[Federal Register Volume 70, Number 179 (Friday, September 16, 2005)]
[Notices]
[Pages 54804-54806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18246]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 32299 (Sub-No. 1)]


Norfolk Southern Railway Company--Consolidation of Operations--
CSX Transportation, Inc. (Petition for Supplemental Order)

AGENCY: Surface Transportation Board, DOT.

ACTION: Decision No. 2 in STB Finance Docket No. 32299 (Sub-No. 1); 
Notice of Filing of Petition for Supplemental Order; Issuance of 
Procedural Schedule.

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SUMMARY: On August 17, 2005, CSX Transportation, Inc. (CSXT) and 
Norfolk Southern Railway Company (NSR) filed with the Surface 
Transportation Board (Board) a petition (the Joint Petition) for a 
supplemental order authorizing the modification of one aspect of a 
series of transactions that the Board's predecessor, the Interstate 
Commerce Commission (ICC), approved in 1993. The contemplated 
modification is to have CSXT, rather than NSR, perform switching 
services for both carriers in the Newberry, SC area.

DATES: The effective date of this decision is September 16, 2005. Any 
person who wishes to file comments respecting the petition must do so 
by October 6, 2005. Petitioners will have until October 21, 2005, to 
reply to those comments.

ADDRESSES: Any filing submitted in this proceeding must be submitted 
either via 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. 
Comments should also be served (one copy each) on: (1) John W. Humes, 
Jr., 4135 Lakeside Drive, Jacksonville, FL 32210 (CSXT's 
representative); and (2) Richard A. Allen, Zuckert, Scoutt &

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Rasenberger, LLP, 888 Seventeenth Street, NW., Suite 700, Washington, 
DC 20006 (NSR's representative). Any reply should also be served (one 
copy each) on each commenting party. Comments and replies may be served 
by e-mail, but only if service by e-mail is acceptable to the 
recipient.

FOR FURTHER INFORMATION CONTACT: Melissa A. Ziembicki, 202-565-1604. 
[Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.]

SUPPLEMENTARY INFORMATION: On July 7, 1993, CSXT and NSR filed an 
application pursuant to 49 U.S.C. 11343 (now 49 U.S.C. 11323) et seq. 
and 49 CFR Part 1180 seeking ICC approval for a series of transactions 
that involved the consolidation of certain operations in South 
Carolina. The proposed consolidation consisted of a series of trackage 
rights agreements, joint use agreements, and operating agreements. Two 
of those agreements--a 1993 Newberry Operating Rights Agreement and a 
1993 Newberry Switching Agreement--concerned operations in the Newberry 
area, where both railroads have lines and serve customers. Those two 
agreements provided that NSR would perform switching services for both 
railroads in the Newberry area, switching cars between interchange 
tracks in Newberry owned by CSXT and customers located on the lines of 
both railroads in Newberry and nearby Prosperity. The 1993 Newberry 
Switching Agreement detailed the terms of NSR's switching services, and 
the 1993 Newberry Operating Rights Agreement provided for a grant by 
CSXT to NSR of operating rights over certain CSXT lines in the Newberry 
area necessary to permit NSR to switch cars to/from CSXT customers in 
the area.
    In Norfolk Southern Railway Company--Consolidation of Operations--
CSX Transportation, Inc., Finance Docket No. 32299 (ICC served Nov. 26, 
1993) (Coordination Decision), the ICC approved the application. The 
ICC found the proposed consolidation to be a ``minor transaction,'' see 
49 CFR 1180.2(c), and it found that the proposed consolidation would 
not result in a change in the competitive balance between CSXT and NSR 
in South Carolina.
    Based on their experience under the agreements approved in 1993, 
petitioners have concluded that a minor modification to one aspect of 
the 1993 consolidation--the switching at Newberry--would improve the 
efficiency of operations and enhance rail service to their customers. 
Petitioners explain that, at Newberry, NSR now performs the local 
switching for both carriers with its own crews, even though the vast 
majority of the linehaul shipments are for the account of CSXT, and 
even though CSXT provides the locomotives and maintains most of the 
tracks used in the switching operations. Petitioners now believe that 
this arrangement is inefficient and that service to all customers at 
Newberry would be improved if CSXT, rather than NSR, were to provide 
all switching services to CSXT and NSR customers at Newberry and nearby 
Prosperity.
    Petitioners indicate that they have now entered into two new 
agreements--a 2005 Newberry Operating Rights Agreement and a 2005 
Newberry Switching Agreement--under which CSXT would provide the 
switching for both railroads in the Newberry area, NSR would grant CSXT 
the operating rights over NSR lines necessary to perform such switching 
to/from NSR customers, and NSR would cease using the operating rights 
over CSXT lines that it acquired in 1993 to perform the switching. 
Specifically: (1) NSR would cease operations over CSXT trackage between 
Milepost (MP) 33.1 and MP 47.5 in Newberry County, SC, which NSR now 
uses to perform switching services in the Newberry, SC, area for both 
itself and CSXT; and (2) CSXT would acquire rights over NSR tracks to 
operate (i) between NSR MP V 47.1 and NSR MP V 49.0 in Newberry County, 
SC, and (ii) between NSR MP V 42.0 and NSR MP V 36.0 in Prosperity, SC, 
for the sole purpose of performing switching operations for the 
customers of both carriers.
    Because the proposed changes would constitute a modification of 
arrangements approved by the ICC in 1993, petitioners seek Board 
authorization via a supplemental order under 49 U.S.C. 11327.
    Effects on Shippers. Petitioners contend that the contemplated 
changes would improve service to customers in the Newberry area and 
would have no adverse effect on competition between CSXT and NSR. 
Petitioners explain that CSXT and NSR would continue to have the same 
commercial access to existing customers in the Newberry area and to new 
facilities that may locate on their lines in the future. Petitioners 
add that NSR cars switched by CSXT to customers on NSR lines would 
continue to be in the account of NSR; that CSXT cars switched to 
customers on CSXT lines would continue to be in the account of CSXT; 
and that CSXT switching service would simply replace NSR switching 
service.
    Effects on Employees. The ICC's approval of the 1993 consolidation 
was subject to the employee protective conditions described in 
Mendocino Coast Ry., Inc.--Lease and Operate, 354 I.C.C. 732 (1978), as 
modified in Mendocino Coast Ry., Inc.--Lease and Operate, 360 I.C.C. 
653 (1980) (Mendocino Coast), as clarified in Wilmington Term. RR, 
Inc.--Pur. & Lease--CSX Transp., Inc., 6 I.C.C.2d 799 (1990). See 
Coordination Decision, slip op. at 4.\1\ Petitioners advise that the 
employee protective conditions imposed in 1993 would apply to any 
employees that may be adversely affected by the transaction approved in 
1993 or by the modification proposed here. Petitioners contend that the 
modification proposed here should not have a significant adverse effect 
on employees of the carriers because, although the proposed 
modification would result in the abolishment of a three-man NSR 
switching assignment currently performing switching services in 
Newberry, it is anticipated that the employees currently assigned to 
that job would exercise seniority to other positions in their seniority 
district. Petitioners assert that the modification proposed here would 
have no adverse effect on CSXT employees.
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    \1\ Petitioners claim that the ICC imposed the employee 
protective conditions described in Norfolk and Western Ry. Co.--
Trackage Rights--BN, 354 I.C.C. 605 (1978), as modified in Mendocino 
Coast Ry., Inc.--Lease and Operate, 360 I.C.C. 653 (1980). See Joint 
Petition at 7; compare Coordination Decision, slip op. at 3 n.3, 4.
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    Proposed Schedule. Petitioners have asked that the Board publish 
notice of the Joint Petition in the Federal Register within 30 days of 
the filing date (i.e., by September 16, 2005). Petitioners have also 
asked that comments be due 20 days after publication (i.e., on October 
6, 2005), that replies to comments be due 35 days after publication 
(i.e., on October 21, 2005), and that the Board serve a decision within 
45 days of the filing of replies (i.e., by December 5, 2005).
    Procedural Schedule Adopted by the Board. The Board has arranged to 
publish this decision in the Federal Register on September 16, 2005, to 
provide notice to interested persons that petitioners seek the relief 
contemplated in the Joint Petition.
    Petition Available To Interested Persons. Interested persons may 
view the Joint Petition on the Board's Web site at http://www.stb.dot.gov, at the ``E-LIBRARY/Filings'' link. The petition was 
filed on August 17, 2005, and may be viewed with the filings for that 
date.
    Any person wishing to secure a paper copy of the petition may 
request a copy

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in writing or by phone from petitioners' representatives (1) John W. 
Humes, Jr., 4135 Lakeside Drive, Jacksonville, FL 32210, telephone 
number 904-388-4883, and (2) Richard A. Allen, Zuckert, Scoutt & 
Rasenberger, LLP, 888 Seventeenth Street, NW., Suite 700, Washington, 
DC 20006, telephone number 202-298-8660.
    Comments and Replies. Any person who wishes to file comments 
respecting the Joint Petition must file such comments by October 6, 
2005. Petitioners will have until October 21, 2005, to reply to any 
comments filed by interested persons.
    Decision By The Board. The Board will endeavor to issue its 
decision on the merits of the Joint Petition by December 5, 2005.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. Comments of interested persons are due by October 6, 2005.
    2. Petitioners' reply is due by October 21, 2005.
    3. This decision is effective on September 16, 2005.

    Decided: September 8, 2005.

    By the Board, Chairman Nober, Vice Chairman Buttrey, and 
Commissioner Mulvey.
Vernon A. Williams,
Secretary.
[FR Doc. 05-18246 Filed 9-15-05; 8:45 am]
BILLING CODE 4915-01-P