[Federal Register Volume 59, Number 186 (Tuesday, September 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23874]
[[Page Unknown]]
[Federal Register: September 27, 1994]
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INTERSTATE COMMERCE COMMISSION
[Docket No. AB-103 (Sub-No. 8X)]
The Kansas City Southern Railway Company--Abandonment Exemption--
In Le Flore and Haskell Counties, OK
The Kansas City Southern Railway Company (KCS) has filed a notice
of exemption under 49 CFR 1152 Subpart F--Exempt Abandonments to
abandon two intersecting rail lines totaling approximately 29.65 miles
in Le Flore and Haskell Counties, OK, as follows: (1) approximately
9.50 miles of the Midland Valley Branch extending between the point of
connection with KCS's main line at milepost 20.80 in Panama and
milepost 30.30 near Bokoshe; and (2) approximately 20.15 miles of the
Fort Smith and Van Buren Railway Company line extending between the
point of connection with KCS's main line at milepost 20.12 in Coal
Creek, and the end of the line at milepost 40.27 in McCurtain.1
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\1\KCS was authorized to acquire The Fort Smith and Van Buren
Railway Company (FSVB) in 1939 in Finance Docket No. 12475. FSVB no
longer exists as a separate legal entity; it was merged into KCS on
July 6, 1992.
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KCS has certified that: (1) no local traffic has moved over the
lines for at least 2 years; (2) overhead traffic has been rerouted; (3)
no formal complaint filed by a user of rail service on the lines (or a
State or local government entity acting on behalf of such user)
regarding cessation of service over the lines 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 (service of environmental report on
agencies), 49 CFR 1105.8 (service of historic report on State Historic
Preservation Officer), 49 CFR 1105.12 (newspaper publication), and 49
CFR 1152.50(d)(1) (service of verified notice on governmental agencies)
have been met.2
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\2\ This notice has been delayed to allow KCS to comply with the
filing requirements of 49 CFR 1152.50(d)(1), to clarify the status
of FSVB, and to confirm that the proposed transaction is abandonment
and not merely service discontinuance.
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As a condition to use of this exemption, any employee affected by
the abandonment shall be protected under Oregon Short Line R. Co.--
Abandonment--Goshen, 360 I.C.C. 91 (1979). To address whether this
condition adequately protects affected employees, a petition for
partial revocation under 49 U.S.C. 10505(d) must be filed.
Provided no formal expression of intent to file an offer of
financial assistance (OFA) has been received, this exemption will be
effective on October 27, 1994 (unless stayed pending reconsideration).
Petitions to stay that do not involve environmental issues,3
formal expressions of intent to file OFAs under 49 CFR
1152.27(c)(2),4 and trail use/rail banking statements under 49 CFR
1152.29 must be filed by October 17, 1994.5 Petitions to reopen or
requests for public use conditions under 49 CFR 1152.28 must be filed
by October 27, 1994, with: Office of the Secretary, Case Control
Branch, Interstate Commerce Commission, Washington, DC 20423.
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\3\A stay will be issued routinely by the Commission in those
proceedings where an informed decision on environ-mental issues
(whether raised by a party or by the 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 based on environmental concerns should file its request as soon
as possible to permit Commission review and action before the
exemption's effective date.
\4\See Exempt. of Rail Abandonment--Offers of Finan. Assist., 4
I.C.C.2d 164 (1987).
\5\The Commission will accept late-filed trail use statements so
long as it retains jurisdiction.
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A copy of any petition filed with the Commission should be sent to
applicant's representative: Jay M. Nadlman, 114 West Eleventh St.,
Kansas City, MO 64105-1804.
If the notice of exemption contains false or misleading
information, use of the exemption is void ab initio.
The Rails to Trails Conservancy (RTC) supports the abandonment and
seeks issuance of a notice of interim trail use/rail banking (NITU)
under 16 U.S.C. 1247(d) covering the involved lines. RTC has submitted
a statement of willingness to assume financial responsibility for the
trail in compliance with 49 CFR 1152.29. KCS consents to this request
and is willing to negotiate with RTC.
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 16
U.S.C. 1247(d) (Trails Act) are applicable, and all of the criteria for
imposing trail use/rail banking have been met. Accordingly, based on
KCS's willingness to enter into negotiations with RTC, 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, KCS may fully abandon the lines. See 49 CFR
1152.29(d)(1).
Issuance of this NITU does not preclude other parties from filing
interim trail use/rail banking requests. Nor does it preclude KCS from
negotiating with other parties in addition to RTC during the NITU
negotiating period. If additional trail use requests are filed, KCS 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), OFA's to acquire rail lines for
continued rail service or to subsidize rail operations take priority
over interim trail use conditions.6 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). Finally, 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.
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\6\ 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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KCS has filed an environmental report addressing the effects of the
abandonment, if any, on the environment and historic resources. The
Section of Environmental Analysis (SEA) issued an environmental
assessment (EA) on September 9, 1994, and comments were due on
September 21, 1994. The EA recommended that an historic condition be
imposed found that the right-of-way may be suitable for other public
use. Because we are now issuing this notice, we will give interested
persons an additional 15 days, to October 12, 1994, to file comments to
the EA. Interested persons may obtain a copy of the EA from SEA by
writing to it (Room 3219, Interstate Commerce Commission, Washington,
DC 20423) or by calling Elaine Kaiser, Chief, SEA at (202) 927-6248.
Environmental, historic preservation, or public use conditions will
be imposed, where appropriate, in a subsequent decision.
It is ordered:
1. Subject to the conditions set forth above, KCS may discontinue
service, cancel tariffs for the lines 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.
2. If an interim trail use/rail banking agreement is reached, then
with respect to the right-of-way it must require the trail user to
assume, for the term of the agreement, full responsibility for
management, for any legal liability arising out of transfer or use
(unless the user is immune from liability, in which case it need only
indemnify the railroad for any potential liability), and for the
payment of any and all taxes that may be levied or assessed.
3. 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.
4. 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.
5. 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, KCS may fully abandon the lines.
Decided: September 21, 1994.
By the Commission, David M. Konschnik, Director, Office of
Proceedings.
Vernon A. Williams,
Acting Secretary.
[FR Doc. 94-23874 Filed 9-26-94; 8:45 am]
BILLING CODE 7035-01-P
