2015-29794. Indiana Southern Railroad, LLC-Temporary Trackage Rights Exemption-Norfolk Southern Railway Company

By petition filed on October 5, 2015, Indiana Southern Railroad, LLC (ISRR), requests that the Board partially revoke the trackage rights class exemption, 49 CFR 1180.2(d)(7), as it pertains to the trackage rights arrangement exempted in Docket No. FD 35965, to permit those trackage rights to expire on January 1, 2020.

ISRR states that the temporary trackage rights agreement (Agreement) between ISSR and Norfolk Southern Railway Company (NS) exempted in Docket No. FD 35965 is intended to grant ISRR limited overhead temporary trackage rights to operate over and provide rail service to one customer on a portion of NS's rail line between milepost 0.8 EJ at Oakland City Junction, Ind., and milepost 4.8 EJ at Enosville, Ind. Notice of the exemption in FD 35965 was served and published in the Federal Register on October 21, 2015 (80 FR 63871). The transaction may be consummated on or after November 4, 2015, the effective date of ISSR's exemption.

Discussion and Conclusions

Although ISRR and NS have expressly agreed on the duration of the proposed Agreement, trackage rights approved under the class exemption at 49 CFR 1180.2(d)(7) typically remain effective indefinitely, regardless of any contract provisions. Occasionally, however, trackage rights exemptions have been granted for a limited time period rather than in perpetuity. See, e.g., Union Pac. R.R.—Trackage Rights Exemption—Burlington N. & Santa Fe Ry., FD 34242 (Sub-No. 1) (STB served Oct. 7, 2002).

Under 49 U.S.C. 10502, the Board may exempt a person, class of persons, or a transaction or service, in whole or in part, when it finds that: (1) Continued regulation is not necessary to carry out the rail transportation policy of 49 U.S.C. 10101; and (2) either the transaction or service is of limited scope, or regulation is not necessary to protect shippers from the abuse of market power.

ISRR's temporary trackage rights were already authorized under the class exemption at 49 CFR 1180.2(d)(7). Granting partial revocation in these circumstances will promote the rail transportation policy by eliminating the need to file a second pleading seeking discontinuance when the agreement expires, thereby promoting rail transportation policy goals at 49 U.S.C. 10101(2), (4), (5), (7), and (15). Moreover, limiting the term of the trackage rights is consistent with the limited scope of the transaction previously exempted. Therefore, we will grant the petition and permit the trackage rights exempted in Docket No. FD 35965 to expire on January 1, 2020.

To provide the statutorily mandated protection to any employee adversely affected by the discontinuance of trackage rights, we will impose the employee protective conditions set forth in Oregon Short Line Railroad—Abandonment Portion Goshen Branch Between Firth & Ammon, in Bingham & Bonneville Counties, Idaho (Oregon Short Line), 360 I.C.C. 91 (1979).

It is ordered:

1. The petition for partial revocation is granted.

2. Under 49 U.S.C. 10502, the trackage rights described in Docket No. FD 35965 are exempted, as discussed above, to permit the trackage rights to expire on January 1, 2020, subject to the employee protective conditions set forth in Oregon Short Line.

3. Notice will be published in the Federal Register on November 23, 2015.

4. This decision is effective on December 23, 2015. Petitions to stay must be filed by December 3, 2015. Petitions for reconsideration must be filed by December 14, 2015.

Decided: November 17, 2015.

By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Miller.

Kenyatta Clay,

Clearance Clerk.