[Federal Register Volume 73, Number 235 (Friday, December 5, 2008)]
[Notices]
[Pages 74229-74230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28798]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 35197]


Delaware and Hudson Railway Company, Inc. and The New York, 
Susquehanna and Western Railway Corporation--Joint Relocation Project 
Exemption--in Binghamton, NY

    On November 19, 2008, Delaware and Hudson Railway Company, Inc., d/
b/a Canadian Pacific (CP), and The New York, Susquehanna and Western 
Railway Corporation (NYS&W), jointly filed a notice of exemption under 
49 CFR 1180.2(d)(5) to jointly use and operate over track stemming from 
the sale by CP to NYS&W of approximately 0.95 miles of track and right-
of-way and the exchange of non-exclusive overhead trackage rights 
between CP and NYS&W.\1\
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    \1\ Applicants state that the overhead reciprocal trackage 
rights will terminate 10 years from the effective date (initial 
term). Unless CP or NYS&W notifies the other in writing at least 6 
months prior to the expiration of the initial term or any successive 
term, the reciprocal trackage rights may continue in full force and 
effect for up to three successive terms of 10 years each under the 
same terms and conditions. The parties must seek appropriate Board 
authority for the trackage rights to expire at the end of the 
initial term or at the end of the successive term or terms, as 
appropriate.
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    The purpose of the joint relocation project is to rationalize track 
usage and freight operations in the Binghamton terminal area, which 
will enable more efficient and expeditious rail service without 
disruption to shippers.
    The project consists of the following transactions:
    (1) CP will sell to NYS&W its currently out-of-service Liberty 
Street Main trackage and right-of-way between Points C (located at 
Norfolk Southern Railway Company (NS) milepost 214.1 ) and 
D (located at CP milepost 613.62), a distance of approximately 0.95 
miles. Prior to being taken out of service, this track doubled as the 
connecting track between CP's freight main line and the NS Southern 
Tier Line, on the one hand, and NYS&W's switching lead on the north 
side of its freight yard, on the other. However, as stated by the 
parties, the movement of through freight trains over this track segment 
disrupted switching operations. This sale will significantly reduce 
these disruptions as through freight trains will be routed on the 
trackage described in part 2 below. The parties contend that NYS&W 
intends, and is better positioned, to repair, rehabilitate, and upgrade 
the trackage so the parties may ultimately resume operations over this 
segment.
    (2) NYS&W will grant CP non-exclusive overhead trackage rights to 
operate over trackage owned by NYS&W located between: (1) Points A 
(located at NS milepost 214.1 ()) and B (located at CP 
milepost 613.84) (the Buffalo Runner); (2) Points C and D; and (3) 
Points D and F (located at CP milepost 612.77), a distance of 
approximately 2.56 miles.\2\ These trackage rights are intended to 
enable CP to continue through movements from its freight main line to 
NS's Southern Tier Line and avoid disruption of switching operations. 
NYS&W has already rehabilitated the Buffalo Runner to accommodate 
through freight movements to and from the Southern Tier Line, which 
will eliminate a bottleneck occurring when a train passes between NS 
and CP, and will prevent CP trains from blocking NYS&W access to its 
freight yard. NYS&W will continue to operate over these segments.
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    \2\ NYS&W's grant of trackage rights to CP incorporates the 
trackage rights CP previously granted to NS over the Buffalo Running 
Track in Norfolk Southern Railway Company-Trackage Rights Exemption-
Delaware and Hudson Railway Company, Inc., STB Finance Docket No. 
34209 (STB served July 25, 2002). Once this transaction is 
consummated, NS may also effectuate those trackage rights through 
the Binghamton terminal over trackage between Points A to B to D in 
order to further the joint project's rationalization of terminal 
operations to better accommodate switching and through movements.
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    (3) CP will grant NYS&W non-exclusive overhead trackage rights to 
operate over trackage owned by CP located between: (1) Points B and D; 
(2) Points E (located at CP milepost 613.54) and G (located at CP 
milepost 612.98); (3) Points G and H (located at CP milepost 613.99); 
and (4) Points I (located at CP milepost 614.13) and J (located at CP 
milepost 614.30), a distance of approximately 1.96 miles. These 
trackage rights are intended to enable NYS&W to use CP's Bevier Street 
Yard for operations unrelated to interchange with CP and to operate on 
CP's Binghamton Runner between NYS&W's Syracuse and Utica Branch on the 
north, NYS&W's Binghamton Yard,

[[Page 74230]]

and the Southern Tier. CP will continue to operate over these segments.
    Applicants state that the proposed project will not disrupt service 
to shippers as CP and NYS&W will continue to have access to the 
Binghamton terminal area. Additionally, applicants state that the 
proposed project will not involve an expansion of service by CP or 
NYS&W into new territory, or alter the existing competitive situation.
    The Board will exercise jurisdiction over the abandonment, 
construction, or sale components of a relocation project, and require 
separate approval or exemption, only where the removal of track affects 
service to shippers or the construction of new track or transfer of 
existing track involves expansion into new territory. See City of 
Detroit v. Canadian National Ry. Co., et al., 9 I.C.C.2d 1208 (1993), 
aff'd sub nom. Detroit/Wayne County Port Authority v. ICC, 59 F.3d 1314 
(D.C. Cir. 1995), Flats Industrial Railroad Company and Norfolk 
Southern Railway Company--Joint Relocation Project Exemption--in 
Cleveland, OH, STB Finance Docket No. 34108 (STB served Nov. 15, 2001). 
Line relocation projects may embrace trackage rights transactions such 
as those involved here. See D.T.&I.R.--Trackage Rights, 363 I.C.C. 878 
(1981). Under these standards, the sale and incidental trackage rights 
components require no separate approval or exemption when the 
relocation project, as here, will not disrupt service to shippers and 
thus qualifies for the class exemption at 49 CFR 1180.2(d)(5).
    As a condition to this exemption, any employees affected by the 
trackage rights will be protected by the conditions imposed in Norfolk 
and Western Ry. Co.--Trackage Rights--BN, 354 I.C.C. 605 (1978), as 
modified in Mendocino Coast Ry., Inc.--Lease and Operate, 360 I.C.C. 
653 (1980).
    The earliest this transaction may be consummated is the December 
19, 2008 effective date of the exemption (30 days after the exemption 
was filed).
    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 December 12, 2008 (at 
least 7 days before the exemption becomes effective).
    An original and 10 copies of all pleadings, referring to STB 
Finance Docket No. 35197, must be filed with the Surface Transportation 
Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a 
copy of each pleading must be served on applicants' representatives: W. 
Karl Hansen, Leonard, Street and Deinard Professional Association, 150 
South Fifth Street, Suite 2300, Minneapolis, MN 55402, and Nathan 
Fenno, The New York, Susquehanna and Western Railway Corporation, 1 
Railroad Avenue, Cooperstown, NY 13326.
    Board decisions and notices are available on our Web site at http://www.stb.dot.gov.

    Decided: December 1, 2008.

    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Kulunie L. Cannon,
Clearance Clerk.
 [FR Doc. E8-28798 Filed 12-4-08; 8:45 am]
BILLING CODE 4915-01-P