[Federal Register Volume 64, Number 90 (Tuesday, May 11, 1999)]
[Notices]
[Pages 25392-25394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11877]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board
[STB Finance Docket No. 33685]


Coach USA, Inc.--Petition for Exemption--Intra-Corporate Family 
Merger and Consolidation Transactions

AGENCY: Surface Transportation Board, DOT.


[[Page 25393]]


ACTION: Request for comments.

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SUMMARY: The Surface Transportation Board (Board) is seeking comments 
on a petition by Coach USA, Inc. (Coach) to be exempted from 49 U.S.C. 
14303 and the regulations at 49 CFR part 1182 concerning the merger or 
consolidation of motor carriers of passengers controlled by Coach.

DATES: Comments are due on June 10, 1999.

FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 565-1600. [TDD for 
the hearing impaired: (202) 565-1695.]

SUPPLEMENTARY INFORMATION: Coach has filed a petition for exemption 
requesting that it be exempted from the prior approval requirements of 
section 14303 for mergers or consolidations of motor carriers of 
passengers Coach already controls. Under its proposal, Coach would file 
a notice similar to the one applicable for class exemptions for 
railroad intra-corporate family transactions that do not result in 
significant operational changes, adverse changes in service levels, or 
a change in the competitive balance with carriers outside the corporate 
family. See 49 CFR 1180.2(d)(3) and 1180.4(g).
    When the petition was filed, Coach, a noncarrier holding company, 
stated that it controlled, inter alia, 73 motor carriers of passengers 
subject to federal regulation (Operating Carriers). Coach states its 
plans to transfer direct control of the Operating Carriers to several 
new, wholly owned, primarily regionally-based subsidiaries (Management 
Companies), which would manage closely the Operating Carriers assigned 
to them. 1 As relevant here, each Management Company 
evidently would examine the Operating Carriers it controls to determine 
whether consolidations, mergers or other intra-family corporate 
transactions involving these carriers are warranted.
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    \1\  Tentative approval has been given to these applications. 
See Coach USA, Inc., and Coach USA North Central, Inc.--Control--
Nine Motor Passenger Carriers, STB Docket No. MC-F-20931; Coach USA, 
Inc., and Coach USA Northeast, Inc.--Control--30 Motor Passenger 
Carriers, STB Docket No. MC-F-20932; Coach USA, Inc., and Coach USA 
South Central, Inc.--Control--Eight Motor Passenger Carriers, STB 
Docket No. MC-F-20933; Coach USA, Inc., and Coach USA Southeast, 
Inc.--Control--Seven Motor Passenger Carriers, STB Docket No. MC-F-
20934; Coach USA, Inc., and Coach USA West, Inc.--Control--14 Motor 
Passenger Carriers STB Docket No. MC-F-20935; Coach USA, Inc., and 
Yellow Cab Service Corporation--Control--Four Motor Passenger 
Carriers, STB Docket No. MC-F-20936 (STB served Nov. 19, 1998); and 
Coach USA, Inc. and Coach Canada, Inc.--Control and Continuance in 
Control--Autocar Connaisseur, Inc., Erie Coach Lines Company, and 
Trentway-Wagar, Inc., STB Docket No. MC-F-20938 (STB served Dec. 17, 
1998).
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    Coach asserts that there are currently two procedures available for 
seeking Board approval for mergers/consolidations. First, Coach can 
file an application under 49 CFR part 1182 for merger authority. Under 
this procedure, an accepted application will be published in the 
Federal Register within 30 days of filing as a tentative grant of 
authority, with comments due within 45 days. 2 If no adverse 
comments are timely filed, the tentative grant becomes effective 
automatically. If opposing comments are filed, the applicant can reply 
within 60 days of the filing of the application. The Board will then 
determine whether to issue a decision on the record developed or to 
receive more evidence before issuing a decision. 3
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    \2\  A tentative grant does not give the applicant the right to 
consummate the transaction before the end of the comment period. 49 
CFR 1182.5(a).
    \3\  Under the statute, evidentiary proceedings are to be 
concluded within 240 days of publication of the application. The 
Board must issue a decision within 180 days after the close of the 
evidence. Time periods may be extended, in total, for up to 90 days. 
49 U.S.C. 14303(e).
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    In the alternative, a party can file a petition for exemption under 
49 U.S.C. 13541 seeking an individual exemption from the prior approval 
requirements of 49 U.S.C. 14303 for the merger or consolidation. Coach 
argues that these proceedings take 3 or 4 months from the filing of the 
petition to complete. We have indicated that we would normally process 
exemptions as we do applications: we would publish the exemption 
request within 30 days of filing, and, after the comment period had 
expired, we would issue a decision on the merits of the petition. See 
Revision to Regulations Governing Finance Applications Involving Motor 
Passenger Carriers, STB Ex Parte No. 559 (STB served July 8, 1997) at 
6. 4
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    \4\  This option is made possible by the ICC Termination Act of 
1995, Pub. L. 104-88, 109 Stat. 803 (1995) (ICCTA). Under former 49 
U.S.C. 11343(e), the Interstate Commerce Commission could only grant 
exemptions for finance transactions involving motor carriers of 
property. Id. at 6, n.10.
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    Coach contends that, under present procedures, it takes a minimum 
of two and one half months to be approved or exempted: ``During this 
hiatus, the transaction could not be consummated and the benefits that 
would have accrued from the merger or consolidation would not be 
available to the traveling public or the merged/consolidated entity.'' 
Petition at 2.
    Coach proposes that the exemption for Coach intra-corporate family 
transactions would be similar to the rail exemption for intra-corporate 
family transactions. Coach and/or one of its subsidiaries would file a 
verified notice of exemption with the Board for the merger or 
consolidation of at least two Coach-controlled carriers, which could be 
consummated no sooner than 7 days after the filing of the notice. 
Included in the notice would be a summary of the transaction and the 
purpose of the transaction, of any contracts being entered into 
concerning the transaction, and of the effects, if any, on employees. A 
copy of the notice would be sent simultaneously to the Federal Highway 
Administration (FHWA) 5 and, when the carriers provide 
intrastate service, to the applicable state regulatory body. Coach 
proposes that the Board would publish the notice of exemption in the 
Federal Register within 30 days of filing. Coach also proposes that, if 
the notice contains false or misleading information that is brought to 
our attention, we could revoke the exemption and order divestiture. 
Coach also submits that petitions for revocation could be filed at any 
time pursuant to 49 U.S.C. 13541(d).6
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    \5\ Also, approval from FHWA, if needed, for any transfer of 
operating authorities, would be sought.
    \6\ This provision states that the Board ``may revoke an 
exemption . . . on finding that the application of a provision . . . 
is necessary to carry out the transportation policy of section 
13101.''
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    Coach notes that, under 49 U.S.C. 13541(a), the Board must exempt a 
transaction or service from regulation when we find that: (1) 
Regulation is not necessary to carry out the transportation policy of 
49 U.S.C. 13101; (2) either (a) regulation is not necessary to protect 
shippers from the abuse of market power, or (b) the transaction or 
service is of limited scope; and (3) exemption is in the public 
interest.
    Transportation Policy. Coach claims that the operational and 
efficiency advantages of its intra-corporate merger/consolidation 
transactions will further the transportation policy goals of 49 U.S.C. 
13101(a)(2). The benefits of these transactions ``include consolidated 
management, streamlined operational procedures, elimination of 
redundancies and better coordinated planning, safety and other 
management services that will enable the companies to operate more 
economically and efficiently * * *'' Id. at 10. Coach also maintains 
that granting an exemption will produce expeditious decisions, 
enhancing the efficiency of regulation, and is thus consistent with 49 
U.S.C. 13101(a)(2)(B).
    Abuse of Market Power. Coach argues that there will be no risk of 
an abuse of market power from the intra-corporate family transactions, 
because they will not reduce competition: ``None of the Operating 
Carriers today competes to any significant degree, if at all, with any 
of the other Operating Carriers.'' Id. at

[[Page 25394]]

11. These companies allegedly face significant competition from other 
bus carriers, private cars, and other modes of transportation. Coach 
contends that the Board has already approved Coach mergers in 
connection with control transactions.7 Finally, Coach 
submits that competitive issues are more appropriately considered in a 
control proceeding because carriers under common control will be 
unlikely to compete with each other, than in a situation where the 
controlled carriers are seeking to merge for, according to Coach, 
``there should be no loss of competitive options available to the 
traveling public.'' Id. at 13 (citations omitted).
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    \7\ See Coach USA, Inc. and Leisure Time Tours-Control and 
Merger Exemption-Van Nortwick Bros., Inc, et al., STB Docket No. 
33428 (STB served Nov. 3, 1997) and Coach U.S.A., Inc. and K-T 
Contract Services, Inc.--Control and Merger Exemption--Gray Line 
Tours of Southern Nevada, STB Docket No. 33421 (STB served Dec. 4, 
1997).
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    Limited Scope. Coach contends that the proposed exemption is of 
limited scope because it involves carriers already under common 
control. Because, allegedly, the carriers share centralized management, 
the merger/consolidation ``transactions will accordingly be more 
focused on corporate form than on substantive operational changes.'' 
Id. at 14.
    Coach submits that most of the Operating Carriers it controls are 
relatively small. More than half of them have annual revenues of less 
than $8 million, few have annual revenues of more than $20 million, and 
most of the Operating Carriers have fleets of less than 75 buses. Coach 
argues that, consistent with the standards for rail intra-corporate 
family transactions at 49 CFR 1180.2(d)(3), in the merger or 
consolidation of its Operating Carriers ``there will be no adverse 
change in service levels, no significant operational changes that would 
adversely impact the traveling public and no diminution in the level of 
competitive service available to the public.'' Id. at 15.
    Public Interest. The exemption is in the public interest, according 
to Coach, because it will increase regulatory efficiency by reducing 
potentially burdensome regulatory practices. Such efficiency, Coach 
alleges, would save the resources of both petitioners and the Board.
    In addition to these stated regulatory benefits, Coach claims that 
there are also commercial reasons for determining that an exemption is 
in the public interest. By reducing from two and a half months to 7 
days the period for consummating a transaction after a filing, the 
period that the two merged companies are in limbo would be 
significantly reduced, lowering the danger that the petitioner will 
miss out on commercial opportunities for improving service. Coach also 
claims that, under an exemption, the public and the Operating Carriers 
would sooner enjoy the benefits of the intra-corporate family 
transaction. Finally, Coach asserts that reducing the regulatory 
waiting period will lessen uncertainty in vendors and passengers.

Discussion

    As Coach's petition raises issues of first impression, we are 
seeking comment on Coach's petition. Commenters should address whether 
an exemption for intra-corporate family transactions is warranted and, 
if so, whether it should be available solely to Coach.
    As a preliminary matter, we do not see how a class exemption could 
apply only to one party. If the exemption criteria are satisfied for 
Coach, they would also presumably apply to other parties, if any are 
similarly situated. Parties should address this issue.
    We also question whether the concerns raised by Coach cannot be 
addressed under our current rules at least in those cases where there 
is a demonstrated need for quick action by the Board. Under 49 U.S.C. 
14303(i), pending the Board's consideration of an application, we may 
grant interim approval to the operation of properties sought to be 
acquired for not more than 180 days ``when it appears that failure to 
do so may result in the destruction of or injury to those properties or 
substantially interfere with their future usefulness in providing 
adequate and continuous service to the public.'' See also 49 CFR 
1182.7. If the interim approval request is submitted when the 
application is filed, the Board will issue its decision with the notice 
accepting the application, i.e., within 30 days. Section 1182.7(d)(1). 
This is quicker than the two and one half months that Coach claims is 
too long and only 23 days longer than the effective date under Coach's 
proposal.
    Accordingly, commenters should address these issues, as well as the 
general issue of whether the exemption Coach proposes is in the public 
interest. Also, a copy of this request for comments will be served on 
the Department of Justice, Antitrust Division, 10th Street & 
Pennsylvania Avenue, NW., Washington, DC 20530.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    Decided: May 4, 1999.

    By the Board, Chairman Morgan, Vice Chairman Clyburn, and 
Commissioner Burkes.
Vernon A. Williams,
Secretary.
[FR Doc. 99-11877 Filed 5-10-99; 8:45 am]
BILLING CODE 4910-00-P