Independence Rail Works Ltd.-Acquisition and Operation Exemption-Byesville Scenic Trails, LLC, 20229-20231 [2021-07792]

Download as PDF Federal Register / Vol. 86, No. 72 / Friday, April 16, 2021 / Notices determined, are of cultural significance, and, further, that their temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the Federal Register. FOR FURTHER INFORMATION CONTACT: Chi D. Tran, Program Administrator, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6471; email: section2459@state.gov). The mailing address is U.S. Department of State, L/PD, SA–5, Suite 5H03, Washington, DC 20522–0505. SUPPLEMENTARY INFORMATION: The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681, et seq.; 22 U.S.C. 6501 note, et seq.), Delegation of Authority No. 234 of October 1, 1999, and Delegation of Authority No. 236–3 of August 28, 2000. Matthew R. Lussenhop, Acting Assistant Secretary, Bureau of Educational and Cultural Affairs, Department of State. [FR Doc. 2021–07850 Filed 4–15–21; 8:45 am] BILLING CODE 4710–05–P SURFACE TRANSPORTATION BOARD [Docket No. FD 36432] jbell on DSKJLSW7X2PROD with NOTICES Independence Rail Works Ltd.— Acquisition and Operation Exemption—Byesville Scenic Trails, LLC On August 26, 2020, Independence Rail Works Ltd. (IRW) filed a petition for exemption under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 10901 to authorize, after the fact, its acquisition and operation of 3.6 miles of track in Guernsey County, Ohio, extending from milepost 4.9 to milepost 8.5 (the Line). IRW asks that the requested exemption be granted with retroactive effect. On November 19, 2020, the Board initiated a proceeding and requested additional information from various parties. Indep. Rail Works Ltd.—Acquis. & Operation Exemption— Byesville Scenic Trails, LLC (November 2020 Decision), FD 36432 (STB served Nov. 19, 2020). The parties have now provided sufficient information, and the Board will grant IRW an exemption to acquire and operate the Line. However, the exemption will not be granted retroactively. VerDate Sep<11>2014 19:57 Apr 15, 2021 Jkt 253001 Background According to IRW, the Line is a portion of a longer segment of track that IRW purchased from Byesville Scenic Trails, LLC (BST), in 2013.1 IRW claims that it has maintained the Line but that the only rail operations on the Line are shipments by CUOH of approximately 30 cars of aggregate and sand per week to Mar-Zane, Inc. (Mar-Zane), the only shipper on the Line, at milepost 8.0. (Pet. 4, 8.) IRW claims that, when CUOH began providing service over the Line, IRW believed that the Line was private track and that CUOH’s service to MarZane was outside the Board’s jurisdiction. (Id. at 6.) IRW asserts that recently, when it was evaluating the potential expanded use of the Line, it discovered that the Line is not private track and is in fact a rail line within the Board’s jurisdiction. (Id. at 4–5.) IRW explains that all 13.3 miles of track it purchased were originally owned by CSX Transportation, Inc. (CSXT), and that the Board authorized CSXT to abandon those 13.3 miles in June 1999. (Id. at 3); see CSX Transp., Inc.—Aban. Exemption—in Guernsey & Noble Cntys., Ohio, AB 55 (Sub-No. 569X) (STB served June 4, 1999). Thereafter, CSXT consummated abandonment of the segment between milepost 8.5 and milepost 18.23, (see CSXT filing, Sept. 1, 2000, AB 55 (SubNo. 569X)), but the remaining portion— the Line—was sold to the CambridgeGuernsey County Community Improvement Corporation (CIC) under the Board’s offer of financial assistance (OFA) process, see 49 U.S.C. 10904; 49 CFR 1152.27, thus remaining a rail line under the Board’s jurisdiction. See CSX Transp., Inc.—Aban. Exemption—in Guernsey & Noble Cntys., Ohio, AB 55 (Sub-No. 569X) (STB served Nov. 7, 2000). As noted above, IRW states in its petition that it acquired the Line from BST in 2013. IRW now seeks after-thefact authority for its unauthorized 2013 acquisition and for its right to operate the Line. (Pet. 3–4.) IRW asks for the exemption to be made retroactive to the date of its acquisition. (Id. at 13.) In its petition, IRW provided no information concerning how and when BST acquired the Line. Because IRW’s petition raised issues that required clarification, the Board in the November 2020 Decision requested that IRW and other relevant parties 1 That longer track segment, approximately 13.3 miles in length, extended from milepost 4.9 to milepost 18.23 in Guernsey and Noble Counties, Ohio, connecting with the Columbus and Ohio River Railroad (CUOH) in Byesville, Ohio, at milepost 4.9. (Pet. 1–2.) PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 20229 provide additional information with respect to BST’s previous acquisition of the Line, the ownership of the track segment extending from milepost 4.9 to milepost 5.14, and the statement in IRW’s petition indicating that it planned to seek discontinuance authority. In response, IRW filed a supplement to its petition on December 18, 2020; CSXT filed a reply on December 18, 2020; and CUOH filed a letter in response on December 17, 2020. First, having noted that the Board approved CIC’s purchase of the Line from CSXT under the OFA process in 1999 and that IRW purchased the Line (without authorization) from BST in 2013, the November 2020 Decision sought clarification regarding the circumstances surrounding BST’s previous acquisition of the Line. In response, IRW’s supplement states that, after reviewing property records and consulting with responsible representatives of CIC,2 IRW determined that Mr. Jerry J. Jacobson, or an entity under his control, purchased the Line from CIC on March 6, 2008, and that the Line was transferred to BST, which was owned by Mr. Jacobson, on August 12, 2008.3 (IRW Supplement 3–4.) IRW states that Mr. Jacobson died in 2017. (Id. at 3.) Next, the November 2020 Decision pointed out that, in 2004, CUOH obtained Board authorization to lease track from CSXT extending from milepost 0.0 to milepost 5.14, and that thus there appeared to be a segment of that leased track between milepost 4.9 and milepost 5.14 that overlapped with the Line. See also Columbus & Ohio River R.R.—Acquis. & Operation Exemption—Rail Lines of CSX Transp., Inc., FD 34540 (STB served Dec. 20, 2004). Given the apparent conflicting information with respect to the segment of track between milepost 4.9 and milepost 5.14, the Board requested all relevant information relating to the ownership of this segment of track. November 2020 Decision, FD 36432, slip op. at 3. In their filings, both IRW and CSXT confirm there is no overlap between the 2004 transaction and the transaction at issue in this proceeding. IRW states that the confusion over the ownership of this segment of track was due to a relabeling 2 IRW’s supplement included a verification from the Economic Development Director of CIC for the section of IRW’s supplement regarding BST’s acquisition of the Line. 3 According to IRW, the Line was held by Sugarcreek Real Estate Investments, LLC for five months before being transferred to BST. (IRW Suppl. 4.) IRW states that the Articles of Organization for Sugarcreek Real Estate Investments, LLC, were signed by Ms. Laura Jacobson, the wife of Mr. Jacobson. (Id. at 4 n.4.) E:\FR\FM\16APN1.SGM 16APN1 20230 Federal Register / Vol. 86, No. 72 / Friday, April 16, 2021 / Notices of mileposts. (IRW Suppl. 2.) IRW states that the quitclaim deed evidencing the sale from BST to IRW, which IRW provided with its supplement, indicates that the Line starts at CSXT Val Station 2647+60,4 which IRW’s records list as corresponding to milepost 4.9.5 (Id.) CSXT states that the quitclaim deed for the sale from CSXT to CIC and the lease between CSXT and CUOH 6 both indicate that the dividing line between the track owned by CSXT and the track owned by IRW is located at Val Station 2647+60. (CSXT Reply 3.) Finally, in response to certain statements in IRW’s petition regarding IRW’s plan to seek discontinuance authority and the Line’s potential subsequent status as private track, the November 2020 Decision noted that a common carrier line subject to the Board’s jurisdiction cannot become private track unless and until the Board authorizes its abandonment and the abandonment is consummated. November 2020 Decision, FD 36432, slip op. at 3–4. In response, IRW’s supplement acknowledges that the Line will remain subject to the Board’s jurisdiction unless it is abandoned pursuant to abandonment authority granted by the Board. (IRW Suppl. 4.) IRW states that following the Board’s decision on the petition, IRW either will contract with a carrier to provide service on the Line, subject to any requisite Board approval or exemption, recognizing that IRW will have a residual common carrier obligation, or it will seek discontinuance authority. (Id. at 4–5.) jbell on DSKJLSW7X2PROD with NOTICES Discussion and Conclusions Preliminary Issues. The Board finds that the parties have provided sufficient information regarding the issues raised in the November 2020 Decision to enable the Board to rule on the merits of the petition. The additional information provided by CSXT and IRW establishes that there is no dispute regarding the ownership of the track segment extending from IRW’s milepost 4.9 to IRW’s milepost 5.14. Both IRW 4 IRW states that the quitclaim deed shows that Val Station 2647+60 is located just north of Main Street in Byesville, Ohio. (IRW Suppl. 2–3.) According to IRW, Guernsey County property records also indicate that IRW’s ownership of the Line begins just north of Main Street. (Id. at 3.) 5 IRW states that going forward neither CSXT nor IRW will assign mileposts at the location of Val Station 2647+60 to avoid any discrepancies in future filings and records. (IRW Suppl. 3.) 6 CSXT’s reply includes a copy of the quitclaim deed for the sale from CSXT to CIC in September 2000 and a copy of an exhibit from the lease between CSXT and CUOH containing a map showing the point where the leased track ends and the track previously sold to CIC begins. (CSXT Reply, V.S. Elizabeth Walsh 3–6.) VerDate Sep<11>2014 19:57 Apr 15, 2021 Jkt 253001 and CSXT have provided documentation establishing that the Line extends from Val Station 2647+60, which IRW’s records list as corresponding to milepost 4.9, to Val Station 2834+40, which IRW’s records list as corresponding to milepost 8.5.7 Accordingly, the Board finds that CSXT does not own any part of the track for which IRW seeks an acquisition and operation exemption. With respect to the prior unauthorized acquisition of the Line by BST, the additional information provided indicates that Mr. Jacobson, or an entity under his control, purchased the Line from CIC on March 6, 2008, over five years after the transfer of the Line pursuant to the OFA process, and that the Line was transferred to BST, which was owned by Mr. Jacobson, on August 12, 2008. The Ohio Secretary of State’s listing of businesses registered in Ohio lists BST’s status as ‘‘dead’’ and indicates that the company was dissolved in June 2018.8 In these circumstances, the Board will not require any further action with respect to BST’s prior acquisition of the Line.9 Finally, IRW’s supplement clarifies that it understands that the Line may not be treated as private track unless it obtains abandonment authority from the Board and consummates the abandonment.10 Exemption from 49 U.S.C. 10901. The acquisition of a line of railroad by a noncarrier requires prior approval by the Board under 49 U.S.C. 10901(a)(4). Under 49 U.S.C. 10502(a), however, the Board must exempt a transaction or service from regulation upon finding that: (1) Regulation is not necessary to 7 In light of the information provided by IRW and CSXT in this proceeding, the Board will issue a corrected notice of exemption in Docket No. FD 34540 stating that the southern terminus of the leased segment of track is located at CSXT Val Station 2647+60. 8 Business Search, Ohio Sec’y of State, https:// businesssearch.ohiosos.gov/ (enter ‘‘Byesville Scenic Trails, LLC’’ in the ‘‘Business Name’’ search box, click ‘‘Search’’, and then click ‘‘Show Details’’ in the search results) (last visited Apr. 6, 2021). 9 Cf. ABE Fairmont, LLC—Aban. Exemption—in Fillmore Cnty., Neb., AB 1106X et al., slip op. at 5 (STB served Jan. 29, 2018). 10 As noted above, IRW indicates that it might seek authority to discontinue service on the Line. Acquisitions of active rail lines are generally supposed to be for continued rail use, though the Board has, in certain limited situations, granted acquisition authority when discontinuance/ abandonment was subsequently planned, where the circumstances warrant it. See, e.g., Wis. Rapids R.R.—Lease & Operation Exemption—Line of Wis. Cent. Ltd., FD 36339, slip op. at 1–2 n.1 (STB served Aug. 16, 2019); Ga. Dep’t of Transp.—Aban. Exemption—in Fulton Cnty., Ga., AB 1096X, slip op. at 1 n.2 (STB served May 30, 2012). The Board will address any request for discontinuance authority that IRW might file at the appropriate time. PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 carry out the rail transportation policy (RTP) of 49 U.S.C. 10101; and (2) either (a) the transaction or service is of limited scope, or (b) regulation is not needed to protect shippers from the abuse of market power. Here, the Board finds that an exemption after-the-fact with respect to IRW’s 2013 acquisition of the Line from BST should be granted. Detailed scrutiny of the proposed transaction through an application for review and approval under 49 U.S.C. 10901 is not necessary here to carry out the RTP. An exemption would promote the RTP by: minimizing the need for federal regulatory control over the transaction, (49 U.S.C. 10101(2)); reducing regulatory barriers to entry into the rail industry, (49 U.S.C. 10101(7)); encouraging efficient management of railroads, (49 U.S.C. 10101(9)); and providing for the expeditious handling and resolution of proceedings, (49 U.S.C. 10101(15)). Other aspects of the RTP will not be adversely affected. Regulation of this transaction is not needed to protect shippers from the abuse of market power.11 Mar-Zane, the only shipper on the Line, supports IRW’s petition. In addition, there would be no loss of rail competition and no adverse change in the competitive balance in the transportation market as a result of the acquisition exemption. Nor would there be a change in the level of service. Rather, providing the exemption sought here will ensure that service on the Line continues because IRW will have a common carrier obligation to provide service on the Line upon reasonable request unless and until it receives abandonment or discontinuance authority. Employee Protection. Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. However, 49 U.S.C. 10901(c) states that when authorizing a transaction governed by 49 U.S.C. 10901 the Board may require compliance with conditions ‘‘other than labor protective conditions’’ that are necessary in the public interest. Accordingly, the Board may not impose labor protective conditions here. Environmental and Historic Review. Under 49 CFR 1105.6(c)(1), this action, which will not result in significant changes in carrier operations, is categorically excluded from environmental review. Similarly, under 49 CFR 1105.8(b)(1), no historic report is required because the subject 11 Given this finding, the Board need not determine whether the transaction is limited in scope. See 49 U.S.C. 10502(a). E:\FR\FM\16APN1.SGM 16APN1 Federal Register / Vol. 86, No. 72 / Friday, April 16, 2021 / Notices transaction is for continued rail service, IRW has indicated no plans to alter railroad properties 50 years old or older, and any abandonment would be subject to Board jurisdiction. Effective Date. As stated above, IRW seeks an exemption with retroactive effect. Although the Board on occasion has granted authority retroactively,12 it generally disfavors such grants.13 Given that IRW has failed to explain why retroactive authority is needed in this case, the Board is unable to assess the need and declines to make its authority retroactive here. The exemption will be effective on May 13, 2021, unless it is stayed. It is ordered: 1. Under 49 U.S.C. 10502, the Board exempts from the prior approval requirements of 49 U.S.C. 10901 IRW’s acquisition and operation of the Line. 2. Notice of this exemption will be published in the Federal Register. 3. This exemption will be effective on May 13, 2021. Petitions for stay must be filed by April 23, 2021. Petitions to reopen must be filed by May 3, 2021. Decided: April 9, 2021. By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and Schultz. Tammy Lowery, Clearance Clerk. [FR Doc. 2021–07792 Filed 4–15–21; 8:45 am] BILLING CODE 4915–01–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Notice of Intent To Rule on a Request To Release Surplus Property at the Myrtle Beach International Airport, Myrtle Beach, South Carolina Federal Aviation Administration (FAA), DOT. ACTION: Notice and request for comment. AGENCY: The Federal Aviation Administration (FAA) is considering a request from the Horry County Department of Airports to waive the requirement that 0.29 acres of surplus jbell on DSKJLSW7X2PROD with NOTICES SUMMARY: 12 See, e.g., Grand Elk R.R.—Acquis. of Incidental Trackage Rights Exemption—Norfolk S. Ry., FD 35187 (Sub–No. 1) et al., slip op. at 4 (STB served Nov. 20, 2017) (after having previously denied a request for retroactive authority, reopening the proceeding to make exemption retroactive in light of changed circumstances, including a state court decision that declined to rule on a contractual issue because Board previously only granted prospective authority). 13 See, e.g., Elk River R.R.—Merger Exemption— Buffalo Creek R.R., FD 36434, slip op. at 3 (STB served Nov. 6, 2020); Ark.—Okla. R.R.—Acquis. & Operation Exemption—State of Okla., FD 36323, slip op. at 3 (STB served Sept. 19, 2019). VerDate Sep<11>2014 19:57 Apr 15, 2021 Jkt 253001 property located at the Myrtle Beach International Airport be used for aeronautical purposes. Currently, the ownership of the property provides for the protection of approach and departure Runway Protection Zones and compatible land use which would continue to be protected with deed restrictions required in the transfer of land ownership. DATES: Comments must be received on or before May 17, 2021. ADDRESSES: Comments on this application may be emailed or mailed to the FAA at the following address: Chaim Van Prooyen, Federal Aviation Administration, Atlanta Airports District Office, 1701 Columbia Ave., Ste. 220, College Park, GA 30337. In addition, one copy of any comments submitted to the FAA must be mailed to: Scott Van Moppes, Director of Airport, Myrtle Beach International Airport, 1100 Jetport Road, Myrtle Beach, South Carolina 29577. FOR FURTHER INFORMATION CONTACT: Chaim Van Prooyen, Federal Aviation Administration, Atlanta Airports District Office, 1701 Columbia Ave., Ste. 220, College Park, GA 30337, chaim.h.van.prooyen@faa.gov. The request to release property may be reviewed, by appointment, in person at this same location. SUPPLEMENTARY INFORMATION: The FAA is reviewing a request to release 0.29 acres of surplus property at the Myrtle Beach International Airport (MYR) under the provisions of 49 U.S.C. 47151(d). On December 4, 2020, the Horry County Department of Airports requested the FAA release 0.29 acres of surplus property for the Fred Nash Boulevard expansion right-of-way. The FAA has determined that the proposed property release at the Myrtle Beach International Airport (MYR), as submitted by the Horry County Department of Airports, meets the procedural requirements of the FAA and release of the property does not and will not impact future aviation needs at the airport. The FAA may approve the request, in whole or in part, no sooner than thirty days after the publication of this notice. In accordance with 49 U.S.C. 47107(c)(2)(B)(i) and (iii), the airport will receive fair market value for the property, which will be subsequently reinvested in another eligible airport improvement project for aviation facilities at the Myrtle Beach International Airport. Any person may inspect, by appointment, the request in person at the FAA office listed above under FOR FURTHER INFORMATION CONTACT. In addition, any person may, upon PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 20231 appointment and request, inspect the application, notice and other documents determined by the FAA to be related to the application in person at the Myrtle Beach International Airport. Issued in Atlanta, GA on April 13, 2021. Larry F. Clark, Manager, Atlanta Airports District Office. [FR Doc. 2021–07863 Filed 4–15–21; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF TRANSPORTATION Maritime Administration Notice of Funding Opportunity for the Maritime Administration’s Port Infrastructure Development Program (PIDP) Under the Consolidated Appropriations Act, 2021 Maritime Administration, DOT. Notice of Funding Opportunity. AGENCY: ACTION: The Consolidated Appropriations Act, 2021 appropriated $230 million for the Port Infrastructure Development Program (PIDP) to make grants to improve facilities within, or outside of and directly related to operations of or an intermodal connection to, coastal seaports, inland river ports, and Great Lakes ports. This notice announces the availability of funding for grants under this program and establishes selection criteria and application requirements. The Act directed that at least $205 million of the appropriated funds shall be for grants to coastal seaports or Great Lakes ports. Additionally, the National Defense Authorization Act for Fiscal Year 2021 directed that not less than $41.4 million shall be for projects at ‘‘Small Ports and Terminals’’ meeting certain requirements described in this NOFO. Funds for the PIDP are to be awarded as discretionary grants on a competitive basis for projects that will improve the safety, efficiency, or reliability of the movement of goods into, out of, around, or within a port. All PIDP grant recipients must meet all applicable Federal requirements, including the Buy American Act. The purpose of this notice is to solicit grant applications for the PIDP. DATES: Applications must be submitted by 5:00 p.m. E.D.T. on July 30, 2021. ADDRESSES: Applications must be submitted through Grants.gov. FOR FURTHER INFORMATION CONTACT: For further information concerning this notice, please contact the PIDP staff via email at PIDPgrants@dot.gov, or call Peter Simons, Supervisory Transportation Specialist, Office of Port SUMMARY: E:\FR\FM\16APN1.SGM 16APN1

Agencies

[Federal Register Volume 86, Number 72 (Friday, April 16, 2021)]
[Notices]
[Pages 20229-20231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07792]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36432]


Independence Rail Works Ltd.--Acquisition and Operation 
Exemption--Byesville Scenic Trails, LLC

    On August 26, 2020, Independence Rail Works Ltd. (IRW) filed a 
petition for exemption under 49 U.S.C. 10502 from the prior approval 
requirements of 49 U.S.C. 10901 to authorize, after the fact, its 
acquisition and operation of 3.6 miles of track in Guernsey County, 
Ohio, extending from milepost 4.9 to milepost 8.5 (the Line). IRW asks 
that the requested exemption be granted with retroactive effect. On 
November 19, 2020, the Board initiated a proceeding and requested 
additional information from various parties. Indep. Rail Works Ltd.--
Acquis. & Operation Exemption--Byesville Scenic Trails, LLC (November 
2020 Decision), FD 36432 (STB served Nov. 19, 2020). The parties have 
now provided sufficient information, and the Board will grant IRW an 
exemption to acquire and operate the Line. However, the exemption will 
not be granted retroactively.

Background

    According to IRW, the Line is a portion of a longer segment of 
track that IRW purchased from Byesville Scenic Trails, LLC (BST), in 
2013.\1\ IRW claims that it has maintained the Line but that the only 
rail operations on the Line are shipments by CUOH of approximately 30 
cars of aggregate and sand per week to Mar-Zane, Inc. (Mar-Zane), the 
only shipper on the Line, at milepost 8.0. (Pet. 4, 8.) IRW claims 
that, when CUOH began providing service over the Line, IRW believed 
that the Line was private track and that CUOH's service to Mar-Zane was 
outside the Board's jurisdiction. (Id. at 6.)
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    \1\ That longer track segment, approximately 13.3 miles in 
length, extended from milepost 4.9 to milepost 18.23 in Guernsey and 
Noble Counties, Ohio, connecting with the Columbus and Ohio River 
Railroad (CUOH) in Byesville, Ohio, at milepost 4.9. (Pet. 1-2.)
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    IRW asserts that recently, when it was evaluating the potential 
expanded use of the Line, it discovered that the Line is not private 
track and is in fact a rail line within the Board's jurisdiction. (Id. 
at 4-5.) IRW explains that all 13.3 miles of track it purchased were 
originally owned by CSX Transportation, Inc. (CSXT), and that the Board 
authorized CSXT to abandon those 13.3 miles in June 1999. (Id. at 3); 
see CSX Transp., Inc.--Aban. Exemption--in Guernsey & Noble Cntys., 
Ohio, AB 55 (Sub-No. 569X) (STB served June 4, 1999). Thereafter, CSXT 
consummated abandonment of the segment between milepost 8.5 and 
milepost 18.23, (see CSXT filing, Sept. 1, 2000, AB 55 (Sub-No. 569X)), 
but the remaining portion--the Line--was sold to the Cambridge-Guernsey 
County Community Improvement Corporation (CIC) under the Board's offer 
of financial assistance (OFA) process, see 49 U.S.C. 10904; 49 CFR 
1152.27, thus remaining a rail line under the Board's jurisdiction. See 
CSX Transp., Inc.--Aban. Exemption--in Guernsey & Noble Cntys., Ohio, 
AB 55 (Sub-No. 569X) (STB served Nov. 7, 2000).
    As noted above, IRW states in its petition that it acquired the 
Line from BST in 2013. IRW now seeks after-the-fact authority for its 
unauthorized 2013 acquisition and for its right to operate the Line. 
(Pet. 3-4.) IRW asks for the exemption to be made retroactive to the 
date of its acquisition. (Id. at 13.) In its petition, IRW provided no 
information concerning how and when BST acquired the Line.
    Because IRW's petition raised issues that required clarification, 
the Board in the November 2020 Decision requested that IRW and other 
relevant parties provide additional information with respect to BST's 
previous acquisition of the Line, the ownership of the track segment 
extending from milepost 4.9 to milepost 5.14, and the statement in 
IRW's petition indicating that it planned to seek discontinuance 
authority. In response, IRW filed a supplement to its petition on 
December 18, 2020; CSXT filed a reply on December 18, 2020; and CUOH 
filed a letter in response on December 17, 2020.
    First, having noted that the Board approved CIC's purchase of the 
Line from CSXT under the OFA process in 1999 and that IRW purchased the 
Line (without authorization) from BST in 2013, the November 2020 
Decision sought clarification regarding the circumstances surrounding 
BST's previous acquisition of the Line. In response, IRW's supplement 
states that, after reviewing property records and consulting with 
responsible representatives of CIC,\2\ IRW determined that Mr. Jerry J. 
Jacobson, or an entity under his control, purchased the Line from CIC 
on March 6, 2008, and that the Line was transferred to BST, which was 
owned by Mr. Jacobson, on August 12, 2008.\3\ (IRW Supplement 3-4.) IRW 
states that Mr. Jacobson died in 2017. (Id. at 3.)
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    \2\ IRW's supplement included a verification from the Economic 
Development Director of CIC for the section of IRW's supplement 
regarding BST's acquisition of the Line.
    \3\ According to IRW, the Line was held by Sugarcreek Real 
Estate Investments, LLC for five months before being transferred to 
BST. (IRW Suppl. 4.) IRW states that the Articles of Organization 
for Sugarcreek Real Estate Investments, LLC, were signed by Ms. 
Laura Jacobson, the wife of Mr. Jacobson. (Id. at 4 n.4.)
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    Next, the November 2020 Decision pointed out that, in 2004, CUOH 
obtained Board authorization to lease track from CSXT extending from 
milepost 0.0 to milepost 5.14, and that thus there appeared to be a 
segment of that leased track between milepost 4.9 and milepost 5.14 
that overlapped with the Line. See also Columbus & Ohio River R.R.--
Acquis. & Operation Exemption--Rail Lines of CSX Transp., Inc., FD 
34540 (STB served Dec. 20, 2004). Given the apparent conflicting 
information with respect to the segment of track between milepost 4.9 
and milepost 5.14, the Board requested all relevant information 
relating to the ownership of this segment of track. November 2020 
Decision, FD 36432, slip op. at 3.
    In their filings, both IRW and CSXT confirm there is no overlap 
between the 2004 transaction and the transaction at issue in this 
proceeding. IRW states that the confusion over the ownership of this 
segment of track was due to a relabeling

[[Page 20230]]

of mileposts. (IRW Suppl. 2.) IRW states that the quitclaim deed 
evidencing the sale from BST to IRW, which IRW provided with its 
supplement, indicates that the Line starts at CSXT Val Station 
2647+60,\4\ which IRW's records list as corresponding to milepost 
4.9.\5\ (Id.) CSXT states that the quitclaim deed for the sale from 
CSXT to CIC and the lease between CSXT and CUOH \6\ both indicate that 
the dividing line between the track owned by CSXT and the track owned 
by IRW is located at Val Station 2647+60. (CSXT Reply 3.)
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    \4\ IRW states that the quitclaim deed shows that Val Station 
2647+60 is located just north of Main Street in Byesville, Ohio. 
(IRW Suppl. 2-3.) According to IRW, Guernsey County property records 
also indicate that IRW's ownership of the Line begins just north of 
Main Street. (Id. at 3.)
    \5\ IRW states that going forward neither CSXT nor IRW will 
assign mileposts at the location of Val Station 2647+60 to avoid any 
discrepancies in future filings and records. (IRW Suppl. 3.)
    \6\ CSXT's reply includes a copy of the quitclaim deed for the 
sale from CSXT to CIC in September 2000 and a copy of an exhibit 
from the lease between CSXT and CUOH containing a map showing the 
point where the leased track ends and the track previously sold to 
CIC begins. (CSXT Reply, V.S. Elizabeth Walsh 3-6.)
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    Finally, in response to certain statements in IRW's petition 
regarding IRW's plan to seek discontinuance authority and the Line's 
potential subsequent status as private track, the November 2020 
Decision noted that a common carrier line subject to the Board's 
jurisdiction cannot become private track unless and until the Board 
authorizes its abandonment and the abandonment is consummated. November 
2020 Decision, FD 36432, slip op. at 3-4. In response, IRW's supplement 
acknowledges that the Line will remain subject to the Board's 
jurisdiction unless it is abandoned pursuant to abandonment authority 
granted by the Board. (IRW Suppl. 4.) IRW states that following the 
Board's decision on the petition, IRW either will contract with a 
carrier to provide service on the Line, subject to any requisite Board 
approval or exemption, recognizing that IRW will have a residual common 
carrier obligation, or it will seek discontinuance authority. (Id. at 
4-5.)

Discussion and Conclusions

    Preliminary Issues. The Board finds that the parties have provided 
sufficient information regarding the issues raised in the November 2020 
Decision to enable the Board to rule on the merits of the petition. The 
additional information provided by CSXT and IRW establishes that there 
is no dispute regarding the ownership of the track segment extending 
from IRW's milepost 4.9 to IRW's milepost 5.14. Both IRW and CSXT have 
provided documentation establishing that the Line extends from Val 
Station 2647+60, which IRW's records list as corresponding to milepost 
4.9, to Val Station 2834+40, which IRW's records list as corresponding 
to milepost 8.5.\7\ Accordingly, the Board finds that CSXT does not own 
any part of the track for which IRW seeks an acquisition and operation 
exemption.
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    \7\ In light of the information provided by IRW and CSXT in this 
proceeding, the Board will issue a corrected notice of exemption in 
Docket No. FD 34540 stating that the southern terminus of the leased 
segment of track is located at CSXT Val Station 2647+60.
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    With respect to the prior unauthorized acquisition of the Line by 
BST, the additional information provided indicates that Mr. Jacobson, 
or an entity under his control, purchased the Line from CIC on March 6, 
2008, over five years after the transfer of the Line pursuant to the 
OFA process, and that the Line was transferred to BST, which was owned 
by Mr. Jacobson, on August 12, 2008. The Ohio Secretary of State's 
listing of businesses registered in Ohio lists BST's status as ``dead'' 
and indicates that the company was dissolved in June 2018.\8\ In these 
circumstances, the Board will not require any further action with 
respect to BST's prior acquisition of the Line.\9\
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    \8\ Business Search, Ohio Sec'y of State, https://businesssearch.ohiosos.gov/ (enter ``Byesville Scenic Trails, LLC'' 
in the ``Business Name'' search box, click ``Search'', and then 
click ``Show Details'' in the search results) (last visited Apr. 6, 
2021).
    \9\ Cf. ABE Fairmont, LLC--Aban. Exemption--in Fillmore Cnty., 
Neb., AB 1106X et al., slip op. at 5 (STB served Jan. 29, 2018).
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    Finally, IRW's supplement clarifies that it understands that the 
Line may not be treated as private track unless it obtains abandonment 
authority from the Board and consummates the abandonment.\10\
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    \10\ As noted above, IRW indicates that it might seek authority 
to discontinue service on the Line. Acquisitions of active rail 
lines are generally supposed to be for continued rail use, though 
the Board has, in certain limited situations, granted acquisition 
authority when discontinuance/abandonment was subsequently planned, 
where the circumstances warrant it. See, e.g., Wis. Rapids R.R.--
Lease & Operation Exemption--Line of Wis. Cent. Ltd., FD 36339, slip 
op. at 1-2 n.1 (STB served Aug. 16, 2019); Ga. Dep't of Transp.--
Aban. Exemption--in Fulton Cnty., Ga., AB 1096X, slip op. at 1 n.2 
(STB served May 30, 2012). The Board will address any request for 
discontinuance authority that IRW might file at the appropriate 
time.
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    Exemption from 49 U.S.C. 10901. The acquisition of a line of 
railroad by a noncarrier requires prior approval by the Board under 49 
U.S.C. 10901(a)(4). Under 49 U.S.C. 10502(a), however, the Board must 
exempt a transaction or service from regulation upon finding that: (1) 
Regulation is not necessary to carry out the rail transportation policy 
(RTP) of 49 U.S.C. 10101; and (2) either (a) the transaction or service 
is of limited scope, or (b) regulation is not needed to protect 
shippers from the abuse of market power.
    Here, the Board finds that an exemption after-the-fact with respect 
to IRW's 2013 acquisition of the Line from BST should be granted. 
Detailed scrutiny of the proposed transaction through an application 
for review and approval under 49 U.S.C. 10901 is not necessary here to 
carry out the RTP. An exemption would promote the RTP by: minimizing 
the need for federal regulatory control over the transaction, (49 
U.S.C. 10101(2)); reducing regulatory barriers to entry into the rail 
industry, (49 U.S.C. 10101(7)); encouraging efficient management of 
railroads, (49 U.S.C. 10101(9)); and providing for the expeditious 
handling and resolution of proceedings, (49 U.S.C. 10101(15)). Other 
aspects of the RTP will not be adversely affected.
    Regulation of this transaction is not needed to protect shippers 
from the abuse of market power.\11\ Mar-Zane, the only shipper on the 
Line, supports IRW's petition. In addition, there would be no loss of 
rail competition and no adverse change in the competitive balance in 
the transportation market as a result of the acquisition exemption. Nor 
would there be a change in the level of service. Rather, providing the 
exemption sought here will ensure that service on the Line continues 
because IRW will have a common carrier obligation to provide service on 
the Line upon reasonable request unless and until it receives 
abandonment or discontinuance authority.
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    \11\ Given this finding, the Board need not determine whether 
the transaction is limited in scope. See 49 U.S.C. 10502(a).
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    Employee Protection. Under 49 U.S.C. 10502(g), the Board may not 
use its exemption authority to relieve a rail carrier of its statutory 
obligation to protect the interests of its employees. However, 49 
U.S.C. 10901(c) states that when authorizing a transaction governed by 
49 U.S.C. 10901 the Board may require compliance with conditions 
``other than labor protective conditions'' that are necessary in the 
public interest. Accordingly, the Board may not impose labor protective 
conditions here.
    Environmental and Historic Review. Under 49 CFR 1105.6(c)(1), this 
action, which will not result in significant changes in carrier 
operations, is categorically excluded from environmental review. 
Similarly, under 49 CFR 1105.8(b)(1), no historic report is required 
because the subject

[[Page 20231]]

transaction is for continued rail service, IRW has indicated no plans 
to alter railroad properties 50 years old or older, and any abandonment 
would be subject to Board jurisdiction.
    Effective Date. As stated above, IRW seeks an exemption with 
retroactive effect. Although the Board on occasion has granted 
authority retroactively,\12\ it generally disfavors such grants.\13\ 
Given that IRW has failed to explain why retroactive authority is 
needed in this case, the Board is unable to assess the need and 
declines to make its authority retroactive here. The exemption will be 
effective on May 13, 2021, unless it is stayed.
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    \12\ See, e.g., Grand Elk R.R.--Acquis. of Incidental Trackage 
Rights Exemption--Norfolk S. Ry., FD 35187 (Sub-No. 1) et al., slip 
op. at 4 (STB served Nov. 20, 2017) (after having previously denied 
a request for retroactive authority, reopening the proceeding to 
make exemption retroactive in light of changed circumstances, 
including a state court decision that declined to rule on a 
contractual issue because Board previously only granted prospective 
authority).
    \13\ See, e.g., Elk River R.R.--Merger Exemption--Buffalo Creek 
R.R., FD 36434, slip op. at 3 (STB served Nov. 6, 2020); Ark.--Okla. 
R.R.--Acquis. & Operation Exemption--State of Okla., FD 36323, slip 
op. at 3 (STB served Sept. 19, 2019).
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    It is ordered:
    1. Under 49 U.S.C. 10502, the Board exempts from the prior approval 
requirements of 49 U.S.C. 10901 IRW's acquisition and operation of the 
Line.
    2. Notice of this exemption will be published in the Federal 
Register.
    3. This exemption will be effective on May 13, 2021. Petitions for 
stay must be filed by April 23, 2021. Petitions to reopen must be filed 
by May 3, 2021.

    Decided: April 9, 2021.

    By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and 
Schultz.
Tammy Lowery,
Clearance Clerk.
[FR Doc. 2021-07792 Filed 4-15-21; 8:45 am]
BILLING CODE 4915-01-P