[Federal Register Volume 90, Number 72 (Wednesday, April 16, 2025)]
[Notices]
[Pages 16056-16057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-06471]
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SURFACE TRANSPORTATION BOARD
[Docket No. FD 36836]
Norfolk Southern Corporation and Norfolk Southern Railway
Company--Acquisition of Control--Norfolk & Portsmouth Belt Line
Railroad Company
AGENCY: Surface Transportation Board.
ACTION: Decision No. 3 in Docket No. FD 36836; Notice of Proposed
Procedural Schedule and Request for Comments.
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SUMMARY: Norfolk Southern Corporation and Norfolk Southern Railway
Company (collectively, Applicants) are seeking Board approval to
acquire control of Norfolk & Portsmouth Belt Line Railroad Company
(NPBL). In this decision, the Board is publishing notice of the
proposed procedural schedule, inviting public comments on that
schedule, and designating 2023 as the year to be used for the impact
analysis.
DATES: Written comments on the proposed procedural schedule must be
filed by April 28, 2025.
ADDRESSES: Any filing submitted in this proceeding must be filed with
the Board either via e-filing on the Board's website or in writing
addressed to 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' representative,
William Mullins, Mullins Law Group, PLLC, 2001 L Street NW, Suite 720,
Washington, DC 20036; and (4) any other person designated as a Party of
Record on the service list.
FOR FURTHER INFORMATION CONTACT: Amy Ziehm at (202) 245-0391. If you
require an accommodation under the Americans with Disabilities Act,
please call (202) 245-0245.
SUPPLEMENTARY INFORMATION: On February 14, 2025, Applicants submitted a
filing in which they sought Board approval for Applicants to acquire
control of NPBL, a Class III rail carrier operating in Norfolk,
Portsmouth, and Chesapeake, Va. (the Proposed Transaction). By decision
served March 14, 2025, the Surface Transportation Board (Board) found
that the Proposed Transaction was a ``significant transaction'' under
49 CFR 1180.2 and, among other things, directed Applicants to file a
revised proposed procedural schedule reflecting that determination. See
Norfolk S. Corp.--Acquis. of Control--Norfolk & Portsmouth Belt Line
R.R. (Decision No. 2), FD 36836, slip op. at 7-9 (STB served Mar. 14,
2025). Applicants were also directed to indicate in their filing the
year to be used for the impact analysis required for significant
transactions and the approximate filing date of Applicants' anticipated
supplement. Id. at 9.
On March 21, 2025, Applicants filed a revised motion, proposing a
procedural schedule largely based off the schedule originally proposed
by the Board in CSX Corp.--Control & Merger--Pan Am Sys., Inc., FD
36472 (STB served Apr. 22, 2021). (Applicants Revised Mot. 2, Mar. 21,
2025.) Applicants also contend that no environmental review is required
for the Proposed Transaction and thus no environmental review is
accounted for in the proposed schedule. Applicants propose the
following timeline:
F \1\ Application filed.
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\1\ ``F'' designates the filing date of the supplement to
perfect the application, and ``F + n'' means ``n'' days following
that date. Applicants state that they anticipate filing the
supplement on or shortly before June 14, 2025. (Applicants Revised
Mot. 3 n.7, Mar. 21, 2025.)
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F + 30 Board notice of acceptance of application to be published in
the Federal Register.\2\
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\2\ Applicants also propose that discovery begin on this date.
The Board, however, has permitted discovery after the initiation of
a proceeding under 49 U.S.C. 11323 but before the filing of an
application. See Canadian Pac. Ry.--Control--Kan. City S., FD 36500,
slip op. at 4 (STB served Aug. 2, 2021); 49 CFR 1114.21(a)
(``Parties may obtain discovery under this subpart regarding any
matter, not privileged, which is relevant to the subject matter
involved in a proceeding other than an informal proceeding.''). This
approach is appropriate here, given the initiation of the proceeding
and the treatment of Applicants' February 14, 2025 submission as a
pre-filing notification.
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F + 40 Notices of intent to participate in this proceeding due.
F + 60 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).
F + 90 Responsive, including inconsistent, applications due.
F + 135 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. Discovery
closes.
F + 165 Rebuttal in support of responsive, including inconsistent,
applications due.
[[Page 16057]]
TBD Public hearing (if necessary).\3\
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\3\ The Board will decide whether to conduct a public hearing 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.'').
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F + 180 Final briefs due. (Close of evidentiary record.)
F + 270 Service date of final decision.
F + 300 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 April
28, 2025. The proposed schedule is subject to change depending on the
comments received or other circumstances.
Additionally, the Board's regulations require notice of the year to
be used for the impact analysis required in significant transactions be
published in the Federal Register. See 49 CFR 1180.4(b)(2)(ii).
Applicants indicate that they intend to use 2023 as the base year.\4\
Accordingly, the Board will designate 2023 as the year to be used for
the impact analysis.
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\4\ Applicants state that they would prefer to use 2024 as the
base year if waybill data for 2024 becomes available in time for use
in this proceeding. (Applicants Revised Mot. 1 n.1, Mar. 21, 2025.)
Any such request would be addressed in a future decision.
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On March 28, 2025, CSX Transportation, Inc. (CSXT), filed a
response to Applicants' revised motion for a proposed procedural
schedule. CSXT proposes certain modifications to the proposed
procedural schedule, proposes that discovery should commence as of
publication of the notice of Applicants' intent to file, and opposes
the establishment, at this time, of a closing date for discovery. (CSXT
Response 2-9, Mar. 28, 2025.) Additionally, although CSXT states that
it does not object to the base year selected by Applicants, it argues
that the Board should reject Applicants' supplement if it includes only
base year data, without providing information to compare that data to a
situation in which Applicants did not control NPBL. (Id. at 10-11.)
CSXT also argues that it is too early for the Board to determine
whether environmental review is required in this case. (Id. at 11.)
Applicants responded to CSXT's response by letter filed April 1, 2025.
As noted above, supra note 2, the Board declines to propose a
schedule that would limit the taking of discovery until the Board
publishes a notice accepting the application. To the extent that CSXT's
response otherwise relates to the proposed procedural schedule, it will
be addressed following the comment period, along with any other
comments the Board may receive on the proposed schedule. CSXT's
comments concerning the sufficiency of Applicants' future presentation
of data are beyond the scope of this decision, which serves only to
notice and solicit comments on the proposed procedural schedule, as
required by 49 CFR 1180.4(b)(4)(i). Accordingly, those arguments will
be addressed, to the extent necessary, at a later date. The Board will
also address environmental review issues in a subsequent decision.
Decided: April 11, 2025.
By the Board, Board Members Fuchs, Hedlund, Primus, and Schultz.
Regena Smith-Bernard,
Clearance Clerk.
[FR Doc. 2025-06471 Filed 4-15-25; 8:45 am]
BILLING CODE 4915-01-P