[Federal Register Volume 86, Number 78 (Monday, April 26, 2021)]
[Notices]
[Pages 22091-22092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08493]



[[Page 22091]]

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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36472; Docket No. FD 36472 (Sub-No. 1); Docket No. FD 
36472 (Sub-No. 2); Docket No. FD 36472 (Sub-No. 3); Docket No. FD 36472 
(Sub-No. 4); Docket No. FD 36472 (Sub-No. 5); Docket No. AB 1312X]


CSX Corporation and CSX Transportation, Inc., et al.--Control and 
Merger--Pan Am Systems, Inc., Pan Am Railways, Inc., Boston and Maine 
Corporation, Maine Central Railroad Company, Northern Railroad, Pan Am 
Southern LLC, Portland Terminal Company, Springfield Terminal Railway 
Company, Stony Brook Railroad Company, and Vermont & Massachusetts 
Railroad Company; Norfolk Southern Railway--Trackage Rights Exemption--
CSX Transportation, Inc.; Norfolk Southern Railway--Trackage Rights 
Exemption--Providence & Worcester Railroad; Norfolk Southern Railway--
Trackage Rights Exemption--Boston & Maine Corp.; Norfolk Southern 
Railway--Trackage Rights Exemption--Pan Am Southern LLC; Pittsburg & 
Shawmut Railroad--Operation Exemption--Pan Am Southern LLC; SMS Rail 
Lines of New York, LLC--Discontinuance Exemption--in Albany County, NY

AGENCY: Surface Transportation Board.

ACTION: Decision No. 2 in STB Finance Docket No. 36472; Notice of 
Proposed Procedural Schedule and Request for Comments.

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SUMMARY: The Surface Transportation Board (Board) invites public 
comments on a proposed procedural schedule for this proceeding. On 
February 25, 2021, CSX Corporation (CSXC), CSX Transportation Inc. 
(CSXT), 747 Merger Sub 2, Inc. (747 Merger Sub 2), Pan Am Systems, Inc. 
(Systems), Pan Am Railways, Inc. (PAR), Boston and Maine Corporation 
(Boston & Maine), Maine Central Railroad Company (Maine Central), 
Northern Railroad (Northern), Portland Terminal Company (Portland 
Terminal), Springfield Terminal Railway Company (Springfield Terminal), 
Stony Brook Railroad Company (Stony Brook), and Vermont & Massachusetts 
Railroad Company (V&M) (collectively, Applicants) submitted a filing 
with the Board. The applicants are seeking approval for: (1) CSXC, 
CSXT, and 747 Merger Sub 2 to control the seven railroads controlled by 
Systems and PAR, and (2) CSXT to merge six of the seven railroads into 
CSXT. In Decision No. 1, served and published on March 25, 2021, the 
Board accepted the February 25 submission as a prefiling notification, 
thus allowing Applicants to supplement their submission with the 
requisite information for a ``significant'' transaction in accordance 
with the Board's regulations, between April 25 and June 25, 2021 (i.e., 
two to four months after the prefiling notice was submitted).

DATES: Written comments on the Board's proposed procedural schedule 
must be filed by May 6, 2021.

ADDRESSES: Any filing submitted in this proceeding should be filed with 
the Board via e-filing on the Board's website. In addition, one copy of 
each filing must be sent (and may be sent by email only if service by 
email is acceptable to the recipient) to each of the following: (1) 
Secretary of Transportation, 1200 New Jersey Avenue SE, 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) CSX's \1\ and 747 Merger Sub 2's 
representative, Anthony J. LaRocca, Steptoe & Johnson LLP, 1330 
Connecticut Ave. NW, Washington, DC 20036; (4) Systems',\2\ PAR's, and 
PAR Railroads' representative, Robert B. Culliford, Pan Am Systems, 
Inc., 1700 Iron Horse Park, North Billerica, MA 01862; and (5) any 
other person designated as a Party of Record on the service list.
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    \1\ CSXT is a wholly owned subsidiary of CSXC. CSXC and CSXT are 
referred to collectively as CSX.
    \2\ Systems directly and wholly owns PAR, which in turn directly 
and wholly owns four rail carriers: Boston & Maine, Maine Central, 
Portland Terminal, and Springfield Terminal. Boston & Maine directly 
and wholly owns Northern and Stony Brook, as well as a 98% interest 
in V&M. These seven rail carriers will be referred to collectively 
as the PAR Railroads.

FOR FURTHER INFORMATION CONTACT: Amy Ziehm at (202) 245-0391. 
Assistance for the hearing impaired is available through the Federal 
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Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION: On April 1, 2021, Applicants filed a 
petition to establish a revised procedural schedule as directed by the 
Board in Decision No. 1. The Board will propose modifications to the 
Applicants' proposed schedule. Under 49 U.S.C. 11325(c), the Board must 
conclude the evidentiary proceedings for a significant transaction no 
later than 180 days after publication of notice in the Federal Register 
that the Board has accepted the application. Here, the Applicants have 
proposed a schedule in which the record would close 127 days after 
Federal Register publication. Although section 11325(c) allows the 
Board to set a shorter schedule, the Board finds that a schedule based 
on the full 180 days allowed by the statute is more appropriate. As the 
Board noted in Decision No. 1, slip op. at 8, in a ``significant'' 
transaction proceeding, applicants are required to submit more detailed 
information regarding competitive effects, operating plans, and other 
issues than in a ``minor'' transaction proceeding. Also, unlike in a 
``minor'' transaction proceeding, parties in a ``significant'' 
transaction proceeding are permitted to file responsive applications, 
including inconsistent applications. Id. Given these procedural 
features of ``significant'' transactions, the Board finds that the 
schedule proposed by Applicants would be too compressed. Indeed, the 
Applicants' proposed 127-day schedule here is only 22 days longer than 
the 105-day schedule \3\ the Applicants proposed when they sought to 
classify this transaction as ``minor.'' \4\ (See Notice 14.) Moreover, 
the Applicants provide no explanation why such an expedited schedule is 
needed. Therefore, the Board will propose the following procedural 
schedule.\5\
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    \3\ A 105-day schedule is the maximum time permitted for the 
evidentiary proceeding in a ``minor'' transaction under 49 U.S.C. 
11325(d).
    \4\ Applicants' submission was filed as an application for 
approval as a ``minor'' transaction pursuant to 49 CFR 1180.2(c). 
However, in Decision No. 1, the Board found that the proposed 
transaction should be classified as a ``significant'' transaction, 
which must meet different procedural and informational requirements, 
and that Applicants' submission therefore could not be treated as an 
application. The Board determined that it would consider the 
February 25, 2021 submission a prefiling notification, as required 
in significant transactions. See 49 CFR 1180.4(b)(1).
    \5\ The schedule proposed here is similar in duration to the 
schedule adopted for a ``significant'' transaction in Canadian 
Pacific Railway--Control--Dakota, Minnesota & Eastern Railroad, FD 
35081 (STB served Dec. 27, 2007).

 
 
 
April 26, 2021.........................  Application due.
May 26, 2021...........................  Board notice of acceptance of
                                          application to be published in
                                          the Federal Register.
June 16, 2021..........................  Notices of intent to
                                          participate in this proceeding
                                          due.

[[Page 22092]]

 
June 25, 2021..........................  Descriptions of anticipated
                                          responsive, including
                                          inconsistent, applications
                                          due. Petitions for waiver or
                                          clarification with respect to
                                          such applications due.
                                          Comments, protests, requests
                                          for conditions, and any other
                                          evidence and argument in
                                          opposition to the Application
                                          or Related Transactions due.
                                          This includes any comments
                                          from the U.S. Department of
                                          Justice (DOJ) and U.S.
                                          Department of Transportation
                                          (USDOT).\6\
July 26, 2021..........................  Responsive, including
                                          inconsistent, applications
                                          due.
September 8, 2021......................  Responses to comments,
                                          protests, requests for
                                          conditions, and other
                                          opposition due, including to
                                          DOJ and USDOT filings.
                                          Responses to responsive,
                                          including inconsistent,
                                          applications due. Rebuttal in
                                          support of the Application and
                                          Related Transactions due.
October 8, 2021........................  Rebuttal in support of
                                          responsive, including
                                          inconsistent, applications
                                          due.
TBD....................................  Public hearing (if
                                          necessary).\7\
November 22, 2021......................  Final briefs due.\8\ (Close of
                                          the record.)
February 18, 2022......................  Service date of final decision.
March 20, 2022.........................  Effective date of final
                                          decision.
 

    The Board invites all interested persons to submit written comments 
on the proposed procedural schedule. Comments must be filed by May 6, 
2021. The proposed dates in this decision are subject to change 
depending on the comments received or other circumstances.
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    \6\ Although Applicants propose that such filings be due on July 
9, 2021, which would be 44 days after the Federal Register notice 
accepting the application, section 11325(c)(1) calls for such 
filings to be submitted 30 days after the Federal Register notice.
    \7\ The Board will decide whether to conduct a public hearing, 
which would be held between the filing of rebuttals and final 
briefs, in a later decision after the record has been more fully 
developed. See 49 U.S.C. 11324(a) (``The Board shall hold a public 
hearing unless the Board determines that a public hearing is not 
necessary in the public interest.'').
    \8\ The Board will also determine the page limits for final 
briefs in a later decision after the record has been more fully 
developed.
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    The Board notes that Applicants' proposed procedural schedule 
included a due date for the filing of their Safety Integration Plan 
(SIP), as required by 49 CFR 1180.1(f)(3). The Board considers the SIP 
as part of its environmental review process or, if an environmental 
review is not required, the Board will establish case-specific 
procedures. 49 CFR 1106.4(b), (c). Applicants claim that an 
environmental review would not be required for this transaction. 
(Notice 34-38; CSXC and CSXT Letter to Danielle Gosselin, Acting 
Director, OEA, Apr. 7, 2021 (Environmental Comment EI-30550).) The 
Board's Office of Environmental Analysis is reviewing information 
submitted by Applicants on the transaction's anticipated environmental 
impacts and the Board will address environmental review issues in a 
subsequent decision.

    Decided: April 19, 2021.

    By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and 
Schultz.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2021-08493 Filed 4-23-21; 8:45 am]
BILLING CODE 4915-01-P