[Federal Register Volume 60, Number 55 (Wednesday, March 22, 1995)]
[Notices]
[Pages 15158-15159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6896]



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INTERSTATE COMMERCE COMMISSION
[Docket No. AB-6 (Sub-No. 365X)]


Exemption and of Interim Trail Use or Abandonment; Burlington 
Northern Railroad Company--Abandonment Exemption--in Thurston County, 
WA

    Burlington Northern Railroad Company (BN) has filed a notice of 
exemption under 49 CFR 1152 Subpart F--Exempt Abandonments to abandon a 
12.45-mile rail line between BN MP 16.00 near Belmore and BN MP 28.45 
near Gate, including the station of Little Rock at BN MP 21.4, in 
Thurston County, WA.
    BN has certified that: (1) No local traffic has moved over the line 
for at least 2 years; (2) any overhead traffic can be rerouted over 
other lines; (3) no formal complaint filed by a user of rail service on 
this line (or a state or local government entity acting on behalf of 
such user) regarding cessation of service over the line is either 
pending with the Commission or with any U.S. District Court or has been 
decided in favor of the complainant within the 2-year period; and (4) 
the requirements at 49 CFR 1105.7 (environmental report), 49 CFR 1105.8 
(historic report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 
(newspaper publication), and 49 CFR 1152.50(d)(1) (notice to 
governmental agencies) have been met.
    As a condition to use of this exemption, any employee affected by 
the abandonment shall be protected under Oregon Short Line R. Co.--
Abandonment--Goshen, 360 I.C.C. 91 (1979). To address whether this 
condition adequately protects affected employees, a petition for 
partial revocation under 49 U.S.C. 10505(d) must be filed.
    Provided no formal expression of intent to file an offer of 
financial assistance (OFA) has been received, this exemption will be 
effective on April 21, 1995, unless stayed pending reconsideration. 
Petitions to stay that do not involve environmental issues,<SUP>1 
formal expressions of intent to file an OFA under 49 CFR 
1152.27(c)(2),<SUP>2 and trail use/rail banking statements under 49 CFR 
1152.29 must be filed by April 3, 1995.<SUP>3 Petitions to reopen or 
requests for public use conditions under 49 CFR 1152.28 must be filed 
by April 11, 1995, with: Office of the Secretary, Case Control Branch, 
Interstate Commerce Commission, Washington, DC 20423.

    \1\The Commission will grant a stay if an informed decision on 
environmental issues (whether raised by a party or by the Commission 
in its independent investigation) cannot be made before the 
exemption's effective date. See Exemption of Out-of-Service Rail 
Lines, 5 I.C.C.2d 377 (1989). Any request for stay should be filed 
as soon as possible so that the Commission may take appropriate 
action before the exemption's effective date.
    \2\See Exempt. of Rail Abandonment--Offers of Finan. Assist., 4 
I.C.C.2d 164 (1987).
    \3\ The Commission will accept a late-filed trail use request so 
long as the abandonment has not been consummated and the abandoning 
railroad is willing to negotiate an agreement.
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    A copy of any petition filed with the Commission should be sent to 
applicant's representative: Sarah J. Whitley, Burlington Northern 
Railroad Company, 3800 Continental Plaza, 777 Main Street, Fort Worth, 
TX 76102-5384.
    If the notice of exemption contains false or misleading 
information, the exemption is void ab initio.
    Thurston County (County) supports the abandonment and seeks 
issuance of a notice of interim trail use/rail banking (NITU) under 16 
U.S.C. 1247(d) covering the involved lines. County has submitted a 
statement of willingness to assume financial responsibility for the 
trail in compliance with 49 CFR 1152.29. BN consents to this request 
and is willing to negotiate with County.
    While expressions of interest in interim trail use need not be 
filed until 10 days after the date the notice of exemption is published 
in the Federal Register [49 CFR 1152.29(b)(2)], the provisions of 16 
U.S.C. 1247(d) (Trails Act) are applicable, and all of the criteria for 
imposing trail use/rail banking have been met. Accordingly, based on 
BN's willingness to enter into negotiations with County, a NITU will be 
issued. The parties may negotiate an agreement during the 180-day 
period prescribed below. If a mutually acceptable final agreement is 
reached, further Commission approval is not necessary. If no agreement 
is reached within 180 days, BN may fully abandon the line. See 49 CFR 
1152.29(d)(1).
    Issuance of this NITU does not preclude other parties from filing 
interim trail use/rail banking requests. Nor does it preclude BN from 
negotiating with other parties in addition to County during the NITU 
negotiating period. If additional trail use requests are filed, BN is 
directed to respond to them. Use of the rights-of-way for trail 
purposes is subject to restoration for railroad purposes.
    The parties should note that operation of the trail use procedures 
could be delayed, or even foreclosed, by the financial assistance 
process under 49 U.S.C. 10905. As stated in Rail Abandonments--Use of 
Rights-of-Way as Trails, 2 I.C.C.2d 591 (1986) (Trails), offers of 
financial assistance (OFA) to acquire rail lines for continued rail 
service or to subsidize rail operations take priority over interim 
trail use [[Page 15159]] conditions.<SUP>4 Accordingly, if a formal 
expression of intent to file an OFA is timely filed under 49 CFR 
1152.27(c)(2), the effective date of this notice will be postponed 10 
days beyond the effective date indicated here. In addition, the 
effective date may be further postponed at later stages in the OFA 
process. See 49 CFR 1152.27(e)(2) and (f). Finally, if the line is sold 
under the OFA procedures, the notice for abandonment exemption will be 
dismissed and trail use precluded. Alternatively, if a sale under the 
OFA procedures does not occur, trail use may proceed.

    \4\The statement in Trails that section 10905 does not apply to 
abandonment or discontinuance exemptions has since been superseded 
by our adoption of rules allowing OFAs in these exemption 
proceedings. See 49 CFR 1152.27.
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    BN has filed an environmental report which addresses the 
abandonment's effects, if any, on the environment and historic 
resources. The Section of Environmental Analysis (SEA) will issue an 
environmental assessment (EA) by March 27, 1995. Interested persons may 
obtain a copy of the EA by writing to SEA (Room 3219, Interstate 
Commerce Commission, Washington, DC 20423) or by calling Elaine Kaiser, 
Chief of SEA, at (202) 927-6248. Comments on environmental and historic 
preservation matters must be filed within 15 days after the EA becomes 
available to the public.
    Environmental, historic preservation, public use, or other trail 
use/rail banking conditions will be imposed, where appropriate, in a 
subsequent decision.
    It is ordered:
    1. Subject to the conditions set forth above, BN may discontinue 
service, cancel tariffs for the line on not less than 10 days' notice 
to the Commission, and salvage track and material consistent with 
interim trail use/rail banking after the effective date of this notice 
of exemption and NITU. Tariff cancellations must refer to this notice 
by date and docket number.
    2. If an interim trail use/rail banking agreement is reached, then 
with respect to the right-of-way, it must require the trail user to 
assume, for the term of the agreement, full responsibility for 
management of, for any legal liability arising out of the transfer or 
use of (unless the user is immune from liability, in which case it need 
only indemnify BN from any potential liability), and for the payment of 
any and all taxes that may be levied or assessed against, the right-of-
way.
    3. Interim trail use/rail banking is subject to the future 
restoration of rail service and to the user's continuing to meet the 
financial obligations for the right-of-way.
    4. If interim trail use is implemented and subsequently the user 
intends to terminate trail use, it must send the Commission a copy of 
this notice of exemption and NITU and request that it be vacated on a 
specified date.
    5. If an agreement for interim trail use/rail banking is reached by 
the 180th day after service of this decision and notice, interim trail 
use may be implemented. If no agreement is reached by that time, BN may 
fully abandon the line.
    6. Provided no formal expression of intent to file an offer of 
financial assistance has been received, this notice of exemption and 
NITU will be effective on April 21, 1995.

    Decided: March 15, 1995.

    By the Commission, David M. Konschnik, Director, Office of 
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 95-6896 Filed 3-21-95; 8:45 am]
BILLING CODE 7035-01-P