[Federal Register Volume 69, Number 122 (Friday, June 25, 2004)]
[Notices]
[Pages 35704-35709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14474]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 34495]


Buckingham Branch Railroad Company--Lease--CSX Transportation, 
Inc.

AGENCY: Surface Transportation Board, DOT.

ACTION: Decision No. 2 in STB Finance Docket No. 34495; Notice of 
Acceptance of Railroad Lease Application; Issuance of Procedural 
Schedule.

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SUMMARY: The Surface Transportation Board (Board) is accepting for 
consideration the BBRR-1/CSXT-1 application (referred to as the BBRR/

[[Page 35705]]

CSXT application) filed May 26, 2004, by Buckingham Branch Railroad 
Company (BBRR, a Class III railroad) and CSX Transportation, Inc. 
(CSXT, a Class I railroad) (BBRR and CSXT are referred to collectively 
as ``applicants'').\1\ The BBRR/CSXT application seeks Board approval 
and authorization under 49 U.S.C. 11321-26 for: (1) The lease by BBRR 
of an approximately 199.7-mile CSXT line (referred to as the C&O Line) 
that runs between Clifton Forge, VA, and AM Junction, VA (near 
Richmond, VA); and (2) the assumption by BBRR of CSXT's lease of a 9.1-
mile Norfolk Southern Railway Company (NS) line that runs between 
Gordonsville, VA, and Orange, VA (referred to as the Orange Line).\2\ 
The Board finds that the BBRR/CSXT transaction proposed in the BBRR/
CSXT application is a ``minor transaction'' under 49 CFR 1180.2(c), and 
the Board adopts, for the consideration of the BBRR/CSXT application, a 
163-day procedural schedule (under which the Board's final decision 
will be issued on November 5, 2004, the 163rd day after the day on 
which the application was filed).
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    \1\ The Board's regulations divide railroads into three classes 
based on annual carrier operating revenues. Class I railroads are 
those with annual carrier operating revenues of $250 million or more 
(in 1991 dollars); Class II railroads are those with annual carrier 
operating revenues of more than $20 million but less than $250 
million (in 1991 dollars); and Class III railroads are those with 
annual carrier operating revenues of $20 million or less (in 1991 
dollars). See 49 CFR part 1201, General Instruction 1-1(a).
    \2\ The 9.1-mile length of the Orange Line is included in the 
199.7-mile length of the C&O Line (i.e., the length of the C&O Line 
without the Orange Line would be 190.6 miles).

DATES: The effective date of this decision is June 25, 2004. Any person 
who wishes to participate in this proceeding as a party of record (POR) 
must file, no later than July 9, 2004, a notice of intent to 
participate. All comments, protests, requests for conditions, and any 
other evidence and argument in opposition to the BBRR/CSXT application, 
including filings by the U.S. Department of Justice (DOJ) and the U.S. 
Department of Transportation (DOT), must be filed by August 24, 2004. 
Responses to comments, protests, requests for conditions, and other 
opposition, and rebuttal in support of the BBRR/CSXT application must 
be filed by September 23, 2004. If a public hearing or oral argument is 
held, it will be held the week of October 4, 2004. The Board will issue 
its final decision on November 5, 2004. For further information 
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respecting dates, see Appendix A (Procedural Schedule).

ADDRESSES: 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 comply with the instructions 
found on the Board's http://www.stb.dot.gov Web site, at the ``E-
FILING'' link. Any person submitting a filing in the traditional paper 
format should send an original and 10 paper copies of the filing (and 
also an IBM-compatible floppy disk with any textual submission in any 
version of either Microsoft Word or WordPerfect) to: Surface 
Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In 
addition, one copy of each filing in this proceeding must be sent to 
each of the following (any such copy may be sent by e-mail, but only if 
service by e-mail is acceptable to the recipient): (1) Secretary of the 
United States Department of Transportation, 400 Seventh Street, SW., 
Washington, DC 20590; (2) Attorney General of the United States, c/o 
Assistant Attorney General, Antitrust Division, Room 3645, Department 
of Justice, Washington, DC 20530; (3) Keith G. O'Brien (BBRR's 
representative), Rea, Cross & Auchincloss, 1707 L Street, NW., Suite 
570, Washington, DC 20036; (4) Louis E. Gitomer (CSXT's 
representative), Ball Janik LLP, 1455 F Street, NW., Suite 225, 
Washington, DC 20005; and (5) any other person designated as a POR on 
the service list notice (as explained below, the service list notice 
will be issued as soon after July 9, 2004, as practicable).

FOR FURTHER INFORMATION CONTACT: Julia M. Farr, (202) 565-1655. 
(Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.)

SUPPLEMENTARY INFORMATION: Two CSXT rail lines cross Virginia in a 
generally east-west direction between Clifton Forge, in the west, and 
Richmond, in the east. The more northerly of the two lines is referred 
to as the C&O Line (the line that runs via Staunton, Waynesboro, and 
Charlottesville). The more southerly of the two lines is referred to as 
the James River Line (the line that runs via Lynchburg). The BBRR/CSXT 
application contemplates BBRR's lease of the C&O Line.
    BBRR owns and operates a 17-mile line of railroad that runs between 
Dillwyn, VA, and Bremo, VA, and connects with the James River Line at 
Bremo. The interchange between BBRR and CSXT is actually conducted at 
Strathmore, VA, a point on the James River Line located 2 miles west of 
Bremo. BBRR, which was founded in 1989, has increased freight traffic 
on its Dillwyn-Bremo Line from about 800 carloads per year in 1989 to 
2,400 carloads per year during BBRR's best year. BBRR now provides 
regular scheduled freight service 3 days per week and additional 
service as requested and needed by its customers. BBRR advises that the 
Commonwealth of Virginia's Rail Preservation Program as well as profits 
from operations have enabled BBRR to upgrade track and bridges on the 
Dillwyn-Bremo Line from Federal Railroad Administration (FRA) excepted 
classification to FRA class 1 track standards \3\ in preparation for a 
shipper that, when it locates, as anticipated, on the Dillwyn-Bremo 
Line, will ship 3,000 carloads per year via that line. BBRR adds that 
it owns and controls 5 locomotives (4 owned, 1 leased), 62 revenue 
service cars, 4 cabooses, and 11 pieces of self-propelled maintenance-
of-way equipment. In addition to rolling stock, BBRR owns a station 
house and general office building at Dillwyn, a slide table at Dillwyn 
Yard, and several pieces of equipment used to make intermodal transfers 
at two points on the Dillwyn-Bremo Line.
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    \3\ There are six classes of track typically applicable to rail 
transportation of freight under the FRA Track Safety Standards. An 
upgrade from excepted track to class 1, with a maximum allowable 
speed of 10 miles per hour, removes certain limitations on 
operations.
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    The BBRR/CSXT application contemplates the extension of BBRR's 
operations to CSXT's C&O Line (to which BBRR's Dillwyn-Bremo Line does 
not connect) and to NS's Orange Line (which branches off from the C&O 
Line at Gordonsville). The 199.7-mile C&O Line consists of: (1) The 
75.1-mile Piedmont Subdivision between AM Junction near Richmond (MP 
85.5) and Gordonsville (MP CA 160.6); (2) the 28.5-mile Washington 
Subdivision between Gordonsville (MP CA 160.6) and Charlottesville (MP 
CA 180), which includes NS's 9.1-mile Orange Line between Gordonsville 
(MP CAA 9.1) and South Orange (MP CAA 0.0); \4\ and (3) the 96.1-mile 
North Mountain Subdivision between Charlottesville (MP CA 180) and 
Clifton Forge (JD Cabin) (MP CA 276.1). The BBRR/CSXT application 
contemplates that, with the exception of one shipper, Martin Marietta 
at Verdon (which would continue to be served by CSXT), BBRR would 
assume the common carrier obligation on the C&O Line and will replace 
CSXT as the railroad serving local customers on the C&O Line,

[[Page 35706]]

including customers located at the following points in Virginia (listed 
in a generally west-to-east order): Goshen, Craigsville, Fordwick, 
Staunton, Waynesboro, Afton, Crozet, Ivy, Charlottesville, Keswick, 
Lindsay, Gordonsville, Orange, South Orange, Louisa, Mineral, 
Pendleton, Frederick Hall, Beaver Dam, Hewlett, Verdon, Doswell, North 
Doswell, Bear Island, Hanover, Atlee, Ellerson, and Ruffin. The BBRR/
CSXT application further contemplates: that the lease would have a 20-
year term, with one mutual 5-year extension option; that BBRR would 
take over local service (except as respects certain Martin Marietta 
traffic) and would maintain the line; that, after 2 years, BBRR would 
also assume the maintenance of the signal system and dispatching on the 
line; that CSXT would interchange traffic with BBRR (in the west at 
Clifton Forge, and in the east at Doswell) and would maintain 
competitive routes and rates for traffic moving from/to points on the 
C&O Line; that BBRR would pay CSXT annual rent of $140,000 per year, 
and also additional rent under certain circumstances when interchange 
of traffic is with a carrier other than CSXT; and that BBRR would 
maintain the C&O Line at the present FRA track class standards, and 
would provide service with two GP-16 locomotives that it currently owns 
and two GP-40 locomotives that it proposes to acquire.
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    \4\ The 9.1-mile length of the Orange Line is included in the 
28.5-mile length of the Washington Subdivision (i.e., the length of 
the Washington Subdivision without the Orange Line would be 19.4 
miles).
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    BBRR indicates that it intends to operate a scheduled railroad 
based upon interchange times agreed upon with CSXT. BBRR explains that 
it would operate four round-trip trains per day, 5 days per week (more 
frequent service than the line's shippers now have). BBRR advises: That 
it would operate from two locations (Doswell in the east, and Staunton 
in the west); that, at the eastern end of the line, a morning train 
would operate between Doswell and Ruffin and an evening train would 
operate between Doswell and Gordonsville; and that, at the western end 
of the line, a morning train would operate between Staunton and Clifton 
Forge and an evening train would operate between Staunton and Orange. 
BBRR further advises that each train would pick up and set out cars for 
BBRR's customers; and that BBRR would also provide additional service 
as needed by its customers.
    The BBRR/CSXT application contemplates that CSXT would retain 
limited overhead trackage rights and limited local trackage rights over 
the C&O line. The retained overhead trackage rights would allow CSXT to 
conduct westbound overhead movements of empty open-top hopper cars and 
empty covered hopper cars. These overhead trackage rights would allow 
CSXT to return these westbound empty trains, including empty coal 
trains, to their origins. The retained local trackage rights would 
allow CSXT to move unit aggregate trains from Martin Marietta's quarry 
at Verdon (about 29.5 miles from the eastern end of the C&O Line) to 
points on CSXT's lines in the vicinity of Newport News, VA, and would 
also allow CSXT to move empty unit aggregate trains in the reverse 
direction. Furthermore, CSXT would enter into a detour agreement with 
BBRR to detour loaded eastbound coal trains over the C&O Line in case 
of an emergency or maintenance on the James River Line.
    BBRR projects that it would handle about 11,700 carloads annually 
over the C&O Line, consisting of 6,200 carloads of local traffic, 1,000 
carloads for interchange with NS and the Eastern Shore Railroad, Inc., 
and 4,500 CSXT non-revenue carloads. CSXT projects that it would 
annually move through its retained overhead trackage rights about 
156,000 westbound empty cars and through its retained local trackage 
rights about 7,900 revenue carloads of rock from the Martin Marietta 
quarry at Verdon.
    Financial Arrangements. CSXT advises that it does not plan any new 
financial arrangements in connection with the BBRR/CSXT transaction. 
BBRR advises that, although it does not plan to issue any new 
securities in connection with the BBRR/CSXT transaction, it does expect 
to obtain some unsecured short term financing to meet operating capital 
needs in the early stages of operation.
    Passenger Service Impacts. Applicants advise that the BBRR/CSXT 
transaction would have no impact on commuter operations, because there 
are no such operations over the C&O Line or over the Orange Line. 
Applicants note, however, that an Amtrak train (the Cardinal) operates 
over part of the C&O Line (between Clifton Forge and Gordonsville) and 
all of the Orange Line (between Gordonsville and Orange). Applicants 
indicate: That Amtrak operates two trains per day over the line on 
Sunday, Wednesday, and Friday of each week, one eastbound (Train No. 
50) and one westbound (Train No. 51); that both trains stop at 
Charlottesville, Staunton, and Clifton Forge; and that, to minimize 
delays, BBRR plans to schedule operations around the scheduled times 
for Amtrak's trains. Furthermore, applicants indicate that BBRR plans 
to seek approval from FRA and Amtrak, as necessary, to abandon the 
Train Control System (TCS, a signal system) currently in place on the 
North Mountain and Washington Subdivisions between Clifton Forge and 
Orange; that CSXT would maintain the TCS and would manage train 
dispatching for the lines covered by the lease for up to 2 years while 
BBRR seeks such abandonment authority; that, upon approval of the 
abandonment of the TCS, or 2 years after commencement of the lease, 
whichever occurs first, BBRR intends to dispatch the line; and that, if 
the TCS system is not abandoned, BBRR and CSXT would assess the 
situation to the mutual satisfaction of both parties.
    Public Interest Considerations. The C&O Line is paralleled by 
Interstate Highway 64 and is crossed by Interstate Highway 81, both of 
which provide major highway access for truck traffic from/to customers 
on the line and, therefore, according to BBRR, significant competition 
to railroad traffic, especially intermodal traffic. BBRR advises that 
it plans to compete fiercely with trucks for traffic moving from/to 
points on the C&O Line. BBRR contends that it could effectively compete 
with motor carriers for freight traffic moving from/to points on the 
C&O Line by providing more frequent rail service and local sales, 
marketing, and operating personnel. BBRR indicates that it intends to 
have local people marketing its services to the customers on the line 
to build a relationship that would encourage the shift of truck 
shipments to rail.
    Applicants contend that, because the BBRR/CSXT transaction would 
enable BBRR to increase the frequency and quality of rail service on 
the C&O Line, the BBRR/CSXT transaction would improve the adequacy of 
transportation service to the shipping public and increase intermodal 
competition as well as intramodal competition. Applicants further 
contend that there would not likely be, as a result of the BBRR/CSXT 
transaction, any lessening of competition, creation of a monopoly, or 
restraint of trade in freight surface transportation in any region of 
the United States.
    Applicants advise that they expect the BBRR/CSXT transaction to 
result in operating economies, improved service, and improved financial 
viability. Applicants explain: That they do not anticipate any changes 
to routes and rates as BBRR takes over the service; that, rather, BBRR 
would provide more frequent and responsive service to the local 
customers; that the additional traffic that BBRR expects to generate 
would improve BBRR's financial viability; and that the rationalization 
of the CSXT system would improve CSXT's financial viability, by 
enabling

[[Page 35707]]

CSXT to reduce its operating expenses and to save on some capital 
expenditures. Applicants add that, although they have resolved many 
specific items, it is difficult to estimate savings until all of the 
specific terms of the lease are resolved between CSXT and BBRR.
    Environmental Impacts. Applicants contend that no environmental 
documentation is required because there will be no operational changes 
that would exceed the thresholds established in 49 CFR 1105.7(e)(4) or 
(5) and there will be no action that would normally require 
environmental documentation. Applicants therefore conclude that the 
BBRR/CSXT application does not require environmental documentation 
under 49 CFR 1105.6(b)(4) and (c)(2)(i).
    Historic Preservation Impacts. Applicants contend that an historic 
report is not required because BBRR will operate the line and will 
require further Board approval to discontinue any service, and because 
there are no plans to dispose of or alter properties subject to Board 
jurisdiction that are 50 years old or older. Applicants therefore 
conclude that the BBRR/CSXT application does not require an historic 
report under 49 CFR 1105.8(b)(1).
    Labor Impacts. CSXT projects that 35 CSXT employees would be 
affected by BBRR's lease of the C&O Line. CSXT projects, in particular: 
that 7 trainmen represented by the United Transportation Union would be 
displaced; that 4 engineers represented by the Brotherhood of 
Locomotive Engineers would be displaced; that 14 maintenance-of-way 
employees represented by the Brotherhood of Maintenance of Way 
Employees would be displaced; and that 7 signal and communications 
employees represented by the Brotherhood of Railroad Signalmen would be 
displaced, and an additional 3 such signal and communications employees 
would be relocated. CSXT explains that the trainmen, the engineers, and 
the maintenance-of-way employees would be affected because local work 
now performed by CSXT employees would be performed, post-transaction, 
by BBRR employees. As respects the signal and communications employees, 
CSXT explains that it has agreed to continue to maintain the signal 
system on the C&O Line and to dispatch the line, and to defer 
displacing employees, for up to 2 years after consummation of the 
transaction, if approved. CSXT also explains that it might cease 
maintaining the signal system and dispatching the line at an earlier 
date if FRA and Amtrak, as necessary, approve the abandonment of the 
signal system. CSXT adds: that it does not expect any dispatchers to be 
impacted by the BBRR/CSXT transaction; that it has not yet obtained any 
implementing agreements; and that, because CSXT's projections 
respecting employee impacts are based on conditions prior to the date 
of the BBRR/CSXT application, those projections may change based upon 
conditions existing at the time of consummation of the BBRR/CSXT 
transaction.
    BBRR projects that it would hire at least 21 employees and might 
hire up to 27 employees in connection with its lease of the C&O Line. 
BBRR explains that it intends to hire, on consummation of the lease, 5 
trainmen, 5 engineers, 8 maintenance-of-way employees, 2 mechanical 
employees, and 1 clerical employee. BBRR adds that, in the interest of 
operating in the most efficient manner possible, it expects to cross-
train many of these employees to perform other functions. BBRR advises 
that, if the signal system on the line has not been approved for 
abandonment by FRA and Amtrak, as necessary, 2 years after consummation 
of the lease, BBRR expects to hire approximately 6 signal and 
communications employees to operate the signal system. If FRA and 
Amtrak, as necessary, authorize abandonment of the signal system, BBRR 
notes that it would not hire any signal and communications employees. 
BBRR indicates that it plans to consider for employment qualified local 
CSXT employees whose positions would be abolished as a result of the 
BBRR/CSXT transaction and who make proper application for employment. 
Since no existing employees of BBRR would be adversely affected by the 
BBRR/CSXT transaction, and because all the employees that BBRR would 
need to operate and maintain the line and equipment would be new hires, 
BBRR does not intend to enter into any implementing agreements with 
rail labor. Further, because BBRR's projections are based on conditions 
prior to the date of the BBRR/CSXT application, BBRR states that its 
projections may change based upon conditions existing at the time of 
consummation of the BBRR/CSXT transaction.
    CSXT and BBRR contend that, to provide the level of labor 
protection mandated by 49 U.S.C. 11326, the Board should impose the 
``Mendocino Coast'' labor protective conditions set forth in Mendocino 
Coast Ry., Inc.--Lease and Operate, 354 I.C.C. 732 (1978), as modified 
in Mendocino Coast Ry., Inc.--Lease and Operate, 360 I.C.C. 653 (1980), 
aff'd sub nom. Railway Labor Executives' Ass'n v. United States, 675 
F.2d 1248 (D.C. Cir. 1982), as clarified in Wilmington Term. RR, Inc.--
Pur. & Lease--CSX Transp., Inc., 6 I.C.C.2d 799, 814-826 (1990), aff'd 
sub nom. Railway Labor Executives' Ass'n v. I.C.C., 930 F.2d 511 (6th 
Cir. 1991). In support, CSXT and BBRR cite to Portland & Western 
Railroad, Inc.--Lease and Operation Exemption--Burlington Northern 
Railroad Company, Finance Docket No. 32766 (ICC served January 5, 
1996), a similar type of transaction, in that it involved both the 
lease by a Class III railroad of lines of a Class I railroad and also 
the retention by the Class I railroad of the right to conduct certain 
operations over the leased lines.
    BBRR/CSXT Application Accepted. The Board agrees with applicants 
that the proposed BBRR/CSXT transaction would be a ``minor 
transaction'' under 49 CFR 1180.2(c), and the Board is accepting the 
BBRR/CSXT application for consideration because it is in substantial 
compliance with the applicable regulations governing minor 
transactions. See 49 U.S.C. 11321-26; 49 CFR part 1180. The Board 
reserves the right to require the filing of supplemental information, 
if necessary to complete the record in this matter.
    Public Inspection. The BBRR/CSXT application is available for 
inspection in the Docket File Reading Room (Room 755) at the offices of 
the Surface Transportation Board, 1925 K Street, NW., in Washington, 
DC. In addition, the application may be obtained from applicants' 
representatives (Mr. O'Brien for BBRR, and Mr. Gitomer for CSXT) at the 
addresses indicated above.
    Procedural Schedule. The Board has considered applicants' BBRR-3/
CSXT-3 petition (filed May 26, 2004) suggesting a 166-day procedural 
schedule. Under that proposed schedule, the Board would issue its final 
decision on November 8, 2004, and that decision would become effective 
on December 8, 2004. Applicants explain that their proposed schedule 
would allow applicants to close the BBRR/CSXT transaction by December 
20, 2004, and would thus allow the changeover in operations to occur 
before year-end over a non-holiday weekend.
    The Board is adopting a 163-day procedural schedule that is 
essentially the same as applicants' proposed 166-day schedule, except 
that the Board's schedule provides for the issuance of a final decision 
on November 5, 2004. The evidentiary proceedings in this matter will be 
concluded on September 23rd (the due date for filing responses and 
rebuttal) if neither a public hearing nor an oral argument is held the 
week of October 4th. Therefore, issuance of the

[[Page 35708]]

final decision on November 5th will allow the Board to meet the 
applicable statutory deadline, which requires a final decision no later 
than the 45th day after the date on which the evidentiary proceedings 
are concluded.
    Under the 163-day procedural schedule adopted by the Board: any 
person who wishes to participate in this proceeding as a POR must file, 
no later than July 9, 2004, a notice of intent to participate; all 
comments, protests, requests for conditions, and any other evidence and 
argument in opposition to the BBRR/CSXT application, including filings 
by DOJ and DOT, must be filed by August 24, 2004; and responses to 
comments, protests, requests for conditions, and other opposition and 
rebuttal in support of the BBRR/CSXT application must be filed by 
September 23, 2004. As in past proceedings, DOJ and DOT will be allowed 
to file, on the response due date (here, September 23rd), their 
comments in response to the comments of other parties, and applicants 
will be allowed to late-file (as quickly as possible) a response to any 
such comments of DOJ and/or DOT. Under this schedule, a public hearing 
or oral argument may be held the week of October 4, 2004. To allow the 
Board to meet the applicable statutory deadline, which requires the 
Board to conclude any evidentiary proceedings by the 105th day after 
the date of Federal Register publication of notice of the acceptance of 
the application, a public hearing or oral argument must be held, if at 
all, no later than October 8th. Furthermore, under this procedural 
schedule, the Board will issue its final decision on November 5, 2004 
(the 163rd day after May 26th, the day on which the BBRR/CSXT 
application was filed with the Board). This schedule would allow 
applicants to close the BBRR/CSXT transaction by December 20th if the 
application is approved. For further information respecting dates, see 
Appendix A (Procedural Schedule).
    Notice of Intent to Participate. Any person who wishes to 
participate in this proceeding as a POR must file with the Board, no 
later than July 9, 2004, a notice of intent to participate, accompanied 
by a certificate of service indicating that the notice has been 
properly served on the Secretary of the United States Department of 
Transportation, the Attorney General of the United States, and 
applicants' representatives (Mr. O'Brien for BBRR, and Mr. Gitomer for 
CSXT).
    Service List Notice. The Board will serve, as soon after July 9, 
2004, as practicable, a notice containing the official service list 
(the service list notice). Each POR will be required to serve upon all 
other PORs, within 10 days of the service date of the service list 
notice, copies of all filings previously submitted by that party (to 
the extent such filings have not previously been served upon such other 
parties). Each POR also will be required to file with the Board, within 
10 days of the service date of the service list notice, a certificate 
of service indicating that the service required by the preceding 
sentence has been accomplished. Every filing made by a POR after the 
service date of the service list notice must have its own certificate 
of service indicating that all PORs on the service list have been 
served with a copy of the filing. Members of the United States Congress 
(MOCs) and Governors (GOVs) are not parties of record and need not be 
served with copies of filings, unless any such Member or Governor has 
requested to be, and is designated as, a POR.
    Comments, Protests, Requests for Conditions, and Other Opposition 
Evidence and Argument, Including Filings by DOJ and DOT. All comments, 
protests, requests for conditions, and any other evidence and argument 
in opposition to the BBRR/CSXT application, including filings by DOJ 
and DOT, must be filed by August 24, 2004.
    Because the proposed BBRR/CSXT transaction has been determined to 
be a minor transaction, no responsive applications will be permitted. 
See 49 CFR 1180.4(d)(1).
    Protesting parties are advised that, if they seek either the denial 
of the BBRR/CSXT application or the imposition of conditions upon any 
approval, on the theory that approval (or approval without conditions) 
would harm competition and/or their ability to provide essential 
services, they must present substantial evidence in support of their 
positions. See Lamoille Valley R.R. Co. v. ICC, 711 F.2d 295 (D.C. Cir. 
1983).
    Responses to Comments, Protests, Requests for Conditions, and Other 
Opposition; Rebuttal in Support of the Application. Responses to 
comments, protests, requests for conditions, and other opposition 
submissions, and rebuttal in support of the BBRR/CSXT application must 
be filed by September 23, 2004.
    Public Hearing/Oral Argument. The Board may hold a public hearing 
or an oral argument in this proceeding the week of October 4, 2004.
    Discovery. Discovery may begin immediately. The parties are 
encouraged to resolve all discovery matters expeditiously and amicably.
    Environmental Matters. Under the Council on Environmental Quality 
(CEQ) and Board regulations, actions whose environmental effects are 
ordinarily insignificant may be excluded from review under the National 
Environmental Policy Act of 1969 (NEPA).\5\ In its environmental rules, 
the Board has promulgated various categorical exclusions. As pertinent 
here, where the eastern portion of the 199.7-mile rail line proposed to 
be leased is located in an air quality ``nonattainment'' area, a rail 
line lease proposal that would not result in operational changes that 
exceed certain thresholds--generally an increase in rail traffic of at 
least three trains a day or 50 percent in traffic (measured in gross 
ton miles annually)--normally requires no environmental review, 49 CFR 
1105.6(c)(2)(i).
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    \5\ 40 CFR 1500.4(p), 1501.4(a)(2), 1508.4; 49 CFR 1105.6(c). 
Such activities are said to be covered by a ``categorical 
exclusion,'' which CEQ defines at 40 CFR 1508.4.
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    Applicants state in their application that the traffic increases 
they project to occur, should this proposal be approved, consist of 
four round-trip trains per day, 5 days per week. Applicants explain 
that BBRR would operate morning and evening round-trip trains between 
various origins and destinations over four distinct line segments. 
Specifically, over the easternmost segments, a morning train would 
operate between Doswell and Ruffin (near Richmond), and an evening 
train would operate between Doswell and Gordonsville. On the 
westernmost segments, a morning train would operate between Staunton 
and Clifton Forge, and an evening train would operate between Staunton 
and Orange (including Gordonsville). Applicants maintain that operating 
one round-trip train 5 days per week over four distinct rail line 
segments would allow BBRR to provide efficient service tailored to the 
needs of its customers.
    Because the four round-trip trains would operate over four 
different line segments and applicants contemplate no increase on any 
individual line segment beyond one round-trip train per day, the 
proposed lease does not meet or exceed the Board's thresholds for 
environmental documentation established in the Board's environmental 
rules at 49 CFR 1105.7(e)(4) or (5), and there is nothing in the 
application to indicate that the transaction has any potential for 
significant environmental impacts. The Board's Section of Environmental 
Analysis (SEA) therefore has concluded that formal environmental review 
is not warranted in this case, and that this

[[Page 35709]]

proceeding is ``categorically excluded'' from environmental review 
required by NEPA.
    Finally, SEA agrees with applicants that the proposed action does 
not require historic review under the National Historic Preservation 
Act of 1966 (NHPA) because further approval would be required to 
abandon any service, and there are no plans to dispose of or alter 
properties subject to the Board's jurisdiction that are 50 years old or 
older. 49 CFR 1105.8(b)(1).
    Filing/Service Requirements: Format. Persons participating in this 
proceeding may ``file'' with the Board and ``serve'' on other parties a 
number of documents, particularly: a notice of intent to participate 
(due by July 9th); a certificate of service indicating service of prior 
pleadings on persons designated as PORs on the service list notice (due 
by the 10th day after the service date of the service list notice); 
comments, protests, requests for conditions, and any other evidence and 
argument in opposition to the BBRR/CSXT application (due by August 
24th); and responses to comments, etc., and rebuttal in support of the 
BBRR/CSXT application (due by September 23rd).
    Filing Requirements. Any document filed in this proceeding must be 
filed either via the Board's e-filing format or in the traditional 
paper format. Any person e-filing a document should comply with the 
instructions found on the Board's http://www.stb.dot.gov Web site, at 
the ``E-FILING'' link. Any person filing a document in the traditional 
paper format should send an original and 10 paper copies of the 
document (and also an IBM-compatible floppy disk with any textual 
submission in any version of either Microsoft Word or WordPerfect) to: 
Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-
0001.
    Service Requirements. One copy of each document filed in this 
proceeding must be sent to each of the following (any such copy may be 
sent by e-mail, but only if service by e-mail is acceptable to the 
recipient): (1) Secretary of the United States Department of 
Transportation, 400 Seventh Street, SW., Washington, DC 20590; (2) 
Attorney General of the United States, c/o Assistant Attorney General, 
Antitrust Division, Room 3645, Department of Justice, Washington, DC 
20530; (3) Keith G. O'Brien (BBRR's representative), Rea, Cross & 
Auchincloss, 1707 L Street, NW., Suite 570, Washington, DC 20036; (4) 
Louis E. Gitomer (CSXT's representative), Ball Janik LLP, 1455 F 
Street, NW., Suite 225, Washington, DC 20005; and (5) any other person 
designated as a POR on the service list notice.
    Service of Decisions, Orders, and Notices. The Board will serve 
copies of its decisions, orders, and notices only on those persons who 
are designated on the official service list as either POR, MOC, or GOV. 
All other interested persons are encouraged either to secure copies of 
such decisions, orders, and notices via the Board's http://www.stb.dot.gov Web site under ``E-LIBRARY/Decisions & Notices'' or to 
make advance arrangements with the Board's copy contractor, ASAP 
Document Solutions (mailing address: ASAP Document Solutions, Suite 
103, 9332 Annapolis Rd., Lanham, MD 20706; e-mail address: 
[email protected]; telephone number: 301-577-2600), to receive copies 
of decisions, orders, and notices served in this proceeding. ASAP 
Document Solutions will handle the collection of charges and the 
mailing and/or faxing of decisions, orders, and notices to persons who 
request this service.
    Access to Filings. An interested person does not need to be on the 
service list to obtain a copy of the BBRR/CSXT application or any other 
filing made in this proceeding. The Board's Railroad Consolidation 
Procedures provide: ``Any document filed with the Board (including 
applications, pleadings, etc.) shall be promptly furnished to 
interested persons on request, unless subject to a protective order.'' 
49 CFR 1180.4(a)(3). And the BBRR/CSXT application and other filings in 
this proceeding will also be available on the Board's http://www.stb.dot.gov Web site under ``E-LIBRARY/Filings.''
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. The BBRR/CSXT application in STB Finance Docket No. 34495 is 
accepted for consideration.
    2. The parties to this proceeding must comply with the Procedural 
Schedule adopted by the Board in this proceeding as shown in Appendix 
A.
    3. The parties to this proceeding must comply with the procedural 
requirements described in this decision.
    4. This decision is effective on June 25, 2004.

    Decided: June 22, 2004.
    By the Board, Chairman Nober, Vice Chairman Mulvey, and 
Commissioner Buttrey.
Vernon A. Williams,
Secretary.

Appendix A: Procedural Schedule

May 26, 2004
    BBRR/CSXT application, petition for protective order, and 
petition to establish procedural schedule filed.
June 25, 2004
    Board notice of acceptance of BBRR/CSXT application published in 
the Federal Register.
July 9, 2004
    Notices of intent to participate due.
August 24, 2004
    All comments, protests, requests for conditions, and any other 
evidence and argument in opposition to the BBRR/CSXT application, 
including filings of DOJ and DOT, due.
September 23, 2004
    Responses to comments, protests, requests for conditions, and 
other opposition due. Rebuttal in support of the BBRR/CSXT 
application due.
Week of October 4, 2004
    A public hearing or oral argument may be held the week of 
October 4, 2004.
November 5, 2004
    Date of service of final decision.
[FR Doc. 04-14474 Filed 6-24-04; 8:45 am]
BILLING CODE 4915-01-P