[Federal Register Volume 72, Number 108 (Wednesday, June 6, 2007)]
[Notices]
[Pages 31365-31366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10883]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 35019]


Western New York and Pennsylvania Railroad, LLC--Lease and 
Operation Exemption--Certain Assets of Norfolk Southern Railway Company 
and Chautauqua, Cattaraugus, Allegany and Steuben Southern Tier 
Extension Railroad Authority

    Western New York and Pennsylvania Railroad, LLC (WNYP), a Class III 
rail carrier, has filed a verified notice of exemption under 49 CFR 
1150.41 to lease from Chautauqua, Cattaraugus, Allegany and Steuben 
Southern Tier Extension Railroad Authority (STERA), and Norfolk 
Southern Railway Company (NSR), and operate approximately 98.3 miles of 
rail line extending between Machias Junction, NY, and Driftwood, PA, in 
Cattaraugus County, NY, and McKean, Potter and Cameron Counties, PA 
(the line).\1\ The end points of the line are as follows: (1) Between 
milepost BR 44.7 and milepost BR 134.0 (the Buffalo Line); (2) between 
milepost FV 0.0 and milepost FV 6.6 (the Farmer's Valley Secondary 
Line); and (3) between milepost YS 114.5 and milepost YS 116.9 (the 
Olean Branch). NSR will retain detour rights over the line pursuant to 
a standard form detour agreement adopted by the Association of American 
Railroads.
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    \1\ STERA owns the portion of the line located in Cattaraugus 
County. NSR owns the portion of the line located in McKean, Potter 
and Cameron Counties, and is the current operator of the entire 
line. In accordance with the lease provisions, the lease term is 14 
years, with a renewal term of 10 years, which may be terminated by 
either party prior to the end of the term.
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    WNYP certifies that its projected revenues as a result of the 
transaction will not result in the creation of a Class II or Class I 
rail carrier. Because the projected annual revenues of the line, 
together with WNYP's projected annual revenue will exceed $5 million, 
WNYP states that it has served the national offices of all labor unions 
with employees on the line with a copy of a notice of its intent to 
undertake this transaction and posted such notice at the workplace of 
the employees on the affected line on April 18, 2007.
    By petition filed on May 22, 2007, the United Transportation Union-
New York State Legislative Board (UTU-NY) requests that the Board 
reject WNYP's notice of exemption for failure to meet the requirements 
of 49 CFR 1150.42(e).\2\ UTU-NY maintains that WNYP was required to 
notify the Board at least 60 days prior to the proposed effective date 
of the exemption that the required notice had been given to employees. 
Alternatively, UTU-NY requests that the exemption not become effective 
until July 16, 2007. WNYP asserts that it served and posted the 
required information for employees on April 18, 2007, but it has not 
certified to the Board that it has done so.
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    \2\ Under 49 CFR 1150.42(e), ``If the projected annual revenue 
of the rail lines to be acquired or operated, together with the 
acquiring carrier's projected annual revenue, exceeds $5 million, 
the applicant must, at least 60 days before the exemption becomes 
effective, post a notice of applicant's intent to undertake the 
proposed transaction at the workplace of the employees on the 
affected line(s) and serve a copy of the notice on the national 
offices of the labor unions with employees on the affected line(s), 
setting forth the types and numbers of jobs expected to be 
available, the terms of employment and principles of employee 
selection, and the lines that are to be transferred, and certify to 
the Board that it has done so'' (emphasis added).
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    In a letter filed May 25, 2007, WNYP seeks a waiver of the 
requirements of 49 CFR 1150.42(e) insofar as it relates to certifying 
to the Board that it has complied with those requirements at least 60 
days prior to the effective date of the exemption. WNYP thus seeks a 
Board ruling that would permit the exemption in this proceeding to 
become effective on June 25, 2007. WNYP acknowledges that, although the 
Board's regulations do not require the filing of the labor notice with 
the Board, the Board has interpreted the 60-day advance notice 
requirement in 49 CFR 1150.42(e) not only to apply to service and 
posting of the required labor notice, but also to certification to the 
Board of that service and posting.
    UTU-NY replied in opposition to the petition for waiver on May 29, 
2007. The Board will rule on WNYP's waiver request in a subsequent 
decision. Unless the Board grants the waiver request, the earliest this 
transaction may be consummated will be 60 days after certification of 
compliance with the

[[Page 31366]]

requirements of 49 CFR 1150.42(e) is received by the Board.
    If the verified notice contains false or misleading information, 
the exemption is void ab initio. Petitions to revoke the exemption 
under 49 U.S.C. 10502(d) may be filed at any time. The filing of a 
petition to revoke will not automatically stay the transaction. 
Petitions for stay must be filed no later than June 11, 2007.
    An original and 10 copies of all pleadings, referring to STB 
Finance Docket No. 35019, must be filed with the Surface Transportation 
Board, 395 E Street, SW., Washington, DC 20423-0001. Also, a copy of 
each pleading must be served on Janie Sheng, Kirkpatrick & Lockhart 
Preston Gates Ellis LLP, 1601 K Street, NW., Washington, DC 20006.
    Board decisions and notices are available on our Web site at http://www.stb.dot.gov.

    Decided: May 31, 2007.

    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Vernon A. Williams,
Secretary.
 [FR Doc. E7-10883 Filed 6-5-07; 8:45 am]
BILLING CODE 4915-01-P