[Federal Register: April 30, 1999 (Volume 64, Number 83)]
[Notices]               
[Page 23391-23392]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ap99-148]

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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board
[STB Finance Docket No. 33738]

 
Rock & Rail, Inc.--Acquisition and Operation Exemption--The 
Burlington Northern and Santa Fe Railway Company

    Rock & Rail, Inc. (R&R), a Class III rail carrier, has filed a 
notice of exemption under 49 CFR 1150.41 to acquire The Burlington 
Northern and Santa Fe Railway Company's (BNSF) ownership interest in, 
and to acquire from BNSF a permanent and exclusive rail freight 
easement to operate over, and thus to operate, approximately 41.31 
miles of rail line in Pueblo and Canon City, CO. The lines or rights 
intended to be acquired by R&R are as follows: (1) From milepost 160.30 
in Canon City extending westerly for a distance of approximately 252 
feet in Fremont County, CO; (2) from milepost 160.80 in Canon City 
extending easterly approximately 256 feet to serve the power plant at 
or near Canon City, in Fremont County, CO; (3) BNSF's trackage rights 
over Union Pacific Railroad Company's (UP) rail line between milepost 
160.30 in Canon City and milepost 120.73 in Pueblo, a distance of 39.57 
miles in Fremont and Pueblo Counties, CO; and (4) all of BNSF's 
connecting sidings, spurs, sidetracks and yard, industrial, team and 
switching tracks that are owned or

[[Page 23392]]

leased by BNSF between the end of BNSF's track, approximately 252 feet 
west of milepost 160.30 in Canon City, and the connection between 
BNSF's line and UP's line at milepost 120.73 in Pueblo. In addition, 
BNSF will grant R&R incidental trackage rights over BNSF's rail line 
extending easterly from the connection between BNSF's line and UP's 
line at milepost 120.73 in Pueblo and approximately 2,243 feet over 
Track No. 254, approximately 2,240 feet over Track No. 256, and 
approximately 4,200 feet over BNSF's main line track to milepost 
619.75, for the purpose of interchanging with BNSF in Pueblo, for a 
total distance of approximately 1.64 miles in Pueblo County, 
CO.<SUP>1</SUP>
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    \1\ R&R certifies that its annual revenue will not exceed those 
that would qualify it as a Class III rail carrier and that its 
annual revenues are not projected to exceed $5 million.
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    The transaction was scheduled to be consummated on or after April 
14, 1999. R&R has subsequently advised the Board that the transaction 
has been consummated and that R&R will shortly commence operations on 
the Canon City-Pueblo Line.<SUP>2</SUP>
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    \2\ On April 14, 199, UP submitted a letter stating that it was 
not objecting to the requested exemption because it is permissive in 
nature and would not give BNSF the ability to transfer rights that 
it has no legal right to transfer. UP went on to assert that BNSF's 
trackage rights between milepost 147.01, near Portland, CO, and 
milepost 160.30, near Canon City, are not assignable by BNSF without 
UP's consent and that UP's consent has neither been sought nor 
granted. UP also asserted that, while there is a small power plant 
at Canon City, neither BNSF's solely owned track nor its trackage 
rights over UP in the vicinity of Canon City actually reach the 
power plant. UP thus disputes that R&R would have a right to serve 
the power plant.
    In issuing this notice, the Board is making no ruling on the 
contractual rights of the parties. Therefore, by invoking the class 
exemption, R&R has the right to perform common carrier service to 
the extent that it has or obtains the property rights to enable it 
to carry out the service.
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    The purpose of the transaction is to permit R&R, rather than BNSF, 
to serve the shippers at Canon City, Florence, and Portland, and to 
conduct overhead operations between Canon City and Pueblo.
    If this notice contains false or misleading information, the 
exemption is void ab initio. Petitions to revoke the exemption under 49 
U.S.C. 10502(d) may be filed at any time. The filing of a petition to 
revoke does not automatically stay the transaction.
    An original and 10 copies of all pleadings, referring to STB 
Finance Docket No. 33738, must be filed with the Surface Transportation 
Board, Office of the Secretary, Case Control Unit, 1925 K Street, NW, 
Washington, DC 20423-0001. In addition, a copy of each pleading must be 
served on Fritz R. Kahn, Suite 750 West, 1100 New York Avenue, NW, 
Washington, DC 20005-3934.
    Board decisions and notices are available on our website at 
``WWW.STB.DOT.GOV.''

    Decided: April 26, 1999.

    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 99-10852 Filed 4-29-99; 8:45 am]
BILLING CODE 4915-00-P