Daily Rules, Proposed Rules, and Notices of the Federal Government
In this decision, the Surface Transportation Board (Board) accepts for consideration CSXT's application and the filings in the two embraced subdockets, finds that the transaction proposed in CSXT's application qualifies as "minor," and adopts a procedural schedule to govern this proceeding and the embraced trackage rights proceedings.
GTW's acquisition of an easement from CSXT will be adjudicated in a separate docket, Docket No. FD 35661, and is the subject of a separate Board decision being served in that docket today. The Board intends to adjudicate both easement acquisitions on parallel schedules, concluding with a final Board decision in both dockets on February 8, 2013.
CSXT owns and operates about 21,000 miles of railroad in Alabama, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Massachusetts, Maryland, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia, the District of Columbia, and the Canadian Provinces of Ontario and Quebec. GTW owns and operates about 642 miles of railroad in Illinois, Indiana, Michigan, and Ohio and the Province of Ontario. GTW is directly controlled by Grant Trunk Corporation, which is controlled by Canadian National Railway Company (CN).
CSXT and GTW have entered an Agreement for Exchange of Perpetual Easements dated as of August 13, 2012. To obtain the required Board authority to carry out their agreement, CSXT and GTW have filed various requests for authority in this docket and Docket No. FD 35661 as follows:
In Docket No. FD 35522, CSXT has filed an application pursuant to 49 U.S.C. 11323(a)(2) and 49 CFR pt. 1180 seeking approval for the carrier to acquire a proposed easement (Acquisition). Specifically, CSXT wishes to acquire an exclusive, perpetual, non-assignable railroad operating easement over 22.37 miles of GTW track on the Elsdon Subdivision between the connection with CSXT at Munster, Ind., milepost 31.07, and Elsdon, Ill., milepost 8.7, which connects to the southern end of the BNSF Railway Company's Corwith Yard. GTW will retain local and overhead trackage rights over the Elsdon Line.
CSXT seeks to effectuate the Acquisition to improve the efficiency of its operations in and through the Chicago, Ill., area (Chicago Terminal). Pursuant to the Acquisition, CSXT would assume responsibility for the maintenance, dispatching and capital improvements on the Elsdon Line. CSXT notes that the Chicago Terminal has the densest concentration of railroad lines in the United States. The carrier currently operates over several rail lines that are owned by other railroads and where the maintenance, dispatching, and capital improvements are controlled by those railroads. In becoming the operator of the Elsdon Line, CSXT claims that it would be able to reduce congestion on the other lines that it uses to operate through the Chicago Terminal, increase the efficiency of the operations in the Chicago Terminal, and generate savings in excess of $2 million per year.
In Docket No. FD 35522 (Sub-No. 2), CSXT has agreed to grant several GTW affiliates—Chicago, Central & Pacific Railroad Company, Elgin, Joliet and Eastern Railroad Company, Illinois Central Railroad Company, and Wisconsin Central Ltd.—local and overhead trackage rights over the Elsdon Line. These GTW affiliates currently have trackage rights over the line granted by GTW. GTW and CSXT have agreed that CSXT would not be assigned those existing agreements; instead, CSXT would grant new local and overhead trackage rights over the Elsdon Line to the GTW affiliates to ensure that these carriers continue to have access to the line after the proposed CSXT Acquisition.
In exchange for obtaining the easement over the Elsdon Line, CSXT has agreed to grant GTW an exclusive, perpetual, non-assignable railroad operating easement over approximately 2.1 miles of CSXT's Memphis Terminal Subdivision, between Leewood, Tenn., milepost 00F371.4, and Aulon, Tenn., milepost 00F373.4 (the Leewood-Aulon Line). The Leewood-Aulon Line is currently owned by CSXT; Illinois Central Railroad Company (IC), a GTW affiliate, operates over the line pursuant to a trackage rights agreement.
To obtain authority for this easement acquisition, on August 13, 2012, GTW filed a petition for exemption under 49 U.S.C. 10502 from the prior approval requirements at 49 U.S.C. 11323-25. The Board today is issuing a separate decision in Docket No. FD 35661 beginning a proceeding to consider GTW's petition for exemption and setting a procedural schedule for that proceeding, which largely will parallel the schedule established in this decision for Docket No. FD 35522.
Additionally, CSXT claims that the Acquisition would also further the goals of the Chicago Regional Environmental and Transportation Efficiency (CREATE) program, a public-private partnership among the U.S. Department of Transportation, the State of Illinois, City of Chicago, Metra commuter rail and Class I railroad companies. The primary objective of CREATE is to increase the efficiency of the Chicago-region's rail infrastructure by reducing train delays and congestion through the area.
CSXT claims that the Acquisition would not result in a substantial lessening of competition, creation of a monopoly, or restraint of trade in freight in any region of the United States. According to CSXT, it would not result in a reduction in the number of rail
To the extent necessary, CSXT states that it would hire additional employees to maintain, operate, and dispatch the Elsdon Line. CSXT does not believe that any of its employees would be adversely affected by the Acquisition, but it notes that no more than four positions would be abolished on the GTW property as a result of the Acquisition. It notes that these employees would have available other equivalent job opportunities in the Chicago Terminal area. It acknowledges that the Acquisition would be subject to employee protective conditions in
Based on a review of the application, the Board agrees that CSXT's proposed acquisition of the easement over the Elsdon Line qualifies as a “minor” transaction under the agency's regulatory scheme. According to CSXT, the Elsdon transaction would not result in a reduction in the number of rail carriers serving any shippers. The application indicates that CSXT's use and control of the Elsdon Line would not restrain trade because GTW and its affiliates would be able to continue to jointly use the Elsdon Line via trackage rights and other railroads would continue to be able to use their own routes. The application further indicates that the transaction would result in more efficient CSXT operations in the Chicago area stemming from an overall reduction in train delays and congestion. Specifically, CSXT states that this easement acquisition would allow it to take advantage of an underutilized freight line and allow it move trains off Indiana Harbor Belt Line Railroad Company's Franklin Park Branch, the Bulkmatic Railroad Corporation's rail line east of Clearing Yard, the Union Pacific Railroad Company's (UP) Villa Grove Subdivision north of Dolton, and a portion of the CSXT/UP Joint Line. The transaction would also reduce train conflicts in the region and reduce congestion at Dolton, a major intersection of freight activity in the Chicago area.
In sum, the Board finds the Acquisition to be a “minor” transaction because it appears on the face of the application that there would not be any clear anticompetitive effects from the transaction.
The Board also accepts the application and the filings in the two related subdockets for consideration. The application is in substantial compliance with the applicable regulations governing “minor” transactions.
Under the procedural schedule we are adopting in this case: any person who wishes to participate in this proceeding as a POR must file a notice of intent to participate no later than September 26, 2012; 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 November 9, 2012; comments on the Draft EA also must be filed with OEA by November 9, 2012; and responses to comments, protests, requests for conditions, and other opposition on the transportation merits of the Acquisition, as well as Applicant's rebuttal in support of the Application, must be filed by November 29, 2012. The Board plans to issue its Final EA on or before January 14, 2013, and its final decision by February 8, 2013, and to make any such approval effective by March 10, 2013. The Board reserves the right to adjust the schedule as circumstances may warrant. For further information respecting dates, see Appendix A (Procedural Schedule).
Additionally, discovery may begin immediately. Requests for discovery from CSXT are due on September 26, 2012. CSXT responses are due on October 11, 2012. The parties are encouraged to resolve all discovery matters expeditiously and amicably.
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 to a Party of Record 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.
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
1. The application and notices of exemption in the related subdockets are accepted for consideration.
2. The parties to this proceeding must comply with the procedural schedule adopted by the Board in this proceeding as shown in Appendix A.
3. The parties to this proceeding must comply with the procedural requirements described in this decision.
4. This decision is effective on September 12, 2012.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Begeman.
* The Board reserves the right to modify this schedule as circumstances may warrant.