[Federal Register Volume 69, Number 128 (Tuesday, July 6, 2004)]
[Notices]
[Pages 40718-40719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15199]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Docket No. AB-400 (Sub-No. 4)]


Seminole Gulf Railway, L.P.--Adverse Abandonment--in Lee County, 
FL

    On June 16, 2004, Lee County, FL (Lee County or applicant) filed an 
adverse application under 49 U.S.C. 10903 requesting that the Surface 
Transportation Board authorize the abandonment by Seminole Gulf 
Railway, L.P. (SGLR) of a portion of the Baker Spur, which consists of 
a rail line beginning at engineering station 36+35+-, which is 
approximately 100 feet southwest of where the line crosses Alico Road, 
directly west of Alico Center Road, approximately 1 mile east of U.S. 
Hwy. 41, and parallel to Alico Road station 79+00, continuing across 
Alico Road and then running parallel to and north of Alico Road for 
approximately 4,260 feet to the eastern terminus of the line at 
engineering station 79+95.\1\ The line traverses United States Postal 
Service ZIP Codes 33912 and 33913 and includes no stations.
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    \1\ Originally the proposed abandonment began approximately 300 
feet to the west of Alico Road station 79+00 at Alico Road Station 
76+00, but to accommodate nearby shipper Florida Power and Light's 
(FP&L) use of the Baker Spur, Lee County has moved the western 
terminus of the abandonment to Alico Road Station 79+00.
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    Lee County states that it is in the process of widening Alico Road, 
a heavily traveled thoroughfare between Interstate Hwy. 75 and U.S. 
Hwy. 41. This expansion project will require a new grade crossing where 
the Baker Spur crosses Alico Road. Applicant indicates that the cost of 
installing the required grade crossing would exceed $1 million, and 
that the cost of removing the grade crossing if the line were later 
abandoned would be approximately $300,000. Applicant seeks to avoid the 
expenditure of public funds to construct and remove this crossing. 
According to Lee County, the sole shipper on the line, J.J. Taylor 
Distributors Ft. Myers/Naples, Inc. (J.J. Taylor), is in the process of 
relocating its operations, at which point there will be no shippers 
requiring rail service on this line. Lee County requests that the 
abandonment authority become effective one day after J.J. Taylor has 
either departed its Alico Road facility or converted its operations so 
as not to require rail service. Applicant asserts that the abandonment 
will not adversely impact SGLR as it will be able to realize the net 
salvage value of the line and save on any maintenance costs. Lee County 
adds that FP&L, which uses an adjacent portion of the Baker Spur, will 
also not be harmed as SGLR will be able to transload shipper's 
equipment to a paved section of the service road to the south of the 
Baker Spur.\2\ In support of the proposal, applicant attaches to its 
application statements from shipper J.J. Taylor, nearby shippers FP&L 
and Airport Industrial Holdings, LLC, and applicant's landlord, Alico 
Industries, Inc.
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    \2\ In its application, Lee County again requests that the Board 
grant an exemption from the public use provisions at 49 U.S.C. 10905 
and a waiver from the public use and trail use provisions at 49 CFR 
1152.28-.29. However, as stated in the June 9, 2004, decision in 
this proceeding, such requests need not be addressed at this time 
and can be addressed, if necessary, in the final decision on the 
merits of this application. Also applicant apparently believes that 
the Board granted it an exemption/waiver from the offer of financial 
assistance (OFA) requirements at 49 U.S.C. 10904 and 49 CFR 1152.27. 
Application, p.5, n.5. Applicant is incorrect. As with the public 
use and trail use requests, the Board also reserved judgment on the 
OFA request at that time and will continue to do so.
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    In decisions served in this proceeding on June 9, 2004, and June 
15, 2004, Lee County was granted exemptions and waivers from various 
statutory provisions governing rail line abandonments and several of 
the Board's related regulations that were not relevant to its adverse 
abandonment application or that sought from applicant information not 
available to it. Specifically, Lee County was granted waivers from the 
notice of intent requirements at 49 CFR 1152.20(a)(2)(xii), (a)(3), and 
(b)(1), and 1152.21, and was granted exemptions and waivers from the 
application requirements at 49 U.S.C. 10903(a)(3)(B) and (c), and 49 
CFR 1152.22(a)(4), (b)-(d) and (i) and 1105.7(b).\3\
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    \3\ Because Lee County had already satisfied a number of 
provisions for which it had requested a waiver, some of its waiver 
requests were denied as unnecessary. A fee waiver request had been 
granted earlier by the Board's Secretary.
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    Lee County states that, based on the information it possesses, the 
line does not contain federally granted rights-of-way. Any 
documentation in Lee County's possession will be made available 
promptly to those requesting it. Applicant's entire case-in-chief for 
abandonment was filed with the application.
    The interests of affected railroad employees will be protected by 
the conditions set forth in Oregon Short Line R. Co.--Abandonment--
Goshen, 360 I.C.C. 91 (1979).
    Any interested person may file written comments concerning the 
proposed abandonment or protests (including protestant's entire 
opposition case) by August 2, 2004.
    Persons opposing the proposed adverse abandonment who wish to 
participate actively and fully in the process should file a protest. 
Persons who may oppose the abandonment but who do not wish to 
participate fully in the process by submitting verified statements of 
witnesses containing detailed evidence should file comments. Parties 
seeking information concerning the filing of protests should refer to 
Sec.  1152.25.
    All filings in response to this notice must refer to STB Docket No. 
AB-400 (Sub-No. 4) and must be sent to: (1) Surface Transportation 
Board, 1925 K Street, NW., Washington, DC 20423-0001; and (2) Robert P. 
vom Eigen, Foley & Lardner, 3000 K Street, NW., Suite 500, Washington, 
DC 20008. Filings may be submitted either via the Board's e-filing 
format or in the traditional paper format. Any person using e-filing 
should comply with the instructions found on the Board's http://www.stb.dot.gov Web site, at the ``E-FILING'' link. Any person 
submitting a filing in the traditional paper format should send an 
original and 10 copies of the filing to the Board with a certificate of 
service. Except as otherwise set forth in section 1152, every document 
filed with the Board must be served on all parties to the abandonment 
proceeding. 49 CFR 1104.12(a).
    The waiver decision noted that Lee County had sought a waiver from 
the environmental requirements at 49 CFR 1152.22(f), arguing that the 
proposed adverse abandonment would not cause a departure from the 
volume of railroad traffic when it becomes effective. However, the 
Board denied this request. It noted that, because Lee County had 
already submitted the required environmental documentation to the 
Board's Section of Environmental Analysis (SEA), a waiver was not 
needed.
    An environmental assessment (EA) (or environmental impact statement 
(EIS), if necessary) prepared by SEA will be served upon all parties of 
record and upon any agencies or other persons who commented during its 
preparation. Any other persons who would like to obtain a copy of the 
EA (or EIS) may contact SEA. EAs in abandonment or discontinuance 
proceedings normally will be made available within 33 days of the 
filing of the application. The

[[Page 40719]]

deadline for submission of comments on the EA will generally be within 
30 days of its service. The comments received will be addressed in the 
Board's decision. A supplemental EA or EIS may be issued where 
appropriate.
    Persons seeking further information concerning abandonment 
procedures may contact the Board's Office of Public Services at (202) 
565-1592 or refer to the full abandonment regulations at 49 CFR part 
1152. Questions concerning environmental issues may be directed to SEA 
at (202) 565-1539. [Assistance for the hearing impaired is available 
through the Federal Information Relay Service (FIRS) at 1-800-877-
8339.]
    Board decisions and notices are available on our Web site at http://www.stb.dot.gov.

    Decided: June 28, 2004.

    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 04-15199 Filed 7-2-04; 8:45 am]
BILLING CODE 4915-01-P