82_FR_13084 82 FR 13040 - Delmarva Central Railroad Company-Lease and Operation Exemption With Interchange Commitment-Norfolk Southern Railway Company

82 FR 13040 - Delmarva Central Railroad Company-Lease and Operation Exemption With Interchange Commitment-Norfolk Southern Railway Company

SURFACE TRANSPORTATION BOARD

Federal Register Volume 82, Issue 44 (March 8, 2017)

Page Range13040-13041
FR Document2017-04472

Federal Register, Volume 82 Issue 44 (Wednesday, March 8, 2017) 
[Federal Register Volume 82, Number 44 (Wednesday, March 8, 2017)]
[Notices]
[Pages 13040-13041]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-04472]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36071]


Delmarva Central Railroad Company--Lease and Operation Exemption 
With Interchange Commitment--Norfolk Southern Railway Company

    On November 17, 2016, Delmarva Central Railroad Company (DCR), at 
that time a noncarrier, filed a verified notice of exemption under 49 
CFR 1150.31 to lease and operate approximately 161.59 miles of rail 
line (the Line) owned by Norfolk Southern Railway Company (NSR). Notice 
of the exemption was served and published in the Federal Register on 
December 2, 2016 (81 FR 87,122).\1\
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    \1\ DCR's parent, Carload Express, Inc. (Carload), filed a 
verified notice of exemption to continue in control of DCR upon 
DCR's becoming a Class III carrier. See Carload Express, Inc.--
Continuance in Control Exemption--Delmarva Cent. R.R., Docket No. FD 
36072. Notice of that exemption was also served and published in the 
Federal Register on December 2, 2016. (81 FR 87,123).
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    On December 14, 2016, SMART/TD Delaware State Legislative Board 
(SMART/TD) petitioned the Board to revoke the lease and operation 
exemption.\2\ SMART/TD asserts that the DCR's lease and operation has 
economic and safety considerations that should be investigated by the 
Board. In particular, SMART/TD claims that DCR, a company with fewer 
resources than NSR, cannot adequately maintain the Line's rails and 
bridges as they have been maintained by NSR. SMART/TD notes that the 
Line crosses three bridges, two of those bridges are 100 years old and 
the remaining bridge is 60 years old. It notes that one of the bridges 
was recently out of service for 30 days and questions whether DCR could 
have restored the bridge in the same expeditious manner as NSR, given 
DCR's ``limited finances.'' It further asserts that the Line is 
deteriorating and maintenance will become increasingly expensive. 
SMART/TD also claims that there are no insurance minimums in place for 
smaller carriers and that it fears that local taxpayers might be forced 
to carry the burden in case of a disaster.
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    \2\ No stay was sought or imposed. Because the effective date 
was not stayed, the exemption became effective on December 17, 2016. 
DCR later notified the Board that it has since consummated the 
transaction.
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    SMART/TD also asserts that the lease will result in replacing a 
``qualified, experienced, and knowledgeable'' labor force with 
``untrained and unfamiliar'' employees, which, according to SMART/TD, 
raises safety concerns. According to SMART/TD, these concerns implicate 
the national rail transportation policy (RTP) goal of ``operat[ing] 
transportation facilities and equipment without detriment to the public 
health and safety.'' 49 U.S.C. 10101(8). Moreover, citing the RTP 
policy goal of ``encourag[ing] fair wages and safe and suitable working 
conditions in the railroad industry,'' 49 U.S.C. 10101(11), SMART/TD 
asserts that DCR will employ ``an inferior, unqualified labor force 
that is willing to accept less money because they are less qualified,'' 
and that DCR's employees' wages and benefits will be inferior to those 
of Class I railroad employees.
    DCR filed a reply on December 27, 2016. In response to SMART/TD's 
suggestion that DCR cannot safely operate the Line, DCR notes that it 
is under the control of Carload, a noncarrier holding company that owns 
and operates other Class III carriers. See, e.g., Carload Express, 
Inc.--Continuance in Control Exemption--Ohio Terminal Ry., FD 35704 
(STB served Jan. 11, 2013). As such, DCR states that its owners, 
managers, and personnel are already familiar with the safety 
regulations administered by the Federal Railroad Administration (FRA). 
DCR states that it will operate the Line in accordance with FRA 
regulations.
    DCR further explains that the concerns about bridge maintenance are 
unwarranted. DCR states that NSR has maintained the bridges in full 
compliance with FRA standards and safe operating practices. DCR notes 
that,

[[Page 13041]]

although one of the bridges was closed for 30 days, this was for 
routine maintenance and resulted from construction delays caused by 
weather conditions. DCR adds that it has inspected the bridges and has 
the knowledge and resources to maintain them.
    As to concerns about wages and benefits, DCR asserts that it offers 
some of the best wages and benefits of any employer on the Delmarva 
Peninsula. DCR notes that it received more applications for employment 
than there are available positions. It adds that it requires all its 
employees to abide by all applicable safety rules and offers suitable 
working conditions.

Discussion and Conclusions

    Because DCR's lease and operation exemption has gone into effect, 
SMART/TD's request will be treated as a petition to reopen and revoke 
the exemption under 49 U.S.C. 10502(d).\3\ Under 49 U.S.C. 10502(d), an 
exemption may be revoked, in whole or in part, if the Board finds that 
regulation of the transaction is necessary to carry out the RTP of 49 
U.S.C. 10101. Under 49 CFR 1115.3(b), the petition must state in detail 
whether revocation is supported by material error, new evidence, or 
substantially changed circumstances. See N.Y. Cent. Lines--Aban. 
Exemption--in Montgomery & Schenectady Ctys., N.Y., AB 565 (Sub-No. 
14X) (STB served Jan. 22, 2004). The party seeking revocation has the 
burden of showing that regulation is necessary to carry out the RTP, 49 
CFR 1121.4(f), and petitions to revoke must be based on reasonable, 
specific concerns demonstrating that revocation of the exemption is 
warranted and more detailed scrutiny of the transaction is necessary. 
See Consol. Rail Corp.--Trackage Rights Exemption--Mo. Pac. R.R., FD 
32662 (STB served June 18, 1998).
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    \3\ See e.g., BNSF Ry.--Trackage Rights Exemption--Union Pac. 
R.R., FD 35601, slip op. at 3-4 (STB served Sept. 11, 2013); Watco 
Holdings, Inc.--Acquis. of Control Exemption--Wis. & S. R.R., FD 
35573, slip op. at 1-2 (STB served Mar. 22, 2012); Elk River R.R.--
Constr. & Operation Exemption--Clay & Kanawha Ctys., W.Va., FD 
31989, slip op. at 1 n.3 (STB served Apr. 11, 1997).
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    Here, SMART/TD fails to establish that revocation of the exemption 
is necessary to carry out the RTP. Although SMART/TD has cited the RTP 
goals of operating without detriment to the public health and safety 
(49 U.S.C. 10101(8)) and encouraging fair wages and suitable working 
conditions (49 U.S.C. 10101(11)), it has not shown that regulation is 
necessary to carry out these goals.
    The Board takes safety concerns seriously; however, SMART/TD's 
concerns here are vague and speculative and do not arise from any 
demonstrated shortcomings specific to DCR. DCR has expressed a 
commitment to abide by FRA regulations, and its parent, Carload, is 
familiar with FRA's requirements. As to maintenance, DCR states that it 
has already inspected the bridges and has explained the one extended 
bridge closure cited by SMART/TD. Furthermore, NSR's contract with DCR 
obligates DCR to comply with FRA standards of operation, to maintain 
the tracks at standards specified by NSR, and to carry certain 
insurance policies covering incidents that might occur while operating 
the Line.
    SMART/TD's concern about DCR's having fewer resources than NSR, the 
Line's Class I owner, also does not warrant revocation. Class I 
carriers routinely spin-off lines to newly formed Class III carriers, 
and SMART/TD has not demonstrated that DCR will be any less prepared to 
assume the responsibility to maintain and operate the Line that any 
other new Class III carrier would be. Moreover, as DCR notes, its 
parent company, Carload, is an experienced shortline operator. DCR 
explains that Carload's railroads ``have strong safety records and 
there have been no FRA or STB reported allegations that its shortline 
employees have been treated unfairly or required to operate in unsafe 
conditions;'' SMART/TD has offered no evidence to the contrary. SMART/
TD has also failed to show that the labor impact here is different 
from, or greater than, the impacts typically associated with the 
acquisition of a rail line by any new carrier.
    For the foregoing reasons, SMART/TD has not shown that reopening 
and revocation are supported by material error, new evidence, or 
substantially changed circumstances, or that applying the Board's 
regulation to the transaction is necessary to carry out the RTP. 
Accordingly, the Board finds no basis to revoke DCR's exemption or 
begin a revocation proceeding.
    It is ordered:
    1. SMART/TD's petition to revoke DCR's exemption is denied.
    2. This decision is effective on its date of service.

    Decided: March 1, 2017.

    By the Board, Board Members Begeman, Elliott, and Miller.
Raina S. Contee,
Clearance Clerk.
[FR Doc. 2017-04472 Filed 3-7-17; 8:45 am]
BILLING CODE 4915-01-P

13040 Federal Register / Vol. 82, No. 44 / Wednesday, March 8, 2017 / Notices Total Burden Hours (annually A short, plain statement of jurisdiction, and safety considerations that should be including all respondents): 2,745 hours (b) a short, plain statement of investigated by the Board. In particular, (183 estimated hours per petition × total petitioner’s claim, and (c) request for SMART/TD claims that DCR, a company number of petitions (15)). relief. The collection by the Board of with fewer resources than NSR, cannot Total ‘‘Non-hour Burden’’ Cost: these petitions enables the Board to adequately maintain the Line’s rails and $18,540 (estimated non-hour burden more fully meet its statutory duty to bridges as they have been maintained by cost per petition ($1,236) × total number regulate the rail industry. NSR. SMART/TD notes that the Line of petitions (15)). Under the PRA, a Federal agency crosses three bridges, two of those Needs and Uses: Under 5 U.S.C. conducting or sponsoring a collection of bridges are 100 years old and the 554(e) and 49 U.S.C. 1321, the Board information must display a currently remaining bridge is 60 years old. It notes may issue a declaratory order to valid OMB control number. A collection that one of the bridges was recently out terminate a controversy or remove of information, which is defined in 44 of service for 30 days and questions uncertainty. Because petitions for U.S.C. 3502(3) and 5 CFR 1320.3(c), whether DCR could have restored the declaratory orders cover a broad range includes agency requirements that bridge in the same expeditious manner of requests, the Board does not prescribe persons submit reports, keep records, or as NSR, given DCR’s ‘‘limited finances.’’ specific instructions for the filing of provide information to the agency, third It further asserts that the Line is them. The collection by the Board of parties, or the public. Section 3507(b) of deteriorating and maintenance will petitions for declaratory orders enables the PRA requires, concurrent with an become increasingly expensive. the Board to meet its statutory duty to agency’s submitting a collection to OMB SMART/TD also claims that there are no regulate the rail industry. for approval, a 30-day notice and insurance minimums in place for comment period through publication in smaller carriers and that it fears that Collection Number 3 the Federal Register concerning each local taxpayers might be forced to carry Title: Petitions for relief not otherwise proposed collection of information, the burden in case of a disaster. provided. including each proposed extension of an SMART/TD also asserts that the lease OMB Control Number: 2140–0030. existing collection of information. will result in replacing a ‘‘qualified, STB Form Number: None. Dated: March 3, 2017. experienced, and knowledgeable’’ labor Type of Review: Extension with Jeffrey Herzig, force with ‘‘untrained and unfamiliar’’ change. employees, which, according to Clearance Clerk. Respondents: Affected shippers, SMART/TD, raises safety concerns. [FR Doc. 2017–04555 Filed 3–7–17; 8:45 am] railroads and communities that seek to According to SMART/TD, these BILLING CODE 4915–01–P address transportation-related issues concerns implicate the national rail under the Board’s jurisdiction that are transportation policy (RTP) goal of not otherwise specifically provided for ‘‘operat[ing] transportation facilities and SURFACE TRANSPORTATION BOARD under the Board’s other regulatory equipment without detriment to the provisions. [Docket No. FD 36071] public health and safety.’’ 49 U.S.C. Number of Respondents: 10101(8). Moreover, citing the RTP Approximately four.3 Delmarva Central Railroad Company— policy goal of ‘‘encourag[ing] fair wages Estimated Time per Response: 24.5 Lease and Operation Exemption With and safe and suitable working hours. Interchange Commitment—Norfolk conditions in the railroad industry,’’ 49 Frequency: On occasion. In calendar Southern Railway Company U.S.C. 10101(11), SMART/TD asserts years 2014–2016, approximately four On November 17, 2016, Delmarva that DCR will employ ‘‘an inferior, petitions of this type were filed with the Central Railroad Company (DCR), at that unqualified labor force that is willing to Board. time a noncarrier, filed a verified notice accept less money because they are less Total Burden Hours (annually of exemption under 49 CFR 1150.31 to qualified,’’ and that DCR’s employees’ including all respondents): 98 lease and operate approximately 161.59 wages and benefits will be inferior to (estimated hours per petition (24.5) × miles of rail line (the Line) owned by those of Class I railroad employees. total number of petitions (4)). Norfolk Southern Railway Company DCR filed a reply on December 27, Total ‘‘Non-hour Burden’’ Cost: $280 (NSR). Notice of the exemption was 2016. In response to SMART/TD’s (estimated non-hour burden cost per served and published in the Federal suggestion that DCR cannot safely petition ($70) × total number of Register on December 2, 2016 (81 FR operate the Line, DCR notes that it is petitions (four)). 87,122).1 under the control of Carload, a Needs and Uses: Under 49 U.S.C. On December 14, 2016, SMART/TD noncarrier holding company that owns 1321 and 49 CFR part 1117 (the Board’s Delaware State Legislative Board and operates other Class III carriers. See, catch-all petition provision), shippers, (SMART/TD) petitioned the Board to e.g., Carload Express, Inc.— railroads, and the public in general may revoke the lease and operation Continuance in Control Exemption— seek relief (such as petitions seeking exemption.2 SMART/TD asserts that the Ohio Terminal Ry., FD 35704 (STB waivers of the Board’s regulations) not DCR’s lease and operation has economic served Jan. 11, 2013). As such, DCR otherwise specifically provided for states that its owners, managers, and under the Board’s other regulatory 1 DCR’s parent, Carload Express, Inc. (Carload), personnel are already familiar with the provisions. Under section 1117.1, such filed a verified notice of exemption to continue in safety regulations administered by the control of DCR upon DCR’s becoming a Class III Federal Railroad Administration (FRA). petitions should contain three items: (a) carrier. See Carload Express, Inc.—Continuance in DCR states that it will operate the Line mstockstill on DSK3G9T082PROD with NOTICES Control Exemption—Delmarva Cent. R.R., Docket 3 In this notice, the Board has updated its estimate No. FD 36072. Notice of that exemption was also in accordance with FRA regulations. of the number of respondents and responses based served and published in the Federal Register on DCR further explains that the on the number of catch-all petitions filed with the December 2, 2016. (81 FR 87,123). concerns about bridge maintenance are Board in calendar years 2014–2016. Staff believes 2 No stay was sought or imposed. Because the unwarranted. DCR states that NSR has this more accurately reflects future filings. effective date was not stayed, the exemption Accordingly, its estimate of the number of became effective on December 17, 2016. DCR later maintained the bridges in full respondents and responses has changed from five, notified the Board that it has since consummated compliance with FRA standards and as set forth in its 60-day notice, to four. the transaction. safe operating practices. DCR notes that, VerDate Sep<11>2014 17:34 Mar 07, 2017 Jkt 241001 PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 E:\FR\FM\08MRN1.SGM 08MRN1

Federal Register / Vol. 82, No. 44 / Wednesday, March 8, 2017 / Notices 13041 although one of the bridges was closed The Board takes safety concerns SURFACE TRANSPORTATION BOARD for 30 days, this was for routine seriously; however, SMART/TD’s maintenance and resulted from concerns here are vague and speculative 60-Day Notice of Intent To Seek construction delays caused by weather and do not arise from any demonstrated Extension of Approval: Information conditions. DCR adds that it has shortcomings specific to DCR. DCR has Collection Activities (Report of Fuel inspected the bridges and has the expressed a commitment to abide by Cost, Consumption, and Surcharge knowledge and resources to maintain FRA regulations, and its parent, Revenue) them. Carload, is familiar with FRA’s Surface Transportation Board. AGENCY: As to concerns about wages and requirements. As to maintenance, DCR benefits, DCR asserts that it offers some Notice and request for ACTION: states that it has already inspected the of the best wages and benefits of any comments. bridges and has explained the one employer on the Delmarva Peninsula. extended bridge closure cited by SUMMARY: As part of its continuing effort DCR notes that it received more SMART/TD. Furthermore, NSR’s to reduce paperwork burdens, and as applications for employment than there contract with DCR obligates DCR to required by the Paperwork Reduction are available positions. It adds that it comply with FRA standards of Act of 1995, the Surface Transportation requires all its employees to abide by all operation, to maintain the tracks at Board (STB or Board) gives notice that applicable safety rules and offers standards specified by NSR, and to carry it is requesting from the Office of suitable working conditions. certain insurance policies covering Management and Budget (OMB) an Discussion and Conclusions incidents that might occur while extension of approval for the collection operating the Line. of the Report of Fuel Cost, Because DCR’s lease and operation SMART/TD’s concern about DCR’s Consumption, and Surcharge Revenue. exemption has gone into effect, SMART/ having fewer resources than NSR, the DATES: Comments on this information TD’s request will be treated as a petition Line’s Class I owner, also does not collection should be submitted by May to reopen and revoke the exemption warrant revocation. Class I carriers 8, 2017. under 49 U.S.C. 10502(d).3 Under 49 routinely spin-off lines to newly formed ADDRESSES: Direct all comments to U.S.C. 10502(d), an exemption may be Class III carriers, and SMART/TD has revoked, in whole or in part, if the Chris Oehrle, PRA Officer, Surface not demonstrated that DCR will be any Transportation Board, 395 E Street SW., Board finds that regulation of the less prepared to assume the transaction is necessary to carry out the Washington, DC 20423–0001, or to responsibility to maintain and operate pra@stb.gov. When submitting RTP of 49 U.S.C. 10101. Under 49 CFR the Line that any other new Class III 1115.3(b), the petition must state in comments, please refer to ‘‘Paperwork carrier would be. Moreover, as DCR Reduction Act Comments, Report of detail whether revocation is supported notes, its parent company, Carload, is an by material error, new evidence, or Fuel Cost, Consumption, and Surcharge experienced shortline operator. DCR Revenue.’’ substantially changed circumstances. explains that Carload’s railroads ‘‘have See N.Y. Cent. Lines—Aban. FOR FURTHER INFORMATION CONTACT: For strong safety records and there have Exemption—in Montgomery & further information regarding this been no FRA or STB reported Schenectady Ctys., N.Y., AB 565 (Sub- collection, contact Michael Higgins, allegations that its shortline employees No. 14X) (STB served Jan. 22, 2004). Deputy Director, Office of Public have been treated unfairly or required to The party seeking revocation has the Assistance, Governmental Affairs, and operate in unsafe conditions;’’ SMART/ burden of showing that regulation is Compliance at (202) 245–0284 or at TD has offered no evidence to the necessary to carry out the RTP, 49 CFR Michael.Higgins@stb.gov. Assistance for contrary. SMART/TD has also failed to 1121.4(f), and petitions to revoke must the hearing impaired is available show that the labor impact here is be based on reasonable, specific through the Federal Information Relay different from, or greater than, the concerns demonstrating that revocation Service (FIRS) at 1–800–877–8339. impacts typically associated with the of the exemption is warranted and more acquisition of a rail line by any new SUPPLEMENTARY INFORMATION: For each detailed scrutiny of the transaction is carrier. collection, comments are requested necessary. See Consol. Rail Corp.— For the foregoing reasons, SMART/TD concerning: (1) The accuracy of the Trackage Rights Exemption—Mo. Pac. has not shown that reopening and Board’s burden estimates; (2) ways to R.R., FD 32662 (STB served June 18, revocation are supported by material enhance the quality, utility, and clarity 1998). error, new evidence, or substantially of the information collected; (3) ways to Here, SMART/TD fails to establish changed circumstances, or that applying minimize the burden of the collection of that revocation of the exemption is the Board’s regulation to the transaction information on the respondents, necessary to carry out the RTP. is necessary to carry out the RTP. including the use of automated Although SMART/TD has cited the RTP Accordingly, the Board finds no basis to collection techniques or other forms of goals of operating without detriment to revoke DCR’s exemption or begin a information technology, when the public health and safety (49 U.S.C. revocation proceeding. appropriate; and (4) whether the 10101(8)) and encouraging fair wages It is ordered: collection of information is necessary and suitable working conditions (49 1. SMART/TD’s petition to revoke for the proper performance of the U.S.C. 10101(11)), it has not shown that DCR’s exemption is denied. functions of the Board, including regulation is necessary to carry out these 2. This decision is effective on its date whether the collection has practical goals. of service. utility. Submitted comments will be mstockstill on DSK3G9T082PROD with NOTICES Decided: March 1, 2017. summarized and included in the 3 See e.g., BNSF Ry.—Trackage Rights By the Board, Board Members Begeman, Board’s request for OMB approval. Exemption—Union Pac. R.R., FD 35601, slip op. at 3–4 (STB served Sept. 11, 2013); Watco Holdings, Elliott, and Miller. Description of Collection Inc.—Acquis. of Control Exemption—Wis. & S. R.R., Raina S. Contee, FD 35573, slip op. at 1–2 (STB served Mar. 22, Title: Report of Fuel Cost, Clearance Clerk. Consumption, and Surcharge Revenue. 2012); Elk River R.R.—Constr. & Operation Exemption—Clay & Kanawha Ctys., W.Va., FD [FR Doc. 2017–04472 Filed 3–7–17; 8:45 am] OMB Control Number: 2140–0014. 31989, slip op. at 1 n.3 (STB served Apr. 11, 1997). BILLING CODE 4915–01–P STB Form Number: None. VerDate Sep<11>2014 17:34 Mar 07, 2017 Jkt 241001 PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 E:\FR\FM\08MRN1.SGM 08MRN1


Document Created: 2017-03-08 05:06:58
Document Modified: 2017-03-08 05:06:58
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation82 FR 13040 
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