P-FMSIG :: 49CFR1152: Abandonment And Discontinuance Of Rail Lines And Rail Transportation

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[Code of Federal Regulations] [Title 49, Volume 7] [Revised as of October 1, 2003] [CITE: 49CFR1152] [Page 196-249] TITLE 49--TRANSPORTATION CHAPTER X--SURFACE TRANSPORTATION BOARD, DEPARTMENT OF TRANSPORTATION 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: 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 [[Page 197]] Act of 1995), 721(a), 10502, 10903-10905, and 11161. Source: 61 FR 67883, Dec. 24, 1996, unless otherwise noted. 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 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: [[Page 198]] (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 [[Page 199]] 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. [61 FR 67883, Dec. 24, 1996 as amended at 64 FR 53268, Oct. 1, 1999] 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. [[Page 200]] 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 Sec.Sec.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 [[Page 201]] 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. (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 [[Page 202]] 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 8x10\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 Sec.Sec.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, and estimated labor expenses necessary to upgrade the line to minimum Federal Railroad Administration class 1 [[Page 203]] 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 Sec.Sec.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 Sec.Sec.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 [[Page 204]] 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: (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 [[Page 205]] 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, money order or payment by credit card 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 [[Page 206]] 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, through the Director of the Office of Proceedings, 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 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. [61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34669, June 27, 1997; 64 FR 53268, Oct. 1, 1999] 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. [[Page 207]] (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 [[Page 208]] 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, 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) Any oral hearing request is due 10 days after the filing of the application. The Board, through the Director of the Office of Proceedings, will issue a decision on any oral hearing request within 15 days after the filing of the application. 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 [[Page 209]] 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. [61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34669, June 27, 1997] 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 210]] 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. Because Board action on abandonment applications by bankrupt railroads is advisory only, no environmental filings or analysis is necessary. See 49 CFR 1105.5(c). [61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34670, June 27, 1997] 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 f 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 [[Page 211]] 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 due date under 49 CFR 1152.25(d)(4). The Board will issue a decision on petitions within 15 days after service of the decision granting the application or petition for exemption. (ii) Contents of offer. The offeror shall set forth its offer in detail. The offer must: (A) Identify the line, or the portion of the line, in question; (B) Demonstrate that the offeror is financially responsible; that is, that it has or within a reasonable time will have the financial resources to fulfill proposed contractual obligations; governmental entities will be presumed to be financially responsible; and (C) Explain the disparity between the offeror's purchase price or subsidy if it is less than the carrier's estimate under paragraph (a)(1) of this section, and explain how the offer of subsidy or purchase is calculated. (2) Class exemption proceedings--(i) Expression of intent to file offer. Persons with a potential interest in providing financial assistance must, no later than 10 days after the Federal Register publication described in paragraph (b)(2)(ii) of this section, submit to the carrier and the Board a formal expression of their intent to file an offer of financial assistance, indicating the type of financial assistance they wish to provide (i.e., subsidy or purchase). Such submissions are subject to the filing requirements of Sec.1152.25(d)(1) through (d)(3). Submission of a formal expression of intent under this subsection will automatically stay the effective date of the notice of exemption under the class exemption for 40 days (normally, this will be 10 days beyond the date stated in the Federal Register publication). (ii) Service and filing. An offeror must serve its offer of assistance on the carrier that instituted the exempt filing as well as all other parties to the 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 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 [[Page 212]] 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 (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 the 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. (iii) Contents of offer. The offeror shall set forth its offer in detail. The offer must meet the requirements of paragraph (c)(1)(ii) of this section. (d) Access to documents. Upon receipt by the carrier of a written comment under Sec.1152.25 or a formal expression of intent under paragraph (c)(2)(i) of this section indicating an intent to offer financial assistance, or upon receipt by the carrier of an offer of financial assistance, whichever occurs earlier, the carrier must make available to that party or offeror the records, accounts, appraisals, working papers, and other documents used in preparing Exhibit 1 (Sec.1152.36) or, if an exemption proceeding, those documents that would have been used in preparing Exhibit 1 had an abandonment or discontinuance application been filed, or other records, reports, and data in the possession of the carrier seeking the exemption that provide comparable data. These documents shall be made available during regular business hours at a time and place mutually agreeable to the parties. (e) Review of offers--(1) Abandonment and discontinuance applications. The Board will review each offer submitted to determine if a financially responsible person has offered assistance. If that criterion is met, the Board will issue a decision postponing the effective date of the authorization for abandonment or discontinuance. This decision will be issued within 15 days of the service of the decision granting the application (or within 5 days after the offer is filed if the time for filing has been tolled under paragraph (c)(1)(i)(C) of this section, or within 5 days after expiration of the 120 day (4 month) period described in 49 U.S.C. 10904, if that occurs first). Under the delegation of authority at Sec.1011.8, the Director of the Office of Proceedings will make the initial determination whether offers of financial assistance satisfy the standards of 49 U.S.C. 10904(d) for purposes of instituting negotiations. Appeals of initial decisions determining whether offers of financial assistance satisfy the standards of 49 U.S.C. 10904(d) for purposes of instituting negotiations will be acted upon by the entire Board pursuant to 49 CFR 1011.2(a)(7). (2) Exemption proceedings. The Board will review each offer submitted to determine if a financially responsible person has offered assistance. If that criterion is met, the Board will postpone the effective date either of the decision granting a petition for individual exemption or the notice of exemption under the class exemption and partially revoke the exemption or (in the case of a class exemption) the notice of exemption to the extent it applies to 49 U.S.C. 10904. The decision to postpone and partially revoke will be issued within 15 days of the service date of a decision granting a petition for exemption, or within 35 days of the Federal Register publication described in paragraph (b)(2)(ii) of this section (or within 5 days after the offer is filed if the time for filing has been tolled under paragraph (c)(1)(i)(C) or [[Page 213]] (c)(2)(ii) (C) or (D) of this section). Under the delegation of authority at Sec.1011.8, the Director of the Office of Proceedings will make the initial determination whether offers of financial assistance satisfy the standards of 49 U.S.C. 10904(d) for purposes of partial revocation and institution of negotiations. Appeals of initial decisions determining whether offers of financial assistance satisfy the standards of 49 U.S.C. 10904(d) for purposes of partial revocation and institution of negotiations will be acted upon by the entire Board pursuant to 49 CFR 1011.2(a)(7). (f) Agreement on financial assistance. (1) If the carrier and a person offering financial assistance enter into a subsidy agreement designed to provide for continued rail service, the Board will postpone the effective date of the abandonment or discontinuance. If a decision granting a petition for individual exemption, or a notice of exemption, has been issued, the Board will postpone the effective date of the decision or notice of exemption. The postponement will be for as long as the subsidy agreement is in effect. (2) If the carrier and a person offering to purchase a line enter into a purchase agreement which will result in continued rail service, the Board will approve the transaction and dismiss the application for abandonment or discontinuance, or the petition for exemption or notice of exemption. Board approval is not required under 49 U.S.C. 10901, 10902, or 11323 for the parties to consummate the transaction or for the purchaser to institute service and operate as a railroad subject to 49 U.S.C. 10501(a). (g) Failure to reach agreement on financial assistance. (1) If the carrier and a financially responsible person fail to agree on the amount or terms of subsidy or purchase, either party may request the Board to establish the conditions and amount of compensation. This request must be filed with the Board within 30 days after the offer is made and served concurrently by overnight mail on all parties to the proceeding. The request must be accompanied by the appropriate fee, codified at 49 CFR 1002.2(f)(26). Replies will be due 5 days later. (2) If no agreement is reached within 30 days after the offer of purchase or subsidy is made, and no request is made to the Board to set the conditions and amount of compensation under paragraph (g)(1) of this section, the Board will serve a decision vacating the prior decision, which postponed the effective date of the decision granting the application, the decision granting the exemption, or the notice of exemption and, which, if applicable, partially revoked either the decision granting the exemption or (in the case of a class exemption) the notice of exemption. The Board will issue the decision to vacate within 10 days of the due date for requesting the Board to set the conditions and amount of compensation, and the Board will make the decision to vacate effective on its date of service. (h) Request to establish conditions and compensation for financial assistance. (1) If the Board is requested to establish conditions and compensation for financial assistance under paragraph (g)(1) of this section, the Board will issue a decision within 30 days after the request is due. (2) If the applicant receives multiple offers of financial assistance, requests to establish conditions and compensation will not be permitted before the applicant selects the offeror with whom it wishes to transact business. (See paragraph (l)(1) of this section.) (3) A party requesting the Board to establish conditions and compensation for financial assistance must, within the time period set forth in paragraph (h)(4) of this section, provide its case in chief, including reasons why its estimates are correct and the other negotiating party's estimates are incorrect, points of agreement and points of disagreement between the negotiating parties, and evidence substantiating these allegations. The offeror has the burden of proof as to all issues in dispute. (4) The offeror must submit all evidence and information supporting the terms it seeks within 30 days after the offer is made. The carrier's reply to this evidence and support for the terms it seeks are due within 35 days after the offer is made. No rebuttal evidence [[Page 214]] will be permitted and evidence and information submitted after these dates will be rejected. (5) If requested, the Board will determine the amount and terms of subsidy based on the avoidable cost of providing continued rail transportation, plus a reasonable return on the value of the line. Under 49 U.S.C. 10904(f)(4)(B), no subsidy arrangement approved under section 10904 shall remain in effect for more than one year unless mutually agreed by the parties. (6) If requested, the Board will determine the price and other terms of sale. The Board will not set a price below the fair market value of the line (including, unless otherwise agreed upon by the parties, all facilities on the line or portion necessary to provide effective transportation services). Fair market value equals constitutional minimum value which is the greater of the net liquidation value of the line or the going concern value of the line. The constitutional minimum value is computed without regard to labor protection costs. (7) Within 10 days of the service date of the Board's decision, the offeror must accept or reject the Board's terms and conditions with a written notification to the Board and all parties to the proceeding. If the offeror accepts the terms and conditions set by the Board, the Board's decision is binding on both parties. If the offeror withdraws its offer or does not accept the terms and conditions set by the Board with a timely written notification, the Board will serve, within 20 days after the service date of the Board decision setting the terms and conditions, a decision vacating the prior decision, which postponed the effective date of either the decision granting the application or exemption or the notice of exemption, and which, if applicable, partially revoked the exemption or (in the case of a class exemption) the notice of exemption (unless other offers are being considered under paragraph (l) of this section). The decision to vacate will be effective on its date of service. (i) Substitution of purchasers and disposition after sale. (1) Prior to the consummation of a purchase under this section, an offeror may substitute its corporate affiliate as the purchaser under an agreement, provided the Board has determined either: (i) The original offeror has guaranteed the financial responsibility of its affiliate; or (ii) The affiliate has demonstrated financial responsibility in its own right. (2) Except as provided in paragraph (i)(3) of this section, a purchaser under this section may not: (i) Transfer the line or discontinue service over the line prior to the end of the second year after consummation of the original sale under these provisions; or (ii) Transfer the line, except to the carrier from whom the line was purchased, prior to the end of the fifth year after consummation. (3) Paragraph (i)(2) of this section does not preclude a purchaser under this section from transferring the line to a corporate affiliate following the consummation of the original sale. Prior Board approval of the affiliate's acquisition and operation, however, is required under 49 U.S.C. 10901, 10902, or 11323. A corporate affiliate acquiring a line under this section is prohibited from discontinuing service over the line or transferring the line to a party that is not a corporate affiliate during the time periods prescribed in paragraph (i)(2) of this section. (j) Discontinuance of subsidy. A subsidizer may discontinue a subsidy under this section by giving 60 days notice of the discontinuance to the applicant and all other parties to the proceeding. Unless another financially responsible party enters into a subsidy agreement as beneficial to the carrier as the discontinued subsidy agreement in a situation where the 1-year time limit of 49 U.S.C. 10904(f)(4)(B) has not yet run, the carrier may by filing a request with the Board and serving the request on all parties to the abandonment or exemption proceeding obtain a decision vacating the decision postponing the effective date of either the decision granting the application, or petition for individual exemption, or the notice of exemption. The Board will issue a decision to vacate within 10 days after the filing and service of the request. This decision to vacate will be effective on its service date. [[Page 215]] (k) Default on agreement. If any party defaults on its obligations under a financial assistance agreement, any other party to the agreement may promptly inform the Board of that default. Upon notification, the Board will take appropriate action. (l) Multiple offers of financial assistance. (1) If an applicant receives more than one offer to purchase or subsidize the line from offerors found to be financially responsible, the applicant must select the offeror from those with whom it wishes to transact business. In abandonment and discontinuance application and petition for exemption proceedings within 25 days after service of the decision granting the application or petition for exemption, and in class exemption proceedings within 45 days after the Federal Register publication described in paragraph (b)(2)(ii) of this section, the railroad must: (i) File a written notification of its selection with the Board; and (ii) Serve a copy of the notification on all parties to the proceeding. (2)(i) Abandonment and discontinuance applications and petitions for exemption. If the applicant has received multiple offers of financial assistance from persons found to be financially responsible and has selected the offeror with whom it wishes to transact business, the negotiating parties shall complete the sale or subsidy agreement or request the Board to establish the conditions and amount of compensation within 40 days after the service date of the decision granting the application or petition for exemption. A request to the Board to set terms and conditions must be served concurrently on all parties to the proceeding. If no agreement on subsidy or sale is reached within the 40- day period and the Board has not been requested to establish the conditions and amount of compensation, any other financially responsible offeror may request the Board to establish the conditions and amount of compensation. This request must be filed at the Board within 50 days of the service date of the decision granting the application or petition for exemption and served concurrently on all parties to the proceeding. If no other request is filed, the Board will issue a decision authorizing abandonment or discontinuance within 60 days of the service date of the decision granting the application or petition for exemption. This decision will be effective on the date of service. (ii) Class exemption proceedings. If the carrier seeking the exemption has received multiple offers of financial assistance from persons found to be financially responsible and has selected the offeror with whom it wishes to transact business, the negotiating parties shall complete the sale or subsidy agreement or request the Board to establish the conditions and amount of compensation within 60 days after the Federal Register publication described in paragraph (b)(2)(ii) of this section. A request to the Board to set terms and conditions must be served concurrently on all parties to the proceeding. If no agreement on subsidy or sale is reached within the 60-day period and the Board has not been requested to establish the conditions and amount of compensation, any other financially responsible offeror may request the Board to establish the conditions and amount of compensation. This request must be filed at the Board within 70 days of the Federal Register publication described in paragraph (b)(2)(ii) of this section and served concurrently on all parties to the proceeding. If no other request is filed, the Board will issue a decision vacating the decision postponing the effective date of the notice of exemption within 80 days of the Federal Register publication described in paragraph (b)(2)(ii) of this section. The decision to vacate will be effective on the date of service. (3) If the Board has established the conditions and amount of compensation, and the original offer is withdrawn under paragraph (h)(7) of this section, any other offeror found to be financially responsible may accept the Board's decision within 20 days after the service date of the Board's decision setting terms and conditions. If the decision is accepted by another such offeror, the Board will require the applicant to accept the terms incorporated in the Board's decision. (m) Additional time for filing. Notwithstanding the deadlines previously set forth in part 1152 for filing an offer of [[Page 216]] financial assistance, parties that can show that they would be materially prejudiced by having less than the full 4 months for filing an offer of financial assistance provided in 49 U.S.C. 10904(c) for application proceedings may seek relief under 49 CFR part 1117. (n) Special provisions for summary discontinuance and abandonment of lines not part of the Final System Plan. (1) Board authorization is not needed for the cessation of service on a line of railroad formerly in reorganization that was not included in the Final System Plan (Plan) under the Regional Rail Reorganization Act of 1973, 45 U.S.C. 701 et seq., as amended by the Railroad Revitalization and Regulatory Reform Act of 1976, if the line has been continuously subsidized since the inception of the Plan. To provide an opportunity for rail service continuation through offers of financial assistance, however, the owner of the line must give not less than 60 days' notice of a discontinuance, and beginning 120 days after discontinuance, not less than 30 days' notice of abandonment. Designated operators need only comply with the notice requirements of Sec.1150.11 of this title. In instances of discontinuance by a designated operator, the line owner is not obligated to operate the line. Notice is to be sent by the line owner to the Board, the governor and transportation agencies and the government of each political subdivision of each state in which such rail properties are located and to each shipper who has used the rail service during the previous 12 months. The Board will generally apply the OFA procedures in this section (49 CFR 1152.27) for class exemptions to summary abandonment and discontinuance notices (except that the Board will not postpone the effective date of a summary discontinuance). For example, notice of summary abandonment or discontinuance will be published by the Board in the Federal Register within 20 days of filing. Paragraph (b)(2)(ii) of this section. Expressions of intent to file an offer must be filed no later than 10 days after the Federal Register publication. Paragraph (c)(2)(i) of this section. An offer must be filed within 30 days of the Federal Register publication. Paragraphs (b)(2)(ii) and (c)(2)(ii)(B) of this section. The Board will review offers to determine if a financially responsible person has offered assistance. If this criterion is met, the Board will postpone the effective date of the summary abandonment (but not the discontinuance) within 35 days of the Federal Register publication. Paragraph (e)(2) of this section. If the carrier and financially responsible person fail to agree on the amount or terms of subsidy or purchase, either party may request the Board to establish the conditions and amount of the compensation. This request must be filed within 30 days after the offer of purchase or subsidy is made, and the Board will issue a decision within 30 days after the request is due. Paragraphs (g)(1) and (h)(1) of this section. (2) Where a designated operator is being used, it shall be paid a reasonable management fee. If the parties cannot agree on this fee, it shall be four and one-half percent of the total annual revenues attributable to the branch. [61 FR 67883, Dec. 24, 1996, as amended at 63 FR 28290, May 22, 1998] Sec.1152.28 Public use procedures. (a)(1) If the Board finds that the present or future public convenience and necessity require or permit abandonment or discontinuance, the Board will determine if the involved rail properties are appropriate for use for other public purposes. (2) A request for a public use condition under 49 U.S.C. 10905 must be in writing and set forth: (i) The condition sought; (ii) The public importance of the condition; (iii) The period of time for which the condition would be effective (up to the statutory maximum of 180 days); and (iv) Justification for the imposition of the time period. A copy of the request shall be mailed to the applicant. (3) For applications filed under part 1152, subpart C, a request for a public use condition must be filed not more than 45 days after the application is filed. A decision on the public use request will be issued by the Board or the Director of the Office of Proceedings [[Page 217]] prior to the effective date of the abandonment. For abandonment exemptions under part 1152, subpart F or exemptions granted on the basis of an individual petition for exemption filed under 49 U.S.C. 10502, a request for a public use condition must be filed not more than 20 days from the date of publication of the notice of exemption in the Federal Register in the case of class exemptions under subpart F of this part, or not more than 20 days from the date of publication of notice of the filing of the petition for individual exemption in the Federal Register. (b) If the Board finds that the rail properties are appropriate for use for other public purposes, the railroad may dispose of the rail properties only under the conditions described in the Board's decision. The conditions imposed by the Board may include a prohibition against the disposal of the rail assets for a period of not more than 180 days from the effective date of the decision authorizing the abandonment or discontinuance, unless the properties have first been offered, on reasonable terms, for sale for public purposes. This period will run concurrently with any other postponements. Jurisdiction to impose such conditions expires after 180 days from the effective date of the decision authorizing the abandonment or discontinuance. Sec.1152.29 Prospective use of rights-of-way for interim trail use and rail banking. (a) If any state, political subdivision, or qualified private organization is interested in acquiring or using a right-of-way of a rail line proposed to be abandoned for interim trail use and rail banking pursuant to 16 U.S.C. 1247(d), it must file a comment or otherwise include a request in its filing (in a regulated abandonment proceeding) or a petition (in an exemption proceeding) indicating that it would like to do so. The comment/request or petition must include: (1) A map depicting, and an accurate description of, the right-of- way, or portion thereof (including mileposts), proposed to be acquired or used; (2) A statement indicating the user's willingness to assume full responsibility: for managing the right-of-way; for any legal liability arising out of the use of the right-of-way (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability); and for the payment of all taxes assessed against the right-of-way; and (3) An acknowledgment that interim trail use is subject to the user's continuing to meet its responsibilities described in paragraph (a)(2) of this section, and subject to possible future reconstruction and reactivation of the right-of-way for rail service. The statement must be in the following form: Statement of Willingness To Assume Financial Responsibility In order to establish interim trail use and rail banking under 16 U.S.C. 1247(d) and 49 CFR 1152.29, ---------- (Interim Trail User) is willing to assume full responsibility for management of, for any legal liability arising out of the transfer or use of (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for the payment of any and all taxes that may be levied or assessed against the right-of-way owned by ---------- (Railroad) and operated by ---------- (Railroad). The property, known as ---------- (Name of Branch Line), extends from railroad milepost ---------- near ---------- (Station Name), to railroad milepost ----------, near ---------- (Station name), a distance of ---- ------ miles in [County(ies), (State(s)]. The right-of-way is part of a line of railroad proposed for abandonment in Docket No. STB AB------- (Sub-No. ------). A map of the property depicting the right-of-way is attached. ------ (Interim Trail User) acknowledges that use of the right-of- way is subject to the user's continuing to meet its responsibilities described above and subject to possible future reconstruction and reactivation of the right-of-way for rail service. A copy of this statement is being served on the railroad(s) on the same date it is being served on the Board. (b)(1) In abandonment application proceedings under 49 U.S.C. 10903, interim trail use statements are due within the 45-day protest and comment period following the date the abandonment application is filed. See Sec.1152.25(c). The applicant carrier's response notifying the Board whether and with whom it intends to negotiate a trail use agreement is due within 15 days after the close of the protest and [[Page 218]] comment period (i.e., 60 days after the abandonment application is filed). (i) In every proceeding where a Trails Act request is made, the Board will determine whether the Trails Act is applicable. (ii) If the Trails Act is not applicable because of failure to comply with Sec.1152.29(a), or is applicable but the carrier either does not intend to negotiate an agreement, or does not timely notify the Board of its intention to negotiate, a decision on the merits will be issued and no Certificate of Interim Trail Use or Abandonment (CITU) will be issued. If the carrier is willing to negotiate an agreement, and the public convenience and necessity permit abandonment, the Board will issue a CITU. (2) In exemption proceedings, a petition containing an interim trail use statement is due within 10 days after the date the notice of exemption is published in the Federal Register in the case of a class exemption and within 20 days after publication in the Federal Register of the notice of filing of a petition for exemption in the case of a petition for exemption. When an interim trail use comment(s) or petition(s) is filed in an exemption proceeding, the railroad's reply to the Board (indicating whether and with whom it intends to negotiate an agreement) is due within 10 days after the date a petition requesting interim trail use is filed. (3) Late-filed trail use statements must be supported by a statement showing good cause for late filing. (c) Regular and NERSA abandonment proceedings. (1) If continued rail service does not occur pursuant to 49 U.S.C. 10904 and Sec.1152.27, and a railroad agrees to negotiate an interim trail use/rail banking agreement, then the Board will issue a CITU to the railroad and to the interim trail user for that portion of the right-of-way to be covered by the agreement. The CITU will: Permit the railroad to discontinue service, cancel any applicable tariffs, and salvage track and material consistent with interim trail use and rail banking, as long as it is consistent with any other Board order, 30 days after the date it is issued (10 days after issuance in NERSA proceedings); and permit the railroad to fully abandon the line if no trail use agreement is reached 180 days after it is issued, subject to appropriate conditions, including labor protection and environmental matters. (2) The CITU will indicate that any interim trail use is subject to future restoration of rail service, and subject to the user continuing to meet the financial obligations for the right-of-way. The CITU will also provide that, if the user intends to terminate trail use, it must send the Board a copy of the CITU and request that it be vacated on a specified date. The Board will reopen the abandonment proceeding, vacate the CITU, and issue a decision permitting immediate abandonment for the involved portion of the right-of-way. Copies of the decision will be sent to: (i) The abandonment applicant; (ii) The owner of the right-of-way; and (iii) The current trail user. (3) If an application to construct and operate a rail line over the right-of-way is authorized under 49 U.S.C. 10901 and 49 CFR part 1150, or exempted under 49 U.S.C. 10502, then the CITU will be vacated accordingly. (d) Exempt abandonment proceedings. (1) If continued rail service does not occur under 49 U.S.C. 10904 and Sec.1152.27 and a railroad agrees to negotiate an interim trail use/rail banking agreement, then the Board will issue a Notice of Interim Trail Use or Abandonment (NITU) to the railroad and to the interim trail user for the portion of the right-of-way to be covered by the agreement. The NITU will: permit the railroad to discontinue service, cancel any applicable tariffs, and salvage track and materials, consistent with interim trail use and rail banking, as long as it is consistent with any other Board order, 30 days after the date it is issued; and permit the railroad to fully abandon the line if no agreement is reached 180 days after it is issued, subject to appropriate conditions, including labor protection and environmental matters. (2) The NITU will indicate that interim trail use is subject to future restoration of rail service, and subject to the user continuing to meet the financial obligations for the right-of-way. [[Page 219]] The NITU will also provide that, if the user intends to terminate trail use, it must send the Board a copy of the NITU and request that it be vacated on a specific date. The Board will reopen the exemption proceeding, vacate the NITU, and issue a decision reinstating the exemption for that portion of the right-of-way. Copies of the decision will be sent to: (i) The abandonment exemption applicant; (ii) The owner of the right-of-way; and (iii) The current trail user. (3) If an application to construct and operate a rail line over the right-of-way is authorized under 49 U.S.C. 10901 and 49 CFR part 1150, or exempted under 49 U.S.C. 10502, then the NITU will be vacated accordingly. (e)(1) Where late-filed trail use statements are accepted, the Director (or designee) will telephone the railroad to determine whether abandonment has been consummated and, if not, whether the railroad is willing to negotiate an interim trail use agreement. The railroad shall confirm, in writing, its response, within 5 days. If abandonment has been consummated, the trail use request will be dismissed. If abandonment has not been consummated but the railroad refuses to negotiate, then trail use will be denied. If abandonment has not been consummated and the railroad is willing to negotiate, the abandonment proceeding will be reopened, the abandonment decision granting an application, petition for exemption or notice of exemption will be vacated, and an appropriate CITU or NITU will be issued. The effective date of the CITU or NITU will be the same date as the vacated decision or notice. (2) A railroad that receives authority from the Board to abandon a line (in a regulated abandonment proceeding under 49 U.S.C. 10903, or by individual or class exemption issued under 49 U.S.C. 10502) shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line (e.g., discontinued operations, salvaged the track, canceled tariffs, and intends that the property be removed from the interstate rail network). The notice shall provide the name of the STB proceeding and its docket number, a brief description of the line, and a statement that the railroad has consummated, or fully exercised, the abandonment authority on a certain date. The notice shall be filed within 1 year of the service date of the decision permitting the abandonment (assuming that the railroad intends to consummate the abandonment). Notices will be deemed conclusive on the point of consummation if there are no legal or regulatory barriers to consummation (such as outstanding conditions, including Trails Act conditions). 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, the authority to abandon will automatically expire. In that event, a new proceeding would have to be instituted if the railroad wants to abandon the line. Copies of the railroad's notice of consummation shall be filed with the Secretary of the Board. In addition, the notice of consummation shall be sent to the State Public Service Commission (or equivalent agency) of every state through which the line passes. If, however, any legal or regulatory barrier to consummation exists at the end of the 1-year time period, the notice of consummation must be filed not later than 60 days after satisfaction, expiration or removal of the legal or regulatory barrier. For good cause shown, a railroad may file a request for an extension of time to file a notice so long as it does so sufficiently in advance of the expiration of the deadline for notifying the Board of consummation to allow for timely processing. (f)(1) When a trail user intends to terminate trail use and another person intends to become a trail user by assuming financial responsibility for the right-of-way, then the existing and future trail users shall file, jointly: (i) A copy of the extant CITU or NITU; and (ii) A Statement of Willingness to Assume Financial Responsibility by the new trail user. (2) The parties shall indicate the date on which responsibility for the right-of-way is to transfer to the new trail [[Page 220]] user. The Board will reopen the abandonment or exemption proceeding, vacate the existing NITU or CITU; and issue an appropriate replacement NITU or CITU to the new trail user. (g) In proceedings where a timely trail use statement is filed, but due to either the railroad's indication of its unwillingness to negotiate interim trail use agreement, or its failure to timely notify the Board of its willingness to negotiate, a decision authorizing abandonment or an exemption notice or decision is issued instead of a CITU or NITU, and subsequently the railroad and trail use proponent nevertheless determine to negotiate an interim trail use agreement under the Trails Act, then the railroad and trail use proponent must file a joint pleading requesting that an appropriate CITU or NITU be issued. If the abandonment has not been consummated, the Board will reopen the proceeding, vacate the outstanding decision or notice (or portion thereof), and issue an appropriate CITU or NITU that will permit the parties to negotiate for a period agreed to by the parties in their joint filing, but not to exceed 180 days, at the end of which, the CITU or NITU will convert into a decision or notice permitting abandonment. [61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34670, June 27, 1997; 64 FR 53268, Oct. 1, 1999] Subpart D--Standards for Determining Costs, Revenues, and Return on Value Sec.1152.30 General. (a) Contents of subpart. (1) 49 U.S.C. 10904 directs the Board to determine the extent to which the avoidable costs of providing rail service plus a reasonable return on the value of the line exceed the revenues attributable to the line. This subpart contains the methodology for such determinations and the standards necessary for application of those terms in the context of a particular proceeding. Such data will be used in reaching the Board's findings on the merits of an abandonment or discontinuance proceeding and in making the necessary financial assistance determinations. (2) This subpart also sets forth a method by which the carrier may establish its Forecast Year estimates and Estimated Subsidy Payment to be included in its application (Sec.1152.22(d) of this part). Furthermore, an offeror of financial assistance may use this method to formulate a subsidy offer and/or Proposed Subsidy Payment under 49 U.S.C. 10904 and Sec.1152.27 of subpart C of this part. (b) Data collection. The owning or operating carrier shall establish a system to collect at branch level the data necessary to compute the base year data and the final subsidy payment. The collection and compilation of such data shall be in accordance with the Branch Line Accounting System (49 CFR part 1201). (c) Final payment of financial assistance. (1) When a financial assistance agreement is concluded, the final payment will be adjusted to reflect the actual revenues derived, avoidable costs incurred, and value of the properties used in the subsidy year. (2) Where an adjustment results in an increase in the Estimated Subsidy Payment upon which the financial assistance agreement is based, the amount of such increase is limited to 15 percent of the estimated payment. However, if the railroad notifies the subsidizer that the estimate will be exceeded by more than 15 percent in one of the Financial Status Reports (Sec.1152.37) issued during the first 10 months of the subsidy year or the increase results from an expense preapproved by the subsidizer, the adjusted amount shall be included in the final payment. Sec.1152.31 Revenue and income attributable to branch lines. The revenue attributable to the rail properties is the total of the revenues assigned to the branch in accordance with this section, plus any subsidy payments that would cease upon discontinuance of service on the branch, for the subsidy year. The revenues assigned shall be derived from the following accounts: (a) Account 101--Freight. The revenue assigned under this account shall be the actual revenues, including transit [[Page 221]] revenues, accruing to the railroad, derived from waybills and other source documents, for all traffic that: (1) Originates and terminates on the branch; (2) Originates or terminates on the branch and is handled off the branch on the system but not on another carrier; and (3) Originates or terminates on the branch and is handled on another carrier. All traffic that is received or forwarded through interchange at a point on the branch, including ferry operations, shall be considered as originating or terminating on the branch. The revenues of all other bridge or overhead traffic that will not be retained by the carrier shall be attributed to the branch on the ratio of miles moved on the branch to miles moved on the system, provided, however, that the parties may agree on a mutually acceptable usage charge for bridge traffic in lieu of the mileage apportionment. (b) Account 104--Switching; Account 105--Water transfers; Account 106--Demurrage; Account 110--Incidental; Account 121--Joint Facility- Credit; Account 122--Joint Facility-Debt; Account 506--Revenues from Properties Used in Other Than Carrier Operations; Account 510-- Miscellaneous Rent Income; Account 519--Miscellaneous Income. The revenues assigned under these accounts shall be the actual revenues accruing to the railroad that are directly attributable to the branch. (c) Chart for revenue accounts. ------------------------------------------------------------------------ Revenue account title Account No. ------------------------------------------------------------------------ Freight................................... 101 Switching................................. 104 Water transfers........................... 105 Demurrage................................. 106 Incidental................................ 110 Joint facility-credit..................... 121 Joint facility-debt....................... 122 Revenues from property used in other than 506, 534 carrier operations, less expenses. Miscellaneous rent income................. 510 Miscellaneous income...................... 519 ------------------------------------------------------------------------ Sec.1152.32 Calculation of avoidable costs. This section defines: Which cost elements are eligible for inclusion in the calculation of avoidable costs; the conditions under which certain cost elements become eligible for inclusion; and the basis of apportioning those cost elements which are not assigned to the branch on an actual expense basis. The avoidable costs of providing freight service on a branch shall be the total of the costs assigned to the branch in accordance with this section. The avoidable costs of providing freight service on a branch shall be just and reasonable, and shall not exceed those necessary for an honest and efficient operation. Those expenses apportioned under this section shall be derived from the latest Form R-1 Annual Report for Class I railroads filed with the Board prior to the conclusion of the subsidy year, and company records for all non- Class I railroads, and assigned to the branch according to the procedures set forth in Sec.1152.33 of these regulations. When the term ``Actual'' is specified as the basis for assigning an expense, it shall mean that the only costs which can be assigned to the account are those costs which are incurred solely as a result of the continuation of rail freight service on the branch. The accounts in the following charts, which list only the ``freight-only'' account numbers, shall include the portion of common expenses that have been apportioned to freight service. ------------------------------------------------------------------------ Operating expense group and Basis of assignment accounts Account No. to on-branch costs ------------------------------------------------------------------------ (a) Maintenance of way and structures: (1) Administration: Track: Salaries and wages............ 11-13-02 Actual. Materials..................... 21-13-02 Do. Purchased services............ 41-13-02 Do. Other expenses................ 61-13-02 Do. Bridges and buildings Salaries and wages............ 11-13-03 Do. Materials..................... 21-13-03 Do. Purchased services............ 41-13-03 Do. Other expenses................ 61-13-03 Do. [[Page 222]] Signals Salaries and wages............ 11-13-04 Do. Materials..................... 21-13-04 Do. Purchased services............ 41-13-04 Do. Other expenses................ 61-13-04 Do. Communications Salaries and wages............ 11-13-05 Do. Materials..................... 21-13-05 Do. Purchased services............ 41-13-05 Do. Other expenses................ 61-13-05 Do. Other Salaries and wages............ 11-13-06 Do. Materials..................... 21-13-06 Do. Purchased services............ 41-13-06 Do. Other expenses................ 61-13-06 Do. (2) Repair maintenance and other roadway--running: Salaries and wages............ 11-11-10 Do. Materials..................... 21-11-10 Do. Repairs by others--DR......... 39-11-10 Do. Repairs for others--CR........ 40-11-10 Do. Purchased services............ 41-11-10 Do. Other expenses................ 61-11-10 Do. Roadway--switching Salaries and wages............ 11-12-10 Do. Materials..................... 21-12-10 Do. Repairs by others--DR......... 39-12-10 Do. Repairs for others--CR........ 40-12-10 Do. Purchased services............ 41-12-10 Do. Other expenses................ 61-12-10 Do. Tunnels and subways--running Salaries and wages............ 11-11-11 Do. Materials..................... 21-11-11 Do. Repairs by others--DR......... 39-11-11 Do. Repairs for others--CR........ 40-11-11 Do. Purchased services............ 41-11-11 Do. Other expenses................ 61-11-11 Do. Tunnels and subways-- switching Salaries and wages............ 11-12-11 Do. Materials..................... 21-12-11 Do. Repairs by others--DR......... 39-12-11 Do. Repairs for others--CR........ 40-12-11 Do. Purchased services............ 41-12-11 Do. Other expenses................ 61-12-11 Do. Bridges and culverts-- running Salaries and wages............ 11-11-12 Do. Materials..................... 21-11-12 Do. Repairs by others--DR......... 39-11-12 Do. Repairs for others--CR........ 40-11-12 Do. Purchased services............ 41-11-12 Do. Other expenses................ 61-11-12 Do. Bridges and culverts-- switching Salaries and wages............ 11-12-12 Do. Materials..................... 21-12-12 Do. Repairs by others--DR......... 39-12-12 Do. Repairs for others--CR........ 40-12-12 Do. Purchased services............ 41-12-12 Do. Other expenses................ 61-12-12 Do. Ties--running--material........... 21-11-13 Do. Ties--switching--material......... 21-12-13 Do. Rails--running--material.......... 21-11-14 Do. Rails--switching--material........ 21-12-14 Do. Other track material--running-- 21-11-15 Do. material. Other track material--switching-- 21-12-15 Do. material. Ballast--running--material........ 21-11-16 Do. Ballast--switching--material...... 21-12-16 Do. Track laying and surfacing-- running Salaries and wages............ 11-11-17 Do. Materials..................... 21-11-17 Do. Repairs by others--DR......... 39-11-17 Do. Repairs for others--CR........ 40-11-17 Do. Purchased services............ 41-11-17 Do. Other expenses................ 61-11-17 Do. Track laying and surfacing-- switching Salaries and wages............ 11-12-17 Do. [[Page 223]] Materials..................... 21-12-17 Do. Repairs by others--DR......... 39-12-17 Do. Repairs for others--CR........ 40-12-17 Do. Purchased services............ 41-12-17 Do. Other expenses................ 61-12-17 Do. Road property damaged-- running Salaries and wages............ 11-11-48 Do. Materials..................... 21-11-48 Do. Repairs by others--DR......... 39-11-48 Do. Repairs for others--CR........ 40-11-48 Do. Purchased services............ 41-11-48 Do. Other expenses................ 61-11-48 Do. Road property damaged-- switching Salaries and wages............ 11-12-48 Do. Materials..................... 21-12-48 Do. Repairs by others--DR......... 39-12-48 Do. Repairs for others--CR........ 40-12-48 Do. Purchased services............ 41-12-48 Do. Other Expenses................ 61-12-48 Do. Road property damaged--other Salaries and wages............ 1-13-48 Do. Materials..................... 21-13-48 Do. Repairs by others--DR......... 39-13-48 Do. Repairs for others--CR........ 40-13-48 Do. Purchased services............ 41-13-48 Do. Other expenses................ 61-13-48 Do. Signals and interlockers-- running Salaries and wages............ 11-11-19 Do. Materials..................... 21-11-19 Do. Repairs by others--DR......... 39-11-19 Do. Repairs for others--CR........ 40-11-19 Do. Purchased services............ 41-11-19 Do. Other expenses................ 61-11-19 Do. Signals and interlockers-- switching Salaries and wages............ 11-12-19 Do. Materials..................... 21-12-19 Do. Repairs by others--DR......... 39-12-19 Do. Repairs for others--CR........ 40-12-19 Do. Purchased services............ 41-12-19 Do. Other expenses................ 61-12-19 Do. Communications systems Salaries and wages............ 11-13-20 Do. Materials..................... 21-13-20 Do. Repairs by others--DR......... 39-13-20 Do. Repairs for others--CR........ 40-13-20 Do. Purchased services............ 41-13-20 Do. Other expenses................ 61-13-20 Do. Electric power systems Salaries and wages............ 11-13-21 Do. Materials..................... 21-13-21 Do. Repairs by others--DR......... 39-13-21 Do. Repairs for others--CR........ 40-13-21 Do. Purchased services............ 41-13-21 Do. Other expenses................ 61-13-21 Do. Highway grade crossings-- running Salaries and wages............ 11-11-22 Do. Materials..................... 21-11-22 Do. Repairs by others--DR......... 39-11-22 Do. Repairs for others--CR........ 40-11-22 Do. Purchased services............ 41-11-22 Do. Other expenses................ 61-11-22 Do. Highway grade crossings-- switching Salaries and wages............ 11-12-22 Do. Materials..................... 21-12-22 Do. Repairs by others--DR......... 39-12-22 Do. Repairs for others--CR........ 40-12-22 Do. Purchased services............ 41-12-22 Do. Other expenses................ 61-12-22 Do. Station and office buildings Salaries and wages............ 11-13-23 Do. Materials..................... 21-13-23 Do. Repairs by others--DR......... 39-13-23 Do. Repairs for others--CR........ 40-13-23 Do. Purchased services............ 41-13-23 Do. [[Page 224]] Other expenses................ 61-13-23 Do. Station buildings-- locomotives Salaries and wages............ 11-13-24 Do. Materials..................... 21-13-24 Do. Repairs by others--DR......... 39-13-24 Do. Repairs for others--CR........ 40-13-24 Do. Purchased services............ 41-13-24 Do. Other expenses................ 61-13-24 Do. Shop buildings--freight cars Salaries and wages............ 11-13-25 Do. Materials..................... 21-13-25 Do. Repairs by others--DR......... 39-13-25 Do. Repairs for others--CR........ 40-13-25 Do. Purchased services............ 41-13-25 Do. Other expenses................ 61-13-25 Do. Shop buildings--other equipment Salaries and wages............ 11-13-26 Do. Materials..................... 21-13-26 Do. Repairs by others--DR......... 39-13-26 Do. Repairs for others--CR........ 40-13-26 Do. Purchased services............ 41-13-26 Do. Other expenses................ 61-13-26 Do. Locomotive servicing facilities Salaries and wages............ 11-13-27 Do. Materials..................... 21-13-27 Do. Repairs by others--DR......... 39-13-27 Do. Repairs for others--CR........ 40-13-27 Do. Purchased services............ 41-13-27 Do. Other expenses................ 61-13-27 Do. Miscellaneous buildings and structures Salaries and wages............ 11-13-28 Do. Materials..................... 21-13-28 Do. Repairs by others--DR......... 39-13-28 Do. Repairs for others--CR........ 40-13-28 Do. Purchased services............ 41-13-28 Do. Other expenses................ 61-13-28 Do. Coal terminals Salaries and wages............ 11-13-29 Do. Materials..................... 21-13-29 Do. Repairs by others--DR......... 39-13-29 Do. Repairs for others--CR........ 40-13-29 Do. Purchased services............ 41-13-29 Do. Other expenses................ 61-13-29 Do. Ore terminals Salaries and wages............ 11-13-30 Do. Materials..................... 21-13-30 Do. Repairs by others--DR......... 39-13-30 Do. Repairs for others--CR........ 40-13-30 Do. Purchased services............ 41-13-30 Do. Other expenses................ 61-13-30 Do. TOFC/COFC terminals Salaries and wages............ 11-13-31 Do. Materials..................... 21-13-31 Do. Repairs by others--DR......... 39-13-31 Do. Repairs for others--CR........ 40-13-31 Do. Purchased services............ 41-13-21 Do. Other expenses................ 61-13-31 Do. Other marine terminals Salaries and wages............ 11-13-32 Do. Materials..................... 21-13-32 Do. Repairs by others--DR......... 39-13-32 Do. Repairs for others--CR........ 40-13-32 Do. Purchased services............ 41-13-32 Do. Other expenses................ 61-13-32 Do. Motor vehicle loading and distribution facilities Salaries and wages............ 11-13-33 Do. Materials..................... 21-13-33 Do. Repairs by others--DR......... 39-13-33 Do. Repairs for others--CR........ 40-13-33 Do. Purchased services............ 41-13-33 Do. Ot