Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 52477 

1This decision covers: the application filed in 

STB Finance Docket No. 34738, Paducah & 

Louisville Railway, Inc.—Acquisition—CSX 

Transportation, Inc.; the exemption notice filed in 

STB Finance Docket No. 34738 (Sub-No. 1), 

Evansville Western Railway, Inc.—Acquisition and 

Operation Exemption—Paducah & Louisville 

Railway, Inc.; and the exemption notice filed in 

STB Finance Docket No. 34738 (Sub-No. 2), Four 

Rivers Transportation, Inc. And Paducah & 

Louisville Railway, Inc.—Continuance in Control 

Exemption—Evansville Western Railway, Inc. The 

application filed in STB Finance Docket No. 34738 

is referred to as the ‘‘primary application.’’ The 

exemption notices filed in STB Finance Docket No. 

34738 (Sub-Nos. 1 and 2) are referred to collectively 

as the ‘‘related filings.’’

2EVWR is a wholly owned subsidiary of P&L, 

which is itself a wholly owned subsidiary of FRTI. 

ANNEX A.—CALENDAR YEAR 2004 RECALLS AFFECTING VEHICLES IMPORTED BY REGISTERED IMPORTERS—Continued 

Make Model Model year NHTSA 

recall No. 

SUBARU ........................................................................... OUTBACK ........................................................................ 2003 04V128000 

SUZUKI ............................................................................. GRAND VITARA .............................................................. 1999 03V512000 

SUZUKI ............................................................................. GRAND VITARA .............................................................. 1999 04V427000 

SUZUKI ............................................................................. GRAND VITARA .............................................................. 2000 03V512000 

SUZUKI ............................................................................. GRAND VITARA .............................................................. 2000 04V427000 

SUZUKI ............................................................................. GRAND VITARA .............................................................. 2002 03V512000 

SUZUKI ............................................................................. GRAND VITARA .............................................................. 2002 04V427000 

SUZUKI ............................................................................. VZ800 ............................................................................... 2003 04V350000 

TOYOTA ........................................................................... CAMRY ............................................................................ 2002 04V346000 

TOYOTA ........................................................................... CAMRY ............................................................................ 2003 04V346000 

TOYOTA ........................................................................... CAMRY ............................................................................ 2004 04V346000 

TOYOTA ........................................................................... HIGHLANDER .................................................................. 2001 04V181000 

TOYOTA ........................................................................... HIGHLANDER .................................................................. 2002 04V181000 

TOYOTA ........................................................................... HIGHLANDER .................................................................. 2003 04V181000 

TOYOTA ........................................................................... HIGHLANDER .................................................................. 2004 04V181000 

TRIUMPH .......................................................................... SPEED TRIPLE ............................................................... 2001 04V156000 

TRIUMPH .......................................................................... TT600 ............................................................................... 2000 04V156000 

VOLKSWAGEN ................................................................. JETTA .............................................................................. 1999 04V096000 

VOLKSWAGEN ................................................................. JETTA .............................................................................. 2000 04V096000 

VOLKSWAGEN ................................................................. JETTA .............................................................................. 2001 04V096000 

VOLKSWAGEN ................................................................. JETTA .............................................................................. 2002 04V096000 

WESTERN STAR ............................................................. 4900SA ............................................................................. 2004 04V120000 

[FR Doc. 05–17465 Filed 9–1–05; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

[STB Finance Docket No. 34738] 

Paducah & Louisville Railway, Inc.—

Acquisition—CSX Transportation, Inc. 

AGENCY: Surface Transportation Board, 

DOT. 

ACTION: Decision No. 2 in STB Finance 

Docket No. 34738; Notice of Acceptance 

of Primary Application and Related 

Filings; Issuance of Procedural 

Schedule.1

SUMMARY: The Surface Transportation 

Board (Board) is accepting for 

consideration: the primary application 

filed August 3, 2005, by Paducah & 

Louisville Railway, Inc. (P&L) and CSX 

Transportation, Inc. (CSXT); the SubNo. 1 related filing filed August 3, 2005, 

by Evansville Western Railway, Inc. 

(EVWR); and the Sub-No. 2 related filing 

filed August 3, 2005, by Four Rivers 

Transportation, Inc. (FRTI) and P&L. 

The primary application seeks Board 

approval under 49 U.S.C. 11321–26 for 

P&L’s acquisition of an approximately 

124.5-mile CSXT line (the EvansvilleOkawville Line or the Line) running 

between Evansville, IN (milepost OOH–

324.0), and Okawville, IL (milepost 

OOH–445.7), including the 2.8-mile Mt. 

Vernon Branch (at Mt. Vernon, IN, 

between milepost OZJ–300 and milepost 

OZJ–302.8). The proposal is for P&L to 

purchase the track, ties, switches, and 

other track material (the improvements) 

and to lease for 20 years (with a 5-year 

extension available) the real property. 

This proposal is referred to as the P&L 

Transaction, and FRTI/P&L/EVWR2 and 

CSXT are referred to collectively as 

applicants. 

The related filings seek authority for 

P&L to immediately transfer the 

improvements and assign its lease of the 

real property to its newly created 

wholly owned subsidiary, EVWR. This 

proposal is referred to as the EVWR 

Transaction, and the P&L Transaction 

and the EVWR Transaction are referred 

to collectively as the P&L/EVWR 

Transaction. The Sub-No. 1 filing seeks 

an exemption under 49 U.S.C. 10502 

and 49 CFR 1150.31 to permit EVWR to 

purchase the improvements, take 

assignment of the lease of the real 

property, and operate the Line. The SubNo. 2 filing seeks an exemption under 

49 U.S.C. 10502 and 49 CFR 

1180.2(d)(2) to permit P&L to continue 

in control of EVWR, and to permit FRTI 

to continue in control of P&L and 

EVWR, when EVWR becomes a rail 

carrier upon acquisition of the Line. 

The Board finds that the P&L 

Transaction is a ‘‘minor transaction’’

under 49 CFR 1180.2(c), and the Board 

adopts a procedural schedule for 

consideration of the primary application 

and the related filings, under which the 

Board’s final decision would be issued 

on December 12, 2005. 

DATES: The effective date of this 

decision is September 2, 2005. Any 

person who wishes to participate in this 

proceeding as a party of record (POR) 

must file, no later than September 12, 

2005, a notice of intent to participate. 

All comments, protests, requests for 

conditions, and any other evidence and 

argument in opposition to the primary 

application or either of the related 

filings, including filings by the U.S. 

Department of Justice (DOJ) and the U.S. 

Department of Transportation (DOT), 

must be filed by October 12, 2005. 

Responses to comments, protests, 

requests for conditions, and other 

opposition, and rebuttal in support of 

the primary application or either of the 

related filings must be filed by October 

27, 2005. If a public hearing or oral 

argument is held, it will be held the 

week of November 14, 2005. The Board 

will issue its final decision on December 

12, 2005. For further information 

respecting dates, see Appendix A 

(Procedural Schedule). 

ADDRESSES: Any filing submitted in this 

proceeding must be submitted either via 

52478 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 

3The Board’s regulations divide railroads into 

three classes based on annual carrier operating 

revenues. Class I railroads are those with annual 

carrier operating revenues of $250 million or more 

(in 1991 dollars); Class II railroads are those with 

annual carrier operating revenues of more than $20 

million but less than $250 million (in 1991 dollars); 

and Class III railroads are those with annual carrier 

operating revenues of $20 million or less (in 1991 

dollars). See 49 CFR Part 1201, General Instruction 

1–1(a). 

4Compare PLRY–1 at 9 (7 unions) with PLRY–1 

at 10 (8 unions). 

5 5 Two points located on the Line are called ‘‘Mt. 

Vernon,’’ one in Indiana and the other in Illinois. 

The 2.8-mile Mt. Vernon Branch is located at Mt. 

Vernon, IN. 

the Board’s e-filing format or in the 

traditional paper format. Any person 

using e-filing should comply with the 

instructions found on the Board’s Web 

site at http://www.stb.dot.gov at the ‘‘EFILING’’ link. Any person submitting a 

filing in the traditional paper format 

should send an original and 10 paper 

copies of the filing (and also an IBMcompatible floppy disk with any textual 

submission in any version of either 

Microsoft Word or WordPerfect) to: 

Surface Transportation Board, 1925 K 

Street, NW., Washington, DC 20423–

0001. In addition, one copy of each 

filing in this proceeding must be sent 

(and may be sent by e-mail only if 

service by e-mail is acceptable to the 

recipient) to each of the following: (1) 

Secretary of the United States 

Department of Transportation, 400 

Seventh Street, SW., 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) William A. Mullins 

(representing FRTI, P&L, and EVWR), 

Baker & Miller PLLC, 2401 Pennsylvania 

Avenue, NW., Suite 300, Washington, 

DC 20037; (4) Louis E. Gitomer 

(representing CSXT), Ball Janik LLP, 

1455 F Street, NW., Suite 225, 

Washington, DC 20005; and (5) any 

other person designated as a POR on the 

service list notice (as explained below, 

the service list notice will be issued as 

soon after September 12, 2005, as 

practicable). 

FOR FURTHER INFORMATION CONTACT: Julia 

M. Farr, (202) 565–1655. [Assistance for 

the hearing impaired is available 

through the Federal Information Relay 

Service (FIRS) at 1–800–877–8339.] 

SUPPLEMENTARY INFORMATION: CSXT, a 

Class I railroad,3 owns and operates 

about 23,000 miles of railroad in the 

United States (in Alabama, Connecticut, 

the District of Columbia, Delaware, 

Florida, Georgia, Illinois, Indiana, 

Kentucky, Louisiana, Massachusetts, 

Maryland, Michigan, Mississippi, 

Missouri, New Jersey, New York, North 

Carolina, Ohio, Pennsylvania, South 

Carolina, Tennessee, Virginia, and West 

Virginia) and in Canada (in Ontario and 

Quebec). 

FRTI is a noncarrier holding 

company. 

P&L, a wholly owned subsidiary of 

FRTI, is a Class II railroad that operates 

entirely in Kentucky over an 

approximately 262-mile line that 

extends between Louisville and 

Clayburn. P&L has been operating since 

1986 and has built its traffic base from 

about 77,000 carloads in its first full 

year of operation (1987) to a high of 

216,000 carloads in its best year. In 

addition to originating and terminating 

local traffic on its line, P&L 

interchanges: with CSXT, Norfolk 

Southern Railway Company (NS), 

Louisville and Indiana Railroad 

Company (L&I), and Canadian Pacific 

Railway Company (CP) at Louisville; 

with CSXT at Central City and 

Madisonville; and with Canadian 

National Railway Company (CN) and 

BNSF Railway Company (BNSF) at 

Paducah. P&L employs 223 persons, 

including 45 management or salaried 

employees and 178 craft employees 

represented by either 7 or 8 unions.4

P&L owns 41 locomotives and it owns 

and/or leases 1,155 revenue service cars, 

23 non-revenue cars, and 25 pieces of 

self-propelled maintenance-of-way 

(MOW) equipment. 

EVWR, a wholly owned subsidiary of 

P&L, is a noncarrier. The proposals 

contemplate that EVWR would become 

a Class III railroad once the Line is 

acquired by P&L and is transferred to 

EVWR. P&L advises that its reasons for 

proposing to have the Line transferred 

to and operated by EVWR are both to 

permit P&L to retain certain substantial 

tax advantages available to it as a 

Kentucky railroad that P&L would lose 

if it were to operate a railroad outside 

of Kentucky and to protect P&L from 

potential liabilities and risks associated 

with operating a railroad outside of 

Kentucky. P&L states that EVWR would 

have its own employees, its own 

management, and its own financial 

arrangements, and that EVWR would 

publish tariffs, interline, and otherwise 

operate as a railroad independent of 

P&L. P&L notes, however, that EVWR 

and P&L would share a common 

management until such time as EVWR 

could hire its own management team. 

And, P&L adds, EVWR and P&L would 

also enter into a contract whereby P&L 

would provide management oversight 

and certain administrative services to 

EVWR. 

The Evansville-Okawville Line. The 

124.5-mile east-west EvansvilleOkawville Line that would be acquired 

by P&L and transferred to EVWR has 

been operated by CSXT as its St. Louis 

Subdivision. Points located on the Line 

(going from east to west) include 

Evansville, Mt. Vernon, and Upton (in 

Indiana) and Epworth, Carmi, Trumbull, 

Enfield, Inland, McLeansboro, Delafield, 

Opdyke, Mt. Vernon, Woodlawn, 

Ashley, Nashville, Addieville, and 

Okawville (in Illinois).5 The Line runs 

parallel to rail lines of CSXT and NS to 

the north, and the various points located 

on the Line are within the regions 

served by the Ohio, Wabash, and/or 

Mississippi Rivers. The various points 

located on the Line are also served by 

an extensive highway network, which 

includes Interstate Highway 64 (which 

runs parallel to the Line in an east-west 

direction) and Interstate Highway 57 

(which crosses the Line in a north-south 

direction). 

Interchange on the Line currently 

occurs at Woodlawn, IL, with BNSF, 

and at Mt. Vernon, IL, with Union 

Pacific Railroad Company (UP). CSXT 

and EVWR would conduct interchange 

at the east end of the Line and in CSXT’s 

Howell Yard, both in Evansville, IN. 

P&L states that CSXT, BNSF, and UP 

would provide interchange with EVWR 

and would maintain competitive routes 

and rates over connections with EVWR. 

Operation of The Line by EVWR. P&L 

states: that EVWR would assume the 

common carrier obligation respecting 

the Line, and would operate the Line as 

an independent rail carrier affiliated 

with P&L; that EVWR expects to hire 3 

management and 19 non-management 

employees (5 locomotive engineers, 5 

trainmen, 5 MOW employees, 2 signal 

and communication employees, and 2 

mechanical employees); that EVWR 

would commence operations with 

approximately 7 locomotives leased 

from P&L and would lease additional 

locomotives from P&L or third parties as 

business dictates; that EVWR would 

acquire or lease from P&L and third 

parties the MOW equipment necessary 

to operate and maintain the Line; and 

that, for its car supply, EVWR would 

use the existing (largely privately 

owned) cars on the Line, would use 

CSXT-supplied equipment as necessary, 

and would lease additional car supply 

from third parties as business dictates. 

P&L asserts that, although EVWR 

would be a noncarrier subsidiary, it has 

not been created to avoid P&L’s 

collective bargaining agreements or to 

avoid union operations over the Line. 

Rather, P&L explains: that EVWR 

intends to become a fully unionized 

Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 52479 

carrier, and P&L and EVWR intend to 

enter into any necessary implementing 

agreements required to accomplish that 

purpose; that EVWR expects to have any 

employees hired to operate and 

maintain the Line work under 

essentially the same agreements that 

would apply if P&L were doing the 

work; and that EVWR expects that its 

employees will be represented by the 

same unions that would represent the 

employees if the Line were to be 

operated by P&L. 

P&L states that EVWR would provide 

service to all customers on the Line 7 

days per week with (1) one 2-person 

crew departing Mt. Vernon, IN, on 

Sunday, Tuesday, and Thursday, and 

returning from Okawville on Monday, 

Wednesday, and Friday, setting out and 

picking up cars at industries and 

interchange points en route; (2) another 

2-person crew performing station and 

industry switching at Mt. Vernon, IN; 

(3) another 2-person crew performing 

station switching and interchange to/ 

from CSXT at Evansville; and (4) two 2- 

person crews performing loading of unit 

coal trains at Epworth, IL, transiting to 

Mt. Vernon, IN, for unloading, and 

returning. 

Financial Arrangements. Applicants 

state that, to acquire the Improvements, 

P&L would pay CSXT a certain amount 

(the precise amount has been submitted 

under seal) and P&L would immediately 

transfer those Improvements to EVWR 

for the same amount. Applicants further 

state that P&L would assign its lease in 

the real property to EVWR, and EVWR 

would be responsible for paying annual 

rental for the real property (the precise 

amount has been filed under seal) plus 

additional rental depending upon the 

number of carloads. 

CSXT states that it does not plan any 

new financial arrangements in 

connection with the P&L Transaction. 

P&L states that it does not plan to issue 

any new securities in connection with 

the P&L Transaction, but intends to 

finance the acquisition through its 

existing line of credit or with cash on 

hand, depending on the situation at the 

time of closing. EVWR states that it will 

finance its purchase of the 

Improvements through a cash infusion 

from its initial capitalization, and that 

continuing operations and the annual 

lease payments would be financed 

through a combination of initial 

capitalization, cash from continuing 

operations, and borrowing from a third 

party. 

Passenger Service Impacts. The P&L/ 

EVWR Transaction would have no 

impact on commuter or passenger 

operations because the Line has no 

commuter or other passenger service. 

Discontinuances/Abandonments. P&L 

states that EVWR does not anticipate 

discontinuing service over or 

abandoning any portion of the Line. 

Public Interest Considerations. 

Applicants assert that, if approved, the 

P&L/EVWR Transaction would increase 

inter- and intramodal competition and 

would not result in any lessening of 

competition, creation of a monopoly, or 

restraint of trade in freight surface 

transportation in any region of the 

United States. They contend that it 

would not have any anticompetitive 

effects because it would simply allow 

EVWR to replace CSXT as the railroad 

serving local and overhead customers 

on the Line. Applicants further assert 

that significant truck competition 

provides an alternative to use of the 

Line for transportation. 

P&L asserts that EVWR intends to 

aggressively market its operation to 

shippers on the Line and to potential 

receivers of western coal, as well as the 

eastern coal that the Line now carries. 

P&L believes that there are shippers 

along the Line that currently do not use 

rail service that could be convinced to 

use EVWR’s service instead of truck 

service. P&L states that EVWR also 

plans to explore expansion of rail-water 

transload opportunities on the Line. 

P&L adds that EVWR would be 

headquartered on the Line, would hire 

qualified existing employees now 

working on the Line, would have local 

management and local personnel, and 

would provide a more personalized, 

responsive, and more frequent service to 

customers on the Line than CSXT has 

been able to provide. 

CSXT asserts that the P&L Transaction 

would improve CSXT’s financial 

viability through system rationalization, 

including reducing its operating 

expenses and capital expenditures. 

CSXT notes, however, that, although 

CSXT and P&L have agreed to the P&L 

Transaction in principle and have 

resolved many specific items, it is 

difficult to estimate savings until all of 

the specific terms of the P&L 

Transaction are resolved. 

P&L expects that the P&L/EVWR 

Transaction would result in operating 

economies, improved service, and 

improved financial viability. P&L does 

not anticipate any changes to routes and 

rates if EVWR takes over the service. 

P&L adds: That EVWR expects initially 

to handle about 63,100 carloads 

annually, including 42,900 carloads of 

coal, 6,700 carloads of chemicals, 9,600 

carloads of agricultural commodities, 

1,400 carloads of phosphate and 

fertilizer, 1,600 carloads of food and 

consumer products, and 900 carloads of 

metals; and that, based on such 

volumes, EVWR expects to earn gross 

revenues of about $12,500,000 in its first 

year of operation. 

Time Schedule For Consummation. If 

the Board approves the P&L/EVWR 

Transaction, applicants intend to 

consummate the transaction on the later 

of December 30, 2005, or the earliest 

date that P&L can acquire the Line 

pursuant to the authority sought in the 

primary application. 

Environmental Impacts. Applicants 

contend that no environmental 

documentation is required because there 

would be no operational changes that 

would exceed the thresholds established 

in 49 CFR 1105.7(e)(4) or (5) and there 

would be no action that would normally 

require environmental documentation. 

Applicants therefore assert that neither 

the P&L Transaction nor the EVWR 

Transaction requires environmental 

documentation under 49 CFR 

1105.6(b)(4) and (c)(2)(i). 

Historic Preservation Impacts. 

Applicants contend that an historic 

report is not required because EVWR 

would operate the Line and would 

require separate Board approval to 

discontinue service, and because there 

are no plans to dispose of or alter 

properties subject to Board jurisdiction 

that are 50 years old or older. 

Applicants therefore assert that neither 

the P&L Transaction nor the EVWR 

Transaction requires an historic report 

under 49 CFR 1105.8(b)(1). 

Labor Impacts. CSXT states that no 

CSXT employees would be dismissed 

on account of the P&L Transaction, but 

that 31 CSXT employees (10 Trainmen, 

7 Engineers, 11 MOW workers, 2 Signal 

& Communications workers, and 1 

Clerical worker) would be displaced, 

and 3 CSXT employees (2 Signal & 

Communications workers and 1 Clerical 

worker) would be relocated. CSXT states 

that it has not yet obtained any 

implementing agreements with its 

employees, but that it intends shortly to 

begin voluntary negotiations with its 

employees. CSXT adds that the 

predicted number of affected positions 

is based on current conditions and may 

change based upon conditions at the 

time of consummation. 

P&L states that no P&L employee 

would be adversely impacted by the 

P&L/EVWR Transaction. P&L states that 

EVWR intends to hire approximately 10 

employees (5 Trainmen and 5 

Engineers) for train and engine service, 

and 9 employees (5 MOW workers, 2 

Signal & Communications workers, and 

2 Mechanical workers) for maintenance 

of the Line and equipment, and would 

consider for employment (based on 

qualifications to be determined by 

EVWR) all qualified current and former 

52480 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 

6See 49 U.S.C. 11323(a)(3). 

7See 49 U.S.C. 11323(a)(5). 

CSXT employees whose positions 

would be abolished as a result of the 

P&L Transaction and who make proper 

application for employment. P&L adds 

that the number of anticipated hires is 

based on current conditions and may 

change based upon conditions at the 

time of consummation. 

Protective Conditions. For the P&L 

Transaction, applicants assert that, to 

provide the level of labor protection 

mandated by 49 U.S.C. 11326, the Board 

should impose the labor protective 

conditions in New York Dock Ry.—

Control—Brooklyn Eastern Dist., 360 

I.C.C. 60, 84–90 (1979), as clarified in 

Wilmington Term. RR, Inc.—Pur. & 

Lease—CSX Transp., Inc., 6 I.C.C.2d 

799, 814–826 (1990), aff’d sub nom. 

Railway Labor Executives’ Ass’n v. 

I.C.C., 930 F.2d 511 (6th Cir. 1991). For 

the Sub-No. 1 related filing (the transfer 

of the Line from P&L to EVWR), they 

assert that no labor protective 

conditions may be imposed because the 

transaction is the type that would 

otherwise be handled under 49 U.S.C. 

10901, which precludes such 

conditions. For the Sub-No. 2 related 

filing (the continuance in control of 

EVWR by P&L,6 and the continuance in 

control of P&L and EVWR by FRTI; 7), 

they contend that, because the proposal 

involves one Class II carrier (P&L) and 

one Class III carrier (EVWR), the 

appropriate level of labor protection is 

that which is set forth in 49 U.S.C. 

11326(b) (limited to 1 year of severance 

pay). 

CSXT’s 35% Ownership Interest In 

FRTI/P&L/EVWR. As noted above, 

EVWR is a wholly owned subsidiary of 

P&L, which is itself a wholly owned 

subsidiary of FRTI, a noncarrier holding 

company. Applicants advise that FRTI’s 

common stock is divided into two 

blocks: a 65% block that is owned by 

P&L management; and a 35% block that 

is owned by CSXT. Applicants further 

advise: That 100% of FRTI’s non-voting 

preferred stock is owned by CSXT; that 

one of the three members of FRTI’s 

Board of Directors is a CSXT employee; 

and that three of the seven members of 

P&L’s Board of Directors are CSXT 

employees. Applicants contend, 

however, that CSXT does not ‘‘control’’

FRTI/P&L/EVWR within the meaning of 

49 U.S.C. 11323. Applicants cite Soo 

Line Railroad Company—Petition for 

Declaratory Order, STB Finance Docket 

No. 33350 (STB served Feb. 4, 1998), 

and explain that P&L management, 

which acquired its 65% interest in FRTI 

at the same time that CSXT acquired its 

35% interest, has the power to appoint 

four members of the seven-member P&L 

board, whereas CSXT can appoint only 

three members. Applicants state that it 

is the P&L board that has the sole 

authority to manage, control, and make 

all decisions affecting the business of 

P&L and that, because P&L is controlled 

by its board and because it is the P&L 

board that has the power to direct P&L’s 

day-to-day operations, P&L is 

independent in the conduct of its daily 

operations. According to applicants, 

P&L’s board has exercised exclusive 

control over P&L’s business affairs since 

P&L was reorganized and CSXT 

purchased its equity interest in P&L in 

1995; CSXT has not been involved in 

P&L’s day-to-day management; and, to 

avoid even the appearance of control in 

connection with the P&L Transaction, 

the CSXT-appointed directors of P&L 

refrained from participating in any 

discussions or required votes 

concerning P&L’s proposal to acquire 

the Evansville-Okawville Line. 

Applicants state that no P&L or EVWR 

officers will be appointed by, or 

affiliated with, CSXT. 

Primary Application and Related 

Filings Accepted. The Board finds that 

the proposed P&L Transaction would be 

a ‘‘minor transaction’’ under 49 CFR 

1180.2(c), and the Board is accepting the 

primary 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 two related filings, which are also in 

compliance with the applicable 

regulations. The Board reserves the right 

to require the filing of supplemental 

information, if necessary to complete 

the record. 

Public Inspection. The primary 

application and the related filings are 

available for inspection in the Docket 

File Reading Room (Room 755) at the 

offices of the Surface Transportation 

Board, 1925 K Street, NW., in 

Washington, DC. In addition, the 

primary application may be obtained 

from Mr. Mullins (representing FRTI, 

P&L, and EVWR) and Mr. Gitomer 

(representing CSXT) at the addresses 

indicated above, and the related filings 

may be obtained from Mr. Mullins 

(representing FRTI, P&L, and EVWR) at 

the address indicated above. 

Procedural Schedule. The Board has 

considered applicants’ PLRY–3/CSXT–3 

request (filed August 3, 2005) for a 

procedural schedule, under which the 

Board would issue its final decision on 

December 10, 2005, and that decision 

would become effective on December 

30, 2005. Applicants have explained 

that their proposed schedule would 

allow them to close the P&L/EVWR 

Transaction on December 30, 2005, and 

would thus allow the changeover in 

operations to occur before the end of the 

year and over a weekend. 

The Board is adopting a procedural 

schedule that is essentially the same as 

applicants’ proposed procedural 

schedule. However, whereas applicants’

schedule provides that an oral argument 

will be held, if necessary, on November 

15, 2005, to allow greater flexibility in 

the handling of the Board’s docket, the 

Board’s schedule provides that any 

necessary oral argument or public 

hearing will be held the week of 

November 14, 2005. Further, although 

applicants’ schedule provides that the 

final decision will be issued on a 

Saturday, the Board’s schedule provides 

that the final decision will be issued on 

December 12, 2005 (a Monday), to make 

the schedule consistent with the Board’s 

usual operating procedure. This 

schedule will allow the Board to meet 

the applicable statutory deadline—

which requires a final decision no later 

than the 45th day after the date on 

which the evidentiary proceedings are 

concluded—even if no public hearing or 

oral argument is found to be necessary. 

Under the procedural schedule 

adopted by the Board: any person who 

wishes to participate in this proceeding 

as a POR must file, no later than 

September 12, 2005, a notice of intent 

to participate; all comments, protests, 

requests for conditions, and any other 

evidence and argument in opposition to 

the primary application or either of the 

related filings, including filings by DOJ 

and DOT, must be filed by October 12, 

2005; and responses to comments, 

protests, requests for conditions, and 

other opposition and rebuttal in support 

of the primary application or either of 

the related filings must be filed by 

October 27, 2005. As in past 

proceedings, DOJ and DOT will be 

allowed to file, on the response due date 

(here, October 27th), their comments in 

response to the comments of other 

parties, and applicants will be allowed 

to file (as quickly as possible thereafter) 

a response to any such comments of DOJ 

and/or DOT. Under this schedule, a 

public hearing or oral argument may be 

held the week of November 14, 2005. 

The Board will issue its final decision 

on December 12, 2005, and, to 

accommodate the request for a 2005 

year-end closing, the Board will make 

any such approval effective on 

December 30, 2005. For further 

information respecting dates, see 

Appendix A (Procedural Schedule). 

Notice of Intent To Participate. Any 

person who wishes to participate in this 

proceeding as a POR must file with the 

Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 52481 

8 40 CFR 1500.4(p), 1501.4(a)(2), 1508.4. 

9 49 CFR 1105.6(c). 

10Areas of the country where air pollution levels 

persistently exceed the national ambient air quality 

standards may be designated ‘‘nonattainment.’’

Evansville is located in an area designated as an air 

quality ‘‘nonattainment’’ area by the Environmental 

Protection Agency. 

Board, no later than September 12, 

2005, a notice of intent to participate, 

accompanied by a certificate of service 

indicating that the notice has been 

properly served on the Secretary of the 

United States Department of 

Transportation, the Attorney General of 

the United States, Mr. Mullins (as 

representative of FRTI, P&L, and 

EVWR), and Mr. Gitomer (as 

representative of CSXT). 

Service List Notice. The Board will 

serve, as soon after September 12, 2005, 

as practicable, a notice containing the 

official service list (the service-list 

notice). Each POR will be required to 

serve upon all other PORs, within 10 

days of the service date of the servicelist notice, copies of all filings 

previously submitted by that party (to 

the extent such filings have not 

previously been served upon such other 

parties). Each POR also will be required 

to file with the Board, within 10 days of 

the service date of the service-list 

notice, a certificate of service indicating 

that the service required by the 

preceding sentence has been 

accomplished. Every filing made by a 

POR after the service date of the servicelist notice must have its own certificate 

of service indicating that all PORs on 

the service list have been served with a 

copy of the filing. Members of the 

United States Congress (MOCs) and 

Governors (GOVs) 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 POR. 

Comments, Protests, Requests for 

Conditions, and Other Opposition 

Evidence and Argument, Including 

Filings by DOJ and DOT. All comments, 

protests, requests for conditions, and 

any other evidence and argument in 

opposition to the primary application or 

either of the related filings, including 

filings by DOJ and DOT, must be filed 

by October 12, 2005. 

Because the P&L Transaction 

proposed in the primary application is 

a minor transaction, no responsive 

applications will be permitted. See 49 

CFR 1180.4(d)(1). 

Protesting parties are advised that, if 

they seek either the denial of the 

primary application or the imposition of 

conditions upon any approval thereof, 

on the theory that approval (or approval 

without conditions) would harm 

competition and/or their ability to 

provide essential services, they must 

present substantial evidence in support 

of their positions. See Lamoille Valley 

R.R. Co. v. ICC, 711 F.2d 295 (DC Cir. 

1983). 

Responses to Comments, Protests, 

Requests for Conditions, and Other 

Opposition; Rebuttal in Support of the 

Application. Responses to comments, 

protests, requests for conditions, and 

other opposition submissions, and 

rebuttal in support of the primary 

application or either of the related 

filings, must be filed by October 27, 

2005. 

Public Hearing/Oral Argument. The 

Board may hold a public hearing or an 

oral argument in this proceeding the 

week of November 14, 2005. 

Discovery. Discovery may begin 

immediately. The parties are 

encouraged to resolve all discovery 

matters expeditiously and amicably. 

Environmental Matters. Under the 

Council on Environmental Quality 

(CEQ) regulations, for those types of 

proposed actions whose environmental 

effects are ordinarily insignificant, an 

environmental review need not be 

conducted under the National 

Environmental Policy Act of 1969 

(NEPA).8 Rather, such activities are 

covered by a ‘‘categorical exclusion.’’ In 

its environmental rules, the Board has 

various categorical exclusions.9 As 

pertinent here, under 49 CFR 

1105.6(c)(2)(i), no environmental review 

is normally required for a rail line 

acquisition proposal that would not 

result in operational changes that 

exceed certain thresholds—generally an 

increase in rail traffic of at least three 

trains a day or 50 percent in traffic 

(measured in gross ton miles annually 

in an air quality ‘‘nonattainment’’

area,10 which is where the easternmost 

terminus of the Evansville-Okawville 

Line is located. 

Applicants state in their application 

that EVWR expects initially to handle 

about 63,100 carloads annually. The 

traffic would consist of about 42,900 

carloads of coal, 6,700 carloads of 

chemicals, 9,600 carloads of agricultural 

commodities, 1,400 carloads of 

phosphate and fertilizer, 1,600 carloads 

of food and consumer products, and 900 

carloads of metal. In supplemental 

information on traffic movements 

provided by applicants to the Board’s 

Section of Environmental Analysis 

(SEA), applicants state that traffic now 

moving over the Evansville-Okawville 

Line would continue moving over the 

Line at the same volume should the 

Board approve the P&L/EVWR 

Transaction. According to applicants, 

EVWR would provide rail service to all 

customers on the Line seven days per 

week. Applicants explain that EVWR 

expects to conduct approximately 60 

train movements per week on the Line. 

Applicants state that of the 60 train 

movements per week, six train 

movements (three round-trips per week) 

would be line-haul movements 

providing local service on the 104-mile 

segment from Mt. Vernon, IN, to 

Okawville, IL. There would be two train 

movements (one round-trip) providing 

local service and overhead movements 

for interchange between Mt. Vernon, IN, 

and Evansville, IN, which are 

approximately 17 miles apart. 

Additionally, on the 2.8-mile Mt. 

Vernon Branch near Mt. Vernon, IN, 

approximately 10 switching movements 

would occur. The remainder of the 

movements would occur on the 

segments between Epworth, IL, and Mt. 

Vernon, IN, and between Mt. Vernon, 

IN, and Evansville, IN. According to 

applicants, EVWR does not anticipate 

any changes to the existing route, and 

has no plans to immediately increase 

traffic levels on the Line. 

Applicants state that, upon Board 

approval of the P&L/EVWR Transaction, 

EVWR intends to aggressively market its 

rail operations to shippers on the Line 

that currently ship and receive 

commodities by truck to provide more 

frequent and improved service to 

shippers. In addition, EVWR plans to 

explore expansion of rail-water 

transload opportunities on the Line. 

Presently, there is rail-water transload 

activity on the Line at Mt. Vernon, IN. 

Of the 63,100 carloads currently 

handled on the Line, approximately 

17,800 carloads per year of coal, 

fertilizer, and agricultural products are 

currently handled by CSXT at this 

transload facility. EVWR projects traffic 

levels for this operation to remain the 

same as CSXT’s current transload 

activities. 

Because EVWR projects no immediate 

increase in traffic levels on the Line, 

and because the amount of any future 

increase in traffic as a result of 

marketing is speculative, the P&L/ 

EVWR Transaction does not meet or 

exceed the Board’s thresholds for 

environmental documentation 

established at 49 CFR 1105.7(e)(4) or (5), 

and there is nothing in either the 

primary application or the related 

filings to indicate that the P&L/EVWR 

Transaction has any potential for 

significant environmental impacts. The 

Board’s SEA has therefore concluded 

that this proceeding is ‘‘categorically 

excluded’’ from the environmental 

review required by NEPA and that 

formal environmental review is not 

warranted in this case. 

52482 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 

1Franklin previously acquired a 15.4-mile line of 

railroad (known as the Crab Orchard Line) from 

CNOTP. See The Cincinnati, New Orleans and 

Texas Pacific Railway Company—Abandonment 

Finally, SEA agrees with applicants 

that the proposed action does not 

require historic review under the 

National Historic Preservation Act of 

1966 because further approval would be 

required to abandon any service, and 

because applicants have advised the 

Board that there are no plans to dispose 

of or alter properties subject to the 

Board’s jurisdiction that are 50 years old 

or older. 49 CFR 1105.8(b)(1). 

Filing/Service Requirements. Persons 

participating in this proceeding may 

‘‘file’’ with the Board and ‘‘serve’’ on 

other parties: A notice of intent to 

participate (due by September 12th); a 

certificate of service indicating service 

of prior pleadings on persons designated 

as PORs on the service-list notice (due 

by the 10th day after the service date of 

the service-list notice); any comments, 

protests, requests for conditions, and 

any other evidence and argument in 

opposition to the primary application or 

either of the related filings (due by 

October 12th); and any responses to 

comments, etc., and any rebuttal in 

support of the primary application or 

either of the related filings (due by 

October 27th). 

Filing Requirements. Any document 

filed in this proceeding must be filed 

either via the Board’s e-filing format or 

in the traditional paper format. Any 

person e-filing a document should 

comply with the instructions found on 

the Board’s Web site at http:// 

www.stb.dot.gov at the ‘‘E-FILING’’ link. 

Any person filing a document in the 

traditional paper format should send an 

original and 10 paper copies of the 

document (and also an IBM-compatible 

floppy disk with any textual submission 

in any version of either Microsoft Word 

or WordPerfect) to: Surface 

Transportation Board, 1925 K Street, 

NW., Washington, DC 20423–0001. 

Service Requirements. One copy of 

each document filed in this proceeding 

must be sent to each of the following 

(any copy may be sent by e-mail only if 

service by e-mail is acceptable to the 

recipient): (1) Secretary of the United 

States Department of Transportation, 

400 Seventh Street, SW., 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) William A. Mullins 

(representing FRTI, P&L, and EVWR), 

Baker & Miller PLLC, 2401 Pennsylvania 

Avenue, NW., Suite 300, Washington, 

DC 20037; (4) Louis E. Gitomer 

(representing CSXT), Ball Janik LLP, 

1455 F Street, NW., Suite 225, 

Washington, DC 20005; and (5) any 

other person designated as a POR on the 

service-list notice. 

Service of Decisions, Orders, and 

Notices. The Board will serve copies of 

its decisions, orders, and notices only 

on those persons who are designated on 

the official service list as either POR, 

MOC, or GOV. All other interested 

persons are encouraged either to secure 

copies of decisions, orders, and notices 

via the Board’s Web site at http:// 

www.stb.dot.gov under ‘‘E–LIBRARY/ 

Decisions & Notices’’ or to make 

advance arrangements with the Board’s 

copy contractor, ASAP Document 

Solutions (mailing address: Suite 103, 

9332 Annapolis Rd., Lanham, MD 

20706; e-mail address: 

asapdc@verizon.net; telephone number: 

202–306–4004), to receive copies of 

decisions, orders, and notices served in 

this proceeding. ASAP Document 

Solutions will handle the collection of 

charges and the mailing and/or faxing of 

decisions, orders, and notices to persons 

who request this service. 

Access to Filings. An interested 

person does not need to be on the 

service list to obtain a copy of the 

primary application or any other filing 

made in this proceeding. 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 primary 

application and other filings in this 

proceeding will also be available on the 

Board’s Web site at http:// 

www.stb.dot.gov under ‘‘E–LIBRARY/ 

Filings.’’

This action will not significantly 

affect either the quality of the human 

environment or the conservation of 

energy resources. 

It is ordered: 

1. The primary application in STB 

Finance Docket No. 34738 and the 

related filings in STB Finance Docket 

No. 34738 (Sub-Nos. 1 and 2) are 

accepted for consideration. 

2. The parties to this proceeding must 

comply with the Procedural Schedule 

adopted by the Board in this proceeding 

as shown in Appendix A. 

3. The parties to this proceeding must 

comply with the procedural 

requirements described in this decision. 

4. This decision is effective on 

September 2, 2005. 

Decided: August 25, 2005. 

By the Board, Chairman Nober, Vice 

Chairman Buttrey, and Commissioner 

Mulvey. 

Vernon A. Williams, 

Secretary. 

Appendix A: Procedural Schedule 

August 3, 2005— Primary application, 

related filings, motion for protective order, 

and request for issuance of procedural 

schedule filed. 

September 2, 2005—Board notice of 

acceptance of primary application and 

related filings published in the Federal 

Register. 

September 12, 2005—Notices of intent to 

participate in this proceeding due. 

October 12, 2005—All comments, protests, 

requests for conditions, and any other 

evidence and argument in opposition to 

the primary application and/or either or 

both of the related filings, including filings 

of DOJ and DOT, due. 

October 27, 2005—Responses to comments, 

protests, requests for conditions, and other 

opposition due. Rebuttal in support of the 

primary application and/or either or both 

of the related filings due. 

Week of November 14, 2005—A public 

hearing or oral argument may be held the 

week of November 14, 2005. 

December 12, 2005—Date of service of final 

decision. 

December 30, 2005—Effective date of final 

decision. 

[FR Doc. 05–17456 Filed 9–1–05; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

[STB Docket No. AB–290 (Sub–No. 236X)] 

The Cincinnati, New Orleans and Texas 

Pacific Railway Company—

Abandonment Exemption—in Roane 

County, TN 

On August 15, 2005, The Cincinnati, 

New Orleans and Texas Pacific Railway 

Company (CNOTP), a wholly owned 

subsidiary of Norfolk Southern Railway 

Company, filed with the Board a 

petition under 49 U.S.C. 10502 for 

exemption from the provisions of 49 

U.S.C. 10903 to abandon an 

approximately 1.1-mile line of railroad, 

extending from milepost 156.9-H to 

milepost 158.0-H in Rockwood, Roane 

County, TN. The line traverses United 

States Postal Service Zip Code 37854, 

and serves the station at Rockwood, 

where CNOTP will continue to provide 

rail service. 

In addition to an exemption from 49 

U.S.C. 10903, CNOTP seeks exemption 

from 49 U.S.C. 10904 [offer of financial 

assistance (OFA) procedures] and 49 

U.S.C. 10905 [public use conditions]. In 

support, CNOTP contends that the 

exemption from these provisions is 

necessary to permit conveyance of the 

line to Franklin Industries (Franklin), 

for continued operation as part of 

Franklin’s private railroad operation.1