[Federal Register Volume 63, Number 108 (Friday, June 5, 1998)]
[Notices]
[Pages 30810-30811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15064]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Finance Docket No. 33611]
Union Pacific Railroad Company--Petition for Declaratory Order--
Former Missouri-Kansas-Texas Railroad Line Between Jude and Ogden
Junction, TX
AGENCY: Surface Transportation Board.
ACTION: Institution of declaratory order proceeding; request for
comments.
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SUMMARY: The Surface Transportation Board (Board) is instituting a
declaratory order proceeding and requesting comments on the petition of
the Union Pacific Railroad Company (UP), for an order declaring that
the Board lacks authority under 49 U.S.C.
[[Page 30811]]
10901 over UP's decision to rehabilitate and reactivate 16.7 miles of
line passing though New Braunfels, TX.
DATES: Any interested person may file with the Board written comments
concerning UP's petition by June 22, 1998. UP may reply by June 30,
1998.
ADDRESSES: Send an original plus 10 copies of all pleadings, referring
to STB Finance Docket No. 33611, to: Surface Transportation Board,
Office of the Secretary, Case Control Unit, Attn: STB Finance Docket
No. 33611, 1925 K Street, N.W., Washington, DC 20423-0001. In addition,
pleadings must certify that a copy has been served on UP's
representatives: J. Michael Hemmer and Pamela L. Miles, Covington &
Burling, 1201 Pennsylvania Avenue, N.W., P.O. Box 7566, Washington, DC
20044-7566.
FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 565-1600.
[TDD for the hearing impaired: (202) 565-1695.]
SUPPLEMENTARY INFORMATION: By petition filed on May 26, 1998, UP
requests the Board to issue an order under 49 CFR 1117.1 declaring that
its rehabilitation of the segment of the former Missouri-Kansas-Texas
Railroad (MKT) line that runs parallel to UP's mainline in the New
Braunfels, TX area does not need to be reviewed by the Board under 49
U.S.C. 10901. 1 According to UP, the City Council of New
Braunfels adopted in May a resolution requesting UP to permanently
cease rehabilitating the line.
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\1\ Under 49 U.S.C. 10901(a), a carrier may ``(1) construct an
extension to any of its railroad lines; (2) construct an additional
railroad line; [or] (3) provide transportation over, or by means of,
an extended or additional railroad line; * * * only if the Board
issues a certificate authorizing such activity.''
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UP states that it has encountered significant congestion on its
Austin Subdivision north of San Antonio. UP maintains that, because of
inadequate rail capacity on this route, it has been unable to haul all
of the aggregates needed by the Texas construction industry. To remedy
the capacity problem, UP has begun rehabilitating the former MKT line
between UP milepost 219.5 at Jude, TX (about 10 miles south of San
Marcos), and UP milepost 236.2 at Ogden Junction, TX, a distance of
about 16.7 miles. 2 UP claims that this rehabilitation
project will eliminate the only single-track section on the 56 miles
between San Marcos and San Antonio.
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\2\ According to UP, the line rehabilitation will ``accommodate
the current volume of traffic in this area, meet the unmet needs of
local shippers, and handle expected growth of Laredo gateway
traffic.''
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UP notes that, in the UP-MKT merger (Union Pacific Corp. Et Al.-
Cont.--MO-KS-TX Co. et al., 4 I.C.C.2d 409 (1988)), the Interstate
Commerce Commission (ICC) granted abandonment authority for the
line.3 UP states that, while service has been discontinued
on the line, the track was not removed and, except for a few locations,
the line is intact.4 Parts of the track continue to be
used.5
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\3\ Although no citation is given, it appears that in the merger
the line was authorized for abandonment in Missouri-Kansas-Texas
Railroad Company-Abandonment Exemption-In Comal County, TX, Docket
No. AB-102 (Sub-No. 18X).
\4\ UP states that, although the lines are not located within
the same right-of-way, in some places they are only 100 feet apart.
Based on the map provided by UP, it also appears that in one place
the lines are more than 1.5 miles apart.
\5\ UP states that a shipper in New Braunfels is being served
over about one-half mile of the former MKT line. UP also uses
another 4000 feet of track to serve a lumber shipper. Prior to the
rehabilitation, additional segments of the line were evidently used
for storage.
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UP argues that 49 U.S.C. 10901 does not give the Board authority
over all rail track projects. It notes that 49 U.S.C. 10906 excludes
spur tracks from Board construction jurisdiction. While the line at
issue is not a spur, UP contends that some track projects fall between
section 10906 exclusions and section 10901 jurisdiction, because they
are neither ``an extension'' of a rail line nor ``an extension of a
railroad line.'' Specifically, UP argues that section 10901 does not
apply to this situation because it is a ``mere addition of a second
track to an existing line or railroad, [and it does] not alter the
competitive situation by injecting a carrier into a new service area.''
UP cites Missouri Pacific R.R.--Construction and Operation
Exemption-- Avondale, LA, STB Finance Docket No. 33123, (STB served
July 11, 1997) at 2 for the proposition that ``[a]n extension or
addition to a rail line occurs when a construction project enables a
carrier to penetrate or invade a new market.'' UP claims that it is not
creating a new rail line, but simply reinstating service on a
previously operated line. Moreover, it argues that it is not
penetrating new territory, because UP is the only railroad serving
customers in the area.6
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\6\ UP claims that this case differs from Dakota Rail, Inc.--
Petition for Exemption from 49 U.S.C. 10901, 10903 & 11301, Finance
Docket No. 30721 (ICC served Apr. 10, 1986) (Dakota). There the ICC
indicated that the carrier would need to seek authority to resume
service over a line it had abandoned. UP argues that the discussion
in Dakota was simply dicta. Moreover, the line abandoned there was
the only one in that geographic area, and if service were resumed,
the carrier would arguably be entering new territory. Here, UP
submits, UP maintained service in the area even after the
abandonment through the use of its parallel track.
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UP also contends that its rehabilitation is not a line addition or
extension, because it is simply developing a second main line or
``double tracking'' to increase the capacity of the existing mainline.
According to UP, the ICC found that it did not have jurisdiction over
double track construction. City of Detroit v. Canadian National Ry., 9
I.C.C.2d 1208 (1993), aff'd sub nom. Detroit/Wayne County Authority v.
ICC, 59 F.3d 1314 (D.C. Cir. 1995) and City of Stafford, Texas v.
Southern Pacific Transportation Co., Finance Docket No. 32395 (ICC
served Nov. 8, 1994) aff'd sub nom. City of Stafford v. ICC, 59 F. 3d
535 (5th Cir. 1995).
By this notice, the Board is requesting comments on UP's petition.
Board decisions and notices are available on our website at
``WWW.STB.DOT.GOV.''
Decided: June 1, 1998.
By the Board, David M. Konschnik, Director, Office of
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 98-15064 Filed 6-4-98; 8:45 am]
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