[Federal Register Volume 68, Number 237 (Wednesday, December 10, 2003)]
[Notices]
[Pages 68968-68969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30445]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Finance Docket No. 34429]
The New York City Economic Development Corporation--Petition for
Declaratory Order
AGENCY: Surface Transportation Board.
ACTION: Institution of declaratory order proceeding; request for
comments.
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SUMMARY: The Surface Transportation Board is instituting a declaratory
order proceeding and requesting comments on the petition of the New
York City Economic Development Corporation (NYCEDC), acting on behalf
of the City of New York, NY (City), for an order confirming that: (1)
Pursuant to 49 U.S.C. 10906, the construction project described in the
petition is construction of spur or switching track that does not
require Board approval; and (2) under 49 U.S.C. 10501(b)(2) and 10901,
Federal law preempts the State of New York and the City from requiring
permits or other prior approval with respect to the construction
proposed here.
DATES: Any interested person may file with the Board written comments
concerning NYCEDC's petition by January 9, 2004. Replies will be due on
January 29, 2004.
ADDRESSES: Send an original and 10 copies of any comments referring to
STB Finance Docket No. 34429 to: Surface Transportation Board, 1925 K
Street, NW., Washington, DC 20423-0001. In addition, send one copy of
any comments to petitioner's representative: Charles A. Spitulnik,
McLeod, Watkinson & Miller, One Massachusetts Avenue, NW., Suite 800,
Washington, DC 20001.
FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 565-1600.
Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at: (800) 877-8339.
SUPPLEMENTARY INFORMATION: By petition filed on October 29, 2003,
NYCEDC asks the Board to institute a declaratory order proceeding to
confirm that: (1) The construction project described in the petition
involves the construction of spur or switching track that does not
require the Board's approval; and (2) Federal law preempts all
otherwise applicable State and local laws with respect to this project.
NYCEDC states that the proposed construction project consists of
the addition of a spur and/or switching track to, and the
rehabilitation of, the end of the Travis Branch of the Staten Island
Railroad (SIRR).\1\ According to NYCEDC, this construction project is
one part of a plan, called the Staten Island Railroad Reactivation
Project, for reactivation of the operations of the former SIRR. On
October 22, 2003, the Port Authority of New York and New Jersey (Port
Authority) filed a petition for a declaratory order with respect to the
proposed construction of a connector between the SIRR and the Chemical
Coast Secondary Line. The Board issued a notice instituting a
declaratory order proceeding and requesting comments on the Port
Authority's petition. Port Authority of New York and New Jersey--
Petition for Declaratory Order, STB Finance Docket No. 34428 (STB
served Nov. 18, 2003). NYCEDC and the Port Authority are in the process
of completing major upgrades to the SIRR to enable freight rail
movements between Staten Island and the Howland Hook Container Terminal
there, on the one hand, and freight rail lines in New Jersey, on the
other.
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\1\ Petitioner indicates that the Board will soon receive a
notice of a modified certificate of public convenience and necessity
pursuant to 49 CFR 1150.21-.24, advising of the designation of CSX
Transportation, Inc. and Norfolk Southern Railway Company as the
modified certificate operators of certain lines of the SIRR that had
been abandoned and then acquired by the City of New York and the
State of New Jersey.
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According to petitioner, the segment of the SIRR on which the new
track will be built is owned by the City and is managed by NYCEDC
pursuant to a contract with the City. NYCEDC claims that the new track
is required for the efficient pick up of trains from, and delivery to,
a City Department of Sanitation facility (DSNY facility) being
constructed on City-owned property at the Fresh Kills landfill site on
Staten Island. NYCEDC states that the total length of the right-of-way
for the new track will be approximately 6,744 feet, and that the track
layout has been designed to minimize interference with the access roads
from Victory Boulevard to the Visy Paper and Arthur Kill Power
properties. The project will also entail replacing existing timber
trestle bridges and timber and bituminous grade crossings, constructing
a new Wye connection and potential retaining walls, replacing and
repairing tracks at Arlington Yard, repairing and painting the Arthur
Kill Lift Bridge, and constructing, replacing, and repairing bridges
and bridge underpinnings.
NYCEDC indicates that rail service to and from the DSNY facility
will be in unit trains approximately 4,700 feet long and will require
that the trains be broken into sections. Petitioner maintains that the
disassembly of empty railcar sections in an arriving unit train, and
the assembly of full railcar sections into a unit train, will occur in
two areas of the right-of-way that have a double-tracked rail layout.
These sections are: (1) South of the Visy Paper entrance road and
extending across Victory Boulevard and the Consolidated Edison property
to the box culvert rail bridge; and (2) at the northern end of the
Arthur Kill Power property.
The Board does not exercise licensing authority ``over
construction, acquisition, operation, abandonment, or discontinuance of
spur, industrial, team, switching, or side tracks.'' 49 U.S.C. 10906.
The determination of whether a particular track segment is a ``railroad
line'' requiring Board authorization under 49 U.S.C. 10901(a), or an
exempt spur, industrial, team, switching, or side track, turns on the
intended use of the track segment. Nicholson v. I.C.C., 711 F.2d 364,
368 (D.C. Cir. 1983), cert. denied, 464 U.S. 1056 (1984). According to
NYCEDC, the intended use of the new track is for switching and for pick
up and delivery to and from the DSNY facility. NYCEDC further claims
that the new track is switching track according to the factors
considered in CNW--Aban. Exemp.--In McHenry County, IL, 3 I.C.C.2d 366
(1987), rev'd on other grounds sub nom. Illinois Commerce Com'n v. ICC,
879 F.2d 917 (D.C. Cir. 1989), because the track is not long, will
serve only one shipper,\2\ is stub-ended, and will not invade the
territory of another railroad or expand the involved market.
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\2\ Petitioner states that there is a possibility that another
shipper, Visy Paper, may build a lead into its plant from the new
track.
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Petitioner argues that this case is materially different from
Effingham Railroad Company--Petition for Declaratory Order--
Construction at Effingham, IL, STB Docket No. 41986 (STB served Sept.
12, 1997) (Effingham), in which the Board found that construction of a
``stub-ended track that
[[Page 68969]]
would be used exclusively for switching to and from present and future
shippers in an industrial park'' fell within its jurisdiction. Id.
Petitioner argues that Effingham involved a ``new carrier'' and a
proposal to construct a track that would constitute the new carrier's
entire operation, whereas in this case the track is ancillary to and
supplemental to the SIRR.
NYCEDC says that it has advised the New York State Department of
Environmental Conservation (NYSDEC) of its plans for the proposed
construction as they have developed. Petitioner asserts, however, that
NYSDEC is attempting to impose permitting and other requirements on it,
including the implementation of the state environmental review process,
and further asserts that its applications for the permits required by
NYSDEC for fill to tidal wetlands have been pending for eleven months
and remain unresolved.\3\ NYCEDC contends that the state and local
permitting and pre-clearance requirements imposed by NYSDEC give that
body the ability to impede petitioner's construction of the facilities
that are necessary to conduct operations.
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\3\ According to petitioner, this review is being made pursuant
to the New York State Environmental Quality Review Act, N.Y. Envtl.
Conserv. Law 8-101, et seq. (McKinney 2003).
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NYCEDC maintains that, even though 49 U.S.C. 10906 removes from the
Board the authority to approve the construction of the new track, the
Board's jurisdiction over the track and its construction prevents any
agencies of the state or local governments from imposing regulations or
requirements that would have the effect of interfering with the project
as it moves forward. According to petitioner, the Board has exclusive
and plenary jurisdiction over rail transportation to the extent that it
involves ``the construction, acquisition, operation, abandonment, or
discontinuance of spur, industrial, team, switching, or side tracks, or
facilities, even if the tracks are located, or intended to be located,
entirely in one state.'' \4\ NYCEDC further argues that state and local
permitting or pre-clearance requirements (including environmental
requirements) are preempted because, by their nature, they interfere
with interstate commerce by giving the state or local body the ability
to deny the carrier the right to construct facilities or conduct
operations. Petitioner maintains that the requirements that NYSDEC is
seeking to impose here, based on state law, are preempted because they
go beyond permissible ``police power'' regulation and amount to
impermissible permitting and environmental review requirements.
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\4\ In support, petitioner cites 49 U.S.C. 10501(b)(2) and
Friends of the Aquifer, et al., STB Finance Docket No. 33966 (STB
served Aug. 15, 2001).
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Finally, NYCEDC asks the Board to expedite its handling of this
petition. Specifically, petitioner asks the Board to issue its order in
November 2003, i.e., within 30 days of the filing of the petition.
Petitioner maintains that the construction season in New York is short,
and that it must begin offering construction contracts for bid
immediately to allow contracts to be let in time for construction to
commence according to schedule.
Granting this request would effectively preclude giving the public
notice of and an opportunity to comment on this proceeding. The Board
needs to afford notice and an opportunity for comment, given the
importance of the project.\5\ The Board will process this petition as
expeditiously as possible, but must and will provide adequate time for
the solicitation, receipt, and consideration of public comments.
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\5\ Moreover, on November 19, 2003, NYSDEC filed a pleading in
this matter indicating its intent to submit opposition to the
petition and seeking time in which to do so.
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By this notice, the Board is requesting comments on NYCEDC's
petition.
Board decisions and notices are available on our Web site at http://www.stb.dot.gov.
Decided: December 4, 2003.
By the Board, David M. Konschnik, Director, Office of
Proceedings.
Vernon A. Williams,
Secretary.
[FR Doc. 03-30445 Filed 12-9-03; 8:45 am]
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