[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