[Federal Register Volume 60, Number 55 (Wednesday, March 22, 1995)]
[Notices]
[Pages 15159-15160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7052]



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INTERSTATE COMMERCE COMMISSION
[Docket No. AB-6 (Sub-No. 364X)]


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

    Burlington Northern Railroad Company (BN) has filed a notice of 
exemption under 49 CFR part 1152 Subpart F--Exempt Abandonments to 
abandon its 2.69-mile line of railroad between BN milepost 6.92 and BN 
milepost 8.19, and the 1.42-mile Cascade Pole Spur in and near 
Arlington, in Snohomish County, WA.
    BN has certified that: (1) No local traffic has moved over the line 
for at least 2 years; (2) there is no overhead traffic on the line; (3) 
no formal complaint filed by a user of rail service on the line (or by 
a State or local government entity acting on behalf of such user) 
regarding cessation of service over the line either is 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 reports), 49 CFR 1105.8 (historic 
reports), 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 requests under 49 CFR 
1152.29<SUP>3 must be filed by April 3, 1995. 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\A stay will be issued routinely by the Commission in those 
proceedings where an informed decision on environmental issues 
(whether raised by a party or by the Commission's Section of 
Environmental Analysis in its independent investigation) cannot be 
made prior to the effective date of the notice of exemption. See 
Exemption of Out-of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any 
entity seeking a stay involving environmental concerns is encouraged 
to file its request as soon as possible in order to permit this 
Commission to review and act on the request prior to the effective 
date of this exemption.
    \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 as 
long as it retains jurisdiction to do so.
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    A copy of any pleading filed with the Commission should be sent to 
applicant's representative: Sarah J. Whitley, 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.
    The Snohomish County Parks and Recreation Department (SCPRD) 
requests issuance of a notice of interim trail use/rail banking (NITU) 
for the involved line under the National Trails System Act (Trails 
Act), 16 U.S.C. 1247(d). SCPRD has submitted a statement of willingness 
to assume financial responsibility for the interim trail use and rail 
banking in compliance with 49 CFR 1152.29 and acknowledged that the use 
of the right-of-way as a trail is subject to future reactivation of 
rail service. BN consents to this request and is willing to negotiate 
with SCPRD.
    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 
[[Page 15160]] criteria for imposing trail use/rail banking have been 
met. Accordingly, based on BN's willingness to enter into negotiations 
with SCPRD, 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 SCPRD during the NITU 
negotiating period. If additional trail use requests are filed, BN is 
directed to respond to them. Use of the right-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 OFA 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), OFAs to acquire rail lines for 
continued rail service or to subsidize rail operations take priority 
over interim trail use 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 the adoption of rules allowing OFAs in these exemption 
proceedings. See 49 CFR 1152.27.
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    SCPRD also requested a 180-day public use condition under 49 U.S.C. 
10906 as an alternative to interim trail use. When the need for both 
conditions is established, it is Commission policy to impose them 
concurrently, subject to the execution of a trail use agreement. See 
Trails, supra at 609. SCPRD's submission meets the requirements for a 
public use condition prescribed at 49 CFR 1152.28(a)(2) by specifying: 
(a) The condition sought; (b) the public importance of the condition; 
(c) the time period for which the condition would be effective; and (d) 
justification for imposition of the time period. Accordingly, the 
requested 180-day public use condition will also be imposed. If a trail 
use agreement is reached for a portion of the right-of-way, BN must 
keep the remaining portion intact for the remainder of the 180-day 
period to permit public use negotiations. A public use condition is not 
imposed for the benefit of any one potential purchaser, but rather to 
provide an opportunity for any interested person to acquire either the 
whole or a portion of a right-of-way that has been found suitable for 
public purposes, including trail use.
    BN has filed an environmental report which addresses the effects of 
the abandonment, if any, on the environment and historic resources. The 
Commission's 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 is 
available to the public.
    Environmental, historic preservation, or other trail use/rail 
banking conditions will be imposed, where appropriate, in a subsequent 
decision.
    It is ordered:
    1. The abandonment of the above described line is subject to the 
conditions: (1) That BN is prohibited from disposing of the corridor, 
other than the tracks, ties and signal equipment, unless for public use 
on reasonable terms; and (2) that BN keep intact the right-of-way 
underlying the track, including all of the trail related structures 
including bridges, trestles, culverts, and tunnels, for a period of 180 
days from the effective date of this exemption, to enable any State or 
local government agency or other interested persons to negotiate the 
acquisition of the line for public use.
    2. 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.
    3. If an interim trail use/rail banking agreement is reached, it 
must require the trail user to assume, for the term of the agreement, 
full responsibility for management of, for any 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.
    4. 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.
    5. 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.
    6. If an agreement for interim trail use/rail banking is reached by 
the 180th day after service of this notice of exemption and NITU, 
interim trail use may be implemented. If no agreement is reached by 
that time, BN may fully abandon the line.

    Decided: March 16, 1995.

    By the Commission, David M. Konschnik, Director, Office of 
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 95-7052 Filed 3-21-95; 8:45 am]
BILLING CODE 7035-01-P