[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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