burden regarding anticipated challenges
such as, for example, challenges claiming deliberate downgrading of the
line.
10. Offers of financial assistance. As discussed in the NPR, in
addition to the time limits explained above, new 49 U.S.C. 10904
contains other changes in the way OFAs are handled. Initially, the
Board need only find that the offeror is a financially responsible
person before the negotiating process can begin. We proposed to revise
the rules accordingly. Under new section 10904, the Board has 30 days,
rather than 60 as before, from the date requested to issue a decision
establishing the conditions and amount of compensation for the purchase
or subsidy of the line. To meet the new deadline, we proposed to
require the requesting party to submit its case in chief at the time it
makes its request and to serve the other party(ies) with a copy by
overnight mail. The other party(ies) would have 5 days from the date of
filing to file a reply. As before, we proposed that our new rules would
automatically stay the effective date of (or revoke as necessary for a
class exemption) the underlying abandonment decision. We will adopt
these changes in our final rules. The final rules also continue to
provide that, if a request to set terms and conditions is not made to
the Board, a decision making the underlying abandonment approval (or
exemption) effective would be served within 10 days of the due date for
making the request.
The statute now places a 1-year limit on operating subsidies
imposed by the Board, unless otherwise mutually agreed by the parties.
As a result, we proposed in the NPR that: (1) Subsidy agreements
imposed by the Board would end after 1 year, and (2) beyond this period
any subsidy would be strictly a contractual agreement between the
carrier and the subsidizer without the involvement of the Board.
Also regarding subsidies, we proposed that the new rules continue
to provide for interim financial status reports, as presently included
in the abandonment regulations. However, with certain exceptions, the
subsidizer's final responsibility would be limited to a maximum of 15%
over the agreed-to amount of the operating subsidy. The exceptions
would be: (1) If the subsidizer is notified of a higher amount within
the first 10 months of the agreement; and (2) the increase results from
an expense that has been preapproved by the subsidizer. We explained in
the NPR that we believed that the limitation is needed to provide a
degree of certainty to a party that seeks to subsidize operation of a
line approved for abandonment. Our final rules include all of these
provisions.
We have considered the concern of some commenters regarding the
shortening of the 120-day statutory period for submission of OFAs when
an abandonment is granted by decision issued sooner than 110 days after
the application is filed. (Our uniform schedule provides that in such
cases the OFA will be due 10 days after service of the decision
granting the application, which could be sooner than 4 months after the
application is filed.) However, given our goal of expediting the
process where possible, we have decided not to change our proposed
Uniform Schedule. We recognize that 49 U.S.C. 10904(c) sets 4 months as
the outer limit for the filing of OFAs. At the same time, we believe
that the expanded notice that will be provided at the outset of
abandonment proceedings under our new rules typically will allow
adequate time for parties to consider filing an OFA, and marshal the
funds necessary to do so, within the Uniform Time Frames, even if in
some cases this results in something less than the full 120 day period
to file an OFA. Accordingly, we do not read the statute to require that
we delay in all cases abandonment proceedings that can be decided in
less time than the full 110 days. However, in light of the time frames
in 49 U.S.C. 10904(c), parties that can show that they would be
materially prejudiced by having less than the full 4 months may
petition the Board for the full time provided by the statute for
application proceedings.15
---------------------------------------------------------------------------

\15\ Parties may seek relief under 49 CFR part 1117.
---------------------------------------------------------------------------

In addition, RTC contends that we should retain the requirement
that, in addition to being made by a financially responsible person,
the offer must be ``bona fide.'' RTC requests that we include such
language in the regulations. We find no merit in RTC's request. New 49
U.S.C. 10904 clearly does not retain that aspect of the prior statute.
Accordingly, we will not add such a requirement in our regulations. Our
final rules adopt the changes proposed in the NPR.
11. Return on investment. In the NPR, we stated that we believed
several problem areas existed with the rules for establishing return on
investment. To address these issues, we proposed

[[Page 67882]]

various changes regarding the determination of the net liquidation
value (NLV) of road properties on the branch line, a component used in
calculating return on investment. These proposed changes involved the
inclusion of assets with negative net salvage values, adjustments to
right-of-way land values, and the bases used to value right-of-way
land.
Very few comments were received regarding these proposed changes.
However, AAR has raised concerns about the proposed inclusion of
negative salvage values for those assets where the cost of dismantling
exceeds the value of the materials salvaged. There are three situations
where this value has implications. These situations are: (1)
Calculation of the operating and economic loss on the line, i.e., the
merits of the application; (2) the continuation subsidy payment
calculation; and (3) selling price in OFA purchase determinations.
Regarding the merits of the application, a negative return on value
would distort the loss from operations being borne by the serving
railroad. This could, according to AAR, result in the application being
denied.
AAR also is concerned that inclusion of a negative NLV and a
negative return on properties would reduce the subsidy amount below the
operating loss being incurred by the serving carrier. Additionally, AAR
states that in OFA proceedings a negative value for the properties
could result in an artificially low value being placed on the assets
that are to be purchased. This situation, it claims, would also reverse
the burden of proof from the offeror to the railroad in proving the
value of the line's assets.
In light of the concerns of AAR as to the potential implications of
including both a negative NLV and calculating a negative return on
value, we have made appropriate changes to our proposed regulations
regarding the calculation of subsidy payments or purchase price in OFA
proceedings.
First, to amplify what we said in the NPR, no asset on the branch
line will have a negative value unless the railroad intends to remove
the structure, or it is proven by protestants, that the structure must
be dismantled to comply with a Federal law, state law, or a local
ordinance.
Moreover, in assessing the merits of the application, if a negative
value results for the composite NLV of all branch line properties, the
negative value will be inserted in the submission of the Forecast Year
revenue and cost data, Exhibit 1 to the application. However, the
return on value will be calculated at zero. This will allow the Board
to compare the loss from operations with the negative opportunity cost
of the railroad. The cost to the railroad for dismantling the
structure(s) is recognized by the Board as a one time expense whereas
the operating loss will reoccur each year, if nothing changes.
We will amend Sec. 1152.34 of the proposed regulations to include
changes in developing the NLV of road property and the return on value
requested by AAR. Under our final rules, in calculating a continuation
subsidy payment, assets with negative value will be handled in the
following manner. Any individual asset with a negative value will be
valued at zero. The balance of the assets will have their NLV
calculated in the normal manner. A continuation subsidy must recognize
the line segment as a going concern and a return should be earned by
the railroad on those assets with value. Under no circumstances will
the subsidy payment be less than the loss from operations incurred by
the railroad from providing service on the line.
With regard to OFAs to purchase a line segment, the NLV of the
line's assets will be determined in the same manner as that used in
calculating continuation subsidy payments.
Finally, AAR favors the use of the comparable sales method for
valuing real estate. We reject that approach, as the ICC did in the
past. Accordingly, the proposed rules will be adopted concerning this
issue.
12. Holding gains and losses. In the NPR, we proposed the use of
the Gross Domestic Product as a replacement for the Gross National
Product used in estimating holding gains and losses (computed for
freight cars, locomotives, and road property accounts). We suggested
this change to bring our rules in line with the current measures used
at the U.S. Department of Commerce, Bureau of Economic Analysis.
Commenters generally approve of this modification, and we will include
it in our final regulations.
13. Appendix listing of carriers and AB numbers. In the NPR, we
proposed to delete the Appendix to part 1152 that lists carriers and
their assigned AB numbers. We preliminarily concluded that the list
serves no useful purpose, noting that interested persons could instead
contact the Board's Office of the Secretary if they have a need to
ascertain a particular carrier's assigned AB number.
The lack of comments regarding this change confirms our preliminary
conclusion that the listing does not continue to serve a useful
purpose. Accordingly, it will be deleted from part 1152 as proposed.
14. Filing fees. Several commenters address the issue of filing
fees. However, we will not address those comments here as fees issues
were considered and resolved by the Board in Regulations Governing Fees
for Service, 1 S.T.B. 179 (1996).

Small Entities

In the NPR, we sought comments on our preliminary conclusion that
these regulations, if adopted, would not have effects on small entities
that should be considered in a regulatory flexibility analysis. No
comments provided information showing that there would be significant
effects on small entities. Accordingly, the Board certifies that these
rules will not have a significant economic effect on a substantial
number of small entities. They should result in streamlining,
improving, and updating the abandonment process while ensuring the
opportunity for full public participation in our proceedings.

Environmental Finding

This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.

List of Subjects

49 CFR Part 1105

Environmental impact statements, Reporting and recordkeeping
requirements.

49 CFR Part 1152

Administrative practice and procedure, Conservation, Environmental
protection, National forests, National parks, National trails system,
Public lands-grants, Public lands rights-of-way, Railroads, Recreation
and recreation areas, Reporting and recordkeeping requirements.

Decided: December 9, 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,
parts 1105 and 1152 of the Code of Federal Regulations are amended as
follows:

PART 1105--PROCEDURES FOR IMPLEMENTATION OF ENVIRONMENTAL LAWS

1. The authority citation for part 1105 is revised to read as
follows:

Authority: 5 U.S.C. 553 and 559; 16 U.S.C. 470f, 1451, and 1531;
42 U.S.C. 4332 and

[[Page 67883]]

6362(b); and 49 U.S.C. 701 note (1995) (section 204 of the ICC
Termination Act of 1995), 721(a), 10502, and 10903-10905.

2. Section 1105.7 is amended as follows:
a. In paragraph (a), after the words ``must submit'' add the words
``to the Board'';
b. In paragraph (a), after the words ``notice of exemption'' add
the words ``, except as provided in paragraph (b) for abandonments and
discontinuances'';
c. Paragraph (b), introductory text is revised;
d. In paragraph (b)(11) the last sentence is removed;
e. Paragraph (c), first sentence, after the words ``to the agencies
listed'' add the words ``and within the time period specified'';
f. In paragraph (c) the third sentence is removed.
The revision to the introductory text in paragraph (b) reads as
follows:

Sec. 1105.7 Environmental reports.

* * * * *
(b) At least 20 days prior to the filing with the Board of a notice
of exemption, petition for exemption, or an application for abandonment
or discontinuance, the applicant must serve copies of the Environmental
Report on:
* * * * *
3. In Sec. 1105.8, paragraph (c) is revised to read as follows:

Sec. 1105.8 Historic Reports.

* * * * *
(c) Distribution. The applicant must send the Historic Report to
the appropriate State Historic Preservation Officer(s), preferably at
least 60 days in advance of filing the application, petition, or
notice, but not later than 20 days prior to filing with the Board.
* * * * *

Sec. 1105.12 [Amended]

4. Section 1105.12, the appendix, is amended as follows:
a. In the first paragraph of the sample newspaper notice for out-
of-service abandonment exemptions after the words ``(station name),''
add the following words: ``which traverses through United States Postal
Service ZIP Codes (ZIP Codes).''
b. In the first paragraph of the sample newspaper notice for
petitions for abandonment exemptions, after the words ``(station
name),'' add the following words: ``which traverses through United
States Postal Service ZIP Codes (ZIP Codes).''
5. Part 1152 is revised to read as follows:

PART 1152--ABANDONMENT AND DISCONTINUANCE OF RAIL LINES AND RAIL
TRANSPORTATION UNDER 49 U.S.C. 10903

Subpart A--General

Sec.
1152.1 Purpose and scope.
1152.2 Definitions.

Subpart B--System Diagram

1152.10 System diagram map.
1152.11 Description of lines to accompany the system diagram map or
information to be contained in the narrative.
1152.12 Filing and publication.
1152.13 Amendment of the system diagram map or narrative.
1152.14 Availability of data.
1152.15 Reservation of jurisdiction.

Subpart C--Procedures Governing Notice, Applications, Financial
Assistance, Acquisition for Public Use, and Trail Use

1152.20 Notice of intent to abandon or discontinue service.
1152.21 Form of notice.
1152.22 Contents of application.
1152.23 [Reserved]
1152.24 Filing and service of application.
1152.25 Participation in abandonment or discontinuance proceedings.
1152.26 Board determination under 49 U.S.C. 10903.
1152.27 Financial assistance procedures.
1152.28 Public use procedures.
1152.29 Prospective use of rights-of-way for interim trail use and
rail banking.
Subpart D--Standards for Determining Costs, Revenues, and Return on
Value
1152.30 General.
1152.31 Revenue and income attributable to branch lines.
1152.32 Calculation of avoidable costs.
1152.33 Apportionment rules for the assignment of expenses to on-
branch costs.
1152.34 Return on investment.
1152.35 [Reserved]
1152.36 Submission of revenue and cost data.
1152.37 Financial status reports.

Subpart E--[Reserved]

Subpart F--Exempt Abandonments and Discontinuances of Service and
Trackage Rights
1152.50 Exempt abandonments and discontinuances of service and
trackage rights.

Subpart G--Special Rules Applicable to Petitions for Abandonments or
Discontinuances of Service or Trackage Rights Filed Under the 49 U.S.C.
10502 Exemption Procedure

1152.60 Special rules.

Authority: 5 U.S.C. 553, 559, and 704; 11 U.S.C. 1170; 16 U.S.C.
1247(d) and 1248; and 49 U.S.C. 701 note (1995) (section 204 of the
ICC Termination Act of 1995), 721(a), 10502, 10903-10905, and 11161.

Subpart A--General

Sec. 1152.1 Purpose and scope.

(a) 49 U.S.C. 10903 et seq. governs abandonment of rail lines and
discontinuance of rail service by common carriers. Section 10903(d)
provides that no line of railroad may be abandoned and no rail service
discontinued unless the Board finds that the present or future public
convenience and necessity require or permit the abandonment or
discontinuance.
(b) Part 1152 contains regulations governing abandonment of, and
discontinuance of service over, rail lines. This part also sets forth
procedures for providing financial assistance to assure continued rail
freight service under 49 U.S.C. 10904, for acquiring rail lines for
alternate public use under 49 U.S.C. 10905, and for acquiring or using
a rail right-of-way for interim trail use and rail banking.

Sec. 1152.2 Definitions.

Unless otherwise provided in the text of the regulations, the
following definitions apply in this part:
(a) Account means an account in the Board's Uniform System of
Accounts for Railroad Companies (49 CFR part 1201).
(b) Act means the ICC Termination Act of 1995 (Pub. L. 104-88, 109
Stat. 803), as amended.
(c) Base Year means the latest 12-month period, ending no earlier
than 6 months prior to the filing of the abandonment or discontinuance
application, for which data have been collected at the branch level as
prescribed in Sec. 1152.30(b).
(d) Board means the Surface Transportation Board.
(e) Branch means a segment of line for which an application for
abandonment or discontinuance, pursuant to 49 U.S.C. 10903, has been
filed.
(f) Carrier means a railroad company or the trustee or trustees of
a railroad company subject to regulation under 49 U.S.C., Subtitle IV,
chapter 105.
(g) Designated state agency means the instrumentality created by a
state or designated by appropriate authority to administer or
coordinate its state rail plan.
(h) Forecast Year means the 12-month period, beginning with the
first day of the month in which the application is filed with the
Board, for which future revenues and costs are estimated.
(i) Form R-1 means the railroad's annual report filed with the
Board in accordance with the requirements of 49 U.S.C. 11145.
(j) Offeror means a shipper, a state, the United States, a local or
regional transportation authority, or any

[[Page 67884]]

financially responsible person offering rail service continuation
assistance under 49 U.S.C. 10904.
(k) URCS means the Uniform Railroad Costing System.
(l) Significant user means: (1) Each of the 10 rail patrons which
originated and/or received the largest number of carloads (or each
patron if there are less than 10); and
(2) Any other rail patron which originated and/or received 50 or
more carloads, on the line proposed for abandonment or discontinuance,
during the 12-month period preceding the month in which notice is given
of the abandonment or discontinuance application.
(m) Subsidy year means any 12-month period for which a subsidy
agreement has been negotiated and is in operation.

Subpart B--System Diagram

Sec. 1152.10 System diagram map.

(a) Each carrier shall prepare a diagram of its rail system on a
map, designating all lines in its system by the categories established
in paragraph (b) of this section. A Class III carrier shall either
prepare the aforementioned map of its rail system or file only a
narrative description of its lines that provides all of the information
required in this subpart.
(b) All lines in each carrier's rail system shall be separated into
the following categories:
(1) All lines or portions of lines which the carrier anticipates
will be the subject of an abandonment or discontinuance application to
be filed within the 3-year period following the date upon which the
diagram or narrative, or any amended diagram or narrative, is filed
with the Board;
(2) All lines or portions of lines which are potentially subject to
abandonment, defined as those which the carrier has under study and
believes may be the subject of a future abandonment application because
of either anticipated operating losses or excessive rehabilitation
costs, as compared to potential revenues;
(3) All lines or portions of lines for which an abandonment or
discontinuance application is pending before the Board on the date upon
which the diagram or narrative, or any amended diagram or narrative, is
filed with the Board;
(4) All lines or portions of lines which are being operated under
the rail service continuation provisions of 49 U.S.C. 10904 (and former
49 U.S.C. 10905) on the date upon which the diagram or narrative, or
any amended diagram or narrative, is filed with the Board; and
(5) All other lines or portions of lines which the carrier owns and
operates, directly or indirectly.
(c) The system diagram map shall be color-coded to show the 5
categories of lines as follows:
(1) Red shall designate those lines described in
Sec. 1152.10(b)(1);
(2) Green shall designate those lines described in
Sec. 1152.10(b)(2);
(3) Yellow shall designate those lines described in
Sec. 1152.10(b)(3);
(4) Brown shall designate those lines described in
Sec. 1152.10(b)(4); and
(5) Black or dark blue shall designate those lines described in
Sec. 1152.10(b)(5).
(d) The system diagram map shall also identify, and shall be drawn
to a scale sufficient to depict clearly, the location of:
(1) All state boundary lines;
(2) Boundaries of every county in which is situated a rail line
owned or operated by the carrier which is listed in categories 1 thru 4
(Sec. 1152.10(b)(1) thru (4));
(3) Every Standard Metropolitan Statistical Area (SMSA) any portion
of which is located within 5 air miles of a rail line owned or operated
by the carrier; and
(4) Every city outside an SMSA which has a population of 5,000 or
more persons (according to the latest published United States census
reports) and which has any portion located within 5 air miles of a rail
line owned or operated by the carrier. A series of interrelated maps
may be used where the system serves a very large or congested area. An
explanation of the interrelationship must be furnished.

Sec. 1152.11 Description of lines to accompany the system diagram map
or information to be contained in the narrative.

Each carrier required to file a system diagram map or narrative
shall list and describe, separately by category and within each
category by state, all lines or portions of lines identified on its
system diagram map or to be included in its narrative as falling within
categories 1 thru 3 (Sec. 1152.10(b)(1) thru (3)) as follows:
(a) Carrier's designation for each line (for example, the
Zanesville Secondary Track);
(b) State or states in which each line is located;
(c) County or counties in which each line is located;
(d) Mileposts delineating each line or portion of line; and
(e) Agency or terminal stations located on each line or portion of
line with milepost designations.

Sec. 1152.12 Filing and publication.

(a) Each carrier required to file a system diagram map or a
narrative shall file with the Board three copies of a complete and up-
dated color-coded system diagram map or narrative (identified by its
``AB number'') and the accompanying line descriptions in conformance
with the filing and publication requirements of this section. If a
revised map or narrative is filed, the line descriptions for the lines
which were revised must be filed.
(b) The color-coded system diagram map or narrative, any
amendments, and accompanying line descriptions shall be served upon the
Governor, the public service commission (or equivalent agency) and the
designated state agency of each state within which the carrier operates
or owns a line of railroad.
(c) The carrier shall: (1) Publish in a newspaper of general
circulation in each county containing category 1 through 3 lines or
lines being revised, a notice containing:
(i) A black-and-white copy of the system diagram map (or a portion
of the map clearly depicting its lines in that county); and
(ii) A description of each line (in the case of Class III carriers
only the line description is required);
(2) Post a copy of the newspaper notice:
(i) In each agency station or terminal on each line in categories 1
through 3 and on each line which has been revised; or
(ii) If there is no agency station on the line, at any station
through which business for the line is received or forwarded;
(3) Furnish, at reasonable cost, upon request of any interested
person, a copy of its system diagram map (either color-coded or black-
and-white) or narrative; and
(4) Notify interested persons of this availability through its
publication in the appropriate county newspaper.
(d) Each carrier required to file a system diagram map or narrative
shall file with the Board an affidavit of service and publication
stating the date each was accomplished. A copy of each newspaper notice
published shall be attached to the affidavit. The effective date of the
filing of the initial system diagram map or narrative and each amended
system diagram map or narrative as required in paragraph (a) of this
section shall be deemed to be the date upon which the Board receives
the affidavit required in this paragraph.
(e) The Board shall require republication of the notice if it is
found to be inadequate.

[[Page 67885]]

Sec. 1152.13 Amendment of the system diagram map or narrative.

(a) Each carrier shall be responsible for maintaining the
continuing accuracy of its system diagram map and the accompanying line
descriptions or narrative. Amendments may be filed at any time and will
be subject to all carrier filing and publication requirements of
Sec. 1152.12.
(b) By March 24, 1997, each carrier shall file with the Board a
revised and updated color-coded system diagram map and line
descriptions or narrative which shall be subject to the filing and
publication requirements of Sec. 1152.12. Thereafter, each carrier
shall file amendments as line designations change and update its map or
narrative, as appropriate. Also, each carrier shall file an updated or
amended map or narrative upon order of the Board. Each new rail carrier
shall comply with the requirements of this subsection within 60 days
after it becomes a carrier.
(c) The Board will reject an abandonment or discontinuance
application filed by a rail carrier if any part of the application
includes a line that has not been identified and described, by
amendment or otherwise, on the carrier's system diagram map or
narrative, as appropriate, as a line in category 1 (Sec. 1152.10(b)(1))
for at least 60 days.

Sec. 1152.14 Availability of data.

Each carrier shall provide to the designated state agency, upon
request, information concerning the net liquidation value (as defined
in Sec. 1152.34(c)) of any line placed in category 1
(Sec. 1152.10(b)(1)) on its system diagram map or narrative together
with a description of such a line and any appurtenant facilities and of
their condition.

Sec. 1152.15 Reservation of jurisdiction.

49 U.S.C. 10903(c)(1) authorizes the Board, at its discretion, to
provide for designation of lines as ``potentially subject to
abandonment'' under standards which vary by region of the United
States, by railroad, or by group of railroads. The Board expressly
reserves the right to adopt such varying standards in the future.

Subpart C--Procedures Governing Notice, Applications, Financial
Assistance, Acquisition for Public Use, and Trail Use

Sec. 1152.20 Notice of intent to abandon or discontinue service.

(a) Filing and publication requirements. An applicant shall give
Notice of Intent to file an abandonment or discontinuance application
by complying with the following procedures:
(1) Filing. Applicant must serve its Notice of Intent on the Board,
by certified letter, in the format prescribed in Sec. 1152.21. The
Notice shall be filed in accordance with the time requirements of
paragraph (b) of this section.
(2) Service. Applicant must serve, by first-class mail (unless
otherwise specified), its Notice of Intent upon:
(i) Significant users of the line;
(ii) The Governor (by certified mail) of each state directly
affected by the abandonment or discontinuance;
(iii) The Public Service Commission (or equivalent agency) in these
states;
(iv) The designated state agency in these states;
(v) The State Cooperative Extension Service in these states;
(vi) The U.S. Department of Transportation (Federal Railroad
Administration);
(vii) Department of Defense (Military Traffic Management Command,
Transportation Engineering Agency, Railroads for National Defense
Program);
(viii) The U.S. Department of Interior (Recreation Resources
Assistance Division, National Park Service);
(ix) The U.S. Railroad Retirement Board;
(x) The National Railroad Passenger Corporation (``Amtrak'') (if
Amtrak operates over the involved line);
(xi) The headquarters of the Railroad Labor Executives'
Association;
(xii) The U.S. Department of Agriculture, Chief of the Forest
Service; and
(xiii) The headquarters of all duly certified labor organizations
that represent employees on the affected rail line. For purposes of
this subsection ``directly affected states'' are those in which any
part of a line sought to be abandoned is located.
(3) Posting. Applicant must post a copy of its Notice of Intent at
each agency station and terminal on the line to be abandoned. (If there
are no agency stations on the line, the Notice of Intent should be
posted at any agency station through which business for the involved
line is received or forwarded.)
(4) Newspaper publication. Applicant must publish its Notice of
Intent at least once during each of 3 consecutive weeks in a newspaper
of general circulation in each county in which any part of the involved
line is located.
(b) Time limits. (1) The Notice of Intent must be served at least
15 days, but not more than 30 days, prior to the filing of the
abandonment application;
(2) The Notice must be posted and fully published within the 30-day
period prior to the filing of the application; and
(3) The Notice must be filed with the Board either concurrently
with service or when the Notice is first published (whichever occurs
first).
(c) Environmental and Historic Reports. Applicant must also submit
the Environmental and Historic Reports described at Secs. 1105.7 and
1105.8 at least 20 days prior to filing an application.

Sec. 1152.21 Form of notice.

The Notice of Intent to abandon or to discontinue service shall be
in the following form:

STB No. AB ________(Sub-No. ________)
Notice of Intent to Abandon or to Discontinue Service

(Name of Applicant) gives notice that on or about (insert date
application will be filed with the Board) it intends to file with
the Surface Transportation Board, Washington, D.C. 20423, an
application for permission for the abandonment of (the
discontinuance of service on), a line of railroad known as
____________ extending from railroad milepost near (station name) to
(the end of line or rail milepost) near (station name), which
traverses through United States Postal Service ZIP Codes (ZIP
Codes), a distance of ____________ miles, in [County(ies),
State(s)]. The line includes the stations of (list all stations on
the line in order of milepost number, indicating milepost location).
The reason(s) for the proposed abandonment (or discontinuance)
is (are) ____________ (explain briefly and clearly why the proposed
action is being undertaken by the applicant). Based on information
in our possession, the line (does) (does not) contain federally
granted rights-of-way. Any documentation in the railroad's
possession will be made available promptly to those requesting it.
This line of railroad has appeared on the system diagram map or
included in the narrative in category 1 since (insert date).
The interest of railroad employees will be protected by (specify
the appropriate conditions).
The application will include the applicant's entire case for
abandonment (or discontinuance) (case in chief). Any interested
person, after the application is filed on (insert date), may file
with the Surface Transportation Board written comments concerning
the proposed abandonment (or discontinuance) or protests to it.
These filings are due 45 days from the date of filing of the
application. All interested persons should be aware that following
any abandonment of rail service and salvage of the line, the line
may be suitable for other public use, including interim trail use.
Any request for a public use condition under 49 U.S.C. 10905
(Sec. 1152.28 of the Board's rules) and any request for a trail use
condition under 16 U.S.C. 1247(d) (Sec. 1152.29 of the Board's
rules) must also be filed within 45 days from the date of filing of
the application. Persons who may oppose the abandonment or
discontinuance but who

[[Page 67886]]

do not wish to participate fully in the process by appearing at any
oral hearings or by submitting verified statements of witnesses,
containing detailed evidence, should file comments. Persons
interested only in seeking public use or trail use conditions should
also file comments. Persons opposing the proposed abandonment or
discontinuance that do wish to participate actively and fully in the
process should file a protest.
Protests must contain that party's entire case in opposition
(case in chief) including the following:
(1) Protestant's name, address and business.
(2) A statement describing protestant's interest in the
proceeding including:
(i) A description of protestant's use of the line;
(ii) If protestant does not use the line, information concerning
the group or public interest it represents; and
(iii) If protestant's interest is limited to the retention of
service over a portion of the line, a description of the portion of
the line subject to protestant's interest (with milepost
designations if available) and evidence showing that the applicant
can operate the portion of the line profitably, including an
appropriate return on its investment for those operations.
(3) Specific reasons why protestant opposes the application
including information regarding protestant's reliance on the
involved service [this information must be supported by affidavits
of persons with personal knowledge of the fact(s)].
(4) Any rebuttal of material submitted by applicant.
In addition, a commenting party or protestant may provide a
statement of position and evidence regarding:
(i) Intent to offer financial assistance pursuant to 49 U.S.C.
10904;
(ii) Environmental impact;
(iii) Impact on rural and community development;
(iv) Recommended provisions for protection of the interests of
employees;
(v) Suitability of the properties for other public purposes
pursuant to 49 U.S.C. 10905; and
(vi) Prospective use of the right-of-way for interim trail use
and rail banking under 16 U.S.C. 1247(d) and Sec. 1152.29.

A protest may demonstrate that: (1) the protestant filed a feeder
line application under 49 U.S.C. 10907; (2) the feeder line
application involves any portion of the rail line involved in the
abandonment or discontinuance application; (3) the feeder line
application was filed prior to the date the abandonment or
discontinuance application was filed; and (4) the feeder line
application is pending before the Board.
Written comments and protests will be considered by the Board in
determining what disposition to make of the application. The
commenting party or protestant may participate in the proceeding as
its interests may appear.
If an oral hearing is desired, the requester must make a request
for an oral hearing and provide reasons why an oral hearing is
necessary. Oral hearing requests must be filed with the Board no
later than 10 days after the application is filed.
Those parties filing protests to the proposed abandonment (or
discontinuance) should be prepared to participate actively either in
an oral hearing or through the submission of their entire opposition
case in the form of verified statements and arguments at the time
they file a protest. Parties seeking information concerning the
filing of protests should refer to Sec. 1152.25.
Written comments and protests, including all requests for public
use and trail use conditions, should indicate the proceeding
designation STB No. AB ________ (Sub-No. ________) and must be filed
with the Secretary, Surface Transportation Board, Washington, DC
20423, no later than (insert the date 45 days after the date
applicant intends to file its application). Interested persons may
file a written comment or protest with the Board to become a party
to this abandonment (or discontinuance) proceeding. A copy of each
written comment or protest shall be served upon the representative
of the applicant (insert name, address, and phone number). The
original and 10 copies of all comments or protests shall be filed
with the Board with a certificate of service. Except as otherwise
set forth in part 1152, each document filed with the Board must be
served on all parties to the abandonment proceeding. 49 CFR
1104.12(a).
The line sought to be abandoned (or discontinued) will be
available for subsidy or sale for continued rail use, if the Board
decides to permit the abandonment (or discontinuance), in accordance
with applicable laws and regulations (49 U.S.C. 10904 and 49 CFR
1152.27). No subsidy arrangement approved under 49 U.S.C. 10904
shall remain in effect for more than 1 year unless otherwise
mutually agreed by the parties (49 U.S.C. 10904(f)(4)(B)). Applicant
will promptly provide upon request to each interested party an
estimate of the subsidy and minimum purchase price required to keep
the line in operation. The carrier's representative to whom
inquiries may be made concerning sale or subsidy terms is (insert
name and business address).
Persons seeking further information concerning abandonment
procedures may contact the Surface Transportation Board or refer to
the full abandonment or discontinuance regulations at 49 CFR part
1152. Questions concerning environmental issues may be directed to
the Board's Section of Environmental Analysis.
A copy of the application will be available for public
inspection on or after (insert date abandonment application is to be
filed with Board) at each agency station or terminal on the line
proposed to be abandoned or discontinued [if there is no agency
station on the line, the application shall be deposited at any
agency station through which business for the line is received or
forwarded (insert name, address, location, and business hours)]. The
carrier shall furnish a copy of the application to any interested
person proposing to file a protest or comment, upon request.
An environmental assessment (EA) (or environmental impact
statement (EIS), if necessary) prepared by the Section of
Environmental Analysis will be served upon all parties of record and
upon any agencies or other persons who commented during its
preparation. Any other persons who would like to obtain a copy of
the EA (or EIS) may contact the Section of Environmental Analysis.
EAs in these abandonment proceedings normally will be made available
within 33 days of the filing of the application. The deadline for
submission of comments on the EA will generally be within 30 days of
its service. The comments received will be addressed in the Board's
decision. A supplemental EA or EIS may be issued where appropriate.

Sec. 1152.22 Contents of application.

Applications for the abandonment of railroad lines or the
discontinuance of rail service shall contain the following information,
including workpapers and supporting documents, and each paragraph (a)
through (j) of this section shall be attested to by a person having
personal knowledge of the matters contained therein:
(a) General. (1) Exact name of applicant.
(2) Whether applicant is a common carrier by railroad subject to 49
U.S.C. Subtitle IV, chapter 105.
(3) Relief sought (abandonment of line or discontinuance of
service).
(4) Detailed map of the subject line on a sheet not larger than
8 x 10\1/2\ inches, drawn to scale, and with the scale shown thereon.
The map must show, in clear relief, the exact location of the rail line
to be abandoned or over which service is to be discontinued and its
relation to other rail lines in the area, highways, water routes, and
population centers.
(5) Reference to inclusion of the rail line to be abandoned or over
which service is to be discontinued on the carrier's system diagram map
or narrative, in compliance with Secs. 1152.10 through 1152.13, and the
date upon which such line was first listed on the system diagram map or
included in the narrative in category 1 in accordance with
Sec. 1152.10(b)(1). A copy of the line description which accompanies
the system diagram map shall also be submitted.
(6) Detailed statement of reasons for filing application.
(7) Name, title, and address of representative of applicant to whom
correspondence should be sent.
(8) List of all United States Postal Service ZIP Codes that the
line proposed for abandonment traverses.
(b) Condition of properties. The present physical condition of the
line including any operating restrictions and estimate of deferred
maintenance and rehabilitation costs (e.g., number of ties that need
replacing, miles of rail that need replacing and/or new ballast, bridge
repairs or replacement needed,

[[Page 67887]]

and estimated labor expenses necessary to upgrade the line to minimum
Federal Railroad Administration class 1 safety standards). The bases
for the estimates shall be stated with particularity, and workpapers
shall be filed with the application.
(c) Service provided. Description of the service performed on the
line during the Base Year (as defined by Sec. 1152.2(c)), including the
actual:
(1) Number of trains operated and their frequency.
(2) Miles of track operated (include main line and all railroad-
owned sidings).
(3) Average number of locomotive units operated.
(4) Total tonnage and carloads by each commodity group on the line.
(5) Overhead or bridge traffic by carload commodity group that will
not be retained by the carrier.
(6) Average crew size.
(7) Level of maintenance.
(8) Any important changes in train service undertaken in the 2
calendar years immediately preceding the filing of the application.
(9) Reasons for decline in traffic, if any, in the best judgment of
applicant.
(d) Revenue and cost data. (1) Computation of the revenues
attributable and avoidable costs for the line to be abandoned for the
Base Year (as defined by Sec. 1152.2(c) and to the extent such branch
level data are available), in accordance with the methodology
prescribed in Secs. 1152.31 through 1152.33, as applicable, and
submitted in the form called for in Sec. 1152.36, as Exhibit 1.
(2) The carrier shall compute an estimate of the future revenues
attributable, avoidable costs and reasonable return on the value for
the line to be abandoned, for the Forecast Year (as defined in
Sec. 1152.2(h)) in the form called for in Exhibit 1. The carrier shall
fully support and document all dollar amounts shown in the Forecast
Year column including an explanation of the rationale and key
assumptions used to determine the Forecast Year amounts.
(3) The carrier shall also compute an ``Estimated Subsidy Payment''
for the Base Year in the form called for in Exhibit 1 and an alternate
payment to reflect:
(i) Increases or decreases in attributable revenues and avoidable
costs projected for the subsidy year; and
(ii) An estimate, in reasonable detail, of the cash income tax
reductions, Federal and state, to be realized in the subsidy year. The
bases for the adjustment, e.g., rate increase, changes in traffic
level, necessary maintenance to comply with minimum Federal Railroad
Administration class 1 safety standards, shall be stated with
particularity.
(e) Rural and community impact. (1) The name and population
(identify source and date of figures) of each community in which a
station on the line is located.
(2) Identification of significant users, as defined in
Sec. 1152.2(l), by name, address, principal commodity, and by tonnage
and carloads for each of the 2 calendar years immediately preceding the
filing of the abandonment or discontinuance application, for that part
of the current year for which information is available, and for the
Base Year. In addition, the total tonnage and carloads for each
commodity group originating and/or terminating on the line segment
shall also be shown for the same time periods as those of the
significant users.
(3) General description of the alternate sources of transportation
service (rail, motor, water, air) available, and the highway network in
the proximate area.
(4) Statement of whether the properties proposed to be abandoned
are appropriate for use for other public purposes, including roads or
highways, other forms of mass transportation, conservation, energy
production or transmission, or recreation. If the applicant is aware of
any restriction on the title to the property, including any
reversionary interest, which would affect the transfer of title or the
use of property for other than rail purposes, this shall be disclosed.
(f) Environmental impact. The applicant shall submit information
regarding the environmental impact of the proposed abandonment or
discontinuance in compliance with Secs. 1105.7 and 1105.8. If certain
information required by the environmental regulations duplicates
information required elsewhere in the application, the environmental
information requirements may be met by a specific reference to the
location of the information elsewhere in the application.
(g) Passenger service. If passenger service is provided on the
line, the applicant shall state whether appropriate steps have been
taken for discontinuance pursuant to the Rail Passenger Service Act.
(45 U.S.C. 501 et seq.)
(h) Additional information. The applicant shall submit such
additional information to support its application as the Board may
require.
(i) Draft Federal Register Notice. The applicant shall submit a
draft notice of its application to be published by the Board. In
addition to the regular number of copies that must be filed with the
Board, the applicant must submit a copy of the draft notice as data
contained on a computer diskette compatible with the Board's current
word processing capabilities. The Board will publish the notice in the
Federal Register within 20 days of the application's filing with the
Board. The draft notice shall be in the form set forth below:

STB No. AB-________ (Sub-No. ________)
Notice of Application to Abandon or to Discontinue Service

On (insert date application was filed with the Board) (name of
applicant) filed with the Surface Transportation Board, Washington,
D.C. 20423, an application for permission for the abandonment of
(the discontinuance of service on) a line of railroad known as
____________ extending from railroad milepost near (station name) to
(the end of line or rail milepost) near (station name), a distance
of ____________ miles, in [County(ies), State(s)]. The line includes
the stations of (list all stations on the line in order of milepost
number, indicating milepost location) and traverses through
____________ (ZIP Codes) United States Postal Service ZIP Codes.

The line (does) (does not) contain federally granted rights-of-
way. Any documentation in the railroad's possession will be made
available promptly to those requesting it. The applicant's entire
case for abandonment (or discontinuance) (case in chief) was filed
with the application.
This line of railroad has appeared on the applicant's system
diagram map or has been included in its narrative in category 1
since (insert date).
The interest of railroad employees will be protected by (specify
the appropriate conditions).
Any interested person may file with the Surface Transportation
Board written comments concerning the proposed abandonment (or
discontinuance) or protests (including the protestant's entire
opposition case), within 45 days after the application is filed. All
interested persons should be aware that following any abandonment of
rail service and salvage of the line, the line may be suitable for
other public use, including interim trail use. Any request for a
public use condition under 49 U.S.C. 10905 (Sec. 1152.28 of the
Board's rules) and any request for a trail use condition under 16
U.S.C. 1247(d) (Sec. 1152.29 of the Board's rules) must be filed
within 45 days after the application is filed. Persons who may
oppose the abandonment or discontinuance but who do not wish to
participate fully in the process by appearing at any oral hearings
or by submitting verified statements of witnesses, containing
detailed evidence should file comments. Persons interested only in
seeking public use or trail use conditions should also file
comments. Persons opposing the proposed abandonment or
discontinuance that do wish to participate actively and fully in the
process should file a protest.
In addition, a commenting party or protestant may provide:

[[Page 67888]]

(i) An offer of financial assistance, pursuant to 49 U.S.C.
10904 (due 120 days after the application is filed or 10 days after
the application is granted by the Board, whichever occurs sooner);
(ii) Recommended provisions for protection of the interests of
employees;
(iii) A request for a public use condition under 49 U.S.C.
10905; and
(iv) A statement pertaining to prospective use of the right-of-
way for interim trail use and rail banking under 16 U.S.C. 1247(d)
and Sec. 1152.29.
Parties seeking information concerning the filing of protests
should refer to Sec. 1152.25.
Written comments and protests, including all requests for public
use and trail use conditions, must indicate the proceeding
designation STB No. AB-____ (Sub-No. ____) and should be filed with
the Secretary, Surface Transportation Board (Board), Washington, DC
20423, no later than (insert the date 45 days after the date
applicant intends to file its application). Interested persons may
file a written comment or protest with the Board to become a party
to this abandonment (or discontinuance) proceeding. A copy of each
written comment or protest shall be served upon the representative
of the applicant (insert name, address, and phone number). The
original and 10 copies of all comments or protests shall be filed
with the Board with a certificate of service. Except as otherwise
set forth in part 1152, every document filed with the Board must be
served on all parties to the abandonment proceeding. 49 CFR
1104.12(a).
The line sought to be abandoned (or discontinued) will be
available for subsidy or sale for continued rail use, if the Board
decides to permit the abandonment (or discontinuance), in accordance
with applicable laws and regulations (49 U.S.C. 10904 and 49 CFR
1152.27). No subsidy arrangement approved under 49 U.S.C. 10904
shall remain in effect for more than 1 year unless otherwise
mutually agreed by the parties (49 U.S.C. 10904(f)(4)(B)). Applicant
will promptly provide upon request to each interested party an
estimate of the subsidy and minimum purchase price required to keep
the line in operation. The carrier's representative to whom
inquiries may be made concerning sale or subsidy terms is (insert
name and business address).
Persons seeking further information concerning abandonment
procedures may contact the Surface Transportation Board or refer to
the full abandonment or discontinuance regulations at 49 CFR part
1152. Questions concerning environmental issues may be directed to
the Board's Section of Environmental Analysis.
An environmental assessment (EA) (or environmental impact
statement (EIS), if necessary) prepared by the Section of
Environmental Analysis will be served upon all parties of record and
upon any agencies or other persons who commented during its
preparation. Any other persons who would like to obtain a copy of
the EA (or EIS) may contact the Section of Environmental Analysis.
EAs in these abandonment proceedings normally will be made available
within 33 days of the filing of the application. The deadline for
submission of comments on the EA will generally be within 30 days of
its service. The comments received will be addressed in the Board's
decision. A supplemental EA or EIS may be issued where appropriate.

(j) Verification. The original application shall be executed and
verified in the form set forth below by an officer of the carrier
having knowledge of the facts and matters relied upon.

Verification

State of ____________ ss.
County of ____________
____________ (Name of affiant) makes oath and says that (s)he
is the ____________ (title of affiant) of the ____________ (name of
applicant) applicant herein; that (s)he has been authorized by the
applicant (or as appropriate, a court) to verify and file with the
Surface Transportation Board the foregoing application in STB AB-
____ (Sub-No. ____); that (s)he has carefully examined all of the
statements in the application as well as the exhibits attached
thereto and made a part thereof; that (s)he has knowledge of the
facts and matters relied upon in the application; and that all
representations set forth therein are true and correct to the best
of his(her) knowledge, information, and belief.
(Signature)

Subscribed and sworn to before me ____________ in and for the
State and County above named, this ____ day of ____, 19__.

My commission expires

Sec. 1152.23 [Reserved]

Sec. 1152.24 Filing and service of application.

(a) An original and 10 copies of applications, typewritten or
printed on paper approximately 8\1/2\ inches by 11 inches with 1\1/2\
inch left margin, shall be filed with the Secretary of the Surface
Transportation Board, Washington, DC 20423. The original shall bear the
date and signature and shall be complete in itself; the signature may
be stamped or typed and the notarial seal may be omitted on the copies.
A check or money order payable to the Surface Transportation Board must
also be submitted to cover the applicable filing fee. If the applicant
carrier is in bankruptcy, the application shall also be filed on the
bankruptcy court.
(b) The applicant shall tender with its application an affidavit
attesting to its compliance with the notice requirement of
Sec. 1152.20. The affidavit shall include the dates of service,
posting, and publication of the notice.
(c) When the application is filed with the Board, the applicant
shall serve, by first class mail, a copy on the Governor, the Public
Service Commission (or equivalent agency), and the designated state
agency of each state in which any part of the line of railroad sought
to be abandoned or discontinued is situated. A copy of the application
will be available for public inspection, on or after the date the
abandonment application is filed with the Board, at each agency station
or terminal on the line proposed to be abandoned or discontinued (if
there is no agency station on the line, the application shall be
deposited at any agency station through which business for the line is
received or forwarded). A certificate of service shall be promptly
filed with the Board.
(d) The applicant shall promptly furnish by first class mail a copy
of the application to any interested person proposing to file a written
comment or protest upon request. A certificate of service shall
promptly be filed with the Board.
(e)(1) The Board shall reject any abandonment or discontinuance
application which does not substantially conform to the regulations in
this subpart C regarding notice, form, and content, or which applies to
a line which has not properly been published on the carrier's system
diagram map (or included in a narrative in the case of a Class III
carrier), in conformance with the regulations of subpart B of this
part.
(2) Upon the filing of an abandonment or discontinuance
application, the Board will review the application and determine
whether it conforms with all applicable regulations. If the application
is substantially incomplete or its filing otherwise defective, the
Board shall reject the application for stated reasons by order (which
order will be administratively final) within 20 days from the date of
filing of the application. If the Board does not reject the
application, notice of the filing of the application shall be published
in the Federal Register by the Board within 20 days of the filing of
the application.
(3) If the application is rejected, a revised application may be
submitted, and the Board will determine whether the resubmitted
application conforms with all prescribed regulations. A properly
revised application submitted within 60 days of the order rejecting the
incomplete or improper application need not be subjected to new notice
and publication under Sec. 1152.20, unless the defect causing the
rejection was in the notice and/or publication. A revised application
submitted after such 60-day period must be newly published and noticed.
(4) The resubmission of an abandonment or discontinuance
application shall be considered a de novo filing for the purposes of
computation of the time period for filing an offer of financial
assistance under 49

[[Page 67889]]

U.S.C. 10904, and for other time periods prescribed in the regulations
contained in this part (49 CFR part 1152), provided, that a resubmitted
application is deemed complete and proper.
(5) An applicant may seek waiver of specific regulations listed in
subpart C of this part by filing a petition for waiver with the Board.
A decision by the Director of the Office of Proceedings granting or
denying a waiver petition will be issued within 30 days of the date the
petition is filed. Appeals from the Director's decision will be decided
by the entire Board. If waiver is not obtained prior to the filing of
the application, the application may be subject to rejection under
paragraphs (e) (1) and (2) of this section.
(f) As provided in Sec. 1152.29(e)(2), rail carriers authorized to
abandon a line under 49 U.S.C. 10903 must file with the Board a notice
that abandonment has been consummated.

Sec. 1152.25 Participation in abandonment or discontinuance
proceedings.

(a) Public participation. (1) Protests and comments. Interested
persons may become parties to an abandonment or discontinuance
proceeding by filing written comments or protests with the Board. Any
request for a public use condition under 49 U.S.C. 10905 (Sec. 1152.28
of the Board's rules) and any request for a trail use condition under
16 U.S.C. 1247(d) (Sec. 1152.29 of the Board's rules) must be included
in these filings. Persons who may oppose the abandonment or
discontinuance, but who do not wish to participate fully in the process
by appearing at any oral hearings or by submitting verified statements
of witnesses containing detailed evidence, should file comments.
Persons interested only in seeking public use or trail use conditions
should also file comments. Persons opposing the proposed abandonment or
discontinuance that do wish to participate actively and fully in the
process should file a protest. Protests shall include all evidence and
argument in support of protestant's position (protestant's case in
chief). Protests must contain the following information:
(i) Protestant's name, address and business.
(ii) A statement describing protestant's interest in the proceeding
including:
(A) A description of protestant's use of the line;
(B) If protestant does not use the line, information concerning the
group or public interest it represents; and
(C) If protestant's interest is limited to the retention of service
over a portion of the line, a description of the portion of the line
subject to protestant's interest (with milepost designations if
available) and evidence showing that the applicant can operate the
portion of the line profitably, including an appropriate return on its
investment for those operations.
(iii) Specific reasons why protestant opposes the application
including information regarding protestant's reliance on the involved
service (this information must be supported by affidavits of persons
with personal knowledge of the fact(s)).
(iv) Any rebuttal of material submitted by applicant.
(v) Any request for a public use condition under 49 U.S.C. 10905
(Sec. 1152.28 of the Board's rules) and any request for a trail use
condition under 16 U.S.C. 1247(d) (Sec. 1152.29 of the Board's rules).
(2) Additional information. In addition to the information required
in paragraph (a) (1) of this section, a commenting party or protestant
may provide a statement of position and a summary of evidence
regarding:
(i) Intent to offer financial assistance under 49 U.S.C. 10904;
(ii) Environmental impact;
(iii) Impact on rural and community development;
(iv) Recommended provisions for protection of the interests of
employees;
(v) A request for a public use condition under 49 U.S.C. 10905; and
(vi) Prospective use of the right-of-way for interim trail use and
rail banking under 16 U.S.C. 1247(d) and 49 CFR 1152.29.
(3) Feeder line application for all or part of the line subject to
the abandonment application. In addition to the information required in
paragraphs (a)(1) and (2) of this section, a commenting party or
protestant must provide information that:
(i) The protestant filed a feeder line application under 49 U.S.C.
10907 (or former 49 U.S.C. 10910);
(ii) The feeder line application involves any portion of the rail
line involved in the abandonment or discontinuance application;
(iii) The feeder line application was filed prior to the date the
abandonment or discontinuance application was filed; and
(iv) The feeder line application is pending before the Board.
(b) Employee or employee representative participation. Employees or
their representatives may file protests or comments to an application.
However, because the Board will impose employee protective conditions
under 49 U.S.C. 10903(b)(2) if an application is granted, employees and
their representatives need not file comments or protests seeking this
protection.
(c) Filing and service of written comments, protests, along with
evidence and argument, and replies. (1) Written comments and protests,
as well as public use and trail use requests, shall be filed with the
Board (the Secretary, Surface Transportation Board, Washington, DC
20423) within 45 days of the filing with the Board of an abandonment or
discontinuance application.
(2) An original and 10 copies of each written comment or protest
shall be filed with the Board.
(3) A copy of each written comment or protest shall be served on
applicant or its representative at the time of filing with the Board.
If the applicant carrier is in bankruptcy, each comment or protest
shall also be filed on the Bankruptcy Court. Each filing shall contain
a certificate of service.
(4) Replies or rebuttal to written comments and protests shall be
filed and served by applicants no later than 60 days after the filing
of the application. An original and 10 copies of such replies shall be
filed with the Board.
(d) Time limits. (1) Pleadings, requests or other papers or
documents (including any comments or protests and any appeal from a
Board decision) required or permitted to be filed under this part must
be received for filing at the Board's Offices at Washington, DC within
the time limits, if any, for such filing. The date of receipt at the
Board and not the date of deposit in the mail is determinative,
provided, however, that if such document is mailed by certified,
registered, or express mail, postmarked at least 3 days prior to the
due date, it will be accepted as timely filed.
(2) In computing any time period prescribed or allowed by this
part, the day of the act, event, or default after which the designated
period of time begins to run is not to be included.
(3) Any filing under this part which falls due on a Saturday,
Sunday, or a legal holiday in the District of Columbia, may be filed at
the Board by the end of the next day which is neither a Saturday,
Sunday, nor a holiday, except as indicated in paragraph (d)(4) of this
section. A half holiday shall not be considered as a holiday.
(4) Offers of financial assistance made pursuant to Sec. 1152.27(c)
must be filed on or before their statutory or regulatory due date as
computed in paragraph (d)(2) of this section, regardless of whether
that date is a Saturday, Sunday,

[[Page 67890]]

or a legal holiday in the District of Columbia.
(5) The Board will reject any pleading filed after its due date
unless good cause is shown why the pleading is filed late.
(6) Oral Hearings: (i) If the Board decides to hold an oral
hearing, the oral hearing shall be for the primary purpose of cross
examination of witnesses filing verified statements in the proceeding.
Any direct testimony, other than applicant's rebuttal evidence, shall
be received at the discretion of the hearing officer.
(ii) In addition to that contained in the application, the
submission of written evidence prior to the commencement of the hearing
shall be established by the Board.
(iii) Post hearing legal briefs shall be due 10 days after the
close of the oral hearing, or at an earlier date if established at the
hearing by the hearing officer.
(e) Appellate procedures. (1) Scope of rule. Except as specifically
indicated below, these appellate procedures are to be followed in
abandonment and discontinuance proceedings in lieu of the general
procedures at 49 CFR 1115. Appeals of initial decisions of the Director
of the Office of Proceedings determining:
(i) Whether offers of financial assistance satisfy the standard of
49 U.S.C. 10904(d) for purposes of instituting negotiations or, in
exemption proceedings, for purposes of partial revocation and
instituting negotiations;
(ii) Whether partially to revoke or to reopen abandonment
exemptions authorized, respectively, under 49 U.S.C. 10502 and 49 CFR
part 1152 subpart F for the purpose of imposing public use conditions
under the criteria in 49 CFR 1152.28 and/or conditions limiting salvage
of the rail properties for environmental and historic preservation
purposes; and
(iii) The applicability and administration of the Trails Act [16
U.S.C. 1247(d)] in abandonment proceedings under 49 U.S.C. 10903 (and
abandonment exemption proceedings), issued pursuant to delegations of
authority at 49 CFR 1011.8(c) (4) and (5), will be acted on by the
entire Board as set forth at 49 CFR 1011.2(a)(7). An original and 10
copies of all appeals, and replies to appeals, under this section must
be filed with the Board.
(2) Appeals criteria. Appeals to the Board's decision in
abandonment or discontinuance proceedings will not be entertained.
Those decisions are administratively final upon the date they are
served.
(i) Parties seeking further administrative action may file a
petition to reopen the proceeding under paragraph (e)(4) of this
section. If an abandonment or discontinuance is granted and a party
wishes the Board to have the opportunity to consider a petition to
reopen before the abandonment or discontinuance authorization becomes
effective, it must file its petition within 15 days after the
administratively final decision is served together with a request for a
stay of effectiveness under paragraph (e)(7) of this section. If such a
petition to reopen and stay request is received within that 15-day
period, any replies to the petition to reopen must be filed no later
than 25 days after the date the decision is served, and any reply to
the stay request must reach the Board no later than 5 days after the
stay request is filed.
(ii) The Board will grant a petition to reopen only upon a showing
that the action would be affected materially because of new evidence,
changed circumstances, or material error.
(3) Form. A petition to reopen and any reply shall not exceed 30
pages in length, including the index of subject matter, argument, and
appendices or other attachments.
(4) Petitions to reopen administratively final actions. A person
may file a petition to reopen any administratively final action of the
Board. A petition to reopen shall state in detail the respects in which
the proceeding involves material error, new evidence, or substantially
changed circumstances. An original and 10 copies of such petitions must
be filed with the Board.
(5) Judicial review: (i) Parties may seek judicial review of a
Board action in an abandonment or discontinuance proceeding on the day
the action of the Board becomes final.
(ii) If a petition seeking reopening is filed under this section,
before or after a petition seeking judicial review is filed with the
courts, the Board will act upon the petition after advising the court
of its pendency unless action might interfere with the court's
jurisdiction.
(6) Petitions to vacate. In the event of procedural defects (such
as the loss of a properly filed protest, the failure of the applicant
to afford the public the requisite notice of its proposed abandonment,
etc.), the Board will entertain petitions to vacate the abandonment or
discontinuance authorization. An original and 10 copies of these
petitions to vacate must be filed with the Board.
(7) Petitions to stay. (i) The filing of a petition to reopen shall
not stay the effect of a prior action. An original and 10 copies of any
petitions to stay must be filed with the Board.
(ii) A petition to reopen an administratively final action may be
accompanied by a petition for a stay of the effectiveness of the
abandonment or discontinuance. As provided in paragraph (e)(2) of this
section, a petition to reopen must be accompanied by a stay request if
the party wishes the Board to have the opportunity to consider the
petition to reopen before the abandonment or discontinuance
authorization becomes final.
(iii) A party may petition for a stay of the effectiveness of
abandonment or discontinuance authorization pending a request for
judicial review. The reasons for the desired relief shall be stated in
the petition, and the petition shall be filed not less than 15 days
prior to the effective date of the abandonment authorization. No reply
need be filed. If a party elects to file a reply, the reply must reach
the Board no later than 5 days after the petition is filed.

Sec. 1152.26 Board determination under 49 U.S.C. 10903.

(a) The following schedule shall govern the process for Board
consideration and decisions in abandonment and discontinuance
application proceedings from the time the application is filed until
the time of the Board's decision on the merits:

Day 0--Application filed, including applicant's case in chief.
Day 10--Due date for oral hearing requests.
Day 15--Due date for Board decision on oral hearing requests.
Day 20--Due date for Notice of Application to be published in the
Federal Register.
Day 45--Due date for protests and comments, including opposition case
in chief, and for public use and trail use requests.
Day 60--Due date for applicant's reply to opposition case and for
applicant's response to trail use requests.
Day 110--Due date for service of decision on the merits.
Day 120--Due date for offers of financial assistance, except that if an
application has been granted by decision issued sooner than Day 110,
the offer of financial assistance shall be due 10 days after service of
the decision granting the application.

(b) If an application for abandonment or discontinuance is filed by
a bankrupt railroad, the Board shall base its decision (Report to the
Bankruptcy Court) on the application and any responses to the
application that are filed. In each such instance, the Board shall
establish a reasonable period of

[[Page 67891]]

time for filing responses to the application so that public input can
be included in the Board's decision (Report) and so that the Board will
be able to meet a deadline imposed or requested by the Bankruptcy
Court.

Sec. 1152.27 Financial assistance procedures.

(a) Provision of information. An applicant must provide promptly
upon request to a party considering an offer of financial assistance to
continue existing rail service, and concurrently to the Board, the
following:
(1)(i) In an application or petition for exemption proceeding, an
estimate of the annual subsidy and minimum purchase price required to
keep the line or a portion of the line in operation;
(ii) In a class exemption proceeding, either an estimate of the
annual subsidy or the minimum purchase price, depending upon the type
of financial assistance indicated in the potential offeror's formal
expression of intent submitted under paragraph (c)(2)(i) of this
section;
(2) Its most recent reports on the physical condition of the
involved line; and
(3) Traffic, revenue, and other data necessary to determine the
amount of annual financial assistance that would be required to
continue rail transportation over that part of the railroad line. In an
exemption proceeding, the data to be provided must at a minimum include
the carrier's estimate of the net liquidation value of the line, with
supporting data reflecting available real estate appraisals,
assessments of the quality and quantity of track materials in a line,
and removal cost estimates (including the cost of transporting removed
materials to point of sale or point of storage for relay use), and, if
an offer of subsidy is contemplated, an estimate of the cost of
rehabilitating the line to Federal Railroad Administration class 1
Safety Standards (49 CFR part 213).
(b) Federal Register notice. (1) Abandonment and discontinuance
applications. The Federal Register publication, which gives notice of
the filing of the application 20 days after the application is filed,
will serve as notice to persons intending to offer financial assistance
to assure continued rail service under 49 U.S.C. 10904 and these
regulations as they relate to abandonment and discontinuance
applications. Offers of financial assistance will be due 120 days after
the application is filed or 10 days after a decision granting the
application is served, whichever occurs sooner.
(2) Exemption proceedings. (i) If a petition for individual
exemption from the prior approval requirements of 49 U.S.C. 10903 is
filed with the Board for abandonment or discontinuance of a line of
railroad, the Board will publish notice of the petition in the Federal
Register within 20 days of the filing of the petition. The Federal
Register publication will serve as notice to persons with a potential
interest in providing financial assistance to assure continued rail
service on the line under 49 U.S.C. 10904 and these regulations as they
relate to exempt abandonments and discontinuances. Offers of financial
assistance will be due 120 days after the filing of the petition for
exemption or 10 days after service of a Board decision granting the
exemption, whichever occurs sooner.
(ii) If a notice of exemption is filed under the class exemption,
the Board will publish notice of the exemption in the Federal Register
within 20 days of filing. The Federal Register publication will serve
as notice to persons with a potential interest in providing financial
assistance to assure continued rail service on the line under 49 U.S.C.
10904 and these regulations as they relate to exempt abandonments and
discontinuances. Offers of financial assistance will be due no later
than 30 days after the date of the Federal Register publication giving
notice of the exemption.
(c) Submission of financial assistance offer. (1) Abandonment and
discontinuance applications and petitions for exemption. (i) Service
and filing. An offeror must serve its offer of assistance on the
carrier owning and operating the line and all parties to the
abandonment or discontinuance application or exemption proceeding. The
offer must be filed concurrently with the Secretary, Surface
Transportation Board, Washington, DC 20423.
(A) An offer may be filed and served at any time after the filing
of the abandonment or discontinuance application or petition for
exemption. Once a decision is served granting an application or
petition for exemption, however, the Board must be notified that an
offer has previously been submitted.
(B) An offer, or notification of a previously filed offer, must be
filed and served no later than 10 days after service of the Board
decision granting the application or petition for exemption. This
filing and service is subject to the requirements of 49 CFR 1152.25
(d)(1), (d)(2), and (d)(4).
(C) If, after a bona fide request, applicant or petitioner has
failed to provide a potential offeror promptly with the information
required under paragraph (a) of this section and if that information is
not contained in the application or petition, the Board will entertain
petitions to toll the 10-day period for submitting offers of financial
assistance under paragraph (c)(1) of this section. Petitions must be
filed with the Board within 5 days after service of the decision
granting the application or petition for exemption. Petitions should
include copies of the prior written request for information or an
accurate outline of the specific information that was orally requested.
Replies to these petitions must be filed within 10 days after service
of the decision granting the application or petition for exemption.
These petitions and replies must be filed on or before their actual

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-32229. Public record. Not legal advice.