Notification rules under 49 CFR 1152.29

49 C.F.R. § 1152.29

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(2) A statement indicating the trail sponsor's
willingness to assume full responsibility for:
Effective: May 30, 2012
(i) Managing the right-of-way;
Code of Federal Regulations Currentness
Title 49. Transportation
Subtitle B. Other Regulations Relating to
Transportation
Chapter X. Surface Transportation Board,
Department of Transportation
Subchapter B. Rules of Practice
Parts 1150 to 1174--Licensing Procedures
Parts 1150 to 1159--Rail Licensing
Procedures
Part 1152. Abandonment and
Discontinuance of RAIL Lines and
RAIL Transportation Under 49
U.S.C. 10903 (Refs & Annos)
Subpart C. Procedures Governing Notice, Applications, Financial Assistance, Acquisition for
Public Use, and Trail Use
§ 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;

(ii) Any legal liability arising out of the transfer or 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
(iii) The payment of any and all taxes that may
be levied or assessed against the right-of-way;
and
(3) An acknowledgment that interim trail use is
subject to the sponsor's continuing to meet its
responsibilities described in paragraph (a)(2) of
this section, and subject to possible future reconstruction and reactivation of the rightof-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 with respect to the right-of-way owned
by ________ (Railroad) and operated by
________ (Railroad), ________ (Interim Trail
Sponsor) is willing to assume full responsibility for: (1) Managing the right-of-way, (2) any
legal liability arising out of the transfer or use
of the right-of-way (unless the sponsor is immune from liability, in which case it need only
indemnify the railroad against any potential liability), and (3) the payment of any and all
taxes that may be levied or assessed against the

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right of way. 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 rightof-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 Sponsor) acknowledges that use of the right-of-way is subject to
the sponsor'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 § 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 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 § 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 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 sponsor for that portion of the rightof-way as to which both parties are willing to
negotiate. 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 the CITU is issued;
and permit the railroad to fully abandon the
line if no trail use agreement is reached 180
days after the CITU is issued, subject to appropriate conditions, including labor protection
and environmental matters.

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(2) The CITU will indicate that any interim
trail use is subject to future restoration of rail
service and to the sponsor's continuing to meet
its responsibilities described in paragraph
(a)(2) of this section. The CITU will also
provide that, if an interim trail use agreement is
reached (and thus interim trail use established),
the parties shall file the notice described in
paragraph (h) of this section. Additionally, the
CITU will provide that if the sponsor intends to
terminate interim trail use on all or any portion
of the right-of-way covered by the interim trail
use agreement, it must send the Board a copy
of the CITU and request that it be vacated on a
specified date. If a party requests that the CITU
be vacated for only a portion of the rightof-way, the Board will issue an appropriate replacement CITU covering the remaining portion of the right-of-way subject to the interim
trail use agreement. The Board will reopen the
abandonment proceeding, vacate the CITU, and
issue a decision permitting immediate abandonment for the involved portion of the rightof-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 sponsor.
(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 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
sponsor for the portion of the right-of-way as to
which both parties are willing to negotiate. 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 the NITU is issued; and permit
the railroad to fully abandon the line if no
agreement is reached 180 days after the NITU
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 to the sponsor's continuing to meet its
responsibilities described in paragraph (a)(2) of
this section. The NITU will also provide that, if
an interim trail use agreement is reached (and
thus interim trail use established), the parties
shall file the notice described in paragraph (h)
of this section. Additionally, the NITU will
provide that if the sponsor intends to terminate
interim trail use on all or any portion of the
right-of-way covered by the interim trail use
agreement, it must send the Board a copy of the
NITU and request that it be vacated on a specific date. If a party requests that the NITU be
vacated for only a portion of the right-of-way,
the Board will issue an appropriate replacement
NITU covering the remaining portion of the
right-of-way subject to the interim trail use
agreement. 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;

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(ii) The owner of the right-of-way; and
(iii) The current trail sponsor.
(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
Chief, Section of Administration, Office of
Proceedings. 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

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(ii) A Statement of Willingness to Assume Financial Responsibility by the new trail user.
(iii) An acknowledgement that interim trail use
is subject to possible future reconstruction and
reactivation of the right-of-way for rail service.
(2) The parties shall indicate the date on which
responsibility for the right-of-way is to transfer
to the new trail 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.
(h) When the parties negotiating for rail banking/interim trail use reach an agreement, the trail sponsor
and railroad shall jointly notify the Board within 10
days that the agreement has been reached. The notice shall include a map depicting, and an accurate
description of, the involved right-of-way or portion

thereof (including mileposts) that is subject to the
parties' interim trail use agreement and a certification that the interim trail use agreement includes
provisions requiring the sponsor to fulfill the responsibilities described in paragraph (a)(2) of this
section. Additionally, if the interim trail use agreement establishes interim trail use over less of the
right-of-way than is covered by the CITU or NITU,
the notice shall also include a request that the
Board vacate the CITU or NITU and issue a replacement CITU/NITU for only the portion of the
right-of-way covered by the interim trail use agreement. The Board will reopen the abandonment proceeding, vacate the CITU or NITU, issue an appropriate replacement CITU or NITU for only the portion of the right-of-way covered by the interim trail
use agreement, and issue a decision permitting immediate abandonment of the portion of the rightof-way not subject to the interim trail use agreement. Copies of the decision will be sent to:
(1) The rail carrier that sought abandonment
authorization;
(2) The owner of the right-of-way; and
(3) The current trail sponsor.
[62 FR 34670, June 27, 1997; 64 FR 53268, Oct. 1,
1999; 74 FR 52910, Oct. 15, 2009; 77 FR 25914,
May 2, 2012]
SOURCE: 61 FR 67883, Dec. 24, 1996; 63 FR
28290. May 22, 1998, unless otherwise noted.
AUTHORITY: 11 U.S.C. 1170; 16 U.S.C. 1247(d)
and 1248; 45 U.S.C. 744; and 49 U.S.C. 701 note
(1995) (section 204 of the ICC Termination Act of
1995), 721(a), 10502, 10903–10905, and 11161.
49 C. F. R. § 1152.29, 49 CFR § 1152.29

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Current through April 30, 2015; 80 FR 24774.
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END OF DOCUMENT

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