[Federal Register Volume 73, Number 232 (Tuesday, December 2, 2008)]
[Notices]
[Pages 73384-73385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28460]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 35181]


Indiana Rail Road Company--Petition for Declaratory Order

AGENCY: Surface Transportation Board.

ACTION: Institution of declaratory order proceeding; request for 
comments.

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SUMMARY: In response to a petition filed by Indiana Rail Road Company 
(INRD) on October 7, 2008, the Board is instituting a declaratory order 
proceeding under 49 U.S.C. 721 and 5 U.S.C. 554(e). The Board seeks to 
determine whether a track INRD proposes to construct from its east-west 
main line at Dugger, IN, to a new coal operation south of that main 
line will be a spur track exempt from Board approval under 49 U.S.C. 
10906 or a line of railroad subject to the Board's jurisdiction and 
requiring Board approval under 49 U.S.C. 10901. The Board seeks public 
comment on this matter.

DATES: Comments are due by January 16, 2009. Replies are due by 
February 5, 2009.

ADDRESSES: Send an original and 10 copies of any comments, referring to 
STB Finance Docket No. 35181, to: Surface Transportation Board, 395 E 
Street, SW., Washington, DC 20423-0001. In addition, send one copy of 
comments to INRD's representative, John Broadley, 1054 31st Street NW., 
Suite 200, Washington, DC 20007.

FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 245-0395. 
[Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at: 1-800-877-8339].

SUPPLEMENTARY INFORMATION: INRD's petition for declaratory order 
concerns the proposed construction of a track approximately 5 miles 
long from INRD's east-west main line at Dugger to a new coal operation 
in the coal bearing area south of the INRD east-west main line. INRD 
requests that the Board issue a decision stating that the proposed 
track will be a ``spur,'' and thus would be exempt from Board 
regulation pursuant to 49 U.S.C. 10906.
    The proposed track, which INRD will construct, will serve a coal 
mining operation run by a subsidiary of Peabody Energy--the Black 
Beauty Coal Company (collectively, Peabody). The track will run west 
from INRD's east-west main line for approximately one mile, then turn 
south and run almost directly to a coal loadout and loop track that 
Peabody will construct to serve the new mine, the Farmsburg Mine, Bear 
Run Pit.
    The Board does not exercise licensing authority ``over 
construction, acquisition, operation, abandonment, or discontinuance of 
spur * * * 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 turns on the 
intended use of the track segment. Nicholson v. I.C.C., 711 F.2d 364, 
368 (DC Cir. 1983), cert. denied, 464 U.S. 1056 (1984). Exempt spurs 
are ``commonly constructed either to improve the facilities required by 
shippers already served by the carrier or to supply the facilities to 
others, who being within the same territory and similarly situated are 
entitled to like service from the carrier.'' Texas & Pacific Ry. Co. v. 
Gulf, Colorado & Santa Fe Ry. Co., 270 U.S. 266, 278 (1926) (Texas & 
Pacific). In contrast, if a railroad constructs tracks that extend 
substantially its line into new territory, then the new track is an 
extension subject to Board licensing requirements and not an exempt 
``spur.'' Id.
    Petitioner asserts that the track proposed to be constructed here 
meets the test for spur track set forth in Texas & Pacific because the 
track: (1) Will not invade the territory of any other railroad, as the 
closest railroad is a CSXT main line track located approximately 6.2 
miles west of the new Peabody coal mine, and (2) will not constitute a 
significant extension of INRD's line into new territory as INRD and its 
predecessors have historically served this area through other spurs off 
the existing INRD main lines.\1\
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    \1\ Regarding this last factor, petitioner also cites the 
Board's holding in New York City Economic Development Corporation--
Petition for Declaratory Order, STB Finance Docket No. 34429 (STB 
served July 15, 2004).
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    INRD further argues that finding this track to be an exempt spur 
would be consistent with the Supreme Court's holding in United States 
v. Idaho, 298 U.S. 105 (1936) because: (1) The track will be built 
pursuant to an agreement with the shipper--Peabody, (2) either Peabody 
or its customers will enter into contracts for transportation that will 
make financing possible, (3) the shipper to be served by the track, 
Peabody, will provide a large part of the right-of-way--4.2 of the 
approximate 5 miles, (4) the proposed track will be stub-ended, and (5) 
the track will serve only one shipper.
    Under 5 U.S.C. 554(e), the Board has discretionary authority to 
issue a declaratory order to terminate a controversy or remove 
uncertainty. A declaratory order proceeding is thus instituted in this 
proceeding to invite broad public comment. Any person seeking to 
participate in support of, or in opposition to, INRD's petition may 
submit written comments to the Board regarding whether the proposed 
track is a ``spur.''
    Board decisions, notices, and filings in this and other Board 
proceedings are available on our Web site at http://www.stb.dot.gov.

    Decided: November 25, 2008.


[[Page 73385]]


    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Jeff Herzig,
Clearance Clerk.
[FR Doc. E8-28460 Filed 12-1-08; 8:45 am]
BILLING CODE 4915-01-P