STB REPORT #47 - DECEMBER 1 - 15, 1999 ****************************************************************************** A compilation of decisions and notices published by the Surface Transportation Board. Includes information on track abandonments, ownership changes and trackage rights agreements. Condensed for readability. The full text is available at www.stb.dot.gov/ ****************************************************************************** SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-55 (Sub-No. 562X) CSX TRANSPORTATION, INC.--ABANDONMENT EXEMPTION--IN ROCKY MOUNT, NASH COUNTY, NC In this decision, we are granting a motion to dismiss the above-captioned petition for exemption and vacating the prior decisions in this proceeding because the track at issue is exempt spur track. By decision served on August 11, 1998, CSX Transportation, Inc. (CSXT), was granted an exemption to abandon a 0.60-mile portion of the Florence Service Lane, North End Subdivision, extending from Valuation Station 4+30 at Falls Road to Valuation Station 36+00 at the end of the track near Earl Street, in Rocky Mount, Nash County, NC, subject to environmental and standard employee protective conditions. The exemption was scheduled to become effective on September 10, 1998, but on August 21, 1998, New Southern of Rocky Mount, Inc. (NSRM), timely filed an offer of financial assistance to purchase the trackage for $17,477.28. By decision served on August 26, 1998, NSRM was found to be financially responsible and the effective date of the decision authorizing abandonment was postponed to permit the financial assistance process to proceed. By letter filed on September 21, 1998, CSXT advised the Board that it had reached an agreement with NSRM on the purchase price and would notify the Board upon consummation of the transaction. A decision served on October 1, 1998, authorized NSRM's acquisition and dismissed the petition for exemption effective on the date the sale is consummated. On September 24, 1999, the City of Rocky Mount, NC filed a motion to dismiss the petition for exemption and discontinue the proceeding. The City argues that the history, use, and physical characteristics of the track demonstrate that it is a spur, and, therefore, is exempt from the Board's abandonment and acquisition jurisdiction. As a consequence, the City requests that we dismiss CSXT's petition and vacate the order allowing NSRM to purchase the track through an OFA. The City plans to use a portion of the right-of-way for a development project, known as the Imperial Centre, that is part of the City's efforts to revitalize its downtown area. On October 8, 1999, NSRM filed a motion requesting publication of notice of the City's motion to dismiss and to extend the time for filing replies to that motion. NSRM's motion was denied by decision served on October 15, 1999, which required replies to be filed by October 25, 1999, and for any rebuttal to be filed by October 29, 1999. NSRM and CSXT timely filed separate replies opposing the City's motion, and the City timely filed a rebuttal. Our jurisdiction does not extend to the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks. While there is no single test of what constitutes an exempt track, we consider the following criteria: the track's history, past use, and physical characteristics, taking into account such factors as the length of the track, whether it serves more than one shipper, whether it is stub-ended, whether it was built to invade the territory of another railroad, whether the shipper is located at the end of the track, whether there is regularly scheduled service, the volume of traffic moving over the track, who owns and maintains the track, whether the track was constructed with light weight rail, the condition of the track, whether the track was used only for loading, unloading, or switching, and whether stations are located on the track. Based on our analysis of the relevant criteria, we conclude that the track at issue here is exempt spur track. History of the track. The City provides a detailed and well documented history of the track that is not disputed by NSRM or CSXT, except as noted below. The track was built in 1889 for Rocky Mount Mills (RMM) to connect its cotton mill with a side track that was connected to a main line of the Wilmington and Weldon Railroad Company (W&W), a predecessor of CSXT. W&W's main line was located less than two miles east of RMM's facility, and W&W's side track was used to access the Rocky Mount fairgrounds, which no longer exists. Construction of the track at issue was pursuant to an 1889 contract entered into by RMM and W&W. Under the terms of the contract, RMM agreed to furnish and grade the right-of-way for the track, and W&W agreed to furnish, install, and maintain the cross-ties and rails. W&W had the right to control the track and was permitted to use it for its purposes, subject to the provisos that its use would not interfere with the business of RMM, which would always have preference over any other business transacted on or over the track, and that approval of RMM would be required before any other shippers were allowed to use it. The City submitted a letter dated April 16, 1889, from the vice president and general manager of W&W's parent company, Atlantic Coast Line (ACL), to RMM stating that under the contract it is distinctly set forth that this road is your property and not a branch of the Weldon road, otherwise we could not make a contract to give your business precedence over all others, which would be a discrimination. In a supplemental agreement dated April 19, 1889, W&W states if any other enterprise or any other parties desire to use this track that the Railroad Company will not furnish them any facilities until they have made an arrangement with the Rocky Mount Mills. RMM granted permission to a number of industries to locate along and use the track and issued a series of notices to ACL authorizing the railroad to provide service to these shippers, including NSRM's predecessor company, Southern Cotton Oil Co. According to the City, under North Carolina law, these arrangements, which did not include payment of any consideration to RMM, created, at most, licenses for use of the track that were revocable at will by RMM. RMM acquired the land for the right-of-way in a series of grants in early 1889. The track, which was 1.25 miles in length, was built between February and May of 1889. The first 0.60 miles of the track, extending from the Fair Ground side track, is proposed for abandonment in this proceeding. The last 0.65 miles of the track to RMM's facility was abandoned, apparently sometime between 1989 and 1993, without authorization from our predecessor agency, the Interstate Commerce Commission. NSRM challenges the City's claim that the 0.60-mile segment at issue rests on land owned by RMM. NSRM alleges that this segment was the original track to the fairgrounds, which was constructed more than 20 years before RMM's track, and that the location of NSRM's predecessor, Southern Cotton, as shown on an 1891 map of Rocky Mount, is adjacent to the former fairgrounds site. NSRM points out that the City has not shown that RMM ever granted permission for Southern Cotton to locate on or to use its section of track, which NSRM alleges shows that RMM did not own the section of track on which its facilities are located. NSRM argues that the circumstances of the two track sections are sufficiently different to show that the track at issue is not exempt track. The City, in its rebuttal, provides an analysis of deeds to the property to substantiate its claim that the underlying right-of-way for the entire track segment considered here is owned by RMM. The City also points out that the 1891 map, relied on by NSRM, shows that the track serving Southern Cotton is labeled RMMRR, which apparently stands for Rocky Mount Mills Railroad. On this record, we find that the track at issue is part of the original track constructed for RMM. The fact that CSXT is unable to locate any documentation concerning its abandonment of the end 0.65-mile segment of the track to RMM's former facilities indicates that CSXT treated this section of the track as an exempt spur, and supports the conclusion that the remaining 0.60- mile segment is also an exempt spur. We find that, at least as far as the history of the track is concerned, it is an exempt spur. Use of the track. According to the verified statement of the president of RMM, which was submitted by the City to support its motion to dismiss, line haul trains never operated on the track, but rather switch engines were used to push cars, as needed, from the main line to and from the shippers facilities. The president of RMM also states that, to the best of his knowledge, traffic over the track has always been light and no stations were ever established and no express, passenger, or mail service was ever provided. In CSXT's abandonment petition for exemption, only Log Cabin Homes and NSRM were identified as recent users of the track. Log Cabin Homes received only 6 carloads of lumber in 1996, and 10 carloads in 1997. NSRM shipped 16 carloads of vegetable oil and meal in 1996 and nothing else after that. Based on these facts, we find that the use of the track indicates that it is an exempt spur. Physical characteristics of the track. The track segment here is short and stub-ended. It was originally constructed to serve only one shipper, located at the end of the track. As such, it was not built to invade the territory of another railroad. The track was constructed on land purchased, cleared, and graded by the shipper. No stations were ever established on the track. Finally, it was constructed of 85-pound jointed rail, which is obsolete for modern day railroading. These undisputed facts meet all of the physical characteristics of an exempt spur. Summary. The history, use, and physical characteristics of the track all indicate that this is an exempt spur. Accordingly, we find that the track, which was the subject of CSXT's abandonment petition, is exempt from our abandonment and acquisition jurisdiction and, therefore, grant the City's request to dismiss the petition and vacate all previous decisions in this proceeding. It is ordered: 1. The motion to dismiss filed by the City of Rocky Mount is granted. 2. The previous decisions served in this proceeding are vacated, and the proceeding is discontinued. 3. This decision is effective on December 31, 1999. Petitions to stay must be filed by December 13, 1999. Petitions to reopen must be filed by December 21, 1999. Decided: November 30, 1999 Service Date - December 1, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-391 (Sub-No. 7X)] Red River Valley & Western Railroad Company--Abandonment Exemption--in McLean, Sheridan and Wells Counties, ND Red River Valley & Western Railroad Company (RRVW) has filed to abandon approximately 56.34 miles of rail line from milepost 29.16 west of Bowdon and to milepost 85.5, at the end of the track, west of Turtle Lake, in McLean, Sheridan and Wells Counties, ND. Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on January 1, 2000, unless stayed pending reconsideration. RRVW shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by RRVW's filing of a notice of consummation by December 2, 2000, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: November 22, 1999. Service Date - December 2, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33826] North Carolina Ports Railway Commission d/b/a Beaufort & Morehead Railway Acquisition and Operation Exemption Beaufort & Morehead Railway, Inc. North Carolina Ports Railway Commission d/b/a Beaufort & Morehead Railway (NCPRC), a state agency which is a non-operating railroad, has filed to acquire the railroad franchise and business of Beaufort & Morehead Railway, Inc. (BMRI), an entity it already controls. BMRI will assign its lease of a line of railroad extending from milepost 0.0 to milepost 0.87, a distance of .87 miles in Carteret County, NC, to NCPRC. BMRI will cease being a railroad, and NCPRC will become the operator of the line. The transaction is scheduled to be consummated on or after November 26, 1999. Decided: November 24, 1999. Service Date - December 2, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION AND NOTICE OF INTERIM TRAIL USE OR ABANDONMENT STB Docket No. AB-439 (Sub-No. 4X) DALLAS AREA RAPID TRANSIT--ABANDONMENT EXEMPTION-- IN DALLAS COUNTY, TX Dallas Area Rapid Transit (DART) and Union Pacific Railroad Company (UP) filed for DART to abandon and UP to discontinue service over a 3.04-mile line of railroad known as the Athens Branch East between milepost 308.80 at Pleasant Drive to the end of the track at milepost 305.76 at Rylie Road, in Dallas County, TX. Notice of the exemption was served on November 4, 1999. The exemption is scheduled to become effective on December 4, 1999. SEA states that the Texas Natural Resource Conservation Commission (TNRCC) indicates that it does not anticipate significant long term environmental impacts from this project as long as construction and waste disposal activities associated with it are completed in accordance with applicable local, state and federal environmental permits and regulations. TNRCC requests that DART take necessary steps to ensure that best management practices to control runoff from construction sites be utilized to prevent detrimental impact to surface and ground water. TNRCC also states that, although any demolition, construction, rehabilitation or repair project will produce dust and particulate emissions, these actions pose no significant impact upon air quality standards and the minimal dust and particulate emissions can easily be controlled with standard dust and mitigation techniques by the construction contractors. On November 29, 1999, TNRCC filed an additional letter stating that it has been determined that an Application for Approval of Floodplain Development Project need not be filed, but the records indicates that the community is a participant in the National Flood Insurance Program and has a Flood Hazard Prevention Ordinance/Court Order. TNRCC states that care should be taken to ensure that the proposed construction takes into account the possible Flood Hazard Areas within the community's floodplains. TNRCC finally states that the Office of Planning, Remediation Division, has reviewed the project and does not believe that it will have any adverse environmental effects. By petition filed October 7, 1999, the City of Dallas Trinity River Corridor Project, a governmental agency interested in transportation, recreation, natural resources, flood control and economic development filed a request for issuance of a notice of interim trail use (NITU) for the entire line, and for a public use condition so that it can negotiate with DART for acquisition of the right-of-way for use as a recreational trail. The City requests that DART be prohibited from disposing of the corridor, other than the tracks, ties and signal equipment, except for public use on reasonable terms, and that DART be barred from removing or destroying any trail-related structures, such as bridges, trestles, culverts and tunnels, for a 180-day period from the effective date of the abandonment exemption. The City states that it needs the full 180-day period because it has not had an opportunity to complete a trail plan or commence negotiations with DART. By letter filed October 12, 1999, DART stated that it is willing to consider use of the line and plans to rail bank the line and retain its interest in the right-of-way for possible future use as a transportation corridor. On October 21, 1999, DART advised the Board that it is willing to negotiate with the City for interim trail use. The City's request complies with the requirements and DART is willing to negotiate. Therefore, a NITU will be issued. The parties may negotiate an agreement during the 180-day period prescribed below. If the parties reach a mutually acceptable final agreement, no further Board action is necessary. If no agreement is reached within 180 days, DART may fully abandon the line. To justify a public use condition, a party must set forth: (i) the condition sought; (ii) the public importance of the condition; (iii) the period of time for which the condition would be effective; and (iv) justification for the imposition of the period of time requested. The City has satisfied these requirements and, therefore, a 180-day public use condition will be imposed commencing with the effective date of the exemption. It is ordered: 1. This proceeding is reopened. 2. Upon reconsideration, the exemption for abandonment of the line described above is subject to the conditions that DART shall: (a) consult with Mr. Clyde Bohmfalk, Policy and Regulations Division, concerning surface and ground water, and Mr. Ken Gathright, Air Quality Planning and Assessment, concerning air quality; (b) notify the community floodplain administrator to ensure that all construction is in compliance with the community's Flood Hazard Prevention Ordinance/Court Order; (c) contact Mr. Mike Howard, regarding water quantity; and (d) contact Mr. Randy Arnett if there are questions regarding waste remediation. 3. The notice of exemption served and published on November 4, 1999, exempting the abandonment of the line described above is modified to the extent necessary to implement interim trail use/rail banking as set forth below and subject to the condition that DART keep intact the right-of-way underlying the track, including bridges, trestles, culverts (but not track or track material or signal equipment), for a period of 180 days from the December 4, 1999 effective date (until June 1, 2000), to enable any state or local government agency, or other interested person to negotiate the acquisition of the line for public use. If an interim trail use/rail banking agreement is executed before the 180-day period specified above, the public use condition will expire to the extent the trail use/rail banking agreement covers the same line. 4. 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 legal liability arising out of the transfer or use of, and for the payment of any and all taxes that may be levied or assessed against the right-of-way. 5. Interim trail use/rail banking is subject to the future restoration of rail service and to the user's continuing to meet the financial obligation for the right-of-way. 6. If interim trail use is implemented, and subsequently the user intends to terminate trail use, it must send the Board a copy of this decision and notice and request that it be vacated on a specified date. 7. If an agreement for interim trail use/rail banking is reached by June 1, 2000, interim trail use may be implemented. If no agreement is reached by that time, DART may fully abandon the line. Decided: November 30, 1999 Service Date - December 3, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 33810 WISCONSIN CHICAGO LINK LTD.--LEASE EXEMPTION--PENNSYLVANIA LINES LLC On October 21, 1999, Wisconsin Chicago Link Ltd. (WCLL) filed a notice to lease from Pennsylvania Lines LLC (PRR) approximately 1.9 miles of rail line (the Panhandle Line) of the former Pittsburgh Cincinnati, Chicago & St. Louis Railroad Company (PCC&StL) in Chicago, Cook County, IL. The Panhandle Line extends between (1) a connection with CSX Transportation, Inc. (CSXT) via the Altenheim Subdivision of The Baltimore and Ohio Chicago Terminal Railroad Company at Ogden Junction near Rockwell Street (approximately PCC&StL milepost 309.8), and (2) a point (approximately PCC&StL milepost 307.9) 600 feet north of the north bank of the Chicago Sanitary and Ship Canal, near the Ash Street Interlock. The exemption also embraced certain incidental, overhead trackage rights. Notice of the exemption was served on November 8, 1999. By letter filed November 19, 1999, WCLL has requested that the notice of exemption be withdrawn. WCLL indicated that completion of the transaction has been delayed, and that, as a result, another transaction involving WCLL (the Forest Park Line acquisition) that was filed concurrently with this withdrawal request will now occur before the Panhandle Line lease. WCLL therefore states that it will shortly file in a new docket for an exemption to lease the Panhandle line as a carrier, rather than as a noncarrier. The request will be granted and the proceeding will be dismissed. It is ordered: 1. The request to withdraw the notice of exemption is granted and the proceeding in STB Finance Docket No. 33810 is dismissed. Decided: November 29, 1999 Service Date - December 6, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33825] Wisconsin Chicago Link Ltd.--Acquisition Exemption--Wisconsin Central Ltd. Wisconsin Chicago Link Ltd. (WCLL), a noncarrier, has filed a notice to acquire from Wisconsin Central Ltd. (WCL) approximately 4.1 miles of rail line (the Forest Park Line) extending between milepost 10.9 in Forest Park, IL, and milepost 15.0 in Franklin Park, IL. WCL will retain trackage rights over the Forest Park Line, which lies within the Chicago terminal district and connects at Forest Park with the west end of the Altenheim Subdivision of The Baltimore & Ohio Chicago Terminal Railroad Company (B&OCT), a subsidiary of CSX Transportation, Inc. WCL's primary Chicago-area yard facility, Schiller Park Yard, lies north of Franklin Park. WCLL and WCL are wholly owned subsidiaries of Wisconsin Central Transportation Corporation (WCTC). WCLL previously filed a notice of exemption to lease approximately 1.9 miles of rail line (the Panhandle Line) of the former Pittsburgh Cincinnati, Chicago & St. Louis Railroad Company in Chicago, Cook County, IL. The Panhandle Line connects with the east end of the B&OCT Altenheim Subdivision. WCLL states in its notice that, due to unforeseen delays, execution of the Panhandle Line lease will not occur in accordance with the schedule previously contemplated. WCLL further states that, because it will become a carrier upon consummation of the Forest Park Line acquisition, the exemption that it obtained in STB Finance Docket No. 33810 to lease the Panhandle line as a noncarrier will no longer be appropriate. Accordingly, on November 19, 1999, WCLL concurrently filed with this notice, a letter of withdrawal of its verified notice of exemption in STB Finance Docket No. 33810. At the time of filing of this notice, an asset purchase agreement between WCLL and WCL providing for WCLL's acquisition of the Forest Park Line and WCL's retention of trackage rights on that line was expected to be finalized and executed within a week. WCL will initially continue to provide operations on the Forest Park Line pursuant to retained trackage rights. WCLL indicates that WCTC will shortly be filing a petition for exemption in a related proceeding in STB Finance Docket No. 33811, wherein WCTC will seek to continue in control of WCLL once it acquires the Forest Park Line and becomes a carrier. Pending a Board decision granting WCTC's petition for exemption to control WCLL, the stock of WCLL will be placed in an independent voting trust. The transaction was expected to be consummated on or shortly after November 26, 1999. Decided: November 29, 1999 Service Date - December 6, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 33821 UNION PACIFIC RAILROAD COMPANY--TRACKAGE RIGHTS EXEMPTION-- ELGIN, JOLIET AND EASTERN RAILWAY COMPANY On November 30, 1999, Union Pacific Railroad Company (UP) filed to acquire overhead trackage rights over a line of railroad of Elgin, Joliet and Eastern Railway Company (EJ&E), between Joliet, IL (milepost 1.8), and Waukegan, IL (milepost 75), a distance of approximately 76 miles. As pertinent here, the line passes through West Chicago, IL (milepost 29). Under the Board's regulations, the parties may consummate the transaction on or after December 7, 1999. On December 3, 1999, the City of West Chicago and Joseph Szabo, for and on behalf of the United Transportation Union-Illinois Legislative Board (UTU-IL), filed petitions to stay the scheduled effective date of the subject trackage rights pending UP's filing of an environmental report, an opportunity for public comments, and the Board's issuance of an environmental assessment and decision. The City's petition is motivated by a concern about possible adverse effects on public safety resulting from increased train traffic. UTU-IL expresses concern about the environmental impact and the impact on rail employees. The UP replied to both petitions. The standards governing disposition of a petition for stay are: (1) whether a petitioner is likely to prevail on the merits; (2) whether a petitioner will be irreparably harmed in the absence of a stay; (3) whether issuance of a stay would substantially harm other interested parties; and (4) whether issuance of a stay is in the public interest. The party seeking a stay carries the burden of persuasion on all of the elements required for such extraordinary relief. The City and UTU-IL have failed to demonstrate entitlement to a stay under the governing criteria, and, accordingly, their request will be denied. Likelihood of prevailing on the merits. Under the Board's regulations implementing environmental laws, no environmental documentation normally is prepared in trackage rights acquisition proceedings. Nevertheless, for actions that generally require no environmental documentation, the Board may decide that a particular action has the potential for significant environmental impacts and that, therefore, the applicants or petitioners should provide an environmental report. In those circumstances, the Board would then prepare either an environmental assessment or an environmental impact statement. Here, however, the petitioners have not demonstrated the existence of facts that warrant a Board finding that the proposed action has the potential for significant environmental impacts. Petitioners state that there is good reason to believe that the proposed trackage rights will result in an increase of more than eight trains per day over EJ&E's line in West Chicago either immediately, or upon completion of a connection necessary for eastbound movements toward Joliet via West Chicago, or in conjunction with a future trackage rights proposal covering EJ&E trackage east of Joliet. UP has reiterated in reply its statement that the trackage rights it proposes to implement in this proceeding will not result in an increase in eight or more trains per day. UP's reply indicates that implementation of the rights at issue here will reduce the number of grade crossings in West Chicago by eliminating less efficient routings. A key element underlying the petitioners assertion that traffic will increase is the existence of a facing point connection. That connection, however, has not been constructed. The City also expresses concern about an anticipated future extension of trackage rights to the EJ&E's eastern terminus. Should the petitioners be able to substantiate these concerns, they may form the proper basis for a petition for revocation or reconsideration or a petition in connection with future trackage rights filings if evidence in connection with those proposals would support a finding that there is a potential for significant environmental impacts. At this juncture, however, petitioners have fallen far short of demonstrating that they are likely to prevail in such a request. Irreparable harm. As the discussion above indicates, most of the increased traffic that petitioners claim will arise can only occur in the future if other events occur. Therefore, no irreparable harm will arise upon the effectiveness of the notice. The City argues that, If UP were to route additional trains over EJ&E grade crossings in West Chicago that are inadequately protected with warning devices in light of the increased train traffic, there would be significant risk of serious injury or death of West Chicago citizens. The statement is conditional, and it assumes the existence of grade crossings that are inadequately protected. The City has not demonstrated that there are any such grade crossings. This element does not support a grant of a stay. Harm to other parties. The City argues that UP would not be substantially harmed by the issuance of a stay because railroads already have voluntarily delayed implementation of the trackage rights. UP takes exception to this argument, stating that it has delayed filing in order to negotiate an accommodation with the City. In any event, the rights are designed to reduce rail traffic congestion in the Chicago area. Thus, delay in implementing the rights will delay the realization of these benefits. Public interest. Finally, the petitioners argue that a stay would be in the public interest inasmuch as it would ensure the safety of the public at large and rail employees. Petitioners have speculated, but have advanced nothing to show, that consummation of the subject transaction would, in fact, endanger the public safety. On the other hand, the change in operations proposed is intended to increase the efficiency of rail operations in the Chicago area and reduce congestion throughout the area. A consideration of this element does not support a grant of the stay request. It is ordered: 1. The petitions for stay are denied. Decided: December 6, 1999 Service Date - Late Release December 6, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-391 (SUB-NO. 7X) RED RIVER VALLEY & WESTERN RAILROAD COMPANY--ABANDONMENT EXEMPTION--IN MCLEAN, SHERIDAN AND WELLS COUNTIES, ND In this proceeding, the Red River Valley & Western Railroad Company (RRVW) has filed a notice in connection with the abandonment of its railroad line from milepost 29.16, west of Bowden, to the end of track at milepost 85.5, west of Turtle Lake, a distance of 56.34 miles in McLean, Sheridan and Wells Counties, North Dakota. No rail traffic has originated or terminated on the line since November, 1995. There are approximately 30 public and 15 private highway grade crossings on the line. There are no structures 50 years old or older owned by RRVW. The underlying right-of-way is owned by the Burlington Northern and Santa Fe Railway Company. Based on information provided by the North Dakota Department of Health and by the U.S. Department of Commerce, National Geodetic Survey, we recommend that the following two conditions be placed on any decision granting abandonment authority: 1. The railroad shall comply with the North Dakota Department of Health's Construction and Environmental Disturbance Requirements . 2. If salvage operations are expected to destroy or disturb any geodetic station markers, the railroad shall notify the U.S. Department of Commerce, National Geodetic Survey in not less than ninety days prior to commencement of such operations. Service Date - December 7, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 33795 AMERICAN PLANT FOOD CORPORATION--ALTERNATIVE RAIL SERVICE-- LINE OF TEXAS NORTHEASTERN RAILROAD American Plant Food Corporation (APF) has filed a request seeking relief to alleviate an alleged service emergency in Paris, TX. APF requests that we allow the Kiamichi Railroad Company, L.L.C., to switch industries on the tracks of the Texas Northeastern Railroad (TNER) in Paris for 30 days. TNER has filed a response. We will deny APF's request. APF states that its Paris facility, which is served by TNER, receives carloads of fertilizer materials. APF contends that the TNER has not provided adequate rail service. It claims that in the past year, cars consigned to it and placed on the TNER interchange tracks by Kiamichi were undelivered for days on end . . . . APF also submits that shipments were delayed for several days awaiting pickup by TNER to deliver to the connecting carrier's interchange tracks. APF claims that there is an emergency situation, because the service problems have lasted for at least 3 months. APF asserts that it has contacted TNER repeatedly about the alleged service problems, but that promises of improved service have been unfulfilled. Consequently, APF argues that it has had to bear the inconvenience and added costs resulting from the alleged service failures, including a $750 surcharge per car. APF states that it has spoken to representatives of Kiamichi, who have told APF that Kiamichi can provide switching service in the Paris terminal area over TNER's tracks without impairing service on its own lines. In reply, TNER claims that APF has failed to show a service emergency, and that, indeed, it has not demonstrated a single service failure. TNER also argues that APF has not attempted to discuss the alleged service concerns with it, and has failed to demonstrate that the sought alternative service would not unreasonably interfere with TNER's ability to provide service. TNER surmises that the real motive for APF's request relates not to inadequate service, but to the rates charged by TNER. APF did not file a rebuttal. We have established procedures under which shippers receiving poor service can obtain relief. A petition seeking such relief must (A) show substantial, measurable service deterioration or service inadequacy; (B) summarize discussions with the incumbent carrier and show why the incumbent is unlikely to restore adequate rail service within a reasonable time period; (C) contain a commitment from an alternative carrier to meet current transportation needs, and a showing that this service can be performed safely without hurting service to existing customers of the alternative carrier and without unreasonably interfering with the incumbent's service; and (D) be served, by hand or overnight delivery, on the incumbent and proposed alternative carriers and the Federal Railroad Administration (FRA). It does not appear that APF has met these requirements. Service Inadequacy. APF has alleged inadequate service, but it has failed to show any service failures at all. TNER states that APF has tendered only 5 carloads to TNER since January 1, 1999 (3 cars on May 12, 1999, and 2 cars on May 14, 1999), none of which has been the subject of any service complaint or inquiry by APF. APF claims that TNER's serious service failures have persisted for no less than three months time, but TNER's unrebutted submission indicates that APF has tendered no traffic to TNER during that period. APF argues that TNER has taken too long to pick up cars from Kiamichi, but TNER states that not a single car bound for APF was interchanged by Kiamichi to TNER in the past year. TNER asserts that all cars consigned to APF during that time were interchanged by the Union Pacific Railroad Company (UP) to TNER at Denison, TX. Moreover, TNER submits that, contrary to APF's assertion that its outbound cars sat awaiting TNER pickup, APF tendered no outbound shipments to TNER in the past year. As the record stands, we cannot find that APF has demonstrated that TNER's service has been inadequate or that it has deteriorated. Discussions With the Incumbent. The regulation requiring pre-filing discussions is designed, among other things, to ensure that the shipper and the carrier have done all that they can to work out their service issues before coming to the Board for relief. APF claims that [w]e have contacted TNER repeatedly about its flawed service but without success. TNER's promises of improved service have not been fulfilled. . . . TNER, however, asserts that neither its General Manager, its Customer Service Representative, its former Marketing Director, nor the Assistant Vice President Operations Support for RailTex, Inc., TNER's parent, recall being contacted in the past 9 months concerning service complaints. Notwithstanding its general allegation that it has sought to discuss service issues with TNER, the fact that APR has shipped only five carloads in eight months, along with its failure to file a rebuttal after TNER denied that any discussions had taken place, strongly suggests that the discussion requirements have not been met. Interference With TNER's Operations. A petitioner must show that the requested service can be provided safely and without unreasonably interfering with TNER's operations. APF claims that it has discussed these matters with Kiamichi and has been assured that Kiamichi can provide alternative service without in any way impairing service on its own lines. As TNER points out, however, APF has not indicated the nature and extent of the service Kiamichi would provide, or what TNER lines would be used. Thus, we have no way of knowing whether the proposed Kiamichi operations would unreasonably interfere with TNER's operations on the Denison-to-Paris line. Summary. APF has asserted that it needs relief. It does not appear, however, that APF has complied with the requirements or otherwise shown that TNER ought to be required to allow Kiamichi to operate over its lines. It is ordered: 1. APF's request for relief is denied. Decided: December 6, 1999 Service Date - December 7, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-406 (Sub-No 6X) CENTRAL KANSAS RAILWAY, LIMITED LIABILITY COMPANY--ABANDONMENT EXEMPTION--IN MARION AND MCPHERSON COUNTIES, KS In Jost v. STB, (D.C. Cir. Oct. 22, 1999) (Jost), the court affirmed in part and remanded in part our decision served December 18, 1998, declining to reopen this case. Specifically, the court affirmed our determination not to scrutinize the financial fitness of the trail sponsor, but remanded for further explanation our determination not to reopen the proceeding to consider the impact of alleged right-of-way sales. After reexamining the land sale issues, we adhere to our prior decision and provide the further explanation sought by the court. As explained in more detail in our 1998 Decision, in 1996 the Central Kansas Railway (CKR) filed a notice to abandon a 33.4-mile "out-of-service" rail line between Marion and McPherson, KS. Before the exemption authority became effective, Jennings & Co. (Jennings) offered to "rail bank" the line and provide for interim trail use. CKR agreed to negotiate for such an arrangement. Accordingly, the Board issued a Notice of Interim Trail Use (NITU) and subsequently granted two requests to extend the time to permit continued trail use negotiations. In June 1997, prior to the end of the negotiating period, another potential trail sponsor, the Central Kansas Conservancy Inc. (Conservancy), came forward and stated that it had reached an agreement with CKR and Jennings to purchase the right-of-way under the Trails Act. Accordingly, we modified and extended the NITU to accommodate the Conservancy's request. On September 19, 1997, CKR conveyed the entire right-of-way to the Conservancy for rail banking/interim trail use. On September 25, 1997, adjoining landowners filed a petition to reopen on the grounds of material error and changed circumstances. Petitioners alleged that, both before and after filing its notice of exemption, CKR had conveyed portions of the right-of-way to others and had thereby rendered the line unsuitable for rail banking and interim trail use. Petitioners further argued that CKR's failure to disclose these sales to the Board was a fatal defect that invalidated the carrier's use of the class exemption for out-of-service lines, so that a NITU should not have been available. In addition, petitioners argued that CKR's conveyance of portions of the right-of-way, together with the lack of service over the line and the removal of rails, ties, and ballast, showed that CKR had consummated abandonment of the line, with the result that we no longer have jurisdiction over the line, making rail banking and interim trail use no longer possible. Alternatively, petitioners alleged that, because several local governments had come to oppose rail banking/interim trail use of the rail line, the Conservancy would be unable to meet its financial obligations for trail management. In response, CKR acknowledged that it had conveyed some right-of-way along the line to others, and that some of the deeds in question were facially ambiguous. Three of the deeds had numerical descriptions indicating that the entire width (and in one case even 25 feet more than the entire right-of-way) was conveyed, but pictorial descriptions indicating that CKR had reserved to itself 100 feet of right-of-way in each case. CKR asserted that "corrected deeds" had been drafted and recorded that accurately reflected the more limited conveyances intended by the parties. However, CKR claimed that it had only conveyed "excess right-of-way" and that it had retained sufficient right-of-way in all instances to allow an uninterrupted rail corridor for rail banking/interim trail use. The pre-sale right-of-way width ranged from 100 to 300 feet. The post-sale right-of-way width, according to CKR, was from 50 to 230 feet. Right-of-way as little as 30-feet wide has been found to be sufficient for safe rail operations. Thus, CKR contends it only sold "excess" right-of-way. CKR also disputed petitioners' argument that the Conservancy would be unable to meet its financial obligations under the Trails Act. In the 1998 Decision, we denied the petition to reopen. We first explained that CKR's discontinuance of service and removal of rails, ties, and ballast did not serve to consummate the abandonment, in light of CKR's concurrent negotiations for rail banking/interim trail use. We also found no need to reopen the proceeding to examine the Conservancy's financial capacity, because the petitioners had not made a specific showing that the Conservancy would be unable to meet its financial obligations. Finally, we concluded that petitioners had not proven that CKR's conveyance of certain lots along the right-of-way made reactivation of rail service impossible. We noted that the discrepancies in the deeds were matters for an appropriate State court to resolve and stated that, should a State court find that CKR had transferred property in such a way as to preclude the restoration of rail service, we would revisit the issues. In Jost, the court expressly upheld our policy of applying a rebuttable presumption that a trail sponsor is financially qualified. Moreover, the court agreed that the presumption of financial fitness in this case had not been rebutted because the petitioners had not presented "any real evidence" that the trail sponsor was failing to meet, or would fail to meet, its responsibilities. However, the court found that we had not adequately explained our decision not to reopen the proceeding to consider whether to revoke the authorization for interim trail use in light of petitioners' evidence of CKR's right-of-way sales. The court found that clarification by the Board was needed with respect to each of the three issues raised by petitioners regarding the significance of these sales: (1) whether the railroad's failure to inform the agency of these sales constituted false and misleading information and, if so, the effect that would have on the abandonment proceeding; (2) whether rail banking and interim trail use could continue in the face of the sales that allegedly spanned the full width of the right-of-way; and (3) whether the right-of-way sales indicated that CKR had already abandoned the line prior to the issuance of the NITU. The court made clear that it was not holding that we are required to resolve ourselves disputed issues of state property law, "or even that [we are] necessarily required to reopen the proceeding on the evidence presented by [petitioners]". Furthermore, the court recognized that "even if some full-width right-of-way was sold, it may be that the Act authorizes interim trail use over the remaining right-of-way." However, because it could not fully discern our reasoning on the land sale issues, the court remanded the case for us to "address the material issues of fact which have been raised concerning the applicability of the Trails Act in whatever way the Board finds most consistent with the language and goals of the Act." The threshold issue is the extent to which a railroad filing a notice indicating that a line qualifies as "out-of-service" is required to disclose land sales that have taken place prior to seeking authority to abandon. To invoke the out-of-service class exemption, a railroad must file with the Board, at least 50 days prior to the proposed effective date, a verified notice of exemption in which the railroad certifies that the line meets certain eligibility requirements. The railroad must also include information on any known restrictions on the title to the underlying property that "would affect the transfer of title or use of the property for other than rail purposes". Accordingly, CKR should have informed the agency of the land sales that took place prior to the filing of its notice of exemption. As the court noted in Jost , there is no allegation here that any "full-width" right-of-way was sold prior to the filing of the notice of exemption. But even the conveyance of "excess" right-of-way to others could affect the transfer of title or use of property for other than rail purposes. Thus, we admonish CKR and other railroads to disclose any land sales of the underlying property (even if the sales are of "excess" right-of-way) in future cases. CKR's failure to disclose these sales, however, does not mean that CKR's initial notice of exemption must be treated as void, as petitioners have claimed. Information must be material to the transaction in order for its omission or misstatement to render a verified notice void. In the context of the class exemption for abandonment of out-of-service lines, an omission would be material to the transaction only if the information affects the eligibility of the line for the class exemption. Here, the information omitted from CKR's notice of exemption the sale of certain "excess" right-of-way had nothing to do with whether any traffic had originated or terminated on the line within the past two years, whether any shippers had filed complaints for lack of service, or whether CKR could reroute any overhead traffic. Therefore, CKR's eligibility to use the class exemption was not affected by the failure to include information regarding these sales in its initial filing. As a result, revocation of the exemption at this time is neither required nor warranted. CKR's failure to provide information about the pre-filing land sales also had no effect on the outcome of the Trails Act aspects of this proceeding. CKR has provided evidence (which petitioners have not disputed) that in each of the pre-filing land sales it specifically reserved a sufficient width of right-of-way to allow either trail use or future rail service. Thus, the line was eligible to be preserved under the Trails Act, and CKR's failure to disclose the pre-filing sales did not cause us to issue a NITU erroneously. Given CKR's undisputed evidence that in each of these pre-filing land sales, it specifically reserved a sufficient width of right-of-way to allow either trail use or future rail service, it also is clear that the partial width land sales do not show an intent to abandon or constitute a de facto abandonment of the line. It is well settled that the mere sale of property along the right-of-way does not compel the conclusion that a railroad has abandoned a line. Rather, we have long found that "it is consistent with the common carrier obligation of a railroad . . . to sell underlying assets of rail line while retaining an easement that is sufficient for carrying out rail operations." Nor did CKR's failure to disclose sales (whether pre- or post-filing) of "excess" land have any other harmful consequences in this case. No offers to acquire the line were filed and no request for a public-use condition was made under 49 U.S.C. 10905. Thus, the sale of "excess" right-of-way would have been significant, if at all, only to the proposals under the Trails Act. However, interim trail use/rail banking arrangements are purely voluntary on the part of the railroad. Thus, CKR could not be compelled to negotiate concerning, or enter into, an interim trail use agreement for the portions of "excess" right-of-way that it had decided to convey to others outside the Trails Act process. In these circumstances, we need take no action at this point to remedy CKR's failure to inform the agency of sales of "excess" right-of-way. We turn our attention now to the three sales that allegedly spanned the full width of the right-of-way, all of which took place after rail banking had commenced. We agree with the court that an allegation that a railroad has made full-width right-of-way sales is material evidence to be considered in deciding both whether we have jurisdiction to impose a trail condition and whether a railroad has consummated abandonment. Indeed, our chief concern, once a trail condition has been imposed, is whether the statutory rail banking condition has been compromised, precluding a railroad's ability to reassert control over the right-of-way at some future time to revive rail service. Therefore, we must be notified of any land sale that affects the availability of the Trails Act by making rail banking on all or part of a line impossible. Moreover, if at any time it is shown that there have been full-width right-of-way sales (by a railroad or a trail sponsor) that preclude the restoration of rail service, we would reopen the proceeding to reexamine our authorization of interim trail use. If it turns out that one or more of the three disputed sales served to sever the right-of-way, the most that could be said on the present record is that the railroad intended to abandon those three tracts. This would not necessarily indicate that CKR had intended to abandon the remainder of the line or render the remainder unavailable for interim trail use/rail banking. We retain jurisdiction over a line throughout the Trails Act negotiating period, any period of implemented rail banking/interim trail use, and any period during which rail service is restored. It is only upon a railroad's lawful consummation of abandonment authority that our jurisdiction over the line ends. However, once interim trail use/rail banking has commenced, the burden is on the landowners or other interested persons seeking to disrupt an established rail banking/interim trail use arrangement to show that active rail service cannot be restored or that the trail sponsor has failed, or likely will fail, to pay taxes, meet past or potential liability claims, or adequately manage the trail. This approach is consistent with our limited responsibilities under the Trails Act and ensures that we further, not hinder, Congress' intent that we "preserve for possible future railroad use rights-of-way not currently in service and to allow interim use of the land as recreational trails." Here, the landowners have failed to establish either that the right-of-way had been severed or what the effect of any such severance might be on the continued availability of the remainder of the right-of-way for potential future rail service. Indeed, on the issue of whether the line has been severed, the parties have presented conflicting evidence as to the intent of the parties to the deeds, and the documentary evidence is inconclusive. Accordingly, we cannot determine who actually holds title to the disputed property that CKR claims that it has reserved. It is well settled that the interpretation of deeds and the determination of who owns good title are issues of State law that are outside the expertise of this Board. Under these circumstances, we continue to believe that the most appropriate course of action for us at this point is to direct petitioners to State court to get the underlying State property law issues resolved. Should a State court determine that CKR has indeed severed the right-of-way, then we remain available to consider whether all or part of the line has been abandoned as a result and/or whether eventual restoration of rail service has been rendered impossible so as to terminate our jurisdiction over the continuing rail banking/interim trail use. In the meantime, however, we do not believe that it would be appropriate for us to reopen or to revoke the NITU, until it has been clearly established that the line can no longer be rail banked, given our limited role and responsibilities under the Trails Act and the purpose of the statute to facilitate and encourage rail banking and interim trail use on lines that would otherwise be abandoned. It is ordered: 1. Our prior decision is reaffirmed and clarified as set forth above. Decided: December 2, 1999 Service Date - December 8, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-303 (Sub-No. 17X) WISCONSIN CENTRAL LTD.--ABANDONMENT EXEMPTION-- IN MARQUETTE AND ALGER COUNTIES, MI On December 19, 1997, a decision and notice of interim trail use or abandonment (NITU) was served, authorizing a 180-day period for the Michigan Department of Natural Resources (MDNR) to negotiate an interim trail use/rail banking agreement with Wisconsin Central Ltd. (WCL) for an approximately 37.3-mile line of railroad on the Marquette-Munising Line, between milepost 154, at a point east of Marquette, and milepost 116.7 in Munising Junction, in Marquette and Alger Counties, MI. At the request of MDNR and WCL, the negotiating period under the NITU was extended by decisions served June 17, 1998, December 14, 1998, and June 11, 1999. The latest extension is scheduled to expire on December 11, 1999. By facsimile received on November 4, 1999, and letter-request filed on November 8, 1999, WCL has requested to extend the negotiating period for an additional 180 days. In a separate facsimile received on December 3, 1999, MDNR also requested that the NITU be extended for an additional 180 days. The parties state that they are continuing to negotiate an interim trail use/rail banking agreement and expect to complete an agreement within 180 days. The requested extension of the negotiation period under the NITU will be granted. It is ordered: 1. The negotiating period under the NITU is extended to June 8, 2000. Decided: December 6, 1999 Service Date - December 9, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT AB - 31 (SUB-NO.36X) Grand Trunk Western Railroad Inc. -- PETITION FOR ABANDONMENT EXEMPTION -- IN Detroit, MI. In this proceeding, the Grand Trunk Western Railroad Inc. (GTWR), has filed a petition in connection with the abandonment of service of 1.31 miles of railroad line between railroad milepost 0.46 and 1.77 on the Dequindre Line in the City of Detroit, MI. The line runs adjacent to primarily urban residential properties. No freight service has moved on the line since March 1997, and there are no active shippers remaining. There are no bridges on the line. The National Geodetic Survey (NGS) has identified one station maker that may be affected by the proposed abandonment. The NGS has requested that it receive not less than 90 days notification in advance of any salvage activities in order to plan for their relocation. Therefore, we recommend, that GTWR consult with NGS at least 90 days prior to salvage activities to allow NGS to plan for their relocation. Service Date - December 10, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT AB - 402 (SUB-NO.7X) Fox Valley and Western Ltd. -- PETITION FOR ABANDONMENT EXEMPTION -- IN Washington and Fond Du Lac Counties, Wisconsin. In this proceeding, the Wisconsin Central Ltd. has filed a petition in connection with the abandonment of service of 24.64 miles of railroad line between railroad milepost 114.42, south of West Bend, to Milepost 139.06 in Eden, WI. There are three active shippers on the line, Gundrum Brothers Farm Supply, Inc., Campbellsport Building Supply and Bend Industries. Campbellsport ships lumber products, Bend ships fly ash, a cement filler, and Gundrum ships fertilizer products. Carload traffic statistics show, Gundrum, Campbellsport and Bend shipped a total of 133 and 132 carloads respectively, in 1998, 1999. The Line was formally embargoed September 2, 1999 between milepost 118.2 and milepost 138.2. There are a total of 29 bridges on the Line, all of them at least 50 years old. We recommend the following environmental conditions be placed on any decision granting abandonment authority: 1. The Wisconsin Department of Transportation (WisDOT) has expressed concern regarding proper clean up of debris during salvage activities. WISDOT states that Fox Valley and Western Ltd., must comply with the WisDOT Abandoned Railroad Line Salvage and Clean-up Policy/Standards/Procedures when they do the abandonment and related activities. We recommend the imposition of these conditions. 2. The National Geodetic Survey (NGS) has identified six station makers that may be affected by the proposed abandonment. The NGS has requested that it receive not less than 90 days notification in advance of any salvage activities in order to plan for their relocation. Therefore, we recommend, that Fox Valley and Western Ltd., consult with NGS at least 90 days prior to salvage activities to allow the NGS to plan for their relocation. 3. The Wisconsin Department of Natural Resources (WDNR) has expressed concern regarding the removal of the culverts/stream crossings during salvage activity. Therefore, we recommend that Fox Valley and Western Ltd., further consult with WDNR to determine if an erosion plan is needed by the state prior to salvage activity. Service Date - December 10, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION AND NOTICE OF INTERIM TRAIL USE OR ABANDONMENT STB Docket No. AB-563 (Sub-No. 1X) KANSAS EASTERN RAILROAD, INC.--ABANDONMENT EXEMPTION--IN BUTLER AND GREENWOOD COUNTIES, KS Kansas Eastern Railroad, Inc. (KER) filed a notice to abandon a 44.5-mile line of railroad between milepost 438.5 at Severy, and milepost 483.0 near Augusta, in Butler and Greenwood Counties, KS. Notice of the exemption was served on August 25, 1999. The exemption became effective on September 24, 1999. By decision served September 23, 1999, the exemption was made subject to the conditions that KER consult with the National Geodetic Survey (NGS) and provide NGS with 90 days notice prior to disturbing or destroying any geodetic station markers; consult with the Kansas Department of Health and Environment in Topeka to determine if a permit is required; and retain its interest in and take no steps to alter the historic integrity of the Beaumont St. Louis and San Francisco Railroad Water Tank until completion of the section 106 process of the National Historic Preservation Act. By facsimile petition received on October 19, 1999, and letter petition filed October 22, 1999, Butler County late-filed a request for the issuance of a notice of interim trail use (NITU) for the entire line, and for a public use condition in order to negotiate with KER for acquisition of the right-of-way for use as a recreational trail. The County requests that KER be prohibited from disposing of the corridor, other than the tracks, ties, and signal equipment, except for public use on reasonable terms, and that KER be barred from removing or destroying any trail-related structures, such as bridges, trestles, culverts and tunnels, for a 180-day period from the effective date of the abandonment exemption. The County states that it needs the full 180-day period to review title information, complete a trail plan, and commence negotiations with KER. It submitted a statement of willingness to assume financial responsibility for the management of, for any legal liability arising out of the transfer or use of, and for payment of any and all taxes that may be levied or assessed against, the right-of-way, and acknowledged that the use of the right-of-way for trail purposes is subject to future reactivation for rail service. By letter filed December 1, 1999, as supplemented by facsimile received on December 6, 1999, KER indicated its willingness to negotiate with the County for interim trail use for portions of the right-of-way between milepost 438.5 and milepost 476.4, and between milepost 476.65 and milepost 483.0. KER states that the remaining 0.25-mile segment between milepost 476.4 and milepost 476.65 is required by the State of Kansas for the reconstruction of a highway and that KER has entered into an agreement with the Secretary of the State of Kansas for the sale of that segment. Because the County's request complies with the requirements and KER is willing to negotiate for trail use, a NITU will be issued for the portions of the right-of-way: (a) between milepost 438.5 and milepost 476.4, and (b) between milepost 476.65 and milepost 483.0. The parties may negotiate an agreement during the 180-day period prescribed below. If the parties reach a mutually acceptable final agreement, no further Board action is necessary. If no agreement is reached within 180 days, KER may fully abandon the line, provided the conditions imposed in the September 23, 1999 decision are met. Because KER is not willing to negotiate with the County with regard to the 0.25-mile segment between milepost 476.4 and milepost 476.65, the request for issuance of a NITU for that portion will be denied. To justify a public use condition, a party must set forth: (i) the condition sought; (ii) the public importance of the condition; (iii) the period of time for which the condition would be effective; and (iv) justification for the imposition of the period of time requested. The County has satisfied these requirements and, therefore, a 180-day public use condition will be imposed commencing with the effective date of the exemption. It is ordered: 1. This proceeding is reopened. 2. Upon reconsideration, the notice of exemption served and published in the Federal Register on August 25, 1999, exempting the abandonment of the line described above is modified to the extent necessary to implement interim trail use/rail banking and to permit public use negotiations as set forth below, for portions of the line extending between milepost 438.5 and milepost 476.4, and between milepost 476.65 and milepost 483.0. 3. Subject to the conditions imposed in the decision served September 23, 1999, and consistent with the public use and interim trail use/rail banking conditions imposed in this decision, KER may discontinue service and salvage track and related materials. KER shall otherwise keep intact the right-of-way underlying the tracks, including bridges trestles, culverts and tunnels, until March 22, 2000, to enable any state or local government agency, or other interested person to negotiate the acquisition of the line for public use. If an interim trail use/rail banking agreement is executed before March 22, 2000, the public use condition will expire to the extent the trail use/rail banking agreement covers the same line segment. 4. 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 legal liability arising out of the transfer or use of (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for the payment of any and all taxes that may be levied or assessed against, the right-of-way. 5. Interim trail use/rail banking is subject to the future restoration of rail service and to the user's continuing to meet the financial obligation for the right-of-way. 6. If interim trail use is implemented, and subsequently the user intends to terminate trail use, it must send the Board a copy of this decision and notice and request that it be vacated on a specified date. 7. If an agreement for interim trail use/rail banking is reached by June 7, 2000, interim trail use may be implemented. If no agreement is reached by that time, KER may fully abandon the line. Decided: December 6, 1999 Service Date - December 10, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD STB Finance Docket No. 33388 Decision No. 135 CSX CORPORATION AND CSX TRANSPORTATION, INC., NORFOLK SOUTHERN CORPORATION AND NORFOLK SOUTHERN RAILWAY COMPANY --CONTROL AND OPERATING LEASES/AGREEMENTS-- CONRAIL INC. AND CONSOLIDATED RAIL CORPORATION Environmental Condition No. 11 of Decision No. 89 requires Applicants, with the concurrence of the responsible local governments, to mitigate train wayside noise (locomotive engine and wheel/rail noise) at noise-sensitive receptor locations on certain rail line segments. Environmental Condition No. 11 further provides that: Applicants shall certify compliance with this condition within 2 years of the effective date of the Board's final decision. This condition shall not apply to those communities that have executed Negotiated Agreements with Applicants that satisfy the communities environmental concerns. On November 19, 1999, CSX provided us with a copy of a Negotiated Agreement between CSX and the Town of Etna Green, IN, dated October 27, 1999, and accepted by Etna Green on November 9, 1999. According to CSX, this Negotiated Agreement effectuates the Board's preference for privately negotiated solutions. CSX requests that Environmental Condition No. 11 be amended to reflect the parties Negotiated Agreement by deleting Etna Green from the list of communities on the Warsaw to Tolleston, IN line segment (C-026), and that the Negotiated Agreement between CSX and Etna Green be added to the CSX Subsection of Environmental Condition No. 51 in Decision No. 89, which requires CSX to comply with the terms of all Negotiated Agreements developed with states, local communities, and other entities regarding environmental issues associated with the Conrail transaction. Etna Green concurs with the request. In view of the Negotiated Agreement between CSX and Etna Green, we will: (1) add the Negotiated Agreement to Environmental Condition No. 51 of Decision No. 89, and (2) amend Environmental Condition No. 11 of Decision No. 89 to delete Etna Green because the noise mitigation for that community has been superseded by the CSX/Etna Green Negotiated Agreement. It is ordered: 1. This proceeding is reopened. 2. In accordance with the Negotiated Agreement between CSX and the Town of Etna Green, IN, executed on November 9, 1999, the following is added to the CSX Subsection of Environmental Condition No. 51 of Appendix Q of Decision No. 89: 17. Town of Etna Green, Indiana, dated November 9, 1999. 3. In addition, Environmental Condition No. 11 of Appendix Q of Decision No. 89 is amended to delete the noise mitigation applicable to Etna Green, IN, because it has been superseded by the Negotiated Agreement. Decided: December 9, 1999 Service Date - December 10, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 33797 KEYSTONE RAILROAD, INC. D/B/A LAKE MICHIGAN AND INDIANA RAILROAD COMPANY LEASE AND OPERATION EXEMPTION BETHLEHEM STEEL CORPORATION On September 8, 1999, Keystone Railroad, Inc. d/b/a Lake Michigan and Indiana Railroad Company, a Class III rail carrier, filed a notice to lease and operate approximately 66 miles of rail line in the State of Indiana owned by Bethlehem Steel Corporation, a noncarrier. Notice of the exemption was served on September 23, 1999. On September 29, 1999, the United Transportation Union (UTU) filed a protest, urging the Board to reject the notice or require labor protection. UTU is correct in noting that Keystone is an existing carrier a fact Keystone included in its verified notice. Based on Keystone's understanding that the line, which is owned by a noncarrier, had been used as exempt switching and/or yard tracks, however, Keystone filed for an exemption to lease and operate the line. Because the notice was properly filed, the request to reject the notice will be denied. No labor protection can be imposed for this transaction. The Board has no authority to impose labor protection conditions. It is ordered: 1. Upon consideration of the issues raised in the protest, the request to reject the notice or to impose labor protection is denied. Decided: December 8, 1999 Service Date - December 13, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33815] Maryland and Pennsylvania Railroad Company and Yorkrail, Inc. Intracorporate Family Transaction Exemption Emons Transportation Group, Inc., Emons Railroad Group, Inc., Maryland and Pennsylvania Railroad Company (MPA), Yorkrail, Inc. (YKR), Maryland and Pennsylvania Railroad, LLC (M&P LLC) and Yorkrail, LLC (Yorkrail LLC) have filed a verified notice of exemption. The exempt transaction involves the merger of MPA and YKR into the newly formed York Railway Company, with York as the successor corporation. MPA and YKR are two connecting Class III carriers operating in the State of Pennsylvania. York will be a wholly owned subsidiary of Emons Rail, which in turn is a wholly owned subsidiary of Emons. York will assume all rail operations of MPA and YKR. Certain physical assets of MPA and YKR will be transferred to, respectively, M&P LLC and Yorkrail LLC, two newly formed limited liability companies. M&P LLC and Yorkrail LLC will be controlled exclusively by York. M&P LLC and Yorkrail LLC will not conduct rail operations but will assume common carrier status by virtue of their ownership of the underlying rail assets that York will operate. The transaction was expected to be consummated on December 1, 1999. The merger of MPA and YKR is intended to simplify Emons corporate structure, streamline accounting, finance and management functions, and facilitate improvements in the operational efficiency of Emons rail holdings. The creation of M&P LLC and Yorkrail LLC will preserve certain favorable financing and funding arrangements available to Emons. Decided: December 6, 1999. Service Date - December 13, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 29430 (Sub-No. 21) (Arbitration Review) NORFOLK SOUTHERN CORPORATION CONTROL NORFOLK AND WESTERN RAILWAY COMPANY AND SOUTHERN RAILWAY COMPANY We are resolving interlocutory issues that have arisen in this appeal of an award of an arbitration panel. The Transportation Communications International Union (TCU) has filed an appeal of an arbitration panel's award holding that the Norfolk Southern Railway Company (NSR) is not required to pay displacement allowances to claimant employees after (1) their work was transferred to a new location as a result of the railroad consolidation that created NSR and (2) they exercised their seniority rights to take lower paying jobs at their current locations rather than follow their jobs to the new location. In this decision, we are resolving three preliminary issues: (1) whether the Brotherhood of Maintenance of Way Employes (BMWE) will be permitted to intervene; (2) if so, whether we must strike BMWE's evidence that practice on other railroads is inconsistent with the result of the award on the grounds that the evidence was not before the arbitrator; and (3) whether we must vacate the award based on BMWE's allegation that the neutral member of the panel, William E. Fredenberger, Jr., was convicted of tax evasion. BMWE's Petition to Intervene. We will grant BMWE's petition to intervene and accept its statement in support of TCU's appeal. Although BMWE is not a party, it has a substantial interest in the outcome of this proceeding because it involves an issue of the extent of eligibility for labor protection benefits under our New York Dock conditions. This decision could provide an important precedent for future proceedings in which BMWE members may be directly affected. BMWE's intervention will not unduly disrupt resolution of, or unnecessarily broaden the issues involved in, this proceeding. BMWE does raise an issue that was not raised before the arbitrator, i.e., whether the neutral member of the panel, William E. Fredenberger, Jr., was qualified to serve on it. That issue, however, is not factually or legally complex, and NSR has had an adequate opportunity to rebut BMWE's position on that issue and any other evidence raised in BMWE's statement. BMWE's Evidence Concerning Practice on Other Railroads. BMWE proffers a statement from Ernest L. Torske, Vice President for BMWE's Northwest Region, that the result of the award is inconsistent with practice concerning the allowance of New York Dock benefits on three other railroads. NSR argues that we should not consider this evidence on the grounds that it was not part of the record before the panel and lacks relevance to this appeal. We will admit this evidence for the same reason that we are allowing BMWE's intervention. The evidence is not factually or legally complex, and NSR has had an adequate opportunity to rebut it. The evidence is relevant because longstanding, industry-wide custom and practice in the application of the New York Dock conditions can bear on its interpretation, and allowing such information into the record is consistent with our seeking comments from the public as discussed in the notice we have served and published today. While Mr. Torske has woven policy and legal opinion into his statement, such opinion goes to its weight rather than its admissibility. Qualification of Neutral Member of Panel. It is undisputed that, on April 7, 1999, before the Award was issued, neutral member Fredenberger pleaded guilty in the United States District Court for the Eastern District of Virginia to violation of the federal tax laws, and that a criminal judgment was entered against him on July 1, 1999. We will not vacate the panel's award solely because of the conviction of neutral member Fredenberger. BMWE reasons that (1) Fredenberger was acting as a federal employee employed by this Board when he was involved in the arbitration, (2) his conviction violated the duties imposed on public employees, and (3) such a violation requires that decisions made after the violation be considered void. We disagree. One dispositive flaw in BMWE's argument is that, even if Fredenberger could be viewed as having acted as a federal employee, his tax law violation had no connection whatsoever with the subject matter of the arbitration. Fredenberger's conviction for tax evasion involved his private financial affairs, not railway labor issues. BMWE has not shown, or even argued, that Fredenberger's private tax violation created a bias against TCU pertaining to this arbitration. We are aware of no authority for the proposition that legal or ethical transgressions, even by public employees, invalidate decisions by the transgressing employees that have no relationship to the issues or subject matter involved in the transgressions. Alternatively, we discount BMWE's argument because the issue of Fredenberger's conviction was not raised before the panel. Under American legal jurisprudence, objections to a decisionmaker's legal capacity to render a decision must generally be made before the decision is rendered, especially if the grounds for objection are known beforehand. This rule promotes the orderly conduct of business by courts and agencies and deters parties from bringing capacity challenges that they would not have brought if the decision had gone the other way. Here, neither TCU nor BMWE raised an issue of Fredenberger's qualifications before the panel issued its award. Indeed, TCU has not raised the issue at all, even in its appeal. Neither TCU nor BMWE claims that it was unaware of Fredenberger's tax violation during the arbitration proceeding, and, in fact, there is evidence that the violation was known while the arbitration was in process. It is ordered: 1. BMWE's petition to intervene is granted. 2. NSR's request to strike the statement submitted by BMWE witness Ernest L. Torske is denied. 3. BMWE's motion to vacate the award is denied. Decided: December 8, 1999 Service Date - December 15, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 29430 (Sub-No. 21)] Norfolk Southern Corporation Control Norfolk and Western Railway Company and Southern Railway Company (Arbitration Review) The Transportation Communications International Union (TCU) has filed with the Board an appeal of an arbitration panel's decision holding that the Norfolk Southern Railway Company (NSR) is not required to pay displacement allowances to claimant employees after (1) their work was transferred to a new location as a result of the railroad consolidation that created NSR and (2) they exercised their seniority rights to take lower paying jobs at their current locations rather than follow their jobs to the new location. We are requesting comments from the public to develop a more complete record on the fundamental issue raised here concerning displacement allowances under our labor protective conditions imposed in rail consolidation approvals. By this notice, we are requesting public comments on issues presented by the record on the appeal of an arbitration award issued by a panel chaired by neutral member William E. Fredenberger, Jr. In Finance Docket No. 29430 (Sub-No. 1), Norfolk Southern Corp. Control Norfolk & W. Ry. Co. (1982), our predecessor agency, the Interstate Commerce Commission (ICC), approved the railroad consolidation that resulted in the creation of NSR. This consolidation was approved subject to the standard labor protective conditions. Under New York Dock, labor changes related to approved transactions are implemented by agreements negotiated before the changes occur. If the parties cannot agree on the nature or extent of the changes, the issues are resolved by arbitration, subject to appeal to the Board. Once the scope of the necessarychanges is determined by negotiation or arbitration, employees adversely affected by them are entitled to receive comprehensive displacement and dismissal benefits for up to 6 years. As a recent initiative in continuing to carry out that consolidation, NSR developed a plan to coordinate and to centralize certain crew calling functions performed at various locations throughout the merged system into a Crew Management Center located in Atlanta, GA. On July 3, 1996, the carrier and TCU reached an agreement to implement this plan. On May 13, 1997, NSR notified TCU of its intention to transfer work in accordance with the Implementing Agreement. Specifically, the carrier announced that crew calling work performed on the Tennessee Division at Knoxville, TN, would be transferred to the Atlanta Crew Management Center. Positions would be abolished at Knoxville and similar positions would be established in Atlanta. On July 21, 1997, the carrier announced a similar transfer of work from the Kentucky Division to the Atlanta Crew Management Center. Claimants worked on the Tennessee and Kentucky Divisions before their positions on those divisions were abolished. Claimants were offered similar positions in Atlanta, carrying the same rate of pay. Acceptance would have required claimants to change their residences to Atlanta. Rather than move to Atlanta, the claimants exercised seniority under their collective bargaining agreement to obtain positions on the Tennessee and Kentucky Divisions that carried rates of pay that were less than the rates in Atlanta, but that did not require them to move. Claimants subsequently requested displacement allowances under New York Dock in order to recoup the difference between (1) the salaries they received on those divisions for the year before their positions were abolished and (2) their reduced salaries on the Tennessee and Kentucky Divisions. The carrier denied claimants requests, arguing that employees who accept lower paying jobs in their current locations rather than following their work to a new location, which would have paid them at the same level as they were previously compensated, are ineligible for displacement allowances under New York Dock. TCU then took the issue to arbitration. The arbitration panel ruled that claimants were not entitled to benefits under New York Dock. The panel based its decision on two grounds: (1) that benefits were precluded by a prior Board decision; and (2) that claimants were not displaced employees under New York Dock because their displacement resulted from their refusal to follow their work rather than from the transaction that created NSR. The employee member of the panel dissented from this ruling but did not issue a separate opinion. TCU filed an appeal of the panel's Award. The Brotherhood of Maintenance of Way Employes (BMWE) filed a petition to intervene and tendered a separately filed brief in support of TCU's appeal. NSR replied in opposition to TCU's appeal and BMWE's petition. In a separate decision served contemporaneously with the publication of this notice, we granted BMWE's petition to intervene, denied a motion by NSR to reject part of BMWE's evidentiary submission, and denied BMWE's motion to disqualify Arbitrator Fredenberger. TCU presents a fundamental question of interpretation of our New York Dock labor protective conditions. Specifically, TCU argues that the Award fails to draw its essence from the New York Dock labor protection conditions by denying claimants a displacement allowance for exercising their seniority to take lower paying jobs in their current locations to avoid having to move. This question goes to the heart of the New York Dock bargain of allowing railroads to implement approved consolidation transactions while providing a level of protection to adversely affected employees. Accordingly, we will hear the appeal brought by TCU. This appeal raises a major issue concerning the interpretation of our New York Dock conditions, that is, whether employees whose positions are abolished as a result of a New York Dock-conditioned transaction may receive a displacement allowance when they exercise their seniority to take lower paying positions at their current locations rather than following their work to new locations established as a result of the transaction. The record currently before us indicates that some in the rail industry have interpreted this issue one way while others have interpreted it the other way. The resolution of this issue appears to have an impact reaching beyond the original parties to this proceeding. Thus, we are seeking additional comments to supplement the record. To keep the delay caused by our procedure from unduly harming employees if they are ultimately found eligible for displacement allowances, we propose to award interest on any sums owed, calculated from the date that any compensation should have been paid. We are also aware that rail labor and rail management have been engaged in private discussions regarding labor issues related to Board approval of railroad consolidations. If any agreements that are reached pursuant to those discussions, or the discussions themselves, have relevance to what we are doing here, the parties are invited to advise us of the effect, if any, of those agreements or discussions on the case before us. Decided: December 8, 1999 Service Date - December 15, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 32760 (Sub-No. 36) UNION PACIFIC CORPORATION, UNION PACIFIC RAILROAD COMPANY, AND MISSOURI PACIFIC RAILROAD COMPANY CONTROL AND MERGER SOUTHERN PACIFIC RAIL CORPORATION, SOUTHERN PACIFIC TRANSPORTATION COMPANY, ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, SPCSL CORP., AND THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY (Petition for Enforcement of Arbitration Award) By petition filed on October 26, 1999, the Transportation Communications International Union (TCU) requested that the Board issue an order compelling the Union Pacific Railroad Company (UP) to comply with an arbitration award, issued on October 22, 1999, by Robert O Brien, pertaining to UP's consolidation of crew hauling work as a result of the Board's 1996 decision approving UP's acquisition and control of the Southern Pacific Rail Corporation (SP). According to TCU, the O Brien Award allowed UP to transfer crew hauling work performed from, and crew hauling employees working out of, what was, prior to the control and merger transaction, SP's Armourdale Yard in Kansas City, KS, to UP's Neff Yard facility 10 miles away in Kansas City, MO, subject to the condition that all of the crew hauling work to be performed out of UP's Neff Yard facility would be performed under SP's collective bargaining agreement, rather than the UP collective bargaining agreement under which work at that location was performed prior to the consolidation of the work. TCU alleged that UP is contravening the O Brien Award by its plans to abolish the positions of 12 clerks performing crew hauling work out of the Armourdale facility, to transfer their work to UP's Neff Yard without allowing them to follow their work, and to require work to be performed under the allegedly less favorable UP collective bargaining agreement. By decision served on October 29, 1999, the Board ordered UP to take no action (1) to abolish the positions of the 12 former SP clerks working out of the Armourdale Yard, (2) to transfer their work to UP's Neff Yard facility, or (3) to remove them from the SP collective bargaining agreement, for a period of 60 days from the date of service of that decision (until December 28, 1999). In support of a motion requesting a 7-day extension of the deadline for filing a reply to TCU's petition, UP represented that it has canceled the notice announcing its intention to abolish the positions of the 12 former SP clerks working out of the Armourdale Yard. By decision served on November 17, 1999, the extension requested by UP was granted. In its reply filed on November 22, 1999, UP maintains that it has not violated the O Brien Award, that, in view of its cancellation of the notice announcing its intention to abolish the positions of the 12 former SP clerks working out of the Armourdale Yard, there is no outstanding notice to which the O Brien Award would have any application, and that there is thus no basis for the Board to issue an order directing UP to comply with the O Brien Award. In view of the important issues raised and UP's cancellation of the aforementioned notice, it is appropriate to extend our order maintaining the status quo for 60 additional days to allow the Board sufficient time to assess the parties arguments on these issues. More importantly, rail labor and rail management have been engaged in negotiations that, as we understand it, if concluded could impact the resolution of the issues presented here. Therefore, the stay imposed by the decision served on October 29, 1999, will be extended for an additional 60 days, until February 26, 2000. It is ordered: 1. UP will take no action (1) to abolish the positions of 12 former SP clerks working out of the Armourdale Yard, (2) to transfer their work to UP's Neff Yard facility, or (3) to remove them from the SP collective bargaining agreement until February 26, 2000. Decided: December 14, 1999 Service Date - December 15, 1999 ------------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33388 (Sub-No. 90)] Decision No. 1 CSX Corporation and CSX Transportation, Inc., Norfolk Southern Corporation and Norfolk Southern Railway Company Control and Operating Leases/Agreements Conrail Inc. and Consolidated Rail Corporation (Buffalo Rate Study) In 1998, the Board approved, subject to certain conditions: (1) the acquisition of control of Conrail Inc. and Consolidated Rail Corporation (collectively, Conrail) by (a) CSX Corporation and CSX Transportation, Inc. (collectively, CSX) and (b) Norfolk Southern Corporation and Norfolk Southern Railway Company (collectively, NS); and (2) the division of the assets of Conrail by and between CSX and NS. One of the conditions imposed called for a 3-year study of rail rates in the State of New York's Buffalo area (the Buffalo Rate Study or the Study) following the division of Conrail's assets, which occurred on June 1, 1999. Through this decision, we are initiating our Buffalo Rate Study to examine linehaul and switching rates for rail movements into and out of the Buffalo area. We are requiring certain information to be submitted by CSX and NS, and are requesting public comments to develop a more complete record. We are also setting the timetable for the submission of additional information and comments as the Study progresses. For the initial 6-month review, the carriers rail 100% waybill files for the period beginning June 1, 1997, and ending November 30, 1999, should be made available to all interested parties and to Board staff by December 30, 1999. CSX and NS comprehensive filings are due by January 14, 2000; comments from other parties are due by February 14, 2000; and CSX and NS replies to comments are due by February 29, 2000. For the first full-year review, the carriers rail 100% waybill files for the period ending May 31, 2000, should be made available to all interested parties and to Board staff by June 30, 2000. CSX and NS comprehensive filings are due by July 14, 2000; comments from all interested parties are due by August 14, 2000; and CSX and NS replies to comments are due by August 29, 2000. In Decision No. 89, served on July 23, 1998, in STB Finance Docket No. 33388 (Conrail), we approved, subject to certain conditions, the acquisition of control of Conrail by CSX and NS and the division of the assets of Conrail by and between CSX and NS. That division occurred on June 1, 1999. Prior to this, rail service in the Buffalo area was dominated by Conrail. The Greater Buffalo interests were particularly critical of Conrail's pre-transaction market power in the area. We determined that, while the method we approved for the division of Conrail's Buffalo- area assets with the largest share going to CSX would not create direct two-railroad service for all shippers in the Buffalo area, it would improve local competition significantly. As a precautionary measure, we also imposed a condition that called for a 3-year study of rail rates in the Buffalo area following the division of Conrail's assets and the integration of those assets into CSX and NS, which occurred on June 1, 1999. We will begin our Buffalo Rate Study with an initial review of the first 6 months (June 1, 1999, through November 30, 1999), which will be followed by a review of the first year (June 1, 1999, through May 31, 2000). In this initial stage of the Buffalo Rate Study, we will require that CSX and NS file information sufficient for us to determine that they are in compliance with all the conditions related to switching that we have imposed in the Buffalo area. We will also require CSX and NS to submit information sufficient for us to determine the trend in rates for rail movements into and out of the Buffalo area for the period beginning June 1, 1997, which is before the parties submitted the Conrail application subsequently approved by us, until November 30, 1999. And we will require that CSX and NS make available to interested parties and to Board staff the Conrail, CSX, and NS rail 100% waybill files for rail movements into and out of the Buffalo area (subject to protective order) for the period of June 1, 1997, through November 30, 1999, so that we may obtain an independent determination of the trends in rail rates into and out of the Buffalo area during this period. Comprehensive filings addressing the matters discussed above are due from CSX and NS by January 14, 2000. We are also requesting comments from shippers and their representatives, from other railroads serving the Buffalo area, and from other interested parties, seeking their views and evidence concerning trends in Buffalo-area rail rates and information to help us determine if local businesses and other railroads have available the switching rates to which they are entitled. Later next year, consistent with the June 1, 1999 division date, we will rebase this Buffalo Rate Study on a fiscal year ending May 31st of each year. Updates of the carriers rail 100% waybill files for rail movements into and out of the Buffalo area for the period ending May 31, 2000, should be made available to all interested parties and to Board staff by June 30, 2000. Decided: December 10, 1999. Service Date - December 15, 1999 ------------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 33466 BOROUGH OF RIVERDALE PETITION FOR DECLARATORY ORDER THE NEW YORK SUSQUEHANNA AND WESTERN RAILWAY CORPORATION By decision served on September 10, 1999, the Board addressed a variety of issues raised in a request for declaratory order filed by the Borough of Riverdale, NJ , concerning the extent to which certain facilities constructed and operated in Riverdale by The New York, Susquehanna and Western Railway Corporation (NYSW) are covered by federal preemption provisions. Our decision permitted public comments on certain issues, which were to have been filed by December 9, 1999. NYSW and the Borough were allowed to file replies by December 29, 1999. On December 9, 1999, the Hackensack Meadowlands Development Commission (Hackensack), a state agency of the State of New Jersey, requested an extension of time in which to file comments. On December 13, 1999, NYSW filed a reply to Hackensack's request, stating that it does not object to a modest extension, provided that NYSW and the Borough are allowed to file replies 20 days later. Hackensack's extension request will be granted and Hackensack will be given an additional 20 days to file its comments, which will now be due on December 29, 1999. NYSW and the Borough may file replies to Hackensack's comments by January 18, 2000. The due date for replies by NYSW and the Borough to any comments already filed with the Board remains December 29, 1999. It is ordered: 1. Hackensack's request for an extension of time is granted, and Hackensack's comments are now due on December 29, 1999. 2. The Borough and NYSW may file replies to any comments filed by Hackensack on or before January 18, 2000. Decided: December 14, 1999 Service Date - December 15, 1999 ============================================================ Comments or questions about this compilation should be directed to Paul Moore at 71367.1057@Compuserve.com. ============================================================