Railroads: The Board Announces Final Evidentiary Hearing Dates and Voting Conference in Gulf Coast Proceeding

On October 28, 2022, the Surface Transportation Board (Board) announced the final evidentiary hearing dates – November 17 and November 18, 2002 – for the March 16, 2021 application by the National Railroad Passenger Corporation (Amtrak) requesting an order that allowed additional Amtrak train operations over CSX Transportation, Inc. (CSXT) and Norfolk Southern Railway Company (NSR) lines along the Gulf Coast.  Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496 (STB served Oct. 28, 2022).  The Board also announced that it would hold a voting conference on December 7, 2022.  Id.

On February 1, 2022, the Board had issued a decision announcing that it would hold a public hearing in this proceeding, consisting of a first phase, which would involve comments from the public, and a second phase, which would be an evidentiary hearing.  Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496 (STB served Feb. 1, 2022).  The Board held the first phase of the hearing on February 15 and 16, 2022.  Twelve panels including state senators and state representatives, local elected officials, passenger rail supporters, trade associations, shippers, and other interested parties spoke at the hearing.  See Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496, slip op. at 3-7 (STB served Feb. 11, 2022).  The final panel included responses from CSXT, NSR, the Alabama State Port Authority and its rail carrier division (collectively, the Port), and Amtrak.  See id., slip op. at 7.

The Board commenced the evidentiary hearing on April 4, 2022, involving Amtrak, CSXT, NSR, and the Port (collectively, the Parties).  The hearing continued on April 5, 6, 8, 12, 14, 18, and 19, and on May 9, 11, and 12.  See Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496, slip op. at 1-2 (STB served Oct. 28, 2022).  

In its October 28, 2022 decision, the Board announced that the evidentiary hearing phase of the proceeding will continue on November 17 and 18, 2022.  Id., slip op. at 1.  The hearing “will be limited to direct examination and cross-examination on the new evidence presented in the supplemental materials filed following the conclusion of the hearing on May 12, 2022, and to presenting closing arguments.”  Id., slip op. at 2.  The Board also announced that it will hold a voting conference on December 7, 2022, “at which Board members will discuss among themselves, and may vote on, the outcome of the case.”  Id.  The voting conference will be open for public observation, but no participation by the Parties or the public will be permitted.  Id.

On November 10, 2022, the Parties filed a joint motion to amend the procedural schedule, requesting that the Board postpone the evidentiary hearing dates to November 30 and December 1.  See Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496, slip op. at 1-2 (STB served Nov. 10, 2022).  In support of their request, the Parties submitted “a joint statement signed by the CEO of each Party attesting to the substantial progress that has been made toward a settlement agreement and to the substantial probability that a settlement will be reached before the voting conference scheduled for December 7.”  Id., slip op. at 2.

On November 10, 2022, the Board granted the Parties’ joint motion and postponed the hearing until November 30, 2022.  The Board directed the Parties to file a joint status report by November 21, 2022, stating whether a settlement agreement has been reached or whether a hearing and closing arguments are still necessary.  Id.  The Board noted that the voting conference will remain scheduled for December 7, “unless the Parties inform the Board that they have reached a settlement before that date.”  Id.

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