[Federal Register Volume 71, Number 9 (Friday, January 13, 2006)]
[Notices]
[Pages 2295-2300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-337]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 34783]


The Indiana Rail Road Company--Acquisition--Soo Line Railroad 
Company

AGENCY: Surface Transportation Board, DOT.

ACTION: Decision No. 2 in STB Finance Docket No. 34783; Notice of 
Acceptance of Application; Issuance of Procedural Schedule.

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SUMMARY: The Surface Transportation Board (Board) is accepting for 
consideration the application filed December 15, 2005, by The Indiana 
Rail Road Company (INRD) and Soo Line Railroad Company (Soo). The 
application seeks Board approval under 49 U.S.C. 11323-26 for INRD's 
acquisition of (a) Soo's Latta Subdivision, a 92.3-mile railroad line 
extending from milepost 170.1 at Fayette, IN, to milepost 262.4 at 
Bedford, IN, (b) certain overhead trackage rights currently held by Soo 
between Chicago, IL, and Terre Haute, IN, and between Bedford, IN, and 
Louisville, KY, and (c) certain ancillary

[[Page 2296]]

trackage rights. This proposal is referred to as the Transaction, and 
INRD and Soo are referred to collectively as applicants.
    The Board finds that the 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 April 24, 2006.

DATES: The effective date of this decision is January 13, 2006. Any 
person who wishes to participate in this proceeding as a party of 
record (POR) must file, no later than January 27, 2006, 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 February 21, 2006. 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 March 8, 2006. If a public hearing or oral 
argument is held, it will be held the week of March 20, 2006. The Board 
will issue its final decision on April 24, 2006.\1\ For further 
information respecting dates, see Appendix A (Procedural Schedule).
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    \1\ Under 49 U.S.C. 11325(d)(2), the Board must conclude any 
evidentiary proceedings by the 105th day after the publication of 
the notice and must issue a final decision by the 45th day after 
conclusion of the evidentiary proceeding. While the Board will 
attempt to meet the applicants' accelerated schedule, the Board will 
take the full statutory time allotted to issue a final decision if 
necessary.

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 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) John Broadley (representing INRD), John H. 
Broadley & Associates, P.C., 1054 31st Street, NW., Suite 200, 
Washington, DC 20007; (4) Terence M. Hynes (representing Soo), Sidley 
Austin Brown & Wood, 1501 K Street, NW., 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 
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January 27, 2006, 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: Soo, a Class I railroad,\2\ is a Minnesota 
Corporation that operates approximately 3,500 miles of track in the 
States of Illinois, Indiana, Kentucky, Michigan, Minnesota, North 
Dakota, South Dakota, and Wisconsin. Soo is a wholly owned subsidiary 
of Canadian Pacific Railway Company (CPRC).\3\ CPRC is a Canadian 
corporation whose stock is publicly held and traded on the New York and 
Toronto stock exchanges. Soo acquired its Chicago-Louisville line on 
February 20, 1985, as part of its purchase of the core rail system of 
the bankrupt Chicago, Milwaukee, St. Paul and Pacific Railroad Company 
(Milwaukee).\4\
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    \2\ 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).
    \3\ Soo, its parent, CPRC, and its affiliate, Delaware and 
Hudson Railway Company, Inc., collectively do business under the 
name ``Canadian Pacific Railway.''
    \4\ See Milwaukee--Reorganization--Acquisition by GTC, 2 
I.C.C.2d 161 (1984); Milwaukee--Reorganization--Acquisition by GTC, 
2 I.C.C.2d 427 (1985); aff'd sub nom. In the Matter of Chicago, 
Milwaukee, St. Paul and Pacific Railroad, Debtor, 799 F.2d 317 (7th 
Cir. 1986).
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    INRD currently owns and operates a line of railroad running between 
Indianapolis, IN, and Newton, IL, a total distance of 155 miles. This 
line intersects Soo's Chicago-Louisville line at Linton, IN. INRD was 
formed in 1986 and has built its traffic base from approximately 12,000 
carloads in its first full year of operation, to 105,810 carloads in 
2004. INRD's revenues are generated primarily (i) from coal moves to 
Indianapolis Power & Light's (IP&L) Harding Street power plant at 
Indianapolis, IN, to Ameren's power plant at Lis, IL, and to Hoosier 
Energy's power plant at Merom, IN, and (ii) from chemical, plastics, 
and petroleum feedstock movements to and from plants in Robinson, IL. 
INRD reports that, by the end of 2005, its revenues will have exceeded 
the threshold for Class II carrier status for 3 consecutive years; 
accordingly, in January 2006, INRD will be reclassified as a Class II 
carrier under the Board's regulations.
    CSX Transportation, Inc. (CSXT) currently owns 85% of the common 
stock of Midland United,\5\ which in turn owns 100% of the common stock 
of INRD. Thomas G. Hoback, president of INRD and of Midland United, 
owns the remaining 15% of Midland United's common stock. The applicants 
submit that, at the time CSXT acquired control of INRD, it was 
contemplated that INRD would remain a separate short line or regional 
railroad and would not be functionally integrated into CSXT. The 
applicants state that this approach has been followed, and INRD retains 
its separate engineering, operating, mechanical, marketing, accounting 
and labor relations functions.
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    \5\ See CSX Corporation and CSX Transportation, Inc.--Control--
The Indiana Rail Road Company, STB Finance Docket No. 32892 (STB 
served Nov. 7, 1996).
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    The Transaction for which the applicants seek approval consists of 
INRD's: (a) Purchase of Soo's Latta Subdivision; (b) acquisition by 
assignment of all of Soo's right, title and interest in and to the Main 
Line Trackage Rights; and (c) acquisition by assignment of all of Soo's 
right, title and interest in and to the Ancillary Trackage Rights. 
Collectively, the Latta Subdivision, the Main Line Trackage Rights, and 
the Ancillary Trackage Rights are referred to herein as the Acquired 
Lines.
    The Latta Subdivision. The Latta Subdivision extends from milepost 
170.1 at Fayette, IN, to milepost 262.4 at Bedford, IN, a distance of 
92.3 miles. The Latta Subdivision includes the Latta Branch, which runs 
westerly from the main line of the Latta Subdivision for approximately 
8.5 miles, commencing at approximately milepost 204.3 on the Latta 
Subdivison. The Latta Subdivision also includes Soo's Latta Yard and 
the shop facilities located there, as well as various side tracks, spur 
tracks, connections and other related rail properties.
    The Main Line Trackage Rights. The Main Line Trackage Rights to be

[[Page 2297]]

assigned to INRD consist of the following:
    (i) Overhead trackage to operate over and use certain trackage of 
Union Pacific Railroad Company (UP) between 80th Street, Chicago, and 
Dolton Junction, IL, on terms established pursuant to the trackage 
rights agreement between Soo and Missouri Pacific Railroad Company, 
dated August 23, 1995, as amended, a distance of 8.32 miles. The 
trackage rights are assignable with the consent of UP, which should not 
be unreasonably withheld;
    (ii) Overhead trackage rights to operate over and use certain 
trackage of CSXT and UP from Dolton Junction, IL, to Woodland Junction, 
IN, on terms established by the agreement between Soo and CSXT, dated 
November 23, 1988, as amended, a distance of 65.7 miles.\6\ The 
trackage rights are assignable with the consent of CSXT;
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    \6\ CSXT and UP jointly own the Dolton Junction to Woodland 
Junction line. Each has the right unilaterally to grant trackage 
rights over the line.
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    (iii) Overhead trackage rights to operate over and use certain 
trackage of CSXT from Woodland Junction, IN, to Terre Haute, IN, as 
established by the agreement between Soo and CSXT, dated November 23, 
1988, as amended, a distance of 99.6 miles. The trackage rights are 
assignable with the consent of CSXT;
    (iv) Overhead trackage rights to operate over and use certain 
trackage of CSXT from Bedford, IN, to New Albany, IN, on terms 
established by the agreement between Louisville & Nashville Railroad 
Company (L&N) and Milwaukee, dated July 17, 1973, as amended, a 
distance of 71.77 miles. The trackage rights are assignable with the 
consent of CSXT; and
    (v) Rights to use the property of the former Kentucky & Indiana 
Terminal Company (K&ITC) between New Albany, IN, and Louisville, KY, 
and within Louisville, KY, on terms originally set forth in the 
agreement dated March 1, 1973, by and among K&ITC, the Baltimore & Ohio 
Railroad Company, L&N, Southern Railway Company and Milwaukee. Soo's 
rights under the Louisville Terminal Agreement are assignable without 
the approval of Norfolk Southern Railway Company (successor to 
Southern).
    The Ancillary Trackage Rights. The Ancillary Trackage Rights to be 
assigned to INRD are as follows:
    (i) Overhead trackage rights to operate over and use certain 
trackage rights of Indiana Southern Railroad (ISRR) from Elnora, IN, to 
Maysville, IN, on terms established by the agreement governing Soo's 
grant of trackage rights to ISRR, dated April 15, 1993, a distance of 
19.6 miles. The agreement is assignable without ISRR's consent in 
connection with a sale of all or substantially all of Soo's interest in 
its line between Terre Haute and Bedford;
    (ii) Overhead trackage rights to operate over and use certain 
trackage of ISRR from Beehunter, IN, to Sandborn, IN, on terms 
established by the agreement between Consolidated Rail Corporation 
(Conrail) and Milwaukee, dated June 28, 1985, as amended, a distance of 
6.12 miles. ISRR's consent is required for the assignment of the 
trackage rights except in connection with the sale or assignment of all 
or substantially all of Soo's properties; and
    (iii) The option to acquire trackage rights under specified 
conditions on ISRR's line between Elnora, IN, and Evansville, IN, on 
terms established by the agreement between Soo and ISRR, dated April 
15, 1993, whereby Soo obtained the option to acquire such trackage 
rights in exchange for ISRR's receipt of trackage rights over Soo's 
line between Beehunter, IN, and Elnora, IN.
    The applicants are in the process of obtaining consents for the 
assignments where required and anticipate receiving them prior to the 
closing of the Transaction.
    In addition, INRD and Soo have entered into three agreements 
dealing with their future relationship: (1) The ``Power Run Through 
Agreement,'' which establishes terms under which CPRC will supply run-
through power for potash trains originating on CPRC and destined for 
Jeffersonville, IN, and the terms under which INRD will supply run-
through power for petroleum coke trains originating in Rosemount, MN, 
and destined for the gasification facility at Fayette, IN; (2) the 
``Interchange Agreement,'' which establishes terms under which CPRC and 
INRD will interchange traffic at Chicago; and (3) the ``Marketing and 
Divisions Agreement,'' which establishes divisions and other commercial 
arrangements between INRD and CPRC.
    Financial Arrangements. INRD advises that it does not plan on any 
new financial arrangements in connection with the Transaction. No new 
securities will be issued. INRD will finance the Transaction with bank 
loans.
    Passenger Service Impacts. The Transaction would have no impact on 
commuter or passenger operations because the Acquired Lines have no 
commuter or other passenger service.
    Discontinuances/Abandonments. INRD does not contemplate any 
discontinuances or abandonments as a result of the Transaction.
    Public Interest Considerations. Applicants assert that, if 
approved, the Transaction would promote 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.
    Specifically, applicants assert that the Transaction would produce 
significant operating efficiencies and service improvements. Currently, 
INRD and Soo's lines intersect at Linton, IN. Under an interchange 
agreement, Soo currently interchanges a substantial amount of coal 
traffic originating on the Latta Subdivision with INRD. Combining the 
Acquired Lines with INRD's existing system would allow for greater 
operating efficiencies than those made possible by the current INRD-Soo 
interchange agreement.
    INRD states that it would be able to operate more efficiently on 
the Acquired Lines and on its existing lines by making Soo's Latta 
Yard, which is located close to the geographic center of the Acquired 
Lines and INRD's existing system, the central hub of the combined 
system. INRD's operating plan contemplates that trains would operate 
between Latta Yard, on one hand, and Indianapolis, IN, Louisville, KY, 
Palestine, IL, and Terre Haute, IN, on the other hand. Blocks of cars 
would be swapped between trains at Latta Yard into a simple hub and 
spoke approach. This approach, INRD believes, would improve the 
utilization of INRD train crews and locomotives, by eliminating 
unnecessary dead head miles and reducing locomotive idle time. The 
applicants further note that the Transaction would generate 
efficiencies by enabling INRD to consolidate all of its locomotive 
repair work and some of its car repair activities at the locomotive 
shop and car repair facility at Latta Yard. Lastly, INRD plans to 
consolidate the dispatching of its entire system at Terre Haute, as 
well as its customer service functions.
    Applicants submit that the Transaction would improve the level of 
service to local shippers on the Acquired Lines by reducing transit 
time, increasing local service, and providing an additional intermodal 
service facility, in addition to service improvements on traffic that 
is now interchanged between Soo and INRD, as INRD assumes full control 
of the moves.
    Applicants further note that the Transaction would allow for an 
improved marketing focus, which would attract additional traffic. As 
the Acquired Lines' original function as a bridge for traffic moving 
between the Chicago gateway and points in the

[[Page 2298]]

Southeast has been rendered obsolete by industry consolidation, the 
Acquired Lines must now rely upon traffic originating or terminating at 
local points on those lines. INRD's marketing experience in, and 
proximity to, central and southern Indiana would permit it to develop 
closer relationships with local shippers. In addition, the proximity of 
the Acquired Lines to INRD's existing line would enable INRD to be more 
responsive to the equipment requirements of local shippers.
    Applicants submit that the Transaction would not result in a 
substantial lessening of competition for overhead traffic between 
Chicago and the Southeast. Applicants stress that rail consolidations 
have rendered Soo's Chicago-Louisville line competitively irrelevant as 
an overhead route. Thus, INRD's acquisition of the Acquired Lines would 
have no material competitive impact on overhead traffic between Chicago 
and the Southeast.
    The applicants further assert that there would be no lessening of 
competition for traffic originating and/or terminating on the Acquired 
Lines. This applies to the shipment of on-line coal, off-line coal, 
received petroleum coke, plastics, and potash. The applicants state 
that no shipper would be left without competitive options as a result 
of the Transaction, and INRD would not acquire any market power through 
its purchase of the Acquired Lines.
    Lastly, INRD believes that its acquisition of the Acquired Lines 
would provide it with more opportunities to compete effectively with 
motor carriers than is the case today, and to divert traffic from truck 
to rail.
    Time Schedule for Consummation. If the Board approves the 
Transaction, applicants intend to consummate the transaction on May 25, 
2006, or as soon thereafter as permitted by the Board.
    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 the 
Transaction does not require environmental documentation under 49 CFR 
1105.6(b)(4).
    Historic Preservation Impacts. Applicants contend that a historic 
report is not required because INRD would operate the Acquired Lines 
and would require further Board approval to discontinue service or 
abandon any service. According to applicants, 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 a historic 
report under 49 CFR 1105.8(b)(1) is not required.
    Labor Impacts. Soo states that no Soo employee currently working on 
the Acquired Lines would lose the opportunity for continued employment 
on Soo as a result of the Transaction. As of December 1, 2005, Soo 
employed 77 persons on the Acquired Lines. Upon conveyance of the 
Acquired Lines to INRD, Soo would no longer operate over those lines 
and would therefore abolish all jobs on the Acquired Lines. All Soo 
agreement employees on the Acquired Lines have seniority under their 
collective bargaining agreements that would entitle them to hold 
positions at other locations in Soo's core territory. In addition, Soo 
notes that INRD would need experienced railroad employees to operate 
the Acquired Lines and would accept applications for employment from 
Soo's current employees. Soo employees who are not offered employment 
by INRD, or who decline INRD offers of employment, could elect to 
exercise their existing Soo seniority to take jobs in their crafts 
elsewhere on Soo. The one management employee on the Acquired Lines 
would be relocated.
    INRD expects to be able to handle the combined operation of the 
Acquired Lines and its existing line with 41 additional employees. INRD 
plans to hire the additional 41 people needed to operate the Acquired 
Lines by taking applications and hiring on the basis of those 
applications. Applications from current Soo employees who work on the 
Acquired Lines would be treated on an equal basis with all others 
received. INRD has entered preliminary discussions with the Brotherhood 
of the Locomotive Engineers and Trainmen (BLET), representing INRD's 
train and engine personnel, regarding the terms of an implementing 
agreement, covering the extent to which former Soo employees hired by 
INRD are given credit for their prior employment within INRD's 
seniority system. INRD expects to be able to reach a consensual 
implementing agreement with BLET, and would notify the Board when such 
agreement has been reached.
    INRD expects to change the reporting point for many of its train 
and engine personnel from Switz City to Latta Yard. INRD also expects 
to relocate six mechanical positions from Switz City to Latta Yard. 
While six mechanical positions would be relocated, only three employees 
would actually be affected. One of the positions is currently vacant 
and, if it is filled before the move, the person filling it would be 
aware that it would be moved to Latta after consummation of the 
Transaction. Two other positions are filled by employees who are moving 
to new types of positions, not mechanical work. INRD would also 
relocate five dispatchers from Indianapolis, IN, to Terre Haute, IN, 
when it consolidates dispatching of the combined operation at that 
location. INRD also would move some car repair activities from 
Indianapolis and Palestine to Latta Yard. INRD's car repair work is 
performed by outside contractors so no INRD employees would be affected 
by this move.
    Protective Conditions. For the 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. ICC, 930 F.2d 511 (6th Cir. 1991). Some of the Soo 
employees who may be affected would be entitled to elect, 
alternatively, to receive benefits under provisions of existing 
employee protective agreements that are in effect on Soo.
    Application Accepted. The Board finds that the proposed Transaction 
would be a ``minor transaction'' under 49 CFR 1180.2(c), and the Board 
is accepting the 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.
    Public Inspection. The 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 Mr. Hynes (representing 
Soo) and Mr. Broadley (representing INRD) at the addresses indicated 
above.
    Procedural Schedule. The Board has considered applicants' INRD-3/
SOO-3 request (filed December 15, 2005) for a procedural schedule, 
under which the Board would issue its final decision on April 24, 2006, 
and that decision would become effective on May 24, 2006.
    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 March 22,

[[Page 2299]]

2006, 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 March 20, 2006. Further, 
although applicants' schedule provides the notice of acceptance of 
application to be published in the Federal Register on January 17, 
2006, the Board's schedule provides for publication on January 13, 
2006, to make the schedule consistent with the Board's normal operating 
procedure.
    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 January 27, 2006, 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 February 
21, 2006; 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 March 8, 2006. As in 
past proceedings, DOJ and DOT will be allowed to file, on the response 
due date (here, March 8), 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 March 20, 2006. The Board will issue its final decision on 
April 24, 2006, and the Board will make any such approval effective on 
May 24, 2006. 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 January 27, 2006, 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. Hynes 
(as representative of Soo), and Mr. Broadley (as representative of 
INRD).
    Service List Notice. The Board will serve, as soon after January 
27, 2006, 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 February 
21, 2006.
    Because the Transaction proposed in the 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 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 (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 primary application or 
either of the related filings, must be filed by March 8, 2006.
    Public Hearing/Oral Argument. The Board may hold a public hearing 
or an oral argument in this proceeding the week of March 20, 2006.
    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 for which the 
environmental effects are ordinarily insignificant, an environmental 
review need not be conducted under the National Environmental Policy 
Act of 1969 (NEPA).\7\ Rather, such activities are covered by a 
``categorical exclusion.'' In its environmental rules, the Board has 
various categorical exclusions.\8\ As pertinent here, where portions of 
the Acquired Lines are located in an air quality ``nonattainment'' 
area, 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% in 
traffic (measured in gross ton miles annually)--normally requires no 
environmental review. 49 CFR 1105.6(c)(2)(i).
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    \7\ 40 CFR 1500.4(p), 1501.4(a)(2), 1508.4.
    \8\ 49 CFR 1105.6(c).
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    Applicants state that the traffic increases they project to occur, 
should this proposal be approved, consist of increasing local service 
to and from Louisville, KY, from 3 days per week to 5 days per week. 
Applicants maintain that the contemplated changes would improve service 
to shippers and would create operational efficiencies.
    While INRD believes that these efficiencies would eventually 
attract additional rail traffic, including diversion from trucks, 
applicants state that the potential traffic increases would not result 
in any changes in operations that exceed the Board's thresholds for 
environmental documentation established in the Board's environmental 
rules at 49 CFR 1105.7(e)(5)(ii), 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 proceeding is 
``categorically excluded'' from environmental review under NEPA.
    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 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 January 27); a certificate of 
service indicating service of prior pleadings on persons designated as 
PORs on the service-list notice (due

[[Page 2300]]

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 February 21); and any responses to comments, 
etc., and any rebuttal in support of the primary application or either 
of the related filings (due by March 8).
    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) John Broadley 
(representing INRD), John H. Broadley & Associates, P.C., 1054 31st 
Street, NW., Suite 200, Washington, DC 20007; (4) Terence M. Hynes 
(representing Soo), Sidley Austin Brown & Wood, 1501 K Street, NW., 
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 public version of 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 application in STB Finance Docket No. 34783 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 January 13, 2006.

    Decided: January 9, 2006.

    By the Board, Chairman Buttrey and Vice Chairman Mulvey.
Vernon A. Williams,
Secretary.

Appendix A: Procedural Schedule

December 15, 2005--Application, motion for protective order, and 
request for issuance of procedural schedule filed.
December 22, 2005--Protective order issued. January 13, 2006--Board 
notice of acceptance of application published in the Federal 
Register.
January 27, 2006--Notices of intent to participate in this 
proceeding due.
February 21, 2006--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.
March 8, 2006--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 March 20, 2006--A public hearing or oral argument may be 
held.
April 24, 2006--Date of service of final decision.
May 24, 2006--Effective date of final decision.

[FR Doc. 06-337 Filed 1-12-06; 8:45 am]
BILLING CODE 4915-01-P