SURFACE TRANSPORTATION BOARD DECISION DOCUMENT | |||
Decision Information | |||
Docket Number:   | AB_1010_0 | ||
Case Title:   | CSX CORPORATION, INC.--ADVERSE ABANDONMENT--IN SHELBY COUNTY, TN | ||
Decision Type:   | Decision | ||
Deciding Body:   | Entire Board | ||
Decision Summary | |||
Decision Notes:   | DECISION GRANTED IN PART AND DENIED IN PART MEMPHIS COMMUNITY CONNECTOR'S PETITION SEEKING EXEMPTIONS FROM SEVERAL STATUTORY PROVISIONS AND WAIVERS OF CERTAIN REGULATIONS IN CONNECTION WITH ITS INTENDED FILING OF A THIRD-PARTY APPLICATION FOR THE ADVERSE ABANDONMENT OF AN APPROXIMATELY 13.34-MILE LINE OF RAILROAD IN SHELBY COUNTY, TN. | ||
Decision Attachments | |||
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Full Text of Decision | |||
38117 SERVICE DATE – OCTOBER 10, 2007 EB SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-1010 CSX TRANSPORTATION,
INC.—ADVERSE ABANDONMENT—IN Decided: October 9, 2007 This decision grants in part and denies in part exemption and waiver requests related to a third-party or “adverse” abandonment application petitioner intends to file. In a
petition filed on On BACKGROUND The Line
runs through a growing part of In 2002, CSXT sought and obtained
discontinuance authority for the entire Line in two separate proceedings. See
CSX Transportation,
Inc.—Discontinuance Exemption—(Between East of DISCUSSION AND CONCLUSIONS The Board’s regulations require
that abandonment applications conform to the requirements of 49 CFR 1152,
Subpart C. When appropriate, however,
such as the filing of a third-party or adverse abandonment application, the
Board may waive inapplicable and unneeded provisions. See Napa Valley Wine Train,
Inc.—Adverse Abandonment—in CSXT argues
that there are two main differences between this case and those cited by
petitioner in support of its exemption and waiver requests. First, CSXT argues that Norfolk Southern
Railway Company—Adverse Abandonment— Second, CSXT argues that, unlike
the applicants in Notice of Intent. Petitioner requests waiver of 49 CFR 1152.20(a)(2)(i), which requires service of the notice of intent on significant users of the line. Petitioner states that there are no known current users of the Line, but that it will notify the last four shippers on the Line. CSXT contends that this notice requirement is statutory, under 49 U.S.C. 10903(a)(3)(D), and that, because petitioner has not sought an exemption from this statutory provision, the request should be denied. Although petitioner did not explicitly seek an exemption from section 10903(a)(3)(D), as the statutory provision is virtually identical to the regulation at 49 CFR 1152.20(a)(2)(i), it may be implied that an exemption request also was intended. In this case, it would serve little purpose to have petitioner re-file simply to add that it also is seeking an exemption for equivalent statutory language or to deny an otherwise reasonable request. Therefore, the waiver request will be granted, as well as the corresponding exemption, as their application to this transaction is not necessary to carry out the rail transportation policy of 49 U.S.C. 10101. Moreover, an exemption will promote that policy by eliminating unnecessary procedures and by expediting regulatory decisions. Petitioner, as proposed, should serve notice upon the four shippers identified in the earlier abandonment proceeding. Petitioner requests waiver of 49 CFR 1152.20(a)(3), which requires posting of a copy of the notice of intent at each agency station and terminal on the line to be abandoned. Petitioner states that there are no agency stations or terminals on the Line. CSXT, however, alleges that there is an inactive station on the Line and that it requires notice, and again argues that petitioner has failed to request an exemption for the corresponding statutory provision, at 49 U.S.C. 10903(a)(3)(B). As discussed above, the exemption request may be implied. Moreover, as there have been no shippers or employees on the Line for some time, requiring notice at the admittedly “inactive” station is unnecessary. Therefore, the waiver request will be granted, as will a corresponding exemption, for the same reasons discussed above. Petitioner requests a waiver of 49 CFR 1152.20(a)(2)(xii), which requires service of the notice of intent on the headquarters of all duly certified labor organizations that represent employees on the affected line. Petitioner claims that there are no known railroad employees who would be affected by the proposed abandonment because there has been no rail service for over 6 years. CSXT argues that petitioner should have to provide notice anyway because it is not burdensome and the conditions that may be imposed by abandonment might create some rights in the employees. However, CSXT does not identify any such employees. Thus, the waiver request will be granted because there are no known railroad employees and compliance with the requirement is unnecessary. Petitioner also seeks a waiver of the requirements of 49 CFR 1152.21, which prescribes the form of the notice of intent. Petitioner argues that it contains wording inappropriate for adverse abandonment proceedings. Petitioner proposes to use a modified form of notice that appears as Attachment A to its petition. CSXT objects to the request, arguing that the notice of intent is what alerts the public to the opportunity for public use, offers of financial assistance (OFA) and trail use. CSXT further objects that the proposed form of notice fails to notify the public of an “inactive” station on the line or to protect employees that may be affected by the abandonment. CSXT’s objections follow its opposition of petitioner’s exemption and waiver requests. The Board has approved form changes
in other cases. See East St.
Louis Junction Railroad Company—Adverse Abandonment—in St. CSXT further objects to
petitioner’s language in the proposed notice as improperly referring to its
adverse abandonment application as “an application to compel the
abandonment.” CSXT argues that
petitioner diverges from the form of notice approved in Petitioner requests waiver of the requirements of 49 CFR 1152.22(i), which prescribes the wording for the draft Federal Register notices that applicants must submit to the Board. Petitioner states that the wording is inappropriate for adverse abandonment applications. Instead, petitioner proposes to use the alternative language in its Attachment B, which is similar in content to petitioner’s proposed notice of intent. The Federal Register notice in petitioner’s Attachment B is in substantial compliance with the requirements of 49 CFR 1152.22(i), except that it also must reflect the modifications to petitioner’s proposed notice of intent required above. For the same reasons that apply to the form of the notice of intent, the waiver request pertaining to 49 CFR 1152.22(i) will be granted, subject to petitioner also making the above conforming modifications to its proposed Federal Register notice. Contents of Application. Petitioner requests waivers of 49 CFR 1152.10-14 and 49 CFR 1152.24(e)(1), which relate, among other things, to filing, amending, and providing notice to the public of prospective abandonments through a carrier’s system diagram map (SDM), and which establish a 2-month waiting period between amendments of the SDM and the filing of a corresponding abandonment application. CSXT again argues that the requirements concerning the SDM are also statutory under 49 U.S.C. 10903(c)(2), and that, because petitioner has not sought an exemption from these requirements, the Board should reject the waiver requests. As discussed above, the requirements under the statute and regulation are the same, and, for the reasons stated above, the Board will treat the petition as one including a request for exemption from section 10903(c)(2). The information necessary to produce the SDM generally is not available to adverse abandonment applicants. Moreover, 49 CFR 1152.10-14 are directed to rail carriers. MCC is not a rail carrier. For these reasons, these waiver and exemption requests will be granted. Petitioner
requests waivers of 49 CFR 1152.22(a)(4) and (5),
which require submission of a detailed map of the subject line and reference to the carrier’s SDM. Although
petitioner contends that it cannot obtain this information, it states that it
intends to submit a map of the Line with its application containing as much of
the information required by 49 CFR 1152.22(a)(4) as it can obtain. CSXT opposes the request for waiver from 49 CFR 1152.22(a)(4), contending that it is
not onerous to submit a detailed map and that such maps may be obtained from
map services. It also points out that a
map of the Line was filed in Abandonment Denial. In the past, this requirement often has been
waived in adverse abandonment proceedings because the applicant, unlike the
railroad, may not have access to such a map.
See Petitioner also seeks waivers of 49 CFR 1152.22(b)-(d), which require that abandonment applications include information regarding the current physical condition of the line, the service performed on it, and the revenue and cost data attributable to it. Petitioner asserts that it lacks the necessary information. But CSXT argues that, if petitioner is going to use the condition of the Line to support its abandonment application, then it should have to submit evidence of the physical condition of the property, as required under section 1152.22(b). Because petitioner intends to use the condition of the Line to support its application, the request to waive section 1152.22(b) will be denied. The waiver request as to sections 1152.22(c) and (d) will be granted, however, because that information generally is not available to a third-party abandonment applicant. Public Use, Trail Use, and Offers of Financial Assistance Conditions. Petitioner seeks waivers of 49 CFR 1152.27-29, the Board’s procedures for OFAs, public use, and interim trail use, and it seeks exemptions from the OFA requirements of 49 U.S.C. 10904 and the public use procedures of 49 U.S.C. 10905. Petitioner contends that these provisions serve no useful purpose here because it intends to acquire the right-of-way for interim trail use, pursuant to 16 U.S.C. 1247(d) and 49 CFR 1152.29. It further contends that these procedures are not necessary to carry out the rail transportation policy of 49 U.S.C. 10101. CSXT
opposes the OFA exemption and waiver requests as premature. However, the purpose of the third-party
abandonment proceeding is to withdraw the Board’s primary jurisdiction so as to
permit state, local or other federal law to apply where there is no overriding
federal interest in interstate commerce.
See Moreover, a grant of an exemption from section 10904 does not affect the merits of an application. Under the circumstances presented here, a grant of an adverse abandonment or discontinuance would be frustrated if section 10904 could be invoked in an effort to continue active rail service. If the application fails, the exemption would be mooted. Accordingly, the request for exemption from 49 U.S.C. 10904 and waiver of the related regulations at 49 CFR 1152.27 will be granted. Likewise, the exemption from the public use provisions of 49 U.S.C. 10905 and waiver of the implementing regulations at 49 CFR 1152.28 also will be granted. Again, should the Board decide to withdraw its primary jurisdiction over the Line, it should not then allow its jurisdiction to be invoked to impose a public use condition. Petitioner also asks the Board to waive the trail use provisions of 49 CFR 1152.29. CSXT questions whether this request makes sense given that petitioner is seeking to use the Line for trail use. CSXT also argues that the Board’s exemption authority does not convey jurisdiction to the Board to exempt a proceeding from the interim trail use statute. However, the trail use waiver request need not be resolved at this point. As the Board has done in past decisions, see St. Joseph at 6-7, and because the Board can address the issue, if need be, in a later decision, and because petitioner states that it is interested in acquiring the right-of-way for interim trail use, the request for a waiver of the regulations at 49 CFR 1152.29 will be denied. Notice of Consummation. Finally, petitioner requests waiver of the regulations at 49 CFR 1152.24(f) and 49 CFR 1152.29(e)(2) pertaining to notice of consummation. Petitioner contends that waiver of these regulations is warranted because, if the application is granted, it cannot consummate abandonment of the Line until it obtains control of the property in state court, the timing of which can vary. CSXT opposes the requests, arguing that such notice is made and extended easily. Because the Board needs to know if and when a rail line is removed from its jurisdiction, waiver from the regulation at 49 CFR 1152.24(f) requiring that applicant file a consummation notice will be denied. If abandonment approval is obtained, the applicant must notify the Board when the transaction is consummated. However, petitioner’s request for waiver of the 1-year time limit on abandonment authority specified at 49 CFR 1152.29(e)(2) will be granted given that the petitioner will not have control over the timing of consummation until it obtains control of the property from the railroad, which potentially involves invocation of other legal process, such as a proceeding under state law. This action will not significantly affect either the quality of the human environment or the conservation of energy resources. It is ordered: 1. The petition for exemptions and waivers is granted in part and denied in part, as described above. 2. This decision is effective on its service date. By the Board, Chairman Nottingham, Vice Chairman Buttrey, and Commissioner Mulvey. Vice Chairman Buttrey did not participate. Secretary [1] In a decision
served on [2] On |