[Federal Register Volume 61, Number 115 (Thursday, June 13, 1996)]
[Rules and Regulations]
[Pages 29973-29975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14902]



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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1150

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


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

AGENCY: Surface Transportation Board.

ACTION: Final rule.

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SUMMARY: The Surface Transportation Board (the Board) grants final 
approval to a class exemption for the construction and operation of 
connecting railroad track in Ex Parte No. 392 (Sub-No. 2) and 
terminates the Ex Parte No. 392 (Sub-No. 3) proceeding that proposed to 
adopt a different class exemption for all rail construction projects 
not covered by the connecting track exemption. Final regulations 
establishing the exemption for connecting track are set forth below.

EFFECTIVE DATE: July 13, 1996.

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

SUPPLEMENTARY INFORMATION: The exemption for the construction of 
connecting track was initially proposed in Ex Parte No. 392 (Sub-No. 
2). By decision served on September 15, 1992, and notice of proposed 
rulemaking published in the Federal Register on September 16, 1992 (57 
FR 42733), our predecessor agency, the Interstate Commerce Commission 
(ICC), sought public comments on proposed changes to 49 CFR Part 1150 
that would establish a class exemption for all rail construction, or, 
alternatively, for construction of connecting railroad tracks. The 
Board is adopting (with minor changes) the proposed class exemption for 
the construction and operation of connecting tracks. We believe the 
changes will facilitate expanded rail service and reduce regulatory 
delay and also satisfy the requirements of the environmental laws, 
because the exemption has been structured so as to assure that there 
will be a full and timely environmental review in each case. We do not 
believe a class exemption for other rail constructions is warranted. 
Therefore, we will terminate the Ex Parte No. 392 (Sub-No. 3) 
proceeding and simply continue our practice of expeditiously handling 
individual construction exemption requests as an alternative to the 
class exemption the ICC had proposed. Additional information is 
contained in the Board's decision served on June 13, 1996. To purchase 
a copy of the decision, write to, call, or pick up in person from: DC 
News & Data, Inc., 1201 Constitution Avenue, N.W., Room 2229, 
Washington, D.C. 20423. (Assistance for the hearing impaired is 
available through TDD service (202) 927-5721.)

List of Subjects in 49 CFR Part 1150

    Administrative practice and procedure, Railroads.

    Decided: May 29, 1996.

    By the Board, Chairman Morgan, Vice Chairman Simmons, and 
Commissioner Owen.
Vernon A. Williams,
Secretary.
    For the reasons set forth in the preamble, Title 49, Chapter X, 
part 1150 is amended as set forth below:

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

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

    Authority: 5 U.S.C. 553 and 559; 49 U.S.C. 701 note (sec. 204 of 
the ICC Termination Act of 1995), 721(a), 10502, and 10901.

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

[[Page 29974]]

Sec. 1150.36   Exempt construction of connecting track.

    (a) Scope. This class exemption applies to proceedings involving 
the construction and operation of connecting lines of railroad within 
existing rail rights-of-way, or on land owned by connecting railroads, 
under 49 U.S.C. 10901 (a), (b), and (c). (See the reference to 
connecting track in 49 CFR 1105.6(b)(1).) This class exemption is 
designed to expedite and facilitate connecting track construction while 
ensuring full and timely environmental review. The Surface 
Transportation Board (Board) has found that its prior review of 
connecting track construction and operation is not necessary to carry 
out the rail transportation policy of 49 U.S.C. 10101; that continued 
regulation is not necessary to protect shippers from abuse of market 
power; and that the construction of connecting track would be of 
limited scope. See 49 U.S.C. 10502. To use this class exemption, a pre-
filing notice, environmental report, historic report, and notice of 
exemption must be filed that complies with the procedures in 
Sec. 1150.36 (b) and (c), and the Board's environmental rules, codified 
at 49 CFR part 1105.
    (b) Environmental requirements. The environmental regulations at 49 
CFR part 1105 must be complied with fully. An environmental report 
containing the information specified at 49 CFR 1105.7(e), as well as an 
historic report containing the information specified at 49 CFR 
1105.8(d), must be filed either before or at the same time as the 
notice of exemption is filed. See 49 CFR 1105.7(a). The entity seeking 
the exemption authority must also serve copies of the environmental 
report on the agencies listed at 49 CFR 1105.7(b). Because the 
environmental report must include a certification that appropriate 
agencies have been consulted in its preparation (see 49 CFR 1105.7(c)), 
parties should begin environmental and historic consultations well 
before the notice of exemption is filed. Environmental requirements may 
be waived or modified where a petitioner demonstrates in writing that 
such action is appropriate. See 49 CFR 1105.10(c). It is to the 
advantage of parties to consult with the Board's Section of 
Environmental Analysis (SEA) at the earliest possible date to begin 
environmental review.
    (c) Procedures and dates. (1) At least 20 days prior to the filing 
of a notice of exemption with the Board, the party seeking the 
exemption authority must notify in writing: the State Public Service 
Commission, the State Department of Transportation (or equivalent 
agency), and the State Clearinghouse (if there is no clearinghouse, the 
State Environmental Protection Agency), of each State involved. The 
pre-filing notice shall include: the name and address of the railroad 
(or other entity proposing to construct the line) and the proposed 
operator; a complete description of the proposed construction and 
operation, including a map; an indication that the class exemption 
procedure is being used; and the approximate date that construction is 
proposed to begin. This pre-filing notice shall include a certification 
that the petitioner will comply with the Board's environmental 
regulations, codified at 49 CFR part 1105, and a statement that those 
regulations generally require the Board to:
    (i) Prepare an environmental assessment (EA) (or environmental 
impact statement (EIS) if necessary),
    (ii) Make the document (EA or EIS, as appropriate) available to the 
parties (and to the public, upon request to SEA); and
    (iii) Accept for filing and consideration comments on the 
environmental document as well as petitions for stay and 
reconsideration.
    (2) Petitioner must file a verified notice of exemption with the 
Board at least 90 days before the construction is proposed to begin. In 
addition to the information contained in Sec. 1150.36(c)(1), the notice 
shall include a statement certifying compliance with the environmental 
rules at 49 CFR part 1105 and the pre-filing notice requirements of 49 
CFR 1150.36(c)(1).
    (3) The Board, through the Director of the Office of Proceedings, 
shall publish a notice in the Federal Register within 20 days after the 
notice of exemption is received that describes the construction project 
and invites comments. SEA will then prepare an EA (or, if necessary, an 
EIS). The EA generally will be made available 15 days after the Federal 
Register notice. It will be served on all parties and appropriate 
agencies. Others may request a copy from SEA. The deadline for 
submission of comments on the EA will generally be within 30 days of 
its availability (see 49 CFR 1105.10(b)). If an EIS is prepared, the 
time frames and procedures set forth in 49 CFR 1105.10(a) generally 
will apply.
    (4) The Board's environmental document (together with any comments 
and SEA's recommendations) shall be used in deciding whether to allow 
the particular construction project to proceed under the class 
exemption and whether to impose appropriate mitigating conditions upon 
its use (including use of an environmentally preferable route). If the 
Board concludes that a particular project will result in serious 
adverse environmental consequences that cannot be adequately mitigated, 
it may deny authority to proceed with the construction under the class 
exemption (the ``no-build'' alternative). Persons believing that they 
can show that the need for a particular line outweighs the adverse 
environmental consequences can file an application for approval of the 
proposed construction under 49 U.S.C. 10901.
    (5) No construction may begin until the Board has completed its 
environmental review and issued a final decision.
    (6) Petitions to stay the effective date of the notice of exemption 
on other than environmental and/or historic preservation grounds must 
be filed within 10 days of the Federal Register publication. Petitions 
to stay the effective date of the notice on environmental and/or 
historic preservation grounds may be filed at any time but must be 
filed sufficiently in advance of the effective date to allow the Board 
to consider and act on the petition before the notice becomes 
effective. Petitions for reconsideration must be filed within 20 days 
of the Federal Register publication.
    (7) The exemption generally will be effective 70 days after 
publication in the Federal Register, unless stayed. If the notice of 
exemption contains false or misleading information, the exemption is 
void ab initio and the Board shall summarily reject the exemption 
notice.
    (8) Where significant environmental issues have been raised or 
discovered during the environmental review process, the Board shall 
issue, on or before the effective date of the exemption, a final 
decision allowing the exemption to become effective and imposing 
appropriate mitigating conditions or taking other appropriate action 
such as selecting the ``no build'' alternative.
    (9) Where there has been full environmental review and no 
significant environmental issues have been raised or discovered, the 
Board, through the Director of the Office of Proceedings, shall issue, 
on or before the effective date of the exemption, a final decision 
consisting of a Finding of No Significant Impact (FONSI) to show that 
the environmental record has been considered (see 49 CFR 1105.10(g)).
    (10) The Board, on its own motion or at the request of a party to 
the case, will stay the effective date of individual notices of 
exemption when an informed decision on environmental issues cannot be 
made prior to the date that the exemption authority would otherwise 
become effective. Stays will be granted initially for a period of 60 
days to

[[Page 29975]]

permit resolution of environmental issues and issuance of a final 
decision. The Board expects that this 60-day period will usually be 
sufficient for these purposes unless preparation of an EIS is required. 
If, however, environmental issues remain unresolved upon expiration of 
this 60-day period, the Board, upon its own motion, or at the request 
of a party to the case, will extend the stay, as necessary to permit 
completion of environmental review and issuance of a final decision. 
The Board's order will specify the duration of each extension of the 
initial stay period. In cases requiring the preparation of an EIS, the 
Board will extend the stay for a period sufficient to permit compliance 
with the procedural guidelines established by the Board's environmental 
regulations.
    (d) Third-Party Consultants. An environmental and historic report 
required under 49 CFR 1105.7 and 1105.8 will not be required where a 
petitioner engages a third-party consultant who is approved by SEA and 
acts under SEA's direction and supervision in preparing the EA or EIS. 
In such a case, the third-party consultant must act on behalf of the 
Board, working under SEA's direction to collect the environmental 
information that is needed and to compile it into a draft EA or EIS, 
which is prepared under SEA's direction and then submitted to SEA for 
its final review and approval. See 49 CFR 1105.10(d).

[FR Doc. 96-14902 Filed 6-12-96; 8:45 am]
BILLING CODE 4915-00-P