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American Chemistry Council, The Chlorine Institute, Inc., the Fertilizer Institute, and PPG Industries, Inc. v. Alabama Gulf Coast Railway and RailAmerica, Inc.; CF Industries, Inc. v. Indiana & Ohio Railway, the Point Comfort and Northern Railway, and the Michigan Shore Railroad-Petition for Declaratory Order

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Surface Transportation Board, DOT.


Institution of declaratory order proceeding; request for comments.


In response to a petition filed by CF Industries, Inc. (CF) on May 17, 2011, the Board is instituting a declaratory order proceeding under 49 U.S.C. 721 and 5 U.S.C. 554(e). CF requests that the Board declare invalid and unenforceable certain tariffs addressing the movement of Toxic-by-Inhalation Hazardous materials and Poison-by-Inhalation Hazardous materials (TIH/PIH) issued by 3 subsidiaries of RailAmerica, Inc. (RailAmerica): The Indiana & Ohio Railway Company, the Point Comfort and Northern Railway Company and the Michigan Shore Railroad, Inc. (collectively, the RailAmerica railroads). This proceeding will also develop the record with respect to a complaint filed by another shipper and several trade associations in Docket No. NOR 42129, which raises similar issues regarding the handling of TIH/PIH by another RailAmerica subsidiary.[1] The Board seeks public comment on the issues raised in both cases.


Any person who wishes to participate in this proceeding as a party of record (POR) must file, no later than October 17, 2011, a notice of intent to participate. Discovery will close on November 29, 2011. Opening evidence and argument from all PORs is due on January 13, 2012. Reply evidence and argument from all PORs is due on February 27, 2012. Rebuttal evidence and argument from all PORs is due on March 13, 2012.


Any filing submitted in this proceeding must be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's Web site, at Any person submitting a filing in the traditional paper format should send an original and 10 copies (and also an electronic version), referring Docket No. FD 35517, to: Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, 1 copy of each filing in this proceeding must be sent (and may be sent by e-mail if service by e-mail is acceptable to the recipient) to each of the following (1) Patrick E. Groomes, Fulbright & Jaworski, L.L.P., 801 Pennsylvania Avenue, NW., Washington, DC 20004-2623, (representing CF); (2) Louis E. Gitomer, Law Offices of Louis E. Gitomer, 600 Baltimore Avenue, Suite 301, Towson, MD 21204, (representing the RailAmerica railroads and the defendants in Docket No. NOR 42129); (3) Paul M. Donovan, LaRoe, Winn, Moerman & Donovan, 1250 Connecticut Avenue, NW., Suite 200, Washington, DC 20036, (representing the complainants in Docket No. NOR 42129); (4) Jeffrey O. Moreno, Thompson Hine LLP, 1920 N Street, NW., Washington, DC 20036, (representing TFI); and (5) any other person designated as a POR on the service-list notice (as explained in the Board's decision served on September 30, 2011, in Docket Nos. FD 35517 and NOR 42129 [2] ).

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Julia Farr, (202) 245-0359.

Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at: 1-800-877-8339.

Copies of written comments will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site.

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CF and the NOR 42129 complainants challenge certain requirements for rail transportation of TIH/PIH promulgated by RailAmerica and several of its railroad subsidiaries. Under 5 U.S.C. 554(e), the Board has discretionary authority to issue a declaratory order to terminate a controversy or remove uncertainty. A declaratory order proceeding is thus instituted in this docket to invite broad public comment on the issues raised in Docket Nos. FD 35517 and NOR 42129. Any person seeking to comment on CF's petition in Docket No. FD 35517 or the complaint in Docket No. NOR 42129 may submit written comments to the Board (pursuant to the schedule and procedures set forth in this notice) regarding the reasonableness of the challenged TIH/PIH transportation requirements. For further information, please see the Board's decision served on September 30, 2011, in Docket Nos. FD 35517 and NOR 42129.

Board decisions and notices are available on our Web site at

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Decided: September 28, 2011.

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

Jeffrey Herzig,

Clearance Clerk.

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1.  In Docket No. NOR 42129, the complainants are American Chemistry Council, The Chlorine Institute, Inc., The Fertilizer Institute (TFI), and PPG Industries, Inc. (collectively, the NOR 42129 complainants), and the defendants are Alabama Gulf Coast Railway LLC and RailAmerica (collectively, the NOR 42129 defendants).

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2.  The service-list notice will be issued as soon after October 17, 2011, as practicable.

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[FR Doc. 2011-25848 Filed 10-5-11; 8:45 am]