[Federal Register Volume 68, Number 200 (Thursday, October 16, 2003)]
[Notices]
[Pages 59680-59682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26038]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 34341]


Wheeling & Lake Erie Railway Company--Acquisition and Operation 
Exemption--CSX Transportation, Inc.

    By petition filed on August 1, 2003, Wheeling & Lake Erie Railway 
Company (W&LE) seeks an exemption pursuant to 49 U.S.C. 10502 from the 
prior approval requirements of 49 U.S.C. 10902 to

[[Page 59681]]

acquire the rail freight operating easement of CSX Transportation, Inc. 
(CSXT) over a 17.77-mile rail line between approximately milepost 15.93 
at Canton, OH, and approximately milepost 33.70 at Krumroy, OH (the 
Canton Line), owned by Metro Regional Transit Authority (METRO). The 
petition will be granted subject to employee protective conditions.

Background

    The Canton Line consists of two segments--the Canton-Aultman 
segment, which extends from approximately milepost 15.93 at Canton to 
approximately milepost 25.55 at Aultman, OH, and the Aultman-Krumroy 
segment, which extends from approximately milepost 25.55 at Aultman to 
approximately milepost 33.70 at Krumroy.
    In 1992, W&LE, a Class II carrier, leased from CSXT an 
approximately 10.25-mile segment extending north from Canton to 
Aultman.\1\ In 1997, CSXT abandoned, and W&LE discontinued service 
over, a short segment of this leased line in Canton.\2\ The part of 
this line that CSXT retained constitutes the Canton-Aultman segment 
involved in this proceeding. In 1993, CSXT discontinued service over, 
but did not abandon, the Aultman-Krumroy segment.\3\ No rail freight 
service of any kind has been conducted on this segment since the 
discontinuance.\4\ In May 2000, CSXT sold to METRO the assets of the 
Canton Line and a segment of rail line extending from Krumroy north to 
Akron, OH.\5\ As part of that transaction, CSXT retained an exclusive 
rail freight easement over all three segments, subject to W&LE's pre-
existing lease of the Canton-Aultman segment. Also as part of that 
transaction, CSXT agreed to transfer its freight easement over the 
Canton Line to METRO or its designee.
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    \1\ Also in that transaction, W&LE purchased from CSXT an 
approximately 12.26-mile rail line extending south from Canton to 
Sandyville, OH. See Wheeling & Lake Erie Railway Company--Lease, 
Purchase and Operation Exemption--CSX Transportation, Inc., Finance 
Docket No. 32083 (ICC served Oct. 15, 1992).
    \2\ See CSX Transportation, Inc.--Abandonment Exemption--In 
Stark County, OH, STB Docket No. AB-55 (Sub-No. 535X) (STB served 
Apr. 1, 1997). Following the abandonment and discontinuance of this 
short segment, W&LE reached the current Canton-Aultman segment via 
trackage rights over the Reed Runner track and via the former wye 
track leased from CSXT at McKinley, OH.
    \3\ See CSX Transportation, Inc.--Abandonment Exemption--Summit 
County, OH, Docket No. AB-55 (Sub-No. 447X) (ICC served Jan. 12, 
1993).
    \4\ W&LE states that, although no freight service has been 
provided on this segment for 10 years, the track remains in place 
and is expected to be utilized for the operation of excursion trains 
and commuter passenger service under the auspices of METRO.
    \5\ On May 24, 2000, METRO filed a verified notice of exemption 
for authority to acquire the assets of all three segments from CSXT. 
It simultaneously filed a motion to dismiss the notice of exemption 
on jurisdictional grounds. On June 23, 2000, the Board served notice 
of METRO's notice of exemption, indicating that the Board would 
address the motion to dismiss in a separate decision. See Metro 
Regional Transit Authority--Acquisition Exemption--CSX 
Transportation, Inc., STB Finance Docket No. 33838 (STB served June 
23, 2000). A separate Board decision will address that motion.
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    According to W&LE, METRO designated it to receive the rail freight 
easement over the Canton Line from CSXT. Therefore, pursuant to a July 
1, 2003 Purchase and Sale Agreement between W&LE and CSXT, W&LE 
proposes to acquire CSXT's rail freight easement over the Canton Line. 
Under the agreement, W&LE will continue to provide service to shippers 
on the Canton-Aultman segment in the same manner that it does today. As 
to the Aultman-Krumroy segment, W&LE will acquire CSXT's freight 
operating rights and obligations on that segment in its current, 
discontinued state, and will seek further, appropriate Board authority 
should W&LE wish to reinstate rail freight operations thereon in the 
future.
    W&LE currently provides rail service on the Canton-Aultman segment 
approximately two days per week. No other carrier provides rail freight 
service on that segment. Approximately four active shippers exist on 
the segment, accounting for approximately 340 carloads per year of 
kaolin clay, synthetic rubber, lumber, plastics, and other commodities.
    According to W&LE, this transaction will not change existing rail 
freight operations or service. W&LE states that it will simply become 
the owner rather than the lessee of the freight common carrier 
interests in the rail line on which it has operated since 1992, thereby 
enhancing effective rail management and the long-term stability of its 
operations.\6\
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    \6\ In a prior decision in this proceeding, the Board granted 
W&LE a waiver of the 60-day labor notice requirement of 49 CFR 
1121.4(h). See Wheeling & Lake Erie Railway Company--Acquisition and 
Operation Exemption--CSX Transportation, Inc., STB Finance Docket 
No. 34341 (STB served Sept. 2, 2003).
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Discussion and Conclusions

    Under 49 U.S.C. 10502, 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 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.
    An exemption from the prior approval requirements of 49 U.S.C. 
10902 is warranted under the standards of 49 U.S.C. 10502. Detailed 
scrutiny of this transaction is not necessary to carry out the rail 
transportation policy. An exemption from the application process will 
minimize the need for Federal regulatory control [49 U.S.C. 10101(2)], 
foster sound economic conditions in transportation [49 U.S.C. 
10101(5)], reduce regulatory barriers to entry into and exit from the 
rail industry [49 U.S.C. 10101(7)], and encourage efficient management 
of railroads [49 U.S.C. 10101(9)]. Other aspects of the rail 
transportation policy will not be adversely affected.
    Regulation of this transaction is not needed to protect shippers 
from the abuse of market power. W&LE has stated that shippers will 
continue to have the same service options that they have now. Indeed, 
no shipper has opposed the transaction. Nevertheless, to ensure that 
shippers are informed of the Board's actions here, W&LE will be 
required to serve all shippers on the line with a copy of this decision 
within 5 days after its service date and to certify to the Board that 
it has done so. Given this market power finding, it is not necessary to 
determine whether the transaction is limited in scope.
    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 employees. Accordingly, as a condition to 
granting this exemption, the employee protective conditions set forth 
in Wisconsin Central Ltd.--Acquisition Exem.--Union Pac. RR, 2 S.T.B. 
218 (1997), rev'd in part sub nom. Association of American Railroads v. 
Surface Transp. Bd, 162 F.3d 101 (DC Cir. 1998), will be imposed.
    This transaction is exempt from environmental reporting 
requirements under 49 CFR 1105.6(c) and from historic reporting 
requirements under 49 CFR 1105.8(b).
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. Under 49 U.S.C. 10502, the above-described transaction is 
exempted from the prior approval requirements of 49 U.S.C. 10902, 
subject to the employee protective conditions set forth in Wisconsin 
Central Ltd.--Acquisition Exem.--Union Pac. RR, 2 S.T.B. 218 (1997), 
rev'd in part sub nom. Association of American Railroads v. Surface 
Transp. Bd, 162 F.3d 101 (DC Cir. 1998).

[[Page 59682]]

    2. Within 5 days of service of this decision, W&LE shall serve a 
copy of the decision on all shippers on the line and certify to the 
Board that it has done so.
    3. This decision will be published in the Federal Register on 
October 16, 2003.
    4. The exemption will become effective on November 9, 2003.
    5. Petitions to stay must be filed by October 27, 2003. Petitions 
to reopen must be filed by November 4, 2003.

    Decided: October 8, 2003.

    By the Board, Chairman Nober.
Vernon A. Williams,
Secretary.
[FR Doc. 03-26038 Filed 10-15-03; 8:45 am]
BILLING CODE 4915-00-P