[Federal Register Volume 59, Number 226 (Friday, November 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29065]


[[Page Unknown]]

[Federal Register: November 25, 1994]


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INTERSTATE COMMERCE COMMISSION

[Finance Docket No. 31102]

 

Wisconsin Central Ltd.--Exemption Acquisition and Operation--
Certain Lines of Soo Line Railroad Company

AGENCY: Interstate Commerce Commission.

ACTION: Notice of proposed modification of historic preservation 
condition and request for comments.

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SUMMARY: The Commission proposes to remove a condition, imposed in 1987 
in connection with a sale of rail lines, that prevents the railroad 
from selling, destroying or modifying properties until completion of 
procedures under section 106 of the National Historic Preservation Act.

DATES: Comments are due by January 9, 1995.

ADDRESSES: An original and 10 copies of all comments must be sent to 
Office of the Secretary, Case Control Branch, Attn: Finance Docket No. 
31102, Interstate Commerce Commission, 1201 Constitution Avenue, NW., 
Washington, DC, 20423.

FOR FURTHER INFORMATION CONTACT: Louis Mackall, (202) 927-6056. [TDD 
for the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: The Commission is proposing to reopen this 
proceeding to remove a condition that was imposed seven years ago in 
this rail line sale proceeding. The condition appears to be 
inconsistent with our current procedures and may no longer be 
necessary.
    Wisconsin Central Ltd. (Wisconsin Central) purchased approximately 
1,800 miles of rail line from Soo Line Railroad Company (Soo) on 
October 11, 1987, pursuant to the class exemption for rail line sales, 
49 CFR 1150.31 et seq.1 We allowed the sale to proceed under the 
class exemption, but imposed an historic preservation condition. 
Because this case was processed under the class exemption procedures, 
and we did not want to delay the public benefit of the line sale in 
preserving rail service, we permitted the sale, but ordered the carrier 
not to take any steps that would affect historic properties until after 
the National Historic Preservation Act (NHPA) process could be 
completed.
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    \1\See Wisconsin Central Ltd.--Exemption Acquisition and 
Operation--Certain Lines of Soo Line Railroad Company, Finance 
Docket No. 31102 (ICC served July 28, 1988). The exemption overrides 
certain regulatory requirements associated with filing a formal 
application under 49 U.S.C. 10901.
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    Section 106 of the NHPA, 16 U.S.C. 470f, requires that, when a 
federal agency approves a license, it must ``take into account the 
effect of the undertaking on any district, site, building, structure, 
or object that is included in or eligible for inclusion in the National 
Register [of historic buildings and places].'' Under the NHPA, we 
consult with the appropriate state historic preservation officer (SHPO) 
and, where appropriate, the Advisory Council on Historic Preservation 
(ACHP) to identify historic properties, determine if they will be 
adversely affected, and consider appropriate mitigation.
    The broad historic preservation condition we imposed in this case 
was worded as follows:

    The Commission will undertake a section 106 National Historic 
Preservation Act process in this matter. Pending completion thereof, 
[Wisconsin Central] shall refrain from taking any action that may 
jeopardize the historic integrity of sites and structures 50 years 
old or older.

    Because hundreds of properties were transferred, the Commission's 
Section of Environmental Analysis (SEA) attempted to enter into some 
kind of ``programmatic agreement'' (36 CFR 800.13)2 or 
``memorandum of agreement'' (36 CFR 800.5)3 with ACHP and the 
various SHPOs involved to facilitate the process by identifying the 
historic properties adversely affected by the transfer, so that we 
could craft appropriate mitigation conditions for them. This effort has 
been unsuccessful, however, and the process of determining appropriate 
historic preservation measures for each particular property that 
Wisconsin Central has subsequently sought to sell or demolish has been 
inordinately slow, often taking several years.
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    \2\A programmatic agreement, negotiated between ACHP and the 
responsible agency official in consultation with the appropriate 
SHPO, may be used to determine proper historic preservation measures 
for projects when ``effects on historic properties are similar and 
repetitive.'' The programmatic agreement is a contract that to be 
effective must be agreed to in writing by ACHP, the SHPO, and the 
agency.
    \3\A memorandum of agreement (MOA) may be used, usually for a 
single project, where the agency and the SHPO agree on a course of 
action. ACHP must have an opportunity for comment.
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    We revised our historic preservation rules in 1991 so that now the 
historic preservation process is only required in line sale cases 
where, at the time of the transfer, the applicant plans to dispose of 
or alter properties subject to our jurisdiction that are 50 years or 
older.4 Implementation of Environmental Laws, 7 I.C.C.2d 807, 828 
(1991). Our current rules do not require carriers to file an historic 
report, and historic preservation conditions are not imposed, for rail 
line sales ``where further approval is required to abandon any service 
and there are no plans to dispose of or alter properties subject to ICC 
jurisdiction that are 50 years old or older,'' 49 CFR 1105.8 (b)(1). 
Thus, under our new rules, if a condition were imposed in a line sale 
case such as this one, it would apply only to properties subject to our 
jurisdiction (``used or useful'' in rail service, see 49 CFR 1105.8) 
that the buyer has plans to dispose of or alter outside the context of 
a further abandonment or sale application.5 These rules have been 
applied in approximately 100 cases and have worked well in narrowing 
the focus of the historic review process to rail properties that may 
actually be affected by a sale transaction.
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    \4\These rule changes were made in consultation with the ACHP. 
It is unclear whether Wisconsin Central would have had to file a 
historic report or be subject to historic preservation conditions 
under this new standard.
    \5\If subsequent abandonment or sale authority is required for 
the disposition of properties, the appropriate NHPA review will take 
place in the context of those proceedings.
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    In contrast, as noted previously, the broad condition imposed here 
has not worked well. Before Wisconsin Central can dispose of any of the 
properties it obtained from Soo in 1987, it must complete the historic 
preservation process for each particular property. This requirement 
usually results in a lengthy delay for each property. Moreover, as 
things now stand, this situation would continue indefinitely; unless 
amended, the condition will continue to cover all of Wisconsin 
Central's properties as long as it remains a railroad.6
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    \6\We would note that the problem relates to sales of properties 
that are not part of a line for which abandonment authority is 
sought. In abandonment proceedings, historic structures would be 
documented anyway.
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    More than seven years have passed since Wisconsin Central acquired 
these properties. Accordingly, it seems to us that from this point 
forward, Wisconsin Central's sale or demolition of properties should no 
longer be considered to be the result of the original purchase from the 
Soo. Rather, because of the passage of time, these decisions more 
appropriately should be considered the normal result of the carrier's 
continuing ownership and management of these properties. It seems 
inappropriate to continue to impose a greater burden on Wisconsin 
Central than it would face if its acquisition proceeding took place 
now.
    We may modify conditions we have imposed in our proceedings, and we 
preliminarily conclude that it is appropriate to do so here. 
Accordingly, we are reopening this proceeding and proposing to modify 
the condition to require completion of the historic review process only 
with regard to specific properties for which that process is already 
underway or of which the carrier has informed SEA that it plans to 
dispose. The disposal of other properties would be presumed to be 
outside the scope of the proceeding in which we authorized the rail 
line sale.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources. This 
proposal should not have any adverse impact on small entities.

    Decided: November 7, 1994.

    By the Commission, Chairman McDonald, Vice Chairman Phillips, 
and Commissioners Simmons, Morgan, and Owen. Vice Chairman Phillips 
recused herself in this proceeding.
Vernon A. Williams,
Secretary.
[FR Doc. 94-29065 Filed 11-23-94; 8:45 am]
BILLING CODE 7035-01-P