[Federal Register Volume 70, Number 170 (Friday, September 2, 2005)]
[Notices]
[Pages 52477-52482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17456]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Finance Docket No. 34738]
Paducah & Louisville Railway, Inc.--Acquisition--CSX
Transportation, Inc.
AGENCY: Surface Transportation Board, DOT.
ACTION: Decision No. 2 in STB Finance Docket No. 34738; Notice of
Acceptance of Primary Application and Related Filings; Issuance of
Procedural Schedule.\1\
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SUMMARY: The Surface Transportation Board (Board) is accepting for
consideration: the primary application filed August 3, 2005, by Paducah
& Louisville Railway, Inc. (P&L) and CSX Transportation, Inc. (CSXT);
the Sub-No. 1 related filing filed August 3, 2005, by Evansville
Western Railway, Inc. (EVWR); and the Sub-No. 2 related filing filed
August 3, 2005, by Four Rivers Transportation, Inc. (FRTI) and P&L.
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\1\ This decision covers: the application filed in STB Finance
Docket No. 34738, Paducah & Louisville Railway, Inc.--Acquisition--
CSX Transportation, Inc.; the exemption notice filed in STB Finance
Docket No. 34738 (Sub-No. 1), Evansville Western Railway, Inc.--
Acquisition and Operation Exemption--Paducah & Louisville Railway,
Inc.; and the exemption notice filed in STB Finance Docket No. 34738
(Sub-No. 2), Four Rivers Transportation, Inc. And Paducah &
Louisville Railway, Inc.--Continuance in Control Exemption--
Evansville Western Railway, Inc. The application filed in STB
Finance Docket No. 34738 is referred to as the ``primary
application.'' The exemption notices filed in STB Finance Docket No.
34738 (Sub-Nos. 1 and 2) are referred to collectively as the
``related filings.''
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The primary application seeks Board approval under 49 U.S.C. 11321-
26 for P&L's acquisition of an approximately 124.5-mile CSXT line (the
Evansville-Okawville Line or the Line) running between Evansville, IN
(milepost OOH-324.0), and Okawville, IL (milepost OOH-445.7), including
the 2.8-mile Mt. Vernon Branch (at Mt. Vernon, IN, between milepost
OZJ-300 and milepost OZJ-302.8). The proposal is for P&L to purchase
the track, ties, switches, and other track material (the improvements)
and to lease for 20 years (with a 5-year extension available) the real
property. This proposal is referred to as the P&L Transaction, and
FRTI/P&L/EVWR \2\ and CSXT are referred to collectively as applicants.
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\2\ EVWR is a wholly owned subsidiary of P&L, which is itself a
wholly owned subsidiary of FRTI.
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The related filings seek authority for P&L to immediately transfer
the improvements and assign its lease of the real property to its newly
created wholly owned subsidiary, EVWR. This proposal is referred to as
the EVWR Transaction, and the P&L Transaction and the EVWR Transaction
are referred to collectively as the P&L/EVWR Transaction. The Sub-No. 1
filing seeks an exemption under 49 U.S.C. 10502 and 49 CFR 1150.31 to
permit EVWR to purchase the improvements, take assignment of the lease
of the real property, and operate the Line. The Sub-No. 2 filing seeks
an exemption under 49 U.S.C. 10502 and 49 CFR 1180.2(d)(2) to permit
P&L to continue in control of EVWR, and to permit FRTI to continue in
control of P&L and EVWR, when EVWR becomes a rail carrier upon
acquisition of the Line.
The Board finds that the P&L Transaction is a ``minor transaction''
under 49 CFR 1180.2(c), and the Board adopts a procedural schedule for
consideration of the primary application and the related filings, under
which the Board's final decision would be issued on December 12, 2005.
DATES: The effective date of this decision is September 2, 2005. Any
person who wishes to participate in this proceeding as a party of
record (POR) must file, no later than September 12, 2005, a notice of
intent to participate. All comments, protests, requests for conditions,
and any other evidence and argument in opposition to the primary
application or either of the related filings, including filings by the
U.S. Department of Justice (DOJ) and the U.S. Department of
Transportation (DOT), must be filed by October 12, 2005. Responses to
comments, protests, requests for conditions, and other opposition, and
rebuttal in support of the primary application or either of the related
filings must be filed by October 27, 2005. If a public hearing or oral
argument is held, it will be held the week of November 14, 2005. The
Board will issue its final decision on December 12, 2005. For further
information respecting dates, see Appendix A (Procedural Schedule).
ADDRESSES: Any filing submitted in this proceeding must be submitted
either via
[[Page 52478]]
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 Web site at http://www.stb.dot.gov 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 (and may be sent by e-mail
only if service by e-mail is acceptable to the recipient) to each of
the following: (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 3109, Department of Justice, Washington, DC
20530; (3) William A. Mullins (representing FRTI, P&L, and EVWR), Baker
& Miller PLLC, 2401 Pennsylvania Avenue, NW., Suite 300, Washington, DC
20037; (4) Louis E. Gitomer (representing CSXT), 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 September 12, 2005, 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: CSXT, a Class I railroad,\3\ owns and
operates about 23,000 miles of railroad in the United States (in
Alabama, Connecticut, the District of Columbia, Delaware, Florida,
Georgia, Illinois, Indiana, Kentucky, Louisiana, Massachusetts,
Maryland, Michigan, Mississippi, Missouri, New Jersey, New York, North
Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and
West Virginia) and in Canada (in Ontario and Quebec).
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\3\ 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).
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FRTI is a noncarrier holding company.
P&L, a wholly owned subsidiary of FRTI, is a Class II railroad that
operates entirely in Kentucky over an approximately 262-mile line that
extends between Louisville and Clayburn. P&L has been operating since
1986 and has built its traffic base from about 77,000 carloads in its
first full year of operation (1987) to a high of 216,000 carloads in
its best year. In addition to originating and terminating local traffic
on its line, P&L interchanges: with CSXT, Norfolk Southern Railway
Company (NS), Louisville and Indiana Railroad Company (L&I), and
Canadian Pacific Railway Company (CP) at Louisville; with CSXT at
Central City and Madisonville; and with Canadian National Railway
Company (CN) and BNSF Railway Company (BNSF) at Paducah. P&L employs
223 persons, including 45 management or salaried employees and 178
craft employees represented by either 7 or 8 unions.\4\ P&L owns 41
locomotives and it owns and/or leases 1,155 revenue service cars, 23
non-revenue cars, and 25 pieces of self-propelled maintenance-of-way
(MOW) equipment.
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\4\ Compare PLRY-1 at 9 (7 unions) with PLRY-1 at 10 (8 unions).
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EVWR, a wholly owned subsidiary of P&L, is a noncarrier. The
proposals contemplate that EVWR would become a Class III railroad once
the Line is acquired by P&L and is transferred to EVWR. P&L advises
that its reasons for proposing to have the Line transferred to and
operated by EVWR are both to permit P&L to retain certain substantial
tax advantages available to it as a Kentucky railroad that P&L would
lose if it were to operate a railroad outside of Kentucky and to
protect P&L from potential liabilities and risks associated with
operating a railroad outside of Kentucky. P&L states that EVWR would
have its own employees, its own management, and its own financial
arrangements, and that EVWR would publish tariffs, interline, and
otherwise operate as a railroad independent of P&L. P&L notes, however,
that EVWR and P&L would share a common management until such time as
EVWR could hire its own management team. And, P&L adds, EVWR and P&L
would also enter into a contract whereby P&L would provide management
oversight and certain administrative services to EVWR.
The Evansville-Okawville Line. The 124.5-mile east-west Evansville-
Okawville Line that would be acquired by P&L and transferred to EVWR
has been operated by CSXT as its St. Louis Subdivision. Points located
on the Line (going from east to west) include Evansville, Mt. Vernon,
and Upton (in Indiana) and Epworth, Carmi, Trumbull, Enfield, Inland,
McLeansboro, Delafield, Opdyke, Mt. Vernon, Woodlawn, Ashley,
Nashville, Addieville, and Okawville (in Illinois).\5\ The Line runs
parallel to rail lines of CSXT and NS to the north, and the various
points located on the Line are within the regions served by the Ohio,
Wabash, and/or Mississippi Rivers. The various points located on the
Line are also served by an extensive highway network, which includes
Interstate Highway 64 (which runs parallel to the Line in an east-west
direction) and Interstate Highway 57 (which crosses the Line in a
north-south direction).
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\5\ 5 Two points located on the Line are called ``Mt. Vernon,''
one in Indiana and the other in Illinois. The 2.8-mile Mt. Vernon
Branch is located at Mt. Vernon, IN.
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Interchange on the Line currently occurs at Woodlawn, IL, with
BNSF, and at Mt. Vernon, IL, with Union Pacific Railroad Company (UP).
CSXT and EVWR would conduct interchange at the east end of the Line and
in CSXT's Howell Yard, both in Evansville, IN. P&L states that CSXT,
BNSF, and UP would provide interchange with EVWR and would maintain
competitive routes and rates over connections with EVWR.
Operation of The Line by EVWR. P&L states: that EVWR would assume
the common carrier obligation respecting the Line, and would operate
the Line as an independent rail carrier affiliated with P&L; that EVWR
expects to hire 3 management and 19 non-management employees (5
locomotive engineers, 5 trainmen, 5 MOW employees, 2 signal and
communication employees, and 2 mechanical employees); that EVWR would
commence operations with approximately 7 locomotives leased from P&L
and would lease additional locomotives from P&L or third parties as
business dictates; that EVWR would acquire or lease from P&L and third
parties the MOW equipment necessary to operate and maintain the Line;
and that, for its car supply, EVWR would use the existing (largely
privately owned) cars on the Line, would use CSXT-supplied equipment as
necessary, and would lease additional car supply from third parties as
business dictates.
P&L asserts that, although EVWR would be a noncarrier subsidiary,
it has not been created to avoid P&L's collective bargaining agreements
or to avoid union operations over the Line. Rather, P&L explains: that
EVWR intends to become a fully unionized
[[Page 52479]]
carrier, and P&L and EVWR intend to enter into any necessary
implementing agreements required to accomplish that purpose; that EVWR
expects to have any employees hired to operate and maintain the Line
work under essentially the same agreements that would apply if P&L were
doing the work; and that EVWR expects that its employees will be
represented by the same unions that would represent the employees if
the Line were to be operated by P&L.
P&L states that EVWR would provide service to all customers on the
Line 7 days per week with (1) one 2-person crew departing Mt. Vernon,
IN, on Sunday, Tuesday, and Thursday, and returning from Okawville on
Monday, Wednesday, and Friday, setting out and picking up cars at
industries and interchange points en route; (2) another 2-person crew
performing station and industry switching at Mt. Vernon, IN; (3)
another 2-person crew performing station switching and interchange to/
from CSXT at Evansville; and (4) two 2-person crews performing loading
of unit coal trains at Epworth, IL, transiting to Mt. Vernon, IN, for
unloading, and returning.
Financial Arrangements. Applicants state that, to acquire the
Improvements, P&L would pay CSXT a certain amount (the precise amount
has been submitted under seal) and P&L would immediately transfer those
Improvements to EVWR for the same amount. Applicants further state that
P&L would assign its lease in the real property to EVWR, and EVWR would
be responsible for paying annual rental for the real property (the
precise amount has been filed under seal) plus additional rental
depending upon the number of carloads.
CSXT states that it does not plan any new financial arrangements in
connection with the P&L Transaction. P&L states that it does not plan
to issue any new securities in connection with the P&L Transaction, but
intends to finance the acquisition through its existing line of credit
or with cash on hand, depending on the situation at the time of
closing. EVWR states that it will finance its purchase of the
Improvements through a cash infusion from its initial capitalization,
and that continuing operations and the annual lease payments would be
financed through a combination of initial capitalization, cash from
continuing operations, and borrowing from a third party.
Passenger Service Impacts. The P&L/EVWR Transaction would have no
impact on commuter or passenger operations because the Line has no
commuter or other passenger service.
Discontinuances/Abandonments. P&L states that EVWR does not
anticipate discontinuing service over or abandoning any portion of the
Line.
Public Interest Considerations. Applicants assert that, if
approved, the P&L/EVWR Transaction would increase inter- and intramodal
competition and would not result in any lessening of competition,
creation of a monopoly, or restraint of trade in freight surface
transportation in any region of the United States. They contend that it
would not have any anticompetitive effects because it would simply
allow EVWR to replace CSXT as the railroad serving local and overhead
customers on the Line. Applicants further assert that significant truck
competition provides an alternative to use of the Line for
transportation.
P&L asserts that EVWR intends to aggressively market its operation
to shippers on the Line and to potential receivers of western coal, as
well as the eastern coal that the Line now carries. P&L believes that
there are shippers along the Line that currently do not use rail
service that could be convinced to use EVWR's service instead of truck
service. P&L states that EVWR also plans to explore expansion of rail-
water transload opportunities on the Line. P&L adds that EVWR would be
headquartered on the Line, would hire qualified existing employees now
working on the Line, would have local management and local personnel,
and would provide a more personalized, responsive, and more frequent
service to customers on the Line than CSXT has been able to provide.
CSXT asserts that the P&L Transaction would improve CSXT's
financial viability through system rationalization, including reducing
its operating expenses and capital expenditures. CSXT notes, however,
that, although CSXT and P&L have agreed to the P&L Transaction in
principle and have resolved many specific items, it is difficult to
estimate savings until all of the specific terms of the P&L Transaction
are resolved.
P&L expects that the P&L/EVWR Transaction would result in operating
economies, improved service, and improved financial viability. P&L does
not anticipate any changes to routes and rates if EVWR takes over the
service. P&L adds: That EVWR expects initially to handle about 63,100
carloads annually, including 42,900 carloads of coal, 6,700 carloads of
chemicals, 9,600 carloads of agricultural commodities, 1,400 carloads
of phosphate and fertilizer, 1,600 carloads of food and consumer
products, and 900 carloads of metals; and that, based on such volumes,
EVWR expects to earn gross revenues of about $12,500,000 in its first
year of operation.
Time Schedule For Consummation. If the Board approves the P&L/EVWR
Transaction, applicants intend to consummate the transaction on the
later of December 30, 2005, or the earliest date that P&L can acquire
the Line pursuant to the authority sought in the primary application.
Environmental Impacts. Applicants contend that no environmental
documentation is required because there would be no operational changes
that would exceed the thresholds established in 49 CFR 1105.7(e)(4) or
(5) and there would be no action that would normally require
environmental documentation. Applicants therefore assert that neither
the P&L Transaction nor the EVWR Transaction requires 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 EVWR would operate the Line and would
require separate Board approval to discontinue 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
assert that neither the P&L Transaction nor the EVWR Transaction
requires an historic report under 49 CFR 1105.8(b)(1).
Labor Impacts. CSXT states that no CSXT employees would be
dismissed on account of the P&L Transaction, but that 31 CSXT employees
(10 Trainmen, 7 Engineers, 11 MOW workers, 2 Signal & Communications
workers, and 1 Clerical worker) would be displaced, and 3 CSXT
employees (2 Signal & Communications workers and 1 Clerical worker)
would be relocated. CSXT states that it has not yet obtained any
implementing agreements with its employees, but that it intends shortly
to begin voluntary negotiations with its employees. CSXT adds that the
predicted number of affected positions is based on current conditions
and may change based upon conditions at the time of consummation.
P&L states that no P&L employee would be adversely impacted by the
P&L/EVWR Transaction. P&L states that EVWR intends to hire
approximately 10 employees (5 Trainmen and 5 Engineers) for train and
engine service, and 9 employees (5 MOW workers, 2 Signal &
Communications workers, and 2 Mechanical workers) for maintenance of
the Line and equipment, and would consider for employment (based on
qualifications to be determined by EVWR) all qualified current and
former
[[Page 52480]]
CSXT employees whose positions would be abolished as a result of the
P&L Transaction and who make proper application for employment. P&L
adds that the number of anticipated hires is based on current
conditions and may change based upon conditions at the time of
consummation.
Protective Conditions. For the P&L Transaction, applicants assert
that, to provide the level of labor protection mandated by 49 U.S.C.
11326, the Board should impose the labor protective conditions in New
York Dock Ry.--Control--Brooklyn Eastern Dist., 360 I.C.C. 60, 84-90
(1979), 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). For
the Sub-No. 1 related filing (the transfer of the Line from P&L to
EVWR), they assert that no labor protective conditions may be imposed
because the transaction is the type that would otherwise be handled
under 49 U.S.C. 10901, which precludes such conditions. For the Sub-No.
2 related filing (the continuance in control of EVWR by P&L,\6\ and the
continuance in control of P&L and EVWR by FRTI; \7\), they contend
that, because the proposal involves one Class II carrier (P&L) and one
Class III carrier (EVWR), the appropriate level of labor protection is
that which is set forth in 49 U.S.C. 11326(b) (limited to 1 year of
severance pay).
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\6\ See 49 U.S.C. 11323(a)(3).
\7\ See 49 U.S.C. 11323(a)(5).
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CSXT's 35% Ownership Interest In FRTI/P&L/EVWR. As noted above,
EVWR is a wholly owned subsidiary of P&L, which is itself a wholly
owned subsidiary of FRTI, a noncarrier holding company. Applicants
advise that FRTI's common stock is divided into two blocks: a 65% block
that is owned by P&L management; and a 35% block that is owned by CSXT.
Applicants further advise: That 100% of FRTI's non-voting preferred
stock is owned by CSXT; that one of the three members of FRTI's Board
of Directors is a CSXT employee; and that three of the seven members of
P&L's Board of Directors are CSXT employees. Applicants contend,
however, that CSXT does not ``control'' FRTI/P&L/EVWR within the
meaning of 49 U.S.C. 11323. Applicants cite Soo Line Railroad Company--
Petition for Declaratory Order, STB Finance Docket No. 33350 (STB
served Feb. 4, 1998), and explain that P&L management, which acquired
its 65% interest in FRTI at the same time that CSXT acquired its 35%
interest, has the power to appoint four members of the seven-member P&L
board, whereas CSXT can appoint only three members. Applicants state
that it is the P&L board that has the sole authority to manage,
control, and make all decisions affecting the business of P&L and that,
because P&L is controlled by its board and because it is the P&L board
that has the power to direct P&L's day-to-day operations, P&L is
independent in the conduct of its daily operations. According to
applicants, P&L's board has exercised exclusive control over P&L's
business affairs since P&L was reorganized and CSXT purchased its
equity interest in P&L in 1995; CSXT has not been involved in P&L's
day-to-day management; and, to avoid even the appearance of control in
connection with the P&L Transaction, the CSXT-appointed directors of
P&L refrained from participating in any discussions or required votes
concerning P&L's proposal to acquire the Evansville-Okawville Line.
Applicants state that no P&L or EVWR officers will be appointed by, or
affiliated with, CSXT.
Primary Application and Related Filings Accepted. The Board finds
that the proposed P&L Transaction would be a ``minor transaction''
under 49 CFR 1180.2(c), and the Board is accepting the primary
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 is also accepting for
consideration the two related filings, which are also in compliance
with the applicable regulations. The Board reserves the right to
require the filing of supplemental information, if necessary to
complete the record.
Public Inspection. The primary application and the related filings
are 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 primary application may be obtained
from Mr. Mullins (representing FRTI, P&L, and EVWR) and Mr. Gitomer
(representing CSXT) at the addresses indicated above, and the related
filings may be obtained from Mr. Mullins (representing FRTI, P&L, and
EVWR) at the address indicated above.
Procedural Schedule. The Board has considered applicants' PLRY-3/
CSXT-3 request (filed August 3, 2005) for a procedural schedule, under
which the Board would issue its final decision on December 10, 2005,
and that decision would become effective on December 30, 2005.
Applicants have explained that their proposed schedule would allow them
to close the P&L/EVWR Transaction on December 30, 2005, and would thus
allow the changeover in operations to occur before the end of the year
and over a weekend.
The Board is adopting a procedural schedule that is essentially the
same as applicants' proposed procedural schedule. However, whereas
applicants' schedule provides that an oral argument will be held, if
necessary, on November 15, 2005, to allow greater flexibility in the
handling of the Board's docket, the Board's schedule provides that any
necessary oral argument or public hearing will be held the week of
November 14, 2005. Further, although applicants' schedule provides that
the final decision will be issued on a Saturday, the Board's schedule
provides that the final decision will be issued on December 12, 2005 (a
Monday), to make the schedule consistent with the Board's usual
operating procedure. This schedule 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--even if no public hearing or oral argument is found to
be necessary.
Under the procedural schedule adopted by the Board: any person who
wishes to participate in this proceeding as a POR must file, no later
than September 12, 2005, a notice of intent to participate; all
comments, protests, requests for conditions, and any other evidence and
argument in opposition to the primary application or either of the
related filings, including filings by DOJ and DOT, must be filed by
October 12, 2005; and responses to comments, protests, requests for
conditions, and other opposition and rebuttal in support of the primary
application or either of the related filings must be filed by October
27, 2005. As in past proceedings, DOJ and DOT will be allowed to file,
on the response due date (here, October 27th), their comments in
response to the comments of other parties, and applicants will be
allowed to file (as quickly as possible thereafter) 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 November 14, 2005. The Board
will issue its final decision on December 12, 2005, and, to accommodate
the request for a 2005 year-end closing, the Board will make any such
approval effective on December 30, 2005. 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
[[Page 52481]]
Board, no later than September 12, 2005, 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, Mr. Mullins (as representative of FRTI, P&L, and EVWR), and Mr.
Gitomer (as representative of CSXT).
Service List Notice. The Board will serve, as soon after September
12, 2005, 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 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 primary application or either of the related
filings, including filings by DOJ and DOT, must be filed by October 12,
2005.
Because the P&L Transaction proposed in the primary application is
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 primary application or the imposition of conditions upon any
approval thereof, 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
(DC 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 primary application or
either of the related filings, must be filed by October 27, 2005.
Public Hearing/Oral Argument. The Board may hold a public hearing
or an oral argument in this proceeding the week of November 14, 2005.
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) regulations, for those types of proposed actions whose
environmental effects are ordinarily insignificant, an environmental
review need not be conducted under the National Environmental Policy
Act of 1969 (NEPA).\8\ Rather, such activities are covered by a
``categorical exclusion.'' In its environmental rules, the Board has
various categorical exclusions.\9\ As pertinent here, under 49 CFR
1105.6(c)(2)(i), no environmental review is normally required for a
rail line acquisition 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 in an air quality
``nonattainment'' area,\10\ which is where the easternmost terminus of
the Evansville-Okawville Line is located.
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\8\ 40 CFR 1500.4(p), 1501.4(a)(2), 1508.4.
\9\ 49 CFR 1105.6(c).
\10\ Areas of the country where air pollution levels
persistently exceed the national ambient air quality standards may
be designated ``nonattainment.'' Evansville is located in an area
designated as an air quality ``nonattainment'' area by the
Environmental Protection Agency.
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Applicants state in their application that EVWR expects initially
to handle about 63,100 carloads annually. The traffic would consist of
about 42,900 carloads of coal, 6,700 carloads of chemicals, 9,600
carloads of agricultural commodities, 1,400 carloads of phosphate and
fertilizer, 1,600 carloads of food and consumer products, and 900
carloads of metal. In supplemental information on traffic movements
provided by applicants to the Board's Section of Environmental Analysis
(SEA), applicants state that traffic now moving over the Evansville-
Okawville Line would continue moving over the Line at the same volume
should the Board approve the P&L/EVWR Transaction. According to
applicants, EVWR would provide rail service to all customers on the
Line seven days per week. Applicants explain that EVWR expects to
conduct approximately 60 train movements per week on the Line.
Applicants state that of the 60 train movements per week, six train
movements (three round-trips per week) would be line-haul movements
providing local service on the 104-mile segment from Mt. Vernon, IN, to
Okawville, IL. There would be two train movements (one round-trip)
providing local service and overhead movements for interchange between
Mt. Vernon, IN, and Evansville, IN, which are approximately 17 miles
apart. Additionally, on the 2.8-mile Mt. Vernon Branch near Mt. Vernon,
IN, approximately 10 switching movements would occur. The remainder of
the movements would occur on the segments between Epworth, IL, and Mt.
Vernon, IN, and between Mt. Vernon, IN, and Evansville, IN. According
to applicants, EVWR does not anticipate any changes to the existing
route, and has no plans to immediately increase traffic levels on the
Line.
Applicants state that, upon Board approval of the P&L/EVWR
Transaction, EVWR intends to aggressively market its rail operations to
shippers on the Line that currently ship and receive commodities by
truck to provide more frequent and improved service to shippers. In
addition, EVWR plans to explore expansion of rail-water transload
opportunities on the Line. Presently, there is rail-water transload
activity on the Line at Mt. Vernon, IN. Of the 63,100 carloads
currently handled on the Line, approximately 17,800 carloads per year
of coal, fertilizer, and agricultural products are currently handled by
CSXT at this transload facility. EVWR projects traffic levels for this
operation to remain the same as CSXT's current transload activities.
Because EVWR projects no immediate increase in traffic levels on
the Line, and because the amount of any future increase in traffic as a
result of marketing is speculative, the P&L/EVWR Transaction does not
meet or exceed the Board's thresholds for environmental documentation
established at 49 CFR 1105.7(e)(4) or (5), and there is nothing in
either the primary application or the related filings to indicate that
the P&L/EVWR Transaction has any potential for significant
environmental impacts. The Board's SEA has therefore concluded that
this proceeding is ``categorically excluded'' from the environmental
review required by NEPA and that formal environmental review is not
warranted in this case.
[[Page 52482]]
Finally, SEA agrees with applicants that the proposed action does
not require historic review under the National Historic Preservation
Act of 1966 because further approval would be required to abandon any
service, and because applicants have advised the Board that 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. Persons participating in this
proceeding may ``file'' with the Board and ``serve'' on other parties:
A notice of intent to participate (due by September 12th); 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); any comments,
protests, requests for conditions, and any other evidence and argument
in opposition to the primary application or either of the related
filings (due by October 12th); and any responses to comments, etc., and
any rebuttal in support of the primary application or either of the
related filings (due by October 27th).
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 Web site at http://www.stb.dot.gov 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 copy may be sent
by e-mail 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
3109, Department of Justice, Washington, DC 20530; (3) William A.
Mullins (representing FRTI, P&L, and EVWR), Baker & Miller PLLC, 2401
Pennsylvania Avenue, NW., Suite 300, Washington, DC 20037; (4) Louis E.
Gitomer (representing CSXT), 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
decisions, orders, and notices via the Board's Web site at http://www.stb.dot.gov under ``E-LIBRARY/Decisions & Notices'' or to make
advance arrangements with the Board's copy contractor, ASAP Document
Solutions (mailing address: Suite 103, 9332 Annapolis Rd., Lanham, MD
20706; e-mail address: [email protected]; telephone number: 202-306-
4004), 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 primary application or any other
filing made in this proceeding. Under the Board's rules, 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). The primary application and
other filings in this proceeding will also be available on the Board's
Web site at http://www.stb.dot.gov 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 primary application in STB Finance Docket No. 34738 and the
related filings in STB Finance Docket No. 34738 (Sub-Nos. 1 and 2) are
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 September 2, 2005.
Decided: August 25, 2005.
By the Board, Chairman Nober, Vice Chairman Buttrey, and
Commissioner Mulvey.
Vernon A. Williams,
Secretary.
Appendix A: Procedural Schedule
August 3, 2005-- Primary application, related filings, motion for
protective order, and request for issuance of procedural schedule
filed.
September 2, 2005--Board notice of acceptance of primary application
and related filings published in the Federal Register.
September 12, 2005--Notices of intent to participate in this
proceeding due.
October 12, 2005--All comments, protests, requests for conditions,
and any other evidence and argument in opposition to the primary
application and/or either or both of the related filings, including
filings of DOJ and DOT, due.
October 27, 2005--Responses to comments, protests, requests for
conditions, and other opposition due. Rebuttal in support of the
primary application and/or either or both of the related filings
due.
Week of November 14, 2005--A public hearing or oral argument may be
held the week of November 14, 2005.
December 12, 2005--Date of service of final decision.
December 30, 2005--Effective date of final decision.
[FR Doc. 05-17456 Filed 9-1-05; 8:45 am]
BILLING CODE 4915-01-P