[Federal Register Volume 70, Number 170 (Friday, September 2, 2005)]
[Notices]
[Pages 52477-52482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17456]


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

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 Sub-No. 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.
---------------------------------------------------------------------------

    \1\ This 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.''
---------------------------------------------------------------------------

    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 
Evansville-Okawville 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/EVWR \2\ and CSXT are referred to collectively as applicants.
---------------------------------------------------------------------------

    \2\ EVWR is a wholly owned subsidiary of P&L, which is itself a 
wholly owned subsidiary of FRTI.
---------------------------------------------------------------------------

    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 Sub-No. 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

[[Page 52478]]

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 ``E-FILING'' 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 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. 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).
---------------------------------------------------------------------------

    \3\ The 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \4\ Compare PLRY-1 at 9 (7 unions) with PLRY-1 at 10 (8 unions).
---------------------------------------------------------------------------

    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 Evansville-
Okawville 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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 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

[[Page 52480]]

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).
---------------------------------------------------------------------------

    \6\ See 49 U.S.C. 11323(a)(3).
    \7\ See 49 U.S.C. 11323(a)(5).
---------------------------------------------------------------------------

    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

[[Page 52481]]

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 service-list 
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 service-list 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.
---------------------------------------------------------------------------

    \8\ 40 CFR 1500.4(p), 1501.4(a)(2), 1508.4.
    \9\ 49 CFR 1105.6(c).
    \10\ Areas 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.
---------------------------------------------------------------------------

    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.

[[Page 52482]]

    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: <a href="/cdn-cgi/l/email-protection#83e2f0e2f3e7e0c3f5e6f1eaf9ecedadede6f7"><span class="__cf_email__" data-cfemail="1b7a687a6b7f785b6d7e697261747535757e6f">[email protected]</span></a>; 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


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>