[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. <SUP>1</SUP> 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. <SUP>2</SUP> 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.<SUP>3</SUP> 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.<SUP>4</SUP> Parts of the track continue to be 
used.<SUP>5</SUP>
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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.<SUP>6</SUP>
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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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