81 FR 94007 - Genesee & Wyoming Inc.-Acquisition of Control Exemption-Providence and Worcester Railroad
SURFACE TRANSPORTATION BOARD Federal Register Volume 81, Issue 246 (December 22, 2016)
Federal Register Volume 81, Issue 246 (December 22, 2016)
| Page Range | 94007-94010 | |
| FR Document | 2016-30843 |
[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)] [Notices] [Pages 94007-94010] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-30843] ======================================================================= ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD [Docket No. FD 36064] Genesee & Wyoming Inc.--Acquisition of Control Exemption-- Providence and Worcester Railroad On September 1, 2016, Genesee & Wyoming Inc. (GWI), a non-carrier holding company, filed a petition under 49 U.S.C. 10502 and 49 CFR part 1121 for exemption from the provisions of 49 U.S.C. 11323-24 to allow GWI to acquire control of Providence and Worcester Railroad Company (P&W), a Class III railroad. In a decision served September 20, 2016, and published in the Federal Register on September 23, 2016 (81 FR 65,692), the Board provided notice of GWI's petition, instituted a proceeding, and set a reply deadline for comments on the petition. The Board received a number of comments in response to the petition. The Board will grant GWI's petition for exemption, subject to standard labor protective conditions and the condition that GWI will not interfere with the ability of Springfield Terminal Railway (Springfield Terminal) to interchange with CSX Transportation, Inc. (CSXT), in Worcester, Mass. Background GWI is a publicly-traded non-carrier holding company that currently controls, through direct or indirect equity ownership, two Class II carriers and 106 Class III carriers operating in the United States. (Pet. 1.) P&W is a Class III carrier based in Worcester, Mass., that owns rail lines and permanent freight easements in Connecticut, Rhode Island, and Massachusetts. (Id. at 2.) It also operates on trackage rights in Connecticut, Massachusetts, Rhode Island, and New York. (Id.) In its petition, GWI states that it seeks to acquire control of P&W through a merger between P&W and Pullman Acquisition Sub Inc., a newly- formed, wholly-owned non-carrier subsidiary of GWI.\1\ (Id.) Upon consummation, P&W will be the surviving entity and will become a wholly-owned subsidiary of GWI. (Id.) P&W connects with several railroads, including two GWI subsidiaries: New England Central Railroad, Inc. (NECR), and Connecticut Southern Railroad, Inc. (CSO). (Id. at 3.) GWI states that, although there are some commonly-served cities and towns, there are no customers that are served solely by NECR or CSO, on the one hand, and P&W, on the other, and that as such there will be no ``2-to-1 customers'' as a result of the proposed transaction. (Id. at 3.) GWI states that it does not contemplate any material changes to P&W's operations, maintenance, or service. (Id. at 4.) --------------------------------------------------------------------------- \1\ In its petition, GWI states that it anticipates closing the transaction in the fourth quarter of 2016. (Pet. 5.) GWI states that, in the event it does not have approval from the Board by the time its closing conditions have been met, it intends to close the transaction into a voting trust. On October 31, 2016, GWI submitted an executed Voting Trust Agreement pursuant to 49 CFR 1013.3 for receipt of the voting stock of P&W. --------------------------------------------------------------------------- GWI also states that P&W and NECR are part of the ``Great Eastern Route'' strategic alliances. According to GWI, the Great Eastern alliances furnish P&W with pricing authority for service with Canadian National Railway Company (CN) through an arrangement by which NECR provides haulage for P&W between East Alburg, Vt. and Willimantic, Conn. on certain contractually-agreed commodities. GWI states that P&W expanded the Great Eastern Route by entering into an additional strategic alliance with Vermont Rail Systems (VRS), which furnishes P&W with pricing authority for service with Canadian Pacific Railway Limited (CP), through an arrangement by which VRS and NECR provide haulage for P&W between Whitehall, N.Y. and Willimantic, Conn. on certain contractually-agreed commodities. (Id. at 3.) GWI states that its present intention is to keep these strategic alliances, and the connections with CN and CP, in place. (Id.) Discussion and Conclusions Statutory Analysis The acquisition of control of a rail carrier by a person that is not a rail carrier but that controls any number of rail carriers requires approval by the Board pursuant to 49 U.S.C. 11323(a)(5). Under section 10502(a), however, we must exempt a transaction or service from regulation if we find that: (1) regulation is not necessary to carry out the rail transportation policy (RTP) of 49 U.S.C. 10101; and (2) either the transaction or service is limited in scope, or regulation is not needed to protect shippers from the abuse of market power. In this case, an exemption from the prior approval requirements of sections 11323-24 is consistent with the standards of section 10502. Detailed scrutiny of the proposed transaction through an application for review and approval under sections 11323-24 is not necessary here to carry out the RTP. Approval of the transaction will result in a change in ownership of P&W with no lessening of competition. An exemption will promote the RTP by minimizing the need for federal regulatory control over the transaction, section 10101(2); ensuring the development and continuation of a sound rail transportation system that will continue to meet the needs of the public, section 10101(4); fostering sound economic conditions in transportation, section 10101(5); encouraging efficient management, section 10101(9); and providing for the expeditious resolution of this proceeding, section 10101(15). Other aspects of the RTP will not be adversely affected. Nor is detailed scrutiny of the proposed transactions necessary to protect shippers from an abuse of market power. According to GWI, no shipper will lose any rail options, and operations will not materially change. (Pet. 9.) Although P&W connects with NECR and CSO, GWI states that P&W also connects directly with a Class I [[Page 94008]] carrier (CSXT) and indirectly with three other Class I carriers (CP and CN through the strategic alliances, and with Norfolk Southern Railway Company (NSR) through NSR's affiliate, Pan Am Southern, LLC). (Id. at 10.) P&W also connects to Pan Am Railways, Inc., New York & Atlantic Railway Company, and Housatonic Railroad Company, Inc., all regional and shortline railroads. (Id.) In addition, GWI states that there will be no 2-to-1 shippers as a result of the merger. (Id.) Accordingly, based on the record, the Board finds that this transaction does not shift or consolidate market power; therefore, regulation is not necessary to protect shippers from the abuse of market power.\2\ --------------------------------------------------------------------------- \2\ As there is no evidence that regulation is needed to protect shippers from the abuse of market power, we do not need to determine whether the transaction is limited in scope. See 49 U.S.C. 10502(a). --------------------------------------------------------------------------- Comments and Conditions Many of the commenters support the petition and do not seek any conditions.\3\ Other commenters support the petition but request conditions, or express general reservations about the transaction. We address those below. --------------------------------------------------------------------------- \3\ Supporting comments were filed by: Allnex USA Inc.; Atlantic Forest Products; Baldwin Logistics Group, Inc.; BB&S Treated Lumber of New England; Can-Am Trading & Logistics, LLC; Connecticut Department of Transportation; Cushman Lumbar Company, Inc., CWPM, LLC; Delaware Express Co.; Dennison Lubricants, Inc.; Eagle Logistics Group, LLC; Gateway Terminal; Greater Boston Transload, LLC; Intratransit Container, Inc.; Kloeckner Metals; Logistec USA; Mann Distribution LLC; Maple Leaf Distribution Service, Inc.; Maine Department of Transportation; New Hampshire Department of Transportation; Northeast Treaters, Inc.; Resource Recovery, LLC; Rymes Heating Oil & Propane; Safe Road Services, LLC; Saltine Warrior, Inc.; Stella-Jones Corporation; Superior Plastics Extrusion Co. Inc.; T-Branch, LLC; Tunnel Hill Partners, LP; Univar; Vermont Rail System; and Vermont Agency of Transportation. --------------------------------------------------------------------------- Passenger Excursion Several commenters support the petition, but ask the Board to condition granting the petition on GWI's involvement in passenger excursions run by the Blackstone Valley Tourism Council (BVTC) \4\ and/ or sought to be run by the Boston Surface Railroad Company (BSRC).\5\ The comments regarding these passenger services vary, but, generally, the commenters \6\ request that the Board require that GWI continue servicing BVTC and continue P&W's negotiations with BSRC. --------------------------------------------------------------------------- \4\ The record contains little information about the BVTC, other than that it conducts a ``Polar Express'' excursion and serves over 20,000 passengers annually. (See State Rep. Stephen M. Casey Comment 1.) \5\ BSRC is a privately funded and closely held company, established to address the growing demand for quality alternatives to driving for commuters between tightly coupled metropolitan markets. BSRC has selected Worcester and Providence as the first city pair for its pilot passenger rail program and has been in negotiations with P&W to host this proposed service. (BSRC Reply 1.) \6\ Comments were submitted by: BSRC; the Honorable Lisa Baldelli-Hunt, Mayor, City of Woonsocket, Rhode Island; the Honorable Stephen M. Casey, State Representative, State of Rhode Island and Providence Plantations; the Honorable Harriette L. Chandler, State Senator, Commonwealth of Massachusetts; the Honorable Marc A. Cote, State Senator, State of Rhode Island and Providence Plantations; John Eno; the Honorable James R. Langevin and the Honorable David N. Cicilline, United States Representatives, Rhode Island; Massachusetts Bay Railroad Enthusiasts, Inc.; the Honorable James P. McGovern, United States Representative, Massachusetts; the Honorable Michael A. Morin, State Representative, State of Rhode Island and Providence Plantations; the Honorable David K. Muradian, Jr., State Representative, Commonwealth of Massachusetts; National Association of Railroad Passengers; the Honorable James J. O'Day, State Representative, Commonwealth of Massachusetts; the Honorable Robert D. Phillips, State Representative, State of Rhode Island and Providence Plantations; Michael E. Traynor, Chief Development Officer, City of Worcester, Massachusetts. BSRC also submitted a letter from Peter Alviti, Jr., Director of the Rhode Island Department of Transportation, expressing general support for BSRC's passenger rail service. --------------------------------------------------------------------------- GWI states that, in the past, P&W and BVTC have made arrangements for service on a year-by-year basis. (GWI Rebuttal 5.) GWI states that P&W will fulfill all current agreements with BVTC, negotiate similar agreements for 2017, and, as P&W has previously done, review further plans for passenger excursion service on a year-to-year basis after that. (Id. at 7.) GWI also states that there is currently a memorandum of understanding between BSRC and P&W that includes a commitment to negotiate in good faith. (Id. at 5-6.) The Board will not impose a condition relating to BVTC or BSRC. The Board has authorized BSRC to offer passenger rail service on any rail line where P&W will allow the service. Bos. Surface R.R.--Pet. for Partial Exemption from 49 U.S.C. Subtitle IV, FD 36043 (STB served Sept. 15, 2016). However, authority from the Board is permissive only, and in order to exercise that authority a carrier must obtain the property or contractual right to do so under state law, which is not within the Board's purview. See Ohio River Partners LLC--Acquis. Exemption--Hannibal Dev., LLC, FD 35984, slip op. at 3 (STB served Apr. 1, 2016). A condition requiring GWI to negotiate with BSRC is therefore inappropriate. In any event, GWI has stated that it will continue to negotiate in good faith with BSRC and BVTC. (GWI Rebuttal 7.) Springfield Terminal Springfield Terminal filed a comment regarding its ability to interchange traffic with CSXT at Barbers Station in Worcester, Mass. (Springfield Terminal Comment 1.) Springfield Terminal states that GWI has agreed that it will not take or fail to take action that would adversely impact Springfield Terminal's ability to interchange traffic with CSXT at Barbers Station. (Id.) Based on this representation, Springfield Terminal states that it fully supports the petition. Springfield Terminal also notes that GWI agreed to have Board approval conditioned on GWI's commitment as reflected in Springfield Terminal's letter, and in its rebuttal GWI confirms that its commitment can be entered as a Board-imposed condition. (GWI Rebuttal 3.) Accordingly, the Board will impose a condition requiring that GWI will not take or fail to take any actions that would adversely impact the ability of Springfield Terminal to interchange traffic with CSX Transportation, Inc. at Barbers Station in Worcester, Massachusetts in violation of applicable law or the P&W Grant of Trackage Rights, as amended, dated June 30, 1989. Other Concerns The Massachusetts Department of Transportation (MassDOT) and American Rock Salt (ARS) filed comments expressing reservations regarding the transaction. MassDOT states that it takes no position concerning the competition aspect of GWI's petition, but it notes its interest in P&W continuing its current high standards of track maintenance under a GWI regime. It also indicates that service over a nearby GWI subsidiary line has deteriorated, leading to passenger train service disruption. (MassDOT Comment 1.) MassDOT seeks GWI's assurance that the P&W merger ``will not compromise or delay steps that GWI will need to take going forward to restore Amtrak service on another GWI railroad . . . .'' (Id.) MassDOT, however, does not specifically ask the Board to impose any conditions. ARS states that it is a shipper that receives service from several other GWI subsidiaries. It states that GWI's growth over the past 20 years has led to ARS being captive to GWI's rate structures, which impacts its market share. Although ARS has raised a number of concerns regarding service from other GWI subsidiaries, ARS does not ask that a specific condition be placed on this transaction. (See generally ARS Comment.) While the Board takes seriously the concerns expressed by MassDOT and ARS, neither party has suggested a condition or identified any harm arising [[Page 94009]] from the transaction that would necessitate imposing a condition. The Board expects, however, that GWI will work with MassDOT and ARS to help address any unforeseen service impacts, should they arise, following the transaction's approval.\7\ --------------------------------------------------------------------------- \7\ The Board reminds interested parties that they may contact the Board's Rail Customer and Public Assistance Program (RCPA) if they believe a rail carrier is not providing adequate service. The RCPA Program provides informal assistance on a wide range of matters, including informal dispute resolution through mediation. The RCPA may be reached at (866) 254-1792; faxing to (202) 245-0461; or by email at [email protected]. --------------------------------------------------------------------------- Labor 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. Therefore, the Board will impose a condition specifying that any employees adversely affected by this transaction will be protected by the conditions set forth in New York Dock Railway--Control--Brooklyn Eastern District Terminal (New York Dock), 360 I.C.C. 60 (1979). GWI, acknowledging that New York Dock applies, seeks Board confirmation that it need not commence negotiations or consummate implementing agreements prior to the consummation of the transaction with P&W. (Pet. 10-11.) The Transportation Communications Union/IAM, AFL-CIO (TCU/IAM) and the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART-TD) submitted comments disagreeing with GWI's position, arguing that GWI must give notice and negotiate an implementing agreement prior to consummation of the transaction. (See TCU/IAM Comment 3, 5-6; SMART- TD Comment 3-5.) New York Dock requires a railroad to give notice of ``proposed changes to be effected by [a] transaction'' when a railroad is ``contemplating a change or changes in its operations, services, facilities, or equipment as a result of a transaction'' that may affect employees. 360 I.C.C. at 77. The requirement under New York Dock to provide such notice presumes, however, that the carrier is capable of making a ``full and adequate statement'' of the expected labor changes before the transaction is consummated. Norfolk S. Ry--Joint Control & Operating/Pooling Agreements--Pan Am S. LLC (Pan Am S.), FD 35147, slip op. at 16-17 (STB served Mar. 10, 2009) (``Because we see no basis for negotiation of an implementing agreement until Applicants decide to implement labor changes that are related to the Transaction, we will not require that Applicants commence negotiations now.''). In its petition, GWI states that it has not yet determined whether or which employees may be adversely affected, but acknowledges that it will be required to give 90-days' notice, and negotiate, before making changes in operations, services, facilities, or equipment. (Pet. 11.) Further, in its rebuttal, GWI specifically confirms that post-closing, P&W does not intend to terminate or displace any P&W covered employees as a result of the proposed transaction. P&W will continue to honor all current [collective bargaining agreements (CBAs)], and to negotiate all expired CBAs in good faith. For the foreseeable future, there will be no adverse effect on P&W covered employees because work will continue to be performed under existing CBAs by the same P&W covered employees who are currently performing the work. (GWI Rebuttal 9). The Board will hold GWI to the representations regarding labor protection that it has made on the record in this proceeding. Accordingly, GWI will be required to proceed in good faith under the notification and negotiation provision of Article I, section 4 of the New York Dock conditions before implementing employment changes but it need not commence those negotiations until it is capable of making a full and adequate statement of the expected changes. See Pan Am S., FD 35147, slip op. at 16-17.\8\ --------------------------------------------------------------------------- \8\ TCU/IAM and SMART-TD cite other cases in support of their position that New York Dock negotiations must occur prior to the consummation of a consolidation transaction. The Board, however, finds these cases unpersuasive. First, TCU/IAM cites Norfolk Southern Railway--Acquisition & Operation--Certain Rail Lines of the Delaware & Hudson Railway (Delaware & Hudson), FD 35873 (STB served May 15, 2015). (TCU/IAM Comment 2.) The labor discussions in Delaware & Hudson, however, focus almost entirely on how to categorize the underlying transaction and what level of labor protection applies. Delaware & Hudson, FD 35873, slip op. at 28 (STB served May 15, 2015). Here, there is no dispute that New York Dock protections apply (see Pet.; TCU/IAM Comment; SMART-TD Comment). Thus, Delaware & Hudson is inapposite. Next, SMART-TD points to R.J. Corman Railroad/Memphis Line-- Acquisition--CSX Transportation Line Between Warwick & Uhrichville, FD 31388 (ICC served Mar. 2, 1989). (SMART-TD Comment 3.) In that case, however, CSXT acknowledged that some of its employees would be adversely affected, which is not the case here. R.J. Corman R.R., slip op. at 2. SMART-TD also challenges GWI's reliance on Atlantic Richfield Co. & Anaconda Co.--Control--Butte, Anaconda & Pacific Railway & Tooele Valley Railroad, 5 I.C.C. 2d 934 (1989), and Mid Michigan Railroad--Lease & Operation Exemption--Missouri Pacific Railroad, FD 31646 (ICC served Aug. 17, 1990), though neither case is cited by GWI. (SMART-TD Comment 4.) Atlantic Richfield states that minimum New York Dock protections are warranted even when assurances are made that there will be no adverse effects to employees. Atlantic Richfield, 5 I.C.C. 2d at 942 n.9. Here, however, GWI is not suggesting that the New York Dock requirements do not apply. Finally, Mid Michigan examines the differing requirements between New York Dock and New York Dock as modified by Wilmington Terminal Railroad--Purchase & Lease--CSX Transportation, Inc., 6 I.C.C. 2d 799 (1990), a discussion not at issue here. See generally Mid Michigan, FD 31646. --------------------------------------------------------------------------- Environmental and Historical Reporting This transaction is categorically excluded from environmental review under 49 CFR 1105.6(c)(2)(i) because it will not result in any significant change in carrier operations. Similarly, the transaction is exempt from the historic reporting requirements under 49 CFR 1105.8(b)(3) because it will not substantially change the level of maintenance of railroad properties. Expedited Action GWI requests expedited action on its petition for exemption. (Pet. 12; see generally GWI Letter, Dec. 7, 2016.) It seeks action on or before the date P&W shareholder approval is obtained, and in the event that such approval is not obtained before shareholder approval, expedited action to avoid a prolonged period of interim control of operations via a voting trust. Based on the record, the Board finds GWI's request to be reasonable. Accordingly, our grant of the exemption will be effective immediately. It is ordered: 1. Under 49 U.S.C. 10502, the Board exempts GWI's acquisition of control of P&W from the prior approval requirements of sections 11323- 24 subject to the employee protective conditions in New York Dock Railway--Control--Brooklyn Eastern District Terminal, 360 I.C.C. 60 (1979). 2. The exemption is further conditioned on GWI's assurance that it will not take or fail to take any actions that would adversely impact the ability of Springfield Terminal to interchange traffic with CSX Transportation, Inc. at Barbers Station in Worcester, Massachusetts in violation of applicable law or the P&W Grant of Trackage Rights, as amended, dated June 30, 1989. 3. Notice will be published in the Federal Register. 4. This exemption will be effective December 16, 2016. [[Page 94010]] By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman. Tammy Lowery, Clearance Clerk. [FR Doc. 2016-30843 Filed 12-21-16; 8:45 am] BILLING CODE 4915-01-P
![Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Notices 94007
2681, et seq.; 22 U.S.C. 6501 note, et The Board will grant GWI’s petition Eastern Route by entering into an
seq.), Delegation of Authority No. 234 of for exemption, subject to standard labor additional strategic alliance with
October 1, 1999, Delegation of Authority protective conditions and the condition Vermont Rail Systems (VRS), which
No. 236–3 of August 28, 2000 (and, as that GWI will not interfere with the furnishes P&W with pricing authority
appropriate, Delegation of Authority No. ability of Springfield Terminal Railway for service with Canadian Pacific
257 of April 15, 2003), I hereby (Springfield Terminal) to interchange Railway Limited (CP), through an
determine that the objects to be with CSX Transportation, Inc. (CSXT), arrangement by which VRS and NECR
included in the exhibition ‘‘Wild Noise/ in Worcester, Mass. provide haulage for P&W between
Ruido Salvaje: Artworks from El Museo Whitehall, N.Y. and Willimantic, Conn.
Nacional de Bellas Artes, Havana, Background
on certain contractually-agreed
Cuba,’’ imported from abroad for GWI is a publicly-traded non-carrier commodities. (Id. at 3.) GWI states that
temporary exhibition within the United holding company that currently its present intention is to keep these
States, are of cultural significance. The controls, through direct or indirect strategic alliances, and the connections
objects are imported pursuant to a loan equity ownership, two Class II carriers with CN and CP, in place. (Id.)
agreement with the foreign owner or and 106 Class III carriers operating in
custodian. I also determine that the the United States. (Pet. 1.) P&W is a Discussion and Conclusions
exhibition or display of the exhibit Class III carrier based in Worcester, Statutory Analysis
objects at The Bronx Museum of the Mass., that owns rail lines and The acquisition of control of a rail
Arts, New York, New York, from on or permanent freight easements in carrier by a person that is not a rail
about January 28, 2017, until on or Connecticut, Rhode Island, and carrier but that controls any number of
about April 30, 2017, and at possible Massachusetts. (Id. at 2.) It also operates rail carriers requires approval by the
additional exhibitions or venues yet to on trackage rights in Connecticut, Board pursuant to 49 U.S.C. 11323(a)(5).
be determined, is in the national Massachusetts, Rhode Island, and New
interest. I have ordered that Public Under section 10502(a), however, we
York. (Id.) must exempt a transaction or service
Notice of these Determinations be In its petition, GWI states that it seeks
published in the Federal Register. from regulation if we find that: (1)
to acquire control of P&W through a regulation is not necessary to carry out
FOR FURTHER INFORMATION CONTACT: For merger between P&W and Pullman the rail transportation policy (RTP) of 49
further information, including a list of Acquisition Sub Inc., a newly-formed, U.S.C. 10101; and (2) either the
the imported objects, contact the Office wholly-owned non-carrier subsidiary of transaction or service is limited in
of Public Diplomacy and Public Affairs GWI.1 (Id.) Upon consummation, P&W scope, or regulation is not needed to
in the Office of the Legal Adviser, U.S. will be the surviving entity and will protect shippers from the abuse of
Department of State (telephone: 202– become a wholly-owned subsidiary of market power.
632–6471; email: section2459@ GWI. (Id.) P&W connects with several In this case, an exemption from the
state.gov). The mailing address is U.S. railroads, including two GWI prior approval requirements of sections
Department of State, L/PD, SA–5, Suite subsidiaries: New England Central 11323–24 is consistent with the
5H03, Washington, DC 20522–0505. Railroad, Inc. (NECR), and Connecticut standards of section 10502. Detailed
Mark Taplin,
Southern Railroad, Inc. (CSO). (Id. at 3.) scrutiny of the proposed transaction
GWI states that, although there are some through an application for review and
Principal Deputy Assistant Secretary, Bureau
of Educational and Cultural Affairs,
commonly-served cities and towns, approval under sections 11323–24 is not
Department of State. there are no customers that are served necessary here to carry out the RTP.
[FR Doc. 2016–30818 Filed 12–21–16; 8:45 am]
solely by NECR or CSO, on the one Approval of the transaction will result
hand, and P&W, on the other, and that in a change in ownership of P&W with
BILLING CODE 4710–05–P
as such there will be no ‘‘2-to-1 no lessening of competition. An
customers’’ as a result of the proposed exemption will promote the RTP by
transaction. (Id. at 3.) GWI states that it minimizing the need for federal
SURFACE TRANSPORTATION BOARD does not contemplate any material regulatory control over the transaction,
[Docket No. FD 36064] changes to P&W’s operations, section 10101(2); ensuring the
maintenance, or service. (Id. at 4.) development and continuation of a
Genesee & Wyoming Inc.—Acquisition GWI also states that P&W and NECR
of Control Exemption—Providence and sound rail transportation system that
are part of the ‘‘Great Eastern Route’’ will continue to meet the needs of the
Worcester Railroad strategic alliances. According to GWI, public, section 10101(4); fostering
On September 1, 2016, Genesee & the Great Eastern alliances furnish P&W sound economic conditions in
Wyoming Inc. (GWI), a non-carrier with pricing authority for service with transportation, section 10101(5);
holding company, filed a petition under Canadian National Railway Company encouraging efficient management,
49 U.S.C. 10502 and 49 CFR part 1121 (CN) through an arrangement by which section 10101(9); and providing for the
for exemption from the provisions of 49 NECR provides haulage for P&W expeditious resolution of this
U.S.C. 11323–24 to allow GWI to between East Alburg, Vt. and proceeding, section 10101(15). Other
acquire control of Providence and Willimantic, Conn. on certain aspects of the RTP will not be adversely
Worcester Railroad Company (P&W), a contractually-agreed commodities. GWI affected.
Class III railroad. In a decision served states that P&W expanded the Great Nor is detailed scrutiny of the
September 20, 2016, and published in proposed transactions necessary to
sradovich on DSK3GMQ082PROD with NOTICES
1 In its petition, GWI states that it anticipates
the Federal Register on September 23, closing the transaction in the fourth quarter of 2016.
protect shippers from an abuse of
2016 (81 FR 65,692), the Board provided (Pet. 5.) GWI states that, in the event it does not market power. According to GWI, no
notice of GWI’s petition, instituted a have approval from the Board by the time its shipper will lose any rail options, and
proceeding, and set a reply deadline for closing conditions have been met, it intends to operations will not materially change.
close the transaction into a voting trust. On October
comments on the petition. The Board 31, 2016, GWI submitted an executed Voting Trust
(Pet. 9.) Although P&W connects with
received a number of comments in Agreement pursuant to 49 CFR 1013.3 for receipt NECR and CSO, GWI states that P&W
response to the petition. of the voting stock of P&W. also connects directly with a Class I
VerDate Sep<11>2014 17:40 Dec 21, 2016 Jkt 241001 PO 00000 Frm 00127 Fmt 4703 Sfmt 4703 E:\FR\FM\22DEN1.SGM 22DEN1](https://thefederalregister.org/doc/81_FR_94253/page/1.svg)
![Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Notices 94009
from the transaction that would Applicants decide to implement labor Environmental and Historical Reporting
necessitate imposing a condition. The changes that are related to the
Board expects, however, that GWI will Transaction, we will not require that This transaction is categorically
work with MassDOT and ARS to help Applicants commence negotiations excluded from environmental review
address any unforeseen service impacts, now.’’). under 49 CFR 1105.6(c)(2)(i) because it
should they arise, following the In its petition, GWI states that it has will not result in any significant change
transaction’s approval.7 not yet determined whether or which in carrier operations. Similarly, the
employees may be adversely affected, transaction is exempt from the historic
Labor but acknowledges that it will be reporting requirements under 49 CFR
Under 49 U.S.C. 10502(g), the Board required to give 90-days’ notice, and 1105.8(b)(3) because it will not
may not use its exemption authority to negotiate, before making changes in substantially change the level of
relieve a rail carrier of its statutory operations, services, facilities, or maintenance of railroad properties.
obligation to protect the interests of its equipment. (Pet. 11.) Further, in its
employees. Therefore, the Board will rebuttal, Expedited Action
impose a condition specifying that any GWI specifically confirms that post- GWI requests expedited action on its
employees adversely affected by this closing, P&W does not intend to terminate or petition for exemption. (Pet. 12; see
transaction will be protected by the displace any P&W covered employees as a
conditions set forth in New York Dock generally GWI Letter, Dec. 7, 2016.) It
result of the proposed transaction. P&W will
Railway—Control—Brooklyn Eastern continue to honor all current [collective seeks action on or before the date P&W
District Terminal (New York Dock), 360 bargaining agreements (CBAs)], and to shareholder approval is obtained, and in
I.C.C. 60 (1979). negotiate all expired CBAs in good faith. For the event that such approval is not
GWI, acknowledging that New York the foreseeable future, there will be no obtained before shareholder approval,
adverse effect on P&W covered employees expedited action to avoid a prolonged
Dock applies, seeks Board confirmation because work will continue to be performed
that it need not commence negotiations period of interim control of operations
under existing CBAs by the same P&W
or consummate implementing covered employees who are currently via a voting trust. Based on the record,
agreements prior to the consummation performing the work. the Board finds GWI’s request to be
of the transaction with P&W. (Pet. 10– reasonable. Accordingly, our grant of
(GWI Rebuttal 9).
11.) The Transportation The Board will hold GWI to the the exemption will be effective
Communications Union/IAM, AFL–CIO representations regarding labor immediately.
(TCU/IAM) and the Transportation protection that it has made on the It is ordered:
Division of the International Association record in this proceeding. Accordingly,
of Sheet Metal, Air, Rail and 1. Under 49 U.S.C. 10502, the Board
GWI will be required to proceed in good exempts GWI’s acquisition of control of
Transportation Workers (SMART–TD) faith under the notification and
submitted comments disagreeing with P&W from the prior approval
negotiation provision of Article I, requirements of sections 11323–24
GWI’s position, arguing that GWI must section 4 of the New York Dock
give notice and negotiate an subject to the employee protective
conditions before implementing
implementing agreement prior to conditions in New York Dock Railway—
employment changes but it need not
consummation of the transaction. (See Control—Brooklyn Eastern District
commence those negotiations until it is
TCU/IAM Comment 3, 5–6; SMART–TD Terminal, 360 I.C.C. 60 (1979).
capable of making a full and adequate
Comment 3–5.) statement of the expected changes. See 2. The exemption is further
New York Dock requires a railroad to Pan Am S., FD 35147, slip op. at 16–17.8 conditioned on GWI’s assurance that it
give notice of ‘‘proposed changes to be will not take or fail to take any actions
effected by [a] transaction’’ when a 8 TCU/IAM and SMART–TD cite other cases in
that would adversely impact the ability
railroad is ‘‘contemplating a change or support of their position that New York Dock of Springfield Terminal to interchange
changes in its operations, services, negotiations must occur prior to the consummation
of a consolidation transaction. The Board, however, traffic with CSX Transportation, Inc. at
facilities, or equipment as a result of a
finds these cases unpersuasive. First, TCU/IAM Barbers Station in Worcester,
transaction’’ that may affect employees. cites Norfolk Southern Railway—Acquisition & Massachusetts in violation of applicable
360 I.C.C. at 77. The requirement under Operation—Certain Rail Lines of the Delaware &
New York Dock to provide such notice Hudson Railway (Delaware & Hudson), FD 35873 law or the P&W Grant of Trackage
presumes, however, that the carrier is (STB served May 15, 2015). (TCU/IAM Comment 2.) Rights, as amended, dated June 30,
The labor discussions in Delaware & Hudson, 1989.
capable of making a ‘‘full and adequate however, focus almost entirely on how to categorize
statement’’ of the expected labor the underlying transaction and what level of labor 3. Notice will be published in the
changes before the transaction is protection applies. Delaware & Hudson, FD 35873, Federal Register.
consummated. Norfolk S. Ry—Joint slip op. at 28 (STB served May 15, 2015). Here,
there is no dispute that New York Dock protections 4. This exemption will be effective
Control & Operating/Pooling apply (see Pet.; TCU/IAM Comment; SMART–TD December 16, 2016.
Agreements—Pan Am S. LLC (Pan Am Comment). Thus, Delaware & Hudson is inapposite.
S.), FD 35147, slip op. at 16–17 (STB Next, SMART–TD points to R.J. Corman
served Mar. 10, 2009) (‘‘Because we see Railroad/Memphis Line—Acquisition—CSX (SMART–TD Comment 4.) Atlantic Richfield states
Transportation Line Between Warwick & that minimum New York Dock protections are
no basis for negotiation of an Uhrichville, FD 31388 (ICC served Mar. 2, 1989). warranted even when assurances are made that
implementing agreement until (SMART–TD Comment 3.) In that case, however, there will be no adverse effects to employees.
CSXT acknowledged that some of its employees
sradovich on DSK3GMQ082PROD with NOTICES
Atlantic Richfield, 5 I.C.C. 2d at 942 n.9. Here,
7 The Board reminds interested parties that they would be adversely affected, which is not the case however, GWI is not suggesting that the New York
may contact the Board’s Rail Customer and Public here. R.J. Corman R.R., slip op. at 2.
Dock requirements do not apply. Finally, Mid
Assistance Program (RCPA) if they believe a rail SMART–TD also challenges GWI’s reliance on
Michigan examines the differing requirements
carrier is not providing adequate service. The RCPA Atlantic Richfield Co. & Anaconda Co.—Control—
Program provides informal assistance on a wide Butte, Anaconda & Pacific Railway & Tooele Valley between New York Dock and New York Dock as
range of matters, including informal dispute Railroad, 5 I.C.C. 2d 934 (1989), and Mid Michigan modified by Wilmington Terminal Railroad—
resolution through mediation. The RCPA may be Railroad—Lease & Operation Exemption—Missouri Purchase & Lease—CSX Transportation, Inc., 6
reached at (866) 254–1792; faxing to (202) 245– Pacific Railroad, FD 31646 (ICC served Aug. 17, I.C.C. 2d 799 (1990), a discussion not at issue here.
0461; or by email at rcpa@stb.gov. 1990), though neither case is cited by GWI. See generally Mid Michigan, FD 31646.
VerDate Sep<11>2014 17:40 Dec 21, 2016 Jkt 241001 PO 00000 Frm 00129 Fmt 4703 Sfmt 4703 E:\FR\FM\22DEN1.SGM 22DEN1](https://thefederalregister.org/doc/81_FR_94253/page/3.svg)
![94010 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Notices
By the Board, Chairman Elliott, Vice SUMMARY: As part of a comprehensive citizens or lawfully admitted aliens. To
Chairman Miller, and Commissioner review of agency practices related to the be a Privacy Act system of records, the
Begeman. disclosure of records and information, agency must retrieve records about an
Tammy Lowery, the Office of the United States Trade individual from the system by that
Clearance Clerk. Representative (USTR) is updating both individual’s name or by some other
[FR Doc. 2016–30843 Filed 12–21–16; 8:45 am] its systems of records and implementing identifier assigned to that individual,
BILLING CODE 4915–01–P rule under the Privacy Act of 1974 such as the individual’s Social Security
(Privacy Act). This notice concerns number or telephone number. The
updates to USTR’s Privacy Act system record also must be about that
SURFACE TRANSPORTATION BOARD of records notices (SORNs). Elsewhere individual. If a record is only about
in this issue of the Federal Register, someone or something else (e.g., about
[Docket No. EP 290 (Sub-No. 5) (2017–1)]
USTR is publishing a proposed rule that a business), it is not a record about that
Quarterly Rail Cost Adjustment Factor would update the agency’s Privacy Act individual.
regulation. The rule describes how
AGENCY: Surface Transportation Board. individuals can find out if a USTR II. Rescinded SORNs
ACTION: Approval of rail cost adjustment system of records contains information USTR is rescinding the following
factor. about them and, if so, how to access or systems of records:
amend a record. System Number and Name: USTR–1
SUMMARY: The Board approves the first DATES: We must receive your written Applicants for Employment.
quarter 2017 Rail Cost Adjustment comments on or before January 23, System Number and Name: USTR–2
Factor (RCAF) and cost index filed by 2017. Unless USTR makes changes Correspondence Files.
the Association of American Railroads. based on comments or otherwise, the System Number and Name: USTR–3
The first quarter 2017 RCAF changes made by this notice will General Financial Records.
(Unadjusted) is 0.888. The first quarter become final and effective February 6, System Number and Name: USTR–4
2017 RCAF (Adjusted) is 0.373. The first 2017. Payroll Records.
quarter 2017 RCAF–5 is 0.353. We are rescinding the following
ADDRESSES: You should submit written
DATES: Effective Date: January 1, 2017. SORNs because the information
comments through the Federal
FOR FURTHER INFORMATION CONTACT: eRulemaking Portal: http:// described in each notice is covered by
Pedro Ramirez, (202) 245–0333. Federal www.regulations.gov. The docket a Government-wide SORN:
Information Relay Service (FIRS) for the number for this notice is USTR–2016– • USTR–1 Applicants for Employment
hearing impaired: (800) 877–8339. 0028. USTR invites comments on all • USTR–3 General Financial Records
SUPPLEMENTARY INFORMATION: aspects of the notice, and will revise the • USTR–4 Payroll Records
Additional information is contained in language as appropriate after taking all We are rescinding USTR–2, the SORN
the Board’s decision, which is available timely comments into consideration. that covered correspondence files
on our Web site, http://www.stb.gov. Copies of all comments will be available because USTR no longer maintains
Copies of the decision may be for public viewing at these records.
purchased by contacting the Office of www.regulations.gov upon completion III. Modified and New SORNs
Public Assistance, Governmental of processing. You can view a
Affairs, and Compliance at (202) 245– submission by entering the docket We are renumbering the SORN
0238. Assistance for the hearing number USTR–2016–0028 in the search covering dispute settlement panelist
impaired is available through FIRS at field at http://www.regulations.gov. We rosters from USTR–6 to USTR–1. We
(800) 877–8339. will post comments without change and also are updating the content of this
This action is categorically excluded will include any personal information SORN. We are adding two new SORNs,
from environmental review under 49 you provide, such as your name, USTR–2 covering information collected
CFR 1105.6(c). mailing address, email address, and from individuals interested in becoming
Decided: December 19, 2016. telephone number. trade advisory committee members, and
By the Board, Chairman Elliott, Vice FOR FURTHER INFORMATION CONTACT: USTR–3 covering Freedom of
Chairman Miller, and Commissioner Janice Kaye, Monique Ricker or Melissa Information Act (FOIA) and Privacy Act
Begeman. Keppel, Office of General Counsel, records.
Marline Simeon, United States Trade Representative, SYSTEM NUMBER AND NAME:
Clearance Clerk. Anacostia Naval Annex, Building 410/ USTR–1 Dispute Settlement Panelists
[FR Doc. 2016–30867 Filed 12–21–16; 8:45 am] Door 123, 250 Murray Lane SW., Roster.
BILLING CODE 4915–01–P
Washington DC 20509, jkaye@
ustr.eop.gov; mricker@ustr.eop.gov; SECURITY CLASSIFICATION:
mkeppel@ustr.eop.gov; 202–395–3150. None.
OFFICE OF THE UNITED STATES SUPPLEMENTARY INFORMATION:
SYSTEM LOCATION/MANAGER:
TRADE REPRESENTATIVE I. Background Office of the US Trade Representative,
[Docket Number USTR–2016–0028] Pursuant to the requirements of the Office of General Counsel, 600 17th
Privacy Act, USTR is publishing a Street NW., Washington DC 20508. The
Privacy Act of 1974; System of notice of changes to its systems of mailing address is: Office of the US
sradovich on DSK3GMQ082PROD with NOTICES
Records records. See 5 U.S.C. 552a(e)(4) and Trade Representative, Office of General
AGENCY: Office of the United States (11). A system of records can be any Counsel, Anacostia Naval Annex,
Trade Representative. collection or grouping of paper, Building 410/Door 123, 250 Murray
electronic or other records an agency Lane SW., Washington DC 20509. The
ACTION: Notice of new, modified and
controls about individuals. It does not Office of General Counsel manages the
rescinded systems of records and
include agency records about businesses recruitment and selection of individuals
request for comments.
or about individuals who are not U.S. who are interested in being selected to
VerDate Sep<11>2014 17:40 Dec 21, 2016 Jkt 241001 PO 00000 Frm 00130 Fmt 4703 Sfmt 4703 E:\FR\FM\22DEN1.SGM 22DEN1](https://thefederalregister.org/doc/81_FR_94253/page/4.svg)
Document Created: 2016-12-21 23:52:29
Document Modified: 2016-12-21 23:52:29
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| FR Citation | 81 FR 94007 |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR