CSX Transportation, Inc. and Delaware and Hudson Railway Company, Inc.-Joint Use Agreement, 29805-29810 [2010-12774]

Agencies

• Surface Transportation Board
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 75, Number 102 (Thursday, May 27, 2010)]
[Notices]
[Pages 29805-29810]
From the Federal Register Online via the Government Printing 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

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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

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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\
---------------------------------------------------------------------------

    \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