[Federal Register Volume 75, Number 102 (Thursday, May 27, 2010)]
[Notices]
[Pages 29805-29810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12774]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Docket No. FD 35348]
CSX Transportation, Inc. and Delaware and Hudson Railway Company,
Inc.--Joint Use Agreement
AGENCY: Surface Transportation Board.
ACTION: Decision No. 2 in FD 35348; Notice of Acceptance of
Application; Issuance of Procedural Schedule.
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SUMMARY: The Surface Transportation Board (Board) is accepting for
consideration the application filed on April 27, 2010, by CSX
Transportation, Inc. (CSXT), and Delaware and Hudson Railway Company,
Inc. (D&H). The application seeks Board approval under 49 U.S.C. 11321-
26 for CSXT and D&H to commence operations pursuant to an agreement
between CSXT and D&H, known as the New York Joint Use Agreement (Joint
Use Agreement). This proposal is referred to as the transaction, and
CSXT and D&H are referred to collectively as Applicants.
The Board finds that the transaction is a ``minor transaction''
under 49 CFR 1180.2(c), and that the application, as supplemented, is
complete.\1\ The Board adopts a procedural schedule for consideration
of the application, under which the Board's final decision would be
issued on October 22, 2010, and would become effective November 21,
2010, assuming that there is no need for further environmental
analysis. See the discussion on environmental matters, below.
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\1\ By a letter dated May 11, 2010, Applicants supplemented
their application with additional information regarding the
environmental and passenger service impacts of the proposed
transaction.
DATES: The effective date of this decision is May 27, 2010. Any person
who wishes to participate in this proceeding as a party of record (POR)
[[Page 29806]]
must file, no later than June 7, 2010, a notice of intent to
participate. Discovery requests to Applicants are due by June 11, 2010.
Applicants' responses to discovery requests are due by June 25, 2010.
All comments, protests, requests for conditions, and any other evidence
and argument in opposition to the application, including filings by the
U.S. Department of Justice (DOJ) and the U.S. Department of
Transportation (DOT), must be filed by July 2, 2010. Comments on the
Board's Section of Environmental Analysis (SEA) Environmental Notice
are due by July 21, 2010. Responses to comments, protests, requests for
conditions, and other opposition, and rebuttal in support of the
application must be filed by July 23, 2010. If a public hearing or oral
argument is held, it will be held on a date to be determined by the
Board. The Board will issue its final decision on October 22, 2010, and
the Board will make any such approval effective on November 21, 2010,
unless an extension is needed to permit the completion of formal
environmental review. For further information respecting dates, see the
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Appendix (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 attach a document and
otherwise comply with the instructions found on the Board's website at
``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 electronic version) to: Surface
Transportation Board, 395 E Street, SW., 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 Transportation,
1200 New Jersey Avenue, SE., Washington, DC 20590; (2) Attorney General
of the United States, c/o Assistant Attorney General, Antitrust
Division, Room 3109, Department of Justice, Washington, DC 20530; (3)
Terence M. Hynes (representing D&H), Sidley Austin LLP, 1501 K Street,
NW., Washington, DC 20005; (4) Louis E. Gitomer (representing CSXT),
Law Offices of Louis E. Gitomer, LLC, 600 Baltimore Avenue, Suite 301,
Towson, MD 21204; 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 June 2, 2010, as practicable).
Comments (an original and 10 copies) on the Environmental Notice
should be submitted in writing to: Surface Transportation Board,
Section of Environmental Analysis, Attn: Phillis Johnson-Ball, Docket
No. FD 35348, 395 E Street, SW., Washington, DC 20423-001.
FOR FURTHER INFORMATION CONTACT: Julia M. Farr, (202) 245-0359.
[Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at 1-800-877-8339.]
SUPPLEMENTARY INFORMATION: CSXT is a wholly owned subsidiary of CSX
Corporation and is a Class I railroad that owns and operates
approximately 21,000 miles of railroad lines in the United States and
Canada. As relevant here, CSXT currently provides service between the
Eastern United States and points in Eastern Canada over lines between
Selkirk and Syracuse, N.Y., and its St. Lawrence and Montreal
Subdivisions (the Massena Line), between Syracuse and Huntingdon, Que.
CSXT interchanges this cross-border rail traffic with Canadian National
Railway Company (CN) at Huntingdon, with CN handling the traffic to and
from the Montreal terminal area. The current CSXT/CN route between
Selkirk and Montreal is 403 miles, consisting of 156 miles between
Selkirk Yard and Syracuse, 214 miles between Syracuse and Huntingdon,
and 33 miles via CN between Huntingdon and Montreal. CSXT currently
serves 15 major local customers at points along the Massena Line. Local
freight is shuttled on a daily basis between Syracuse and Massena,
N.Y., in the same trains that handle overhead traffic for interchange
with CN at Huntingdon, with prior or subsequent movement to and from
customer facilities handled by CSXT local trains.
D&H, a Class II railroad, is a wholly owned, indirect subsidiary of
Canadian Pacific Railway Company (CP), a Class I railroad. D&H owns
and/or operates 1,138 miles of rail lines in New Jersey, New York, and
Pennsylvania. As relevant here, D&H currently accesses the New York
City metropolitan area via trackage rights over CSXT's ``East-of-the-
Hudson'' rail line and a related switching agreement with CSXT.\2\ The
trackage rights agreement grants D&H overhead trackage rights over
CSXT's lines between Schenectady, N.Y., and Oak Point Yard, N.Y. Under
the switching agreement, D&H has the right to access customers in
Queens and the Bronx, N.Y., via switching performed by CSXT. D&H also
has trackage rights over CSXT's line between Oak Point Yard and Fresh
Pond Junction, N.Y., for the purpose of interchanging traffic with the
New York & Atlantic Railway Company.
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\2\ D&H obtained those rights in connection with Norfolk
Southern Railway Company (NS) and CSXT's acquisition of control of
Conrail. See CSX Corp.--Control and Operating Leases/Agreements--
Conrail Inc., 3 S.T.B. 196, 282-83 (1998) (Conrail).
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D&H currently operates 2 trains per week in each direction between
Albany, N.Y., and New York City via a route consisting of: D&H's line
between Albany and Schenectady; trackage rights over CSXT's line
between Schenectady and Poughkeepsie, N.Y.; trackage rights owned by
Metro North Commuter Railroad (MNCR), between Poughkeepsie and milepost
7 near High Bridge, N.Y.; and trackage rights over CSXT and Amtrak
lines between Harlem River Yard, Oak Point Yard, and Fresh Pond
Junction. D&H states that trains in this corridor currently average
less than 27 revenue carloads per train and asserts that such traffic
volume is not sufficient to support more frequent, profitable train
service.
The proposed transaction involves the joint use of certain rail
lines owned by CSXT or D&H, located between Rouses Point Junction,
N.Y., and Fresh Pond Junction, consisting of 3 segments: The Saratoga
Springs-Rouses Point Segment,\3\ the Albany-Saratoga Springs
Segment,\4\ and the Albany-Fresh Pond Segment\5\ (collectively, Joint
Use Lines). The joint use rights granted to D&H and CSXT in the Joint
Use Agreement are for overhead traffic only. Pursuant to the Joint Use
Agreement, D&H has granted CSXT the non-exclusive right to use, jointly
with D&H, the Saratoga Springs-Rouses Point Segment and the Albany-
Saratoga Springs Segment. CSXT has reciprocally granted to D&H the non-
exclusive right to use, jointly with CSXT, the Albany-Fresh Pond
Segment. Applicants state that the fundamental purpose of the proposed
transaction is to address certain inefficiencies in the
[[Page 29807]]
current north-south operations of CSXT and D&H in New York.
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\3\ The Saratoga Springs-Rouses Point Segment extends between
D&H's Saratoga Springs Yard, located at D&H milepost 36.10 near Saratoga Springs, N.Y., and the United States-Canada
border at D&H milepost 192.08 in the vicinity of Rouses
Point Junction, N.Y., a total distance of approximately 155.98
miles.
\4\ The Albany-Saratoga Springs Segment extends between a point
of connection with CSXT's rail lines near D&H's Kenwood Yard located
at D&H milepost 0.0 in the vicinity of Albany, N.Y.,
and D&H's Saratoga Springs Yard, a total distance of approximately
42.52 miles.
\5\ The Albany-Fresh Pond Segment extends between a point of
connection between CSXT's and D&H's rail lines near D&H's Kenwood
Yard at CSXT milepost QCP 7.1 in the vicinity of Albany, and CSXT's
Oak Point Yard and milepost QVK 8 in the vicinity of Fresh Pond
Junction, a total distance of approximately 146.31 miles.
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Under the Joint Use Agreement, Applicants state that CSXT would
perform operations over the Albany-Fresh Pond Segment with its own
trains and crews. D&H currently has the right to operate between Albany
and Fresh Pond Junction and to access shippers in the New York City
metropolitan area under the trackage rights and switching arrangements
obtained in the Conrail proceeding.\6\ Under the proposed transaction,
D&H's traffic volumes would be added to CSXT's larger trains, which,
Applicants state, would eliminate D&H's operation of inefficient short
trains in the Albany-New York City corridor and reduce the number of
freight carriers conducting separate train operations over the Albany-
New York City corridor, which is also used by Amtrak and MNCR commuter
trains. Applicants also state that D&H would be able to offer shippers
rail service 5 to 7 days per week, up from the twice-weekly train
service currently offered.
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\6\ Applicants note that, while D&H would retain its existing
trackage rights over CSXT's lines, it would not exercise those
rights but would have all traffic along the Albany-Fresh Pond
Segment handled by CSXT pursuant to the Joint Use Agreement. Upon
termination of the Joint Use Agreement, D&H would have the right to
reinstitute immediately operations under its trackage rights and
switching agreements with CSXT.
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Likewise, D&H would perform all train operations over the Saratoga
Springs-Rouses Point Segment, with D&H crews handling CSXT cars. D&H
would also handle traffic beyond Rouses Point, to and from the Montreal
terminal area, thus eliminating the need for physical interchange
between CSXT and CN. D&H currently handles traffic for both NS and CN
over the Saratoga Springs-Rouses Point Segment. Under the terms of the
Joint Use Agreement, Applicants state that no more than 3 trains
carrying CSXT Joint Use traffic per calendar day would move over the
Albany-Saratoga Springs Segment and the Saratoga Springs-Rouses Point
Segment. Applicants state that CSXT having access to the Saratoga
Springs-Rouses Point Segment would greatly reduce the one-way mileage
for CSXT/CN interchange traffic moving between Selkirk and Montreal,
from 403 miles to 261 miles. Under the proposed transaction, Applicants
state that there would be no change in service to any local industry
served by CSXT between Selkirk and Syracuse and that CSXT anticipates
re-instituting a shuttle train service between Syracuse and Massena on
a 2 to 3 days per week basis, thereby allowing CSXT to meet the demands
of local shippers on the Massena Line.
Each carrier would perform its own train operations over the
Albany-Saratoga Springs Segment, which links both carriers' Albany area
terminal facilities (CSXT's Selkirk Yard and D&H's Kenwood Yard) with
the Saratoga Springs-Rouses Point Segment.\7\
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\7\ It appears that portions of the proposed transaction
essentially resemble haulage arrangements, which, standing alone,
generally would not need Board authority. However, the overall
transaction, which includes trackage rights over the Albany-Saratoga
Springs Segment, has been submitted to the Board as a joint use
agreement, over which the Board has jurisdiction under 49 U.S.C.
11323(a)(6).
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Financial Arrangements. No new securities would be issued, nor
would CSXT or D&H enter into any new financial arrangements in
connection with the proposed transaction.
Passenger Service Impacts. Applicants state that the proposed
transaction would not adversely impact commuter or other passenger
service. The elimination of separate D&H train operations on the
Albany-Fresh Pond Segment would reduce the overall number of freight
train movements on lines that are shared by Applicants with Amtrak and
MNCR. According to Applicants, D&H's use of those portions of the
Albany-Fresh Pond Segment that are owned by Amtrak and MNCR,
respectively, would continue to be governed by the terms and conditions
set forth in D&H's agreements with those parties.
Nor would the proposed transaction, according to the supplementary
information provided by Applicants, adversely impact Amtrak services
north of Albany. Amtrak currently operates 2 pairs of trains over
portions of D&H's lines north of Albany. Applicants state that D&H's
lines are capable of accommodating the modest increase in CSXT joint
use traffic over the Saratoga Springs-Rouses Point Segment. Applicants
further note that D&H is required by law (and by the terms of its
existing agreement with Amtrak) to give Amtrak trains dispatching
priority across all segments of D&H's lines between Albany and Rouses
Point.
Discontinuances/Abandonments. The proposed transaction does not
involve the abandonment of, or discontinuance of service over, any rail
lines. Nor do Applicants have any plans at this time to abandon any
lines involved in the proposed transaction.
Public Interest Considerations. Applicants assert that the proposed
transaction would not have any anticompetitive effects. Because the
Joint Use Agreement addresses the movement of only overhead traffic in
New York, Applicants state that no shipper would experience a reduction
in the number of rail competitive options currently available.
Applicants note that the Joint Use Agreement expressly preserves D&H's
right to serve every customer in the Bronx and Queens that it currently
has the right to serve under the agreements reached in Conrail.
Likewise, CSXT would continue to serve all shippers on the Massena Line
and all shippers between Albany Port, N.Y., and New York City that it
serves today. Applicants further state that there would be no change in
rail service to the U.S. Military at Fort Drum in New York, or to CSXT
customers located in the Syracuse vicinity.
According to Applicants, the transaction would generate significant
public benefits. Applicants state that the Joint Use Agreement would
eliminate the need for D&H to operate inefficient, low-density trains
in the Albany-New York City Corridor by allowing D&H to move its
traffic to and from the New York metropolitan area in CSXT's regularly
scheduled train service. Further, Applicants note that service to
shippers along the Albany-New York City Corridor would improve with
D&H's ability to offer service 5 to 7 days a week, up from its current
twice-weekly train service, thus enhancing D&H's ability to compete for
traffic along this segment.
The Joint Use Agreement, according to Applicants, would also give
CSXT a dramatically shorter route for traffic moving between Eastern
Canada and the Eastern United States. By using the Saratoga Springs-
Rouses Point Segment, CSXT would reduce the one-way mileage for CSXT/CN
interchange traffic between Selkirk and Montreal by 35 percent and
over-the-road transit time (excluding terminal dwell time) by 45
percent. Applicants assert that this would reduce CSXT's operating
costs, increase operating efficiency, and result in better service for
CSXT's customers on shipments to and from Eastern Canada.
Applicants assert that the transaction would also enhance
competition, not only between CSXT and D&H (and among Applicants and
other railroads), but also with other modes of transportation (e.g.,
truck service) in the corridors served by the Joint Use Lines. The more
efficient, lower cost services that D&H and CSXT would be able to
provide pursuant to the Joint Use Agreement would, according to
Applicants, spur the competitiveness of rail transportation for freight
moving through New York State.
Applicants further note that the proposed transaction would
simplify
[[Page 29808]]
rail operations. The proposed transaction would eliminate separate D&H
trains and reduce the overall number of freight train movements along
the Albany-New York Corridor. D&H's handling of trains containing CSXT
joint use traffic over the Saratoga Springs-Rouses Point Segment would
likewise promote simplified, efficient operations by avoiding the need
to coordinate train movements among multiple railroads on that line.
The proposed transaction, according to Applicants, would also
enable more efficient use of customs and border security resources at
the United States-Canada border, particularly at Rouses Point Junction,
which currently serves as a primary freight rail checkpoint for traffic
moving to or from Quebec. By rerouting CSXT/CN interline traffic via
the Saratoga Springs-Rouses Point Segment, Applicants state that the
vast majority of traffic moving between New York and Quebec would be
consolidated at a single border crossing (Rouses Point Junction),
thereby reducing the amount of cross-border rail traffic that would
need to be cleared at Huntingdon.
Time Schedule for Consummation. Applicants expect to consummate
this transaction promptly after the effective date of a Board decision
approving the transaction.
Environmental Impacts. Applicants contend that no environmental
documentation, under the National Environmental Policy Act of 1969, 42
U.S.C. 4321-4347 (NEPA), 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.
Historic Preservation Impacts. Applicants contend that there is no
need for historic review under section 106 of the National Historic
Preservation Act, 16 U.S.C. 470 (NHPA), because neither CSXT nor D&H
proposes to abandon any rail line or other rail facility or structure.
Applicants further state that there are no plans to dispose of or alter
properties subject to Board jurisdiction that are 50 years old or
older.
Labor Impacts. Applicants state that the impact on CSXT employees
as a result of the proposed transaction would be relatively small. As
train starts on the Massena Line are reduced, and train starts along
the Joint Use Lines are increased, CSXT estimates that 10 CSXT engineer
and 10 CSXT conductor jobs would be abolished, while 5 new CSXT
engineer jobs and 5 new CSXT conductor jobs would be created.
For D&H employees, 1 locomotive engineer assignment and 1 conductor
assignment, which currently operate D&H's trackage rights trains over
CSXT's ``East-of-the-Hudson'' line, would be discontinued. Under the
proposed transaction, 3 new engineer assignments and 3 new conductor
assignments would be created to operate D&H trains over the Saratoga
Springs-Rouses Point Segment. Because all of these assignments operate
from the same home terminal (Saratoga Springs), Applicants state that
these changes would not cause any reduction in D&H engineer or
conductor employment or work opportunities.
Applicants state that they would not integrate their employees
maintaining, dispatching, or operating the Joint Use Lines.
Accordingly, the Albany-Fresh Pond Segment would be maintained and
dispatched in the same manner as it is today. The Albany-Saratoga
Springs and Saratoga Springs-Rouses Point Segments would continue to be
maintained by D&H and dispatched by D&H's affiliate, Soo Line Railroad
Company. CSXT and D&H employees working on the Joint Use Lines would be
managed only by their existing employer.
Applicants request that the Board impose the employee protective
conditions set forth in Norfolk and Western Railway Co.--Trackage
Rights--Burlington Northern, Inc., 354 I.C.C. 605 (1978), as modified
in Mendocino Coast Railway, Inc.--Lease and Operate--California Western
Railroad, 360 I.C.C. 653 (1980). Applicants have not entered into any
employee protection agreements affecting their employees in connection
with the proposed transaction.
Application Accepted. Based on the information provided in the
application and supplement, the Board finds the proposed transaction to
be a ``minor transaction'' under 49 CFR 1180.2(c). A transaction that
does not involve the control or merger of 2 or more Class I railroads,
nor is of regional or national transportation significance, is minor if
(1) it would clearly not have anticompetitive effects, or (2) any
anticompetitive effects would clearly be outweighed by the
transaction's contribution to the public interest in meeting
significant transportation needs. This transaction does not involve the
control or merger of 2 or more Class I carriers. Nor, based on the
application, does this transaction appear to be of regional or national
transportation significance. On the face of the proposed application,
there does not appear to be a likelihood of any anticompetitive effects
resulting from the transaction, if approved. Nor does it appear, under
the terms of proposed transaction, that any shipper would have fewer
competitive rail alternatives as a result of the transaction.
The Board's finding regarding competitive impact is preliminary.
The Board will give careful consideration to any claims that the
transaction, if approved, would have anticompetitive effects that are
not apparent from the application itself.
The Board accepts the 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 as
necessary to complete the record.
Environmental Matters. Under both the regulations of the Council on
Environmental Quality (CEQ) implementing NEPA, and the Board's own
environmental rules, actions for which environmental effects are
ordinarily insignificant may be excluded categorically from NEPA
review, without a case-by-case review. Such activities are said to be
covered by a ``categorical exclusion,'' which CEQ defines at 40 CFR
1508.4 as:
[A] category of actions which do not individually or
cumulatively have a significant effect on the human environment and
which have been found to have no such effect in procedures adopted
by a Federal agency in implementation of these regulations * * * and
for which, therefore, neither an environmental assessment nor an
environmental impact statement is required.
An agency's procedures for categorical exclusions ``shall provide
for extraordinary circumstances in which a normally excluded action may
have a significant environmental effect,'' thus requiring preparation
of either an Environmental Assessment (EA) or an Environmental Impact
Statement (EIS). Id.; 49 CFR 1105.6(d). But, absent extraordinary
circumstances, once a project is found to fit within a categorical
exclusion, no further NEPA procedures are warranted.
In its environmental rules, the Board has promulgated various
categorical exclusions. As pertinent here, a joint use agreement is a
classification of action that normally requires no environmental review
if certain thresholds would not be exceeded.\8\ The
[[Page 29809]]
Board's regulations also provide that historic review normally is not
required for joint use agreements where there will be no significant
change in operations, and properties 50 years old and older will not be
affected. 49 CFR 1105.8. And, even when the Board's presumptive
thresholds for environmental analysis are met, the Board may reclassify
a particular transaction or modify the requirement that an EIS or EA be
prepared, if the railroad applicant demonstrates that the proposed
transaction has no potential for significant environmental effects. 49
CFR 1105.6(d).
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\8\ The thresholds differ depending on whether a rail line
segment is in an area designated as ``attainment'' or
``nonattainment'' with the National Ambient Air Quality Standards
established under the Clean Air Act, 42 U.S.C. 7401-7671 (CAA). For
rail lines located in attainment areas, environmental documentation
normally will be prepared if the proposed action would result in:
(1) An increase of at least 8 trains per day; (2) an increase in
rail traffic of at least 100 percent (measured in annual gross ton
miles); or (3) an increase in carload activity at rail yards of at
least 100 percent. 49 CFR 1105.7(e)(5)(i). For rail lines in
nonattainment areas, environmental documentation typically is
required when the proposed action would result in: (1) An increase
of at least 3 trains per day; (2) an increase in rail traffic of at
least 50 percent (measured in annual gross ton miles); or (3) an
increase in carload activity at rail yards of at least 20 percent.
49 CFR 1105.7(e)(5)(ii). An attainment area is an area considered to
have air quality as good as, or better than, the national ambient
air quality standards as defined in the CAA. A nonattainment area is
any area that does not meet, or that contributes to ambient air
quality in a nearby area that does not meet, the ambient air quality
standards for the pollutant under the CAA.
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The Proposed Joint Use Agreement. Applicants assert in their
application that the proposed Joint Use Agreement, if implemented,
would result in 2 restrictions on the movement of traffic between
Albany and Rouses Point Junction: (1) No more than 8 pairs of trains (1
north bound train plus 1 south bound train equals a pair) per week
carrying CSXT Joint Use traffic and (2) no more than 3 trains per day
carrying CSXT Joint Use traffic. Also, as part of the Joint Use
Agreement, D&H would deliver Joint Use traffic to CSXT at Kenwood Yard,
Oak Point Yard, or Fresh Pond for movement in CSXT trains. Applicants
state that no notable increases in rail yard activity would likely
result from these movements.
Applicants state that D&H currently operates 2 trains 2 days per
week on Albany-Fresh Pond Segment, and under the Joint Use Agreement,
this traffic would continue to move only over this segment. As noted by
Applicants, this movement would not add traffic in the nonattainment
area between Albany and Saratoga Springs.
After reviewing the application, SEA requested clarification from
Applicants regarding the number of new trains that would move through
the Albany-Saratoga Springs nonattainment area under the Joint Use
Agreement and further explanation to support Applicants' contention
that the transaction does not warrant environmental and historic
documentation. In a letter dated May 11, 2010, Applicants responded to
SEA's request for additional information. Applicants state that the
Joint Use Agreement, as set forth in the application, limits the number
of trains that CSXT may operate between Albany and Rouses Point
Junction, which includes the Albany-Saratoga Springs nonattainment
area, to no more than 8 pairs of trains per week (16 trains), and no
more than 3 trains per day. Applicants explained that, on a daily
basis, the operating plan (Exhibit 15 of the application) and the Joint
Use Agreement contemplate that Applicants would actually operate only 2
trains (1 in each direction) per day carrying CSXT traffic between
Albany and Rouses Point Junction, even though the Joint Use Agreement
allows the movement of up to 3 trains per day and 16 trains per week.
Applicants support their 2 trains per day traffic projection with the
explanation that CSXT currently operates 2 trains per day over its
Massena Line, and that, under the Joint Use Agreement, the traffic
currently on the Massena Line consisting of 2 trains per day would,
under the proposed transaction, operate between Albany and Rouses Point
Junction. Applicants further explain that, based on current traffic
levels, trains carrying CSXT joint use traffic between Albany and
Rouses Point Junction would be, on average, approximately 3,300 feet in
length, which would allow substantial room for future traffic growth
without adding a third train, if the transaction is implemented. The
Joint Use Agreement would allow trains of 8,000 feet in length.
In sum, Applicants state that, based on the information provided in
their application and supplemental information, the traffic movements
described above would not result in operational changes that exceed the
Board's environmental thresholds established at 49 CFR 1105.7(e)(4) or
(5), nor would there be any action that would normally require
environmental documentation or historic review, if the transaction is
implemented. Applicants therefore assert that the transaction does not
require environmental documentation under 49 CFR 1105.6(b)(4), and that
historic review is not required because neither CSXT nor D&H proposes
to abandon any rail line or other rail facility or structure.
Furthermore, there are no plans to dispose of or alter properties
subject to Board jurisdiction that are 50 years old or older.
To allow the public the opportunity to comment on Applicants'
conclusion that approval of the transaction would not result in
significant environmental impacts and does not require further
environmental review under NEPA or historic review under NHPA, SEA will
prepare an Environmental Notice discussing the proposed transaction,
the Board's regulatory review process, NEPA's relevance to this
transaction, and any anticipated impacts associated with the
transaction, if it is implemented. SEA will distribute the
Environmental Notice to certain agencies and communities, as well as
all of the parties on the Board's service list. SEA's purpose in
providing this information to the public is to encourage public
involvement and consultation on any potentially significant
environmental impacts related to the proposed transactions so that SEA,
and ultimately the Board, can consider public concerns and issues in
determining whether further environmental analysis is needed. Based on
SEA's consideration of all timely comments and its own independent
review of all available information, SEA will recommend to the Board
whether there is a need for the preparation of environmental or
historic documentation in this case. The Board will then determine
whether to issue a finding of no significant impact or whether further
environmental or historic documentation should be prepared. The
Environmental Notice will be served by July 1, 2010. SEA is providing a
20-day comment period, and interested parties may submit comments on
the Environmental Notice directly to SEA by July 21, 2010.
Procedural Schedule. The Board has considered Applicants' request
for a procedural schedule (filed April 27, 2010), under which the Board
would issue its final decision on October 22, 2010, 180 days after the
application has been filed. The Board will adopt a procedural schedule
based on the schedule proposed by Applicants but modified to give
parties more time, following the Federal holiday, to file notices of
intent to participate (with subsequent deadlines changed accordingly).
The procedural schedule adopted by the Board also allows for comments
to be filed on the Environmental Notice. The Board also notes that its
decision will be effective on November 21, 2010, 30 days after its
final decision is served (not November 22, 2010, as provided by
Applicants). For further information regarding dates,
[[Page 29810]]
see the Appendix (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 June 7, 2010, a notice of intent to participate, accompanied
by a certificate of service indicating that the notice has been
properly served on the Secretary of Transportation, the Attorney
General of the United States, Mr. Hynes (representing D&H) and Mr.
Gitomer (representing CSXT).
If a request is made in the notice of intent to participate to have
more than 1 name added to the service list as a POR representing a
particular entity, the extra name will be added to the service list as
a ``Non-Party.'' The list will reflect the Board's policy of allowing
only 1 official representative per party to be placed on the service
list, as specified in Press Release No. 97-68 dated August 18, 1997,
announcing the implementation of the Board's ``One Party-One
Representative'' policy for service lists. Any person designated as a
Non-Party will receive copies of Board decisions, orders, and notices
but not copies of official filings. Persons seeking to change their
status must accompany that request with a written certification that he
or she has complied with the service requirements set forth at 49 CFR
1180.4, and any other requirements set forth in this decision.
Service List Notice. The Board will serve, as soon after June 7,
2010, 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 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 MOC or GOV
has requested to be, and is designated as, a POR.
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, GOV, or
Non-Party. All other interested persons are encouraged to secure copies
of decisions, orders, and notices via the Board's Web site at
``www.stb.dot.gov'' under ``E-LIBRARY/Decisions & Notices.''
Access to Filings. Under the Board's rules, any document filed with
the Board (including applications, pleadings, etc.) shall be promptly
furnished by the filer to interested persons on request, unless subject
to a protective order. 49 CFR 1180.4(a)(3). Such documents are
available for inspection in the Docket File Reading Room (Room 131) at
the offices of the Surface Transportation Board, 395 E Street, SW., in
Washington, DC. The application and other filings in this proceeding
will also be available on the Board's Web site at ``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 application in FD 35348 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 the
Appendix.
3. The parties to this proceeding must comply with the procedural
requirements described in this decision.
4. This decision is effective on May 27, 2010.
Decided: May 24, 2010.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and
Commissioner Nottingham.
Kulunie L. Cannon,
Clearance Clerk.
Appendix: Procedural Schedule \9\
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\9\ This schedule will be amended, if necessary, to accommodate
further environmental review, if needed.
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April 27, 2010
Application, Motion for Protective Order, and Motion to Establish
Procedural Schedule filed.
May 21, 2010
Protective order issued.
May 27, 2010
Board notice of acceptance of application published in the Federal
Register.
June 7, 2010
Notices of intent to participate in this proceeding due.
June 11, 2010
Discovery requests to Applicants due.
June 25, 2010
Applicants' responses to discovery requests due.
July 2, 2010
All comments, protests, requests for conditions, and any other
evidence and argument in opposition to the application, including
filings of DOJ and DOT, due.
July 21, 2010
Comments to the Environmental Notice due.
July 23, 2010
Responses to comments, protests, requests for conditions, and other
opposition due. Rebuttal in support of the application due.
TBD
A public hearing or oral argument may be held.
October 22, 2010
Date of service of final decision.
November 21, 2010
Effective date of final decision.
[FR Doc. 2010-12774 Filed 5-26-10; 8:45 am]
BILLING CODE 4915-01-P