criterion in granting abandonments was not foreclosed by either case law or the regulations.

Although opportunity cost was not used as a criterion in that case, due to the fact that the parties had not had an opportunity to comment on its use as a factor, we believe it should be a factor in future abandonment proceedings.

We propose that the opportunity cost a rail carrier incurs in not being able to use its rail assets in an alternative rail transportation setting should be one of the factors considered in balancing the public need for continuing service versus the burden on the carrier.

We anticipate that there will be many questions at issue in this proceeding, including but not limited to the following: (1) should opportunity costs be a factor in permitting abandonments? (2) if it is a factor should carriers be (a) limited to evidence regarding alternative rail uses? or (b) allowed to present evidence as to any alternative use of rail assets, including nonrail uses? and (3) will this additional factor have an effect on the Commission's subsidy program?

This notice is issued under the authority of sections 552, 553, and 559 of the Administrative Procedure Act (4 U.S.C. 552, 553, and 559) and 49 U.S.C. 10903, 10904 and 10905.

By the Commission, Chairman O'Neal, Vice Chairman Brown, Commissioners Stafford, Gresham, Clapp and Christian. Vice Chairman Brown absent and not participating. Commissioner Gresham dissenting. Commissioner Christian concurring.

COMMISSIONER GRESHAM, dissenting:

This proceeding is entirely unnecessary. The majority's inability to extract the rabbit from the hat in AB-20 (Sub-No. 3) has prompted the search for a new incantation. The majority seems to be suggesting that "opportunity costs" will effect some change in our abandonment procedures. I must admit to some surprise, for I thought we had always considered whether the public might be better served through other uses of idle rail assets. This seems to me rather fundamental, and it should not require another rulemaking for this agency to exercise some common sense.

COMMISSIONER CHRISTIAN, Concurring:

For the reasons expressed in my dissent to the entire Commission's decision in AB20 (Sub-No. 3). I believe this proceeding is unnecessary. However, since the majority is unwilling to recognize the fact that opportunity costs are already encompassed within our traditional balancing of interests in the abandonment area I concur in the institution of this proceeding.

360 I.C.C.

FINANCE DOCKET NO. 28910F

THE DENVER & RIO GRANDE WESTERN RAILROAD COMPANY-DISCONTINUANCE OF PASSENGER TRAINS NOS. 17 AND 18 (THE "RIO GRANDE ZEPHYR") BETWEEN GRAND JUNCTION, CO, AND SALT LAKE CITY, UT

Decided May 29, 1979

Upon investigation it is found that the operation by the Denver & Rio Grande Western Railroad Company of passenger trains Nos. 17 and 18, between Grande Junction, CO, and Salt Lake City, UT, is required by the public convenience and necessity and that continued operation thereof, until May 31, 1980, will not unduly burden interstate commerce.

John S. Walker for petitioner, The Denver & Rio Grande Western Railroad Company.

J. Theodore Wieseman, Richard T. Tomar, and Richard L. Huberman for the Rail Public Counsel.

William S. Finger for Department of Law, State of Colorado, Public Utilities Commission of Colorado.

Arthur L. Tripp for United Transportation Union.

On November 28, 1978, the Denver and Rio Grande Western Railroad Company (Rio Grande) filed an application under former section 13a(1) of the Interstate Commerce Act (recodified at 49 U.S.C. 10908) to discontinue the operation of its trains numbers 17 and 18, the "Rio Grande Zephyr," between Grand Junction, CO, and Salt Lake City, UT.'

'49 U.S.C. 10908 provides as follows:

$10908. Discontinuing or changing interstate train or ferry transportation subject to State law (a) When a discontinuance or change in any part of the transportation of a train or ferry operating between a place in a State and a place in another State

(1) is proposed by a carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title; and

(footnote continued on next page)

The Commission, Division 2, on December 14, 1978 ordered the Rio Grande to continue its passenger service until May 31, 1979, pending the investigation of its application. Numerous protests were received. Consequently, the proceeding was referred to an Administrative Law Judge for hearing in an order dated January 3, 1979. Public hearings were held before Administrative Law Judge Warren C. White at Salt Lake City, UT, February 26-27, Helper UT, February 28; Grand Junction, CO, March 1; Denver CO, March 2 and 5; and Washington, DC, March 13-16, 1979. The Office of Rail Public Counsel (ORPC), the State of Colorado Public Utilities Commission (COPUC), and United Transportation Union (UTU) intervened and offered evidence in opposition to the proposed discontinuance. The UTU and other unions primarily seek the imposition of protective conditions for their members should they be adversely affected.

By decision served December 18, 1978, the Commission found that the Rio Grande had complied with 49 CFR 1122.4 and 1122.5, which implement 49 U.S.C. 10908. By the same decision, the Commission found that timely execution of its functions in this proceeding required the omission of an Administrative Law Judge's initial decision.

(footnote I continued)

(2) is subject to the law of a State, or to a regulation or order of, or proceeding pending before. a court or other authority of a State; the carrier, notwithstanding that law, regulation, order, or proceeding, may discontinue or change the transportation

(A) if it files a notice of the proposed discontinuance or change with the Commission at least 30 days before the discontinuance or change is intended to be effective and carries out the discontinuance or change under that notice:

(B) if it mails a copy of the notice to the chief executive officer of each State in which the train or ferry is operated and posts a copy of the notice at each station, depot, or other facility served by the train or ferry; and

(C) except as otherwise provided by the Commission under this section.

(b) On petition or on its own initiative, the Commission may conduct a proceeding on the proposed discontinuance of change if it begins the proceeding between the date the carrier files the notice under subsection (a) of this section and the date on which the discontinuance or change is intended to be effective. After the proceeding begins, the Commission may order the carrier proposing the discontinuance or change to continue any part of the transportation pending completion of the proceeding and the decision of the Commission if the Commission serves a copy of its order on the carrier at least 10 days before the date on which the carrier intended the discontinuance or change to be effective. However, the Commission may not order the transportation continued for more than 4 months after the date on which the carrier intended the discontinuance or change to be effective.

(c) If, after a proceeding completed either before or after the proposed discontinuance or change has become effective, the Commission finds that any part of the transportation is required or permitted by present or future public convenience and necessity and will not unreasonably burden interstate or foreign commerce, the Commission may order the carrier to continue or restore that transportation for not to exceed one year from the date of the Commission order. On expiration of the Commission order, the jurisdiction of each State involved in the discontinuance or change is no longer superseded except to the extent this sections again invoked.

At the conclusion of the hearing on March 16, Administrative Law Judge White stated:

Let's also reiterate that it was agreed that the Railroad would have its brief in on April 2. *** And April 16, Public Counsel and Attorney General briefs will be due, counterbriefs. And then April 23, give the Railroad a final chance to file a brief and also on that date, each of you should submit a draft, a report as you would like the Commission to issue it. (TR. 1730.)

COPUC required a 1-day extension to file its brief and for this reason respondent's motion for leave to file its reply brief to the late-filed brief of COPUC, which was dated April 25, will be granted.

A motion to stirke, dated May 8, was filed by ORPC with reference to a portion of the respondent's reply brief. Specifically, appendix B contained environmental evidence which had not been. intorduced during the oral hearings. See 49 CFR 1100.84. In response to the motion to strike, we find that because this decision does not alter the status of the environment, there is no reason to consider appendix B.

The Rio Grade Zephyr currently operates between the terminal points of Denver, CO, on the east and Salt Lake City, UT on the west. Colorado intermediate stops are made at Granby, Bond, Glenwood Springs (for Aspen), Rifle, and Grand Junction. Utah intermediate stops are made at Thompson (for Moab), Green River, Helper, and Provo. A connecting limousine service is operated between Salt Lake City and Ogden for the benefit of through passengers. However, the limousine does not handle local Salt Lake City-Ogden passengers. Checked baggage service is available only at Denver, Glenwood Springs, Grand Junction, and Salt Lake City. Adjacent to Helper is the College of Eastern Utah, and Provo is the home of Brigham Young University.

The Rio Grande's Zephyr is the only passenger train operating on a regular schedule between Denver and Salt Lake City and represents the railroad's last year-round passenger service. The Zephyr currently operates on the following schedule:

360 I.C.C.

x-Stops on flag to discharge revenue passengers, also to receive revenue passengers holding advance reservations.

f-Stops on flag to discharge revenue passengers, also to receive revenue passengers holding advance reservations on notification to agent. Thompson, or Helper, UT.

EVIDENCE OF RESPONDENT

In Denver & R. G. W. R. Co. Discontinuance, 336 I.C.C. 691 (1970), we prohibited the discontinuance. See map, appendix A. Though the trains were being operated at a heavy deficit, we required their continuance on the grounds, among other, that the deficit could be absorbed by the carrier. Time and opportunity would thus be afforded to all those affected to devise measures by which the service could be made self-sustaining or in the alternative, the burden of the deficit distributed among all those benefiting from the service and insisting upon its continuance. More than 9 years have expired, and once again Rio Grande proposes to discontinue trains Nos. 17 and 18. These are the last passenger trains on its main-line system.