[Federal Register Volume 66, Number 93 (Monday, May 14, 2001)]
[Notices]
[Pages 24418-24419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12049]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Docket No. AB-31 (Sub No. 38)]


CSX Corporation and CSX Transportation, Inc.--Adverse 
Abandonment--Canadian National Railway Company and Grand Trunk Western 
Railroad Inc.

    On April 24, 2001, CSX Corporation and CSX Transportation, Inc. 
(collectively, CSX) filed an adverse application under 49 U.S.C. 10903 
requesting that the Surface Transportation Board (Board) authorize the 
abandonment by Canadian National Railway Company (CNR) \1\ and its 
wholly owned affiliate Grand Trunk Western Railroad Incorporated (GTW), 
of a portion of a rail line known as Track No. 239 extending from 
milepost 26.4 to milepost 27.0 near 43rd Street and Damen Avenue, in 
Chicago, Cook County, IL, a distance of 2,952 feet. The track is 
situated on property leased from New York Central Lines, L.L.C. (NYC). 
The line traverses United States Postal Service ZIP Code 60609 and 
includes no stations. In the alternative, CSX seeks an order of adverse 
discontinuance against GTW's operations on the line.
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    \1\ GTW states in its February 21, 2001 Reply to CSX's Petition 
for Waiver that it owns Track 239 and contends that CNR is not a 
proper party to this proceeding. That contention would properly be 
the subject of a motion to dismiss accompanied by supporting 
evidence.
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    CSX indicates that it filed the adverse abandonment application so 
that it could proceed with plans to utilize the track to service its 
new 59th Street intermodal facility. CSX asserts that serious 
congestion problems near its facility have magnified its need to access 
and control the right-of-way. CSX maintains that GTW ceased using the 
line in 1996. Under its Operating Agreement with NYC, CSX 
Transportation, Inc. is the operator of the leased property and the 
entity with rights to enforce the lease, acquired as part of CSX's 
acquisition of certain assets of Consolidated Rail Corporation 
(Conrail). CSX asserts that, although it has trackage rights over the 
line, GTW has not allowed it to make necessary changes to utilize the 
track, has refused in recent years to make rent payments due under the 
lease agreement, and has

[[Page 24419]]

refused to vacate the premises. CSX seeks to enforce a termination 
clause contained in the lease under state law.\2\ This agency and its 
predecessor have long held that granting an adverse abandonment 
application would remove this agency's primary jurisdiction over the 
line, thereby subjecting the line to actions under state law.\3\
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    \2\ Conrail exercised its lease termination rights to recover 
possession of the underlying land by giving 30 days' notice. It also 
sought possession of the track, pursuant to lease terms that allowed 
CSX to retain improvements on the property if GTW fails to remove 
all improvements within 10 days after the lease is terminated. 
Specifically, in May 2000, CSX filed a forcible entry and detainer 
action against GTW in the U.S. District Court for the Northern 
District Illinois, CSX Transportation, Inc. v. Canadian National 
Railway Co., et. al, Case No. OOC 1462 (N.D. Ill.). The District 
Court granted defendants' motion to dismiss concluding that the 
Board has exclusive jurisdiction to determine whether the track is 
subject to its regulatory jurisdiction.
    \3\ See Modern Handcraft, Inc.--Abandonment, 363 I.C.C. 969 
(1981); Kansas City Pub. Ser. Frgt. Operations Exempt.--Aban., 7 
I.C.C.2d 216, 244-26 (1990); and Chelsea Property Owners--Aban.--The 
Consol. R. Corp., 8 I.C.C.2d 773, 778 (1992), aff'd sub nom. Conrail 
v. ICC, 29 F.3d 706 (D.C. Cir. 1994).
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    In a decision served in this proceeding on March 2, 2001, CSX was 
granted a waiver from many of the filing requirements of the Board's 
abandonment regulations at 49 CFR 1152 that were not relevant to its 
adverse abandonment application. Specifically, CSX was granted waiver 
from the notice requirements at 49 CFR 1152.20(a)(2)(i) and the content 
requirements at 49 CFR 1152.22(a)(5), (b), (c), (d), (e)(1), (e)(2), 
(e)(4), and (g). However, CSX was required to comply with the notice 
requirements at 49 CFR 1150.20(a)(1), (a)(2) and (b)(1) and 1152.21, 
the content requirements at 49 CFR 1152.22(e)(3), and the filing and 
service requirements at 1152.24(b). Also, the Board did not waive the 
environmental regulations at 49 CFR 1152.22(f).
    CSX states that, to the best of its knowledge, the line does not 
contain federally granted rights-of-way. Any documentation in CSX's 
possession will be made available promptly to those requesting it. The 
applicant's entire case in chief for abandonment was filed with the 
application, and it describes alternative routing options that will be 
available to GTW should the application be granted.
    The interests of 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 June 8, 2001. All interested persons should be 
aware that, following any abandonment of rail service and salvage of 
the line, the line may be suitable for other public use, including 
interim trail use. Any request for a public use condition under 49 
U.S.C. 10905 (49 CFR 1152.28) or for a trail use condition under 16 
U.S.C. 1247(d) (49 CFR 1152.29) must be filed by June 8, 2001. Each 
trail use request must be accompanied by a $150 filing fee. See 49 CFR 
1002.2(f)(27). However, in its application, CSX seeks an exemption from 
the following statutory provisions: 49 U.S.C. 10903(a)(2)(C), which 
requires a statement concerning interested subsidy or sale offers; 
section 10904, which relates to offers of financial assistance for the 
purchase of or subsidy for a rail line proposed for abandonment; and 
section 10905, which relates to offers for sale for public purposes of 
abandoned rail properties. These requests will be addressed in the 
decision on the merits.\4\ The due date for applicant's reply is June 
25, 2001.
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    \4\ CSX also requests an exemption from statutory requirements 
at 49 U.S.C. 10903(a)(3) and 10903(c). However, because the Board 
has already ruled on CSX's previous request for waivers from 
corresponding Board regulations, that portion of the request will be 
dismissed as moot.
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    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 
section 1152.25.
    All filings in response to this notice must refer to STB Docket No. 
AB-31 (Sub-No. 38) 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) David Coburn, Steptoe & Johnson LLP, 
1330 Connecticut Av., NW., Washington, DC 20036-1795. 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 abandonment proceeding. 49 CFR 1104.12(a).
    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 or discontinuance regulations 
at 49 CFR part 1152.
    The March 2 decision noted that CSX had requested waiver from the 
environmental requirements of 49 CFR 1152.22(f), arguing that its 
proposal has no environmental impact and therefore qualifies for 
treatment under 49 CFR 1105.6(c). However, the March 2 decision 
indicated that CSX should make that showing in its application, rather 
than seeking a waiver.
    In its application, CSX asserts that the proposal is analogous to 
the discontinuance of trackage rights where the affected line will 
continue to be operated and, consequently, is exempt from environmental 
review under 49 CFR 1105.6(c). Nonetheless, CSX has prepared an 
Environmental Report in consultation with the Board's Section of 
Environmental Analysis (SEA). On the basis of that report, CSX urges 
the Board to find that a grant of this application will not have any 
significant or adverse environmental impacts. Questions concerning 
environmental issues may be directed to SEA at (202) 565-1545. [TDD for 
the hearing impaired is available at 1-800-877-8339.]
    Board decisions and notices are available on our website at 
``WWW.STB.DOT.GOV.''

    Decided: May 8, 2001.

    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 01-12049 Filed 5-11-01; 8:45 am]
BILLING CODE 4915-00-P