[Federal Register Volume 86, Number 238 (Wednesday, December 15, 2021)]
[Notices]
[Pages 71314-71316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27161]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36472 \1\]


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

AGENCY: Surface Transportation Board.

ACTION: Notice of public hearing; page limit for final briefs.

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SUMMARY: The Surface Transportation Board (Board) will hold a public 
hearing in this docket on January 13, 2022. The hearing will be 
entirely virtual and held online. If necessary, the hearing will 
continue on January 14, 2022. All interested persons are invited to 
appear. Additionally, the Board will set a limit of 20 pages on the 
filing of final briefs.
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    \1\ This decision embraces the following dockets: Norfolk 
Southern Railway--Trackage Rights Exemption--CSX Transportation, 
Inc., Docket No. FD 36472 (Sub-No. 1); Norfolk Southern Railway--
Trackage Rights Exemption--Providence & Worcester Railroad, Docket 
No. FD 36472 (Sub-No. 2); Norfolk Southern Railway--Trackage Rights 
Exemption--Boston & Maine Corp., Docket No. FD 36472 (Sub-No. 3); 
Norfolk Southern Railway--Trackage Rights Exemption--Pan Am Southern 
LLC, Docket No. FD 36472 (Sub-No. 4); Pittsburg & Shawmut Railroad--
Operation Exemption--Pan Am Southern LLC, Docket No. FD 36472 (Sub-
No. 5); SMS Rail Lines of New York, LLC--Discontinuance Exemption--
in Albany County, N.Y., Docket No. AB 1312X.

DATES: The hearing will be held on January 13, 2022, beginning at 9:30 
a.m. Persons may participate online using video conferencing. The Board 
will issue a subsequent decision with instructions for participation 
and public observation of the hearing. The subsequent decision will 
indicate whether the hearing will be conducted over one or two days and 
include the schedule of appearances for speakers.
    Any person wishing to speak at the hearing shall file with the 
Board by December 20, 2021, a notice of intent to participate 
(identifying the entity, if any, the person represents, the proposed 
speaker, the amount of time requested, and summarizing the key points 
that the speaker intends to address). The notices of intent to 
participate are not required to be served on the parties of record; 
they will be posted to the Board's website when they are filed.

ADDRESSES: All filings, referring to Docket No. FD 36472 et al., should 
be filed with the Surface Transportation Board via e-filing on the 
Board's website.

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

SUPPLEMENTARY INFORMATION: In a decision served on July 30, 2021 in 
this docket (Decision No. 4), served and published in the Federal 
Register (86 FR 41145) on July 30, 2021, the Board accepted for 
consideration the revised application (Revised Application) filed by 
CSX Corporation, CSX Transportation Inc., 747 Merger Sub 2, Inc., Pan 
Am Systems, Inc., Pan Am Railways, Inc., Boston and Maine Corporation, 
Pan Am Southern, LLC, Maine Central Railroad Company, Northern 
Railroad, Portland Terminal Company, Springfield Terminal Railway 
Company, Stony Brook Railroad Company, and Vermont & Massachusetts 
Railroad Company (collectively, Applicants). The Revised Application 
seeks Board approval under 49 U.S.C. 11321-26 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. 
This proposal is referred to as the Merger Transaction. In addition to 
the Merger Transaction, there are six related transactions (Related 
Transactions) for which parties seek approval.
    Numerous parties have filed replies or comments to the Revised 
Application and Applicants' other filings,\2\ including: The U.S. 
Department of Justice; the U.S. Department of Transportation; the 
Massachusetts Department of Transportation and

[[Page 71315]]

Massachusetts Bay Transportation Authority (MBTA) (MassDOT/MBTA); the 
Massachusetts Water Resources Authority; the State of Vermont (acting 
through its Agency of Transportation (VTrans)); Vermont Rail System 
(VRS); Canadian Pacific Railway; the National Railroad Passenger 
Corporation (Amtrak); the Northern New England Passenger Rail 
Authority; Republic Services, Inc., ECDC Environmental, L.C. and Devens 
Recycling Center, LLC (collectively, Republic); the American Chemistry 
Council; The Chlorine Institute; the New Hampshire Department of 
Transportation; Housatonic Railroad Company, Inc.; Pioneer Valley 
Railroad Company, Inc., U.S. Senator Susan Collins (Maine); New 
Hampshire Governor Christopher T. Sununu; U.S. Representative Chris 
Pappas (New Hampshire); U.S. Representatives Pappas and Ann McLane 
Kuster (New Hampshire); U.S. Representative Richard Neal 
(Massachusetts); various state senators and representatives; local 
governmental officials; railroad unions; \3\ and local community 
interests.\4\ Applicants have also submitted letters of support from 
nearly 100 shippers; \5\ U.S. Senator Angus S. King, Jr. (Maine); Maine 
Governor Janet Mills; additional state and local representatives; the 
Northern New England Passenger Rail Authority; One SouthCoast Chamber; 
and the Greater Worcester Regional Chamber of Commerce, among others. 
In the replies, several parties have raised concerns about the impact 
of the Merger and Related Transactions on competition and passenger 
service. CSX, NSR, and B&E filed separate rebuttals, in which they 
dispute these assertions.
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    \2\ Applicants submitted their original application on February 
25, 2021, requesting that the Board treat the transaction as a 
``minor'' transaction, but the Board found the proposed transaction 
should be classified as a ``significant'' transaction. The Board 
therefore considered the February 25, 2021 submission a prefiling 
notification, as required in ``significant'' transactions. See 
Decision No. 1. On April 26, 2021, Applicants submitted an 
application for a ``significant'' transaction, but by decision 
served May 26, 2021, the Board rejected the application because it 
failed to include all required information. See Decision No. 3. 
Several parties submitted filings in response to the two original 
applications but not the Revised Application. To the extent that 
these filings address the merits of the proposed Merger and Related 
Transactions, the Board will consider the filings as part of its 
final decision on the merits.
    \3\ The Brotherhood of Maintenance of Way Employees Division/
IBT, Brotherhood of Railroad Signalmen, International Association of 
Sheet Metal, Air, Rail and Transportation Workers-Mechanical 
Division, and National Conference of Firemen and Oilers, 32BJ/SEIU 
(filing jointly as Allied Rail Unions); American Train Dispatchers 
Association; Brotherhood of Locomotive Engineers and Trainmen 
National Division and the Brotherhood of Locomotive Engineers and 
Trainmen General Committee of Adjustment 120; International 
Brotherhood of Electrical Workers, AFL-CIO; International Federation 
of Professional and Technical Engineers, Local 202; and the 
Transportation Division of the Sheet Metal, Air, Rail, and 
Transportation Workers.
    \4\ Village of Voorheesville, N.Y.; the Altamont Free Library; 
the neighborhood of Islington Creek, N.H.; and Friends of the 
Souhegan Valley Rail Trail.
    \5\ See Revised Appl., Ex. 23.
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    Section 11324(a) requires the Board to ``hold a public hearing 
unless the Board determines that a public hearing is not necessary in 
the public interest.'' In Decision No. 4, the Board stated that it 
would decide whether to conduct a public hearing in a later decision, 
after the record had been more fully developed. Decision No. 4, slip 
op. at 30 n.43. Based on the comments that have been submitted, the 
Board finds that a public hearing, which will provide Board Members an 
opportunity to directly question the Applicants and the other 
interested persons about the issues that have been raised, is in the 
public interest.
    In Decision No. 4, the Board stated that, if it were to hold a 
public hearing, it would be scheduled between the filing of rebuttals 
and final briefs. Decision No. 4, slip op. at 2. Under the procedural 
schedule, rebuttals in support of the Revised Application and Related 
Transactions were due on October 18, 2021,\6\ and final briefs are due 
by January 3, 2022. However, the Board finds that it would be more 
beneficial to hold the public hearing after the final briefs are 
submitted. Accordingly, the hearing will be held on January 13, 2022, 
and will continue on January 14, 2022, if necessary. As such, the Board 
expects that January 13, 2022, or January 14, 2022, will be considered 
the close of the record (depending on whether the hearing is one or two 
days long). In accordance with 49 CFR 1180.4(e)(3), the Board's 
decision would be issued no later than 90 days after the close of the 
record. The Board recognizes that the date of the hearing will extend 
the procedural schedule, including the effective date for a final Board 
decision, by 10 or 11 days (depending on whether the hearing lasts one 
or two days). However, even with this extension, Applicants would still 
have a reasonable amount of time to complete the transaction in 
accordance with their own schedule if approval is granted.
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    \6\ Rebuttals in support of responsive (including inconsistent) 
applications were due on November 17, 2021, but no responsive 
applications were filed.
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    The Board will issue, prior to the hearing date, a decision setting 
a schedule of appearances for speakers, with specific allotments of 
time for presentations. Such allotments may be limited, and persons 
wishing to speak at the hearing should be prepared to keep their 
comments as succinct as possible, to ensure an opportunity for all 
interested persons to be heard. The schedule will also provide, among 
other things, that Applicants will speak first, and that they may 
reserve part of their time for a closing statement after all other 
persons have spoken, if they so choose.
    Persons speaking at the hearing are encouraged to use their time to 
call attention to the points they believe to be particularly important. 
The purpose of the hearing is not to restate the written comments 
previously submitted, but to summarize and emphasize the key points of 
a party's case or the speaker's positions, and to provide an 
opportunity for questions that the Board may have regarding the matters 
at issue in this proceeding.
    Lastly, the Board will set the limit for final briefs at 20 
pages.\7\ The Board notes that, like the hearing testimony, final 
briefs are not intended to serve as an opportunity for parties to raise 
new evidence or arguments, but to provide a concise summary of the 
parties' positions. The Board has determined that 20 pages is a 
sufficient length for this purpose.
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    \7\ The Board stated in Decision No. 4 that it would determine 
the page limits for final briefs in a later decision, after the 
record had been more fully developed.
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    Board Releases and Transcript Availability: Decisions and notices 
of the Board, including this notice, are available on the Board's 
website at www.stb.gov. The Board will issue a separate notice 
containing the schedule of appearances, as well as instructions for 
participating in and observing the hearing. A recording of the hearing 
and a transcript will be posted on the Board's website when they become 
available.
    It is ordered:
    1. A public hearing will be held online using video conferencing on 
January 13, 2022. The hearing will resume on January 14, 2022, if 
necessary.
    2. By December 20, 2021, any person wishing to speak at the hearing 
shall file with the Board a notice of intent to participate identifying 
the entity, if any, the person represents, the proposed speaker, the 
amount of time requested, and summarizing the key points that the 
speaker intends to address.
    3. Notices of intent to participate will be posted to the Board's 
website and need not be served on parties of record, any hearing 
participants, or other commenters.
    4. Final briefs are limited to no more than 20 pages.
    5. The procedural schedule is revised as follows:
    Service date of final decision: No later than April 13 or 14, 2022.
    Effective date of final decision: No later than May 13 or 14, 2022.
    6. This decision is effective on its service date.
    7. This decision will be published in the Federal Register.

    Decided: December 10, 2021.


[[Page 71316]]


    By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and 
Schultz.
Brendetta Jones,
Clearance Clerk.
[FR Doc. 2021-27161 Filed 12-14-21; 8:45 am]
BILLING CODE 4915-01-P