City of Milwaukie-Petition for Declaratory Order, 56269-56270 [2012-22452]
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Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Notices
Easement—CSX Transp., Inc., FD 35661
(STB served Sept. 12, 2012).
Under the procedural schedule we are
adopting in this case: any person who
wishes to participate in this proceeding
as a POR must file a notice of intent to
participate no later than September 26,
2012; all comments, protests, requests
for conditions, and any other evidence
and argument in opposition to the
application, including filings by DOJ
and DOT, must be filed by November 9,
2012; comments on the Draft EA also
must be filed with OEA by November 9,
2012; and responses to comments,
protests, requests for conditions, and
other opposition on the transportation
merits of the Acquisition, as well as
Applicant’s rebuttal in support of the
Application, must be filed by November
29, 2012. The Board plans to issue its
Final EA on or before January 14, 2013,
and its final decision by February 8,
2013, and to make any such approval
effective by March 10, 2013. The Board
reserves the right to adjust the schedule
as circumstances may warrant. For
further information respecting dates, see
Appendix A (Procedural Schedule).
Additionally, discovery may begin
immediately. Requests for discovery
from CSXT are due on September 26,
2012. CSXT responses are due on
October 11, 2012. The parties are
encouraged to resolve all discovery
matters expeditiously and amicably.
Notice of Intent to Participate. Any
person who wishes to participate in this
proceeding as a POR must file with the
Board, no later than September 26,
2012, a notice of intent to participate,
accompanied by a certificate of service
indicating that the notice has been
properly served on the Secretary of
Transportation, the Attorney General of
the United States, and Steven C.
Armbrust and Louis E. Gitomer (counsel
for CSXT).
If a request is made in the notice of
intent to participate to have more than
one name added to the service list as a
POR representing a particular entity, the
extra name will be added to the service
list as a ‘‘Non-Party.’’ The list will
reflect the Board’s policy of allowing
only one official representative per
party to be placed on the service list, as
specified in Press Release No. 97–68
dated August 18, 1997, announcing the
implementation of the Board’s ‘‘One
Party-One Representative’’ policy for
service lists. Any person designated as
a Non-Party will receive copies of Board
decisions, orders, and notices but not
copies of official filings. Persons seeking
to change their status to a Party of
Record must accompany that request
with a written certification that he or
she has complied with the service
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requirements set forth at 49 CFR 1180.4
and any other requirements set forth in
this decision.
Service List Notice. The Board will
serve, as soon after September 26, 2012,
as practicable, a notice containing the
official service list (the service list
notice). Each POR will be required to
serve upon all other PORs, within ten
days of the service date of the servicelist notice, copies of all filings
previously submitted by that party (to
the extent such filings have not
previously been served upon such other
parties). Each POR also will be required
to file with the Board, within ten days
of the service date of the service-list
notice, a certificate of service indicating
that the service required by the
preceding sentence has been
accomplished. Every filing made by a
POR after the service date of the service
list notice must have its own certificate
of service indicating that all PORs on
the service list have been served with a
copy of the filing. Members of the
United States Congress (MOCs) and
Governors (GOVs) are not parties of
record and need not be served with
copies of filings, unless any MOC or
GOV has requested to be, and is
designated as, a POR.
Service of Decisions, Orders, and
Notices. The Board will serve copies of
its decisions, orders, and notices only
on those persons who are designated on
the official service list as either POR,
MOC, GOV, or Non-Party. All other
interested persons are encouraged to
obtain copies of decisions, orders, and
notices via the Board’s Web site at
‘‘www.stb.dot.gov’’ under ‘‘E–LIBRARY/
Decisions & Notices.’’
Access to Filings. Under the Board’s
rules, any document filed with the
Board (including applications,
pleadings, etc.) shall be promptly
furnished to interested persons on
request, unless subject to a protective
order. 49 CFR 1180.4(a)(3). The
application and other filings in this
proceeding are available for inspection
in the library (Room 131) at the offices
of the Surface Transportation Board, 395
E Street SW., in Washington, DC, and
will also be available on the Board’s
Web site at ‘‘www.stb.dot.gov’’ under
‘‘E–LIBRARY/Filings.’’ In addition, the
application may be obtained from
Messrs. Armbrust and Gitomer at the
addresses indicated above.
This action will not significantly
affect either the quality of the human
environment or the conservation of
energy resources.
It is ordered:
1. The application and notices of
exemption in the related subdockets are
accepted for consideration.
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56269
2. The parties to this proceeding must
comply with the procedural schedule
adopted by the Board in this proceeding
as shown in Appendix A.
3. The parties to this proceeding must
comply with the procedural
requirements described in this decision.
4. This decision is effective on
September 12, 2012.
By the Board, Chairman Elliott, Vice
Chairman Mulvey, and Commissioner
Begeman.
Jeffrey Herzig,
Clearance Clerk.
Appendix A
Procedural Schedule
August 13, 2012 CSXT’s application,
protective order, and notices of
exemption filed with the Board.
September 26, 2012 Notices of intent to
participate due to the Board. Discovery
requests due to CSXT.
October 5, 2012 OEA issues Draft EA.
October 11, 2012 CSXT responds to
discovery requests.
November 9, 2012 Comments due from all
parties, including the Attorney General
and the Secretary of Transportation, on
the transportation merits of the
Acquisition. Comments on Draft EA due
to OEA.
November 29, 2012 Responses to comments
on the transportation merits of the
Acquisition due. Applicant’s rebuttal in
support of the application due.
December 26, 2012 Close of record.
On or before January 14, 2013 OEA issues
Final EA.
February 8, 2013 Final decision served. *
* The Board reserves the right to modify
this schedule as circumstances may warrant.
[FR Doc. 2012–22421 Filed 9–11–12; 8:45 am]
BILLING CODE 4915–01–P
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Docket No. FD 35625]
City of Milwaukie—Petition for
Declaratory Order
The City of Milwaukie, Or. (the City),
filed a petition for declaratory order on
June 29, 2012 (Petition), requesting that
the Board declare that 49 U.S.C.
10501(b) does not preempt certain
municipal regulations regarding the
scattering of rubbish and the blocking of
vehicular and pedestrian traffic along
the border of the Oregon Pacific
Railroad Company’s (OPRC) train
maintenance facility and in a public
right-of-way. For the reasons discussed
below, the request to institute a
declaratory order proceeding will be
granted.
On June 29, 2012, the City filed a
petition for declaratory order. On July 3,
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56270
Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Notices
2012, OPRC filed a letter with the Board
noting its opposition to the Petition and
requesting 30 days to prepare its case in
opposition should the Board institute a
proceeding. OPRC’s letter included no
substantive support for why it opposed
the Petition and, to date, OPRC has not
submitted anything more to the Board.
The Petition requests that the Board
find the City is not preempted from
enforcing two municipal regulations
that the City claims protect the public
and ensure the public’s health and
safety. The regulations prohibit (1)
scattering rubbish, and (2) obstructing
vehicular and pedestrian traffic.
Milwaukie, Or. Mun. Code §§ 8.04.120,
10.44.030 (2011). According to the City,
OPRC owns a train maintenance facility
on approximately 0.78 acres within the
City. The City claims that along the
border of OPRC’s property, and in the
public right of way, OPRC stores rails,
railroad ties, piles of gravel, and other
large ‘‘debris.’’ The City argues that this
debris is a hazard for drivers,
pedestrians, and cyclists and violates
the two above regulations; the City has
cited OPRC at least twice.
The City argues that it should be
permitted to enforce the regulations for
the safety of its citizens and that there
is no reason why the regulations should
be preempted by federal law. It claims
the ordinances are of general
applicability, are not directed at or
limited to railroads operating within the
City, and are not directed at OPRC’s use
of its own property. It further claims
that the regulations are within its
traditional police power and that their
enforcement will not affect
transportation by a rail carrier.
In a letter to the City, OPRC claims
‘‘[m]unicipal interference with railroad
operations is pre-empted by USC 10501
(b); therefore, the City has no
jurisdiction over these matter [sic] as
they apply to Interstate Commerce.’’ 1
The record shows that OPRC has
contested the second set of citations in
the Municipal Court for the City of
Milwaukie and that a trial was set for
July 23, 2012. No update has been filed
with the Board since the scheduled trial
date. OPRC has also indicated it intends
to appeal the fine for the first set of
citations.
The Board has discretionary authority
under 5 U.S.C. 554(e) and 49 U.S.C. 721
to issue a declaratory order to eliminate
a controversy or remove uncertainty in
a matter related to the Board’s subject
matter jurisdiction.2 Questions of
1 Petition,
V.S. Salyers, Exh. I.
Bos. & Me. Corp. v. Town of Ayer, 330 F.3d
12, 14 n.2 (1st Cir. 2003); see also Intercity Transp.
Co. v. United States, 737 F.2d 103, 106–07 (DC Cir.
2 See
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18:51 Sep 11, 2012
Jkt 226001
preemption are often fact specific
determinations, particularly when
addressing whether land use restrictions
interfere with railroad operations.3
The Interstate Commerce Act, as
revised by the ICC Termination Act of
1995, vests in the Board broad
jurisdiction over ‘‘transportation by rail
carrier,’’ 49 U.S.C. 10501(a)(1), which
extends to property, facilities,
instrumentalities, or equipment of any
kind related to that transportation, 49
U.S.C. 10102(9). The preemption
provision in the Board’s governing
statute states that ‘‘the remedies
provided under [49 U.S.C. 10101–
11908] with respect to regulation of rail
transportation are exclusive and
preempt the remedies provided under
Federal or State law.’’ 49 U.S.C.
10501(b).
The Board will institute a declaratory
order proceeding and establish a
procedural schedule for the filing of
pleadings. This will ensure that the
record is complete on the issue of
whether the activities occurring in the
right-of-way are part of ‘‘transportation’’
by a ‘‘rail carrier’’ and therefore could
be preempted by § 10501(b).
The Board will consider this matter
under the modified procedure rules at
49 CFR part 1112. The City’s detailed
Petition will serve as its opening
statement. Replies will be due 30 days
from the date of service of this decision.
The City’s rebuttal will be due 45 days
from the service date of this decision.
This action will not significantly
affect either the quality of the human
environment or the conservation of
energy resources.
It is ordered:
1. A declaratory order proceeding is
instituted.
2. Replies are due by October 10,
2012.
3. The City’s rebuttal statement is due
by October 25, 2012.
4. This decision is effective on it
service date.
Decided: September 7, 2012.
By the Board, Rachel D. Campbell,
Director, Office of Proceedings.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2012–22452 Filed 9–11–12; 8:45 am]
BILLING CODE 4915–01–P
1984); Delegation of Auth.—Declaratory Order
Proceedings, 5 I.C.C. 2d 675, 675 (1989).
3 See Borough of Riverdale—Petition for
Declaratory Order—The N.Y. Susquehanna & W.
Ry., FD 33466, slip op. at 2 (STB served Feb. 27,
2001); Borough of Riverdale—Petition for
Declaratory Order—The N.Y. Susquehanna & W.
Ry., 4 S.T.B. 380, 387 (1999) (‘‘whether a particular
land use restriction interferes with interstate
commerce is a fact-bound question’’).
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Docket No. FD 35674]
CSX Transportation, Inc.—Temporary
Trackage Rights Exemption—Alabama
Great Southern Railroad Company and
Meridian Speedway, LLC
Pursuant to a written trackage rights
agreement dated August 31, 2012,
Alabama Great Southern Railroad
Company (AGS) has agreed to grant CSX
Transportation, Inc. (CSXT) temporary
overhead trackage rights over: (1) AGS
South District between the connection
of AGS and CSXT in Birmingham, Ala.,
near 14th Street at milepost 143.5 and
the connection with the trackage of The
Kansas City Southern Railway Company
(KCSR) near 27th Avenue in Meridian,
Miss., at milepost 295.4; (2) AGS NO &
NE District between the connection with
the trackage of Meridian Speedway, LLC
(Meridian Speedway) at Meridian,
Miss., 27th Avenue, milepost NO–0.4,
and New Orleans, La., Oliver Junction,
milepost 194.1; and (3) New Orleans
Terminal Back Belt Line between New
Orleans, La., Oliver Junction, milepost
7.9–NT, and East City Junction at
milepost 3.8–NT and between East City
Junction at milepost 3.5–A and CN/IC
connection in Shrewsbury, La., milepost
0.0–A, a distance of 352.8 miles.
Pursuant to a second written trackage
rights agreement, Meridian Speedway
has agreed to grant CSXT temporary
overhead trackage rights over the
connection between AGS and Meridian
Speedway near 27th Avenue in
Meridian, Miss., at milepost 295.4 and
the connection between Meridian
Speedway and AGS NO & NE District at
milepost NO–0.4, a distance of 0.4
miles. The lines in question total 353.2
miles of track.
CSXT explains that the temporary
trackage rights will permit it to resume
overhead rail service between
Pascagoula, Miss., and New Orleans,
La., in the aftermath of Hurricane Isaac.
CSXT states that as a result of Hurricane
Isaac, portions of its track along the Gulf
Coast have been damaged and put out
of service between Pascagoula, Miss.,
and New Orleans, La., and CSXT does
not expect the line to be operable in the
immediate future.
In addition to this verified notice of
exemption, CSXT concurrently filed a
petition requesting that the Board waive
the requirement of 49 CFR 1180.4(g) so
that the exemption could become
effective immediately. By decision
served September 7, 2012, the Board
granted CSXT’s request. As a result, this
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]]>Agencies
[Federal Register Volume 77, Number 177 (Wednesday, September 12, 2012)]
[Notices]
[Pages 56269-56270]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22452]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Docket No. FD 35625]
City of Milwaukie--Petition for Declaratory Order
The City of Milwaukie, Or. (the City), filed a petition for
declaratory order on June 29, 2012 (Petition), requesting that the
Board declare that 49 U.S.C. 10501(b) does not preempt certain
municipal regulations regarding the scattering of rubbish and the
blocking of vehicular and pedestrian traffic along the border of the
Oregon Pacific Railroad Company's (OPRC) train maintenance facility and
in a public right-of-way. For the reasons discussed below, the request
to institute a declaratory order proceeding will be granted.
On June 29, 2012, the City filed a petition for declaratory order.
On July 3,
[[Page 56270]]
2012, OPRC filed a letter with the Board noting its opposition to the
Petition and requesting 30 days to prepare its case in opposition
should the Board institute a proceeding. OPRC's letter included no
substantive support for why it opposed the Petition and, to date, OPRC
has not submitted anything more to the Board.
The Petition requests that the Board find the City is not preempted
from enforcing two municipal regulations that the City claims protect
the public and ensure the public's health and safety. The regulations
prohibit (1) scattering rubbish, and (2) obstructing vehicular and
pedestrian traffic. Milwaukie, Or. Mun. Code Sec. Sec. 8.04.120,
10.44.030 (2011). According to the City, OPRC owns a train maintenance
facility on approximately 0.78 acres within the City. The City claims
that along the border of OPRC's property, and in the public right of
way, OPRC stores rails, railroad ties, piles of gravel, and other large
``debris.'' The City argues that this debris is a hazard for drivers,
pedestrians, and cyclists and violates the two above regulations; the
City has cited OPRC at least twice.
The City argues that it should be permitted to enforce the
regulations for the safety of its citizens and that there is no reason
why the regulations should be preempted by federal law. It claims the
ordinances are of general applicability, are not directed at or limited
to railroads operating within the City, and are not directed at OPRC's
use of its own property. It further claims that the regulations are
within its traditional police power and that their enforcement will not
affect transportation by a rail carrier.
In a letter to the City, OPRC claims ``[m]unicipal interference
with railroad operations is pre-empted by USC 10501 (b); therefore, the
City has no jurisdiction over these matter [sic] as they apply to
Interstate Commerce.'' \1\ The record shows that OPRC has contested the
second set of citations in the Municipal Court for the City of
Milwaukie and that a trial was set for July 23, 2012. No update has
been filed with the Board since the scheduled trial date. OPRC has also
indicated it intends to appeal the fine for the first set of citations.
---------------------------------------------------------------------------
\1\ Petition, V.S. Salyers, Exh. I.
---------------------------------------------------------------------------
The Board has discretionary authority under 5 U.S.C. 554(e) and 49
U.S.C. 721 to issue a declaratory order to eliminate a controversy or
remove uncertainty in a matter related to the Board's subject matter
jurisdiction.\2\ Questions of preemption are often fact specific
determinations, particularly when addressing whether land use
restrictions interfere with railroad operations.\3\
---------------------------------------------------------------------------
\2\ See Bos. & Me. Corp. v. Town of Ayer, 330 F.3d 12, 14 n.2
(1st Cir. 2003); see also Intercity Transp. Co. v. United States,
737 F.2d 103, 106-07 (DC Cir. 1984); Delegation of Auth.--
Declaratory Order Proceedings, 5 I.C.C. 2d 675, 675 (1989).
\3\ See Borough of Riverdale--Petition for Declaratory Order--
The N.Y. Susquehanna & W. Ry., FD 33466, slip op. at 2 (STB served
Feb. 27, 2001); Borough of Riverdale--Petition for Declaratory
Order--The N.Y. Susquehanna & W. Ry., 4 S.T.B. 380, 387 (1999)
(``whether a particular land use restriction interferes with
interstate commerce is a fact-bound question'').
---------------------------------------------------------------------------
The Interstate Commerce Act, as revised by the ICC Termination Act
of 1995, vests in the Board broad jurisdiction over ``transportation by
rail carrier,'' 49 U.S.C. 10501(a)(1), which extends to property,
facilities, instrumentalities, or equipment of any kind related to that
transportation, 49 U.S.C. 10102(9). The preemption provision in the
Board's governing statute states that ``the remedies provided under [49
U.S.C. 10101-11908] with respect to regulation of rail transportation
are exclusive and preempt the remedies provided under Federal or State
law.'' 49 U.S.C. 10501(b).
The Board will institute a declaratory order proceeding and
establish a procedural schedule for the filing of pleadings. This will
ensure that the record is complete on the issue of whether the
activities occurring in the right-of-way are part of ``transportation''
by a ``rail carrier'' and therefore could be preempted by Sec.
10501(b).
The Board will consider this matter under the modified procedure
rules at 49 CFR part 1112. The City's detailed Petition will serve as
its opening statement. Replies will be due 30 days from the date of
service of this decision. The City's rebuttal will be due 45 days from
the service date of this decision.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
It is ordered:
1. A declaratory order proceeding is instituted.
2. Replies are due by October 10, 2012.
3. The City's rebuttal statement is due by October 25, 2012.
4. This decision is effective on it service date.
Decided: September 7, 2012.
By the Board, Rachel D. Campbell, Director, Office of
Proceedings.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2012-22452 Filed 9-11-12; 8:45 am]
BILLING CODE 4915-01-P
