[Federal Register Volume 73, Number 144 (Friday, July 25, 2008)]
[Notices]
[Page 43487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17103]



[[Page 43487]]

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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 35155]


FPN-USA, Inc.--Operation Exemption--Tijuana-Tecate Shortline

    FPN-USA, Inc. (FPN), a noncarrier, has filed a verified notice of 
exemption under 49 CFR 1150.31 to operate an approximately 44.6-mile 
line of railroad known as the Tijuana-Tecate Shortline, currently owned 
by the San Diego & Arizona Eastern Railway Company (SD&AE).\1\ The rail 
line, almost all of which is in Mexico, extends between approximately 
milepost 15.0 at San Ysidro, CA, and milepost 59.6 at Division, CA, and 
runs through Baja California, Mexico.\2\ In addition, FPN proposes to 
acquire, as incidental trackage rights, trackage rights over the line 
being operated by Carrizo Gorge Railway, Inc. (CZRY) between milepost 
59.6 at Division and milepost 65.8 at Campo, CA.\3\ FPN seeks these 
incidental trackage rights to reach a suitable interchange point at 
Campo because there is no place to interchange at Division.
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    \1\ FPN concurrently filed a public and a confidential version 
of the notice. The confidential version was filed under seal along 
with a motion for protective order. The motion for protective order 
is being addressed in a separate decision.
    \2\ FPN will shortly submit a proposal to the Mexican State of 
Baja California to operate the line. FPN will commence operations if 
this proposal is accepted and an operating agreement is executed.
    \3\ See Carrizo Gorge Railway, Inc.--Operation Exemption--Line 
of San Diego and Arizona Eastern Railway Company and San Diego & 
Imperial Valley Railroad Company, Inc., STB Finance Docket No. 34078 
(STB served Aug. 16, 2001). On July 18, 2008, FPN stated that it 
intends to enter into a trackage rights agreement with CZRY.
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    FPN advises that the Tijuana-Tecate Shortline constitutes a portion 
of a longer rail line owned by SD&AE, a former Southern Pacific 
Transportation Company subsidiary.\4\ Citing San Diego, FPN states 
that, until July 1, 2001, pursuant to an operation and management 
agreement with SD&AE, the San Diego & Imperial Valley Railroad Company 
(SDIV) provided freight service over a rail line that extends a 
distance of approximately 130 miles between San Diego, CA, and a point 
near Plaster City, CA (the San Diego-Plaster City line), and includes 
the Tijuana-Tecate Shortline.\5\ See San Diego & Imperial Valley R. 
Co., Inc.--Exemption, 1 I.C.C.2d 941 (1985). On July 1, 2001, SDIV 
entered into a sublease with CZRY, which then operated over the 
Tijuana-Tecate Shortline. See supra note 3. FPN further states that 
CZRY has recently been performing service outside the Tijuana region 
only sporadically. As a result, according to FPN, Baja California is in 
the process of canceling CZRY's contract and has put the operation of 
the line out for bid.
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    \4\ SD&AE is owned by the San Diego Metropolitan Transit 
Development Board, a noncarrier public agency which operates light 
rail passenger transit service over a portion of the San Diego-
Plaster City line between San Diego, CA, and the International 
Border between the United States and Mexico at San Ysidro, CA/
Tijuana, MX. See San Diego & Imperial Valley R. Co., Inc.--Exemption 
From 49 U.S.C. 10901 and 11301, Finance Docket No. 30457 (ICC served 
Aug. 17, 1984) (San Diego).
    \5\ The Board has entry jurisdiction over railroads and rail 
lines that provide service between one point in the United States 
and another point in the United States through a foreign country. 
See id., see also Trans-Ontario Ry. Co.--Exemption--49 U.S.C. 10901, 
Finance Docket No. 30566 (ICC served Feb. 5, 1985).
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    FPN indicates that Union Pacific Railroad Company has indicated its 
willingness to work with FPN, should Baja California select FPN to 
operate the Tijuana-Tecate Shortline, for the purpose of interchanging 
traffic that originated or will terminate in Mexico. By letter filed on 
July 21, 2008, SDIV states that it is unaware of any changes to CZRY's 
operation over the Tijuana-Tecate Shortline or of FPN's intent to 
operate over it, that SDIV has had no communications with FPN regarding 
FPN's desire to operate over the line, and that there have been no 
discussions with FPN regarding coordination of operations.\6\
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    \6\ If the exemption becomes effective, the authority obtained 
by FPN through the exemption is permissive and does not bestow on 
FPN any legal rights it would need to obtain by contract from SD&AE, 
SDIV, CZRY, or any other party.
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    The transaction is scheduled to be consummated on or after August 
10, 2008 (the effective date of the exemption).
    FPN certifies that its projected annual revenues as a result of 
this transaction would not exceed those that would qualify it as a 
Class III rail carrier and further certifies that its projected annual 
revenues will not exceed $5 million.
    Pursuant to the Consolidated Appropriations Act, 2008, Public Law 
No. 110-161, Sec.  193, 121 Stat. 1844 (2007), nothing in this decision 
authorizes the following activities at any solid waste rail transfer 
facility: Collecting, storing or transferring solid waste outside of 
its original shipping container; or separating or processing solid 
waste (including baling, crushing, compacting and shredding). The term 
``solid waste'' is defined in section 1004 of the Solid Waste Disposal 
Act, 42 U.S.C. 6903.
    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 effectiveness of the 
exemption. Petitions for stay must be filed no later than August 1, 
2008 (at least 7 days before the exemption becomes effective).
    An original and 10 copies of all pleadings, referring to STB 
Finance Docket No. 35155, must be filed with the Surface Transportation 
Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, one 
copy of each pleading must be served on John D. Hefner, Esq., John D. 
Heffner, PLLC, 1750 K Street, NW., Suite 350, Washington, DC 20006.
    Board decisions and notices are available on our Web site at http://www.stb.dot.gov.

    Decided: July 21, 2008.

    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Anne K. Quinlan,
Acting Secretary.
[FR Doc. E8-17103 Filed 7-24-08; 8:45 am]
BILLING CODE 4915-01-P