[Federal Register Volume 66, Number 246 (Friday, December 21, 2001)]
[Notices]
[Pages 66014-66015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31504]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Docket No. AB-596]


New York City Economic Development Corporation--Adverse 
Abandonment--New York Cross Harbor Railroad, Inc., in New York, NY

    On December 4, 2001,\1\ New York City Economic Development 
Corporation (NYCEDC) on behalf of the City of New York (City) filed an 
adverse application under 49 U.S.C. 10903 requesting that the Surface 
Transportation Board

[[Page 66015]]

(Board) authorize the abandonment by New York Cross Harbor Railroad, 
Inc. (NYCH), of the Bush Terminal Yard (a/k/a ``First Avenue Yard'') 
and the Harborside Industrial Center (a/k/a ``Brooklyn Army Terminal'') 
(jointly the Tracks and Facilities), in New York, Kings County, NY. The 
line traverses United States Postal Service ZIP Codes 11232 and 11220. 
There is no indication that there are stations on the line.
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    \1\ On December 4, 2001, NYCEDC filed a petition for a 1-day 
extension of time in order to gather the information necessary to 
file its application for adverse abandonment. Board regulations and 
case law permit extension of time for filing when good cause is 
shown and no party will be prejudiced by the delayed submission. See 
Huron Valley Steel Co. v. Seaboard System RR, Inc., ICC Docket No. 
39886 (ICC served Feb. 12, 1988). The extension is granted and the 
application is accepted because NYCEDC has shown good cause and no 
party will be prejudiced by the delay.
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    NYCEDC maintains that NYCH has caused and will continue to cause 
significant environmental damage to the tracks and facilities by 
dumping chemicals and pesticides used in the operation and maintenance 
of a railroad. NYCEDC indicates that it filed the adverse abandonment 
application so that it could proceed with plans to bring suit in state 
court to evict NYCH from the tracks and facilities.\2\ NYCEDC also 
claims that NYCH has incurred $20,107.61 in late fees since July 1995.
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    \2\ NYCH does not own the tracks and facilities or the 
underlying land; rather it leases the tracks and facilities from the 
City. NYCEDC contends that NYCH has breached its lease by violating 
local fire codes and state and Federal environmental law. In its 
Combined Environmental and Historic Report, NYCEDC indicates that 
the tracks and facilities will continue to be used for rail purposes 
because of the planned re-development and expansion of the adjacent 
maritime terminals in order to promote water to rail movement of 
cargo.
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    In an application by a third party for a determination that the 
public convenience and necessity permits service over a line to be 
discontinued or abandoned, the issue before the Board is whether the 
public interest requires that the line in question be retained as part 
of the national rail system. By granting a third party application, the 
Board withdraws its primary jurisdiction over the line. Questions of 
the disposition of the line, including the adjudication of various 
claims of ownership or other rights and obligations, are then left to 
state or local authorities. See Kansas City Pub. Ser. Frgt. Operations 
Exempt.--Aban., 7 I.C.C.2d 216, 224-26 (1990).
    NYCEDC states that, to the best of its knowledge, the line does not 
contain any federally granted rights-of-way. Any documentation in 
NYCEDC's possession will be made available promptly to those requesting 
it. The applicant's entire case for abandonment was filed with the 
application.\3\
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    \3\ In a decision served in this proceeding on December 3, 2001, 
NYCEDC was granted a waiver from many of the filing requirements of 
the Board's abandonment regulations at 49 CFR 1152 that were found 
to be not relevant to NYCEDC's adverse abandonment application. On 
December 10, 2001, NYCEDC filed a supplement to its application to 
address the requirements not waived in the December 3 decision. The 
supplement is accepted for filing.
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    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 January 18, 2002. Applicant's reply is due on 
February 4, 2002. Because the line is publicly owned and is expected to 
remain in rail service under some new arrangement, trail use/rail 
banking, and public use requests are not appropriate. In light of the 
proposed eviction and subsequent resumption of rail service, offers of 
financial assistance to acquire or subsidize service on the line are 
not required by the public interest and will not be entertained in this 
proceeding.
    Persons opposing the 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. Persons seeking information concerning 
the filing of protests should refer to 49 CFR 1152.25.
    All filings in response to this notice must refer to STB Docket No. 
AB-596 and must be sent to: (1) Surface Transportation Board, Office of 
the Secretary, Case Control Unit, 1925 K Street, N.W., Washington, DC 
20423-0001; and (2) Charles A. Spitulnik and Alex Menendez, One 
Massachusetts Ave, NW, Suite 800, Washington, DC 20001. 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 or discontinuance 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 1152. Questions concerning environmental issues may be 
directed to the Board's Section of Environmental Analysis (SEA) at 
(202) 545-1552. [TDD for the hearing impaired is available at 1-800-
877-8339.]
    An environmental assessment (EA) (or environmental impact statement 
(EIS), if necessary) prepared by SEA will be served upon all parties of 
record and upon any agencies or other persons who commented during its 
preparation. Other interested persons may contact SEA to obtain a copy 
of the EA (or EIS). EAs in abandonment or discontinuance proceedings 
normally will be made available within 33 days of the filing of the 
application. The deadline for submission of comments on the EA will 
generally be within 30 days of its service. The comments received will 
be addressed in the Board's decision. A supplemental EA or EIS may be 
issued where appropriate.
    Board decisions and notices are available on our website at 
WWW.STB.DOT.GOV.

    Decided: December 14, 2001.

    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 01-31504 Filed 12-20-01; 8:45 am]
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