83_FR_59032 83 FR 58807 - CSX Transportation, Inc.-Lease-Western and Atlantic Railroad

83 FR 58807 - CSX Transportation, Inc.-Lease-Western and Atlantic Railroad

SURFACE TRANSPORTATION BOARD

Federal Register Volume 83, Issue 225 (November 21, 2018)

Page Range58807-58809
FR Document2018-25388

This decision accepts for consideration the application by CSX Transportation, Inc. to continue to lease approximately 137.33 miles of rail line of the Western and Atlantic Railroad from the State of Georgia. The Board determines that this is a minor transaction as defined by the Board's regulations and adopts a procedural schedule.

Federal Register, Volume 83 Issue 225 (Wednesday, November 21, 2018)
[Federal Register Volume 83, Number 225 (Wednesday, November 21, 2018)]
[Notices]
[Pages 58807-58809]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-25388]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36220]


CSX Transportation, Inc.--Lease--Western and Atlantic Railroad

AGENCY: Surface Transportation Board.

ACTION: Decision No. 1 in FD 36220; Notice of Acceptance of 
Application; Issuance of Procedural Schedule.

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SUMMARY: This decision accepts for consideration the application by CSX 
Transportation, Inc. to continue to lease approximately 137.33 miles of 
rail line of the Western and Atlantic Railroad from the State of 
Georgia. The Board determines that this is a minor transaction as 
defined by the Board's regulations and adopts a procedural schedule.

DATES: The effective date of this decision is November 21, 2018. Any 
person who wishes to participate in this proceeding as a party of 
record (POR) must file a notice of intent to participate no later than 
December 5, 2018. 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 January 4, 2019. 
Responses to comments, protests, requests for conditions, and other 
opposition on the transportation merits of the Lease, and rebuttal in 
support of the application must be filed by February 1, 2019.
    The Board expects to issue its final decision by April 19, 2019, 
and to make the decision effective by May 19, 2019. For further 
information respecting dates, see the procedural schedule below.

ADDRESSES: Any filing submitted on the transportation merits 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.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 email only if service by email is 
acceptable to the recipient) to each of the following: (1) U.S. 
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) Louis E. Gitomer (representing CSXT), Law 
Offices of Louis E. Gitomer, LLC, 600 Baltimore Avenue, Suite 301, 
Towson, MD 21204; and (4) 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 December 5, 2018, as practicable).

FOR FURTHER INFORMATION CONTACT: Lisa Novins, (202) 245-0389. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: The Surface Transportation Board (Board) is 
accepting for consideration the application submitted on October 22, 
2018, by CSX Transportation, Inc. (CSXT). CSXT seeks Board approval 
under 49 U.S.C. 11323 to continue to lease from the State of Georgia 
(Georgia) approximately 137.33 miles of rail line of the Western and 
Atlantic Railroad (W&A), a non-operating carrier owned by Georgia, 
acting by and through the State Properties Commission, between milepost 
0 at Central Avenue in the City of Atlanta, Ga., and milepost 137.28 at 
the centerline of Interstate 24 in the City of Chattanooga, Tenn. (the 
Line). On November 2, 2018, Georgia, acting by and through the State 
Properties Commission, filed a letter in support of CSXT's application.
    The Board finds that the proposed transaction (the Lease) is a 
``minor transaction'' under 49 CFR 1180.2(c) and that the application 
is complete. The Board adopts a procedural schedule for consideration 
of the application, under which the Board's final decision would be 
expected to be issued by April 19, 2019, and would become effective by 
May 19, 2019.
    As a condition to the Lease, CSXT states that it has agreed to seek 
authority to abandon two lines that are not part of the Line in order 
to allow Georgia to expand its Silver Comet recreational trail: (1) A 
2.32-mile long railroad line between milepost S.G. 579.29 and milepost 
S.G. 581.61 in Cobb County, Ga., see CSX Transportation, Inc.--
Abandonment Exemption--in Cobb County, Ga., AB 55 (Sub-No. 784X); and 
(2) a 4.3-mile line between milepost S.G. 579.29 and milepost 575.00 in 
Cobb County, Ga. (Appl. 18.)
    CSXT is a Class I railroad and W&A is a non-operating Class III 
railroad that is owned by Georgia, acting by and through the State 
Properties Commission. (Appl. 3, 5.) According to CSXT, it and its 
predecessors have been the only railroads operating the Line since 
1890. (Id. at 4.) CSXT states that it provides overhead and local 
service over the Line, that the Norfolk Southern Railway Company (NSR) 
intersects with the Line in Chattanooga, Tenn., and Dalton, Ga.,\1\ and 
that CSXT interchanges traffic in Elizabeth, Ga., with the Georgia 
Northeastern Railroad Company, Inc. (GNRR). (Id.) CSXT states that the 
current lease expires on December 31, 2019, and that the new lease for 
the Line is for an additional 50 years. (Id. at 14, 17.) CSXT further 
states that it will retain responsibility for dispatching, track 
maintenance, capital improvements, and serving shippers under the 
Lease. (Id. at 14.)
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    \1\ CSXT does not indicate whether it interchanges traffic with 
NSR at these locations.
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    Discontinuances/Abandonments. CSXT states that it does not 
anticipate discontinuing service over or abandoning the Line or any 
portion of the Line. (Appl. 18.) However, CSXT has agreed to seek 
authority to abandon two of its lines that are not part of the Line to 
allow Georgia to expand its Silver Comet recreational trail, which is a 
material condition of the Lease. (Appl. 18, citing id. at Ex. 2, Lease, 
section 11.03.) On October 15, 2018, CSXT filed a verified notice of 
exemption under 49 CFR pt. 1152 subpart F--Exempt Abandonments to 
abandon the 2.32-mile line between milepost S.G. 579.29 and milepost 
S.G. 581.61 in Cobb County, Ga. in Docket No. AB 55 (Sub-

[[Page 58808]]

No. 784X), CSX Transportation, Inc.--Abandonment Exemption--in Cobb 
County, Ga. Notice of the exemption was served and published in the 
Federal Register on November 2, 2018 (83 FR 55,232). The exemption is 
scheduled to become effective on December 2, 2018. CSXT states that, if 
the abandonment is granted, CSXT intends to enter into a trail use 
agreement with Georgia under the National Trails System Act, 16 U.S.C. 
1247(d). (Appl. 18.) With respect to the second line,\2\ CSXT states 
that, in the Lease, CSXT has granted Georgia or its Department of 
Transportation a first right of refusal to acquire the 4.3-mile line 
between milepost S.G. 579.29 and milepost 575.00 in Cobb County, Ga. 
According to CSXT, that line must be acquired within three years of 
CSXT obtaining abandonment authority. (Id.)
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    \2\ As of the decided date of this decision, CSXT has not filed 
for abandonment authority for this line.
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    Financial Arrangements. According to CSXT, no new securities will 
be issued in connection with the Lease. (Appl. 8.) CSXT states that, 
under the Lease, CSXT would pay Georgia a monthly rental of 
$1,008,333.33, which would increase annually by 2.5% compounded. 
Additionally, CSXT states that, by July 31 of each year, it would pay 
Georgia additional rent consisting of 50% of the revenue generated from 
all agreements, subleases, easements, or licenses attributable to the 
Line for the previous year. CSXT states that it will not incur any 
fixed charges as a result of the Lease. (Id. at 10.)
    Public Interest Considerations. CSXT states that it expects the 
transaction to be competitively neutral and that it will 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. (Appl. 9.) In support, CSXT states that competition with NSR 
between Atlanta and Chattanooga will be maintained at the current level 
and that the Lease will not impact motor carriers operating between 
Atlanta and Chattanooga on Interstate 75 or intermodal competition at 
intermediate points. (Id.) CSXT further states that the number of rail 
carriers serving each shipper on the Line will remain the same and that 
no shipper now being served by two railroads would have its service 
limited to one railroad. (Id.)
    According to CSXT, the Lease will maintain the status quo of the 
transportation services to rail customers now served by CSXT, as CSXT 
will continue to serve shippers as it does today. (Appl. 10.) CSXT 
states that it will continue to provide essential transportation 
services as it and its predecessors have done since 1890, and that 
essential services provided by other carriers will not be affected by 
the Lease. (Id. at 8, 10.)
    CSXT states that, under the Lease, Georgia has reserved rights that 
may require the relocation of track, but CSXT is confident that its 
ability to provide adequate transportation service is protected by the 
terms of the Lease, which states that any track relocation will not 
``unreasonably interfere with the use by [CSXT] of the Leased Property, 
or unreasonably reduce [CSXT's] operating capacity.'' (Appl. 10, citing 
id. at Ex. 2, Lease, section 1.04(c).) Additionally, CSXT states that 
Georgia has reserved the right to institute passenger rail service over 
the Line ``subject to the mutual agreement of [Georgia] and [CSXT] with 
respect to the impact any such passenger rail may have upon the safety 
and capacity of, compensation for, and liability in connection with the 
[Line].'' (Id. at 11, citing id. at Ex. 2, Lease, section 11.01.)
    Time Schedule for Consummation. CSXT states that, pursuant to the 
Lease, the transaction is scheduled to be consummated January 1, 2020. 
(Appl. 8.)
    Environmental Impacts. CSXT states that the Lease does not require 
environmental documentation and review under 49 CFR 1105.6(c) because 
the Lease will not result in CSXT's operations over the Line exceeding 
the thresholds in 49 CFR 1105.7(e)(4) and (5). (Appl. 15-16.)
    Historic Preservation Impacts. CSXT states that the Lease does not 
require an historic report under 49 CFR 1105.8(b) because the Lease 
``is for the purpose of continued rail operations where further [Board] 
approval is required to abandon any service and there are no plans to 
dispose of or alter properties subject to [Board] jurisdiction that are 
50 years or older.'' (Appl. 17.) CSXT states that it will continue to 
operate the Line that it has operated for over 120 years. (Appl. 17.)
    Labor Impacts. CSXT states that there will be no impact on its 
employees or on the employees of W&A, because CSXT does not plan to 
change operations on the Line. Further, CSXT states that there are no 
W&A employees on the Line. CSXT requests that the Board impose the 
labor protective conditions set forth in Mendocino Coast Railway, 
Inc.--Lease and Operate--California Western Railroad, 360 I.C.C. 653 
(1980), as clarified in Wilmington Terminal Railroad, Inc.--Purchase 
and Lease--CSX Transportation, Inc., 6 I.C.C.2d 799, 814-826 (1990). 
(Appl. 11.)
    Application Accepted. A transaction that does not involve the 
control or merger of two or more Class I railroads is not of regional 
or national transportation significance, and therefore is classified as 
``minor'' if: (1) The transaction 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. A transaction not 
involving the control or merger of two or more Class I railroads is 
``significant'' if neither of these determinations can be clearly made. 
See 49 CFR 1180.2(b), (c).
    Based on a review of the application, the Board finds that the 
proposed Lease would be a ``minor transaction'' under 49 CFR 1180.2(c). 
Nothing in the record thus far suggests that the Lease would have 
anticompetitive effects, because the Lease proposes to generally 
maintain the status quo by allowing CSXT to continue operating over the 
Line as it and its predecessors have done since 1890. The application 
indicates that, not only would CSXT continue to operate over the Line, 
but NSR and GNRR would ``retain their existing rights.'' (Appl. 6.) It 
does not appear, under the terms of the proposed Lease, 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 any 
potential anticompetitive effects of the Lease would not be outweighed 
by its potential benefits.
    The Board accepts the application for consideration because it is 
in substantial compliance with the applicable regulations governing 
``minor transactions.'' See 49 CFR 1180; 49 U.S.C. 11321-26. The Board 
reserves the right to require the filing of supplemental information as 
necessary to complete the record.
    Procedural Schedule. Any person who wishes to participate in this 
proceeding as a POR must file a notice of intent to participate no 
later than December 5, 2018; requests for discovery from CSXT are due 
by December 5, 2018; CSXT's discovery responses are due by December 19, 
2018; all comments, protests, requests for conditions, and any other 
evidence and argument in opposition to the application, including 
filings by DOJ and DOT, must be filed by January 4, 2019; and responses 
to comments, protests, requests for conditions, and

[[Page 58809]]

other opposition on the transportation merits of the Lease, as well as 
CSXT's rebuttal in support of the application, must be filed by 
February 1, 2019. The Board reserves the right to adjust the schedule 
as circumstances may warrant. For further information regarding dates, 
see the procedural schedule below.
    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 December 5, 2018, a notice of intent to participate, 
accompanied by a certificate of service indicating that the notice has 
been properly served on the U.S. Secretary of Transportation, the 
Attorney General of the United States, and Mr. Gitomer (representing 
CSXT), as described above.
    If a request is made in the notice of intent to participate to have 
more than one 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 one 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 December 
5, 2018, 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 
notices, 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 will also 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, Order, and Notices. The Board will serve 
copies of its decisions, orders, and notices 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 website at 
www.stb.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 to interested persons on request, unless subject to a 
protective order. 49 CFR 1180.4(a)(3). The application and other 
filings in this proceeding are available on the Board's website at 
www.stb.gov under ``E-LIBRARY/Filings.'' In addition, the application 
may be obtained from Mr. Gitomer at the address indicated above.

                                               Procedural Schedule
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
October 22, 2018....................................  Application filed.
December 5, 2018....................................  Notices of intent to participate in this proceeding due.
                                                      Discovery requests due to CSXT.
December 19, 2018...................................  CSXT's responses to discovery requests due.
January 4, 2019.....................................  Comments due from all parties, including the U.S.
                                                       Secretary of Transportation and the Attorney General, on
                                                       the transportation merits of the Lease.
February 1, 2019....................................  Responses to comments on the transportation merits of the
                                                       Lease due.
                                                      CSXT's rebuttal in support of the application due.
March 6, 2019.......................................  Close of record on the transportation merits.
April 19, 2019......................................  Date by which a final decision will be served.
May 19, 2019........................................  Date by which a final decision will become effective.
----------------------------------------------------------------------------------------------------------------

    It is ordered:
    1. The application in FD 36220 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 
procedural schedule above and must comply with the procedural 
requirements described in this decision.
    3. This decision is effective on its service date.

    Decided: November 16, 2018.

    By the Board, Board Members Begeman and Miller.
Aretha Laws-Byrum,
Clearance Clerk.
[FR Doc. 2018-25388 Filed 11-20-18; 8:45 am]
BILLING CODE 4915-01-P



                                                                        Federal Register / Vol. 83, No. 225 / Wednesday, November 21, 2018 / Notices                                                   58807

                                               is void ab initio. Petitions to revoke the              the application must be filed by                         The Board finds that the proposed
                                               exemption under 49 U.S.C. 10502(d)                      February 1, 2019.                                     transaction (the Lease) is a ‘‘minor
                                               may be filed at any time. The filing of                    The Board expects to issue its final               transaction’’ under 49 CFR 1180.2(c)
                                               a petition to revoke will not                           decision by April 19, 2019, and to make               and that the application is complete.
                                               automatically stay the effectiveness of                 the decision effective by May 19, 2019.               The Board adopts a procedural schedule
                                               the exemption. Petitions for stay must                  For further information respecting dates,             for consideration of the application,
                                               be filed no later than November 28,                     see the procedural schedule below.                    under which the Board’s final decision
                                               2018 (at least seven days before the                    ADDRESSES: Any filing submitted on the                would be expected to be issued by April
                                               exemption becomes effective).                           transportation merits in this proceeding              19, 2019, and would become effective
                                                  An original and 10 copies of all                     must be submitted either via the Board’s              by May 19, 2019.
                                               pleadings, referring to Docket No. FD                   e-filing format or in the traditional                    As a condition to the Lease, CSXT
                                               36245, must be filed with the Surface                   paper format. Any person using e-filing               states that it has agreed to seek authority
                                               Transportation Board, 395 E Street SW,                  should attach a document and otherwise                to abandon two lines that are not part
                                               Washington, DC 20423–0001. In                           comply with the instructions found on                 of the Line in order to allow Georgia to
                                               addition, one copy of each pleading                     the Board’s website at www.stb.gov at                 expand its Silver Comet recreational
                                               must be served on James H.M. Savage,                    the ‘‘E–FILING’’ link. Any person                     trail: (1) A 2.32-mile long railroad line
                                               22 Rockingham Court, Germantown, MD                     submitting a filing in the traditional                between milepost S.G. 579.29 and
                                               20874.                                                  paper format should send an original                  milepost S.G. 581.61 in Cobb County,
                                                  Board decisions and notices are                      and 10 paper copies of the filing (and                Ga., see CSX Transportation, Inc.—
                                               available on our website at www.stb.gov.                also an electronic version) to: Surface               Abandonment Exemption—in Cobb
                                                                                                       Transportation Board, 395 E Street SW,                County, Ga., AB 55 (Sub-No. 784X); and
                                                 Decided: November 16, 2018.
                                                                                                       Washington, DC 20423–0001. In                         (2) a 4.3-mile line between milepost S.G.
                                                 By the Board, Scott M. Zimmerman, Acting                                                                    579.29 and milepost 575.00 in Cobb
                                               Director, Office of Proceedings.                        addition, one copy of each filing in this
                                                                                                       proceeding must be sent (and may be                   County, Ga. (Appl. 18.)
                                               Jeffrey Herzig,                                                                                                  CSXT is a Class I railroad and W&A
                                                                                                       sent by email only if service by email is
                                               Clearance Clerk.                                                                                              is a non-operating Class III railroad that
                                                                                                       acceptable to the recipient) to each of
                                               [FR Doc. 2018–25413 Filed 11–20–18; 8:45 am]
                                                                                                       the following: (1) U.S. Secretary of                  is owned by Georgia, acting by and
                                               BILLING CODE 4915–01–P                                  Transportation, 1200 New Jersey                       through the State Properties
                                                                                                       Avenue SE, Washington, DC 20590; (2)                  Commission. (Appl. 3, 5.) According to
                                                                                                       Attorney General of the United States,                CSXT, it and its predecessors have been
                                               SURFACE TRANSPORTATION BOARD                            c/o Assistant Attorney General,                       the only railroads operating the Line
                                                                                                       Antitrust Division, Room 3109,                        since 1890. (Id. at 4.) CSXT states that
                                               [Docket No. FD 36220]
                                                                                                       Department of Justice, Washington, DC                 it provides overhead and local service
                                                                                                       20530; (3) Louis E. Gitomer                           over the Line, that the Norfolk Southern
                                               CSX Transportation, Inc.—Lease—                                                                               Railway Company (NSR) intersects with
                                               Western and Atlantic Railroad                           (representing CSXT), Law Offices of
                                                                                                       Louis E. Gitomer, LLC, 600 Baltimore                  the Line in Chattanooga, Tenn., and
                                               AGENCY:  Surface Transportation Board.                  Avenue, Suite 301, Towson, MD 21204;                  Dalton, Ga.,1 and that CSXT
                                                                                                       and (4) any other person designated as                interchanges traffic in Elizabeth, Ga.,
                                               ACTION: Decision No. 1 in FD 36220;
                                                                                                       a POR on the service list notice (as                  with the Georgia Northeastern Railroad
                                               Notice of Acceptance of Application;
                                                                                                       explained below, the service list notice              Company, Inc. (GNRR). (Id.) CSXT states
                                               Issuance of Procedural Schedule.
                                                                                                       will be issued as soon after December 5,              that the current lease expires on
                                               SUMMARY:  This decision accepts for                     2018, as practicable).                                December 31, 2019, and that the new
                                               consideration the application by CSX                                                                          lease for the Line is for an additional 50
                                                                                                       FOR FURTHER INFORMATION CONTACT: Lisa
                                               Transportation, Inc. to continue to lease                                                                     years. (Id. at 14, 17.) CSXT further states
                                                                                                       Novins, (202) 245–0389. Assistance for                that it will retain responsibility for
                                               approximately 137.33 miles of rail line                 the hearing impaired is available
                                               of the Western and Atlantic Railroad                                                                          dispatching, track maintenance, capital
                                                                                                       through the Federal Information Relay                 improvements, and serving shippers
                                               from the State of Georgia. The Board                    Service (FIRS) at 1–800–877–8339.
                                               determines that this is a minor                                                                               under the Lease. (Id. at 14.)
                                                                                                       SUPPLEMENTARY INFORMATION: The                           Discontinuances/Abandonments.
                                               transaction as defined by the Board’s                   Surface Transportation Board (Board) is
                                               regulations and adopts a procedural                                                                           CSXT states that it does not anticipate
                                                                                                       accepting for consideration the                       discontinuing service over or
                                               schedule.                                               application submitted on October 22,                  abandoning the Line or any portion of
                                               DATES:  The effective date of this                      2018, by CSX Transportation, Inc.                     the Line. (Appl. 18.) However, CSXT
                                               decision is November 21, 2018. Any                      (CSXT). CSXT seeks Board approval                     has agreed to seek authority to abandon
                                               person who wishes to participate in this                under 49 U.S.C. 11323 to continue to                  two of its lines that are not part of the
                                               proceeding as a party of record (POR)                   lease from the State of Georgia (Georgia)             Line to allow Georgia to expand its
                                               must file a notice of intent to participate             approximately 137.33 miles of rail line               Silver Comet recreational trail, which is
                                               no later than December 5, 2018. All                     of the Western and Atlantic Railroad                  a material condition of the Lease. (Appl.
                                               comments, protests, requests for                        (W&A), a non-operating carrier owned                  18, citing id. at Ex. 2, Lease, section
                                               conditions, and any other evidence and                  by Georgia, acting by and through the                 11.03.) On October 15, 2018, CSXT filed
                                               argument in opposition to the                           State Properties Commission, between                  a verified notice of exemption under 49
                                               application, including filings by the                   milepost 0 at Central Avenue in the City
khammond on DSK30JT082PROD with NOTICES




                                                                                                                                                             CFR pt. 1152 subpart F—Exempt
                                               U.S. Department of Justice (DOJ) and the                of Atlanta, Ga., and milepost 137.28 at               Abandonments to abandon the 2.32-
                                               U.S. Department of Transportation                       the centerline of Interstate 24 in the City           mile line between milepost S.G. 579.29
                                               (DOT), must be filed by January 4, 2019.                of Chattanooga, Tenn. (the Line). On                  and milepost S.G. 581.61 in Cobb
                                               Responses to comments, protests,                        November 2, 2018, Georgia, acting by                  County, Ga. in Docket No. AB 55 (Sub-
                                               requests for conditions, and other                      and through the State Properties
                                               opposition on the transportation merits                 Commission, filed a letter in support of                 1 CSXT does not indicate whether it interchanges

                                               of the Lease, and rebuttal in support of                CSXT’s application.                                   traffic with NSR at these locations.



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                                               58808                    Federal Register / Vol. 83, No. 225 / Wednesday, November 21, 2018 / Notices

                                               No. 784X), CSX Transportation, Inc.—                      will continue to provide essential                    I.C.C.2d 799, 814–826 (1990). (Appl.
                                               Abandonment Exemption—in Cobb                             transportation services as it and its                 11.)
                                               County, Ga. Notice of the exemption                       predecessors have done since 1890, and                   Application Accepted. A transaction
                                               was served and published in the                           that essential services provided by other             that does not involve the control or
                                               Federal Register on November 2, 2018                      carriers will not be affected by the                  merger of two or more Class I railroads
                                               (83 FR 55,232). The exemption is                          Lease. (Id. at 8, 10.)                                is not of regional or national
                                               scheduled to become effective on                             CSXT states that, under the Lease,                 transportation significance, and
                                               December 2, 2018. CSXT states that, if                    Georgia has reserved rights that may                  therefore is classified as ‘‘minor’’ if: (1)
                                               the abandonment is granted, CSXT                          require the relocation of track, but CSXT             The transaction would clearly not have
                                               intends to enter into a trail use                         is confident that its ability to provide              anticompetitive effects, or (2) any
                                               agreement with Georgia under the                          adequate transportation service is                    anticompetitive effects would clearly be
                                               National Trails System Act, 16 U.S.C.                     protected by the terms of the Lease,                  outweighed by the transaction’s
                                               1247(d). (Appl. 18.) With respect to the                  which states that any track relocation                contribution to the public interest in
                                               second line,2 CSXT states that, in the                    will not ‘‘unreasonably interfere with                meeting significant transportation
                                               Lease, CSXT has granted Georgia or its                    the use by [CSXT] of the Leased                       needs. A transaction not involving the
                                               Department of Transportation a first                      Property, or unreasonably reduce                      control or merger of two or more Class
                                               right of refusal to acquire the 4.3-mile                  [CSXT’s] operating capacity.’’ (Appl. 10,             I railroads is ‘‘significant’’ if neither of
                                               line between milepost S.G. 579.29 and                     citing id. at Ex. 2, Lease, section 1.04(c).)         these determinations can be clearly
                                               milepost 575.00 in Cobb County, Ga.                       Additionally, CSXT states that Georgia                made. See 49 CFR 1180.2(b), (c).
                                               According to CSXT, that line must be                      has reserved the right to institute                      Based on a review of the application,
                                               acquired within three years of CSXT                       passenger rail service over the Line                  the Board finds that the proposed Lease
                                               obtaining abandonment authority. (Id.)                    ‘‘subject to the mutual agreement of                  would be a ‘‘minor transaction’’ under
                                                  Financial Arrangements. According to                   [Georgia] and [CSXT] with respect to the              49 CFR 1180.2(c). Nothing in the record
                                               CSXT, no new securities will be issued                    impact any such passenger rail may                    thus far suggests that the Lease would
                                               in connection with the Lease. (Appl. 8.)                  have upon the safety and capacity of,                 have anticompetitive effects, because
                                               CSXT states that, under the Lease, CSXT                   compensation for, and liability in                    the Lease proposes to generally
                                               would pay Georgia a monthly rental of                     connection with the [Line].’’ (Id. at 11,             maintain the status quo by allowing
                                               $1,008,333.33, which would increase                                                                             CSXT to continue operating over the
                                                                                                         citing id. at Ex. 2, Lease, section 11.01.)
                                               annually by 2.5% compounded.                                                                                    Line as it and its predecessors have
                                                                                                            Time Schedule for Consummation.
                                               Additionally, CSXT states that, by July                                                                         done since 1890. The application
                                                                                                         CSXT states that, pursuant to the Lease,
                                               31 of each year, it would pay Georgia                                                                           indicates that, not only would CSXT
                                                                                                         the transaction is scheduled to be
                                               additional rent consisting of 50% of the                                                                        continue to operate over the Line, but
                                                                                                         consummated January 1, 2020. (Appl.
                                               revenue generated from all agreements,                                                                          NSR and GNRR would ‘‘retain their
                                                                                                         8.)                                                   existing rights.’’ (Appl. 6.) It does not
                                               subleases, easements, or licenses                            Environmental Impacts. CSXT states
                                               attributable to the Line for the previous                                                                       appear, under the terms of the proposed
                                                                                                         that the Lease does not require                       Lease, that any shipper would have
                                               year. CSXT states that it will not incur                  environmental documentation and
                                               any fixed charges as a result of the                                                                            fewer competitive rail alternatives as a
                                                                                                         review under 49 CFR 1105.6(c) because                 result of the transaction.
                                               Lease. (Id. at 10.)                                       the Lease will not result in CSXT’s
                                                  Public Interest Considerations. CSXT                                                                            The Board’s finding regarding
                                                                                                         operations over the Line exceeding the                competitive impact is preliminary. The
                                               states that it expects the transaction to                 thresholds in 49 CFR 1105.7(e)(4) and
                                               be competitively neutral and that it will                                                                       Board will give careful consideration to
                                                                                                         (5). (Appl. 15–16.)                                   any claims that any potential
                                               not result in any lessening of                               Historic Preservation Impacts. CSXT
                                               competition, creation of a monopoly, or                                                                         anticompetitive effects of the Lease
                                                                                                         states that the Lease does not require an             would not be outweighed by its
                                               restraint of trade in freight surface                     historic report under 49 CFR 1105.8(b)
                                               transportation in any region of the                                                                             potential benefits.
                                                                                                         because the Lease ‘‘is for the purpose of                The Board accepts the application for
                                               United States. (Appl. 9.) In support,                     continued rail operations where further               consideration because it is in substantial
                                               CSXT states that competition with NSR                     [Board] approval is required to abandon               compliance with the applicable
                                               between Atlanta and Chattanooga will                      any service and there are no plans to                 regulations governing ‘‘minor
                                               be maintained at the current level and                    dispose of or alter properties subject to             transactions.’’ See 49 CFR 1180; 49
                                               that the Lease will not impact motor                      [Board] jurisdiction that are 50 years or             U.S.C. 11321–26. The Board reserves the
                                               carriers operating between Atlanta and                    older.’’ (Appl. 17.) CSXT states that it              right to require the filing of
                                               Chattanooga on Interstate 75 or                           will continue to operate the Line that it             supplemental information as necessary
                                               intermodal competition at intermediate                    has operated for over 120 years. (Appl.               to complete the record.
                                               points. (Id.) CSXT further states that the                17.)                                                     Procedural Schedule. Any person
                                               number of rail carriers serving each
                                                                                                            Labor Impacts. CSXT states that there              who wishes to participate in this
                                               shipper on the Line will remain the
                                                                                                         will be no impact on its employees or                 proceeding as a POR must file a notice
                                               same and that no shipper now being
                                                                                                         on the employees of W&A, because                      of intent to participate no later than
                                               served by two railroads would have its
                                                                                                         CSXT does not plan to change                          December 5, 2018; requests for
                                               service limited to one railroad. (Id.)
                                                                                                         operations on the Line. Further, CSXT                 discovery from CSXT are due by
                                                  According to CSXT, the Lease will
                                                                                                         states that there are no W&A employees                December 5, 2018; CSXT’s discovery
                                               maintain the status quo of the
                                                                                                         on the Line. CSXT requests that the                   responses are due by December 19,
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                                               transportation services to rail customers
                                                                                                         Board impose the labor protective                     2018; all comments, protests, requests
                                               now served by CSXT, as CSXT will
                                                                                                         conditions set forth in Mendocino Coast               for conditions, and any other evidence
                                               continue to serve shippers as it does
                                                                                                         Railway, Inc.—Lease and Operate—                      and argument in opposition to the
                                               today. (Appl. 10.) CSXT states that it
                                                                                                         California Western Railroad, 360 I.C.C.               application, including filings by DOJ
                                                  2 As of the decided date of this decision, CSXT        653 (1980), as clarified in Wilmington                and DOT, must be filed by January 4,
                                               has not filed for abandonment authority for this          Terminal Railroad, Inc.—Purchase and                  2019; and responses to comments,
                                               line.                                                     Lease—CSX Transportation, Inc., 6                     protests, requests for conditions, and


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                                                                           Federal Register / Vol. 83, No. 225 / Wednesday, November 21, 2018 / Notices                                           58809

                                               other opposition on the transportation                     implementation of the Board’s ‘‘One                    PORs on the service list have been
                                               merits of the Lease, as well as CSXT’s                     Party-One Representative’’ policy for                  served with a copy of the filing.
                                               rebuttal in support of the application,                    service lists. Any person designated as                Members of the United States Congress
                                               must be filed by February 1, 2019. The                     a non-party will receive copies of Board               (MOCs) and Governors (GOVs) are not
                                               Board reserves the right to adjust the                     decisions, orders, and notices but not                 parties of record and need not be served
                                               schedule as circumstances may warrant.                     copies of official filings. Persons seeking            with copies of filings, unless any MOC
                                               For further information regarding dates,                   to change their status must accompany                  or GOV has requested to be, and is
                                               see the procedural schedule below.                         that request with a written certification              designated, as a POR.
                                                  Notice of Intent To Participate. Any                    that he or she has complied with the                      Service of Decisions, Order, and
                                               person who wishes to participate in this                   service requirements set forth at 49 CFR               Notices. The Board will serve copies of
                                               proceeding as a POR must file with the                     1180.4, and any other requirements set                 its decisions, orders, and notices on
                                               Board, no later than December 5, 2018,                     forth in this decision.                                those persons who are designated on the
                                               a notice of intent to participate,                            Service List Notice. The Board will                 official service list as either POR, MOC,
                                               accompanied by a certificate of service                    serve, as soon after December 5, 2018,                 GOV, or non-party. All other interested
                                               indicating that the notice has been                        as practicable, a notice containing the                persons are encouraged to secure copies
                                               properly served on the U.S. Secretary of                   official service list (the service list                of decisions, orders, and notices via the
                                               Transportation, the Attorney General of                    notice). Each POR will be required to                  Board’s website at www.stb.gov under
                                               the United States, and Mr. Gitomer                         serve upon all other PORs, within 10                   ‘‘E–LIBRARY/Decisions & Notices.’’
                                               (representing CSXT), as described                          days of the service date of the service                   Access to Filings. Under the Board’s
                                               above.                                                     list notices, copies of all filings                    rules, any document filed with the
                                                  If a request is made in the notice of                   previously submitted by that party (to                 Board (including applications,
                                               intent to participate to have more than                    the extent such filings have not                       pleadings, etc.) shall be promptly
                                               one name added to the service list as a                    previously been served upon such other                 furnished to interested persons on
                                               POR representing a particular entity, the                  parties). Each POR will also be required               request, unless subject to a protective
                                               extra name will be added to the service                    to file with the Board, within 10 days of              order. 49 CFR 1180.4(a)(3). The
                                               list as a ‘‘non-party.’’ The list will reflect             the service date of the service list notice,           application and other filings in this
                                               the Board’s policy of allowing only one                    a certificate of service indicating that               proceeding are available on the Board’s
                                               official representative per party to be                    the service required by the preceding                  website at www.stb.gov under ‘‘E–
                                               placed on the service list, as specified                   sentence has been accomplished. Every                  LIBRARY/Filings.’’ In addition, the
                                               in Press Release No. 97–68 dated August                    filing made by a POR must have its own                 application may be obtained from Mr.
                                               18, 1997, announcing the                                   certificate of service indicating that all             Gitomer at the address indicated above.

                                                                                                                    PROCEDURAL SCHEDULE
                                               October 22, 2018 ...............       Application filed.
                                               December 5, 2018 ..............        Notices of intent to participate in this proceeding due.
                                                                                      Discovery requests due to CSXT.
                                               December 19, 2018 ............         CSXT’s responses to discovery requests due.
                                               January 4, 2019 .................      Comments due from all parties, including the U.S. Secretary of Transportation and the Attorney General, on the
                                                                                        transportation merits of the Lease.
                                               February 1, 2019 ................      Responses to comments on the transportation merits of the Lease due.
                                                                                      CSXT’s rebuttal in support of the application due.
                                               March 6, 2019 ....................     Close of record on the transportation merits.
                                               April 19, 2019 .....................   Date by which a final decision will be served.
                                               May 19, 2019 .....................     Date by which a final decision will become effective.



                                                 It is ordered:                                           SURFACE TRANSPORTATION BOARD                           (connecting at its west end to UP’s
                                                 1. The application in FD 36220 is                                                                               Kalan Industrial Lead) from the east
                                                                                                          [Docket No. FD 36244]
                                               accepted for consideration.                                                                                       edge of Washington St., running along
                                                                                                          KET, LLC—Operation Exemption—                          the line of Bruneau Ave. extending in an
                                                 2. The parties to this proceeding must                                                                          easterly direction and terminating east
                                               comply with the procedural schedule                        Lines of Railroad in Benton County,
                                                                                                          Wash.                                                  of the intersection of Bruneau Ave. and
                                               adopted by the Board in this proceeding                                                                           Kingwood St. This main industrial rail
                                               as shown in the procedural schedule                           KET, LLC (KET), a noncarrier, has                   spur also connects with BNSF Railway
                                               above and must comply with the                             filed a verified notice of exemption                   Company (BNSF) along Bruneau Ave.
                                               procedural requirements described in                       under 49 CFR 1150.31 to operate two                    west of the intersection with N Elm St.
                                               this decision.                                             industrial spurs1 totaling approximately               The main industrial rail spur is 3,694
                                                 3. This decision is effective on its                     1.28 miles of track in Kennewick and                   feet (approximately 0.7 miles) in length.
                                               service date.                                              Hedges, Benton County, Wash.:                          A branch spur (Ash Grove Spur)
                                                                                                             (1) The Kennewick track includes the                diverges from the main industrial rail
                                                 Decided: November 16, 2018.                              following: A main industrial spur in the               spur along the line extending east on
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                                                 By the Board, Board Members Begeman                      City of Kennewick originating at the                   Bruneau Ave., east of its intersection
                                               and Miller.                                                connection with the Union Pacific                      with N. Gum St. and proceeding in a
                                               Aretha Laws-Byrum,                                         Railroad Company (UP) ‘‘City Lead’’                    northeasterly direction, terminating on
                                               Clearance Clerk.                                             1 KET states that it acquired the industrial spurs
                                                                                                                                                                 the property of the Ash Grove Cement
                                               [FR Doc. 2018–25388 Filed 11–20–18; 8:45 am]               from the Port of Kennewick, Washington on July 23,
                                                                                                                                                                 Co. at 633 N Ivy Street in Kennewick.
                                               BILLING CODE 4915–01–P                                     2013. According to KET, the industrial spurs will      The branch spur is 1,476 feet
                                                                                                          have no mileposts.                                     (approximately 0.28 miles) in length.


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Document Created: 2018-11-21 03:11:45
Document Modified: 2018-11-21 03:11:45
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionDecision No. 1 in FD 36220; Notice of Acceptance of Application; Issuance of Procedural Schedule.
DatesThe effective date of this decision is November 21, 2018. Any person who wishes to participate in this proceeding as a party of record (POR) must file a notice of intent to participate no later than December 5, 2018. 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 January 4, 2019. Responses to comments, protests, requests for conditions, and other opposition on the transportation merits of the Lease, and rebuttal in support of the application must be filed by February 1, 2019.
ContactLisa Novins, (202) 245-0389. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.
FR Citation83 FR 58807 

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