81 FR 62548 - Grand Elk Railroad, Inc.-Acquisition of Incidental Trackage Rights Exemption-Norfolk Southern Railway Company

SURFACE TRANSPORTATION BOARD

Federal Register Volume 81, Issue 175 (September 9, 2016)

[Federal Register Volume 81, Number 175 (Friday, September 9, 2016)]
[Notices]
[Pages 62548-62549]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-21701]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 35187 (Sub-No. 1)]


Grand Elk Railroad, Inc.--Acquisition of Incidental Trackage 
Rights Exemption--Norfolk Southern Railway Company

    Grand Elk Railroad, Inc. (GDLK), a Class III rail carrier, has 
filed a verified notice of exemption under 49 CFR 1150.41 to acquire by 
assignment from Norfolk Southern Railway Company (NSR) trackage rights 
over approximately 3.3 miles of rail line owned by CSX Transportation, 
Inc. (CSXT) in Grand Rapids, Mich. (the Line). The Line extends from 
milepost CH 151.3 at Pleasant Street through milepost CH 
151.6/CGE 0.0 to milepost CGE 3.0 north of Ann Street in 
Grand Rapids, Mich.
    GDLK states that the subject trackage rights conveyance was 
incidental to GDLK's 2009 lease and operation of NSR-owned railroad 
lines extending generally from Grand Rapids, Mich., to Elkhart, Ind., 
but was inadvertently omitted from GDLK's notice of exemption for that 
transaction. See Grand Elk R.R.--Lease & Operation Exemption--Norfolk 
S. Ry., FD 35187 (STB served Nov. 17, 2008). GLDK states that it has 
filed this notice to obtain proper agency authority for the prior 
assignment of trackage rights over the CSXT Line. (Notice 2.) GDLK 
contends that it operated pursuant to the CSXT Line trackage rights 
from its start-up in 2009 until August 10, 2016, when CSXT denied GDLK 
access to the line. (Notice 3). According to GDLK, CSXT is disputing 
the 2009 assignment and GDLK is addressing CSXT's contractual arguments 
in state court.\1\ (Id.) GLDK states that it is seeking retroactive 
Board authorization to assure that the court is fully able to address 
the matters before it. (Id.) GDLK states that the transaction does not 
involve any provision or agreement that would limit future interchange 
with a third-party connecting carrier.
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    \1\ GDLK acknowledges that the authority invoked by its notice 
is permissive and that issuance of this notice is not determinative 
of the disputed trackage rights contract issues. (Notice 6 n.3 
(citing Wis. Cent. Ltd.--Trackage Rights Exemption--Lines of Union 
Pac. R.R., FD 35992 (STB served Mar. 4, 2016), and Rock & Rail, 
Inc.--Acquis. & Operation Exemption--Burlington N. & Santa Fe. Ry., 
FD 33738 (STB served Apr. 30, 1999).)
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    GDLK states that its projected annual revenues as a result of this 
transaction will not result in the creation of a Class II or Class I 
rail carrier, but that its projected annual revenues would exceed $5 
million. Accordingly, GDLK is required, at least 60 days before this 
exemption is to become effective, to send notice of the transaction to 
the national offices of the labor unions with employees on the affected 
lines, post a copy of the notice at the workplace of the employees on 
the affected lines, and certify to the Board that it has done so. 49 
CFR 1150.42(e).
    In addition to its verified notice of exemption, GDLK has filed a 
petition for waiver of the 60-day labor notice requirements of 49 CFR 
1150.42(e), asserting that: (1) No employees would be affected by the 
Board's authorization

[[Page 62549]]

of these trackage rights; and (2) GDLK provided the required notice to 
NSR employees and relevant national labor organizations at the time of 
the underlying lease transaction in 2009. GDLK has also filed a 
petition to partially revoke the class exemption at 49 CFR 1150.41 to 
allow the Board to retroactively authorize the assignment of trackage 
rights from NSR to GDLK. GDLK's waiver request and petition for partial 
revocation will be addressed in a separate decision. The Board will 
establish in the decision on the waiver request the earliest date this 
transaction may be consummated.
    If the notice contains false or misleading information, the 
exemption is void ab initio. Petitions to revoke the exemption under 49 
U.S.C. 10502(d) may be filed at any time. The filing of a petition to 
revoke will not automatically stay the effectiveness of the exemption. 
Petitions to stay must be filed no later than September 16, 2016 (at 
least seven days before the exemption becomes effective.)
    An original and ten copies of all pleadings, referring to Docket 
No. FD 35187 (Sub-No. 1), must be filed with the Surface Transportation 
Board, 395 E Street SW., Washington, DC 20423-0001. In addition, a copy 
of each pleading must be served on applicant's representative, Robert 
A. Wimbish, Fletcher & Sippell LLC, 29 North Wacker Drive, Suite 290, 
Chicago, IL 60606.
    According to GDLK, this action is categorically excluded from 
environmental review under 49 CFR 1105.6(c).
    Board decisions and notices are available on our Web site at 
WWW.STB.DOT.GOV.

    Decided: September 2, 2016.

    By the Board, Joseph H. Dettmar, Acting Director, Office of 
Proceedings.
Tia Delano,
Clearance Clerk.
[FR Doc. 2016-21701 Filed 9-8-16; 8:45 am]
BILLING CODE 4915-01-P