[Federal Register Volume 88, Number 104 (Wednesday, May 31, 2023)]
[Notices]
[Pages 34912-34915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11555]


=======================================================================
-----------------------------------------------------------------------

SURFACE TRANSPORTATION BOARD

[Docket No. FD 36699 1]


Norfolk Southern Railway Company and The Cincinnati, New Orleans, 
and Texas Pacific Railway Company--Acquisition--Trustees of the 
Cincinnati Southern Railway

AGENCY: Surface Transportation Board.

ACTION: Decision No. 1 in Docket No. FD 36699; Notice of Acceptance of 
Application and a Related Verified Notice of Exemption; Issuance of 
Procedural Schedule.

-----------------------------------------------------------------------

SUMMARY: The Surface Transportation Board (STB or Board) is accepting 
for consideration an application (Application) and a related verified 
notice of exemption, both filed on May 1, 2023, by Norfolk Southern 
Railway Company (NSR), on behalf of itself and its wholly owned 
subsidiary, The Cincinnati, New Orleans and Texas Pacific Railway 
Company (CNOTP) (collectively, Applicants). The Application seeks Board 
approval for NSR to acquire from the Trustees of the Cincinnati 
Southern Railway (Trustees) and operate approximately 338.2 miles of 
rail line between Cincinnati, Ohio, and Chattanooga, Tenn., known as 
the Cincinnati Southern Railway (the CSR Line or the Line). This 
proposal is referred to as the Transaction. In the verified notice of 
exemption, Applicants seek authority for CNOTP to continue to operate 
the Line following its acquisition by Applicants. The Board finds that 
the Application is complete. The Board also makes the preliminary 
determination, based on the evidence presented in the Application, that 
the Transaction is a minor transaction. The Board emphasizes that this 
is not a final determination and may be rebutted by subsequent filings 
and evidence submitted into the record for this proceeding.
---------------------------------------------------------------------------

    \1\ This decision embraces The Cincinnati, New Orleans & Texas 
Pacific Railway--Intra-Corporate Family Operation Exemption--Line of 
Norfolk Southern Railway, Docket No. FD 36699 (Sub-No. 1).

DATES: The effective date of this decision is May 31, 2023. Any person 
who wishes to participate in this proceeding as a Party of Record must 
file, no later than June 15, 2023, a notice of intent to participate. 
All comments, protests, requests for conditions, and any other evidence 
and argument in opposition to the Application and related filings, 
including filings by the U.S. Department of Justice (DOJ) and the U.S. 
Department of Transportation (DOT), must be filed by June 30, 2023. 
Responses to comments, protests, requests for conditions, other 
opposition, and rebuttal in support of the Application or related 
filings must be filed by July 28, 2023. See Appendix (Procedural 
Schedule). A final decision in this matter will be served no later than 
September 11, 2023. Further procedural orders, if any, would be issued 
---------------------------------------------------------------------------
by the Board, if necessary.

ADDRESSES: Any filing submitted in this proceeding must be filed with 
the Board either via e-filing or in writing addressed to: Surface 
Transportation Board, 395 E Street SW, Washington, DC 20423-0001. 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) Applicants NSR and 
CNOTP's representative, Raymond A. Atkins, Sidley Austin LLP, 1501 K 
Street NW,

[[Page 34913]]

Washington, DC 20005; and (4) any other person designated as a Party of 
Record on the service list.

FOR FURTHER INFORMATION CONTACT: Valerie Quinn at (202) 740-5567. If 
you require an accommodation under the Americans with Disabilities Act, 
please call (202) 245-0245.

SUPPLEMENTARY INFORMATION: Applicants seek the Board's prior review and 
authorization pursuant to 49 U.S.C. 11323-25 and 49 CFR part 1180 for 
NSR to acquire from the Trustees and to operate the CSR Line pursuant 
to an asset purchase and sale agreement executed by Applicants and the 
Trustees on November 21, 2022 (PSA). (Appl. 1, 10.) NSR is a Class I 
rail carrier that operates approximately 19,300 route miles in the 
District of Columbia and 21 states, including Tennessee, Kentucky, and 
Ohio. (Id. at 18.) CNOTP, a wholly owned subsidiary of NSR and Class 
III rail carrier, has leased and operated the CSR Line since 1881. (Id. 
at 1-2, 18.) Applicants state that the CSR Line is operated as part of 
the NSR system, and that, although the lease between CNOTP and the 
Trustees would be terminated as part of this Transaction, Applicants 
intend for CNOTP to operate the Line for the foreseeable future. (Id. 
at 2.)
    According to Applicants, the CSR Line extends from the City of 
Cincinnati, Hamilton County, Ohio, at the point of connection to NSR 
estimated to be at or near calculated milepost 0.0, and 
proceeds south to the point of connection to The Alabama Great Southern 
Railroad Company (another subsidiary of NSR) in the City of 
Chattanooga, Hamilton County, Tenn., at or near calculated milepost 
338.2, together with all branch lines, sidings, and other 
appurtenant railroad facilities associated therewith.\2\ (Id. at 3.)
---------------------------------------------------------------------------

    \2\ Applicants state that, given the long history of the CSR 
Line, the identification of specific mileposts at the Line's termini 
has varied slightly over time but that the description of the Line 
provided in the Application here is correct. (Appl. 3 n.9.)
---------------------------------------------------------------------------

    Financial Arrangements. According to Applicants, no new securities 
would be issued in connection with the Transaction. (Id. at 13.) 
Applicants anticipate that the purchase price would be paid from cash 
on hand and/or NSR's credit facilities. (Id.)
    Passenger Service Impacts. Applicants state that there would be no 
impact on commuter or other passenger service because there are no 
current passenger or commuter operations on the CSR Line and the 
Transaction does not contemplate introducing such operations. (Id. at 
23-24.)
    Discontinuances/Abandonments. Applicants state that rail service 
would not be abandoned or discontinued on any portion of the CSR Line 
as a result of the Transaction. (Id. at 24.) However, the Application 
does state that, as part of the PSA, Applicants have agreed to engage 
in good faith negotiations with the State of Ohio to donate to the 
state as interim trail manager under the National Trails System Act, 16 
U.S.C. 1241-51, on customary terms and subject to obtaining any 
required STB authority, an approximately 21.52-mile NSR line in Ohio 
that is not part of, and does not connect with, the CSR Line. (Appl. 
24.)
    Public Interest Considerations. Applicants state that the 
Transaction would not result in a lessening of competition, creation of 
a monopoly, or restraint of trade in any region of the United States. 
(Id. at 13.) According to Applicants, the Transaction would not reduce 
the number of competitive options available to any shipper, as the 
number of rail carriers serving each shipper on the Line would remain 
the same and Applicants would maintain the same interchanges with the 
same connecting rail carriers at the same locations where those rail 
carriers currently interchange traffic. (Id. at 14.) Applicants 
maintain that they do not plan to make operational changes as a result 
of the Transaction. (Id.)
    Time Schedule for Consummation. Applicants state that the 
Transaction is scheduled to be consummated as soon as practicable after 
the Board's decision approving the Application becomes effective and 
upon satisfaction of all other conditions precedent to closing set 
forth in the PSA, including approval of the proposed sale by the voters 
of Cincinnati. (Id. at 11.)
    Environmental Impacts. Applicants state that, pursuant to 49 CFR 
1105.6(c)(1), no environmental reporting is required because the 
Transaction would not lead to operational changes exceeding the 
thresholds for environmental review in 49 CFR 1105.7(e)(4) & (5). 
(Appl. 21.)
    Historic Preservation Impacts. Applicants state that no historic 
report is required because the Transaction is ``for the purpose of 
continued rail operations where further STB approval is required to 
abandon any service and there are no plans to dispose of or alter 
properties subject to STB jurisdiction that are 50 years old or 
older.'' (Id. at 22-23 (quoting 49 CFR 1105.8(b)(1)).)
    Labor Impacts. Applicants state that they do not plan to make any 
changes to the number of employees working on the Line in connection 
with the Transaction and that no NSR or CNOTP employees would be 
dismissed or displaced as a result of the Transaction. (Appl. 16.) 
Applicants also assert that, in accordance with 49 U.S.C. 11326 and 
Board precedent, the appropriate employee protection conditions to 
impose are those set out in New York Dock Railway--Control--Brooklyn 
Eastern District Terminal, 360 I.C.C. 60 (1979), aff'd sub nom. New 
York Dock Railway v. United States, 609 F.2d 83 (2d Cir. 1979), as 
modified by Wilmington Terminal Railroad--Purchase & Lease--CSX 
Transportation Inc., 6 I.C.C.2d 799, 814-26 (1990), aff'd sub nom. 
Railway Labor Executives' Association v. Interstate Commerce 
Commission, 930 F.2d 511 (6th Cir. 1991). (Appl. 16.)
    Related Filing. In Docket No. FD 36699 (Sub-No. 1), Applicants have 
filed a verified notice of exemption pursuant to 49 CFR 1180.2(d)(3) 
for an intra-corporate family transaction that would permit CNOTP to 
continue to operate the CSR Line following consummation of the 
Transaction in Docket No. FD 36699, which would terminate CNOTP's 
existing lease with the Trustees. Applicants state that they intend to 
consummate the intra-corporate family transaction contemporaneously 
with the Transaction in Docket No. FD 36699. As a condition to use of 
this exemption, Applicants state that they do not object to imposition 
of the employee protective conditions set out in Mendocino Coast 
Railway, Inc.--Lease & Operate, 354 I.C.C. 732 (1978), as modified in 
Mendocino Coast Railway, Inc.--Lease & Operate--California Western 
Railroad, 360 I.C.C. 653 (1980).
    Primary Application and Related Filing Accepted. The Board finds 
that the proposed Transaction would be a ``minor transaction'' under 49 
CFR 1180.2(c), and the Board accepts 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 is also accepting for consideration the related verified 
notice of exemption filed in Docket No. FD 36699 (Sub-No. 1), which is 
also in compliance with the applicable regulations. The Board reserves 
the right to require the filing of supplemental information as 
necessary to complete the record.
    When a transaction does not involve the merger or control of two or 
more Class I railroads, the Board's treatment differs depending upon 
whether the transaction would have ``regional or national 
transportation significance.'' 49 U.S.C 11325. Under 49 CFR 1180.2, a 
transaction that does not involve two or

[[Page 34914]]

more Class I railroads is to be classified as ``minor''--and thus not 
having regional or national transportation significance--if a 
determination can be made that either: (1) the transaction clearly will 
not have any anticompetitive effects; or (2) any anticompetitive 
effects of the transaction will clearly be outweighed by the 
transaction's anticipated contribution to the public interest in 
meeting significant transportation needs. A transaction not involving 
the control or merger of two or more Class I railroads is to be 
classified as ``significant'' if neither of these determinations can be 
made.
    Nothing in the record thus far suggests that the Transaction would 
have anticompetitive effects. According to Applicants, the purpose of 
the Transaction is to convert Applicants' interest in the CSR Line from 
a leasehold to fee simple ownership, eliminating the need for 
increasingly complicated and time-consuming negotiations to 
periodically extend and modify the lease. (Appl. 3.) As such, 
Applicants state that they will continue to operate the CSR Line in the 
same manner that they have operated it for more than a century, with no 
change in service patterns or train operations anticipated as a result 
of the Transaction. (Id. at 7.) Specifically, they claim that there 
will be no reduction in the competitive options available to shippers 
and that no connecting railroad will be foreclosed from interchange. 
(Id.) Applicants state that where, as here, no shipper would have fewer 
competitive rail options and longstanding operations would continue 
unchanged as a result of a transaction, the Board has found it is 
unlikely such a transaction would have anticompetitive effects. (Id. at 
6.)
    Therefore, based on the information provided in the Application, 
the Board finds the proposed Transaction to be a minor transaction 
under 49 CFR 1180.2(c). Such a categorization does not mean that the 
proposed Transaction is insignificant or not of importance. Indeed, 
after the record in the proceeding is fully developed, the Board will 
carefully review the proposed Transaction to make certain that it does 
not substantially lessen competition, create a monopoly, or restrain 
trade, and that any anticompetitive effects are outweighed by the 
public interest. See 49 U.S.C 11324(d)(1)-(2). Pursuant to the 
applicable standard, the Board may also impose conditions on the 
Transaction.
    Procedural Schedule. Any person who wishes to participate in this 
proceeding as a Party of Record must file a notice of intent to 
participate no later than June 15, 2023; all comments, protests, 
requests for conditions, and any other evidence and argument in 
opposition to the Application, including filings by DOJ and DOT, must 
be filed by June 30, 2023; and responses to comments, protests, 
requests for conditions, and other opposition on the transportation 
merits of the Transaction must be filed by July 28, 2023. The Board is 
required to issue ``a final decision by the 45th day after the date on 
which it concludes the evidentiary proceedings,'' 49 U.S.C. 
11325(d)(2), and will do so here.\3\ The Board reserves the right to 
adjust the schedule as circumstances may warrant.
---------------------------------------------------------------------------

    \3\ This notice will be published in the Federal Register on May 
31, 2023; all subsequent deadlines will be calculated from this 
date. Deadlines for filings are calculated in accordance with 49 CFR 
1104.7(a).
---------------------------------------------------------------------------

    For further information regarding dates, see the Appendix to this 
decision.
    Notice of Intent To Participate. Any person who wishes to 
participate in this proceeding as a Party of Record must file with the 
Board, no later than June 15, 2023, a notice of intent to participate, 
accompanied by a certificate of service indicating that the notice has 
been properly served on the Secretary of Transportation, the Attorney 
General of the United States, and Applicants' representative.
    If a request is made in the notice of intent to participate to have 
more than one name added to the service list as a Party of Record 
representing a particular entity, the extra name(s) will be added to 
the service list as a ``Non-Party.'' Any person designated as a Non-
Party will receive copies of Board decisions, orders, and notices but 
not copies of official filings. Persons seeking to change their status 
must accompany that request with a written certification that they have 
complied with the service requirements set forth at 49 CFR 1180.4 and 
any other requirements set forth in this decision.
    Service on Parties of Record. Each Party of Record will be required 
to serve upon all other Parties of Record, within 10 days of the 
service date of this decision, copies of all filings previously 
submitted by that party (to the extent such filings have not previously 
been served upon such other parties). Each Party of Record will also be 
required to file with the Board, within 10 days of the service date of 
this decision, a certificate of service indicating that the service 
required by the preceding sentence has been accomplished. Every filing 
made by a Party of Record after the service date of this decision must 
have its own certificate of service indicating that all Parties of 
Record on the service list have been served with a copy of the filing. 
Members of the United States Congress and Governors 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 Party of 
Record.
    Service of Decisions, Orders, and Notices. The Board will serve 
copies of its decisions, orders, and notices on those persons who are 
designated on the service list as a Party of Record or Non-Party. All 
other interested persons are encouraged to obtain copies of decisions, 
orders, and notices via the Board's website at www.stb.gov.
    Access to Filings. 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 Application and other 
filings in this proceeding will be furnished to interested persons upon 
request and will also be available on the Board's website at 
www.stb.gov. In addition, the Application may be obtained from 
Applicants' representative at the address indicated above.
    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 filed in Docket No. FD 36699 and the related 
verified notice of exemption filed in Docket No. FD 36699 (Sub-No. 1) 
are accepted for consideration.
    2. The parties to this proceeding must comply with the procedural 
schedule shown in the Appendix to this decision and the procedural 
requirements described in this decision.
    3. This decision is effective on May 31, 2023.

    Decided: May 24, 2023.

    By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and 
Schultz.
Kenyatta Clay,
Clearance Clerk.

Appendix

Procedural Schedule

    May 1, 2023--Application filed.
    May 31, 2023--Board notice of acceptance of application served and 
published in the Federal Register.
    June 15, 2023--Notices of intent to participate in this proceeding 
due.
    June 30, 2023--All comments, protests, requests for conditions, and 
any other evidence and argument in

[[Page 34915]]

opposition to the application, including filings of DOJ and DOT, due.
    July 28, 2023--Responses to comments, protests, requests for 
conditions, and other opposition due. Rebuttal in support of the 
application due.
    September 11, 2023--Date by which a final decision will be served.
    October 11, 2023 \4\--Date by which a final decision will become 
effective.
---------------------------------------------------------------------------

    \4\ The final decision will become effective 30 days after it is 
served.

[FR Doc. 2023-11555 Filed 5-30-23; 8:45 am]
BILLING CODE 4915-01-P