Norfolk Southern Corporation and Norfolk Southern Railway Company-Acquisition of Control-Norfolk & Portsmouth Belt Line Railroad Company, 12440-12444 [2025-04131]

Agencies

• Surface Transportation Board

[Federal Register Volume 90, Number 50 (Monday, March 17, 2025)]
[Notices]
[Pages 12440-12444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-04131]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36836]


Norfolk Southern Corporation and Norfolk Southern Railway 
Company--Acquisition of Control--Norfolk & Portsmouth Belt Line 
Railroad Company

AGENCY: Surface Transportation Board.

ACTION: Decision No. 2 in Docket No. FD 36836; Notice of receipt of 
prefiling notification.

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    The Surface Transportation Board (Board) has reviewed the 
submission filed February 14, 2025, by Norfolk Southern Corporation 
(NSC) and Norfolk Southern Railway Company (NSR) (collectively, NS or 
Applicants). The submission, styled as an application for a minor 
transaction, seeks Board approval for Applicants to acquire control of 
Norfolk & Portsmouth Belt Line Railroad Company (NPBL), a Class III 
rail carrier operating in Norfolk, Portsmouth, and Chesapeake, Va. This 
proposal is referred to as the ``Proposed Transaction.''
    The Board finds that the Proposed Transaction would be a 
``significant'' transaction. Accordingly, Applicants' submission cannot 
be treated as an application at this time. The Board will consider the 
February 14, 2025 submission as a prefiling notification and publish 
notice of it in the Federal Register. Applicants will be required to 
perfect their application by supplementing their submission, to the 
extent discussed in this decision, between April 14 and June 14, 2025. 
Applicants must also file with the Board, by March 21, 2025, a revised 
proposed procedural schedule that reflects the Board's determination 
that the Proposed Transaction is a significant transaction. The 
proposed procedural schedule should indicate the year to be used for 
the impact analysis required in significant transactions and the 
approximate filing date of Applicants' anticipated supplement. Lastly, 
when they file their supplement to perfect their application, 
Applicants must submit the difference between the filing fee for a 
minor transaction (which Applicants already have paid) and the fee for 
a significant transaction.

DATES: Applicants must file a revised proposed procedural schedule with 
the Board by March 21, 2025.

ADDRESSES: Any filing submitted in this proceeding must be filed with 
the Board either via e-filing on the Board's website or in writing 
addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, 
one copy of each filing 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) 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) Applicants' representative, 
William Mullins, Mullins Law Group,

[[Page 12441]]

PLLC, 2001 L Street NW, Suite 720, Washington, DC 20036; and (4) any 
other person designated as a Party of Record on the service list.

FOR FURTHER INFORMATION CONTACT: Amy Ziehm at (202) 245-0391. If you 
require an accommodation under the Americans with Disabilities Act, 
please call (202) 245-0245.

SUPPLEMENTARY INFORMATION: Applicants seek the Board's review and 
authorization pursuant to 49 U.S.C. 11323-25 and 49 CFR part 1180 to 
control NPBL. (Notice 7.) \1\ NSR is a Class I rail carrier that 
operates approximately 19,300 route miles of track.\2\ (Id. at 40.) 
NPBL is a terminal switching company, currently owned by NS (57.14%) 
and CSX Transportation, Inc. (CSXT) (42.86%). (Id. at 12.) NPBL 
operates approximately 36 miles of rail line from Portsmouth, Va., to 
Norfolk, Va. (the NPBL Line), and approximately 27 miles of trackage 
rights over NS track from the City of Chesapeake, Va., to the City of 
Norfolk, Va. (the NPBL Trackage Rights). (Id. at 12-13, 42.) The NPBL 
Line connects with CSXT at Portsmouth, with NSR and the Chesapeake and 
Albemarle Railroad at Chesapeake, and with the Buckingham Branch 
Railroad at Norfolk. (Id. at 58.)
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    \1\ Because the Board will treat the February 14, 2025 
submission as a prefiling notification, that submission will be 
referred to as the ``Notice.'' Additionally, all references to 
pleadings on the record will cite to the cumulative page numbers 
therein to the extent they are available.
    \2\ NS conducts operations in Alabama, Delaware, Florida, 
Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, 
Michigan, Mississippi, Missouri, New Jersey, New York, North 
Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, 
West Virginia, and the District of Columbia. (Notice 40.)
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    The NPBL Trackage Rights facilitate NPBL's access to the Norfolk 
International Terminal (NIT). (Id. at 58.) NIT is one of two primary 
container terminals at the Port of Virginia (POV). (Id. at 60.) The NSR 
track, over which the NPBL Trackage Rights run, connects directly to 
NIT. (Id. at 58.) According to Applicants, other carriers can access 
NIT by interchanging with NSR or arranging for a switch move involving 
NPBL. (Id.) CSXT also conducts drayage operations to NIT from a nearby 
yard. (Id. at 32.) The other, smaller container terminal at POV is the 
Virginia International Gateway (VIG). (Id. at 60.) NSR and CSXT both 
access VIG through the Commonwealth Railway, a subsidiary of Genesee & 
Wyoming. (Id.) Via NPBL, NSR and CSXT also have rail access to the 
Portsmouth Marine Terminal, a former container, break-bulk, and roll-
on/roll-off cargo terminal that is currently being repurposed to handle 
heavy and oversized cargo. (Id.) Additionally, CSXT has direct, on-dock 
access to the Newport News Marine Terminal, a break-bulk and roll-on/
roll-off facility. (Id. at 60-61.)
    NPBL's current switch rate to NIT is $210 per loaded car well. (Id. 
at 11.) Applicants state that NPBL's switch rate is based on a 
``uniform, cost-based structure'' (instead of a profit/market-driven 
fee basis), in accordance with an agreement entered into in 1897 when 
NPBL was created (the 1897 Governing Document). (Id. at 8 & n.3, 12, 
24.)
    Until 2016, NPBL operated the NPBL Trackage Rights pursuant to the 
terms of a trackage rights agreement entered into in 1917. (Id. at 13.) 
NS terminated that agreement in 2016, and the parties have extended the 
terms of the terminated agreement on a month-to-month basis since that 
time. (Id.) In 2018, NSR filed a petition asking the Board to set 
trackage rights compensation for the NPBL Trackage Rights. Norfolk S. 
Ry.--Pet. to Set Trackage Rts. Comp.--Norfolk & Portsmouth Belt Line 
R.R., FD 36223 (STB served Mar. 29, 2019). As discussed in more detail 
below, that proceeding was held in abeyance pending the resolution of 
related federal court litigation. Norfolk S. Ry.--Pet. to Set Trackage 
Rts. Comp.--Norfolk & Portsmouth Belt Line R.R., FD 36223 (STB served 
July 25, 2019).
    According to Applicants, they have effectively controlled NPBL for 
42 years. (See, e.g., Notice 7-8, 17, 24.) In 1980, NSC (then known as 
NWS Enterprises, Inc.) sought authority from the Board's predecessor 
agency, the Interstate Commerce Commission (ICC), to acquire control of 
Norfolk & Western Railway Company (N&W) and Southern Railway Company 
(SRC). (Id. at 59 & n.5.) At that time, NPBL had four shareholders--
SRC, N&W, Norfolk Southern Railway Company (Norfolk Southern), and 
CSXT, (id. at 59)--and Norfolk Southern was a subsidiary of SRC, (id. 
at 9). The ICC approved NSC's application in 1982 (the 1982 
Transaction), resulting in NSC owning 57.14% of the shares of NPBL. 
(Id. at 9, 60.)
    In 1991, the ICC, pursuant to an exemption under 49 CFR 
1180.2(d)(3) for transactions within a corporate family, granted SRC 
authority to directly control N&W. (Notice 9); S. Ry.--Control 
Exemption--Norfolk & W. Ry., FD 31791 (ICC served Jan. 14, 1991). At 
the same time, SRC changed its name to Norfolk Southern Railway 
Company. (Notice 9); S. Ry.--Control Exemption, FD 31791, slip op. at 
1. Then, in 1998, pursuant to another corporate family transaction 
exemption, the Board authorized the merger of N&W into its parent, NSR 
(formerly SRC). (Notice 9); Norfolk S. Ry.--Exemption--Norfolk & W. 
Ry., FD 33648 (STB served Aug. 31, 1998).
    Applicants state that, in 2018, CSXT filed an antitrust complaint 
in federal district court against NS and NPBL, alleging that NS had 
prevented CSXT from serving NIT since 2009, when NPBL increased its 
switch rate to the current rate of $210 per loaded car well. (Notice 
11.) In 2021, NSR filed a petition for declaratory order requesting 
that the Board institute a proceeding to address certain issues 
referred to the Board by the district court, including whether the ICC 
granted NSC approval to control NPBL when it approved the 1982 
Transaction. See Norfolk S.--Pet. for Declaratory Ord., FD 36522, slip 
op. at 1 (STB served June 17, 2022), aff'd sub nom. Norfolk S. Ry. v. 
STB, 72 F.4th 297 (D.C. Cir. 2023), cert. denied, 144 S. Ct. 1343 
(2024). In 2022, the Board held that the agency did not authorize NSC's 
control of NPBL in the 1982 Transaction or the notices of exemption in 
1991 and 1998. (Id. at 1, 9-17.) The Board noted that any future 
decision concerning control would benefit from the findings of the 
district court, and its expectation that NSR would address the 
unauthorized control issue immediately following resolution of the 
district court proceeding, including any appeals. (Id. at 17 & n.25.)
    According to Applicants, the district court granted summary 
judgment in favor of NS and NPBL. (Notice 12.) Applicants state that 
the court ruled that CSXT's claims related to conduct before 2013 were 
time-barred (without addressing the merits of those claims) and that 
CSXT's claims related to conduct after 2013 were unsupported. (Id. at 
12, 36.) Applicants further state that the United States Court of 
Appeals for the Fourth Circuit upheld the district court's judgment. 
(Id.) On November 26, 2024, CSXT filed a petition for certiorari with 
the Supreme Court seeking review of the Fourth Circuit's opinion. (Id. 
at 11.) While noting that not all appeals have been exhausted given the 
pending petition for certiorari, Applicants state that they 
nevertheless filed their submission now in light of the low percentage 
of cases for which such a certiorari petition is granted and the 
Board's directive in the declaratory order proceeding. (Id.)
    Applicants assert that the Proposed Transaction would result in no 
adverse effects on intramodal and intermodal competition. (Notice 23.) 
According to Applicants, they have not used their control of NPBL to 
decrease the transportation options of shippers and they have no plans 
to change that policy moving forward. (Id. at 24.) NS commits to ``(1) 
ensuring that [their] control of

[[Page 12442]]

NPBL will not be used in a manner to artificially inflate NPBL's costs 
through the imposition of an unreasonable trackage rights fee, (2) 
establishing a trackage rights fee that is fully consistent with the 
[Board's] trackage rights rate methodology imposed by the Board to 
preserve competition; and (3) establishing and maintaining a uniform 
cost-based switching rate.'' (Id. at 27.) Applicants further state that 
NS, CSXT, private and public terminal companies, and governmental 
entities have all significantly invested in the international 
intermodal container market. (Id. at 30.) According to Applicants, 
these investments ``reflect the intense competitive marketplace that 
currently exists for international intermodal containers that has been 
sustained throughout NS's effective control of NPBL, and that will 
continue to flourish'' if the Proposed Transaction were approved. (Id. 
at 31.)
    On February 27, 2025, CSXT filed a petition to reject Applicants' 
February 14, 2025 submission, arguing that it would be inappropriate to 
treat the Proposed Transaction as a minor transaction given ``serious 
competitive effects involving NS's unauthorized control of NPBL.'' 
(CSXT Pet. CSXT-1-18, see also id. at CSXT-1-20 to -24.) CSXT argues 
that Applicants failed to provide any substantial data or evidence on 
the relevant markets and competitive effects as necessary to determine 
whether the Proposed Transaction is minor or significant. (Id. at CSXT-
1-19.) According to CSXT, NS is asking the Board to ``rubber stamp'' 
unlawful control that NS has held since 1982. (Id. at CSXT-1-7.) CSXT 
argues, however, that the Board ``must consider the competitive effects 
of NS's proposal by looking at two different scenarios: (1) NPBL 
operating as an independent, neutral railroad (without NS control), and 
(2) NPBL operating as an alter-ego of NS (with NS control).'' (Id. at 
CSXT-1-7.) CSXT also refutes Applicants' characterization of the 
related federal court litigation, noting that, although the district 
court dismissed the complaint on statute of limitations grounds and 
lack of ability to grant injunctive relief, the court nonetheless 
determined that ``CSXT had developed a sufficient evidentiary record on 
the existence of anticompetitive conduct and anticompetitive effects to 
warrant a trial.'' (Id. at CSXT-1-21; see also id. at CSXT-1-23 to -
26.) CSXT argues that ``NS does not even allege the existence of any 
public interest benefits related to its proposal.'' (Id. at CSXT-1-18.) 
CSXT asks that the Board classify the Proposed Transaction as 
significant, reject Applicants' submission as untimely and incomplete, 
and direct Applicants not to file a significant application seeking 
control authority regarding NPBL until after resolution of the district 
court proceeding, including any appeals. (Id. at CSXT-1-31.)
    On March 5, 2025, the Virginia Port Authority (VPA) filed comments 
concerning the classification of the Proposed Transaction. VPA, 
together with Virginia International Terminals, Inc., does business as 
POV. (VPA Comment 1.) VPA states that, as a result of Applicants' 
control of NPBL, NSR handles nearly all rail traffic that moves direct 
to rail at NIT. (Id. at 3, 4 fig. 2.) According to VPA, this 
arrangement compromises operational efficiency at the port because 
cargo at NIT that is bound for CSXT rail service must be drayed (and 
vice versa for export traffic). (Id. at 4.) VPA also notes that rail 
cargo at VIG, which both NSR and CSXT access via the Commonwealth 
Railway, ``is served efficiently with less operational cost and is 
nearly evenly split between CSX[T] and NSR.'' (Id. at 5 & fig.3.) VPA 
asserts that ``Virginia, and the customers it serves, would benefit 
from a comprehensive analysis of NPBL control by NSR rather than the 
simplistic claim that the Board should just formalize that longstanding 
control and effects thereof.'' (Id. at 5.)
    On March 7, 2025, Applicants filed a reply in opposition to CSXT's 
petition to reject. According to Applicants, CSXT is attempting to 
delay the proceeding by manipulating the Board's processes. (Applicants 
Reply 11-12.) Applicants argue that their submission is timely and 
ripe, that there are no legal impediments to the filing of an 
application at this time, and that prompt resolution is in the public 
interest. (Id. at 8, 10-11.) Applicants further argue that CSXT's claim 
that the Proposed Transaction is significant is unwarranted and 
unsupported. (Id. at 13-14, 25-34.) Applicants continue to assert that 
the Proposed Transaction will clearly have no anticompetitive effects. 
(See, e.g., id. at 18-20, 21-25.) \3\
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    \3\ On March 10, 2025, CSXT filed a reply to Applicants' reply 
to CSXT's petition to reject.
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    On March 10, 2025, NPBL replied to CSXT's petition to reject. NPBL 
states that it takes no position at this time on the merits of CSXT's 
petition or Applicants' February 14, 2025 submission but claims that 
CSXT mischaracterized the proceeding in Docket No. FD 36223, which 
concerns setting the compensation terms for the NPBL Trackage Rights. 
(NPBL Reply 1, 3.)
    Classification of the Proposed Transaction. When a transaction does 
not involve the merger or control of two or more Class I railroads, its 
classification will depend upon whether the transaction would have 
``regional or national transportation significance.'' 49 U.S.C. 11325. 
Under 49 CFR 1180.2, a transaction that does not involve two or more 
Class I railroads is to be classified as minor--and thus not having 
regional or national transportation significance--if a determination 
can be made that either (1) the transaction clearly will not have any 
anticompetitive effects, or (2) any anticompetitive effects will 
clearly be outweighed by the transaction's anticipated 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 to be classified as significant if neither of these 
determinations can clearly be made.
    A transaction classified as significant must meet different 
procedural and informational requirements than one classified as minor. 
For example, applicants are required to submit more detailed 
information regarding competitive effects, operating plans, and other 
issues for a significant transaction than for a minor transaction. 49 
CFR 1180.6(c), 1180.7(a) & (c), 1180.8(b). Responsive applications are 
not permitted for a minor transaction but are allowed for a significant 
transaction. 49 CFR 1180.4(d). The time limit for Board review is also 
shorter for a minor transaction, and prefiling notification is not 
required. 49 U.S.C. 11325(d); 49 CFR 1180.4(e). Finally, the filing fee 
for a significant transaction is higher than the fee for a minor 
transaction. 49 CFR 1002.2(f).
    Applicants contend that the Proposed Transaction is minor because 
it clearly would not have any anticompetitive effects.\4\ (Notice 7.) 
According to Applicants, ``[t]he Board need look no further than the 
42-year history of NS's effective control of NPBL to determine that 
there will be no lessening of competition, creation of a monopoly, or 
restraint of trade in freight surface transportation.'' (Id. at 14.) 
Applicants state that granting Applicants control authority will not 
change the manner in which NPBL operates today and that no shipper will 
lose a competitive option. (Id. at 8, 14.) According to Applicants, 
shippers will retain all of their

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intermodal traffic options, including rail, truck, drayage, barges, and 
other ports. (Id. at 38.) Applicants also state that no intermodal 
customer will see a reduction in existing competitive options, nor will 
CSXT see a reduction in its existing access to NIT. (Id.)
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    \4\ Applicants state that, because the Proposed Transaction will 
not result in any anticompetitive effects, the Board need not 
analyze whether the anticompetitive effects would outweigh the 
public interest in meeting significant transportation needs. (See 
Notice 17 n.29.)
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    Applicants claim that the intermodal traffic at NIT faces robust 
competition among railroads, trucks, barges, and other ports. (Id. at 
37.) Applicants state that any attempt by NS to use its control of NPBL 
to raise rates or disadvantage CSXT would be contrary to NS's and 
NPBL's interest as it would likely cause shippers to increase their 
share of drayage to CSXT's nearby rail yard, increase use of VIG (where 
both CSXT and NSR provide service via Commonwealth Railway), or shift 
traffic to trucks or other ports--some of which are exclusively served 
by CSXT. (Id. at 28, 37.) According to Applicants, in order to ensure 
that shippers continue to have competitive access to NPBL, NS commits 
that NSR will not establish a market-based trackage rights fee for 
NPBL, but instead will agree to have the Board set an SSW trackage 
rights rate, and that NS will not cause NPBL to change the nature of 
its switch rate, which shall remain a uniform, cost-based rate 
consistent with NPBL's 1897 Governing Document.\5\ (Id. at 15.)
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    \5\ ``The SSW Compensation methodology involves calculating the 
sum of three elements: (1) the variable cost incurred by the owning 
carrier due to the tenant carrier's operations over the owning 
carrier's track; (2) the tenant carrier's usage-proportionate share 
of the track's maintenance and operation expenses; and (3) an 
interest rental component designed to compensate the owning carrier 
for the tenant carrier's use of the owning carrier's capital 
dedicated to the track.'' BNSF Ry.--Terminal Trackage Rts.--Kan. 
City S. Ry., FD 32760 (Sub-No. 46), slip op. at 3 (STB served Nov. 
28, 2023).
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    The purpose of the test articulated in 49 CFR 1180.2 is to allow 
the Board to lessen the regulatory burden when ``a determination can 
clearly be made, at the time the application is filed, that the 
transaction passes muster under'' the statute. See R.R. Consolidation 
Procs.: Definition of, & Requirements Applicable to, ``Significant 
Transactions,'' 9 I.C.C.2d 1198, 1200 (1993). Designating a transaction 
under the regulations at 49 CFR 1180.2 permits the Board to select the 
most appropriate procedures to apply to a proposed transaction. See 
Canadian Pac. Ry.--Control--Dakota, Minn. & E. R.R., FD 35081, slip op. 
at 6 (STB served Nov. 2, 2007). It is not the purpose of 49 CFR 
1180.2(b) to force the Board to make an advance determination on the 
extent of the likely competitive effects or to weigh those effects 
against the public interest in meeting significant transportation needs 
in cases where more information would be helpful. Id. Any broader 
reading of the regulation could effectively require a preliminary 
determination on the ultimate issue in the case even where the Board 
regards such a determination as premature. Id.
    Here, the Board cannot make a determination based on the current 
record that the transaction clearly would not have any anticompetitive 
effects. For example, Applicants argue that CSXT ``has been, and 
remains, the predominate user of NPBL services, moving between 57.2% 
and 71.4% of the NPBL revenue carloads handled by NPBL over the past 
number of years.'' (Notice 67.) However, CSXT alleges that NS's actions 
during its unauthorized control have led to CSXT not using NPBL to 
reach NIT other than in 2015, when CSXT provided ``de minimis service'' 
to NIT via rail ``during a period of extraordinary circumstances and 
demand caused by the February 2015 West Coast port labor strike.'' 
(CSXT Pet. CSXT-1-541.) Given these questions and other arguments 
raised by CSXT and VPA regarding CSXT's access to NIT, the Board is 
unable to conclude on the face of Applicants' submission that the 
Proposed Transaction clearly would not have any anticompetitive 
effects. For the same reason, the Board is unable to conclude at this 
stage that any anticompetitive effects would clearly be outweighed by 
the Proposed Transaction's potential contribution to the public 
interest in meeting significant transportation needs. Indeed, 
Applicants make no argument in their submission that anticompetitive 
effects would be outweighed by the Proposed Transaction's contribution 
to the public interest in meeting significant transportation needs, and 
instead rested on their assertion that there would be no 
anticompetitive effects. (Notice 17 n.29.) Because the Board cannot 
make either of the determinations required by 49 CFR 1180.2(b), the 
Board finds that the Proposed Transaction is a significant 
transaction.\6\ The Board is therefore unable to accept the February 
14, 2025 submission as an application.\7\
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    \6\ The classification of the Proposed Transaction as 
significant should not be read to suggest how the Board might 
ultimately assess and weigh the effects of the transaction under 49 
U.S.C. 11324(d) after development of a more complete record.
    \7\ CSXT's petition to reject, to the extent that it is not 
addressed by the Board's determinations, is denied.
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    Because Applicants argue that the Proposed Transaction is a minor 
transaction, they did not file the required prefiling notification 
before their February 14, 2025 submission. The Board will consider the 
February 14, 2025 submission as a prefiling notification and publish 
notice of it in the Federal Register.\8\ This will permit Applicants to 
perfect their application by supplementing their submission, to the 
extent discussed below, with the requisite information for a 
significant transaction, within two to four months of the February 14, 
2025 submission.\9\ See 49 CFR 1180.4(b), 1180.6(c), 1180.7(a) & (c), 
1180.8(b).
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    \8\ CSXT asks the Board to reject Applicants' February 14, 2025 
submission as untimely and direct Applicants not to file a 
significant application until after resolution of the district court 
proceeding, including any appeals. (CSXT Pet. CSXT-1-9, CSXT-1-31.) 
Given the current status of the antitrust litigation, the Board will 
treat Applicants' submission as a prefiling notification for a 
significant transaction but will direct Applicants to promptly 
notify the Board of any court orders in that litigation, including 
any order by the Supreme Court concerning the pending petition for 
certiorari.
    \9\ The Board's regulations require that applicants give notice 
two to four months prior to the filing of an application in a 
significant transaction. See 49 CFR 1180.4(b)(1).
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    As noted above, a transaction classified as significant must meet 
different informational requirements than one classified as minor. 
While the Board finds that its analysis would benefit from some of the 
more robust data required for significant transactions, not all of the 
additional information required for significant transactions is 
necessary here. Specifically, the Board will waive the requirements in 
49 CFR 1180.6(b)(3), (b)(6), and (b)(8), all of which require 
information about an applicant's corporate structure. The Board will 
also waive 49 CFR 1180.6(b)(7), which applies only to noncarriers, 
because NSR is a carrier. (See Notice 40.) Lastly, given that 
Applicants are already the majority shareholder of NPBL and have stated 
that there will be no change from current operations or in existing 
traffic volumes should the Board approve the Proposed Transaction, 
(see, e.g., Notice 43, 45, 109), the Board will waive the requirements 
of 49 CFR 1180.8(b), which require a more detailed operating plan than 
is required for minor applications. Applicants are expected to meet all 
informational requirements for significant transactions that are not 
waived by the Board in this decision.
    In addition to the impact analysis and any supporting documents 
Applicants provide pursuant to 49 CFR 1180.7(a) and (c), the Board will 
direct Applicants to file (1) two years of traffic tapes for NPBL and 
(2) a list of the top 10 NPBL customers for the past five years, 
including volumes moved by each customer (tons by two-digit Standard 
Transportation Commodity Code for non-containerized freight and

[[Page 12444]]

containers otherwise). See 49 CFR 1180.4(c)(2)(v) (``The applicant 
shall submit such additional information to support its application as 
the Board may require.''). Additionally, Applicants should address and 
present information on the costs and operational efficiencies of the 
alternative approaches to moving containerized freight by rail in and 
out of the two major container terminals at the Port of Virginia (NIT 
and VIG). This information should include the use of on-dock, near 
dock, NPBL, and Commonwealth Railway, and include the costs and impacts 
of drayage, when required. This information will provide the Board with 
more insight into the nature of competition in the port area.
    Upon filing a supplement perfecting their application for a 
significant transaction, Applicants will also be required to pay the 
remainder of the filing fee applicable for a significant transaction. 
See 49 CFR 1002.2(f).
    Procedural Schedule. When filing a prefiling notification for a 
significant transaction, applicants must propose a procedural schedule 
for Board review of their proposed transaction. 49 CFR 1180.4(b)(4)(i). 
Concurrently with their February 14, 2025 submission, Applicants filed 
a motion for proposed procedural schedule reflecting the statutory 
deadlines for processing minor applications. The Board's determination 
that this transaction is significant necessitates a different 
procedural schedule than that proposed by Applicants. Accordingly, no 
later than March 21, 2025, Applicants must file with the Board a 
revised proposed procedural schedule that reflects the Board's 
determination that this is a significant transaction. The proposed 
procedural schedule shall indicate the year to be used for the impact 
analysis and the approximate filing date of the supplement that will 
perfect the application in accordance with 49 CFR 1180.4(b). The Board 
will designate the year to be used for impact analysis when it 
publishes notice of the revised proposed procedural schedule. Comments 
on the proposed procedural schedule will be due 10 days after 
publication of the proposed procedural schedule in the Federal 
Register.\10\
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    \10\ CSXT states in its petition to reject that it strongly 
opposes the expedited procedural schedule Applicants had proposed 
concurrently with their February 14, 2025 submission. (See CSXT Pet. 
CSXT-1-31 n.18.) Because Applicants are ordered to submit a revised 
proposed procedural schedule that reflects the Board's determination 
that the Proposed Transaction is significant, parties may comment on 
the revised proposed procedural schedule after it is published in 
the Federal Register.
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    Service List. Every filing made by a Party of Record must have its 
own certificate of service indicating that all Parties of Record on the 
service list have been served with a copy of the filing. Members of the 
United States Congress and Governors are not Parties of Record and need 
not be served with copies of filings, unless any Member or Governor has 
requested to be, and is designated as, a Party of Record.
    In past proceedings, the Board has served a notice containing the 
official service list and required each Party of Record to serve copies 
of all filings previously submitted by that party upon all other 
Parties of Record (to the extent such filings have not previously been 
served upon such other parties), and to file a certificate of service 
with the Board indicating that it had done so. Given the availability 
of the service list generated on the Board's website for individual 
proceedings, the Board finds it unnecessary to serve an official 
service list.
    Service of Decisions, Orders, and Notices. The Board will serve 
copies of its decisions, orders, and notices on those persons 
designated on the service list as a Party of Record 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.
    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 Notice and other filings in 
Docket No. FD 36836 will be furnished to interested persons upon 
request and will also be available on the Board's website at 
www.stb.gov.\11\ In addition, the Notice and other filings by 
Applicants may be obtained from Applicants' representatives at the 
addresses indicated above.
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    \11\ Applicants have filed a public version and highly 
confidential version of the Notice. The highly confidential version 
may be obtained subject to the protective order issued by the Board 
on February 19, 2025.
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    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. The submission filed by Applicants on February 14, 2025, is 
treated as the prefiling notification of the anticipated application.
    2. Applicants are directed to supplement the prefiling notification 
by submitting to the Board, no later than March 21, 2025, a revised 
proposed procedural schedule that is consistent with the Board's 
determination that the Proposed Transaction is a significant 
transaction. The submission must indicate the year to be used for the 
impact analysis required in a significant transaction and the 
approximate filing date of the supplement that will perfect the 
application.
    3. Applicants are directed to perfect their application for a 
significant transaction, as described above, and to submit the 
difference between the filing fee for a minor transaction and the fee 
for a significant transaction, between April 14 and June 14, 2025.
    4. The Board's regulations are waived to the extent discussed in 
this decision.
    5. CSXT's petition to reject, to the extent that it is not 
addressed by the Board's determinations above, is denied.
    6. This decision is effective on March 14, 2025.
    Decided: March 11, 2025.
    By the Board, Board Members Fuchs, Hedlund, Primus, and Schultz. 
Board Member Fuchs concurred with a separate expression.

BOARD MEMBER FUCHS, concurring:

    I write separately to remind the parties in this proceeding, and 
practitioners generally, that the Board's regulations do not permit a 
reply to reply. 49 CFR 1104.13(c). A reply to a reply causes especially 
acute difficulties where, as here, the Board must act within a 
relatively short statutorily prescribed period. 49 U.S.C. 11325(a). 
Efficient management of the Board's resources requires the orderly 
administration of cases, and parties' filings play a critical role in 
achieving this objective. While I acknowledge that the Board has 
liberally accepted replies to replies over the years, going forward I 
plan to ask the Board to more strictly enforce this rule to ensure 
fulsome initial filings, reduce burden on parties, and better use 
agency resources.

Brendetta Jones,
Clearance Clerk.
[FR Doc. 2025-04131 Filed 3-14-25; 8:45 am]
BILLING CODE 4915-01-P