[Federal Register Volume 78, Number 132 (Wednesday, July 10, 2013)]
[Notices]
[Page 41497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16549]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Docket No. FD 35749]


Boston and Maine Corporation and Springfield Terminal Railroad 
Company--Petition for Declaratory Order

    The Boston and Maine Corporation and Springfield Terminal Railway 
Company (collectively, Pan Am), filed a petition for declaratory order 
on July 1, 2013 (Petition), requesting that the Board declare that 49 
U.S.C. 10501(b) preempts actions taken by the Town of Winchester (the 
Town) to ban certain rail transportation conducted by Pan Am. For the 
reasons discussed below, a declaratory order proceeding will be 
instituted and an expedited procedural schedule will be adopted.
    The Petition requests that the Board find that the Town is 
preempted from enforcing a zoning decision and an order, each of which 
would prevent Pan Am from providing freight rail transportation to a 
warehouse in the Town. According to Pan Am, it provides common carrier 
rail transportation to the warehouse, through the Montvale Yard, on 
behalf of shippers, and it holds out this transportation service to the 
public. The zoning decision states that the Montvale Yard ``is being 
used as a freight yard which is not allowed'' pursuant to municipal 
zoning laws.\1\ The order requires all rail traffic to the warehouse 
``to immediately cease and desist.'' \2\
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    \1\ Pet., Ex. B at 2.
    \2\ Id. at 4 (Amended Decision After Remand).
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    The Board has discretionary authority under 5 U.S.C. 554(e) and 49 
U.S.C. 721 to issue a declaratory order to eliminate a controversy or 
remove uncertainty. Here, a controversy exists as to whether 
enforcement of the Town's zoning laws is preempted under 49 U.S.C. 
10501(b). Therefore, a declaratory order proceeding will be instituted, 
and the Board will consider this matter under the modified procedure 
rules at 49 CFR pt. 1112.
    Pan Am states that the Town has announced plans to seek a state 
court injunction to enforce its cease and desist order, with a hearing 
on the motion to be set for the week of July 22, 2013. Pan Am further 
states that the Town rejected a request to hold state court proceedings 
in abeyance to allow Pan Am's Petition to be considered by the Board. 
In a letter filed July 3, 2013, the Town indicates that it will reply 
to the Petition on or before July 22 and asserts that ``there is no 
emergency requiring the Board's immediate action'' because no petition 
for a temporary restraining order or preliminary injunction ``as yet 
has been filed'' with the state court. But there remains a cease and 
desist order issued by the Town that purports to ban all rail 
transportation to the warehouse. Moreover, the Town does not dispute 
Pan Am's assertion that the Town had announced plans to seek state 
court action on the schedule Pan Am claims, nor does it commit to 
refraining from these actions or consenting to abeyance of the state 
court proceedings. Therefore, an expedited procedural schedule will be 
adopted, with replies to the Petition due by July 10, 2013.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. A declaratory order proceeding is instituted.
    2. Replies to the Petition are due by July 10, 2013.
    3. This decision is effective on its service date.

    Decided: July 3, 2013.

    By the Board, Rachel D. Campbell, Director, Office of 
Proceedings.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2013-16549 Filed 7-9-13; 8:45 am]
BILLING CODE 4915-01-P