[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