[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