[Federal Register Volume 75, Number 105 (Wednesday, June 2, 2010)]
[Rules and Regulations]
[Pages 30711-30714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13130]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1002, 1011, 1152, and 1180
[STB Ex Parte No. 685]
Removal of Delegations of Authority to Secretary
AGENCY: Surface Transportation Board, DOT.
ACTION: Correcting amendments.
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SUMMARY: The Surface Transportation Board (Board or STB) published
final rules in this proceeding on October 15, 2009, in the Federal
Register. The rule amended STB regulations by eliminating the Secretary
of the Board and reassigning the delegations of authority from the
Secretary to other Offices of the Board. As published, the final
regulations contained errors where information was inadvertently added,
deleted, or duplicated. This document sets forth corrections to the
final regulations to eliminate confusion in interpretation of the
regulations.
DATES: Effective on June 2, 2010.
FOR FURTHER INFORMATION CONTACT: Cynthia T. Brown at (202) 245-0350.
[Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at 1-800-877-8339.]
SUPPLEMENTARY INFORMATION: The regulations at 49 CFR 1002.1, 1011.7,
1152.21, 1152.27, and 1180.4, include erroneous sections that should be
replaced with the amendments set forth in this document. The Surface
Transportation Board (Board or STB) published final rules in this
proceeding on October 15, 2009, in the Federal Register, at 74 FR
52900.
List of Subjects
49 CFR Part 1002
Administrative practice and procedure, Common carriers, and Freedom
of information.
49 CFR Part 1011
Administrative practice and procedure, Authority delegations
(Government agencies), and Organization and functions (Government
agencies).
49 CFR Part 1152
Administrative practice and procedure, Railroads, Reporting and
recordkeeping requirements, and Uniform system of accounts.
49 CFR Part 1180
Administrative practice and procedure, Railroads, and Reporting and
recordkeeping requirements.
Dated: May 26, 2010.
Andrea Pope-Matheson,
Clearance Clerk.
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Accordingly, 49 CFR parts 1002, 1011, 1152, and 1180 are corrected by
making the following correcting amendments:
PART 1002--FEES
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1. The authority citation for part 1002 continues to read as follows:
Authority: 5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701; and
49 U.S.C. 721. Section 1002.1(g)(11) also issued under 5 U.S.C. 5514
and 31 U.S.C. 3717.
0
2. Revise Sec. 1002.1(f)(1) to read as follows:
Sec. 1002.1 Fees for records search, review, copying, certification,
and related services.
* * * * *
(f) The fee for search and copying services requiring computer
processing are as follows:
(1) A fee of $70.00 per hour for professional staff time will be
charged when it is required to fulfill a request for computer data.
* * * * *
PART 1011--BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY
0
3. The authority citation for part 1011 continues to read as follows:
Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 701, 721,
11123, 11124, 11144, 14122, and 15722.
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4. Revise Sec. 1011.7 to read as follows:
Sec. 1011.7 Delegations of authority by the Board to specific offices
of the Board.
(a) Office of Proceedings. (1) The Director of the Office of
Proceedings is delegated the following authority:
(i) Whether (in consultation with involved Offices) to waive filing
fees set forth at 49 CFR 1002.2(f).
(ii) To issue, on written request, informal opinions and
interpretations (exclusive of informal opinions and interpretations on
carrier tariff provisions), which are not binding on the Board. In
issuing informal opinions or interpretations, the Director of the
Office of Proceedings shall consult with the Directors of the
appropriate Board offices. Such requests must be directed to the
Director of the Office of Proceedings, Surface Transportation Board,
Washington, DC 20423-0001. Authority to issue informal opinions and
interpretations on carrier tariff provisions is delegated at paragraph
(b)(2) of this section to the Office of Public Assistance, Governmental
Affairs, and Compliance.
(2) In addition to the authority delegated at 49 CFR 1011.6(c)(3),
(d), (g), and (h), the Director of the Office of Proceedings shall have
authority initially to determine the following:
(i) Whether to designate abandonment proceedings for oral hearings
on request.
(ii) Whether offers of financial assistance satisfy the statutory
standards of 49 U.S.C. 10904(d) for purposes of negotiations or, in
exemption proceedings, for purposes of partial revocation and
negotiations.
(iii) Whether:
(A) To impose, modify, or remove environmental or historic
preservation conditions; and
(B) In abandonment proceedings, to impose public use conditions
under 49 U.S.C. 10905 and the implementing regulations at 49 CFR
1152.28.
(iv) In abandonment proceedings, when a request for interim trail
use/rail banking is filed under 49 CFR 1152.29, to determine whether
the National Trails System Act, 16 U.S.C. 1247(d), is applicable and,
where appropriate, to issue Certificates of Interim Trail Use or
Abandonment (in application proceedings) or Notices of Interim Trail
Use or Abandonment (in exemption proceedings).
(v) In any abandonment proceeding where interim trail use/rail
banking is an issue, to make such findings and issue decisions as may
be necessary for the orderly administration of the National Trails
System Act, 16 U.S.C. 1247(d).
(vi) Whether to institute requested declaratory order proceedings
under 5 U.S.C. 554(e).
[[Page 30712]]
(vii) To issue decisions, after 60 days' notice by any person
discontinuing a subsidy established under 49 U.S.C. 10904 and at the
railroad's request:
(A) In application proceedings, immediately issuing decisions
authorizing abandonment or discontinuance; and
(B) In exemption proceedings, immediately vacating the decision
that postponed the effective date of the exemption.
(viii) In proceedings under the Feeder Railroad Development Program
under 49 U.S.C. 10907 and the implementing regulations at 49 CFR part
1151:
(A) Whether to accept or reject primary applications under 49 CFR
1151.2(b); competing applications under section 1151.2(c); and
incomplete applications under 49 CFR 1151.2(d).
(B) Whether to grant waivers from specific provisions of 49 CFR
part 1151.
(ix) In exemption proceedings subject to environmental or historic
preservation reporting requirements, to issue a decision, under 49 CFR
1105.10(g), making a finding of no significant impact where no
environmental or historic preservation issues have been raised by any
party or identified by the Board's Section of Environmental Analysis.
(x) Whether to issue notices of exemption under 49 U.S.C. 10502:
(A) For acquisition, lease, and operation transactions under 49
U.S.C. 10901 and 10902 and the implementing regulations at 49 CFR part
1150, subparts D and E;
(B) For connecting track constructions under 49 U.S.C. 10901 and
the implementing regulations at 49 CFR 1150.36;
(C) For rail transactions under 49 U.S.C. 11323 and the
implementing regulations at 49 CFR 1180.2(d); and
(D) For abandonments and discontinuances under 49 U.S.C. 10903 and
the implementing regulations at 49 CFR 1152.50.
(xi) When an application or a petition for exemption for
abandonment is filed, the Director will issue a notice of that filing
pursuant to 49 CFR 1152.24(e)(2) and 49 CFR 1152.60, respectively.
(xii) Whether to issue a notice of exemption under 49 U.S.C. 13541
for a transaction under 49 U.S.C. 14303 within a motor passenger
carrier corporate family that does not result in adverse changes in
service levels, significant operational changes, or a change in the
competitive balance with motor passenger carriers outside the corporate
family.
(xiii) Whether to issue rail modified certificates of public
convenience and necessity under 49 CFR part 1150, subpart C.
(xiv) Whether to waive the regulations at 49 CFR part 1152, subpart
C, on appropriate petition.
(xv) To reject applications, petitions for exemption, and verified
notices (filed in class exemption proceedings) for noncompliance with
the environmental rules at 49 CFR part 1105.
(xvi) To reject applications by BNSF Railway Company to abandon
rail lines in North Dakota exceeding the 350-mile cap of section 402 of
Public Law 97-102, 95 Stat. 1465 (1981), as amended by The Department
of Transportation and Related Agencies Appropriations Act, 1992, Public
Law 102-143, section 343 (Oct. 28, 1991).
(b) Office of Public Assistance, Governmental Affairs, and
Compliance. The Office of Public Assistance, Governmental Affairs, and
Compliance is delegated the authority to:
(1) Reject tariffs and railroad transportation contract summaries
filed with the Board that violate applicable statutes, rules, or
regulations. Any rejection of a tariff or contract summary may be by
letter signed by or for the Director, Office of Public Assistance,
Governmental Affairs, and Compliance.
(2) Issue, on written request, informal opinions and
interpretations on carrier tariff provisions, which are not binding on
the Board.
(3) Grant or withhold special tariff authority granting relief from
the provisions of 49 CFR part 1312. Any grant or withholding of such
relief may be by letter signed by or for the Director, Office of Public
Assistance, Governmental Affairs, and Compliance.
(4) Resolve any disputes that may arise concerning the
applicability of motor common carrier rates under 49 U.S.C.
13710(a)(2).
(5) Issue orders by the Director in an emergency under 49 U.S.C.
11123 and 11124 if no Board Member is reasonably available.
PART 1152--ABANDONMENT AND DISCONTINUANCE OF RAIL LINES AND RAIL
TRANSPORTATION UNDER 49 U.S.C. 10903
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5. The authority citation for part 1152 continues to read as follows:
Authority: 11 U.S.C. 1170; 16 U.S.C. 1247(d) and 1248; 45
U.S.C. 744; and 49 U.S.C. 701 note (1995) (section 204 of the ICC
Termination Act of 1995), 721(a), 10502, 10903-10905, and 11161.
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6. Revise Sec. 1152.21 to read as follows:
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, DC 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 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.
[[Page 30713]]
(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 Chief, Section of Administration, Office of Proceedings,
Surface Transportation Board, Washington, DC 20423-0001, 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.
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7. Amend Sec. 1152.27 by adding paragraphs (c)(2)(ii)(A), (B), (C),
and (D) to read as follows:
Sec. 1152.27 Financial assistance procedures.
* * * * *
(c) * * *
(2) * * *
(ii) * * *
(A) An offer may be filed and served at any time after the filing
of the notice of exemption. Once a notice of exemption is published in
the Federal Register, 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 30 days after the Federal Register
publication described in paragraph (b)(2)(ii) of this section. 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 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 notice of exemption, the Board will entertain petitions to toll
the 30-day period for submitting offers of financial assistance under
paragraph (c)(2) of this section. Petitions must be filed with the
Board within 25 days after publication in the Federal Register (as
described in paragraph (b)(2)(ii) of this section). 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 30 days after
publication. These petitions and replies must be filed on or before
their actual due date under 49 CFR 1152.25(d)(4). The Board will issue
a decision on petitions to toll the offer period within 35 days after
publication.
(D) Upon receipt of a formal expression of intent to file an offer
under paragraph (c)(2)(i) of this section, the rail carrier applicant
may advise the Board and the potential offeror that additional time is
needed to develop the information required under paragraph (a) of this
section. Applicant shall expressly indicate the amount of time it
considers necessary (not to exceed 60 days) to develop and submit the
required information to the potential offeror. For the duration of the
time period so indicated by the applicant, the 30-day period for
submitting offers of financial assistance under paragraph (c)(2) of
this section shall be tolled without formal Board action.
* * * * *
[[Page 30714]]
PART 1180-RAILROAD ACQUISITION, CONTROL, MERGER, CONSOLIDATION
PROJECT, TRACKAGE RIGHTS, AND LEASE PROCEDURES
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8. The authority citation for part 1180 continues to read as follows:
Authority: 5 U.S.C. 553 and 559; 11 U.S.C. 1172; 49 U.S.C. 721,
10502, 11323-11325.
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9. Revise Sec. 1180.4(g)(2)(i) and (g)(2)(ii) to read as follows:
Sec. 1180.4 Procedures.
* * * * *
(g) * * *
* * * * *
(2)(i) To qualify for an exemption under Sec. 1180.2(d)(7)
(acquisition or renewal of trackage rights agreements), in addition to
the notice, the railroad must file a caption summary suitable for
publication in the Federal Register. The caption summary must be in the
following form:
Surface Transportation Board
Notice of Exemption
Finance Docket No.
(1)--Trackage Rights--(2)
(2) (3) to grant (4) trackage rights to (1) between (5). The
trackage rights will be effective on (6).
This notice is filed under Sec. 1180.2(d)(7). Petitions to
revoke the exemption under 49 U.S.C. 10502(d) may be filed at any
time. The filing of a petition to revoke will not stay the
transaction.
Dated:
By the Board.
[Insert name],
Director, Office of Proceedings.
The following key identifies the information symbolized in the
summary.
(1) Name of the tenant railroad.
(2) Name of the landlord railroad.
(3) If an agreement has been entered use ``has agreed'', but if
an agreement has been reached but not entered use ``will agree.''
(4) Indicate whether ``overhead'' or ``local'' trackage rights
are involved.
(5) Describe the trackage rights.
(6) State the date the trackage rights agreement is proposed to
be consummated.
(ii) To qualify for an exemption under Sec. 1180.2(d)(8)
(acquisition of temporary trackage rights), in addition to the notice,
the railroad must file a caption summary suitable for publication in
the Federal Register. The caption summary must be in the following
form:
Surface Transportation Board
Notice of Exemption
STB Finance Docket No.
(1)--Temporary Trackage Rights--(2)
(2) (3) to grant overhead temporary trackage rights to (1)
between (4). The temporary trackage rights will be effective on (5).
The authorization will expire on (6).
This notice is filed under Sec. 1180.2(d)(8). Petitions to
revoke the exemption under 49 U.S.C. 10502(d) may be filed at any
time. The filing of a petition to revoke will not stay the
transaction.
Dated:
By the Board.
[Insert name]
Director, Office of Proceedings.
The following key identifies the information symbolized in the
summary.
(1) Name of the tenant railroad.
(2) Name of the landlord railroad.
(3) If an agreement has been entered use ``has agreed,'' but if
an agreement has been reached but not entered use ``will agree.''
(4) Describe the temporary trackage rights.
(5) State the date the temporary trackage rights agreement is
proposed to be consummated.
(6) State the date the authorization will expire (not to exceed
1 year from the date the trackage rights will become effective).
[FR Doc. 2010-13130 Filed 6-1-10; 8:45 am]
BILLING CODE 4915-01-P