Notices. Denial of a petition for a defect investigation

5,061 words·~23 min read·/register/2006/01/03/05-24626

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration Denial of Motor Vehicle Defect Petition AGENCY: National Highway Traffic Safety Administration, (NHTSA), Department of Transportation. ACTION: Denial of a petition for a defect investigation. SUMMARY: This notice sets forth the reasons for the denial of a petition (Defect Petition 05-002) submitted by Mr. Jordan Ziprin to NHTSA's Office of Defects Investigation (ODI), by letter dated July 8, 2005, under 49 U.S.C. 30162, requesting that the agency commence a proceeding to determine the existence of a defect related to motor vehicle safety within the electronic throttle control

(ETC)system in model year

(MY)2002 to 2005 Toyota and Lexus vehicles, or to reopen Preliminary Evaluation

(PE)04-021 whose subject was the ETC system on MY 2002 to 2003 Toyota Camry, Solara and Lexus ES models. In a letter dated August 18, 2005, Mr. Ziprin amended the petition to include additional allegations of interrelated brake and acceleration problems that allegedly result in inappropriate and uncontrollable vehicle accelerations in ETC equipped MY 2002 to 2005 Toyota and Lexus vehicles. After reviewing the material cited by the petitioner and other information, NHTSA has concluded that further expenditure of the agency's investigative resources on the issues raised by the petition is not warranted. The agency accordingly has denied the petition. FOR FURTHER INFORMATION CONTACT: Mr. Scott Yon, Vehicle Control Division, Office of Defects Investigation, NHTSA, 400 7th Street, SW., Washington, DC 20590. Telephone 202-366-0139. SUPPLEMENTARY INFORMATION: The petitioner owns a 2002 Toyota Camry with V6 engine that he purchased new in March 2002. On July 5, 2005, at approximately 8:45 p.m., the petitioner parked his vehicle in the driveway of a home near his residence in Phoenix, Arizona and exited the vehicle. Upon determining that he was at the wrong address, he re-entered the vehicle, started the engine, placed his foot on the brake pedal and shifted the gear selector to reverse. The petitioner states that he was steering clockwise as the vehicle drifted backwards from the driveway under its own power. He alleges that without application of the throttle the vehicle suddenly accelerated backwards at a high rate causing a loss of vehicle control. The vehicle appears to have moved in a circular path and came to rest with the driver's door abutted to a utility box situated on a concrete pad in front of the home adjacent to where the vehicle had been parked. According to the petitioner, he does not recall if he applied, or attempted to apply, the brake pedal during this incident. He stated, however, that he is sure he would not have applied the throttle since no application was necessary for vehicle movement. Although the exact distance and path the vehicle traveled during the incident is unknown, the vehicle damage 1 and incident site evidence suggests the vehicle yawed (rotated about a vertical axis) through a significant angle to reach its final rest position; this is consistent with the petitioner's statement that the vehicle accelerated at a high rate and is an indication that a significant throttle opening occurred. Additionally, the petitioner describes another incident 2 that happened in April 2002, within the first few weeks of his ownership, stating that he did not report the incident at that time because he felt that his unfamiliarity with the vehicle may have caused an error that lead to the incident. ODI visited the location of both incidents and performed an inspection of the petitioner's vehicle on October 5, 2005, as described in the December 15, 2005 memo to file.' 3 . 1 Repair damage for the petitioner's vehicle from this incident was estimated at $3,000. 2 The incident occurred while the petitioner was reversing the vehicle at a gas station local to his residence. 3 The documents are available for public review at ODI's Web site: *http://www-odi.nhtsa.dot.gov* . The petitioner has submitted several letters to ODI 3 that contain further descriptions of his two incidents, discussions of his review of related information including information from ODI's complaint and investigation databases, and lists of Vehicle Owner Questionnaire

(VOQ)numbers (reports) with comments describing his analysis of each. In total, ODI recognizes 1,172 distinct VOQ reports that the petitioner has obtained from ODI's database, reviewed and submitted to the agency. 4 The reports involve MY 2002 to 2005 Toyota products, 5 including 4 Lexus and 15 Toyota models, defining a vehicle population of some 7.1 million vehicles. 6 4 This count does not include reports contained in correspondence received after November 30, 2005. 5 A “product” is defined as a distinct make, model and model year vehicle. 6 Vehicle production was estimated from Early Warning Reporting data submissions. In its analysis of the petitioner's data, ODI noted that many of the cited reports involved complaints related solely to the brake system. Accordingly, ODI performed an analysis of the ODI complaint database for all MY 2002 to 2005 light vehicles for reports coded to the brake system component category. With the exception of two products, 7 the analysis showed that the vehicles identified by the petitioner were not over-represented in the complaint database. Accordingly, ODI determined that there was insufficient evidence to support the existence of a brake system-related defect in these vehicles. Additionally, ODI determined that many of the products identified by the petitioner were not manufactured with ETC systems, but were instead built with mechanical throttle control systems (typically cable based). In fact, for the four MYs cited by the petitioner, only the Toyota Camry and Lexus ES models were all manufactured with ETC. For these reasons, ODI restricted its analysis to petitioner reports involving MY 2002 to 2005 Camry, Solara, and ES models (identified henceforth as the subject vehicles) that alleged an abnormal throttle control event. There are approximately 1.9 million subject vehicles in this population. 6 The design and operation of the subject vehicle's ETC system, including the diagnostic and safety control system, is discussed in the closing report for PE04-021 and in information Toyota provided during PE04-021 and this petition. 3 7 The MY 2004 RX330 was the subject of PE05-009 and a service action Toyota subsequently conducted. The MY 2002 Toyota Tundra product prompted a number of brake disc-borne vibration complaints that ODI reviewed but did not find to be sufficient evidence to indicate the existence of a safety related defect. For the total of 1,172 reports to which the petitioner has directed our attention, and after excluding the reports discussed above, ODI identified 432 8 unique subject vehicle VOQ reports involving throttle control concerns originating from ETC equipped vehicles; this appears to be a relatively comprehensive representation of the ODI complaint database regarding this issue on the subject vehicles. Generally speaking, these reports fall into one of three categories;

(1)those that involve engine management system

(EMS)related driveability concerns,

(2)those that involve throttle control related concerns where the brake system was reportedly ineffective, and

(3)those that involve throttle control related concerns where the effectiveness of the brake system was unknown or ambiguous. 8 There were a total of 468 reports, but duplicates (from the same complainant) were eliminated. ODI found that 171 of the 432 reports (40%) involved driveability concerns. These reports describe a condition where the operator intentionally applies the throttle pedal, in expectation that the vehicle will accelerate, and then experiences a delay or hesitation in vehicle response. 9 Complainants allege the delay lasts from 2 to 5 seconds and that during that period the operator further depresses the accelerator; this results in a greater than anticipated vehicle response which is disconcerting to vehicle occupants. 10 Many reports allege that this condition is a safety problem. ODI has interviewed several complainants and found that while they express concern and frustration over the issue they nevertheless continue to operate the vehicle on a daily basis. No crashes, injuries or fatalities have been alleged to result from this condition, despite the large subject vehicle population and years of exposure. These complaints, which relate to delayed throttle response, involve vehicle response to intentional driver commands. Therefore, ODI does not consider this concern to be related to the allegations raised by the petitioner and these reports do not provide support for the investigation requested by the petitioner. 9 This is contrary to the other throttle control categories ODI established and to what the petitioner alleges, i.e., that the accelerator opened by itself and the vehicle accelerated without driver input. 10 This issue is the subject of a Toyota technical service bulletin intended to address the driveability condition. Similarly, 93 of the reports (~20%) allege throttle control concerns where the brake was reported by the operator to be ineffective at controlling vehicle movement despite brake application, indicating that, if the reports are assumed to be correct, simultaneous failures of the throttle control and brake systems must have occurred. 11 These incidents, sometimes referred to as “sudden or unintended acceleration” incidents, 12 occurred under various operating conditions and often resulted in a crash with alleged injuries and or fatalities. ODI has interviewed 24 of the complainants 13 and learned that most vehicles were subsequently inspected by dealership, manufacturer and or independent technical personnel who were unable to discover any evidence of a failed or malfunctioning vehicle component or system or any other vehicle condition that could have contributed to the incident. 14 Additionally, for reports where an interview was not conducted, many state that no vehicle-based cause was ever found in post-incident vehicle inspections. For these 93 reports, the complaint rate of 4.9/100k vehicles is similar to that of the general vehicle population and is unremarkable. 15 The complaint trend is also constant and neither increasing or decreasing. Accordingly, because these reports do not appear to indicate a distinct safety defect that would warrant investigation and are factually distinguishable from the specific facts of petitioner's case, the reports do not provide support for the investigation requested by the petitioner. 11 ODI notes that reports of this nature are not unique to the subject vehicles or to Toyota products. 12 Sudden or unintended acceleration events have been the subject of many public and private studies which generally conclude that, absent any evidence to support a vehicle-based failure, the unavoidable explanation is that driver error—the inadvertent application of the accelerator rather than the brake—is the cause of the incidents. For further information regarding sudden and unintended acceleration events, see DPs 99-004, 03-003 and 03-007 including the **Federal Register** notices and the notes and references contained therein. 13 A comprehensive driver interview was used to ascertain specific detail about each incident. Based on the results of these interviews, ODI would caution readers of these complaints regarding conclusions based solely on the content of the complaint description. 14 A brake system failure that results in brake loss is highly likely to be easily detectable after it occurs. 15 For example, two throttle control investigations are currently underway. For Engineering Analysis

(EA)05-014 the complaint rate is 230/100k, for EA05-021 the rate is 685/100k. One of the more notable sudden acceleration investigations involved MY 1978—1987 Audi products; the complaint rate in this investigation was ~600/100k. Also, see complaint rates discussed in the **Federal Register** notices associated with Defect Petitions

(DP)03-003 and 03-007. The remaining 168 reports (~40%) are similar to those investigated during PE04-021 and to the situation that petitioner experienced. These reports typically describe incidents where a vehicle equipped with ETC is being maneuvered at slow speed in a close quarter situation, such as pulling into or out of a parking space, at which point the operator alleges that the vehicle accelerates without driver input and crashes. 11,16 The crashes are generally low speed crashes, with minor or no injuries. In the aftermath, operators are unsure of whether the brakes were applied or not, sometimes stating that there was insufficient time to use the brake pedal. The common thread in these reports is that the vehicle accelerated, a crash occurred, and the operator believes an uncommanded acceleration caused it. 16 ODI notes that driver error is one plausible explanation for many of these incidents. Prompted by consumer complaints and DP04-04, PE04-021 investigated the ETC system on MY 2002 and 2003 subject vehicles and involved many of the same VOQ reports identified by the petitioner. ODI opened the investigation to determine if the system could be the cause of complaints alleging the engine speed increased, or failed to decrease, when the accelerator pedal was not depressed. During the course of the investigation, ODI reviewed VOQ and manufacturer reports, inspected two complaint vehicles, reviewed relevant Toyota technical documentation, analyzed Toyota's responses to an information request letter, conducted a limited control pedal assessment and attended a Toyota technical presentation that included the assessment of two demonstration vehicles. The investigation closed in July, 2004, without the identification of a defect trend, and with the agency noting that it would take further action if warranted. With regard to the 168 reports recently identified by the petitioner, ODI has now interviewed 12 110 of these 168 complainants (65%) including 23 of the 29 (~80%) MY 2004 to 2005 complainants. Here again, these interviews revealed that most vehicles were subsequently inspected by dealership, manufacturer and/or independent technical personnel and no malfunction or failure explaining these incidents was identified. Many vehicles involved in these incidents have been placed back in service and have accumulated significant service experience without any recurrence. 17 For these 168 reports, the complaint rate of 8.8/100k vehicles is comparable to rates for similar vehicles and the complaint trend is declining. 18 None of this evidence suggests that a vehicle-based cause may exist. Therefore, the reports have ambiguous significance and do not constitute a basis on which any further investigative action can be initiated. 19 17 This observation does not support the existence of a vehicle-based causal explanation. 18 This is partially due to the effects of publicity surrounding PE04-021. 19 For this reason, these reports will not be reflected in the close resume. In view of the foregoing, it is unlikely that NHTSA would issue an order for the notification and remedy of a safety-related defect as alleged by the petitioner at the conclusion of the requested investigation. Therefore, in view of the need to allocate and prioritize NHTSA's limited resources to best accomplish the agency's safety mission, the petition is denied. This action does not constitute a finding by NHTSA that a safety-related defect does not exist. The agency will take further action if warranted by future circumstances. Authority: 49 U.S.C. 30162(d); delegations of authority at CFR 1.50 and 501.8. Issued on: December 23, 2005. Daniel C. Smith, Associate Administrator for Enforcement. [FR Doc. E5-8151 Filed 12-30-05; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA-2005-20288, Notice 2] Cross Lander USA; Grant of Application for a Temporary Exemption From Federal Motor Vehicle Safety Standard No. 208 AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT. ACTION: Grant of Application for a Temporary Exemption from S4.2 and S14 of Federal Motor Vehicle Safety Standard No. 208. SUMMARY: This notice grants the Cross Lander USA (“Cross Lander”) application for a temporary exemption from the requirements of S4.2 and S14 of Federal Motor Vehicle Safety Standard (FMVSS) No. 208, *Occupant crash protection.* The exemption applies to the Cross Lander 244X vehicle line. In accordance with 49 CFR part 555, the basis for the grant is that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard. DATES: The exemption from S4.2 and S14 of FMVSS No. 208, *Occupant crash protection,* is effective from December 1, 2005 until May 1, 2008. FOR FURTHER INFORMATION CONTACT: George Feygin in the Office of Chief Counsel, NCC-112, (Phone: 202-366-2992; Fax 202-366-3820; E-Mail: *George.Feygin@nhtsa.dot.gov* ). I. Background Cross Lander, a Nevada corporation, owns a Romanian vehicle manufacturer ARO, S.A., which manufactures multipurpose passenger vehicles built for extreme off road conditions. 1 According to the petitioner, this vehicle was formerly used by Romanian military. Cross Lander intends to import and distribute this vehicle, named the Cross Lander 244X (“244X”), in the United States. A detailed description of the 244X is set forth in their petition (Docket No. NHTSA-2005-20288-1). For additional information on the 244X, please go to *http://www.crosslander4x4.com/* . 1 To view the petition and other supporting documents, please go to: *http://dms.dot.gov/search/searchFormSimple.cfm* (Docket No. NHTSA-2005-20288). In preparing the 244X for sale in the United States, Cross Lander anticipated that the Gross Vehicle Weight Rating

(GVWR)of the 244X would exceed 5,500 pounds, which would exclude the vehicles from the air bag requirements specified in S4.2 and S14 of FMVSS No. 208. However, because of an unexpected change in the choice of engine used in the 244X, the GVWR of the 244X is less than 5,500 pounds, and it is thus subject to the requirements in S4.2 and S14. Because a heavier vehicle would not have been subject to the applicable air bag requirements, the petitioner was not prepared to equip the 244X with a suitable air bag system. According to the petitioner, the cost of making the 244X compliant with FMVSS No. 208 on short notice is beyond the company's current capabilities. Thus, Cross Lander requests a three-year exemption in order to develop a compliant automatic restraint system. As described below, the petitioner seeks a temporary exemption because despite its good faith efforts, it cannot bring the 244X into compliance with the applicable air bag requirements without incurring substantial economic hardship. II. Why Compliance Would Cause Substantial Economic Hardship and How Cross Lander Has Tried in Good Faith To Comply With FMVSS No. 208 and the Bumper Standard Because the “advanced” air bag requirements specified in S14 of FMVSS No. 208 become effective September 1, 2006, Cross Lander intends to concentrate all its efforts on developing an “advanced” air bag system. Cross Lander chose Siemens as its air bag supplier. According to the petitioner, equipping the 244X with advanced air bags will require significant time and resources necessary to redesign the vehicle interior and for laboratory testing and sensor calibration. The estimated cost of developing an advanced air bag system is $2 to $3 million. 2 Further, the project would take approximately 24 months and cannot begin until Cross Lander is assured of an immediate source of revenue. That is, because Cross Lander has no current vehicles for sale in the United States, the petitioner states that it is impossible to finance this project without a source of revenue. The petitioner contends that a three-year exemption from the current, as well as the “advanced” air bag requirements would allow it to successfully develop a suitable air bag system. 2 See Siemens Report, Attachment 2 (Docket No. NHTSA-2005-20288-3). The petition and supplements filed by the petitioner indicate that Cross Lander has invested over $3 million into the company. According to the petitioners, the total investment will reach $34,000,000 by the time the 244X will be offered for sale in the U.S. The petitioner states that an immediate exemption is crucial to the survival of Cross Lander because it must begin selling 244X immediately in order to generate a cash flow that can support the company's continued existence. The petitioner's financial statements indicate a net loss of $673,079 for the fiscal year ending 12/31/2002, and a net loss of $523,676 for the fiscal year ending 12/31/2003. The petitioner stated that its 2004 net loss is $5,069,185.00. The petitioner provided the following summary of the financial consequences of failure to obtain a temporary exemption from the requirements of FMVSS No. 208: 2005 2006 2007 Assuming Grant of Petition Net loss of $108,000 Net profit of $14,000,000 Net profit of $30,000,000 Assuming Denial of Petition Net loss of $8,500,000 Net loss of $8,000,000 Net loss of $8,500,000 III. Comments Regarding the Cross Lander Petition. The National Highway Traffic Safety Administration (NHTSA) published a notice of receipt of the application on February 9, 2005, and afforded an opportunity for comment. 3 The agency received two comments from Public Citizen. 4 A short description of the comments follows. 3 See 70 FR 6924. 4 See Docket Nos. NHTSA-2005-20288-7, NHTSA-2005-20288-9. Public Citizen argues that the petitioner has not sufficiently demonstrated financial hardship, and that a grant of exemption would not be in the public interest. First, Public Citizen argues that the financial burdens associated with complying with the air bag requirements are not covered by the “substantial economic hardship” statutory provision. Second, Public Citizen argues that because a financial hardship exemption could affect a large number of vehicles, a grant of the petition would not be in the public interest. Third, Public Citizen argued that the petitioner downplayed the safety benefits associated with air bags. Fourth, Public Citizen expressed concerns that the 244X vehicles would be used primarily for common transportation by the vast majority of buyers, and not off-road, as indicated by the petitioner. IV. The Agency's Findings Cross Lander is not significantly different from small volume manufacturers who have received temporary exemptions in the past on hardship grounds. Although Cross Lander has negotiated with an air bag manufacturer for the design and testing of an air bag system for its vehicle, they contend that completion of the air bag development is not economically viable without additional revenue generated through immediate sales of the 244X in the United States. In evaluating the petitioner's current situation, the agency finds that to require immediate compliance with FMVSS No. 208 would cause the petitioner substantial economic hardship, and could even result in the company going out of business. The agency concludes that the petitioner's application for a temporary exemption demonstrates the requisite financial hardship. The term of this exemption will be limited to less than three years and the agency anticipates that the 244X will be sold in limited quantities. In total, we anticipate that Cross Lander will not sell more than 9,000 vehicles. 5 We anticipate that with the help of revenues derived from U.S. sales, Cross Lander will be able to introduce a fully compliant vehicle by the time this exemption expires. The agency notes that, according to the petitioner, the 244X complies with all other applicable Federal motor vehicle safety standards. 5 *See* NHTSA-2005-20288-11. We note that under 49 CFR 555.9(b) and (c), the petitioner will be required to indicate on the vehicle certification label, and on a separate label affixed to the windshield or the side window, that the 244X does not comply with FMVSS No. 208. In addition to the required labeling, the petitioner agreed to affix additional labeling to each vehicle. This supplemental labeling would read as follows: *Notice* THIS VEHICLE DOES NOT CONTAIN AN AIR BAG AND WAS EXEMPTED FROM FEDERAL MOTOR VEHICLE SAFETY STANDARD 208 REGARDING OCCUPANT PROTECTION WITH AIR BAGS. IT WAS EXEMPTED PURSUANT TO NHTSA EXEMPTION NO * * * *WARNING !!* TO AVOID SERIOUS INJURIES IN ALL TYPES OF CRASHES, ALWAYS WEAR YOUR SAFETY BELTS The supplemental labeling will take the place of air bag warning labels required by FMVSS 208, and will be affixed to the sun visor. 6 6 *See* Docket No. NHTSA-2005-20288-3, pages 9 and 11. Contrary to Public Citizen's comments, we believe that the petitioner has demonstrated financial hardship. As a part of its application, the petitioner submitted detailed financial information. While most of this information has been granted confidential treatment and is not being published in this notice, the agency examined all the information submitted to the agency and concluded that the petitioner has experienced financial hardship as evidenced by net losses in all of the past 3 years. We further note that an exemption from the air bag requirements is consistent with the agency's previous financial hardship exemptions granted to Lotus, Saleen, and Spyker. 7 Finally, we note that the information submitted by the petitioner indicates that sales of their vehicles are unlikely to exceed 9,000 vehicles for the duration of the exemption. 7 We also note that Spyker, like Cross Lander, was a start-up manufacturer without prior U.S. presence. Public Citizen made a variety of arguments against granting this exemption. However, we believe that our decision is consistent with Congressional intent to allow the Secretary to temporarily exempt small volume manufacturers from a given standard when compliance with that standard would cause substantial economic hardship. In consideration of the foregoing, it is hereby found that compliance with the requirements of Paragraphs S4.2 and S14 of Federal Motor Vehicle Safety Standard (FMVSS) No. 208, *Occupant crash protection* would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard. It is further found that the granting of an exemption would be in the public interest. In accordance with 49 U.S.C. 30113(b)(3)(B)(i), Cross Lander is granted NHTSA Temporary Exemption No. EX 05-3, from Paragraphs S4.2 and S14 of Federal Motor Vehicle Safety Standard (FMVSS) No. 208, *Occupant crash protection.* The exemption shall remain in effect until May 1, 2008. Authority: 49 U.S.C. 30113; delegation of authority at 49 CFR 1.50 and 501.8. Issued on: December 23, 2005. Gregory Walter, Senior Associate Administrator for Policy and Operations. [FR Doc. E5-8152 Filed 12-30-05; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-290 (Sub-No. 237X)] Norfolk Southern Railway Company—Abandonment Exemption—in Baltimore County, MD On December 14, 2005, Norfolk Southern Railway Company

(NSR)filed with the Surface Transportation Board a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903-05 to abandon its freight operating rights and rail freight service over 12.8 miles of a line of railroad between milepost UU-1.0 at Baltimore, MD, and milepost UU-12.8 at Cockeysville, MD. 1 The line traverses U.S. Postal Service Zip Codes 21030, 21065, and 21201 and includes the stations of Lutherville, Timonium, Texas, and Cockeysville. NSR states that it will continue to provide rail service to the station of Baltimore. 1 Pursuant to the Conrail Transaction Agreement approved by the Board in 3 S.T.B. 196 (1998), certain Consolidated Rail Corporation (Conrail) assets, including Conrail's interest in the line, were allocated to Pennsylvania Lines, LLC (PRR). PRR's assets, in turn, were leased to and operated by NSR under the terms of an allocated assets operating agreement between PRR and NSR. NSR acquired the right to operate over the line from Conrail through merger of NSR with Conrail's former subsidiary, PRR, on August 27, 2004. *See CSX Corporation and CSX Transportation, Inc., Norfolk Southern Corporation and Norfolk Southern Railway Company—Control and Operating Leases/Agreements—Conrail Inc. and Consolidated Rail Corporation* , STB Finance Docket No. 33388 (Sub-No. 94), Decision No. 2 (STB served Nov. 7, 2003). In addition to an exemption from 49 U.S.C. 10903, NSR seeks exemption from 49 U.S.C. 10904 [offer of financial assistance

(OFA)procedures] and 49 U.S.C. 10905 [public use conditions]. In support, NSR states that the right-of-way is owned by the Maryland Department of Transportation (MDOT), 2 and MDOT, through MTA, will continue to use the line for the public purpose of providing light rail commuter passenger service. These requests will be addressed in the final decision. 2 MDOT describes itself as the umbrella organization for the Maryland Transit Administration

(MTA)and other Maryland governmental transportation agencies. MDOT and MTA are government agencies sponsoring or operating commuter mass transit service and have not held, do not hold, and do not intend to hold themselves out to provide rail freight service over the line. The line does not contain Federally granted rights-of-way. Any documentation in NSR's possession will be made available promptly to those requesting it. The interest of railroad employees will be protected by the conditions set forth in *Oregon Short Line R. Co.—Abandonment—Goshen* , 360 I.C.C. 91 (1979). By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by April 3, 2006. Any OFA under 49 CFR 1152.27(b)(2) will be due no later than 10 days after service of a decision granting the petition for exemption, unless the Board grants the requested exemption from the OFA process. Each offer must be accompanied by a $1,200 filing fee. *See* 49 CFR 1002.2(f)(25). All interested persons should be aware that, following abandonment of rail service and salvage of the line, the line may be suitable for other public use, including interim trail use. Unless the Board grants the requested exemption from the public use provisions, any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking 3 under 49 CFR 1152.29 will be due no later than January 23, 2006. Each trail use request must be accompanied by a $200 filing fee. *See* 49 CFR 1002.2(f)(27). 3 NSR indicates that, because of the continuing use of the line for light rail commuter passenger operations by MTA, NSR will not consent to a trail use negotiation condition. All filings in response to this notice must refer to STB Docket No. AB-290 (Sub-No. 237X), and must be sent to:

(1)Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001, and

(2)James R. Paschall, Senior General Attorney, Norfolk Southern Railway Company, Three Commercial Place, Norfolk, VA 23510-2191. Replies to NSR's petition are due on or before January 23, 2006. Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Services at

(202)565-1592 or refer to the full abandonment or discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Section of Environmental Analysis

(SEA)at

(202)565-1539. [Assistance for the hearing impaired is available through the Federal Information Relay Service

(FIRS)at 1-800-877-8339.] An environmental assessment

(EA)(or environmental impact statement (EIS), if necessary) prepared by SEA will be served upon all parties of record and upon any agencies or other persons who commented during its preparation. Other interested persons may contact SEA to obtain a copy of the EA (or EIS). EAs in these abandonment proceedings normally will be made available within 60 days of the filing of the petition. The deadline for submission of comments on the EA will generally be within 30 days of its service. Board decisions and notices are available on our Web site at “ *http://www.stb.dot.gov.* ” Decided: December 22, 2005. By the Board, David M. Konschnik, Director, Office of Proceedings. Vernon A. Williams, Secretary. [FR Doc. 05-24626 Filed 12-30-05; 8:45 am]

Connectionstraces to 6

Traces to 6 documents

U.S. Code