[Federal Register Volume 59, Number 245 (Thursday, December 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31448]


[[Page Unknown]]

[Federal Register: December 22, 1994]


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INTERSTATE COMMERCE COMMISSION
[Docket No. AB-103 (Sub-No. 9X)]

 

The Kansas City Southern Railway Company--Abandonment Exemption--
In Jasper County, MO and Cherokee County, KS

    The Kansas City Southern Railway Company (KCS) has filed a notice 
of exemption under 49 CFR 1152 Subpart F--Exempt Abandonments to 
abandon two rail branch lines as follows: (1) The Baxter Springs Branch 
from milepost 139.01 L at the connection with the KCS main line to the 
end of the line at milepost 148.51 L near Crestline, KS, a distance of 
9.50 miles, in Jasper County, MO and Cherokee County, KS; and (2) the 
Waco Branch from milepost W 139.80 at the connection with the KCS main 
line to the end of the line at milepost W 142.9, in Waco, MO, a 
distance of 2.69 miles, in Jasper County, MO.
    KCS has certified that: (1) No local traffic has moved over the 
line for at least 2 years; (2) overhead traffic has been rerouted; and 
(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 report), 49 CFR 1105.8 (historic 
report), 49 CFR 1105.12 (newspaper publication), and 49 CFR 
1152.50(d)(1) (notice to governmental agencies) have been met.
    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 has been received, this exemption will be 
effective on January 21, 1995 (unless stayed pending reconsideration). 
Petitions to stay that do not involve environmental issues,1 
formal expressions of intent to file offers of financial assistance 
under 49 CFR 1152.27(c)(2),2 and trail use/rail banking statements 
under 49 CFR 1152.29 must be filed by January 3, 1995.3 Petitions 
to reopen or requests for public use conditions under 49 CFR 1152.28 
must be filed by January 11, 1995, with: Office of the Secretary, Case 
Control Branch, Interstate Commerce Commission, Washington, DC 20423.
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    \1\The Commission will grant a stay if an informed decision on 
environmental issues (whether raised by a party or by the Commission 
in its independent investigation) cannot be made before the 
exemption's effective date. See Exemption of Out-of-Service Rail 
Lines, 5 I.C.C.2d 377 (1989). Any request for a stay should be filed 
as soon as possible so that the Commission may take appropriate 
action before the exemption's effective date.
    \2\See Exempt. of Rail Abandonment--Offers of Finan. Assist., 4 
I.C.C.2d 164 (1987).
    \3\The Commission will accept late-filed trail use requests so 
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 petition filed with the Commission should be sent to 
applicant's representative: Jay M. Nadlman, 114 West Eleventh Street, 
Kansas City, MO 64105.
    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' 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 rights-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 financial assistance 
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), offers of 
financial assistance (OFA) 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). 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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    \4\The statement in Trails that section 10905 does not apply to 
abandonment or discontinuance exemptions has since been superseded 
by our 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 abandonment's 
effects, if any, on the environment and historic resources. The Section 
of Environmental Analysis (SEA) will issue an environmental assessment 
(EA) by December 27, 1994. 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 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, or other trail use/rail 
banking 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 rights-of-way, it must require the trail user to 
assume, for the term of the agreement, full responsibility for 
management of, for any legal liability arising out of the transfer or 
use of (unless the user is immune from liability, in which case it need 
only indemnify KCS from any potential liability), and for the payment 
of any and all taxes that may be levied or assessed against, the 
rights-of-way.
    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 rights-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 decision and notice, interim trail 
use may be implemented. If no agreement is reached by that time, KCS 
may fully abandon the lines.
    6. Provided no formal expression of intent to file an offer of 
financial assistance has been received, this notice of exemption and 
NITU will be effective on January 21, 1995.

    Decided: December 15, 1994.

    By the Commission, David M. Konschnik, Director, Office of 
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 94-31448 Filed 12-21-94; 8:45 am]
BILLING CODE 7035-01-P