[Federal Register Volume 63, Number 29 (Thursday, February 12, 1998)]
[Notices]
[Pages 7194-7195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3621]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board
[STB Docket No. AB-31 (Sub-No. 30)]


Grand Trunk Western Railroad Incorporated--Adverse Discontinuance 
of Trackage Rights Application--A Line of Norfolk and Western Railway 
Company in Cincinnati, Hamilton County, OH

    On January 23, 1998, the Norfolk and Western Railway Company (NW) 
filed an application under 49 U.S.C. 10903 requesting that the Surface 
Transportation Board (Board) order the discontinuance, or find that the 
public convenience and necessity require and permit the discontinuance, 
of the limited overhead trackage rights asserted to be held by Grand 
Trunk Western Railroad Incorporated (GTW) over the entire Riverfront 
Running Track, which is described in the agreement granting those 
rights, as ``that portion of the line of NW through Cincinnati, OH, 
from the first switch west of Oasis Block Station to a connection with 
the Southern Railway in the vicinity of Front and Smith Streets * * * a 
distance of 1.6 miles,'' in Cincinnati, Hamilton County, 
OH.1 The line is about 1.6 miles and no more than 2.2 miles 
in length. The line has no stations, and traverses United States Postal 
Service ZIP Codes 45202 and 45203.2
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    \1\ GTW acquired its interest in the agreement through the 
automatic assignment to GTW, as successor to the Detroit, Toledo and 
Ironton Railroad Company. See Norfolk & W. Ry. Co.--Control--
Detroit, T. & I. R. Co., 360 I.C.C. 498 (1979) and 363 I.C.C. 122 
(1980).
    \2\ Concurrent filings were made in: STB Docket No. AB-290 (Sub-
No. 184X), Norfolk and Western Railway Company--Abandonment 
Exemption--In Cincinnati, Hamilton County, OH; STB Docket No AB-
532X, The Cincinnati Terminal Railway Company (Indiana & Ohio 
Railway Company, Successor)--Discontinuance of Service Exemption--In 
Cincinnati, Hamilton County, OH; and STB Docket No. AB-167 (Sub-No. 
1180X), Consolidated Rail Corporation--Discontinuance of Trackage 
Rights Exemption--in Cincinnati, Hamilton County, OH.
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    NW states that the line is out of service, but that GTW declines to 
file or concur in a notice of exemption because it claims to have 
assigned its trackage right to Indiana & Ohio Railway Company 
(IORY).3 Applicant has asked the Board to expedite handling 
of the matter due to the fact that the line is out of service and due 
to NW's stated intent to transfer its interest in the line to the City 
of Cincinnati for public purposes.
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    \3\ Because the real party of interest here is in question, both 
GTW and IORY are requested to participate in this proceeding.
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    NW has petitioned the Board to waive the informational or 
procedural requirements of discontinuance applications that do not 
apply to a notice of exemption. The waiver requests as to information 
will be granted in a separate decision to be served concurrently with 
this notice. The request for modification of the schedule for filing 
comments will be denied. NW also requests exemption from the provisions 
of 49 U.S.C. 10904 and 10905. Those exemption requests will be 
considered by the Board in the final decision on the merits of the 
application.
    GTW filed a petition to reject the application. The petitioner 
argues that the application should be rejected as prematurely filed. 
GTW asserts that it has assigned the trackage rights to IORY. The 
petition to reject argues that a grant of this application would amount 
to an adjudication of the dispute between NW and GTW over whether it 
lawfully assigned the rights to IORY. GTW cites the trackage rights 
agreement, which provides for the resolution of disputes arising under 
the agreement by arbitration. The petitioner states that it has invoked 
arbitration.
    In further support of its argument that the application is 
premature, GTW says that the application should not have been filed 
until the various petitions for waiver filed by NW had been acted upon. 
Finally, GTW argues that the NW application is defective.
    The Board will address the relevance of and, if appropriate, the 
merits of GTW's and NW's arguments as to the assignment of the trackage 
rights in the decision on the application. In an application by a third 
party for a determination that the public convenience and necessity 
permits a line to be discontinued or abandoned, the issue before the 
Board is whether the public interest requires that the line in question 
be retained as part of the national rail system. The question of the 
ownership of the line is relevant chiefly as it pertains to the 
question of whether the public is better served by the maintenance or 
discontinuance of the rights and the service they afford.
    By granting a third party application, the Board withdraws its 
primary jurisdiction over the line. Questions of

[[Page 7195]]

the disposition of the line, including the adjudication of various 
claims of ownership or other rights and obligations, are then left to 
state or local authorities; Kansas City Pub. Ser. Frgt. Operation--
Exempt.--Aban., 7 I.C.C. 2d 216 (1990). It should be noted that, 
whenever the Board or its predecessor, the Interstate Commerce 
Commission, has granted abandonment or discontinuance authority, 
whether by application of a third party or otherwise, the agency finds 
that the public 9convenience and necessity supports the abandonment or 
discontinuance of a specific line by a specified carrier.
    The parties may address this issue further in their comments and 
the replies thereto.
    GTW correctly notes that requests for waivers are typically filed 
before the application drawn in reliance on those waivers is filed. But 
in filing its application contemporaneously with the waivers, NW has 
merely run the risk that the waivers will be denied in whole or part 
and it will have wasted time and effort in filing an application based 
on them. Grants of petitions for waiver of the filing of the materials 
required in typical abandonment applications in applications filed by 
third parties are customary. The regulations require information 
intended to help the Board decide whether a particular line or service 
is losing money. That is typically not the issue in third party 
applications. It is not the issue here, where no service has been 
provided in recent years. We have denied NW's requests to shorten the 
procedural schedule or to ``waive'' the statutorily mandated OFA 
procedures.
    The procedure NW chose in filing its waiver requests is no reason 
to reject its application. Nor is GTW's catchall assertion that the 
application is defective.
    The line does not contain federally granted rights-of-way. Any 
documentation in the railroad's possession will be made available 
promptly to those requesting it. The applicant's entire case in chief 
for abandonment and discontinuance of service was filed with the 
application.
    The interest of railroad employees will be protected by the 
conditions in Oregon Short Line R. Co.--Abandonment--Goshen, 360 I.C.C. 
91 (1979).
    The line has not appeared on the system diagram maps (SDM) or been 
included in the narrative in category 1. The Interstate Commerce 
Commission (ICC) has found that the SDM requirement, while imposed by 
statute, is not necessary in the context of an adverse abandonment, 
where the line has been out of service for many years. See Tri-County 
Metropolitan Transportation District of Oregon--Abandonment--A line of 
Burlington Northern Railroad Company in Washington County, OR, ICC 
Docket No. AB-6 (Sub-No. 348) (ICC served Mar. 4, 1993).
    Any interested person may file with the Board written comments 
concerning the proposed adverse discontinuance or protests (including 
the protestant's entire opposition case), by March 10, 1998. Because 
this is a discontinuance proceeding and not an abandonment, trail use/
rail banking and public use requests are not appropriate. Such requests 
will be considered in the abandonment proceeding referenced in footnote 
2. Likewise, no environmental or historical documents are required here 
under 49 CFR 1105.6(c)(6).
    Persons opposing the proposed adverse discontinuance who wish to 
participate actively and fully in the process should file a protest by 
March 10, 1998. Persons who may oppose the discontinuance but who do 
not wish to participate fully in the process by submitting verified 
statements of witnesses containing detailed evidence should file 
comments by March 10, 1998. Parties seeking information concerning the 
filing of protests should refer to Sec. 1152.25. The due date for 
applicant's reply is March 25, 1998.
    All filings in response to this notice must refer to STB Docket No. 
AB-31 (Sub-No. 30) and must be sent to: (1) Surface Transportation 
Board, Office of the Secretary, Case Control Unit, 1925 K Street, NW., 
Washington, DC 20423-0001; and (2) James R. Paschall, Norfolk and 
Western Railway Company, Three Commercial Place, Norfolk, VA 23510-
2191; Robert P. vom Eigen, Hopkins & Sutter, 888 16th Street, NW., 
Washington, DC 10006; Mr. S. A. Cantin, Q.C., System General Counsel, 
Canadian National, 935 de La Gauchetiere St. West, Montreal, QC H3B 
2M9; and Karl Morrell, Ball Janik, LLP, 1455 F Street, NW., Washington, 
DC 20004. The original and 10 copies of all comments or protests shall 
be filed with the Board with a certificate of service. Except as 
otherwise set forth in part 1152, every document filed with the Board 
must be served on all parties to the adverse discontinuance proceeding. 
49 CFR 1104.12(a).
    Persons seeking further information concerning the abandonment/
discontinuance procedures may contact the Board's Office of Public 
Services at (202) 565-1592 or refer to the full abandonment or 
discontinuance regulations at 49 CFR part 1152.
    A copy of the application will be available for public inspection 
at NW's agency station at 1400 Gest Street, Cincinnati, OH 45203 ((513) 
977-3284). The carrier shall furnish a copy of the application to any 
interested person proposing to file a protest or comment, upon request.

    Decided: February 6, 1998.

    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 98-3621 Filed 2-11-98; 8:45 am]
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