[Federal Register: May 14, 1999 (Volume 64, Number 93)]
[Notices]               
[Page 26478]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my99-125]

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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board
[STB Finance Docket No. 33734]

 
Portland & Western Railroad, Inc.--Lease and Operation 
Exemption--Port of Tillamook Bay Railroad

    Portland & Western Railroad, Inc. (PNWR), a Class III rail carrier, 
has filed a verified notice of exemption under 49 CFR 1150.41 to lease 
and operate approximately 3.5 miles of rail line (rail line) currently 
owned and operated by Port of Tillamook Bay Railroad (POTB) between 
Banks (milepost 774.0) and Schefflin (milepost 770.5), in Washington 
County, OR. In addition, the notice states that POTB will retain 
``incidental'' trackage rights over the rail line and will continue to 
serve all of its current customers through a grant back of trackage 
rights by PNWR to POTB.<SUP>1</SUP>
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    \1\ PNWR currently operates over the rail line pursuant to 
trackage rights. See Portland & Western Railroad, Inc.--Lease and 
Operation Exemption--Burlington Northern Railroad Company, Finance 
Docket No. 32766 (STB served Jan. 5, 1996). PNWR states that it has 
an opportunity to route certain traffic in a more efficient manner 
to Portland, OR, over two of its lines and the rail line between 
points south of Schefflin and Portland. PNWR further states that, 
before substantial amounts of traffic can be routed in this way, the 
rail line must be substantially rehabilitated and brought up to 
Federal Railway Administration Class 2 condition. Because of POTB's 
relatively light density of its traffic over the rail line, it is 
unwilling to incur the costs to rehabilitate the rail line. PNWR is 
unwilling to incur the cost of rehabilitation under the current 
operating arrangement. Thus, PNWR and POTB have entered into an 
agreement whereby PNWR will lease and rehabilitate the rail line and 
POTB will retain trackage rights over the rail line. It should be 
noted, however, that the grant back of trackage rights by POTB to 
PNWR cannot properly be termed ``incidental'' to the lease 
transaction. The term ``incidental'' trackage rights (as it relates 
to a lease transaction) pertains to simultaneous rights being 
obtained by a lessee to operate over other lines of a lessor or 
lines of another carrier. POTB thus requires separate approval for 
the trackage rights. On May 3, 1999, POTB made a separate filing to 
invoke the class exemption at 49 CFR 1180.2(d)(7) for the trackage 
rights. See Port of Tillamook Bay Railroad--Trackage Rights 
Exemption--Portland & Western Railroad, Inc., STB Finance Docket No. 
33741 (STB served May 14, 1999).
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    Because PNWR's projected annual revenues will exceed $5 million, 
PNWR has certified to the Board on April 16, 1999, that the required 
notice of the transaction was posted at the workplace of the employees 
on the affected lines on April 2, 1999. See 49 CFR 
1150.42(e).<SUP>2</SUP> The transaction was scheduled to be consummated 
on or about April 19, 1999, or as soon thereafter as possible, 
depending upon the Board's action on PNWR's waiver request.
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    \2\ Under 49 CFR 1150.42(e), the exemption would not normally 
take effect until 60 days after certification to the Board that the 
requisite notice had been given. PNWR initially sought waiver of the 
notice requirements itself. Subsequently, notice was given to 
employees of POTB and the certification was made. As a result, the 
waiver request was modified to one seeking relief that would permit 
the exemption to take effect without having to wait for the full 60 
days after the April 16 certification to run. In the absence of a 
waiver, the earliest the lease could be consummated would be June 
15, 1999. In a decision in this proceeding served on May 10, 1999, 
the Board has waived, in part, the 60-day notice period, thus 
allowing consummation to occur as early as May 10, 1999.
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    If the 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. 33734, must be filed with the Surface Transportation 
Board, Office of the Secretary, Case Control Unit, 1925 K Street, N.W., 
Washington, DC 20423-0001. In addition, a copy of each pleading must be 
served on Eric M. Hocky, Esq., Gollatz, Griffin & Ewing, P.C., 213 West 
Miner Street, P. O. Box 796, West Chester, PA 19381-0796.
    Board decisions and notices are available on our website at 
``WWW.STB.DOT.GOV.''

    Decided: May 10, 1999.

    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 99-12262 Filed 5-13-99; 8:45 am]
BILLING CODE 4915-00-P