49 CFR part 1150

Surface Transportation Board

§ 1150.1

(d) Service. All pleadings under this
part shall be served by hand or by overnight delivery on the Board, other parties, and the Federal Railroad Administration.
[63 FR 71401, Dec. 28, 1998]

PARTS 1148–1149 [RESERVED]
Parts 1150–1176—Licensing
Procedures

Subpart E—Exempt Transactions Under 49
U.S.C. 10902 for Class III Rail Carriers

Parts 1150–1159—Rail Licensing
Procedures
PART 1150—CERTIFICATE TO CONSTRUCT, ACQUIRE, OR OPERATE
RAILROAD LINES
Subpart A—Applications Under 49 U.S.C.
10901
Sec.
1150.1
1150.2
1150.3
1150.4
1150.5
1150.6
1150.7
1150.8
1150.9
1150.10

1150.41 Scope of exemption.
1150.42 Procedures and relevant dates for
small line acquisitions.
1150.43 Information to be contained in notice for small line acquisitions.
1150.44 Caption summary.
1150.45 Procedures and relevant dates—
transactions under section 10902 that involve creation of Class I or Class II rail
carriers.
AUTHORITY: 49 U.S.C. 721(a), 10502, 10901,
and 10902.

Introduction.
Overview.
Information about applicant(s).
Information about the proposal.
Operational data.
Financial information.
Environmental and energy data.
Additional support.
Notice.
Procedures.

SOURCE: 47 FR 8199, Feb. 25, 1982, unless
otherwise noted. Redesignated at 47 FR 49581,
Nov. 1, 1982.

Subpart A—Applications Under 49
U.S.C. 10901
§ 1150.1

Subpart B—Designated Operators
1150.11 Introduction.
1150.12 Information about the designated
operator.
1150.13 Relevant dates.
1150.14 Proposed service.
1150.15 Information about offeror.
1150.16 Procedures.

Subpart C—Modified Certificate of Public
Convenience and Necessity
1150.21 Scope of rules.
1150.22 Exemptions and common carrier status.
1150.23 Modified certificate of public convenience and necessity.
1150.24 Termination of service.

Subpart D—Exempt Transactions Under 49
U.S.C. 10901
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1150.33 Information to be contained in notice—transactions that involve creation
of Class III carriers.
1150.34 Caption
summary—transactions
that involve creation of Class III carriers.
1150.35 Procedures and relevant dates—
transactions that involve creation of
Class I or Class II carriers.
1150.36 Exempt construction of connecting
track.

1150.31 Scope of exemption.
1150.32 Procedures and relevant dates—
transactions that involve creation of
Class III carriers.

Introduction.

(a) When an application is required.
This subpart governs applications
under 49 U.S.C. 10901 for a certificate of
public convenience and necessity authorizing the construction, acquisition
or operation of railroad lines. Noncarriers require Board approval under section 10901 to construct, acquire or operate a rail line in interstate commerce.
Existing carriers require approval
under section 10901 only to construct a
new rail line or operate a line owned by
a noncarrier, since acquisition by a
carrier of an active rail line owned by
a carrier is covered by 49 U.S.C. 11323.
We have exempted from these requirements the acquisition by a State entity
of a rail line that has been approved for
abandonment, as well as operations
over these lines. See subpart C of this
part. In addition, where appropriate,
we have granted individual exemptions
from these certification requirements.
See 49 U.S.C. 10502.

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§ 1150.2

49 CFR Ch. X (10–1–16 Edition)

(b) Content of the application. Applications filed under this subpart shall include the information set forth in
§§ 1150.2 through 1150.9. The applicant
must also comply with the Energy and
Environmental Regulations at 49 CFR
parts 1106 and 1105 (including consulting with the Board’s Section of Environmental Analysis at least 6 months
prior to filing an application, to begin
the scoping process to identify environmental issues and outline procedures
for analysis of this aspect of the proposal).
[47 FR 8199, Feb. 25, 1982, as amended at 64
FR 53268, Oct. 1, 1999; 69 FR 58366, Sept. 30,
2004]

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§ 1150.2 Overview.
(a) A brief narrative description of
the proposal.
(b) The full name and address of applicant(s).
§ 1150.3 Information
about
applicant(s).
(a) The name, address, and phone
number of the representative to receive
correspondence concerning this application.
(b) Facts showing that applicant is
either a common carrier by railroad or
has been organized to implement the
proposal for which approval is being
sought.
(c) A statement indicating whether
the rail line will be operated by applicant. If not, the operator which has
been selected must join in the application, and provide all information required for an applicant. If the operator
has not yet been selected, state who is
being considered.
(d) A statement indicating whether
applicant is affiliated by stock ownership or otherwise with any industry to
be served by the line. If so, provide details about the nature and extent of
the affiliation.
(e) Date and place of organization,
applicable State statutes, and a brief
description of the nature and objectives of the organization.
(f) If a corporation, submit:
(1) A list of officers, directors, and 10
principal stockholders of the corporation and their respective holdings. A
statement whether any of these officers, directors or major shareholders

control other regulated carriers. Also a
list of entities, corporation(s) individual(s), or group(s) who control applicant, the extent of control, and whether any of them control other common
carriers.
(2) As exhibit A, any resolution of the
stockholders or directors authorizing
the proposal.
(g) If a partnership or individual, submit the name and address of all general
partners and their respective interests,
and whether any of them control other
carriers.
(h) If applicant is an entity other
than as described in paragraphs (f) or
(g) of this section, submit name, title,
and business address of principals or
trustee, and whether the entity controls any other common carriers.
(i) If applicant is a trustee, receiver,
assignee, or a personal representative
of the real party in interest, details
about the appointment (including supporting documents, such as the court
order authorizing the appointment and
the filing) and about the real party in
interest.
(j) If applicant is an existing carrier,
it may satisfy the informational requirements of paragraphs (f) through
(i) of this section by making appropriate reference to the docket number
of prior applications that have been
filed within the previous three years in
which the information has been submitted.
[47 FR 8199, Feb. 25, 1982, as amended at 81
FR 8855, Feb. 23, 2016]

§ 1150.4 Information
posal.

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(a) A description of the proposal and
the significant terms and conditions,
including consideration to be paid
(monetary or otherwise). As exhibit B,
copies of all relevant agreements.
(b) Details about the amount of traffic and a general description of commodities.
(c) The purposes of the proposal and
an explanation of why the public convenience and necessity require or permit the proposal.
(d) As exhibit C, a map which clearly
delineates the area to be served including origins, termini and stations, and
cities, counties and States. The map

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Surface Transportation Board

§ 1150.10

should also delineate principal highways, rail routes and any possible
interchange points with other railroads. If alternative routes are proposed for construction, the map should
clearly indicate each route.
(e) A list of the counties and cities to
be served under the proposal, and
whether there is other rail service
available to them. The names of the
railroads with which the line would
connect, and the proposed connecting
points; the volume of traffic estimated
to be interchanged; and a description of
the principal terms of agreements with
carriers covering operation, interchange of traffic, division of rates or
trackage rights.
(f) The time schedule for consummation or completion of the proposal.
(g) If a new line is proposed for construction:
(1) The approximate area to be served
by the line.
(2) The nature or type of existing and
prospective
industries
(e.g.,
agriculture,
manufacturing,
mining,
warehousing, forestry) in the area,
with general information about the
age, size, growth potential and projected rail use of these industries.
(3) Whether the construction will
cross another rail line and the name of
the railroad(s) owning the line(s) to be
crossed. If the crossing will be accomplished with the permission of the railroad(s), include supporting agreements.
If a Board determination under 49
U.S.C. 10901(d)(1) will be sought, include such requests.

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§ 1150.5 Operational data.
As exhibit D, an operating plan, including traffic projection studies; a
schedule of the operations; information
about the crews to be used and where
employees will be obtained; the rolling
stock requirements and where it will
be obtained; information about the operating experience and record of the
proposed operator unless it is an operating railroad; any significant change
in patterns of service; any associated
discontinuance or abandonments; and
expected operating economies.
§ 1150.6 Financial information.
(a) The manner in which applicant
proposes to finance construction or ac-

quisition, the kind and amount of securities to be issued, the approximate
terms of their sale and total fixed
charges, the extent to which funds for
financing are now available, and
whether any of the securities issued
would be underwritten by industries to
be served by the proposed line. Explain
how the fixed charges will be met.
(b) As exhibit E a recent balance
sheet. As exhibit F, an income statement for the latest available calendar
year prior to filing the application.
(c) A present value determination of
the full costs of the proposal. If construction is proposed, the costs for
each year of such construction (in a
short narrative or by chart).
(d) A statement of projected net income for 2 years, based upon traffic
projections. Where construction is contemplated, the statement should represent the 2 years following completion
of construction.
§ 1150.7 Environmental
data.

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As exhibit H, information and data
prepared under 49 CFR Part 1105, and
the ‘‘Revision of the Nat’l. Guidelines
Environmental Policy Act of 1969,’’ 363
I.C.C. 653 (1980), and in accordance with
‘‘Implementation of the Energy Policy
and Conservation Act of 1975,’’ 49 CFR
Part 1106.
§ 1150.8

Additional support.

Any additional facts or reasons to
show that the public convenience and
necessity require or permit approval of
this application. The Board may require additional information to be filed
where appropriate.
§ 1150.9

Notice.

A summary of the proposal which
will be used to provide notice under
§ 1150.10(f).
§ 1150.10

Procedures.

(a) Waivers. Prior to filing an application, prospective applicants may seek
an advance waiver, either on a permanent or temporary basis, of required information which is unavailable or not
necessary or useful in analysis of the
proposal. However, if the information

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§ 1150.10

49 CFR Ch. X (10–1–16 Edition)

is clearly not applicable to the individual proposal, a waiver is not necessary and need not be sought. A petition must specify the sections for
which waiver or clarification is sought
and the reasons why it should be granted. No replies will be permitted. Parties may, upon an appropriate showing,
demonstrate their need to examine
data which have previously been
waived. In such circumstances, the
Board only requires that it be produced
under § 1150.8 above.
(b) Filing procedures. The original and
10 copies of the application and all documents shall be filed with the Chief,
Section of Administration, Office of
Proceedings. A filing fee in the amount
set forth in 49 CFR 1002.2(f) is required
to file an application. Copies of documents shall be furnished promptly to
interested parties upon request. The
application shall include a stamped
self-addressed envelope to be used to
notify applicant of the docket number.
Additionally, if possible, telephonic
communication of the docket number
shall be made.
(c) Signatures. The original of the application shall be signed by applicants
(if a partnership, all general partners
must sign; and if a corporation, association, or other similar form of organization, the signature should be that
of the executive officer having knowledge of the matters and designated for
that purpose). Applications shall be
made under oath and shall contain an
appropriate certification (if a corporation, by its secretary) showing that the
affiant is duly authorized to verify and
file the application. Any persons controlling an applicant shall also sign the
application.
(d) Related applications. Applicant
shall file concurrently all directly related applications (e.g., to issue securities, control motor carriers, obtain access to terminal operations, acquire
trackage rights). All such applications
will be considered with the main application.
(e) Service. As soon as the docket
number is obtained the applicant shall
serve a conformed copy of the application by first-class mail upon the Governor (or Executive Officer), Public
Service Board, and Department of
Transportation of each State in which

any part of the properties involved in
the proposed transaction is located.
Within 2 weeks of filing, applicant
shall submit to the Board a copy of the
certificate of service indicating that
all persons so designated have been
served a copy of the application.
(f) Publication. Within 2 weeks of filing, applicant shall have published the
summary of the application (prepared
under § 1150.9) in a newspaper of general
circulation in each county in which the
line is located. The notice should inform interested parties of the date by
which they must advise the Board of
their interest in the proceeding. This
date shall be calculated as the 35th day
after the filing of the application
which is neither a Saturday, Sunday,
or legal holiday in the District of Columbia. Applicant must file an affidavit of publication immediately after
the publication has been completed.
The Board will, as soon as practicable,
either publish the notice summary in
the FEDERAL REGISTER or reject the application if it is incomplete.
(g) Public participation. Written comments (with 10 copies) must be filed
within 35 days of the filing of the application. Comments must contain the
basis for the party’s position either in
support or opposition. Applicant must
be served with a copy of each comment.
On the basis of the comments and the
assessment by the Section of Environmental Analysis, the Board will decide
if a hearing is necessary. A hearing
may be either oral or through receipt
of written statements (modified procedure). (See 49 CFR 1112.1 et seq.) If there
is no opposition to the application, additional evidence normally need not be
filed, and a decision will be reached
using the information in the application.
(h) Replies to written comments. Applicant’s replies will be considered by the
Board provided they are filed and
served within 5 days of the due date of
the pleadings they address.
[47 FR 8199, Feb. 25, 1982. Redesignated at 47
FR 49581, Nov. 1, 1982, and amended at 52 FR
46483, Dec. 8, 1987; 53 FR 19302, May 27, 1988;
64 FR 53268, Oct. 1, 1999; 74 FR 52908, Oct. 15,
2009]

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Surface Transportation Board

§ 1150.21

Subpart B—Designated Operators
§ 1150.11

Introduction.

A certificate of designated operator
will be issued to an operator providing
service pursuant to a rail service continuation agreement under section 304
of the Regional Rail Reorganization
Act of 1973, as amended by the Railroad
Revitalization and Regulatory Reform
Act of 1976. The designated operator
(D-OP) may commence and terminate
the service in accordance with the
terms of the agreement. When service
is terminated the D-OP must notify all
shippers on the line. To obtain a D-OP
certificate, the information in this subpart must be filed with the Board. A
copy of the certificate of designated
operator shall be served on the Association of American Railroads.
§ 1150.12 Information about the designated operator.
(a) The name and address of the DOP.
(b) If a new corporation or other new
business entity, a copy of the certificate of incorporation or, if unincorporated, the facts and official organizational documents relating to the business entity.
(c) The names and addresses of all officers and directors, with a statement
from each which indicates present affiliation, if any, with a railroad.
(d) Sufficient information to establish its financial responsibility for the
proposed undertaking, unless the D-OP
is a common carrier by railroad. The
nature and extent of all liability insurance coverage, including insurance
binder or policy number, and name of
insurer.
§ 1150.13

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§ 1150.15 Information about offeror.
(a) The name and address of the offeror of the rail service continuation payment.
(b) Sufficient information to establish the financial responsibility of the
offeror for the proposed undertaking,
or if the offeror is a State or municipal
corporation or authority, a statement
that it has authority to perform the
service or enter into the agreement for
subsidy.
§ 1150.16 Procedures.
Upon receipt of this information, the
matter will be docketed by the prefix
initials ‘‘D-OP.’’ Operators may begin
operating immediately upon the filing
of the necessary information (plus
three copies). Although the designated
operator will not be required to seek
and obtain authority from the Board
either to commence or to terminate
operations, the designated operator is a
common carrier by railroad subject to
all other applicable provisions of 49
U.S.C. Subtitle IV. However, we have
exempted designated operators from
some aspects of regulation. See Exemption of Certain Designated Operators from
Section 11343, 361 ICC 379 (1979), as modified by McGinness v. I.C.C., 662 F.2d 853
(D.C. Cir. 1981).
[47 FR 8199, Feb. 25, 1982. Redesignated at 47
FR 49581, Nov. 1, 1982, and amended at 64 FR
53268, Oct. 1, 1999]

Relevant dates.

The exact dates of the period of operation which have been agreed upon by
the D-OP, the offeror of the rail service
continuation payment, and the owner
of the line to be operated, in their lease
and operating agreements.
§ 1150.14

(b) Any additional information which
is necessary to provide the Board with
a description of:
(1) The line over which service is to
be provided (e.g., U.S.R.A. Line); and
(2) All interline connections, including the names of the connecting railroads.

Proposed service.

(a) A copy of all agreements between
the D-OP, the offeror of the rail service
continuation payment, and the owner
of the line to be operated.

Subpart C—Modified Certificate of
Public Convenience and Necessity
§ 1150.21 Scope of rules.
These special rules apply to operations over abandoned rail lines, which
have been acquired (through purchase
or lease) by a State. The rail line must
have been fully abandoned, or approved
for abandonment by the Board or a
bankruptcy court. As used in these

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§ 1150.22

49 CFR Ch. X (10–1–16 Edition)

rules, the term ‘‘State’’ includes
States, political subdivisions of States,
and all instrumentalities through
which the State can act. An operator
has the option of applying for a modified certificate of public convenience
and necessity under this subpart or a
common carrier certificate under Subpart A of this part. A copy of the modified certificate shall be served on the
Association of American Railroads.
[47 FR 8199, Feb. 25, 1982, as amended at 81
FR 8855, Feb. 23, 2016]

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§ 1150.22 Exemptions and common carrier status.
The acquisition by a State of a fully
abandoned line is not subject to the jurisdiction of the Surface Transportation Board. The acquisition by a
State of a line approved for abandonment and not yet fully abandoned is
exempted from the Board’s jurisdiction. If the State intends to operate
the line itself, it will be considered a
common carrier. However, when a
State acquires a rail line described
under § 1150.21 and contracts with an
operator to provide service over the
line, only the operator incurs a common carrier obligation. The operators
of these lines are exempted from 49
U.S.C. 10901 and 10903 which are the
statutory requirements governing the
start up and termination of operations.
Operators exempted from these requirements must comply with the requirements of this part and must apply
for a modified certificate of public convenience and necessity. The operator is
a common carrier and incurs all benefits and responsibilities under 49 U.S.C.
subtitle IV; however, the State through
its operational agreement or the operator of the line may determine certain
preconditions, such as payment of a
subsidy, which must be met by shippers
to obtain service over the line. The operator must notify the shippers on the
line of any preconditions. The modified
certificate will authorize service to
shippers who meet these preconditions
and the operator will be required to
provide complete common carrier service under this certificate only to those
shippers. (See 363 ICC 132.)

§ 1150.23 Modified certificate of public
convenience and necessity.
(a) The operator must file a notice
with the Board for a modified certificate of public convenience and necessity. Operations may commence immediately upon the filing; however, the
Board will review the information
filed, and if complete, will issue a
modified certificate notice.
(b) A notice for a modified certificate
of public convenience and necessity
shall include the following information:
(1) The name and address of the operator and, unless the operator is an existing rail carrier:
(i) Its articles of incorporation or, if
it is unincorporated, the facts and organizational documents relating to its
formation;
(ii) The names and addresses of all of
its officers and directors and a statement indicating any present affiliation
each may have with a rail carrier; and
(iii) Sufficient information to establish the financial responsibility of the
operator.
(2) Information about the prior abandonment, including docket number,
status and date of the first decision approving the abandonment.
(3) The exact dates of the period of
operation which have been agreed upon
by the operator and the State which
owns the line (if there is any agreement, it should be provided);
(4) A description of the service to be
performed including, where applicable,
a description of:
(i) The line over which service is to
be performed;
(ii) All interline connections including the names of the connecting railroads;
(iii) The nature and extent of all liability insurance coverage, including
binder or policy number and name of
insurer; and
(iv) Any preconditions which shippers
must meet to receive service.
(5) The name and address of any subsidizers, and
(6) Sufficient information to establish the financial responsibility of any
subsidizers (if the subsidizer is a State,
the information should show that it
has authority to enter into the agreement for subsidized operations).

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Surface Transportation Board

§ 1150.32

(c) The service offered and the applicable rates, charges, and conditions
must be described in tariffs published
by the operator to the Board’s rules.

from securities regulation at 49 CFR
part 1177.

§ 1150.24

§ 1150.32 Procedures
and
relevant
dates—transactions that involve
creation of Class III carriers.

Termination of service.

The duration of the service may be
determined in the contract between the
State and the operator. An operator
may not terminate service over a line
unless it first provides 60 days’ notice
of its intent to terminate the service.
The notice of intent must be:
(a) Filed with the State and the
Board, and
(b) Mailed to all persons that have
used the line within the 6 months preceding the date of the notice.

Subpart D—Exempt Transactions
Under 49 U.S.C. 10901
SOURCE: 51 FR 2504, Jan. 17, 1986, unless
otherwise noted.

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§ 1150.31

Scope of exemption.

(a) Except as indicated below, this
exemption applies to all acquisitions
and operations under section 10901 (See
1150.1, supra). This exemption also includes:
(1) Acquisition by a noncarrier of rail
property that would be operated by a
third party;
(2) Operation by a new carrier of rail
property acquired by a third party;
(3) A change in operators on the line;
and
(4) Acquisition of incidental trackage
rights. Incidental trackage rights include the grant of trackage rights by
the seller, or the assignment of trackage rights to operate over the line of a
third party that occur at the time of
the exempt acquisition or operation.
This exemption does not apply when a
class I railroad abandons a line and another class I railroad then acquires the
line in a proposal that would result in
a major market extension as defined at
§ 1180.3(c).
(b) Other exemptions that may be
relevant to a proposal under this subpart are the exemption for control at
§ 1180.2(d)(1) and (2), and the exemption

[51 FR 2504, Jan. 17, 1986, as amended at 81
FR 8855, Feb. 23, 2016]

(a) To qualify for this exemption, applicant must file a verified notice providing details about the transaction,
and a brief caption summary, conforming to the format in § 1150.34, for
publication in the FEDERAL REGISTER.
(b) The exemption will be effective 30
days after the notice is filed. The
Board, through the Director of the Office of Proceedings, will publish a notice in the FEDERAL REGISTER within 16
days of the filing. A change in operators would follow the provisions at
§ 1150.34, and notice must be given to
shippers.
(c) If the notice contains false or misleading information, the exemption is
void ab initio. A petition to revoke
under 49 U.S.C. 10502(d) does not automatically stay the exemption. Stay petitions must be filed at least 7 days before the exemption becomes effective.
(d) Applicant must preserve intact all
sites and structures more than 50 years
old until compliance with the requirements of Section 106 of the National
Historic Preservation Act, 16 U.S.C. 470
is achieved.
(e) If the projected annual revenue of
the carrier to be created by a transaction under this exemption exceeds $5
million, applicant must, at least 60
days before the exemption becomes effective, post a notice of intent to undertake the proposed transaction at
the workplace of the employees on the
affected line(s) and serve a copy of the
notice on the national offices of the
labor unions with employees on the affected line(s), setting forth the types
and numbers of jobs expected to be
available, the terms of employment
and principles of employee selection,
and the lines that are to be transferred,
and certify to the Board that it has
done so.
[51 FR 2504, Jan. 17, 1986, as amended at 53
FR 4626, Feb. 17, 1988; 53 FR 5982, Feb. 29,
1988; 62 FR 47584, Sept. 10, 1997; 69 FR 58366,
Sept. 30, 2004; 71 FR 62212, Oct. 24, 2006]

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§ 1150.33

49 CFR Ch. X (10–1–16 Edition)

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§ 1150.33 Information to be contained
in notice—transactions that involve
creation of Class III carriers.
(a) The full name and address of the
applicant;
(b) The name, address, and telephone
number of the representative of the applicant who should receive correspondence;
(c) A statement that an agreement
has been reached or details about when
an agreement will be reached;
(d) The operator of the property;
(e) A brief summary of the proposed
transaction, including:
(1) The name and address of the railroad transferring the subject property,
(2) The proposed time schedule for
consummation of the transaction,
(3) The mile-posts of the subject
property, including any branch lines,
and
(4) The total route miles being acquired;
(f) A map that clearly indicates the
area to be served, including origins,
termini, stations, cities, counties, and
States; and
(g) A certificate that applicant’s projected revenues do not exceed those
that would qualify it as a Class III carrier.
(h) Interchange Commitments. (1) The
filing party must certify whether or
not a proposed acquisition or operation
of a rail line involves a provision or
agreement that may limit future interchange with a third-party connecting
carrier, whether by outright prohibition, per-car penalty, adjustment in
the purchase price or rental, positive
economic inducement, or other means
(‘‘interchange commitment’’). If such a
provision exists, the following additional information must be provided
(the
information
in
paragraphs
(h)(1)(ii), (iv), (vii) of this section may
be filed with the Board under 49 CFR
1104.14(a) and will be kept confidential
without need for the filing of an accompanying motion for a protective
order under 49 CFR 1104.14(b)):
(i) The existence of that provision or
agreement and identification of the affected interchange points; and
(ii) A confidential, complete version
of the document(s) containing or addressing that provision or agreement;

(iii) A list of shippers that currently
use or have used the line in question
within the last two years;
(iv) The aggregate number of carloads those shippers specified in paragraph (h)(1)(iii) of this section originated or terminated (confidential);
(v) A certification that the filing
party has provided notice of the proposed transaction and interchange
commitment to the shippers identified
in paragraph (h)(1)(iii) of this section;
(vi) A list of third party railroads
that could physically interchange with
the line sought to be acquired or
leased;
(vii) An estimate of the difference between the sale or lease price with and
without the interchange commitment
(confidential);
(viii) A change in the case caption so
that the existence of an interchange
commitment is apparent from the case
title.
(2) To obtain information about an
interchange commitment for use in a
proceeding before the Board, a shipper
or other affected party may be granted
access to the confidential documents
filed pursuant to paragraph (h)(1) of
this section by filing, and serving upon
the petitioner, a ‘‘Motion for Access to
Confidential Documents,’’ containing:
(i) An explanation of the party’s need
for the information; and
(ii) An appropriate draft protective
order
and
confidentiality
undertaking(s) that will ensure that the documents are kept confidential.
(3) Deadlines. (i) Replies to a Motion
for Access are due within 5 days after
the motion is filed.
(ii) The Board will rule on a Motion
for Access within 30 days after the motion is filed.
(iii) Parties must produce the relevant documents within 5 days of receipt of a Board approved, signed confidentiality agreement.
[51 FR 2504, Jan. 17, 1986, as amended at 51
FR 25207, July 11, 1986; 53 FR 4626, Feb. 17,
1988; 53 FR 5982, Feb. 29, 1988; 56 FR 36111,
July 31, 1991; 73 FR 31034, May 30, 2008; 78 FR
54590, Sept. 5, 2013]

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Surface Transportation Board

§ 1150.35

§ 1150.34 Caption
summary—transactions that involve creation of
Class III carriers.
The caption summary must be in the
following form. The information symbolized by numbers is identified in the
key below:
SURFACE TRANSPORTATION BOARD
Notice of Exemption
FINANCE DOCKET NO.
(1)—EXEMPTION (2)–(3)
(1) Has filed a notice of exemption to
(2) (3)’s line between (4). Comments
must be filed with the Board and
served on (5). (6).
Key to symbols:
(1) Name of entity acquiring or operating the line, or both.
(2) The type of transaction, e.g., to
acquire, operate, or both.
(3) The transferor.
(4) Describe the line.
(5) Petitioners representative, address, and telephone number.
(6) Cross reference to other class exemptions being used.
The notice is filed under § 1150.31. If
the notice contains false or misleading
information, the exemption is void ab
initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be
filed at any time. The filing of a petition to revoke will not automatically
stay the transaction.
[47 FR 8199, Feb. 25, 1982. Redesignated at 47
FR 49581, Nov. 1, 1982, as amended at 53 FR
5982, Feb. 29, 1988; 69 FR 58366, Sept. 30, 2004]

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§ 1150.35 Procedures
and
relevant
dates—transactions that involve
creation of Class I or Class II carriers.
(a) To qualify for this exemption, applicant must serve a notice of intent to
file a notice of exemption no later than
14 days before the notice of exemption
is filed with the Board, and applicant
must comply with the notice requirement of § 1150.32(e).
(b) The notice of intent must contain
all of the information required in
§ 1150.33, exclusive of § 1150.33(g), plus:
(1) A general statement of service intentions; and

(2) A general statement of labor impacts.
(c) The notice of intent must be
served on:
(1) The Governor of each State in
which track is to be sold;
(2) The State(s) Department of Transportation or equivalent agency;
(3) The national offices of the labor
unions with employees on the affected
line(s); and
(4) Shippers representing at least 50
percent of the volume of local traffic
and traffic originating or terminating
on the line(s) in the most recent 12
months for which data is available (beginning with the largest shipper and
working down).
(d) Applicant must also file a verified
notice of exemption conforming to the
requirements of (b) above and of
§ 1150.34, and certify compliance with
§ 1150.35 (a), (b), and (c), attaching a
copy of the notice of intent.
(e) The exemption will be effective 45
days after the notice is filed. The
Board, through the Director of the Office of Proceedings, will publish a notice in the FEDERAL REGISTER within 16
days of the filing.
(f) If the notice contains false or misleading information, the exemption is
void ab initio. A petition to revoke
under 49 U.S.C. 10502(d) does not automatically stay the transaction. Stay
petitions must be filed within 7 days of
the filing of the notice of exemption.
Stay petitions must be filed at least 14
days before the exemption becomes effective. To be considered, stay petitions must be timely served on the applicant.
(g) Applicant must comply with
§ 1150.32(d) regarding section 106 of the
National Historic Preservation Act, 16
U.S.C. 470.
[53 FR 5982, Feb. 29, 1988, as amended at 53
FR 31341, Aug. 18, 1988; 62 FR 47584, Sept. 10,
1997; 69 FR 58366, Sept. 30, 2004; 71 FR 62213,
Oct. 24, 2006; 81 FR 8855, Feb. 23, 2016]
EDITORIAL NOTE: At 81 FR 8855, Feb. 23,
2016, § 1150.35 was amended; however, a portion of the amendment could not be incorporated due to inaccurate amendatory instruction.

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lpowell on DSK54DXVN1OFR with $$_JOB

§ 1150.36

49 CFR Ch. X (10–1–16 Edition)

§ 1150.36 Exempt construction of connecting track.
(a) Scope. This class exemption applies to proceedings involving the construction and operation of connecting
lines of railroad within existing rail
rights-of-way, or on land owned by connecting railroads, under 49 U.S.C. 10901
(a), (b), and (c). (See the reference to
connecting
track
in
49
CFR
1105.6(b)(1).) This class exemption is designed to expedite and facilitate connecting track construction while ensuring full and timely environmental
review. The Surface Transportation
Board (Board) has found that its prior
review of connecting track construction and operation is not necessary to
carry out the rail transportation policy
of 49 U.S.C. 10101; that continued regulation is not necessary to protect shippers from abuse of market power; and
that the construction of connecting
track would be of limited scope. See 49
U.S.C. 10502. To use this class exemption, a pre-filing notice, environmental
report, historic report, and notice of
exemption must be filed that complies
with the procedures in § 1150.36 (b) and
(c), and the Board’s environmental
rules, codified at 49 CFR part 1105.
(b) Environmental requirements. The
environmental regulations at 49 CFR
part 1105 must be complied with fully.
An environmental report containing
the information specified at 49 CFR
1105.7(e), as well as an historic report
containing the information specified at
49 CFR 1105.8(d), must be filed either
before or at the same time as the notice of exemption is filed. See 49 CFR
1105.7(a). The entity seeking the exemption authority must also serve copies of the environmental report on the
agencies listed at 49 CFR 1105.7(b). Because the environmental report must
include a certification that appropriate
agencies have been consulted in its
preparation (see 49 CFR 1105.7(c)), parties should begin environmental and
historic consultations well before the
notice of exemption is filed. Environmental requirements may be waived or
modified where a petitioner demonstrates in writing that such action is
appropriate. See 49 CFR 1105.10(c). It is
to the advantage of parties to consult
with the Board’s Section of Environmental Analysis (SEA) at the earliest

possible date to begin environmental
review.
(c) Procedures and dates. (1) At least
20 days prior to the filing of a notice of
exemption with the Board, the party
seeking the exemption authority must
notify in writing: the State Public
Service Commission, the State Department of Transportation (or equivalent
agency), and the State Clearinghouse
(if there is no clearinghouse, the State
Environmental Protection Agency), of
each State involved. The pre-filing notice shall include: the name and address of the railroad (or other entity
proposing to construct the line) and
the proposed operator; a complete description of the proposed construction
and operation, including a map; an indication that the class exemption procedure is being used; and the approximate date that construction is proposed to begin. This pre-filing notice
shall include a certification that the
petitioner will comply with the Board’s
environmental regulations, codified at
49 CFR part 1105, and a statement that
those regulations generally require the
Board to:
(i) Prepare an environmental assessment (EA) (or environmental impact
statement (EIS) if necessary),
(ii) Make the document (EA or EIS,
as appropriate) available to the parties
(and to the public, upon request to
SEA); and
(iii) Accept for filing and consideration comments on the environmental
document as well as petitions for stay
and reconsideration.
(2) Petitioner must file a verified notice of exemption with the Board at
least 90 days before the construction is
proposed to begin. In addition to the
information contained in § 1150.36(c)(1),
the notice shall include a statement
certifying compliance with the environmental rules at 49 CFR part 1105
and the pre-filing notice requirements
of 49 CFR 1150.36(c)(1).
(3) The Board, through the Director
of the Office of Proceedings, shall publish a notice in the FEDERAL REGISTER
within 20 days after the notice of exemption is received that describes the
construction project and invites comments. SEA will then prepare an EA
(or, if necessary, an EIS). The EA generally will be made available 15 days

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lpowell on DSK54DXVN1OFR with $$_JOB

Surface Transportation Board

§ 1150.36

after the FEDERAL REGISTER notice. It
will be served on all parties and appropriate agencies. Others may request a
copy from SEA. The deadline for submission of comments on the EA will
generally be within 30 days of its availability (see 49 CFR 1105.10(b)). If an EIS
is prepared, the time frames and procedures set forth in 49 CFR 1105.10(a) generally will apply.
(4) The Board’s environmental document (together with any comments and
SEA’s recommendations) shall be used
in deciding whether to allow the particular construction project to proceed
under the class exemption and whether
to impose appropriate mitigating conditions upon its use (including use of
an environmentally preferable route).
If the Board concludes that a particular project will result in serious adverse environmental consequences that
cannot be adequately mitigated, it may
deny authority to proceed with the
construction under the class exemption
(the ‘‘no-build’’ alternative). Persons
believing that they can show that the
need for a particular line outweighs the
adverse environmental consequences
can file an application for approval of
the proposed construction under 49
U.S.C. 10901.
(5) No construction may begin until
the Board has completed its environmental review and issued a final decision.
(6) Petitions to stay the effective
date of the notice of exemption on
other than environmental and/or historic preservation grounds must be
filed within 10 days of the FEDERAL
REGISTER publication. Petitions to stay
the effective date of the notice on environmental and/or historic preservation
grounds may be filed at any time but
must be filed sufficiently in advance of
the effective date to allow the Board to
consider and act on the petition before
the notice becomes effective. Petitions
for reconsideration must be filed within 20 days of the FEDERAL REGISTER
publication.
(7) The exemption generally will be
effective 70 days after publication in
the FEDERAL REGISTER, unless stayed.
If the notice of exemption contains
false or misleading information, the
exemption is void ab initio and the

Board shall summarily reject the exemption notice.
(8) Where significant environmental
issues have been raised or discovered
during the environmental review process, the Board shall issue, on or before
the effective date of the exemption, a
final decision allowing the exemption
to become effective and imposing appropriate mitigating conditions or taking other appropriate action such as selecting the ‘‘no build’’ alternative.
(9) Where there has been full environmental review and no significant environmental issues have been raised or
discovered, the Board, through the Director of the Office of Proceedings,
shall issue, on or before the effective
date of the exemption, a final decision
consisting of a Finding of No Significant Impact (FONSI) to show that the
environmental record has been considered (see 49 CFR 1105.10(g)).
(10) The Board, on its own motion or
at the request of a party to the case,
will stay the effective date of individual notices of exemption when an
informed decision on environmental
issues cannot be made prior to the date
that the exemption authority would
otherwise become effective. Stays will
be granted initially for a period of 60
days to permit resolution of environmental issues and issuance of a final
decision. The Board expects that this
60-day period will usually be sufficient
for these purposes unless preparation
of an EIS is required. If, however, environmental issues remain unresolved
upon expiration of this 60-day period,
the Board, upon its own motion, or at
the request of a party to the case, will
extend the stay, as necessary to permit
completion of environmental review
and issuance of a final decision. The
Board’s order will specify the duration
of each extension of the initial stay period. In cases requiring the preparation
of an EIS, the Board will extend the
stay for a period sufficient to permit
compliance with the procedural guidelines established by the Board’s environmental regulations.
(d) Third-Party Consultants. An environmental and historic report required
under 49 CFR 1105.7 and 1105.8 will not
be required where a petitioner engages
a third-party consultant who is approved by SEA and acts under SEA’s

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§ 1150.41

49 CFR Ch. X (10–1–16 Edition)

direction and supervision in preparing
the EA or EIS. In such a case, the
third-party consultant must act on behalf of the Board, working under SEA’s
direction to collect the environmental
information that is needed and to compile it into a draft EA or EIS, which is
prepared under SEA’s direction and
then submitted to SEA for its final review and approval. See 49 CFR
1105.10(d).
[61 FR 29974, June 13, 1996, as amended at 64
FR 53268, Oct. 1, 1999]

Subpart E—Exempt Transactions
Under 49 U.S.C. 10902 for
Class III Rail Carriers
SOURCE: 61 FR 32355, June 24, 1996, unless
otherwise noted.

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§ 1150.41 Scope of exemption.
Except as indicated in paragraphs (a)
through (d) of this section, this exemption applies to acquisitions or operations by Class III rail carriers under
section 10902. This exemption also includes:
(a) Acquisition by a Class III rail carrier of rail property that would be operated by a third party;
(b) Operation by a Class III carrier of
rail property acquired by a third party;
(c) A change in operators on such a
line; and
(d) Acquisition of incidental trackage
rights. Incidental trackage rights include the grant of trackage rights by
the seller, or the acquisition of trackage rights to operate over the line of a
third party, that occurs at the time of
the purchase.
§ 1150.42 Procedures
and
relevant
dates for small line acquisitions.
(a) This exemption applies to the acquisition of rail lines with projected
annual revenues which, together with
the acquiring carrier’s projected annual revenue, do not exceed the annual
revenue of a Class III railroad. To qualify for this exemption, the Class III rail
carrier applicant must file a verified
notice providing details about the
transaction, and a brief caption summary, conforming to the format in
§ 1150.44, for publication in the FEDERAL
REGISTER.

(b) The exemption will be effective 30
days after the notice is filed. The
Board, through the Director of the Office of Proceedings, will publish a notice in the FEDERAL REGISTER within 16
days of the filing. A change in operators must follow the provisions at
§ 1150.44, and notice must be given to
shippers.
(c) If the notice contains false or misleading information, the exemption is
void ab initio. A petition to revoke
under 49 U.S.C. 10502(d) does not automatically stay the exemption. Stay petitions must be filed at least 7 days before the exemption becomes effective.
(d) Applicant must preserve intact all
sites and structures more than 50 years
old until compliance with the requirements of section 106 of the National
Historic Preservation Act, 16 U.S.C.
470f, is achieved.
(e) If the projected annual revenue of
the rail lines to be acquired or operated, together with the acquiring carrier’s projected annual revenue, exceeds $5 million, the applicant must, at
least 60 days before the exemption becomes effective, post a notice of applicant’s intent to undertake the proposed transaction at the workplace of
the employees on the affected line(s)
and serve a copy of the notice on the
national offices of the labor unions
with employees on the affected line(s),
setting forth the types and numbers of
jobs expected to be available, the terms
of employment and principles of employee selection, and the lines that are
to be transferred, and certify to the
Board that it has done so.
[61 FR 32355, June 24, 1996, as amended at 62
FR 47584, Sept. 10, 1997; 71 FR 62213, Oct. 24,
2006; 81 FR 8855, Feb. 23, 2016]

§ 1150.43 Information to be contained
in notice for small line acquisitions.
(a) The full name and address of the
Class III rail carrier applicant;
(b) The name, address, and telephone
number of the representative of the applicant who should receive correspondence;
(c) A statement that an agreement
has been reached or details about when
an agreement will be reached;
(d) The operator of the property;
(e) A brief summary of the proposed
transaction, including:

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Surface Transportation Board

§ 1150.44

(1) The name and address of the railroad transferring the subject property
to the Class III rail carrier applicant;
(2) The proposed time schedule for
consummation of the transaction;
(3) The mileposts of the subject property, including any branch lines; and
(4) The total route miles being acquired;
(f) A map that clearly indicates the
area to be served, including origins,
termini, stations, cities, counties, and
states; and
(g) A certificate that applicant’s projected revenues as a result of the transaction will not result in the creation of
a Class II or Class I rail carrier so as to
require processing under § 1150.45.
(h) Interchange Commitments. (1) The
filing party must certify whether or
not a proposed acquisition or operation
of a rail line involves a provision or
agreement that may limit future interchange with a third-party connecting
carrier, whether by outright prohibition, per-car penalty, adjustment in
the purchase price or rental, positive
economic inducement, or other means
(‘‘interchange commitment’’). If such a
provision exists, the following additional information must be provided
(the
information
in
paragraphs
(h)(1)(ii), (iv), (vii) of this section may
be filed with the Board under 49 CFR
1104.14(a) and will be kept confidential
without need for the filing of an accompanying motion for a protective
order under 49 CFR 1104.14(b)):
(i) The existence of that provision or
agreement and identification of the affected interchange points; and
(ii) A confidential, complete version
of the document(s) containing or addressing that provision or agreement;
(iii) A list of shippers that currently
use or have used the line in question
within the last two years;
(iv) The aggregate number of carloads those shippers specified in paragraph (h)(1)(iii) of this section originated or terminated (confidential);
(v) A certification that the filing
party has provided notice of the proposed transaction and interchange
commitment to the shippers identified
in paragraph (h)(1)(iii) of this section;
(vi) A list of third party railroads
that could physically interchange with

the line sought to be acquired or
leased;
(vii) An estimate of the difference between the sale or lease price with and
without the interchange commitment
(confidential);
(viii) A change in the case caption so
that the existence of an interchange
commitment is apparent from the case
title.
(2) To obtain information about an
interchange commitment for use in a
proceeding before the Board, a shipper
or other affected party may be granted
access to the confidential documents
filed pursuant to paragraph (h)(1) of
this section by filing, and serving upon
the petitioner, a ‘‘Motion for Access to
Confidential Documents,’’ containing:
(i) An explanation of the party’s need
for the information; and
(ii) An appropriate draft protective
order
and
confidentiality
undertaking(s) that will ensure that the documents are kept confidential.
(3) Deadlines. (i) Replies to a Motion
for Access are due within 5 days after
the motion is filed.
(ii) The Board will rule on a Motion
for Access within 30 days after the motion is filed.
(iii) Parties must produce the relevant documents within 5 days of receipt of a Board approved, signed confidentiality agreement.
[61 FR 32355, June 24, 1996, as amended at 73
FR 31035, May 30, 2008; 78 FR 54591, Sept. 5,
2013]

§ 1150.44

Caption summary.

The caption summary must be in the
following form. The information symbolized by numbers is identified in the
key as follows:
SURFACE TRANSPORTATION BOARD
Notice of Exemption
STB FINANCE DOCKET NO.
(1)—EXEMPTION (2)–(3)
(1) Has filed a notice of exemption to
(2) (3)’s line between (4). Comments
must be filed with the Board and
served on (5). (6). Key to symbols:
(1) Name of carrier acquiring or operating the line.

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§ 1150.45

49 CFR Ch. X (10–1–16 Edition)

(2) The type of transaction, e.g., to acquire or operate.
(3) The transferor.
(4) Describe the line.
(5) Petitioner’s representative, address,
and telephone number.
(6) Cross reference to other class exemptions being used.
The notice is filed under 49 CFR
1150.41. If the notice contains false or
misleading information, the exemption
is void ab initio. The filing of a petition
to revoke will not automatically stay
the transaction.

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[61 FR 32355, June 24, 1996; 61 FR 36965, July
15, 1996]

§ 1150.45 Procedures
and
relevant
dates—transactions under section
10902 that involve creation of Class
I or Class II rail carriers.
(a) To qualify for this exemption, applicant must serve a notice of intent to
file a notice of exemption no later than
14 days before the notice of exemption
is filed with the Board, and applicant
must comply with the notice requirement of § 1150.42(e).
(b) The notice of intent must contain
all the information required in § 1150.43
plus:
(1) A general statement of service intentions; and
(2) A general statement of labor impacts.
(c) The notice of intent must be
served on:
(1) The Governor of each state in
which track is to be sold;
(2) The state(s) Department of Transportation or equivalent agency;
(3) The national offices of the labor
unions with employees on the affected
line(s); and
(4) Shippers representing at least 50
percent of the volume of local traffic
and traffic originating or terminating
on the line(s) in the most recent 12
months for which data are available
(beginning with the largest shipper and
working down).
(d) Applicant must also file a verified
notice of exemption conforming to the
requirements of paragraph (b) of this
section and of § 1150.44, and certify
compliance with paragraphs (a), (b),
and (c) of this section, attaching a copy
of the notice of intent. In addition to

the written submission, the notice
must be submitted on a 3.5-inch diskette formatted for WordPerfect 5.1.
(e) The exemption will be effective 45
days after the notice is filed. The
Board, through the Director of the Office of Proceedings, will publish a notice in the FEDERAL REGISTER within 16
days of the filing.
(f) If the notice contains false or misleading information, the exemption is
void ab initio. A petition to revoke
under 49 U.S.C. 10502(d) does not automatically stay the transaction. Stay
petitions must be filed at least 14 days
before the exemption becomes effective. Replies will be due 7 days thereafter. To be considered, stay petitions
must be timely served on the applicant.
(g) Applicant must preserve intact all
sites and structures more than 50 years
old until compliance with the requirements of section 106 of the National
Historic Preservation Act, 16 U.S.C.
470f, is achieved.
[61 FR 32355, June 24, 1996, as amended at 62
FR 47584, Sept. 10, 1997; 71 FR 62213, Oct. 24,
2006]

PART 1151—FEEDER RAILROAD
DEVELOPMENT PROGRAM
Sec.
1151.1
1151.2
1151.3
1151.4

Scope.
Procedures.
Contents of application.
Board determination.

AUTHORITY: 49 U.S.C. 10907.
SOURCE: 48 FR 9654, Mar. 8, 1983, unless otherwise noted.

§ 1151.1

Scope.

This part governs applications filed
under 49 U.S.C. 10907. The Board can require the sale of a rail line to a financially responsible person. A rail line is
eligible for a forced sale if it appears in
category 1 or 2 of the owning railroad’s
system diagram map (but the railroad
has not filed an application to abandon
the line), or the public convenience and
necessity, as defined in 49 U.S.C.
10907(c)(1), permit or require the sale of
the line.
[48 FR 9654, Mar. 8, 1983, as amended at 56 FR
37861, Aug. 9, 1991; 64 FR 53268, Oct. 1, 1999]

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