[Federal Register Volume 63, Number 99 (Friday, May 22, 1998)]
[Rules and Regulations]
[Pages 28287-28291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13592]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1152 and 1155
[STB Ex Parte No. 566]
Rail Service Continuation Subsidy Standards
AGENCY: Surface Transportation Board, DOT.
ACTION: Final rule.
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SUMMARY: The Surface Transportation Board (Board) is removing from the
Code of Federal Regulations rules concerning standards for determining
subsidies for the continuation of rail service on rail properties not
transferred to Consolidated Rail Corporation (Conrail) under the Final
System Plan pursuant to the Regional Rail Reorganization Act of 1973.
It is also amending the regulations concerning offers of financial
assistance to provide rules for the purchase or subsidization of rail
lines that have been continuously subsidized since the inception of the
Final System Plan.
EFFECTIVE DATE: June 21, 1998.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 565-1600. [TDD for
the hearing impaired: (202) 565-1695.]
SUPPLEMENTARY INFORMATION: In a notice of proposed rulemaking (NPR)
served and published in the Federal Register on August 8, 1997 (62 FR
42734), the Board proposed to remove the regulations at 49 CFR part
1155 that concern subsidy standards for certain rail lines of railroads
in reorganization not included in the Final System Plan, described
infra. The NPR noted that these regulations are based, at least
partially, on statutes that are still in effect. 45 U.S.C. 744 (c) and
(d). Under the ICC Termination Act of 1995, Public Law 104-88, 109
Stat. 803 (ICCTA),\1\ however, the Rail Services Planning Office
(RSPO), the statutory body that developed the regulations, has been
abolished. See repealed 49 U.S.C. 10361-64. Moreover, the Board has in
place analogous offer of financial assistance (OFA) regulations
providing national subsidy standards. 49 CFR 1152.27. Finally, the NPR
stated that the regional subsidy regime at 45 U.S.C. 744, which applies
to ``rail service on rail properties of a railroad in reorganization,''
may be outdated and may apply only to a limited number of situations.
Accordingly, we instituted this proceeding to determine whether these
regulations may be eliminated in light of the national OFA standards,
whether portions of the part 1155 regulations could be transferred to
the national standards, or whether they have a continuing vitality and
should be retained.
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\1\ Effective January 1, 1996, the ICCTA abolished the
Interstate Commerce Commission and established the Board within the
Department of Transportation. Section 204(a) of the ICCTA provides
that ``[t]he Board shall promptly rescind all regulations
established by the [Interstate Commerce Commission] that are based
on provisions of law repealed and not substantively reenacted by
this Act.''
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After considering the record, we will eliminate the part 1155 rules
and modify the national OFA rules at 1152.27. Because the part 1155
rules have only limited applicability, it is unnecessary to maintain
these detailed regulations. However, to provide an opportunity for rail
service continuation and to deal with abandonments of lines that are
still being subsidized, we are modifying our national OFA regulations
at 49 CFR 1152.27 to require that the line owner give notice of the
abandonment or discontinuance to enable interested persons to purchase
or subsidize the line.
Background
Our NPR gave a detailed background for the part 1155 regulations
and will be repeated only as necessary. The part 1155 rules were based
on the Regional Rail Reorganization Act of 1973, Public Law 93-236, 87
Stat. 985, 45 U.S.C. 701 et seq. (3R Act), as amended by the Railroad
Revitalization and Regulatory Reform Act of 1976 (4R Act), Public Law
94-210, 90 Stat. 127. In response to the bankruptcy of the Penn Central
Transportation Company and seven other major railroads in the Northeast
and Midwest,\2\ the 3R Act provided for the development and ultimate
approval by Congress of a Final System Plan (Plan) for the redesign of
rail services in
[[Page 28288]]
the region. Lines that could not be operated profitably and were not
considered essential to the rail transportation system would not be
included in the Plan. The 3R Act's Plan created Conrail as a for-profit
corporation to reorganize the bankrupt rail services in the region.
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\2\ The Lehigh Valley Railroad Company, the Central Railroad of
New Jersey, the Ann Arbor Railroad Company, the Lehigh and Hudson
Valley Railroad Company, the Boston and Maine Corporation, the Erie
Lackawanna Railway Company, and the Reading Railroad.
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Section 304 of the 3R Act permitted the summary discontinuance of
service over those lines not included in the Plan without Interstate
Commerce Commission (ICC or Commission) approval if 60 days' notice was
given and certain parties were notified. Beginning 120 days after such
discontinuance, the summary abandonment of a line was allowed if 30
days' notice was given and the parties were notified. The 3R Act, in
effect, authorized the discontinuance and abandonment of the lines not
included in the Plan; ICC approval was not needed.\3\ However, section
304(c)(2) of the 3R Act (codified at 45 U.S.C. 744(c)(2)(A)) stated
that an abandonment or discontinuance could not be carried out if a
shipper, or public authority, or any responsible person offered a rail
service continuation subsidy.\4\ The 4R Act amended the 3R Act by
adding a new section 45 U.S.C. 744(d) which specified that a
``designated operator'' would be the rail carrier conducting operations
when a subsidizer guaranteed payment.\5\ Although not needing ICC
authority to operate or abandon, the designated operators were common
carriers.\6\
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\3\ See Common Carrier Status of States, State Agencies and
Instrumentalities, and Political Subdivisions 49 CFR 1120A, Finance
Docket No. 28990F (ICC served July 16, 1981) at 9-10 (footnote
omitted): ``A rail line which was approved for abandonment under the
Final System Plan * * * but over which operations were continued by
a [designated operator], comes within the meaning of abandoned or
authorized for abandonment * * *.''
\4\ This subsidy ``covers the difference between the revenue
attributable to such rail properties and the avoidable costs of
providing service on such properties plus a reasonable return on the
value of such rail properties * * *.''
\5\ The subsidy payment was now defined at section 744(d) as
``the difference between the revenue attributable to such properties
and the avoidable costs of providing service on such rail
properties, together with a reasonable management fee as determined
by [RSPO].'' (Emphasis supplied.)
\6\ See Application Proc.-Construct, Acq. Or Oper. R. Lines, 365
I.C.C. 516, 523 (1982) and Exemption of Certain Designated Operators
from Section 11343, 361 I.C.C. 379 (1979), aff'd in part and
remanded in part sub nom. McGinness v. ICC, 662 F.2d 853 (D.C. Cir.
1981). See also 49 CFR 1150.16: ``Although the designated operator
will not be required to seek and obtain authority from the Board
either to commence or terminate operations, the designated operator
is a common carrier by railroad subject to all other provisions of
49 U.S.C. Subtitle IV.''
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The use of the subsidy is limited to rail service and rail
properties of a railroad in reorganization \7\ in the region \8\ that
are not included in the Plan. 45 U.S.C. 744(a). Moreover, the subsidy
must be made within 2 years of the effective date of the Plan \9\ or
within ``2 years after the date on which the final rail service
continuation payment is received, whichever is later * * *.'' 45 U.S.C.
744(c)(1).
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\7\ A ``railroad in reorganization'' is defined at 45 U.S.C.
702(16) as a railroad which is subject to a bankruptcy proceeding
and which has not been determined by a court to be reorganizable or
not subject to reorganization pursuant to this chapter as prescribed
in section 717(b) of this title. A `bankruptcy proceeding' includes
a proceeding pursuant to section 77 of the Bankruptcy Act and an
equity receivership or equivalent proceeding * * *.''
\8\ ``Region'' is defined at 45 U.S.C. 702(17) as ``the States
of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode
Island, New York, New Jersey, Pennsylvania, Delaware, Maryland,
Virginia, West Virginia, Ohio, Indiana, Michigan, and Illinois; the
District of Columbia; and those portions of contiguous States in
which are located rail properties owned or operated by railroads
doing business in the aforementioned jurisdictions (as determined by
[ICC] order) * * *.''
\9\ The Plan was submitted to Congress on July 26, 1975. It was
approved when neither the House of Representatives nor the Senate
objected to it. The Plan was formally approved in section 601(e) of
the 4R Act.
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The 3R Act, as amended by the 4R Act, also created RSPO \10\ which
was authorized to issue standards for defining the subsidy-related
terms ``revenue attributable to rail properties,'' ``avoidable costs of
providing service,'' ``a reasonable return on the value,'' and
``reasonable management fee'' found in section 304. Section
205(d)(6).\11\ Subsequently, the ICC issued regulations that are now
codified at 49 CFR 1155. The regulations define the terms noted above
(revenue attributable, avoidable costs, return on value, reasonable
management fee) for determining the subsidy payment for the
continuation of train service over lines not included in the Plan. The
regulations are largely self-executing with little role provided for
the ICC.\12\
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\10\ RSPO was established as ``an office in the Interstate
Commerce Commission.'' Former 49 U.S.C. 10361. In resolving the
issue of whether final orders or regulations of RSPO were to be
considered orders or regulations of the ICC, the court held that
``[a]lthough Congress gave to the RSPO final administrative
responsibility for certain determinations, we conclude that the RSPO
is sufficiently part of the ICC so that its orders are to be
considered orders of the ICC for purposes of the Hobbs Act.''
Southeastern Pennsylvania Transp. Auth. v. I.C.C., 644 F.2d 238,
240, n.3 (3d Cir. 1981).
\11\ The language of section 205 pertaining to RSPO was
eventually codified at 49 U.S.C. 10361-64.
\12\ However, under 49 CFR 1155.3(a), a carrier giving notice of
intent to discontinue service shall submit an ``Estimate of Subsidy
Payment'' to, inter alia, RSPO. Under 49 CFR 1155.4(c), a party
desiring an interpretation of the standards can file a petition with
RSPO. Under Sec. 1155.9, if the parties cannot agree on certain
issues, the matter could be arbitrated. The ICC was not directly
involved in reviewing disputes.
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The 4R Act also instituted the national OFA procedures. It allowed
an abandonment to be postponed for up to 6 months if a financially
responsible person offered to purchase or subsidize the line. Section
802. (This provision was originally codified at 49 U.S.C. 1a(6)(a) and
subsequently recodified without substantive change at former 49 U.S.C.
10905.) In essence, the regional subsidy provision of 45 U.S.C. 744 was
expanded to apply to all carriers. In November 1976, the ICC
promulgated regulations that were predicated on the part 1155
regulations, although, due to factual and statutory differences, there
were certain variations. The OFA rules are now found at 49 CFR
1152.27.\13\
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\13\ The Staggers Rail Act of 1980, Public Law 96-448, 94 Stat.
1895, further revised former 49 U.S.C. 10905. Section 402. The 6-
month negotiating period was shortened and, when a carrier and
shipper could not agree to terms, the ICC upon request would set,
and the carrier was bound by, the purchase or subsidy price.
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The ICCTA was the latest legislative action applicable to these
regulations. There was no change to 45 U.S.C. 744(c). The changes to
section 744(d) do not affect part 1155. The RSPO statutes--49 U.S.C.
10361-64--were repealed. Former 49 U.S.C. 10905 was modified and is now
found at 49 U.S.C. 10904, but the changes there do not affect our
analysis.
In our NPR, we stated that we were reexamining part 1155 because of
the changes made by the ICCTA, the availability of our national subsidy
standards, and the likelihood that few situations fall within the
regional subsidy framework. Comments were filed by the Association of
American Railroads (AAR) and the Delaware Valley Railway Company, Inc.
(DV).
Comments of the Parties
The AAR, in its brief comment, supports the removal of part 1155,
arguing that rules ``are of marginal, if any, utility * * *.''
DV is a Class III short line railroad.\14\ It has operated over a
rail line owned by a subsidiary of the Reading Company, the corporate
successor of the bankrupt Reading Railroad Company. DV expresses its
belief that the regional standards ``substantially duplicate the
National OFA standards,'' and supports removal of the part 1155
regional regulations because of the availability of the national OFA
standards. It claims that, to keep separate regulations applicable to
only a few lines and
[[Page 28289]]
another standard for all other lines, would cause ``unnecessary,
wasteful, potentially inconsistent, and duplicative regulation.'' It
seeks to amend the national OFA standards to handle the few situations
that would still fall under the regional standards.
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\14\ DV is involved in a pending proceeding in which relief is
sought, inter alia, under 49 CFR part 1155. RailAmerica, Inc., and
the Delaware Valley Railway Company, Petition to Set Subsidy Terms
Under 45 U.S.C. 744(c) and 49 CFR Part 1155, STB Finance Docket No.
33285.
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In response to the question of whether there are any ``railroads in
reorganization,'' DV claims that the Reading Company, while
``concededly not a railroad in reorganization under that [3R Act]
statute, is a successor to a railroad in reorganization and should be
subject to the provisions of 49 CFR part 1155 on that basis.'' \15\ It
argues that Congress did not intend that carriers could avoid
regulatory oversight by reorganizing themselves, and that the Board
should focus on the rail property and rail service at issue and not the
status of the owning entity.\16\
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\15\ DV claims it involves ``one of the few instances, if not
the last instance, of rail service provided over railroad property
owned by the successor to a bankrupt railroad not transferred to
Conrail or another rail carrier under the [Plan].'' [Footnote
omitted.]
\16\ These concerns are moot, because we are finding that the
abandonment and discontinuance of lines still being subsidized will
fall under the special national OFA standards at 49 CFR 1152.27(n).
Formerly subsidized lines that are being abandoned or discontinued
will come under the regular OFA rules at section 1152.27.
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Discussion and Conclusions
Because of the changes in the ICCTA and the fact that there appear
to be few lines being operated under the regional subsidy regime, we
will remove the more than 30 pages of regulations at part 1155. While
technically there may no longer be any 3R Act railroads in
reorganization, there appear to be a few lines that have been
continuously subsidized under 49 U.S.C. 744, and these lines require
special procedures. Therefore, we are issuing regulations at 49 CFR
1152.27(n) that would provide for summary abandonment and
discontinuance on notice by the carrier owning the line, and that would
allow for the opportunity to subsidize and purchase lines under the
national OFA rules.
As noted, supra, these lines were effectively approved for
abandonment and discontinuance under section 744, and, for those lines
that have been continually subsidized, we do not believe that the
approval to abandon or discontinue has been removed. Accordingly, Board
authorization is not needed for cessation of service. Lines of railroad
in the Northeast that were not included in the Plan and are no longer
being subsidized under section 744 but continue to be operated are
common carrier lines subject to the regular abandonment and national
OFA regime of the Interstate Commerce Act.
The commenters generally support the removal of part 1155 (with DV
also seeking a concomitant modification of the national OFA rules).
Moreover, the record indicates that the regulations appear to be
unnecessary. They were determined and issued by an office (RSPO) that
has been abolished by the ICCTA.\17\ Under former 49 U.S.C.
10362(b)(7), RSPO was to ``maintain, and from time to time revise and
republish * * * standards for determining the revenue attributable to
the rail properties, the avoidable costs of providing transportation, a
reasonable return on value, and a reasonable management fee * * *.'' As
noted, this section, as well as RSPO, has been abolished. There are,
however, parallel sections in force--45 U.S.C. 744(c) and (d)--that
pertain to subsidies for the continuation of rail freight service. Even
here, however, support for the subsidy regulations is uncertain,
because section 744(d)(1) and (d)(2) refer to laws repealed by the
ICCTA.\18\
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\17\ We note that the regulations assign continuing
responsibilities to the abolished office (issuing interpretations,
receiving estimates of subsidy payments).
\18\ Under 45 U.S.C. 744(d)(1), the defunct RSPO is to determine
the terms a subsidizer is to pay a designated operator. Section
744(d)(1) states that the terms ``revenue attributable,''
``avoidable costs,'' and ``reasonable management fee'' are to be
determined by ``the Office,'' defined at 45 U.S.C. 702(12) as RSPO.
Moreover, under 45 U.S.C. 744(d)(2), the term ``reasonable
return on value'' is to be developed according to the standards of
205(d)(6) of the 3R Act, which, as noted, was codified at the now
repealed RSPO statute, 49 U.S.C. 10362.
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Even if the ICCTA does not mandate the removal of the regulations,
there appears to be little need for the subsidy rules, because of the
availability of the national standards and because the circumstances
and conditions that the regional standards were to address have largely
expired. Under 45 U.S.C. 744(a)(1) and (c)(1), the regional subsidy
program applies to a ``rail service on rail properties of a railroad in
reorganization'' and is not available ``after 2 years from the
effective date of the [Plan] or more than two years after the last rail
service continuation payment is received, whichever is later * * *.''
There may not be any railroads in reorganization as defined by the
statute. In Consolidated Rail Corp. v. Reading Co., 654 F. Supp. 1318,
1323 (Sp. Ct. RRRA 1987) (Reading), a case arose that involved whether
personal injury claims could be brought against Conrail and National
Railroad Passenger Corporation pursuant to section 709(b) of the 3R Act
(45 U.S.C. 797h(b)). That section provided for assumption by Conrail of
personal injury claims against ``a railroad in reorganization.'' The
court looked at the definition of railroad in reorganization (45 U.S.C.
702(16)), supra, and stated that certain predecessor railroads of
Conrail were not railroads in reorganization because they were no
longer ``subject to a bankruptcy proceeding.'' These carriers had
undergone reorganization, final consummation orders had been entered,
and the carriers had been discharged in bankruptcy.19 The
court found that ``[w]here, as is the case here, the definition of a
statutory term is clear and unequivocal it is controlling.'' Id.
(citations omitted.)
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\19\ The court noted (Id. at 1323, n.2) the following
consummation dates: Erie Lackawanna, Inc. (November 30, 1982);
Reading Co. (December 31, 1980); Penn Central Transportation Co.
(October 24, 1978); Lehigh Valley Railroad Co. (September 1, 1982);
and the Central of New Jersey (September 14, 1979). We note that
despite this ruling, section 797h(b) has not been removed.
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As a consequence of Reading, there will, at a minimum, be no new
lines that can be added to the regional subsidy regime. This does not,
however, end our inquiry. There appears to be at least one line that
has been subsidized since the enactment of the regional subsidy
program. Such lines have already been approved for abandonment and
discontinuance. Moreover, it can be argued that these lines still fall
within the ambit of section 744. Under these circumstances, we believe
that the best approach will be to eliminate part 1155, but modify the
OFA regulations for situations involving lines that are still being
subsidized under the regional standards.
The notice periods will follow the basic regime of section 744.
Summary discontinuance of service without Board approval may be
effected if 60 days' notice is given by the owner of the line and
certain parties are notified.20 Beginning 120 days
thereafter, the summary abandonment of a line is allowed if 30 days'
notice is given and the parties are notified.
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\20\ Notice shall be to the Board, 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.
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We are requiring the owner of the line, and not the designated
operator, to provide the notice that triggers the OFA process. We are
retaining the provision by which a designated operator may terminate
service in accordance with the terms of its agreement and is only
required to give notice of termination of service to the shippers on
the line. 49 CFR 1150.11. No time period is specified for the notice.
We hope that
[[Page 28290]]
the designated operator and line owner will coordinate the giving of
notice so that there will be no break in service. We recognize,
however, that under our present ``designated operator'' rules, it is
possible that the operator could terminate service before the notice
period has expired. This eventuality is a natural outcome of such
subsidy regimes where service is tied specifically to an agreement.
Nevertheless, given the specified time periods and the ability of the
Board to set terms and conditions under the national standards, we
expect that any breaks in service would be of short duration.
The New OFA Rules
We are modifying 49 CFR 1152.27 by adding a new paragraph (n).
Abandonment or discontinuance notice must be given, affording
interested persons an opportunity to purchase or subsidize the line
under our national OFA standards.21 The applicable time
limits will run from the date of the notice as the Board does not
approve the cessation of service for these lines.
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\21\ Under the statute, the standards for subsidizing lines are
the same for both the national OFA (49 U.S.C. 10904(f)(1)(C)) and
regional subsidy (45 U.S.C. 744(c)(2)): the difference between the
revenue attributable to the line and the avoidable costs of
providing service plus a reasonable return on the value of the line.
The regional standards also provide that designated operators are to
receive a reasonable management fee discussed infra. Unlike section
744, however, the national OFA statute provides that the standard
for purchasing a line is its fair market value. This standard will
be used in processing offers under section 1152.27(n).
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We will generally apply the national OFA standards applicable to
class exemptions found at 49 CFR 1152.27 to these summary abandonments
and discontinuances.22 For example, a party may discontinue
23 or abandon service on a line of railroad formerly in
reorganization that was not included in the Plan on 60 days' notice
and, beginning 120 days after discontinuance, on 30 days' notice,
respectively. Notice of summary abandonment or discontinuance will be
published by the Board in the Federal Register within 20 days of
filing. 49 CFR 1152.27(b)(2)(ii). 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 section 1152.27. An offer must be
filed within 30 days of the Federal Register publication. Paragraphs
(b)(2)(ii) and (c)(2)(ii)(B) of section 1152.27.
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\22\ The one significant difference is that we are incorporating
into new section 1152.27(n)(2) the reasonable management fee
standard for designated operators (4\1/2\ %) from section 1155.7(o).
\23\ As noted, the owner of the lines gives the notice that
triggers the OFA process for discontinuances. The designated
operator follows the notice requirements of 49 CFR 1150.11.
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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) 24 within 35 days of the
Federal Register publication. Paragraph (e)(2) of Sec. 1152.27. 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 Sec. 1152.27.
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\24\ We cannot postpone the effective date of the discontinuance
because, under our rules, designated operators need only comply with
the notice requirements of 49 CFR 1150.11, and, in instances of
discontinuance, the line owner is not obligated to operate the line.
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Lines of the former railroads in reorganization under the 3R Act
are under Board jurisdiction insofar as the institution of new rail
service is involved. See Delaware and Hudson Ry. Co.--Modified Cert. Of
PC&N, 363 I.C.C. 808 (1981) (holding that where a line had formally
been operated under subsidy and was later abandoned, the carrier was
required to file an application under former 49 U.S.C. 10901 to operate
the line). Thus, in those instances, any future abandonment or
discontinuance would be subject to the abandonment and OFA procedures
of 49 U.S.C. 10903-04.
The Board concludes that the removal of the rule and the addition
of the new rule will not have a significant effect on a substantial
number of small entities. It appears that the eliminated, as well as
the new, rule does not apply to many situations. In those situations
where the rule changes are applicable, they are consistent with the new
statutory framework. Moreover, there should not be any significant
change from current practice under the new rules.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects
49 CFR Part 1152
Administrative practice and procedure, Conservation, Environmental
protection, National forests, National parks, National trails system,
Public land-grants, Public lands-rights-of-way, Railroads, Recreation
and recreation areas, Reporting and recordkeeping requirements.
49 CFR Part 1155
Railroads, Uniform System of Accounts.
Decided: May 13, 1998.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble and under the authority
of 49 U.S.C. 721(a), title 49, chapter X of the Code of Federal
Regulations is amended as set forth below:
PART 1152--ABANDONMENT AND DISCONTINUANCE OF RAIL LINES AND RAIL
TRANSPORTATION UNDER 49 U.S.C. 10903
1. The authority citation for part 1152 is revised to read as
follows:
Authority: 11 U.S.C. 1170; 16 U.S.C. 1247(d) and 1248; 45 U.S.C.
744; and 49 U.S.C. 701 note (1995) (section 204 of the ICC
Termination Act of 1995), 721(a), 10502, 10903-10905, and 11161.
2. In Sec. 1152.27, paragraph (n) is added to read as follows:
Sec. 1152.27 Financial assistance procedures.
* * * * *
(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
[[Page 28291]]
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.
PART 1155--[REMOVED]
3. Part 1155 is removed.
[FR Doc. 98-13592 Filed 5-21-98; 8:45 am]
BILLING CODE 4915-00-P
