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, 43284-43286 [E6-12182]
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43284
Federal Register / Vol. 71, No. 146 / Monday, July 31, 2006 / Notices
retains the Capital Cost of Contracting
percentage breakdowns from the former
Exhibit G. The revised circular adds a
new Appendix H, listing contact
information for FTA’s Regional Offices.
Issued in Washington, DC, this 24th day of
July, 2006.
Sandra K. Bushue,
Deputy Administrator.
[FR Doc. E6–12137 Filed 7–28–06; 8:45 am]
BILLING CODE 4910–57–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket Number: FTA–2005–23227]
Notice of Correction
Federal Transit Administration
(FTA), DOT.
ACTION: Notice correcting the comment
period on FTA’s Proposed Title VI
Circular.
sroberts on PROD1PC70 with NOTICES
AGENCY:
SUMMARY: On July 14, 2006, the Federal
Transit Administration (FTA) published
a notice of proposed Circular in the
Federal Register (See FR Volume 71, No
135., pp. 40178 to 40187). This notice
erroneously stated that comments must
be received by August 14, 2006. FTA
intends to establish a 60-day comment
period. Therefore, comments should be
submitted by September 14, 2006. Late
comments will be considered to the
extent practicable.
ADDRESSES: You may submit comments
identified by DOT DMS Docket Number
FTA–05–23227 by any of the following
methods: Web Site: https://dms.dot.gov.
Follow the instructions for submitting
comments on the DOT electronic docket
site; Fax: 202–493–2251; Mail: Docket
Management Facility; U.S. Department
of Transportation, 400 Seventh Street,
SW., Nassif Building, PL–401,
Washington, DC 20590–0001; Hand
Delivery: Room PL–401 on the plaza
level of the Nassif Building, 400
Seventh Street, SW., Washington, DC,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Instructions: You must include the
agency name (Federal Transit
Administration) and the docket number
(FTA–05–23227). You should submit
two copies of your comments if you
submit them by mail. If you wish to
receive confirmation that FTA received
your comments, you must include a
self-addressed, stamped postcard. Note
that all comments received will be
posted without change to the
Department’s Docket Management
System (DMS) Web site located at
https://dms.dot.gov. This means that if
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your comment includes any personal
identifying information, such
information will be made available to
users of DMS.
FOR FURTHER INFORMATION CONTACT:
David Schneider, Office of Civil Rights,
400 Seventh Street, SW., Washington,
DC, 20590, (202) 366–4018 or at
David.Schneider@fta.dot.gov.
NJSAA, petitioners seek in the
alternative a supplemental order that
would enable Conrail to provide
switching service, which NS currently
provides, between the BRI facility and
CSXT’s Manville Yard.
By separate motions filed on February
9, 2006, NS seeks dismissal of the
petition, and a protective order to quash
discovery, or in the alternative, to stay
Issued on: July 24, 2006.
all discovery pending a decision by the
Sandra K. Bushue,
Board on NS’s motion to dismiss. Also
Deputy Administrator.
on February 9, 2006, Conrail requested
[FR Doc.E6–12165 Filed 7–28–06; 8:45 am]
that all discovery related to this matter
BILLING CODE 4910–57–P
be quashed, or in the alternative, stayed
pending a decision by the Board on NS’s
motion to dismiss. On March 1, 2006,
DEPARTMENT OF TRANSPORTATION petitioners filed replies to both of NS’s
procedural motions. For the reasons
Surface Transportation Board
discussed below, NS’s motion to
[STB Finance Docket No. 33388 (Sub-No.
dismiss BRI’s petition for clarification is
100)]
denied and a schedule to allow BRI to
pursue limited discovery regarding the
CSX Corporation and CSX
parties’ intent involving the boundaries
Transportation, Inc., Norfolk Southern
of the NJSAA is established. BRI’s
Corporation and Norfolk Southern
alternative request for a supplemental
Railway Company—Control and
order is denied.
Operating Leases/Agreements—
DATES: The effective date of this
Conrail Inc. and Consolidated Rail
decision is July 31, 2006. Petitioners
Corporation
have until August 30, 2006 to complete
discovery, as prescribed by this
AGENCY: Surface Transportation Board,
decision. Upon completion of discovery,
DOT.
petitioners have until September 29,
ACTION: Decision No. 1 in STB Finance
Docket No. 33388 (Sub-No. 100); Notice 2006 to supplement the petition based
on additional information provided by
of Filing of Petition for Clarification or
NS and Conrail in response to
in the Alternative for Supplemental
petitioners’ discovery request, unless
Order; and Issuance of Procedural
the Board provides otherwise in
Schedule.
connection with any motions to compel.
SUMMARY: On January 20, 2006,
Any person who wishes to file
Bridgewater Resources, Inc. (BRI) and
comments respecting this petition as
ECDC Environmental, L.L.C. (ECDC),
supplemented must do so by October
referred to collectively as the
19, 2006. Petitioners will have until
petitioners, filed with the Surface
October 30, 2006 to reply to those
Transportation Board (Board) a joint
comments.
Any motions to compel that may be
petition for clarification (petition) as to
necessary regarding discovery requests
the limits of the North Jersey Shared
Assets Area (NJSAA), established as part must be filed by August 21, 2006.
Replies to motions to compel will be
of the Conrail control transaction,
due 3 business days later.
approved by the Board in CSX Corp. et
al.—Control—Conrail Inc. et al., 3 S.T.B. ADDRESSES: Any filing submitted in this
196 (1998) (Decision No. 89).1 In
proceeding must be submitted either via
particular, petitioners seek a
the Board’s e-filing format or in the
determination that BRI’s waste transfer
traditional paper format. Any person
facility (BRI facility) is within the
using e-filing should comply with the
NJSAA and/or can be switched by
instructions found on the Board’s Web
Conrail under the agreements pertaining site at https://www.stb.dot.gov at the ‘‘E–
to the NJSAA. If the Board finds that the FILING’’ link. Any person submitting a
BRI facility is not located within the
filing in the traditional paper format
should send an original and 10 paper
1 In Decision No. 89, the Board approved the
copies of the filing (and also an IBMacquisition of control of Conrail Inc. and
compatible floppy disk with any textual
Consolidated Rail Corporation (Conrail), and the
submission in any version of either
division of that carrier’s assets by (1) CSX
Corporation (CSXC) and CSX Transportation, Inc.
Microsoft Word or WordPerfect) to:
(CSXT) (collectively CSX), and (2) Norfolk Southern Surface Transportation Board, 1925 K
Corporation (NSC) and Norfolk Southern Railway
Street, NW., Washington, DC 20423–
Company (NSR) (collectively, NS). Control of
0001. In addition, one copy of each
Conrail was effected by CSX and NS on August 22,
1998.
filing in this proceeding must be sent
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Federal Register / Vol. 71, No. 146 / Monday, July 31, 2006 / Notices
(and may be sent by e-mail only if
service by e-mail is acceptable to the
recipient) to each of the following: (1)
Christopher A. Mills, Slover & Loftus,
1224 Seventeenth Street, NW.,
Washington, DC 20036; (2) Kendra A.
Ericson, Slover & Loftus, 1224
Seventeenth Street, NW., Washington,
DC 20036; (3) John V. Edwards, Norfolk
Southern Corporation, Three
Commercial Place, Norfolk, VA 23510–
2191; (4) Richard A. Allen, Zuckert,
Scoutt & Rasenberger, LLP, 888
Seventeenth Street, NW., Washington,
DC 20006; and (5) Shannon M. Moyer,
Zuckert, Scoutt & Rasenberger, LLP, 888
Seventeenth Street, NW., Washington,
DC 20006. Any reply should also be
served (one copy each) on each
commenting party, and may be served
by e-mail, but only if service by email
is acceptable to the recipient.
FOR FURTHER INFORMATION CONTACT: Julia
M. Farr, (202) 565–1655. [Assistance for
the hearing impaired is available
through the Federal Information Relay
Service (FIRS) at 1–800–877–8339.]
SUPPLEMENTARY INFORMATION: In
Decision No. 89, Conrail’s rail operating
properties were divided into two
categories: Allocated Assets and
Retained Assets. The latter were
retained by Conrail for operation for the
benefit of both CSX and NS and consist
primarily of three Shared Assets Areas
(SAAs), one of which is the NJSAA.
Under the Shared Assets Agreements,
Conrail has the right to perform
switching service within the SAAs.
BRI owns and operates a fully
permitted solid waste transfer station
near Manville/Port Reading Jct., in
Bridgewater Township, Somerset
County, NJ. Non-toxic municipal solid
waste (MSW), construction and
demolition debris, and non-hazardous
soils are transported to the BRI facility
from various locations in northern New
Jersey and Staten Island. These waste
materials are processed at the BRI
facility and shipped to disposal sites in
other states, with approximately 2,500
cars of MSW moved annually.
ECDC is a subsidiary of Allied Waste
Industries. ECDC arranges for the
transportation of containerized
shipments of MSW from collection
stations at various points, including the
BRI facility, to landfills in other states.
ECDC pays the freight charges for most
rail shipments from the BRI facility to
such landfills.
Presently, NS and CSX provide rail
service for these MSW shipments,
pursuant to a transportation contract,
under which NS acts as the switching
carrier, switching loaded and empty
railcars between the BRI facility and
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CSXT’s nearby Manville Yard, in
Manville, NJ. The BRI facility is located
north of NS’s Lehigh Line and is served
by a private spur, the Royce Spur,
which connects to a track known as the
Royce Running Track. BRI manages the
loading of railcars and coordinates the
movement of cars between its facility
and Manville Yard. CSXT performs the
line-haul transportation between
Manville Yard and the landfill in South
Carolina. ECDC pays a single, through
fare for these rail transportation
services.
Petitioners assert that NS service has
deteriorated over the past 6 months,
citing NS’s failure to switch the facility
on several occasions when service
should have been provided. On some of
these occasions, the petitioners state
that BRI requested and received service
from Conrail when an NS crew was
unavailable. Petitioners argue that both
the BRI facility and Manville Yard are
located within the NJSAA, and that,
therefore, Conrail should be found to be
allowed to provide switch service
between these points, pursuant to the
NJSAA Operating Agreement approved
by the Board in Decision No. 89.
In the alternative, should the Board
find that the BRI facility is located
outside the NJSAA, petitioners request
that the Board issue a supplemental
order, allowing Conrail to perform
switching service between the BRI
facility and CSXT’s Manville Yard.
Petition For Clarification. Petitioners
request that the Board clarify whether
the BRI facility is within the NJSAA
and/or can be switched by Conrail
under the agreements pertaining to the
NJSAA that were approved by the Board
in Decision No. 89.
Petitioners contend that the NJSAA
extends southwest of ‘‘CP-Port Reading
Jct.,’’ where CSXT’s Trenton Line and
NS’s Lehigh Line come together.
Petitioners assert that a ‘‘CP,’’ or control
point, includes everything within the
approach circuits for the interlocking(s)
at the location involved, including all
track, signals, turnouts and electronic
circuitry between the approach signals
for the interlocking. Therefore,
petitioners contend that the CP at Port
Reading Junction, and thus the
boundary of the NJSAA, extends west
along the Lehigh Line to the approach
signal and related circuits of the
interlocking for the junction where the
Trenton and Lehigh Lines converge. If
the boundaries of the NJSAA are
defined in that way, petitioners state
that, at least a portion, if not all, of the
Royce Spur track that serves the BRI
facility would also be located within the
NJSAA, and that the right-of-way for the
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43285
spur would abut the Conrail property in
the NJSAA.
In its motion to dismiss, NS argues
that petitioners’ claim that the BRI
facility is within the NJSAA is clearly
refuted by the unambiguous provisions
of the transaction agreement among NS,
CSXT, and Conrail that was approved in
Decision No. 89. NS relies on schedules
and maps included in the transaction
agreement that identify the portion of
the Lehigh Line, running from CP Port
Reading Jct. eastward to Oak Island
Yard, as among the lines allocated to
Conrail’s NJSAA. According to NS, the
transaction agreement further shows
that the portion of the Lehigh Line,
running from CP Port Reading Jct.
westward to Allentown, PA, is allocated
to Pennsylvania Lines, LLC (or PRR)
(now NS). NS states that the maps show
that the Royce Running Track that
connects to the Royce Spur (which
serves the BRI facility) is a NS line and
is not in the NJSAA, and further that the
Royce Running Track joins the NS
portion of the line west of its connection
to the NJSAA.
NS states that Port Reading Jct. is the
point where Conrail’s portion of the
Lehigh Line terminates, where NS’s
portion of the Lehigh Line begins, and
where the Lehigh Line meets CSXT’s
Trenton Line. The designation, ‘‘CP-Port
Reading Jct.,’’ signifies that the switches
at that point and the signals controlling
access to the interlocking are controlled
by the Conrail North Jersey Train
Dispatcher. However, NS argues, the
boundaries of an interlocking do not
define the ownership of the various
tracks within the interlocking and do
not determine the use of equipment and
personnel over those various tracks by
those other railroads.
NS asserts that the SAAs, as governed
by the Shared Assets Agreements, are
not broad geographic areas
encompassing non-railroad as well as
railroad property but consist only of
railroad property. NS argues that, since
under the Shared Assets Agreements
Conrail may only operate over SAA
tracks, Conrail may not operate to, or
provide switching services for, a facility
if it can do so only by operating over
non-SAA tracks of NS or CSXT, such as
the tracks that serve the BRI facility.
NS has presented strong evidence,
based on the transaction agreement, to
support its claim that the BRI facility is
located outside the NJSAA.
Nevertheless, it is appropriate for the
Board to allow for limited discovery for
BRI to obtain evidence to further
develop the record as to what the parties
intended in their original transaction
agreement before resolving the issues
that are presented here. The Board notes
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43286
Federal Register / Vol. 71, No. 146 / Monday, July 31, 2006 / Notices
that Conrail’s past switching service of
the BRI facility is not controlling in
determining whether the BRI facility is
within the NJSAA.
Therefore, NS’s motion to dismiss the
petition for clarification will be denied,
and the Board will allow for limited
discovery, a supplement to the petition,
and the filing of comments by all
interested persons, as described below.
Petition For Supplemental Order. In
the alternative, should the Board find
that the BRI facility is located outside
the NJSAA, petitioners request a
supplemental order that would allow
Conrail to perform switching service
between the BRI facility and CSXT’s
Manville Yard.
Under 49 U.S.C. 11327, the Board has
continuing authority to enter
supplemental orders to modify
decisions entered in merger and control
proceedings under 49 U.S.C. 11323.
Citing what they consider to be NS’s
failure to provide adequate service,
petitioners argue that the public interest
favors a change in the carriers
authorized to serve the BRI facility by
including Conrail in that authorization.
In seeking a supplemental order that
would authorize Conrail to provide its
switching service outside the NJSAA,
petitioners essentially request what the
Board explicitly denied in Decision No.
89: ‘‘The ICC and the Board have
consistently declined to attempt to
equalize the rail transportation options
of shippers who receive merger benefits
with all those who do not. * * * [T]his
is not the kind of harm that the agency
rectifies under its conditioning power.’’
3 S.T.B. at 269–270. As the Board has
dismissed similar claims seeking
additional relief in previous Conrail
decisions, it will decline to issue a
supplemental order here. See, e.g., CSX
Corp. et al.—Control—Conrail Inc. et al.,
4 S.T.B. 107 (1999). Therefore,
petitioners’ request for a supplemental
order is denied.
Discovery. The Board will allow for
limited discovery pertaining to the
parties’ intent in defining the NJSAA
boundaries in the original transaction
agreement. The Board is particularly
interested in what the parties meant by
the use of the term ‘‘CP,’’ or control
point, in defining the SAAs. Therefore,
the NS and Conrail motions for
protective order are denied to the extent
needed to permit the limited discovery.
Procedural Schedule. The Board has
arranged to publish this decision in the
Federal Register on July 31, 2006, to
provide notice of this proceeding to all
interested persons, and to provide an
opportunity for public participation.
Petition Available to Interested
Persons. Interested persons may view
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the petition (and/or other related filings)
on the Board’s Web site at https://
www.stb.dot.gov, at the ‘‘Filings’’
button.
Any person wishing to obtain a paper
copy of the petition may request a copy
in writing or by phone from petitioners’
representatives (1) Christopher A. Mills,
Slover & Loftus, 1224 Seventeenth
Street, NW., Washington, DC 20036; and
(2) Kendra A. Ericson, Slover & Loftus,
1224 Seventeenth Street, NW.,
Washington, DC 20036.
Comments and Replies. Any person
who wishes to file comments regarding
the petition as supplemented must file
such comments by October 19, 2006.
Petitioners will have until October 30,
2006, to reply to any comments filed by
interested persons.
Decision by the Board. The Board will
act as promptly as possible to issue its
decision on the merits of the petition as
supplemented.
This action will not significantly
affect either the quality of the human
environment or the conservation of
energy resources.
It is ordered:
1. NS’s motion to dismiss the petition
for clarification is denied. Petitioners
are permitted to pursue limited
discovery pertaining to the parties’
intent in defining the NJSAA’s
boundaries in the original transaction
agreement.
2. Petitioners’ request in the
alternative for a supplemental order is
denied.
3. Limited discovery, as described in
this decision, must be completed by
August 30, 2006.
4. Petitioners’ supplement to the
petition is due by September 29, 2006.
5. Comments of interested persons on
the petition as supplemented are due by
October 19, 2006.
6. Petitioners’ reply is due by October
30, 2006.
7. This decision is effective on its
service date.
Decided: July 24, 2006.
By the Board, Chairman Buttrey and Vice
Chairman Mulvey.
Vernon A. Williams,
Secretary.
[FR Doc. E6–12182 Filed 7–28–06; 8:45 am]
BILLING CODE 4915–01–P
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DEPARTMENT OF THE TREASURY
Office of Thrift Supervision
Proposed Agency Information
Collection Activities; Comment
Request—Thrift Financial Report:
Schedules SC, SO, LD, CF, SI, SQ, and
HC
Office of Thrift Supervision
(OTS), Treasury.
ACTION: Notice and request for comment.
AGENCY:
SUMMARY: The Department of the
Treasury, as part of its continuing effort
to reduce paperwork and respondent
burden, invites the general public and
other Federal agencies to comment on
proposed and continuing information
collections, as required by the
Paperwork Reduction Act of 1995, 44
U.S.C. 3507. Today, the Office of Thrift
Supervision within the Department of
the Treasury solicits comments on
proposed changes to the Thrift Financial
Report (TFR), Schedule SC—
Consolidated Statement of Condition,
Schedule SO—Consolidated Statement
of Operations, Schedule LD—Loan Data,
Schedule CF—Consolidated Cash Flow
Information, Schedule SI—
Supplemental Information, Schedule
SQ—Consolidated Supplemental
Questions, and Schedule HC—Thrift
Holding Company. The proposed
changes are to become effective with the
March 31, 2007, report.
At the end of the comment period,
OTS will analyze the comments and
recommendations received to determine
if it should modify the proposed
revisions prior to giving its final
approval. OTS will then submit the
revisions to the Office of Management
and Budget (OMB) for review and
approval.
DATES: Submit written comments on or
before September 29, 2006.
ADDRESSES: Send comments to
Information Collection Comments, Chief
Counsel’s Office, Office of Thrift
Supervision, 1700 G Street, NW.,
Washington, DC 20552; send facsimile
transmissions to FAX number (202)
906–6518; send e-mails to
infocollection.comments@ots.treas.gov;
or hand deliver comments to the
Guard’s Desk, east lobby entrance, 1700
G Street, NW., on business days
between 9 a.m. and 4 p.m.. All
comments should refer to ‘‘TFR
Revisions—March 2007, OMB No.
1550–0023.’’ OTS will post comments
and the related index on the OTS
Internet Site at https://www.ots.treas.gov.
In addition, interested persons may
inspect comments at the Public Reading
Room, 1700 G Street, NW., by
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]]>Agencies
[Federal Register Volume 71, Number 146 (Monday, July 31, 2006)]
[Notices]
[Pages 43284-43286]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-12182]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Finance Docket No. 33388 (Sub-No. 100)]
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
AGENCY: Surface Transportation Board, DOT.
ACTION: Decision No. 1 in STB Finance Docket No. 33388 (Sub-No. 100);
Notice of Filing of Petition for Clarification or in the Alternative
for Supplemental Order; and Issuance of Procedural Schedule.
-----------------------------------------------------------------------
SUMMARY: On January 20, 2006, Bridgewater Resources, Inc. (BRI) and
ECDC Environmental, L.L.C. (ECDC), referred to collectively as the
petitioners, filed with the Surface Transportation Board (Board) a
joint petition for clarification (petition) as to the limits of the
North Jersey Shared Assets Area (NJSAA), established as part of the
Conrail control transaction, approved by the Board in CSX Corp. et
al.--Control--Conrail Inc. et al., 3 S.T.B. 196 (1998) (Decision No.
89).\1\ In particular, petitioners seek a determination that BRI's
waste transfer facility (BRI facility) is within the NJSAA and/or can
be switched by Conrail under the agreements pertaining to the NJSAA. If
the Board finds that the BRI facility is not located within the NJSAA,
petitioners seek in the alternative a supplemental order that would
enable Conrail to provide switching service, which NS currently
provides, between the BRI facility and CSXT's Manville Yard.
---------------------------------------------------------------------------
\1\ In Decision No. 89, the Board approved the acquisition of
control of Conrail Inc. and Consolidated Rail Corporation (Conrail),
and the division of that carrier's assets by (1) CSX Corporation
(CSXC) and CSX Transportation, Inc. (CSXT) (collectively CSX), and
(2) Norfolk Southern Corporation (NSC) and Norfolk Southern Railway
Company (NSR) (collectively, NS). Control of Conrail was effected by
CSX and NS on August 22, 1998.
---------------------------------------------------------------------------
By separate motions filed on February 9, 2006, NS seeks dismissal
of the petition, and a protective order to quash discovery, or in the
alternative, to stay all discovery pending a decision by the Board on
NS's motion to dismiss. Also on February 9, 2006, Conrail requested
that all discovery related to this matter be quashed, or in the
alternative, stayed pending a decision by the Board on NS's motion to
dismiss. On March 1, 2006, petitioners filed replies to both of NS's
procedural motions. For the reasons discussed below, NS's motion to
dismiss BRI's petition for clarification is denied and a schedule to
allow BRI to pursue limited discovery regarding the parties' intent
involving the boundaries of the NJSAA is established. BRI's alternative
request for a supplemental order is denied.
DATES: The effective date of this decision is July 31, 2006.
Petitioners have until August 30, 2006 to complete discovery, as
prescribed by this decision. Upon completion of discovery, petitioners
have until September 29, 2006 to supplement the petition based on
additional information provided by NS and Conrail in response to
petitioners' discovery request, unless the Board provides otherwise in
connection with any motions to compel. Any person who wishes to file
comments respecting this petition as supplemented must do so by October
19, 2006. Petitioners will have until October 30, 2006 to reply to
those comments.
Any motions to compel that may be necessary regarding discovery
requests must be filed by August 21, 2006. Replies to motions to compel
will be due 3 business days later.
ADDRESSES: Any filing submitted in this proceeding must be submitted
either via the Board's e-filing format or in the traditional paper
format. Any person using e-filing should comply with the instructions
found on the Board's Web site at https://www.stb.dot.gov at the ``E-
FILING'' link. Any person submitting a filing in the traditional paper
format should send an original and 10 paper copies of the filing (and
also an IBM-compatible floppy disk with any textual submission in any
version of either Microsoft Word or WordPerfect) to: Surface
Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In
addition, one copy of each filing in this proceeding must be sent
[[Page 43285]]
(and may be sent by e-mail only if service by e-mail is acceptable to
the recipient) to each of the following: (1) Christopher A. Mills,
Slover & Loftus, 1224 Seventeenth Street, NW., Washington, DC 20036;
(2) Kendra A. Ericson, Slover & Loftus, 1224 Seventeenth Street, NW.,
Washington, DC 20036; (3) John V. Edwards, Norfolk Southern
Corporation, Three Commercial Place, Norfolk, VA 23510-2191; (4)
Richard A. Allen, Zuckert, Scoutt & Rasenberger, LLP, 888 Seventeenth
Street, NW., Washington, DC 20006; and (5) Shannon M. Moyer, Zuckert,
Scoutt & Rasenberger, LLP, 888 Seventeenth Street, NW., Washington, DC
20006. Any reply should also be served (one copy each) on each
commenting party, and may be served by e-mail, but only if service by
email is acceptable to the recipient.
FOR FURTHER INFORMATION CONTACT: Julia M. Farr, (202) 565-1655.
[Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at 1-800-877-8339.]
SUPPLEMENTARY INFORMATION: In Decision No. 89, Conrail's rail operating
properties were divided into two categories: Allocated Assets and
Retained Assets. The latter were retained by Conrail for operation for
the benefit of both CSX and NS and consist primarily of three Shared
Assets Areas (SAAs), one of which is the NJSAA. Under the Shared Assets
Agreements, Conrail has the right to perform switching service within
the SAAs.
BRI owns and operates a fully permitted solid waste transfer
station near Manville/Port Reading Jct., in Bridgewater Township,
Somerset County, NJ. Non-toxic municipal solid waste (MSW),
construction and demolition debris, and non-hazardous soils are
transported to the BRI facility from various locations in northern New
Jersey and Staten Island. These waste materials are processed at the
BRI facility and shipped to disposal sites in other states, with
approximately 2,500 cars of MSW moved annually.
ECDC is a subsidiary of Allied Waste Industries. ECDC arranges for
the transportation of containerized shipments of MSW from collection
stations at various points, including the BRI facility, to landfills in
other states. ECDC pays the freight charges for most rail shipments
from the BRI facility to such landfills.
Presently, NS and CSX provide rail service for these MSW shipments,
pursuant to a transportation contract, under which NS acts as the
switching carrier, switching loaded and empty railcars between the BRI
facility and CSXT's nearby Manville Yard, in Manville, NJ. The BRI
facility is located north of NS's Lehigh Line and is served by a
private spur, the Royce Spur, which connects to a track known as the
Royce Running Track. BRI manages the loading of railcars and
coordinates the movement of cars between its facility and Manville
Yard. CSXT performs the line-haul transportation between Manville Yard
and the landfill in South Carolina. ECDC pays a single, through fare
for these rail transportation services.
Petitioners assert that NS service has deteriorated over the past 6
months, citing NS's failure to switch the facility on several occasions
when service should have been provided. On some of these occasions, the
petitioners state that BRI requested and received service from Conrail
when an NS crew was unavailable. Petitioners argue that both the BRI
facility and Manville Yard are located within the NJSAA, and that,
therefore, Conrail should be found to be allowed to provide switch
service between these points, pursuant to the NJSAA Operating Agreement
approved by the Board in Decision No. 89.
In the alternative, should the Board find that the BRI facility is
located outside the NJSAA, petitioners request that the Board issue a
supplemental order, allowing Conrail to perform switching service
between the BRI facility and CSXT's Manville Yard.
Petition For Clarification. Petitioners request that the Board
clarify whether the BRI facility is within the NJSAA and/or can be
switched by Conrail under the agreements pertaining to the NJSAA that
were approved by the Board in Decision No. 89.
Petitioners contend that the NJSAA extends southwest of ``CP-Port
Reading Jct.,'' where CSXT's Trenton Line and NS's Lehigh Line come
together. Petitioners assert that a ``CP,'' or control point, includes
everything within the approach circuits for the interlocking(s) at the
location involved, including all track, signals, turnouts and
electronic circuitry between the approach signals for the interlocking.
Therefore, petitioners contend that the CP at Port Reading Junction,
and thus the boundary of the NJSAA, extends west along the Lehigh Line
to the approach signal and related circuits of the interlocking for the
junction where the Trenton and Lehigh Lines converge. If the boundaries
of the NJSAA are defined in that way, petitioners state that, at least
a portion, if not all, of the Royce Spur track that serves the BRI
facility would also be located within the NJSAA, and that the right-of-
way for the spur would abut the Conrail property in the NJSAA.
In its motion to dismiss, NS argues that petitioners' claim that
the BRI facility is within the NJSAA is clearly refuted by the
unambiguous provisions of the transaction agreement among NS, CSXT, and
Conrail that was approved in Decision No. 89. NS relies on schedules
and maps included in the transaction agreement that identify the
portion of the Lehigh Line, running from CP Port Reading Jct. eastward
to Oak Island Yard, as among the lines allocated to Conrail's NJSAA.
According to NS, the transaction agreement further shows that the
portion of the Lehigh Line, running from CP Port Reading Jct. westward
to Allentown, PA, is allocated to Pennsylvania Lines, LLC (or PRR) (now
NS). NS states that the maps show that the Royce Running Track that
connects to the Royce Spur (which serves the BRI facility) is a NS line
and is not in the NJSAA, and further that the Royce Running Track joins
the NS portion of the line west of its connection to the NJSAA.
NS states that Port Reading Jct. is the point where Conrail's
portion of the Lehigh Line terminates, where NS's portion of the Lehigh
Line begins, and where the Lehigh Line meets CSXT's Trenton Line. The
designation, ``CP-Port Reading Jct.,'' signifies that the switches at
that point and the signals controlling access to the interlocking are
controlled by the Conrail North Jersey Train Dispatcher. However, NS
argues, the boundaries of an interlocking do not define the ownership
of the various tracks within the interlocking and do not determine the
use of equipment and personnel over those various tracks by those other
railroads.
NS asserts that the SAAs, as governed by the Shared Assets
Agreements, are not broad geographic areas encompassing non-railroad as
well as railroad property but consist only of railroad property. NS
argues that, since under the Shared Assets Agreements Conrail may only
operate over SAA tracks, Conrail may not operate to, or provide
switching services for, a facility if it can do so only by operating
over non-SAA tracks of NS or CSXT, such as the tracks that serve the
BRI facility.
NS has presented strong evidence, based on the transaction
agreement, to support its claim that the BRI facility is located
outside the NJSAA. Nevertheless, it is appropriate for the Board to
allow for limited discovery for BRI to obtain evidence to further
develop the record as to what the parties intended in their original
transaction agreement before resolving the issues that are presented
here. The Board notes
[[Page 43286]]
that Conrail's past switching service of the BRI facility is not
controlling in determining whether the BRI facility is within the
NJSAA.
Therefore, NS's motion to dismiss the petition for clarification
will be denied, and the Board will allow for limited discovery, a
supplement to the petition, and the filing of comments by all
interested persons, as described below.
Petition For Supplemental Order. In the alternative, should the
Board find that the BRI facility is located outside the NJSAA,
petitioners request a supplemental order that would allow Conrail to
perform switching service between the BRI facility and CSXT's Manville
Yard.
Under 49 U.S.C. 11327, the Board has continuing authority to enter
supplemental orders to modify decisions entered in merger and control
proceedings under 49 U.S.C. 11323. Citing what they consider to be NS's
failure to provide adequate service, petitioners argue that the public
interest favors a change in the carriers authorized to serve the BRI
facility by including Conrail in that authorization.
In seeking a supplemental order that would authorize Conrail to
provide its switching service outside the NJSAA, petitioners
essentially request what the Board explicitly denied in Decision No.
89: ``The ICC and the Board have consistently declined to attempt to
equalize the rail transportation options of shippers who receive merger
benefits with all those who do not. * * * [T]his is not the kind of
harm that the agency rectifies under its conditioning power.'' 3 S.T.B.
at 269-270. As the Board has dismissed similar claims seeking
additional relief in previous Conrail decisions, it will decline to
issue a supplemental order here. See, e.g., CSX Corp. et al.--Control--
Conrail Inc. et al., 4 S.T.B. 107 (1999). Therefore, petitioners'
request for a supplemental order is denied.
Discovery. The Board will allow for limited discovery pertaining to
the parties' intent in defining the NJSAA boundaries in the original
transaction agreement. The Board is particularly interested in what the
parties meant by the use of the term ``CP,'' or control point, in
defining the SAAs. Therefore, the NS and Conrail motions for protective
order are denied to the extent needed to permit the limited discovery.
Procedural Schedule. The Board has arranged to publish this
decision in the Federal Register on July 31, 2006, to provide notice of
this proceeding to all interested persons, and to provide an
opportunity for public participation.
Petition Available to Interested Persons. Interested persons may
view the petition (and/or other related filings) on the Board's Web
site at https://www.stb.dot.gov, at the ``Filings'' button.
Any person wishing to obtain a paper copy of the petition may
request a copy in writing or by phone from petitioners' representatives
(1) Christopher A. Mills, Slover & Loftus, 1224 Seventeenth Street,
NW., Washington, DC 20036; and (2) Kendra A. Ericson, Slover & Loftus,
1224 Seventeenth Street, NW., Washington, DC 20036.
Comments and Replies. Any person who wishes to file comments
regarding the petition as supplemented must file such comments by
October 19, 2006. Petitioners will have until October 30, 2006, to
reply to any comments filed by interested persons.
Decision by the Board. The Board will act as promptly as possible
to issue its decision on the merits of the petition as supplemented.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
It is ordered:
1. NS's motion to dismiss the petition for clarification is denied.
Petitioners are permitted to pursue limited discovery pertaining to the
parties' intent in defining the NJSAA's boundaries in the original
transaction agreement.
2. Petitioners' request in the alternative for a supplemental order
is denied.
3. Limited discovery, as described in this decision, must be
completed by August 30, 2006.
4. Petitioners' supplement to the petition is due by September 29,
2006.
5. Comments of interested persons on the petition as supplemented
are due by October 19, 2006.
6. Petitioners' reply is due by October 30, 2006.
7. This decision is effective on its service date.
Decided: July 24, 2006.
By the Board, Chairman Buttrey and Vice Chairman Mulvey.
Vernon A. Williams,
Secretary.
[FR Doc. E6-12182 Filed 7-28-06; 8:45 am]
BILLING CODE 4915-01-P
