[Federal Register Volume 60, Number 202 (Thursday, October 19, 1995)]
[Notices]
[Pages 54086-54088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25940]
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[[Page 54087]]
INTERSTATE COMMERCE COMMISSION
[Docket No. AB-457X]
RLTD Railway Corporation--Abandonment Exemption--in Leelanau
County, MI
RLTD Railway Corporation (RLTD) has filed a notice of exemption
under 49 CFR part 1152 Subpart F--Exempt Abandonments to abandon its
entire line of railroad between milepost 5.52 at Hatches Crossing,
Elmwood Township, and milepost 29.56 at Northport, in Leelanau County,
MI.
RLTD has certified that: (1) No local traffic has moved over the
line for at least 2 years; (2) there is no overhead traffic on the
line; (3) no formal complaint filed by a user of rail service on the
line (or by a state or local government entity acting on behalf of such
user) regarding cessation of service over the line either is pending
with the Commission or with any U.S. District Court or has been decided
in favor of the complainant within the 2-year period; and (4) the
requirements at 49 CFR 1105.7 (environmental reports), 49 CFR 1105.8
(historic report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12
(newspaper publication), and 49 CFR 1152.50(d)(1) (notice to
governmental agencies) have been met.
Where, as here, the carrier is abandoning its entire line, the
Commission does not normally impose labor protection under 49 U.S.C.
10505(g) unless there is evidence of a corporate affiliate that will:
(1) Continue rail operations; or (2) realize significant benefits in
addition to being relieved of the burden of deficit operations by its
affiliated railroad. See T and P Rwy.--Aband.--in Shawnee, Jefferson,
and Atchison Counties, KS, Docket No. 381, et al. (ICC served Apr. 27,
1993). Because these conditions do not appear to exist here, employee
protective conditions will not be imposed.
Provided no formal expression of intent to file an offer of
financial assistance (OFA) has been received, this exemption will be
effective on November 18, 1995, unless stayed pending reconsideration.
Petitions to stay that do not involve environmental issues,1
formal expressions of intent to file an OFA under 49 CFR
1152.27(c)(2),2 and trail use/rail banking requests under 49 CFR
1152.29 3 must be filed by October 30, 1995. Petitions to reopen
or requests for public use conditions under 49 CFR 1152.28 must be
filed by November 8, 1995, with: Office of the Secretary, Case Control
Branch, Interstate Commerce Commission, Washington, DC 20423.
\1\ A stay will be issued routinely by the Commission in those
proceedings where an informed decision on environmental issues
(whether raised by a party or by the Commission's Section of
Environmental Analysis in its independent investigation) cannot be
made prior to the effective date of the notice of exemption. See
Exemption of Out-of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any
entity seeking a stay on environmental concerns is encouraged to
file its request as soon as possible in order to permit the
Commission to review and act on the request before the effective
date of this exemption.
\2\ See Exempt. of Rail Abandonment--Offers of Finan. Assist., 4
I.C.C.2d 164 (1987).
\3\ The Commission will accept a late-filed trail use request as
long as the abandonment has not been consummated and the abandoning
railroad is willing to negotiate an agreement.
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A copy of any pleading filed with the Commission should be sent to
applicant's representative: John D. Noonan, P.O. Box 2358, Traverse
City, MI 49685-2358.
If the notice of exemption contains false or misleading
information, the exemption is void ab initio.
Leelanau Trails Association (LTA) seeks issuance of a notice of
interim trail use/rail banking (NITU) for a portion of the involved
lines (namely between Hatches Crossing and Dumas Road in Suttons Bay
Township, MI), under the National Trails System Act (Trails Act), 16
U.S.C. 1247(d). LTA has submitted a statement of willingness to assume
financial responsibility for the interim trail use and rail banking in
compliance with 49 CFR 1152.29 and acknowledged that the right-of-way
as a trail is subject to future reactivation of rail service.
While expressions of interest in interim trail use need not be
filed until 10 days after the date the notice of exemption is published
in the Federal Register [49 CFR 1152.29(b)(2)], the provisions of the
Trails Act are applicable, and all of the criteria for imposing trail
use/rail banking have been met. Accordingly, based on RLTD's
willingness to enter into negotiations with LTA, a NITU will be issued.
The parties may negotiate an agreement during the 180-day period
prescribed below. If a mutually acceptable final agreement is reached,
further Commission approval is not necessary. If no agreement is
reached within 180 days, RLTD may fully abandon the line. See 49 CFR
1152.29(d)(9)(1).
Issuance of this NITU does not preclude other parties from filing
interim trail use/rail banking requests. Nor does it preclude RLTD from
negotiating with other parties in addition to LTA during the NITU
negotiating period. If additional trail use requests are filed, RLTD is
directed to respond to them. Use of the right-of-way for trail purposes
is subject to restoration for railroad purposes.
The parties should note that operation of the trail use procedures
could be delayed, or even foreclosed, by the OFA process under 49
U.S.C. 10905. As stated in Rail Abandonments--Use of Rights-of-Way as
Trails, 2 I.C.C.2d 591 (1986) (Trails), OFAs to acquire rail lines for
continued rail service or to subsidize rail operations take priority
over interim trail use conditions.4 Accordingly, if a formal
expression of intent to file an OFA is timely filed under 49 CFR
1152.27(c)(2), the effective date of this notice will be postponed 10
days beyond the effective date indicated here. In addition, the
effective date may be further postponed at later stages in the OFA
process. See 49 CFR 1152.27(e)(2) and (f). If the line is sold under
the OFA procedures, the notice for abandonment exemption will be
dismissed and trail use precluded. Alternatively, if a sale under the
OFA procedures does not occur, trail use may proceed.
\4\ The statement in Trails that section 10905 does not apply to
abandonment or discontinuance exemptions has since been superseded
by the adoption of rules allowing OFAs in these exemption
proceedings. See 49 CFR 1152.27.
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LTA also requested a 180-day public use condition for that portion
of the right-of-way between Hatches Crossing and Dumas Road in Suttons
Bay Township, MI, under 49 U.S.C. 10906 as an alternative to interim
trail use. When the need for both conditions is established, it is
Commission policy to impose them concurrently, subject to the execution
of a trail use agreement. See Trails, supra at 609. LTA's submission
meets the requirements for a public condition prescribed at 49 CFR
1152.28(a)(2) by specifying: (a) the condition sought; (b) the public
importance of the condition; (c) the time period for which the
condition would be effective; and (d) justification for imposition of
the time period. Accordingly, the requested 180-day public use
condition will also be imposed. If a trail use agreement is reached for
a lesser portion of the right-of-way, RLTD must keep the remaining
portion intact for the remainder of the 180-day period to permit public
use negotiations. A public use condition is not imposed for the benefit
of any one potential purchaser, but rather to provide an opportunity
for any interested person to acquire either the whole or a portion of a
right-of-way that has been found suitable for public purposes,
including trail use.
RLTD filed an environmental report which addresses the
abandonment's effects, if any, on the environment and historic
resources. The Section of Environmental Analysis (SEA) will
[[Page 54088]]
issue an environmental assessment (EA) by October 24, 1995. Interested
persons may obtain a copy of the EA by writing to SEA (Room 3219,
Interstate Commerce Commission, Washington, DC 20423) or by calling
Elaine Kaiser, Chief of SEA, at (202) 927-6248. Comments on
environmental and historic preservation matters must be filed within 15
days after the EA is available to the public.
Environmental, historic preservation, public use, or trail use/rail
banking conditions will be imposed, where appropriate, in a subsequent
decision.
It is ordered:
1. The abandonment of the above described line between Hatches
Crossing and Dumas Road in Suttons Bay Township, MI, is subject to the
conditions: (1) That RLTD is prohibited from disposing of the corridor,
other than the tracks, ties and signal equipment, unless for public use
on reasonable terms; and (2) that RLTD keep intact the right-of-way
underlying the track, including all of the trail related structures
including bridges, trestles, culverts, and tunnels, for a period of 180
days from the effective date of this exemption, to enable any State or
local government agency or other interested persons to negotiate the
acquisition of the line for public use.
2. Subject to the conditions set forth above, RLTD may discontinue
service, cancel tariffs for the line on not less than 10 days' notice
to the Commission, and salvage track and material consistent with
interim trail use/rail banking after the effective date of this notice
of exemption and NITU. Tariff cancellations must refer to this notice
by date and docket number.
3. If an interim trail use/rail banking agreement is reached, it
must require the trail user to assume, for the term of the agreement,
full responsibility for management of, for any liability arising out of
the transfer or use of (unless the user is immune from liability, in
which case it need only indemnify RLTD from any potential liability),
and for the payment of any and all taxes that may be levied or assessed
against the right-of-way.
4. Interim trail use/rail banking is subject to the future
restoration of rail service and to the user's continuing to meet the
financial obligations for the right-of-way.
5. If interim trail use is implemented and subsequently the user
intends to terminate trail use, it must send the Commission a copy of
this notice of exemption and NITU and request that it be vacated on a
specified date.
6. If an agreement for interim trail use/rail banking is reached by
the 180th day after service of this notice of exemption and NITU,
interim trail use may be implemented. If no agreement is reached by
that time, RLTD may fully abandon the line.
Decided: October 10, 1995.
By the Commission, David M. Konschnik, Director, Office of
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 95-25940 Filed 10-18-95; 8:45 am]
BILLING CODE 7035-01-P
