Norfolk Southern Railway Company-Petition for Declaratory Order, 74739-74740 [2012-30277]

Download as PDF srobinson on DSK4SPTVN1PROD with Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 / Notices handhold at each corner of the car would also eliminate the horizontal handhold (‘‘knee knocker’’) when boarding the car, and thus eliminate a tripping hazard while egressing. UTLX believes that the installation of the vertical handhold provides a safer means for railroad employees equipped with a radio, remote-control belt pack, and lantern to board the end platform or ride while standing on the sill step, and maintain three-point contact. A copy of the petition, as well as any written communications concerning the petition, is available for review online at www.regulations.gov and in person at the U.S. Department of Transportation’s (DOT) Docket Operations Facility, 1200 New Jersey Avenue SE., W12–140, Washington, DC 20590. The Docket Operations Facility is open from 9 a.m. to 5 p.m., Monday through Friday, except Federal Holidays. Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request. All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods: • Web site: http:// www.regulations.gov/. Follow the online instructions for submitting comments. • Fax: 202–493–2251. • Mail: Docket Operations Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., W12–140, Washington, DC 20590. • Hand Delivery: 1200 New Jersey Avenue SE., Room W12–140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. Communications received by January 31, 2013 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume VerDate Mar<15>2010 16:21 Dec 14, 2012 Jkt 229001 65, Number 70; Pages 19477–78), or online at http://www.dot.gov/ privacy.html. Issued in Washington, DC, on December 10, 2012. Robert C. Lauby, Deputy Associate Administrator for Regulatory and Legislative Operations. [FR Doc. 2012–30246 Filed 12–14–12; 8:45 am] BILLING CODE 4910–06–P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [Docket No. FD 35701] Norfolk Southern Railway Company— Petition for Declaratory Order Norfolk Southern Railway Company (NS) filed a petition for a declaratory order on November 28, 2012, pertaining to 18 inverse condemnation lawsuits filed in the Circuit Court of Roanoke County, Va., against NS and Appalachian Power Company (APCO). In its petition, NS requests that the Board find that under 49 U.S.C. 10501(b), the claims of nuisance and inverse condemnation asserted against NS in those suits are preempted by federal law. For the reasons discussed below, a declaratory order proceeding will be instituted to consider the issues raised in the petition. Background According to the petition, between 1890 and 1900, NS constructed and began operation on a rail line in Roanoke County, Va., which has been an active line since that time. The plaintiffs in the state lawsuits are homeowners who live in a neighborhood near the NS line. According to NS, operations on its rail line predate the development of the neighborhood. APCO’s property is adjacent to the rail line and lies between plaintiffs’ properties and NS’s rail line. The petition alleges that, beginning in 2009, APCO began removing trees and erecting electrical transmission towers and lines on its land. Thereafter, plaintiffs filed their state court lawsuits against NS and APCO alleging, in part, that, since APCO removed the trees that had insulated their property from the effects of NS’s rail operations, the dust (including coal dust), dirt, smoke, vibrations, and noise from the operation of NS’s trains have damaged their property and diminished its value. Plaintiffs’ court complaints claim that the operation of NS’s rail line now constitutes a nuisance and that NS has violated Article I, section 11 of the Constitution of Virginia, which provides PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 74739 that private property shall not be taken or damaged for public use without just compensation to the property owner. NS does not dispute that its operation of the rail line constitutes a public use, but does contend that plaintiffs’ claims are preempted by 49 U.S.C. 10501(b). Discussion and Conclusions 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. 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). NS argues, and asks the Board to declare, that the claims asserted against it in the state lawsuits are preempted under this provision. 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 remedies sought by plaintiffs are preempted by § 10501(b).1 The Board will consider this matter under the modified procedure rules at 49 CFR part 1112. NS’s detailed petition will serve as its opening statement. Replies will be due 20 days from the date of service of this decision. NS’s rebuttal will be due 27 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 to NS’s petition are due by January 2, 2013. 3. NS’s rebuttal statement is due by January 9, 2013. 1 In its petition, NS seeks leave to conduct ‘‘any appropriate discovery.’’ The Board, however, generally does not order discovery in declaratory order proceedings involving largely legal issues, see Md. Transit Admin.—Pet. for Declaratory Order, Docket No. FD 34975, slip op. at 8 (STB served Sept. 19, 2008), and NS does not explain, nor is it apparent, why discovery is needed here. For those reasons, and given NS’s request for expedited review, the procedural schedule adopted here does not include a period for discovery. E:\FR\FM\17DEN1.SGM 17DEN1 74740 Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 / Notices 4. A copy of this decision will be served upon the parties and counsel listed in the certificate of service appended to NS’s petition as well as upon: Hon. Clifford R. Weckstein, Chief Judge, Roanoke County Circuit Court, P.O. Box 1126, 305 E. Main Street, Salem, VA 24153–1126. 5. This decision is effective on its service date. Decided: December 12, 2012. By the Board, Rachel D. Campbell, Director, Office of Proceedings. Jeffrey Herzig, Clearance Clerk. in the computation of the U.S. balance of payments accounts and international investments position, as well as in the formulation of U.S. financial and monetary policies. This survey is also part of an international effort coordinated by the IMF to improve worldwide balance of payments statistics. Respondents are primarily the largest banks, securities dealers, and investors. Affected Public: Private Sector: Businesses or other for-profits. Estimated Total Burden Hours: 63,202. Dawn D. Wolfgang, Treasury PRA Clearance Officer. [FR Doc. 2012–30277 Filed 12–14–12; 8:45 am] BILLING CODE 4915–01–P [FR Doc. 2012–30291 Filed 12–14–12; 8:45 am] BILLING CODE 4810–25–P DEPARTMENT OF THE TREASURY Submission for OMB Review; Comment Request DEPARTMENT OF THE TREASURY December 12, 2012. Alcohol and Tobacco Tax and Trade Bureau srobinson on DSK4SPTVN1PROD with The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice. DATES: Comments should be received on or before January 16, 2013 to be assured of consideration. ADDRESSES: Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestion for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at OIRA_Submission@OMB.EOP.GOV and (2) Treasury PRA Clearance Officer, 1750 Pennsylvania Ave. NW., Suite 8140, Washington, DC 20220, or email at PRA@treasury.gov. FOR FURTHER INFORMATION CONTACT: Copies of the submission(s) may be obtained by calling (202) 927–5331, email at PRA@treasury.gov, or the entire information collection request maybe found at www.reginfo.gov. Office of International Affairs OMB Number: 1505–0146. Type of Review: Revision of a currently approved collection. Title: Survey of U.S. Ownership of Foreign Securities. Form: TDF–SHC, TDF–SHCA. Abstract: The survey will collect information on U.S. holdings of foreign securities. The information will be used VerDate Mar<15>2010 16:21 Dec 14, 2012 Jkt 229001 Proposed Information Collections; Comment Request Alcohol and Tobacco Tax and Trade Bureau; Treasury. ACTION: Notice and request for comments. AGENCY: As part of our continuing effort to reduce paperwork and respondent burden, and as required by the Paperwork Reduction Act of 1995, we invite comments on the proposed or continuing information collections listed below in this notice. DATES: We must receive your written comments on or before February 15, 2013. SUMMARY: You may send comments to Mary A. Wood, Alcohol and Tobacco Tax and Trade Bureau, at any of these addresses: • U.S. mail: 1310 G Street NW., Box 12, Washington, DC 20005; • Hand delivery/courier in lieu of mail: 1310 G Street NW., Suite 200E, Washington, DC 20005; • 202–453–2686 (facsimile); or • formcomments@ttb.gov (email). Please send separate comments for each specific information collection listed below. You must reference the information collection’s title, form or recordkeeping requirement number, and OMB number (if any) in your comment. If you submit your comment via facsimile, please send no more than five 8.5 x 11 inch pages in order to ensure our equipment is not overburdened. FOR FURTHER INFORMATION CONTACT: To obtain additional information, copies of the information collection and its ADDRESSES: PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 instructions, or copies of any comments received, contact Mary A. Wood, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; or telephone 202–453–2265. SUPPLEMENTARY INFORMATION: Request for Comments The Department of the Treasury and its Alcohol and Tobacco Tax and Trade Bureau (TTB), as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to comment on the proposed or continuing information collections listed below in this notice, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Comments submitted in response to this notice will be included or summarized in our request for Office of Management and Budget (OMB) approval of the relevant information collection. All comments are part of the public record and subject to disclosure. Please do not include any confidential or inappropriate material in your comments. We invite comments on: (a) Whether this information collection is necessary for the proper performance of the agency’s functions, including whether the information has practical utility; (b) the accuracy of the agency’s estimate of the information collection’s burden; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the information collection’s burden on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide the requested information. Information Collections Open for Comment Currently, we are seeking comments on the following TTB forms and recordkeeping requirements: Title: Inventory—Manufacturer of Tobacco Products, Processed Tobacco, or Cigarette Papers and Tubes. OMB Control Number: 1513–0032. TTB Form Numbers: 5210.9. Abstract: TTB F 5210.9 is used by manufacturers of tobacco products or processed tobacco to report the beginning and ending inventories of tobacco products and processed tobacco and at other times required by the TTB regulations. The information reported on this form is used by TTB to determine tax liability and compliance E:\FR\FM\17DEN1.SGM 17DEN1

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[Federal Register Volume 77, Number 242 (Monday, December 17, 2012)]
[Notices]
[Pages 74739-74740]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30277]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Docket No. FD 35701]


Norfolk Southern Railway Company--Petition for Declaratory Order

    Norfolk Southern Railway Company (NS) filed a petition for a 
declaratory order on November 28, 2012, pertaining to 18 inverse 
condemnation lawsuits filed in the Circuit Court of Roanoke County, 
Va., against NS and Appalachian Power Company (APCO). In its petition, 
NS requests that the Board find that under 49 U.S.C. 10501(b), the 
claims of nuisance and inverse condemnation asserted against NS in 
those suits are preempted by federal law. For the reasons discussed 
below, a declaratory order proceeding will be instituted to consider 
the issues raised in the petition.

Background

    According to the petition, between 1890 and 1900, NS constructed 
and began operation on a rail line in Roanoke County, Va., which has 
been an active line since that time. The plaintiffs in the state 
lawsuits are homeowners who live in a neighborhood near the NS line. 
According to NS, operations on its rail line predate the development of 
the neighborhood. APCO's property is adjacent to the rail line and lies 
between plaintiffs' properties and NS's rail line.
    The petition alleges that, beginning in 2009, APCO began removing 
trees and erecting electrical transmission towers and lines on its 
land. Thereafter, plaintiffs filed their state court lawsuits against 
NS and APCO alleging, in part, that, since APCO removed the trees that 
had insulated their property from the effects of NS's rail operations, 
the dust (including coal dust), dirt, smoke, vibrations, and noise from 
the operation of NS's trains have damaged their property and diminished 
its value. Plaintiffs' court complaints claim that the operation of 
NS's rail line now constitutes a nuisance and that NS has violated 
Article I, section 11 of the Constitution of Virginia, which provides 
that private property shall not be taken or damaged for public use 
without just compensation to the property owner. NS does not dispute 
that its operation of the rail line constitutes a public use, but does 
contend that plaintiffs' claims are preempted by 49 U.S.C. 10501(b).

Discussion and Conclusions

    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. 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). NS argues, and asks 
the Board to declare, that the claims asserted against it in the state 
lawsuits are preempted under this provision.
    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 remedies 
sought by plaintiffs are preempted by Sec.  10501(b).\1\
---------------------------------------------------------------------------

    \1\ In its petition, NS seeks leave to conduct ``any appropriate 
discovery.'' The Board, however, generally does not order discovery 
in declaratory order proceedings involving largely legal issues, see 
Md. Transit Admin.--Pet. for Declaratory Order, Docket No. FD 34975, 
slip op. at 8 (STB served Sept. 19, 2008), and NS does not explain, 
nor is it apparent, why discovery is needed here. For those reasons, 
and given NS's request for expedited review, the procedural schedule 
adopted here does not include a period for discovery.
---------------------------------------------------------------------------

    The Board will consider this matter under the modified procedure 
rules at 49 CFR part 1112. NS's detailed petition will serve as its 
opening statement. Replies will be due 20 days from the date of service 
of this decision. NS's rebuttal will be due 27 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 to NS's petition are due by January 2, 2013.
    3. NS's rebuttal statement is due by January 9, 2013.

[[Page 74740]]

    4. A copy of this decision will be served upon the parties and 
counsel listed in the certificate of service appended to NS's petition 
as well as upon: Hon. Clifford R. Weckstein, Chief Judge, Roanoke 
County Circuit Court, P.O. Box 1126, 305 E. Main Street, Salem, VA 
24153-1126.
    5. This decision is effective on its service date.

    Decided: December 12, 2012.

    By the Board, Rachel D. Campbell, Director, Office of 
Proceedings.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2012-30277 Filed 12-14-12; 8:45 am]
BILLING CODE 4915-01-P