[Federal Register: June 25, 2004 (Volume 69, Number 122)]
[Notices]
[Page 35704-35709]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jn04-149]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Finance Docket No. 34495]
Buckingham Branch Railroad Company--Lease--CSX Transportation,
Inc.
AGENCY: Surface Transportation Board, DOT.
ACTION: Decision No. 2 in STB Finance Docket No. 34495; Notice of
Acceptance of Railroad Lease Application; Issuance of Procedural
Schedule.
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SUMMARY: The Surface Transportation Board (Board) is accepting for
consideration the BBRR-1/CSXT-1 application (referred to as the BBRR/
[[Page 35705]]
CSXT application) filed May 26, 2004, by Buckingham Branch Railroad
Company (BBRR, a Class III railroad) and CSX Transportation, Inc.
(CSXT, a Class I railroad) (BBRR and CSXT are referred to collectively
as ``applicants'').\1\ The BBRR/CSXT application seeks Board approval
and authorization under 49 U.S.C. 11321-26 for: (1) The lease by BBRR
of an approximately 199.7-mile CSXT line (referred to as the C&O Line)
that runs between Clifton Forge, VA, and AM Junction, VA (near
Richmond, VA); and (2) the assumption by BBRR of CSXT's lease of a 9.1-
mile Norfolk Southern Railway Company (NS) line that runs between
Gordonsville, VA, and Orange, VA (referred to as the Orange Line).\2\
The Board finds that the BBRR/CSXT transaction proposed in the BBRR/
CSXT application is a ``minor transaction'' under 49 CFR 1180.2(c), and
the Board adopts, for the consideration of the BBRR/CSXT application, a
163-day procedural schedule (under which the Board's final decision
will be issued on November 5, 2004, the 163rd day after the day on
which the application was filed).
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\1\ 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).
\2\ The 9.1-mile length of the Orange Line is included in the
199.7-mile length of the C&O Line (i.e., the length of the C&O Line
without the Orange Line would be 190.6 miles).
DATES: The effective date of this decision is June 25, 2004. Any person
who wishes to participate in this proceeding as a party of record (POR)
must file, no later than July 9, 2004, a notice of intent to
participate. All comments, protests, requests for conditions, and any
other evidence and argument in opposition to the BBRR/CSXT application,
including filings by the U.S. Department of Justice (DOJ) and the U.S.
Department of Transportation (DOT), must be filed by August 24, 2004.
Responses to comments, protests, requests for conditions, and other
opposition, and rebuttal in support of the BBRR/CSXT application must
be filed by September 23, 2004. If a public hearing or oral argument is
held, it will be held the week of October 4, 2004. The Board will issue
its final decision on November 5, 2004. For further information
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respecting dates, see Appendix A (Procedural Schedule).
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 http://www.stb.dot.gov Web site, 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 to
each of the following (any such copy may be sent by e-mail, but 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 3645, Department
of Justice, Washington, DC 20530; (3) Keith G. O'Brien (BBRR's
representative), Rea, Cross & Auchincloss, 1707 L Street, NW., Suite
570, Washington, DC 20036; (4) Louis E. Gitomer (CSXT's
representative), 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 July 9, 2004, 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: Two CSXT rail lines cross Virginia in a
generally east-west direction between Clifton Forge, in the west, and
Richmond, in the east. The more northerly of the two lines is referred
to as the C&O Line (the line that runs via Staunton, Waynesboro, and
Charlottesville). The more southerly of the two lines is referred to as
the James River Line (the line that runs via Lynchburg). The BBRR/CSXT
application contemplates BBRR's lease of the C&O Line.
BBRR owns and operates a 17-mile line of railroad that runs between
Dillwyn, VA, and Bremo, VA, and connects with the James River Line at
Bremo. The interchange between BBRR and CSXT is actually conducted at
Strathmore, VA, a point on the James River Line located 2 miles west of
Bremo. BBRR, which was founded in 1989, has increased freight traffic
on its Dillwyn-Bremo Line from about 800 carloads per year in 1989 to
2,400 carloads per year during BBRR's best year. BBRR now provides
regular scheduled freight service 3 days per week and additional
service as requested and needed by its customers. BBRR advises that the
Commonwealth of Virginia's Rail Preservation Program as well as profits
from operations have enabled BBRR to upgrade track and bridges on the
Dillwyn-Bremo Line from Federal Railroad Administration (FRA) excepted
classification to FRA class 1 track standards \3\ in preparation for a
shipper that, when it locates, as anticipated, on the Dillwyn-Bremo
Line, will ship 3,000 carloads per year via that line. BBRR adds that
it owns and controls 5 locomotives (4 owned, 1 leased), 62 revenue
service cars, 4 cabooses, and 11 pieces of self-propelled maintenance-
of-way equipment. In addition to rolling stock, BBRR owns a station
house and general office building at Dillwyn, a slide table at Dillwyn
Yard, and several pieces of equipment used to make intermodal transfers
at two points on the Dillwyn-Bremo Line.
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\3\ There are six classes of track typically applicable to rail
transportation of freight under the FRA Track Safety Standards. An
upgrade from excepted track to class 1, with a maximum allowable
speed of 10 miles per hour, removes certain limitations on
operations.
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The BBRR/CSXT application contemplates the extension of BBRR's
operations to CSXT's C&O Line (to which BBRR's Dillwyn-Bremo Line does
not connect) and to NS's Orange Line (which branches off from the C&O
Line at Gordonsville). The 199.7-mile C&O Line consists of: (1) The
75.1-mile Piedmont Subdivision between AM Junction near Richmond (MP
85.5) and Gordonsville (MP CA 160.6); (2) the 28.5-mile Washington
Subdivision between Gordonsville (MP CA 160.6) and Charlottesville (MP
CA 180), which includes NS's 9.1-mile Orange Line between Gordonsville
(MP CAA 9.1) and South Orange (MP CAA 0.0); \4\ and (3) the 96.1-mile
North Mountain Subdivision between Charlottesville (MP CA 180) and
Clifton Forge (JD Cabin) (MP CA 276.1). The BBRR/CSXT application
contemplates that, with the exception of one shipper, Martin Marietta
at Verdon (which would continue to be served by CSXT), BBRR would
assume the common carrier obligation on the C&O Line and will replace
CSXT as the railroad serving local customers on the C&O Line,
[[Page 35706]]
including customers located at the following points in Virginia (listed
in a generally west-to-east order): Goshen, Craigsville, Fordwick,
Staunton, Waynesboro, Afton, Crozet, Ivy, Charlottesville, Keswick,
Lindsay, Gordonsville, Orange, South Orange, Louisa, Mineral,
Pendleton, Frederick Hall, Beaver Dam, Hewlett, Verdon, Doswell, North
Doswell, Bear Island, Hanover, Atlee, Ellerson, and Ruffin. The BBRR/
CSXT application further contemplates: that the lease would have a 20-
year term, with one mutual 5-year extension option; that BBRR would
take over local service (except as respects certain Martin Marietta
traffic) and would maintain the line; that, after 2 years, BBRR would
also assume the maintenance of the signal system and dispatching on the
line; that CSXT would interchange traffic with BBRR (in the west at
Clifton Forge, and in the east at Doswell) and would maintain
competitive routes and rates for traffic moving from/to points on the
C&O Line; that BBRR would pay CSXT annual rent of $140,000 per year,
and also additional rent under certain circumstances when interchange
of traffic is with a carrier other than CSXT; and that BBRR would
maintain the C&O Line at the present FRA track class standards, and
would provide service with two GP-16 locomotives that it currently owns
and two GP-40 locomotives that it proposes to acquire.
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\4\ The 9.1-mile length of the Orange Line is included in the
28.5-mile length of the Washington Subdivision (i.e., the length of
the Washington Subdivision without the Orange Line would be 19.4
miles).
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BBRR indicates that it intends to operate a scheduled railroad
based upon interchange times agreed upon with CSXT. BBRR explains that
it would operate four round-trip trains per day, 5 days per week (more
frequent service than the line's shippers now have). BBRR advises: That
it would operate from two locations (Doswell in the east, and Staunton
in the west); that, at the eastern end of the line, a morning train
would operate between Doswell and Ruffin and an evening train would
operate between Doswell and Gordonsville; and that, at the western end
of the line, a morning train would operate between Staunton and Clifton
Forge and an evening train would operate between Staunton and Orange.
BBRR further advises that each train would pick up and set out cars for
BBRR's customers; and that BBRR would also provide additional service
as needed by its customers.
The BBRR/CSXT application contemplates that CSXT would retain
limited overhead trackage rights and limited local trackage rights over
the C&O line. The retained overhead trackage rights would allow CSXT to
conduct westbound overhead movements of empty open-top hopper cars and
empty covered hopper cars. These overhead trackage rights would allow
CSXT to return these westbound empty trains, including empty coal
trains, to their origins. The retained local trackage rights would
allow CSXT to move unit aggregate trains from Martin Marietta's quarry
at Verdon (about 29.5 miles from the eastern end of the C&O Line) to
points on CSXT's lines in the vicinity of Newport News, VA, and would
also allow CSXT to move empty unit aggregate trains in the reverse
direction. Furthermore, CSXT would enter into a detour agreement with
BBRR to detour loaded eastbound coal trains over the C&O Line in case
of an emergency or maintenance on the James River Line.
BBRR projects that it would handle about 11,700 carloads annually
over the C&O Line, consisting of 6,200 carloads of local traffic, 1,000
carloads for interchange with NS and the Eastern Shore Railroad, Inc.,
and 4,500 CSXT non-revenue carloads. CSXT projects that it would
annually move through its retained overhead trackage rights about
156,000 westbound empty cars and through its retained local trackage
rights about 7,900 revenue carloads of rock from the Martin Marietta
quarry at Verdon.
Financial Arrangements. CSXT advises that it does not plan any new
financial arrangements in connection with the BBRR/CSXT transaction.
BBRR advises that, although it does not plan to issue any new
securities in connection with the BBRR/CSXT transaction, it does expect
to obtain some unsecured short term financing to meet operating capital
needs in the early stages of operation.
Passenger Service Impacts. Applicants advise that the BBRR/CSXT
transaction would have no impact on commuter operations, because there
are no such operations over the C&O Line or over the Orange Line.
Applicants note, however, that an Amtrak train (the Cardinal) operates
over part of the C&O Line (between Clifton Forge and Gordonsville) and
all of the Orange Line (between Gordonsville and Orange). Applicants
indicate: That Amtrak operates two trains per day over the line on
Sunday, Wednesday, and Friday of each week, one eastbound (Train No.
50) and one westbound (Train No. 51); that both trains stop at
Charlottesville, Staunton, and Clifton Forge; and that, to minimize
delays, BBRR plans to schedule operations around the scheduled times
for Amtrak's trains. Furthermore, applicants indicate that BBRR plans
to seek approval from FRA and Amtrak, as necessary, to abandon the
Train Control System (TCS, a signal system) currently in place on the
North Mountain and Washington Subdivisions between Clifton Forge and
Orange; that CSXT would maintain the TCS and would manage train
dispatching for the lines covered by the lease for up to 2 years while
BBRR seeks such abandonment authority; that, upon approval of the
abandonment of the TCS, or 2 years after commencement of the lease,
whichever occurs first, BBRR intends to dispatch the line; and that, if
the TCS system is not abandoned, BBRR and CSXT would assess the
situation to the mutual satisfaction of both parties.
Public Interest Considerations. The C&O Line is paralleled by
Interstate Highway 64 and is crossed by Interstate Highway 81, both of
which provide major highway access for truck traffic from/to customers
on the line and, therefore, according to BBRR, significant competition
to railroad traffic, especially intermodal traffic. BBRR advises that
it plans to compete fiercely with trucks for traffic moving from/to
points on the C&O Line. BBRR contends that it could effectively compete
with motor carriers for freight traffic moving from/to points on the
C&O Line by providing more frequent rail service and local sales,
marketing, and operating personnel. BBRR indicates that it intends to
have local people marketing its services to the customers on the line
to build a relationship that would encourage the shift of truck
shipments to rail.
Applicants contend that, because the BBRR/CSXT transaction would
enable BBRR to increase the frequency and quality of rail service on
the C&O Line, the BBRR/CSXT transaction would improve the adequacy of
transportation service to the shipping public and increase intermodal
competition as well as intramodal competition. Applicants further
contend that there would not likely be, as a result of the BBRR/CSXT
transaction, any lessening of competition, creation of a monopoly, or
restraint of trade in freight surface transportation in any region of
the United States.
Applicants advise that they expect the BBRR/CSXT transaction to
result in operating economies, improved service, and improved financial
viability. Applicants explain: That they do not anticipate any changes
to routes and rates as BBRR takes over the service; that, rather, BBRR
would provide more frequent and responsive service to the local
customers; that the additional traffic that BBRR expects to generate
would improve BBRR's financial viability; and that the rationalization
of the CSXT system would improve CSXT's financial viability, by
enabling
[[Page 35707]]
CSXT to reduce its operating expenses and to save on some capital
expenditures. Applicants add that, although they have resolved many
specific items, it is difficult to estimate savings until all of the
specific terms of the lease are resolved between CSXT and BBRR.
Environmental Impacts. Applicants contend that no environmental
documentation is required because there will be no operational changes
that would exceed the thresholds established in 49 CFR 1105.7(e)(4) or
(5) and there will be no action that would normally require
environmental documentation. Applicants therefore conclude that the
BBRR/CSXT application does not require 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 BBRR will operate the line and will
require further Board approval to discontinue any 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
conclude that the BBRR/CSXT application does not require an historic
report under 49 CFR 1105.8(b)(1).
Labor Impacts. CSXT projects that 35 CSXT employees would be
affected by BBRR's lease of the C&O Line. CSXT projects, in particular:
that 7 trainmen represented by the United Transportation Union would be
displaced; that 4 engineers represented by the Brotherhood of
Locomotive Engineers would be displaced; that 14 maintenance-of-way
employees represented by the Brotherhood of Maintenance of Way
Employees would be displaced; and that 7 signal and communications
employees represented by the Brotherhood of Railroad Signalmen would be
displaced, and an additional 3 such signal and communications employees
would be relocated. CSXT explains that the trainmen, the engineers, and
the maintenance-of-way employees would be affected because local work
now performed by CSXT employees would be performed, post-transaction,
by BBRR employees. As respects the signal and communications employees,
CSXT explains that it has agreed to continue to maintain the signal
system on the C&O Line and to dispatch the line, and to defer
displacing employees, for up to 2 years after consummation of the
transaction, if approved. CSXT also explains that it might cease
maintaining the signal system and dispatching the line at an earlier
date if FRA and Amtrak, as necessary, approve the abandonment of the
signal system. CSXT adds: that it does not expect any dispatchers to be
impacted by the BBRR/CSXT transaction; that it has not yet obtained any
implementing agreements; and that, because CSXT's projections
respecting employee impacts are based on conditions prior to the date
of the BBRR/CSXT application, those projections may change based upon
conditions existing at the time of consummation of the BBRR/CSXT
transaction.
BBRR projects that it would hire at least 21 employees and might
hire up to 27 employees in connection with its lease of the C&O Line.
BBRR explains that it intends to hire, on consummation of the lease, 5
trainmen, 5 engineers, 8 maintenance-of-way employees, 2 mechanical
employees, and 1 clerical employee. BBRR adds that, in the interest of
operating in the most efficient manner possible, it expects to cross-
train many of these employees to perform other functions. BBRR advises
that, if the signal system on the line has not been approved for
abandonment by FRA and Amtrak, as necessary, 2 years after consummation
of the lease, BBRR expects to hire approximately 6 signal and
communications employees to operate the signal system. If FRA and
Amtrak, as necessary, authorize abandonment of the signal system, BBRR
notes that it would not hire any signal and communications employees.
BBRR indicates that it plans to consider for employment qualified local
CSXT employees whose positions would be abolished as a result of the
BBRR/CSXT transaction and who make proper application for employment.
Since no existing employees of BBRR would be adversely affected by the
BBRR/CSXT transaction, and because all the employees that BBRR would
need to operate and maintain the line and equipment would be new hires,
BBRR does not intend to enter into any implementing agreements with
rail labor. Further, because BBRR's projections are based on conditions
prior to the date of the BBRR/CSXT application, BBRR states that its
projections may change based upon conditions existing at the time of
consummation of the BBRR/CSXT transaction.
CSXT and BBRR contend that, to provide the level of labor
protection mandated by 49 U.S.C. 11326, the Board should impose the
``Mendocino Coast'' labor protective conditions set forth 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),
aff'd sub nom. Railway Labor Executives' Ass'n v. United States, 675
F.2d 1248 (D.C. Cir. 1982), 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). In support, CSXT and BBRR cite to Portland & Western
Railroad, Inc.--Lease and Operation Exemption--Burlington Northern
Railroad Company, Finance Docket No. 32766 (ICC served January 5,
1996), a similar type of transaction, in that it involved both the
lease by a Class III railroad of lines of a Class I railroad and also
the retention by the Class I railroad of the right to conduct certain
operations over the leased lines.
BBRR/CSXT Application Accepted. The Board agrees with applicants
that the proposed BBRR/CSXT transaction would be a ``minor
transaction'' under 49 CFR 1180.2(c), and the Board is accepting the
BBRR/CSXT 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
reserves the right to require the filing of supplemental information,
if necessary to complete the record in this matter.
Public Inspection. The BBRR/CSXT application is 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 application may be obtained from applicants'
representatives (Mr. O'Brien for BBRR, and Mr. Gitomer for CSXT) at the
addresses indicated above.
Procedural Schedule. The Board has considered applicants' BBRR-3/
CSXT-3 petition (filed May 26, 2004) suggesting a 166-day procedural
schedule. Under that proposed schedule, the Board would issue its final
decision on November 8, 2004, and that decision would become effective
on December 8, 2004. Applicants explain that their proposed schedule
would allow applicants to close the BBRR/CSXT transaction by December
20, 2004, and would thus allow the changeover in operations to occur
before year-end over a non-holiday weekend.
The Board is adopting a 163-day procedural schedule that is
essentially the same as applicants' proposed 166-day schedule, except
that the Board's schedule provides for the issuance of a final decision
on November 5, 2004. The evidentiary proceedings in this matter will be
concluded on September 23rd (the due date for filing responses and
rebuttal) if neither a public hearing nor an oral argument is held the
week of October 4th. Therefore, issuance of the
[[Page 35708]]
final decision on November 5th 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.
Under the 163-day procedural schedule adopted by the Board: any
person who wishes to participate in this proceeding as a POR must file,
no later than July 9, 2004, a notice of intent to participate; all
comments, protests, requests for conditions, and any other evidence and
argument in opposition to the BBRR/CSXT application, including filings
by DOJ and DOT, must be filed by August 24, 2004; and responses to
comments, protests, requests for conditions, and other opposition and
rebuttal in support of the BBRR/CSXT application must be filed by
September 23, 2004. As in past proceedings, DOJ and DOT will be allowed
to file, on the response due date (here, September 23rd), their
comments in response to the comments of other parties, and applicants
will be allowed to late-file (as quickly as possible) 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 October 4, 2004. To allow the
Board to meet the applicable statutory deadline, which requires the
Board to conclude any evidentiary proceedings by the 105th day after
the date of Federal Register publication of notice of the acceptance of
the application, a public hearing or oral argument must be held, if at
all, no later than October 8th. Furthermore, under this procedural
schedule, the Board will issue its final decision on November 5, 2004
(the 163rd day after May 26th, the day on which the BBRR/CSXT
application was filed with the Board). This schedule would allow
applicants to close the BBRR/CSXT transaction by December 20th if the
application is approved. 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 Board, no
later than July 9, 2004, 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, and
applicants' representatives (Mr. O'Brien for BBRR, and Mr. Gitomer for
CSXT).
Service List Notice. The Board will serve, as soon after July 9,
2004, 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 such 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 BBRR/CSXT application, including filings by DOJ
and DOT, must be filed by August 24, 2004.
Because the proposed BBRR/CSXT transaction has been determined to
be 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 BBRR/CSXT application or the imposition of conditions upon any
approval, 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 (D.C. 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 BBRR/CSXT application must
be filed by September 23, 2004.
Public Hearing/Oral Argument. The Board may hold a public hearing
or an oral argument in this proceeding the week of October 4, 2004.
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) and Board regulations, actions whose environmental effects are
ordinarily insignificant may be excluded from review under the National
Environmental Policy Act of 1969 (NEPA).\5\ In its environmental rules,
the Board has promulgated various categorical exclusions. As pertinent
here, where the eastern portion of the 199.7-mile rail line proposed to
be leased is located in an air quality ``nonattainment'' area, a rail
line lease 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)--normally requires no environmental review, 49 CFR
1105.6(c)(2)(i).
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\5\ 40 CFR 1500.4(p), 1501.4(a)(2), 1508.4; 49 CFR 1105.6(c).
Such activities are said to be covered by a ``categorical
exclusion,'' which CEQ defines at 40 CFR 1508.4.
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Applicants state in their application that the traffic increases
they project to occur, should this proposal be approved, consist of
four round-trip trains per day, 5 days per week. Applicants explain
that BBRR would operate morning and evening round-trip trains between
various origins and destinations over four distinct line segments.
Specifically, over the easternmost segments, a morning train would
operate between Doswell and Ruffin (near Richmond), and an evening
train would operate between Doswell and Gordonsville. On the
westernmost segments, a morning train would operate between Staunton
and Clifton Forge, and an evening train would operate between Staunton
and Orange (including Gordonsville). Applicants maintain that operating
one round-trip train 5 days per week over four distinct rail line
segments would allow BBRR to provide efficient service tailored to the
needs of its customers.
Because the four round-trip trains would operate over four
different line segments and applicants contemplate no increase on any
individual line segment beyond one round-trip train per day, the
proposed lease does not meet or exceed the Board's thresholds for
environmental documentation established in the Board's environmental
rules at 49 CFR 1105.7(e)(4) or (5), and there is nothing in the
application to indicate that the transaction has any potential for
significant environmental impacts. The Board's Section of Environmental
Analysis (SEA) therefore has concluded that formal environmental review
is not warranted in this case, and that this
[[Page 35709]]
proceeding is ``categorically excluded'' from environmental review
required by NEPA.
Finally, SEA agrees with applicants that the proposed action does
not require historic review under the National Historic Preservation
Act of 1966 (NHPA) because further approval would be required to
abandon any service, and 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: Format. Persons participating in this
proceeding may ``file'' with the Board and ``serve'' on other parties a
number of documents, particularly: a notice of intent to participate
(due by July 9th); 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);
comments, protests, requests for conditions, and any other evidence and
argument in opposition to the BBRR/CSXT application (due by August
24th); and responses to comments, etc., and rebuttal in support of the
BBRR/CSXT application (due by September 23rd).
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 http://www.stb.dot.gov Web site, 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 such copy may be
sent by e-mail, but 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 3645, Department of Justice, Washington, DC
20530; (3) Keith G. O'Brien (BBRR's representative), Rea, Cross &
Auchincloss, 1707 L Street, NW., Suite 570, Washington, DC 20036; (4)
Louis E. Gitomer (CSXT's representative), 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
such decisions, orders, and notices via the Board's http://www.stb.dot.gov
Web site under ``E-LIBRARY/Decisions & Notices'' or to
make advance arrangements with the Board's copy contractor, ASAP
Document Solutions (mailing address: ASAP Document Solutions, Suite
103, 9332 Annapolis Rd., Lanham, MD 20706; e-mail address:
asapmd@verizon.net; telephone number: 301-577-2600), 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 BBRR/CSXT application or any other
filing made in this proceeding. The Board's Railroad Consolidation
Procedures provide: ``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). And the BBRR/CSXT application and other filings in
this proceeding will also be available on the Board's http://www.stb.dot.gov
Web site 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 BBRR/CSXT application in STB Finance Docket No. 34495 is
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 June 25, 2004.
Decided: June 22, 2004.
By the Board, Chairman Nober, Vice Chairman Mulvey, and
Commissioner Buttrey.
Vernon A. Williams,
Secretary.
Appendix A: Procedural Schedule
May 26, 2004
BBRR/CSXT application, petition for protective order, and
petition to establish procedural schedule filed.
June 25, 2004
Board notice of acceptance of BBRR/CSXT application published in
the Federal Register.
July 9, 2004
Notices of intent to participate due.
August 24, 2004
All comments, protests, requests for conditions, and any other
evidence and argument in opposition to the BBRR/CSXT application,
including filings of DOJ and DOT, due.
September 23, 2004
Responses to comments, protests, requests for conditions, and
other opposition due. Rebuttal in support of the BBRR/CSXT
application due.
Week of October 4, 2004
A public hearing or oral argument may be held the week of
October 4, 2004.
November 5, 2004
Date of service of final decision.
[FR Doc. 04-14474 Filed 6-24-04; 8:45 am]
BILLING CODE 4915-01-P