[Federal Register Volume 77, Number 128 (Tuesday, July 3, 2012)]
[Notices]
[Pages 39571-39572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16277]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Docket No. MCF 21047]\1\


Frank Sherman, FSCS Corporation, TMS West Coast, Inc.,
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    \1\ A request for interim approval under 49 U.S.C. 14303(i) and 
49 CFR 1182.7 was included in this filing (Docket No. MCF 21047 TA). 
In a decision served on June 29, 2012, interim approval was granted, 
effective on the service date of the decision.
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    Evergreen Trails, Inc. and Cabana Coaches, LLC--Acquisition and 
Consolidation of Assets--America Charters, LTD., American Coach Lines 
of Jacksonville, Inc., American Coach Lines of Miami, Inc., American 
Coach Lines of Orlando, Inc., CUSA ASL, LLC, CUSA BCCAE, LLC, CUSA CC, 
LLC, CUSA FL, LLC, CUSA GCBS, LLC, CUSA GCT, LLC, CUSA K-TCS, LLC, and 
Midnight Sun Tours, Inc.
AGENCY: Surface Transportation Board, DOT.

ACTION: Notice of Finance Application.

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SUMMARY: On June 4, 2012, Frank Sherman, an individual who controls 
motor passenger carriers, together with FSCS Corporation, a noncarrier 
holding company; TMS West Coast, Inc., a noncarrier holding company; 
Evergreen Trails, Inc. d/b/a Horizon Coach Lines (Evergreen), an 
interstate motor passenger carrier; and Cabana Coaches, LLC (Cabana), 
an interstate motor passenger carrier (collectively, Applicants) filed 
an application for approval under 49 U.S.C. 14303 to acquire the assets 
of 12 separate interstate motor passenger common carrier subsidiaries 
of noncarrier Coach America Holdings, Inc. (Coach America)--American 
Charters, Ltd. (Charters); American Coach Lines of Jacksonville, Inc. 
(Coach-Jacksonville); American Coach Lines of Miami, Inc. (Coach-
Miami); American Coach Lines of Orlando, Inc. (Coach-Orlando); CUSA 
ASL, LLC; CUSA BCCAE, LLC; CUSA CC, LLC; CUSA FL, LLC; CUSA GCBS, LLC; 
CUSA GCT, LLC; CUSA K-TCS, LLC; and Midnight Sun Tours, Inc. (Midnight 
Sun) (collectively, Coach America Subsidiaries)--and to consolidate 
certain of those assets into Evergreen and others into Cabana.
    Specifically, the transaction contemplates that: (1) the assets of 
Charters; Coach-Jacksonville; Coach-Orlando; CUSA ASL, LLC; CUSA BCCAE, 
LLC; CUSA CC, LLC; CUSA FL, LLC; CUSA GCBS, LLC; CUSA GCT, LLC; and 
CUSA K-TCS, LLC, would be purchased by either FSCS or Evergreen to be 
operated under the Horizon Coach Lines name; and (2) the assets of 
Coach-Miami and Midnight Sun would be purchased by either FSCS or 
Cabana and consolidated into Cabana. Cabana would also adopt the d/b/a 
name ``Horizon Coach Lines,'' and the assets consolidated into Cabana 
would be operated under that name. Under an asset purchase agreement 
that was entered into on May 18, 2012, see infra, another company 
controlled by Sherman, Transportation Management Services, Inc. (TMS), 
obtained the right to purchase the Coach America Subsidiaries. TMS is 
to assign its right to purchase to either FSCS or to Evergreen and 
Cabana. If TMS assigns its right to purchase to Evergreen and Cabana, 
Cabana will receive the right to purchase the assets of Coach-Miami and 
Midnight Sun and Evergreen will receive the right to purchase the 
assets of all of the other Coach America Subsidiaries identified above.
    On June 6, 2012, Michael Yusim, an individual, filed a letter in 
opposition to the proposed transaction, asserting that the public 
interest would not be served by allowing the transaction to proceed 
until two cases before the Secretary of Labor (Secretary) are 
completed. On June 19, 2012, the Ventura County Transportation 
Commission (VCTC), a California public agency that operates a regional 
bus system with connections to municipal and local transit operators, 
filed a request for delay of the proposed acquisition of assets or for 
conditions. Copies of this notice will be served on Mr. Yusim and VCTC. 
Persons wishing to oppose the application must follow the rules set 
forth at 49 CFR 1182.5 and 1182.8.

DATES: Comments must be filed by August 17, 2012. Applicants may file a 
reply by September 4, 2012.

ADDRESSES: Send an original and 10 copies of any comments referring to 
Docket No. MCF 21047 to: Surface Transportation Board, 395 E Street 
SW., Washington, DC 20423-0001. In addition, send one copy of comments 
to Applicants' representative: David H. Coburn, Steptoe & Johnson LLP, 
1330 Connecticut Avenue NW., Washington, DC 20036.

FOR FURTHER INFORMATION CONTACT: Marc Lerner, (202) 245-0390. [Federal 
Information Relay Service (FIRS) for the hearing impaired: 1-800-877-
8339.]

SUPPLEMENTARY INFORMATION: The Coach America Subsidiaries are currently 
involved in proceedings instituted under Chapter 11 of the Bankruptcy 
Code, having filed a voluntary petition for relief with the U.S. 
Bankruptcy Court for the District of Delaware on January 3, 2012. On 
January 13, 2012, the Coach America Subsidiaries also filed a motion to 
sell substantially all of their assets and effectively to liquidate. 
According to Applicants, the proposed acquisition is evidenced by an 
Asset Purchase Agreement that was entered into by the parties on May 
18, 2012, and was approved by the bankruptcy court at a hearing on May 
22, 2012.
    On June 6, 2012, Mr. Yusim filed a letter in opposition to both the 
request for interim approval and the application for permanent 
authority. Applicants filed a reply to Mr. Yusim's letter on June 11, 
2012, and Mr. Yusim responded on June 12, 2012. The basis for Mr. 
Yusim's opposition relates to two cases alleging that Midnight Sun 
discriminated against him and another driver, both employed by Midnight 
Sun, for having accurately reported their hours of service. According 
to Mr. Yusim, the two cases are pending before the Secretary, but have 
been stayed by the bankruptcy court. Mr. Yusim requests that the Board 
disallow the sale of any subsidiaries of Coach America until the 
Secretary is allowed to hear the two cases.
    On June 19, 2012, the Ventura County Transportation Commission 
(VCTC), a California public agency that operates a regional bus, filed 
a pleading stating that CUSA CC, LLC, is in violation of its operating 
agreement with VCTC because it has given insufficient notice of its 
intent to terminate the services it provides for VCTC and its riders, 
and that the communications VCTC has had with CUSA CC, LLC and TMS have 
led only to a possibility that these services could continue through 
July 2012. VCTC requests either that the proposed acquisition of assets 
be delayed or that conditions be placed on the transaction to assure 
both adequate time to find a new contractor to provide these 
``essential'' services and a surviving entity to charge with breach of 
contract.
    We have, by separate decision, granted Applicants interim approval 
to acquire management and operational control of the assets under 49 
U.S.C. 14303(i) and the Board's regulations at

[[Page 39572]]

49 CFR 1182.7(b). Those provisions permit us to grant interim approval 
to a transaction if it appears that a failure to do so may result in 
destruction of, or injury to, the involved properties or substantially 
interfere with their future usefulness in providing adequate and 
continuous service to the public. See supra note 1. Because we have 
received timely comments in opposition to the application, however, we 
will not grant tentative authority under 49 CFR 1182.4(b). See 49 
CFR1182.6(a). Instead, we will institute a proceeding to address this 
matter as well as to determine the merits of the application pursuant 
to 49 U.S.C. 14303. Comments and responses are to be submitted as 
ordered below. See 49 CFR 1182.5 & 1182.6.
    Board decisions and notices are available on our Web site at 
``www.stb.dot.gov.''
    This decision will not significantly affect either the quality of 
the human environment or the conservation of energy resources.
    It is ordered:
    1. Comments must be filed by August 17, 2012. Applicants may file a 
reply to any comments by September 4, 2012.
    2. This notice will be effective on its date of service.
    3. A copy of this decision will be served on: (1) The U.S. 
Department of Transportation, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Ave. SE., Washington, DC 20590; (2) the 
U.S. Department of Justice, Antitrust Division, 950 Pennsylvania Ave. 
NW., Washington, DC 20530; (3) the U.S. Department of Transportation, 
Office of the General Counsel, 1200 New Jersey Ave. SE., Washington, DC 
20590; (4) the Federal Trade Commission, Bureau of Competition, 
Premerger Notification Office, 600 Pennsylvania Ave. NW., Washington, 
DC 20580; (5) Michael Yusim, 7499 Eagle Point Dr., Delray Beach, FL 
33446; and (6) Mitchel B. Kahn, 300 Esplanade Dr., Suite 1170, Oxnard, 
CA 93036.

    Decided: June 28, 2012.

    By the Board, Chairman Elliott, Vice Chairman Mulvey, and 
Commissioner Begeman.
Derrick A. Gardner,
Clearance Clerk.
[FR Doc. 2012-16277 Filed 7-2-12; 8:45 am]
BILLING CODE 4915-01-P