[Federal Register Volume 89, Number 120 (Friday, June 21, 2024)]
[Notices]
[Pages 52194-52198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13671]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36746; Docket No. FD 36747]


Bay Colony Railroad Corporation--Acquisition and Operation of 
Rail Line--in Norfolk County, Mass.; Massachusetts Coastal Railroad, 
LLC--Acquisition and Operation Exemption--Bay Colony Railroad 
Corporation and Massachusetts Bay Transportation Authority

    Bay Colony Railroad Corporation (Bay Colony), a Class III rail 
carrier, acquired and operates a freight rail easement covering the 
approximately 3.4-mile Millis Industrial Track (sometimes referred to 
as the ``Millis Branch'') between the northeast side of the Framingham 
Secondary right-of-way in Medfield Junction (milepost 0.0) and the end 
of the line in Millis (milepost 3.4), in Norfolk County, Mass. On 
January 16, 2024, Bay Colony filed, in Docket No. FD 36746, a petition 
under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 
10902 for after-the-fact authority for its acquisition and operation of 
the Millis Industrial Track.
    Bay Colony also requests that, to the extent necessary, the Board 
confirm Bay Colony's right to operate a portion of the Dover Secondary 
Track beginning near BCLR milepost 7.2 located at the south edge of Ice 
House Road and terminating at milepost 7.3 at Medfield Junction 
(Remaining Dover Secondary Track) (collectively, the Millis Industrial 
Track and the Remaining Dover Secondary Track will be referred to as 
``the Line''), also in Norfolk County, Mass.
    Concurrently, on January 16, 2024, Massachusetts Coastal Railroad, 
LLC (Mass Coastal), a Class III rail carrier, filed, in Docket No. FD 
36747, a petition under 49 U.S.C. 10502 seeking an exemption from the 
provisions of 49 U.S.C. 10902 to acquire the Line from Bay Colony and 
operate it.\1\ Both petitions are unopposed.\2\
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    \1\ These proceedings are not consolidated but are being 
addressed in the same decision for administrative convenience.
    \2\ By decision served April 12, 2024, proceedings under 49 
U.S.C. 10502(b) were instituted in both dockets. Bay Colony R.R.--
Acquis. & Operation of Rail Line--in Norfolk Cnty., Mass., FD 36746 
et al. (STB served Apr. 12, 2024).
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    As discussed below, the Board finds that exempting Bay Colony's 
acquisition of the easement and operation of the Millis Industrial 
Track, as well as Mass Coastal's acquisition and operation of the Line, 
will promote the rail transportation policy (RTP) of 49 U.S.C. 10101, 
and regulation of these transactions is not needed to protect shippers 
from the abuse of market power. Therefore, the Board will grant the 
petitions.

Background

Mass Coastal's 2023 Verified Notice of Exemption to Acquire the Line

    In November 2023, Mass Coastal filed a verified notice of exemption 
under 49 CFR 1150.41 to acquire the Line from Bay Colony and operate 
it. Mass Coastal explained that Bay Colony has been operating the Line, 
which is owned by the Massachusetts Bay Transportation Authority 
(MBTA), pursuant to modified certificates of public convenience and 
necessity. Verified Notice 2, Mass. Coastal R.R.--Acquis. & Operation 
Exemption--Bay Colony R.R., FD 36738; see also Bay Colony R.R.--
Modified Rail Certificate, FD 29963 (ICC served Sept. 24, 1987) \3\ & 
(ICC served June 29, 1982).\4\ In addition, Mass Coastal stated that, 
since 2005, Bay Colony has been operating the Line pursuant to a 
retained freight rail easement (Easement), which it acquired from CSX 
Transportation, Inc. (CSXT), and, since 2006, pursuant to a new 
trackage rights and operating agreement (Operating Agreement) with 
MBTA. Verified Notice 2-3, Mass. Coastal R.R.--Acquis. & Operation 
Exemption--Bay Colony R.R., FD 36738. In its verified notice, Mass 
Coastal explained that it would be acquiring an assignment of the 
Easement and the Operating Agreement from Bay Colony. Id. at 3.
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    \3\ The modified certificate served September 24, 1987, will be 
referred to as the ``1987 Modified Certificate.''
    \4\ The modified certificate served June 29, 1982, will be 
referred to as the ``1982 Modified Certificate.''
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    Mass Coastal's verified notice was rejected because of various 
issues and questions surrounding the status and operation of the Line, 
which rendered the matter inappropriate for the class exemption 
procedures. See Mass. Coastal R.R.--Acquis. & Operation Exemption--Bay 
Colony R.R. (December 2023 Decision), FD 36738, slip op. at 2 (STB 
served Dec. 15, 2023). The December 2023 Decision explained that it was 
unclear whether Bay Colony's current operation of the Line pursuant to 
the modified certificates was appropriate, as it contradicted arguments 
Bay Colony itself previously made with respect to the Millis Industrial 
Track. Id. Specifically, in response to a notice MBTA filed on April 
13, 2005, in Docket No. FD 29963, seeking to terminate Bay Colony's 
modified certificate operations on the Millis Industrial Track, Bay 
Colony filed a petition for declaratory order in Docket No. FD 34698, 
in which it argued, among other things, that its modified certificate 
may not have been appropriate because the Millis Industrial Track was 
never abandoned or approved for abandonment. Bay Colony Pet. 5, May 5, 
2005, Bay Colony R.R.--Pet. for Decl. Ord., FD 34698. In settling the 
dispute concerning Bay Colony's operations on the Millis Industrial 
Track, Bay Colony and MBTA informed the Board that appropriate notices 
of exemption would be filed in the near future. See Joint Status Report 
1, July 7, 2006, Bay Colony R.R.--Pet. for Decl. Ord., FD 34698. 
However, Bay Colony never sought or received Board authority under 49 
U.S.C. 10901 or 49 U.S.C. 10902 for operation of the Millis Industrial 
Track, nor did Bay Colony explain why it no longer believed it needed 
such authority. December 2023 Decision, FD 36738, slip op. at 2.
    The December 2023 Decision explained that the rejection of Mass 
Coastal's verified notice did not preclude Mass Coastal or Bay Colony 
from seeking authority through a petition for exemption or an 
application but directed that any future pleading should clarify the 
following:
    1. Whether Bay Colony must obtain Board authority to acquire and 
operate the Line before Mass Coastal can obtain authority under 49 
U.S.C. 10902.
    2. Whether the arguments put forth by Bay Colony in Docket No. FD 
34698--that the modified certificate may not have been appropriate 
because the

[[Page 52195]]

Millis Industrial Track was never approved for abandonment--also apply 
to the Remaining Dover Secondary Track, and whether MBTA possesses any 
common carrier obligation for the Millis Industrial Track or the 
Remaining Dover Secondary Track.
    3. Whether the Easement and/or the Operating Agreement cover(s) the 
Remaining Dover Secondary Track.

December 2023 Decision, FD 36738, slip op. at 3.
    Thereafter, on January 16, 2024, Bay Colony filed the petition for 
exemption currently pending in Docket No. FD 36746, in which it seeks 
after-the-fact authority to acquire the Easement and operate the Millis 
Industrial Track pursuant to the Operating Agreement. Bay Colony also 
seeks confirmation that it may operate the Remaining Dover Secondary 
Track. On the same day, Mass Coastal filed the petition for exemption 
currently pending in Docket No. FD 36747, in which it seeks authority 
to acquire the Line from Bay Colony and operate it.

History of the Millis Industrial Track

    According to Bay Colony, the Millis Industrial Track was conveyed 
to MBTA by deed of Penn Central Transportation Company (Penn Central) 
dated January 17, 1973, subject to Penn Central's reservation of the 
Easement to operate over the track. (Bay Colony Pet. 2, Bay Colony 
R.R.--Acquis. & Operation of Rail Line--in Norfolk Cnty., Mass., FD 
36746); see also Bay Colony Notice 3, Sept. 2, 1987, Bay Colony R.R.--
Modified Rail Certificate, FD 29963. Bay Colony states that Penn 
Central--and subsequently, Consolidated Rail Corporation (Conrail)--
continued providing freight service on the Millis Industrial Track. 
(Bay Colony Pet. 2-3, Bay Colony R.R.--Acquis. & Operation of Rail 
Line--in Norfolk Cnty., Mass., FD 36746); see also Bay Colony Notice 3, 
Sept. 2, 1987, Bay Colony R.R.--Modified Rail Certificate, FD 29963. As 
noted in Bay Colony's petition, on September 2, 1987, it filed with the 
Interstate Commerce Commission (ICC) a notice for a modified 
certificate to operate two rail lines, including the Millis Industrial 
Track. (Bay Colony Pet. 2, Bay Colony R.R.--Acquis. & Operation of Rail 
Line--in Norfolk Cnty., Mass., FD 36746); see also Bay Colony Notice, 
Sept. 2, 1987, Bay Colony R.R.--Modified Rail Certificate, FD 29963. In 
a decision served later that month, the ICC also authorized Conrail, 
pursuant to 49 U.S.C. 748, to discontinue service \5\ over the Millis 
Industrial Track. See Conrail Discontinuance of Serv. in Norfolk Cnty., 
Mass., AB 167 (Sub-No. 954N) (ICC served Sept. 11, 1987). Following 
that discontinuance decision, on September 24, 1987, the ICC served the 
1987 Modified Certificate. See Bay Colony R.R.--Modified Rail 
Certificate, FD 29963 (ICC served Sept. 24, 1987).
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    \5\ Conrail stated in its application that, because it did not 
own the Millis Industrial Track, it was seeking ``approval of 
abandonment of Conrail's operation only.'' Conrail Appl. 2, June 1, 
1987, Conrail Discontinuance of Serv. in Norfolk Cnty., Mass., AB 
167 (Sub-No. 954N).
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    According to Bay Colony, it operated the Millis Industrial Track 
pursuant to the 1987 Modified Certificate without incident until April 
2005 when ownership of the Easement passed from Conrail to New York 
Central Lines, LLC (NYC), and subsequently to CSXT, when NYC was merged 
into CSXT. (Bay Colony Pet. 3, Bay Colony R.R.--Acquis. & Operation of 
Rail Line--in Norfolk Cnty., Mass., FD 36746.) Bay Colony states that 
neither Conrail nor NYC nor CSXT ever sought to reactivate common 
carrier operating rights under the Easement. (Id.)
    In April 2005, MBTA filed a notice seeking to terminate the 1987 
Modified Certificate as it related to the Millis Industrial Track. (Id. 
at 3); see also MBTA Notice, Apr. 13, 2005, Bay Colony R.R.--Modified 
Rail Certificate, FD 29963. In response, Bay Colony filed a motion to 
dismiss MBTA's notice to terminate, and, concurrently, in Docket No. FD 
34698, filed a petition for declaratory order, arguing that the Millis 
Industrial Track had potentially not been eligible for a modified 
certificate in 1987 and that Bay Colony should be deemed to have a full 
common carrier certificate over the track. (Bay Colony Pet. 3-4, Bay 
Colony R.R.--Acquis. & Operation of Rail Line--in Norfolk Cnty., Mass., 
FD 36746.) Bay Colony ultimately settled with MBTA, acquired the 
Easement by assignment from CSXT, and then Bay Colony and MBTA entered 
into the Operating Agreement in 2006. (Bay Colony Pet. 4, Bay Colony 
R.R.--Acquis. & Operation of Rail Line--in Norfolk Cnty., Mass., FD 
36746.) \6\
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    \6\ MBTA requested that its notice of termination be dismissed. 
The Board granted that request on January 5, 2006. Bay Colony R.R.--
Modified Rail Certificate, FD 29963 et al., slip op. at 2 (STB 
served Jan. 5, 2006). And after finalizing the Operating Agreement 
with MBTA, Bay Colony requested that its petition for declaratory 
order be dismissed. The Board granted that request on July 11, 2006. 
Bay Colony R.R.--Pet. for Decl. Ord., FD 34698, slip op. at 2 (STB 
served July 11, 2006).
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    Bay Colony notes that, at the time of the settlement, it and MBTA 
indicated to the Board that appropriate notices of exemption concerning 
Bay Colony's operations on the Millis Industrial Track would be filed 
following dismissal of Bay Colony's petition for declaratory order in 
Docket No. FD 34698. (Id.); see also Bay Colony R.R.--Modified Rail 
Certificate, FD 29963 et al., slip op. at 2 (STB served Jan. 5, 2006). 
However, Bay Colony acknowledges that no notices were filed, and it 
continued to operate the Millis Industrial Track pursuant to the 
existing 1987 Modified Certificate. (Bay Colony Pet. 4, Bay Colony 
R.R.--Acquis. & Operation of Rail Line--in Norfolk Cnty., Mass., FD 
36746.)

History of the Remaining Dover Secondary Track

    As to the Remaining Dover Secondary Track, according to Bay Colony, 
MBTA acquired the Dover Secondary Track, between Needham Junction at 
milepost 0.0 and Medfield Junction at milepost 7.2, from Penn Central 
in 1982, subject to an operating easement held by Conrail. (Id. at 5); 
see also Bay Colony Notice 7-8, June 11, 1982, Bay Colony R.R.--
Modified Rail Certificate, FD 29963. Bay Colony states that Conrail 
operated the Dover Secondary Track from Conrail's formation until 
Conrail applied to abandon it in Docket No. AB 167 (Sub-No. 353). (Bay 
Colony Pet. 4, Bay Colony R.R.--Acquis. & Operation of Rail Line--in 
Norfolk Cnty., Mass., FD 36746); see also Bay Colony Notice 7-8, June 
11, 1982, Bay Colony R.R.--Modified Rail Certificate, FD 29963. Bay 
Colony states that Conrail continued to operate the Dover Secondary 
Track under a subsidy paid by the Commonwealth of Massachusetts 
(Commonwealth) until the subsidy expired. (Bay Colony Pet. 4, Bay 
Colony R.R.--Acquis. & Operation of Rail Line--in Norfolk Cnty., Mass., 
FD 36746); see also Bay Colony Notice 7-8, June 11, 1982, Bay Colony 
R.R.--Modified Rail Certificate, FD 29963. The ICC issued an 
abandonment certificate for the Dover Secondary Track on June 11, 1982, 
and in connection with the abandonment, Conrail released its easement 
for the Dover Secondary Track to the Commonwealth. (Bay Colony Pet. 4, 
Bay Colony R.R.--Acquis. & Operation of Rail Line--in Norfolk Cnty., 
Mass., FD 36746); see also Conrail Aban. Between Chick & Cook St. & 
Needham Jct. & Medfield Jct. Mass., AB 167 (Sub-No. 353N (ICC served 
June 11, 1982). According to Bay Colony, it filed with the ICC on June 
11, 1982, a notice for a modified certificate to operate over rail 
lines owned by the Commonwealth, including the Dover Secondary Track. 
(Bay Colony Pet. 5, Bay Colony R.R.--Acquis. & Operation of Rail Line--
in Norfolk Cnty., Mass., FD 36746); see also Bay Colony Notice, June 
11, 1982, Bay Colony R.R.--Modified Rail

[[Page 52196]]

Certificate, FD 29963. The ICC served the 1982 Modified Certificate on 
June 29, 1982. Bay Colony R.R.--Modified Rail Certificate, FD 29963 
(ICC served June 29, 1982).
    Bay Colony states that the Operating Agreement applied to operation 
of the Dover Secondary Track pursuant to the 1982 Modified Certificate. 
(Bay Colony Pet. 5, Bay Colony R.R.--Acquis. & Operation of Rail Line--
in Norfolk Cnty., Mass., FD 36746.) Bay Colony notes that the Operating 
Agreement described the Dover Secondary Track as beginning at milepost 
0.0 in Needham and continuing to milepost 7.3, which is known as 
Medfield Junction. (Id.) Bay Colony explains that the change in 
milepost designation at Medfield Junction from milepost 7.2 in the 1982 
Modified Certificate to milepost 7.3 in the Operating Agreement 
reflects only a redesignation of the end of the rail line, as the Dover 
Secondary Track has always been described as ending at Medfield 
Junction, where it connects with the Millis Industrial Track and with 
track now operated by CSXT.\7\ (Id. at 6.)
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    \7\ Although it is not entirely clear what the term 
``redesignation'' means as it is used by Bay Colony, the Board 
understands it to mean, in the fuller context, that the physical 
endpoint of the Dover Secondary Track has consistently been 
understood to be at milepost 7.3 regardless of how the endpoint has 
been documented.
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    Bay Colony further explains that it operated the entire Dover 
Secondary Track pursuant to the 1982 Modified Certificate until October 
11, 2013, when it filed a notice terminating its operations over the 
portion of the Dover Secondary Track from milepost 0.0 to milepost 7.2. 
(Id.) According to Bay Colony, it continues to operate the Remaining 
Dover Secondary Track to facilitate interchange between the Millis 
Industrial Track and CSXT. (Id. at 6 n.6.)

Bay Colony's Petition for Exemption

    In its present petition, Bay Colony seeks an exemption from the 
prior approval requirements of 49 U.S.C. 10902 to acquire the Easement 
and to operate the Millis Industrial Track under the Operating 
Agreement. (Bay Colony Pet. 10-13, Bay Colony R.R.--Acquis. & Operation 
of Rail Line--in Norfolk Cnty., Mass., FD 36746.) \8\ In its petition, 
Bay Colony also responds to the issues raised in the December 2023 
Decision.
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    \8\ According to Bay Colony, the Operating Agreement suggests, 
without explicitly providing, that based on the assignment of the 
Easement from CSXT to Bay Colony, Bay Colony would thereafter be 
operating the Millis Industrial Track pursuant to the Easement. (Bay 
Colony Pet. 4, Bay Colony R.R.--Acquis. & Operation of Rail Line--in 
Norfolk Cnty., Mass., FD 36746.)
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    In response to the first question from the December 2023 Decision, 
Bay Colony states that, with respect to the Millis Industrial Track, it 
is seeking after-the-fact authority to acquire the Easement and to 
operate pursuant to the Operating Agreement. (Id. at 8.) Bay Colony 
argues that if it is granted the requested authority, the question of 
whether it was required to obtain authority to acquire the Easement 
will be moot and Mass Coastal will be able to obtain authority under 49 
U.S.C. 10902 to acquire the Easement and assume common carrier 
operations over the Millis Industrial Track. (Id.) As to the Remaining 
Dover Secondary Track, Bay Colony argues that it continues to have a 
valid modified certificate for that track and therefore does not need 
additional authority from the Board to operate over it. (Id.) However, 
Bay Colony does request that, if necessary, the Board confirm the 
redesignated endpoint of the Remaining Dover Secondary Track as 
milepost 7.3. (Id.) Bay Colony asserts that, after it obtains the 
required after-the-fact authorities, Mass Coastal should be able to 
obtain authority to operate the Remaining Dover Secondary Track under a 
modified certificate or a common carrier certificate, under 49 CFR 
1150.21, through an assignment of the Operating Agreement. (Id.)
    In response to the second question posed in the December 2023 
Decision, Bay Colony notes that the Board was never called upon to rule 
on the appropriateness of the 1987 Modified Certificate in Docket No. 
FD 34698, and it asserts that the arguments it made about the 1987 
Modified Certificate were mooted when it withdrew its petition for 
declaratory order in that proceeding. (Id.) Bay Colony argues that 
because the ICC issued the 1987 Modified Certificate based on a 
complete and accurate presentation of the facts there is no reason for 
the Board to revisit the issue here. (Id.) Bay Colony also states that 
the arguments it made in Docket No. FD 34698 only applied to the Millis 
Industrial Track, not to the Remaining Dover Secondary Track. (Id.) Bay 
Colony also asserts that MBTA never acquired--and does not currently 
have--a common carrier obligation on the Millis Industrial Track or the 
Dover Secondary Track. (Id. at 2, 9-10.)
    Regarding the third question from the December 2023 Decision, Bay 
Colony clarifies that the Easement covers only the Millis Industrial 
Track, not the Remaining Dover Secondary Track. (Id. at 10.) Bay Colony 
also clarifies that the Operating Agreement originally covered the 
entire Dover Secondary Track, until Bay Colony's partial termination of 
service, and that it continues to cover the Remaining Dover Secondary 
Track in addition to the Millis Industrial Track. (Id. at 4, 10.)

Mass Coastal's Petition for Exemption

    In its present petition, Mass Coastal seeks an exemption from the 
prior approval requirements of 49 U.S.C. 10902 to acquire the Line from 
Bay Colony and operate it.\9\ (Mass Coastal Pet. 7-10, Mass. Coastal 
R.R.--Acquis. & Operation Exemption--Bay Colony R.R., FD 36747.) For 
the Millis Industrial Track, Mass Coastal seeks authority to acquire by 
assignment the Easement and the Operating Agreement. (Id. at 8.) As to 
the Remaining Dover Secondary Track, Mass Coastal states that, by 
assignment of the Operating Agreement, it would have the right to 
operate under the 1982 Modified Certificate. (Id.) However, Mass 
Coastal states that it is seeking to operate the Remaining Dover 
Secondary Track under an exemption from 49 U.S.C. 10902, which Mass 
Coastal argues is permitted under 49 CFR 1150.21. (Mass Coastal Pet. 8, 
Mass. Coastal R.R.--Acquis. & Operation Exemption--Bay Colony R.R., FD 
36747.)
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    \9\ Mass Coastal notes that its request is contingent upon the 
Board's granting Bay Colony's petition for exemption in Docket No. 
FD 36746.
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    Request for Expedited Consideration. Bay Colony and Mass Coastal 
request that the Board consider the petitions on an expedited basis and 
allow the exemptions to become effective upon the Board's issuance of a 
decision. (See Bay Colony Pet. 15-16, Bay Colony R.R.--Acquis. & 
Operation of Rail Line--in Norfolk Cnty., Mass., FD 36746; Mass Coastal 
Pet. 12-13, Mass. Coastal R.R.--Acquis. & Operation Exemption--Bay 
Colony R.R., FD 36747.) Bay Colony and Mass Coastal explain that they 
anticipated consummating the assignment of the Easement and Operating 
Agreement to Mass Coastal, the authority originally requested in the 
verified notice in Docket No. FD 36738, on or about December 18, 2023. 
(Bay Colony Pet. 15, Bay Colony R.R.--Acquis. & Operation of Rail 
Line--in Norfolk Cnty., Mass., FD 36746; Mass Coastal Pet. 12, Mass. 
Coastal R.R.--Acquis. & Operation Exemption--Bay Colony R.R., FD 
36747.) Bay Colony and Mass Coastal state that they intend to complete 
the transaction once the issues raised in the December 2023 Decision 
have been addressed and the Board has granted the petitions, and they 
note that Mass Coastal was able to extend its financing

[[Page 52197]]

for the transaction for a limited period of time. (Bay Colony Pet. 15-
16, Bay Colony R.R.--Acquis. & Operation of Rail Line--in Norfolk 
Cnty., Mass., FD 36746; Mass Coastal Pet. 12, Mass. Coastal R.R.--
Acquis. & Operation Exemption--Bay Colony R.R., FD 36747.)

Discussion and Conclusions

Bay Colony's Petition for Exemption

    Millis Industrial Track. Under 49 U.S.C. 10902, a Class III rail 
carrier may not acquire a rail line without the prior approval of the 
Board. However, under 49 U.S.C. 10502(a), the Board must, to the 
maximum extent consistent with 49 U.S.C. subtitle IV, part A, exempt a 
transaction or service from regulation upon finding that: (1) 
regulation is not necessary to carry out the RTP; and (2) either (a) 
the transaction or service is of limited scope, or (b) regulation is 
not needed to protect shippers from the abuse of market power.
    The Board finds that an exemption from the prior approval 
requirements of 49 U.S.C. 10902 for Bay Colony's acquisition of the 
Easement and operation of the Millis Industrial Track under the 
Operating Agreement is consistent with 49 U.S.C. 10502(a). Detailed 
scrutiny of this transaction is not necessary to carry out the RTP. An 
exemption from the application process would promote the RTP by 
minimizing the need for Federal regulatory control over the 
transaction, ensuring the development and continuation of a sound rail 
transportation system able to compete with other modes of 
transportation and meet the needs of the public, reducing regulatory 
barriers to entry and exit from the industry, and providing for the 
expeditious handling and resolution of proceedings. See 49 U.S.C. 
10101(2), (4), (7), (15). Other aspects of the RTP will not be 
adversely affected.
    Regulation of this transaction is also not needed to protect 
shippers from the abuse of market power. The record reflects that Bay 
Colony has been providing service on the Millis Industrial Track 
pursuant to the 1987 Modified Certificate since 1987, and the Board 
finds that granting Bay Colony the requested after-the-fact authority 
to acquire the Easement and operate the Millis Industrial Track will 
not adversely affect any customers or the public. In addition, granting 
the requested exemption will, in turn, allow Bay Colony to assign the 
Easement and Operating Agreement to Mass Coastal, which will facilitate 
continued common carrier service. Given this market power finding, the 
Board need not determine whether the proposed transaction is limited in 
scope.
    Under 49 U.S.C. 10502(g), the Board may not use its exemption 
authority to relieve a rail carrier of its obligation to protect the 
interests of its employees. Section 10902(d), however, precludes the 
Board from imposing labor protection for Class III carriers receiving 
authority under 49 U.S.C. 10902. Accordingly, the Board may not impose 
labor protective conditions here because Bay Colony is a Class III 
carrier.
    Under 49 CFR 1105.6(c)(1), this action, which will not result in 
significant changes in carrier operations, is categorically excluded 
from environmental review. Similarly, under 49 CFR 1105.8(b)(1), no 
historic report is required because the subject transaction is for 
continued rail service, Bay Colony has indicated no plans to alter 
railroad properties 50 years old or older, and any future abandonment 
of the Millis Industrial Track would be subject to Board jurisdiction.
    Remaining Dover Secondary Track. Based on Bay Colony's 
representation that the Remaining Dover Secondary Track as currently 
measured ends at milepost 7.3 and has always been described as ending 
at Medfield Junction, where it connects with the Millis Industrial 
Track and with track now operated by CSXT, (see Bay Colony Pet. 5-6, 
Bay Colony R.R.--Acquis. & Operation of Rail Line--in Norfolk Cnty., 
Mass., FD 36746), the Board confirms that the Remaining Dover Secondary 
Track, between milepost 7.2 and milepost 7.3, remains subject to the 
1982 Modified Certificate.\10\
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    \10\ The ICC's decision authorizing Conrail to abandon the Dover 
Secondary Track described that track as between milepost 0.0 and 
milepost 7.3. See Conrail Aban. Between Chick & Cook St. & Needham 
Jct. & Medfield Jct., Mass., AB 167 (Sub-No. 353N) (ICC served June 
11, 1982).
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Mass Coastal's Petition for Exemption

    The Board finds that an exemption from the prior approval 
requirements of 49 U.S.C. 10902 for Mass Coastal's acquisition and 
operation of the Line is consistent with 49 U.S.C. 10502(a). Detailed 
scrutiny of this transaction is not necessary to carry out the RTP. An 
exemption from the application process would promote the RTP by 
minimizing the need for Federal regulatory control over the 
transaction, ensuring the development and continuation of a sound rail 
transportation system able to compete with other modes of 
transportation and meet the needs of the public, reducing regulatory 
barriers to entry and exit from the industry, and providing for the 
expeditious handling and resolution of proceedings. See 49 U.S.C. 
10101(2), (4), (7), (15). Other aspects of the RTP will not be 
adversely affected.
    Regulation of this transaction is also not needed to protect 
shippers from the abuse of market power. Granting the requested 
exemption will simply allow Mass Coastal to replace Bay Colony as the 
carrier providing service to shippers on the Line; the record reflects 
that no shipper will experience a reduction in rail service options. 
(See Mass Coastal Pet. 9, Mass. Coastal R.R.--Acquis. & Operation 
Exemption--Bay Colony R.R., FD 36747.) Given this market power finding, 
the Board need not determine whether the proposed transaction is 
limited in scope.
    Under 49 U.S.C. 10502(g), the Board may not use its exemption 
authority to relieve a rail carrier of its obligation to protect the 
interests of its employees. Section 10902(d), however, precludes the 
Board from imposing labor protection for Class III carriers receiving 
authority under 49 U.S.C. 10902. Accordingly, the Board may not impose 
labor protective conditions here because Mass Coastal is a Class III 
carrier.
    Under 49 CFR 1105.6(c)(1), this action, which will not result in 
significant changes in carrier operations, is categorically excluded 
from environmental review. Similarly, under 49 CFR 1105.8(b)(1), no 
historic report is required because the subject transaction is for 
continued rail service, Mass Coastal has indicated no plans to alter 
railroad properties 50 years old or older, and any future abandonment 
of the Line would be subject to Board jurisdiction.

Remaining Issues

    MBTA. The Board finds that MBTA does not have a common carrier 
obligation for either the Millis Industrial Track or the Remaining 
Dover Secondary Track. In its petition, Bay Colony recounts the history 
of the Dover Secondary Track and the Millis Industrial Track, which is 
the same history Bay Colony provided in notices for modified 
certificates of public convenience and necessity for the Dover 
Secondary Track \11\ and the Millis Industrial Track,\12\ in 1982 and 
1987, respectively. The ICC issued the 1982 Modified Certificate and 
the 1987 Modified Certificate under 49 CFR 1150 subpart C, which 
contains special rules that apply to state-owned lines that have been 
abandoned or approved for abandonment. Under 49 CFR 1150.22, if

[[Page 52198]]

the state intends to operate the line itself, it will be considered a 
common carrier. However, if the state contracts with an operator to 
provide service over the line, only the operator incurs a common 
carrier obligation. Id. Therefore, because MBTA has contracted with Bay 
Colony to provide service on the Dover Secondary Track and the Millis 
Industrial Track pursuant to the 1982 Modified Certificate and the 1987 
Modified Certificate, and because there is no indication that MBTA 
intended to provide service itself, or has ever provided service 
itself, MBTA does not have a common carrier obligation on any part of 
the Line.
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    \11\ See Bay Colony Notice 7-8, June 11, 1982, Bay Colony R.R.--
Modified Rail Certificate, FD 29963.
    \12\ See Bay Colony Notice 3, Sept. 2, 1987, Bay Colony R.R.--
Modified Rail Certificate, FD 29963.
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    Expedited Consideration and Effective Date. As described above, in 
requesting expedited consideration, Bay Colony and Mass Coastal request 
that any Board authority granted to them be effective upon issuance of 
the Board's decision. This request is reasonable under the 
circumstances. Accordingly, the exemptions will be effective on the 
date that this decision is published in the Federal Register.
    Relatedly, the Board's regulations require Bay Colony to provide 
appropriate parties with 60 days' notice of a planned termination of 
modified certificate operations. See 49 CFR 1150.24. Bay Colony shall 
provide notice of its termination of modified certificate operations on 
the Line to the appropriate parties, and to the Board in Docket No. FD 
29963. The notice also shall indicate that Mass Coastal will now be 
providing common carrier service on the Line. To allow Mass Coastal to 
begin providing the common carrier service authorized in this decision, 
the Board will, on its own motion, waive the 60-day advance notice 
requirement under 49 CFR 1150.24, and will instead require only seven 
days' notice.
    It is ordered:
    1. In Docket No. FD 36746, under 49 U.S.C. 10502, the Board exempts 
Bay Colony's acquisition of the Easement and operation of the Millis 
Industrial Track from the prior approval requirements of 49 U.S.C. 
10902, as explained above.
    2. In Docket No. FD 36746, the Board confirms that the Remaining 
Dover Secondary Track, between milepost 7.2 and milepost 7.3, remains 
subject to the 1982 Modified Certificate, as explained above.
    3. In Docket No. FD 36747, under 49 U.S.C. 10502, the Board exempts 
Mass Coastal's acquisition and operation of the Line from the prior 
approval requirements of 49 U.S.C. 10902, as explained above.
    4. Bay Colony shall provide notice pursuant to 49 CFR 1150.24 of 
its termination of modified certificate operations on the Line to the 
appropriate parties, and to the Board in Docket No. FD 29963.
    5. The 60-day advance notice requirement under 49 CFR 1150.24 is 
waived, as explained above. Instead, Bay Colony must provide the notice 
required by 49 CFR 1150.24 at least seven days in advance of the 
planned termination.
    6. Notice of the exemptions will be published in the Federal 
Register.
    7. The exemptions will be effective on June 21, 2024. Petitions for 
reconsideration must be filed by July 11, 2024.

    Decided: June 14, 2024.

    By the Board, Board Members Fuchs, Hedlund, Primus, and Schultz.
Brendetta Jones,
Clearance Clerk.
[FR Doc. 2024-13671 Filed 6-20-24; 8:45 am]
BILLING CODE 4915-01-P