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Daily Rules, Proposed Rules, and Notices of the Federal Government

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 (NYSW), 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 NYSW of approximately 0.95 miles of track and right-of-way and the exchange of non-exclusive overhead trackage rights between CP and NYSW.1

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 NYSW 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 NYSW'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 NYSW intends, and is better positioned, to repair, rehabilitate, and upgrade the trackage so the parties may ultimately resume operations over this segment.

(2) NYSW will grant CP non-exclusive overhead trackage rights to operate over trackage owned by NYSW 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. NYSW 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 NYSW access to its freight yard. NYSW will continue to operate over these segments.

(3) CP will grant NYSW 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 NYSW to use CP's Bevier Street Yard for operations unrelated to interchange with CP and to operate on CP's Binghamton Runner between NYSW's Syracuse and Utica Branch on the north, NYSW's Binghamton Yard,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 NYSW 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 NYSW 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 Detroitv.Canadian National Ry. Co., et al., 9 I.C.C.2d 1208 (1993),aff'd sub nom. Detroit/Wayne County Port Authorityv.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 inNorfolk and Western Ry. Co.--Trackage Rights--BN,354 I.C.C. 605 (1978), as modified inMendocino 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 voidab 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 athttp://www.stb.dot.gov.

By the Board, David M. Konschnik, Director, Office of Proceedings.
Kulunie L. Cannon, Clearance Clerk.
ACTION: 2NYSW'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.