[Federal Register Volume 60, Number 239 (Wednesday, December 13, 1995)]
[Notices]
[Pages 64075-64076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30240]



-----------------------------------------------------------------------

INTERSTATE COMMERCE COMMISSION
[Finance Docket No. 31102]


Wisconsin Central Ltd.--Exemption Acquisition and Operation--
Certain Lines of Soo Line Railroad Company

AGENCY: Interstate Commerce Commission.

ACTION: Notice of decision modifying historic preservation condition 
imposed in 1988.

-----------------------------------------------------------------------

SUMMARY: The Commission has removed a condition, imposed in 1988 in 
connection with a sale of rail lines, that prevented the railroad from 
selling, destroying or modifying affected properties until completion 
of procedures under section 106 of the National Historic Preservation 
Act. 16 U.S.C. 470f.

EFFECTIVE DATE: January 12, 1996.

FOR FURTHER INFORMATION CONTACT: Louis Mackall, (202) 927-6056. [TDD 
for the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: On November 25, 1994, the Commission issued 
a Federal Register notice (59 FR 60656) concerning a proposal to reopen 
this proceeding to remove a condition that was imposed 6 years before 
in this rail line sale proceeding. We noted that the condition is 
inconsistent with our current procedures and may no longer be 
necessary. After reviewing the comments, we believe that our proposal 
should be adopted, and the condition modified.
    As we previously noted, Wisconsin Central Ltd. (Wisconsin Central) 
purchased approximately 1800 miles of rail line from Soo Line Railroad 
Company (Soo), on October 11, 1987, pursuant to the class exemption for 
rail line sales, 49 CFR 1150.31 et seq.<SUP>1 We allowed the sale to 
proceed under the class exemption, but imposed a historic preservation 
condition. Rather than delaying the public benefit of the line sale in 
preserving rail service, we permitted the sale, but ordered the carrier 
not to take any steps that would affect historic properties until after 
the National Historic Preservation Act (NHPA) process could be 
completed. We imposed the following broad historic preservation 
condition:

    \1\ See Wisconsin Central Ltd.--Exemption Acquisition and 
Operation--Certain Lines of Soo Line Railroad Company, Finance 
Docket No. 31102 (ICC served July 28, 1988). The exemption removes 
certain regulatory requirements associated with filing a formal 
application under 49 U.S.C. 10901.
---------------------------------------------------------------------------

    The Commission will undertake a section 106 National Historic 
Preservation Act process in this matter. Pending completion thereof, 
[Wisconsin Central] shall refrain from taking any action that may 
jeopardize the historic integrity of sites and structures 50 years 
old or older.

    Because of the large number of properties transferred, our Section 
of Environmental Analysis (SEA) attempted to reach a ``programmatic 
agreement'' (36 CFR 800.13) or ``memorandum of agreement'' (36 CFR 
800.5) with the various State Historic Preservation Officers (SHPOs) 
involved and the Advisory Council on Historic Preservation (ACHP) 
<SUP>2 to limit this process to historic properties that might actually 
be adversely affected by the transfer, so that we could craft 
appropriate mitigation conditions for them. As we detailed in our 
notice, however, this effort proved unsuccessful. We then used a case-
by-case historic preservation process for each particular property that 
Wisconsin Central has subsequently sought to sell or demolish. This 
process has typically been very slow, and has often taken several 
years.

    \2\ A programmatic agreement, negotiated between the ACHP and 
the responsible agency official in consultation with the appropriate 
SHPO, may be sued to determine proper historic preservation measures 
for projects when ``effects on historic properties are similar and 
repetitive.'' The programmatic agreement is a contract that must be 
agreed to in writing by ACHP, the SHPO, and the agency, to be 
effective.
    A memorandum of agreement (MOA) may be used, usually for a 
single project, where the agency and the SHPO agree on a course of 
action. ACHP must have an opportunity for comment.
---------------------------------------------------------------------------

    As we pointed out in our notice, the 1991 revisions to our historic 
preservation rules now require a historic preservation process in line 
sale cases only where, at the time of the transfer, the applicant plans 
to dispose of or alter properties subject to our jurisdiction that are 
50 years or older.<SUP>3 Implementation of Environmental Laws, 7 
I.C.C.2d 807, 828 (1991). Carriers need not file a historic report for 
rail line sales ``where . . . there are no plans to dispose of or alter 
properties subject to ICC jurisdiction that are 50 years old or 
older.'' 49 CFR 1105.8(b)(1). Nor are historic preservation conditions 
imposed absent such plans.

    \3\ These rule changes were made in consultation with the ACHP. 
It is unclear whether Wisconsin Central would have had to file a 
historic report or be subject to historic preservation conditions 
under this new standard, because it is not clear whether Wisconsin 
Central anticipated disposing of any properties at the time.
---------------------------------------------------------------------------

    In our notice, we explained that, under our new rules, if a 
condition were imposed in a line sale case such as this one, it would 
apply only to properties that are used or useful in rail service and 
that the buyer has plans to dispose of or alter as a result of the 
acquisition and outside the context of a further abandonment or sale 
application.<SUP>4 As we noted there, these rules have been applied in 
about 100 cases and have worked well in narrowing the focus of the 
historic review process to rail properties that may actually be 
affected by a sale transaction.

    \4\ If subsequent abandonment or sale authority is required for 
the disposition of properties, the appropriate NHPA review will take 
place in the context of those proceedings.
---------------------------------------------------------------------------

    The broad condition imposed here has outlived its usefulness. 
Before Wisconsin Central can dispose of any of the properties it 
obtained from Soo in 1987, it must complete a lengthy historic 
preservation process for each particular property. This situation would 
continue indefinitely, because unless we amend the condition, it would 
cover all of Wisconsin Central's properties as long as it remains a 
railroad.<SUP>5

    \5\ We note that the problem relates to sales of properties that 
are not part of a line for which abandonment authority is sought. In 
abandonment proceedings, historic structures would be documented in 
any event. 

[[Page 64076]]

---------------------------------------------------------------------------

The Comments

    In response to our notice, we received comments only from ACHP and 
from the Minnesota and Michigan SHPOs. ACHP expresses disappointment 
that it and the Commission were not able to work out some kind of 
programmatic agreement. ACHP maintains that it would be premature to 
remove the condition without requiring that the Commission and the 
Wisconsin Central demonstrate that they have made a good faith effort 
to reach a programmatic agreement.
    The Michigan SHPO argues that removal of the historic preservation 
condition now would nullify the Commission's compliance with the 
National Historic Preservation Act, and that the agency should continue 
to attempt to reach a suitable programmatic agreement. The Minnesota 
SHPO is concerned that there is at least one historic property on the 
20-mile segment of the Wisconsin Central that is in Minnesota that may 
be adversely affected by the proposal.

Discussion and Conclusions

    Eight years have now passed since Wisconsin Central acquired these 
properties. No comment has been filed challenging our assertion that 
from this point forward, Wisconsin Central's sale or demolition of 
properties should no longer be considered to be the result of the 
original purchase from the Soo. Rather, because of the passage of time, 
these decisions more appropriately are considered to be the normal 
result of the carrier's continuing ownership and management of these 
properties. If this transaction were to take place today, we would 
impose a historic condition only with regard to particular properties 
that the carrier identifies at the outset that it contemplates selling 
or altering. Thus, it would be unfair to continue to impose a greater 
burden on Wisconsin Central than we would now impose on other 
railroads.
    There would be no point in entering into a programmatic or a 
memorandum of agreement now, nor do we believe that continuing the 
condition is necessary for compliance with NHPA. SEA and Wisconsin 
Central have already undertaken the historic preservation process for 
every property that the carrier has altered or disposed of since these 
properties were acquired. That should cover all of the properties that 
are affected by the sale. Future property dispositions, with the 
exception set forth in the following paragraph, will not be deemed to 
result from the sale.
    Accordingly, we are reopening this proceeding and modifying the 
condition to require completion of the historic review process only 
with regard to specific properties for which that process is already 
underway or of which the carrier has already informed SEA that it plans 
to dispose.<SUP>6 The disposal or alteration of other properties is 
outside the scope of this proceeding.

    \6\ Wisconsin Central should submit a list of such properties 
within 30 days.
---------------------------------------------------------------------------

    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources. This 
proposal should not have any adverse impact on small entities.

    Decided: December 1, 1995.

    By the Commission, Chairman Morgan, Vice Chairman Owen, and 
Commissioner Simmons.
Vernon A. Williams,
Secretary.
[FR Doc. 95-30240 Filed 12-12-95; 8:45 am]
BILLING CODE 7035-01-P