[Federal Register Volume 75, Number 214 (Friday, November 5, 2010)]
[Notices]
[Pages 68401-68402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27993]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Docket No. FD 35436]
Duncan Smith and Gerald Altizer--Continuance in Control
Exemption--Eighteen Thirty Group, LLC and Georges Creek Railway, LLC
Duncan Smith and Gerald Altizer (collectively applicants),
noncarrier individuals, have filed a verified notice of exemption to
continue in control of Eighteen Thirty Group, LLC (Eighteen Thirty) and
Georges Creek Railway, LLC (Georges Creek), upon Eighteen Thirty and
Georges Creek becoming Class III rail carriers. Mr. Smith owns 80% of
Eighteen Thirty and 75% of Georges Creek. Mr. Altizer owns a 20%
interest in each company and will manage the operations of Georges
Creek.\1\ Applicants do not currently control any other rail carriers.
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\1\ The remaining 5% interest in Georges Creek is owned by
Patrick Stakem.
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This transaction is related to two simultaneously filed notices of
exemption: (1) Docket No. FD 35437, Georges Creek Railway, LLC--
Operation Exemption--in Allegany County, Md., in which Georges Creek
seeks an exemption under 49 CFR 1150.31 to operate an 8.54-mile line of
railroad between milepost BAI 27.0 near Morrison and milepost BAI 18.46
at the end of the track near Carlos, in Allegany County, Md., (the
Line); and (2) Docket No. FD 35438, Eighteen Thirty Group, LLC--
Acquisition Exemption--in Allegany County, Md., in which Eighteen
Thirty seeks an exemption under 49 CFR 1150.31 to acquire the Line
pursuant to its agreement with Mark J. Friedman, Chapter 7 Trustee of
the Bankruptcy Estate of James Riffin.\2\
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\2\ The Board authorized abandonment of the Line in CSX
Transportation, Inc.--Abandonment Exemption--in Allegany County,
Md., AB 55 (Sub-No. 659X) (STB served Aug. 25, 2005). By decision
served December 14, 2005, WMS, LLC (WMS) was authorized to acquire
the Line pursuant to the Board's offer of financial assistance (OFA)
provisions at 49 U.S.C. 10904 and 49 CFR 1152.27, and by decision
served August 18, 2006, James Riffin was substituted as the
acquiring entity in lieu of WMS.
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This transaction is also related a petition simultaneously filed by
Eighteen Thirty in Docket No. AB 55 (Sub-No. 659X), CSX Transportation,
Inc.--Abandonment Exemption--in Allegany County, Md., seeking an
exemption under 49 U.S.C. 10502 and from the OFA requirements of 49
U.S.C. 10904(f)(4)(A). The latter provision forbids an entity that has
acquired a rail line under the OFA process from transferring that line
to any entity other than the abandoning rail carrier from which it was
originally purchased prior to the end of the fifth year after
consummation of the sale.\3\
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\3\ Eighteen Thirty has attached a letter from CSXT stating that
it issued the deed for the sale of the Line on July 10, 2006, but
that it will not exercise it statutory right to reacquire the Line
and that it waives its rights under the statute.
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The transaction is scheduled to be consummated no sooner than
November 18, 2010, the effective date of the exemption (30 days after
the exemption was filed).\4\
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\4\ Applicants state that consummation of this transaction is
dependent upon bankruptcy court approval of the acquisition of the
Line by Eighteen Thirty, a process likely to take up to 60 days.
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Applicants state that: (1) Because Eighteen Thirty will be a non-
operating carrier, the railroads will not connect with each other; (2)
the continuance in control is not part of a series of anticipated
transactions that would connect these railroads with one another or any
other railroad in their corporate family; and (3) the transaction does
not involve a Class I rail carrier. Therefore, the transaction is
exempt from the prior approval requirements of 49 U.S.C. 11323. See 49
CFR 1180.2(d)(2).
Under 49 U.S.C. 10502(g), the Board may not use its exemption
authority to relieve a rail carrier of its statutory obligation to
protect the interests of its employees. Section 11326(c), however, does
not provide for labor protection for transactions under Sec. Sec.
11324 and 11325 that involve only Class III rail carriers. Accordingly,
the Board may not impose labor protective conditions here, because all
of the carriers involved are Class III carriers.
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 effectiveness of the
exemption. Petitions to stay must be filed no later than November 10,
2010 (at least 7 days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to FD 35436,
must be filed with the Surface Transportation Board, 395 E Street, SW.,
Washington, DC 20423-0001. In addition, one copy of each pleading must
be served on John D. Heffner, PLLC, 1750 K Street, NW., Suite 200,
Washington, DC 20006.
Board decisions and notices are available on our Web site at http://www.stb.dot.gov.
Decided: November 1, 2010.
[[Page 68402]]
By the Board, Rachel D. Campbell, Director, Office of
Proceedings.
Andrea Pope-Matheson,
Clearance Clerk.
[FR Doc. 2010-27993 Filed 11-4-10; 8:45 am]
BILLING CODE 4915-01-P