[Federal Register Volume 81, Number 91 (Wednesday, May 11, 2016)]
[Notices]
[Pages 29317-29318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11131]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Docket No. MCF 21066]
Rose Chauffeured Transportation, LTD--Acquisition of Control--My
Bus Division of Cherry Consulting of the Carolinas, Inc.
AGENCY: Surface Transportation Board.
ACTION: Notice tentatively approving and authorizing finance
transaction.
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SUMMARY: On April 11, 2016, Rose Chauffeured Transportation, Ltd.
(Rose), a noncarrier, filed an application under 49 U.S.C. 14303 so
that it can obtain approval for its acquisition of common control of
the MY Bus division of Cherry Consulting of the Carolinas, Inc.
(Cherry) pursuant to a July 21, 2015, Asset Purchase Agreement (APA)
between the parties. The Board is tentatively approving and authorizing
the transaction, and, if no opposing comments are timely filed, this
notice will be the final Board action. Persons wishing to oppose the
application must follow the rules at 49 CFR 1182.5 and 1182.8.
DATES: Comments must be filed by June 27, 2016. Rose may file a reply
by July 11, 2016. If no comments are filed by June 27, 2016, this
notice shall be effective on June 28, 2016.
ADDRESSES: Send an original and 10 copies of any comments referring to
Docket No. MCF 21066 to: Surface Transportation Board, 395 E Street
SW., Washington, DC 20423-0001. In addition, send one copy of comments
to Rose's representative: Robert Norris, Shumaker, Loop & Kendrick,
LLP, 101 S. Treyon Street, Suite 2200, Charlotte, NC 28280.
FOR FURTHER INFORMATION CONTACT: Jonathon Binet (202) 245-0368. Federal
Information Relay Service (FIRS) for the hearing impaired: 1-800-877-
8339.
SUPPLEMENTARY INFORMATION: Rose, a North Carolina corporation, holds
authority from the Federal Motor Carrier Safety Administration (FMCSA)
as a motor carrier providing chauffeur and charter bus transportation
services to the public in the states of North Carolina and South
Carolina (MC-323248). Rose states that it is privately held and owned
and managed by its president, H.A. Thompson, a resident of North
Carolina. According to Rose, it created Rose Charters, LLC (RC), a non-
carrier holding company, for the purpose of consummating the
transaction between Rose and Cherry. Rose states that RC, which is
managed by H.A. Thompson, does not have any operating assets or
interstate motor carrier authority.
Rose further states that Cherry, a North Carolina corporation,
provides consultation services related to interstate and intrastate
transportation. According to Rose, Cherry's MY Bus division owned two
buses that it used to provide passenger services to churches in and
around Charlotte, N.C. Rose states that the MY Bus division also
possessed a Department of Defense (DOD) identification code, which
allowed it to bid on DOD contracts. Cherry also holds authority from
the FMCSA as a motor carrier (MC-364041). Rose states that, since
entering into the APA, Cherry has ceased its activities as a motor
carrier and, thus, does not compete with Rose.
Rose seeks Board authority for its acquisition of certain of
Cherry's assets pursuant to the APA, which, as noted, was dated July
21, 2015.\1\ Specifically, Rose states that it acquired: (1) Two buses;
(2) DOT registration number 822939; (3) FMCSA license MD-364041; (4)
DOD identification code MYAJ; (5) the ``MY Bus'' name and all other
common law intellectual property rights related to MY Bus; (6) the
email address ``[email protected]''; and (7) the Web site addresses,
domains, telephone numbers, and fax numbers related to MY Bus.
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\1\ Rose states that, at the time they entered into the APA,
none of the parties were aware of the Board's jurisdiction over the
transaction. Rose now seeks retroactive, or nunc pro tunc, approval
of the transaction. The Board will tentatively approve and authorize
the transaction, but only as of the date of service of this
decision, and not retroactively. Absent any comments, this notice
shall be effective on June 28, 2016.
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Rose states that the purchase of assets only does not necessarily
trigger Board jurisdiction, but it argues that the Board has
jurisdiction here given that there is significant preservation of the
identity of Cherry's MY Bus division. We agree. See Cowan Transp.,
Inc.--Purchase Exemption--Bowman Int'l Domestic Transp., Inc., Docket
No. MCF 20144 et al. (ICC served Dec. 30, 1993) (agency authority
exists where there is preservation of the corporate identity of the
selling carrier coupled with the agreement that the selling carrier
will cease competitive operations).\2\
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\2\ We also note that, according to Rose, Cherry ``operated a
largely intrastate point-to-point and special party passenger
service to local churchgoers,'' but it also had interstate
operations due to ``its location in Charlotte, North Carolina, being
a few miles away from the South Carolina border, and the fact that
several churchgoers in Charlotte lived over the state border in
South Carolina.'' (Appl. 8) See 49 U.S.C. 13501 (the Board has
jurisdiction ``over transportation by motor carrier and the
procurement of that transportation, to the extent that passengers,
property, or both, are transported by motor carrier . . . between a
place in . . . a State and a place in another State.'').
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Under 49 U.S.C. 14303(b), the Board must approve and authorize a
transaction that it finds consistent with the public interest, taking
into consideration at least: (1) The effect of the proposed transaction
on the adequacy of transportation to the public; (2) the total fixed
charges that result; and (3) the interest of affected carrier
employees. Rose submitted information, as required by 49 CFR 1182.2,
including information to demonstrate that the proposed transaction is
consistent with the public interest under 49 U.S.C. 14303(b), and a
statement that the aggregate gross operating revenues of Rose and
Cherry exceeded $2 million for the preceding 12-month period. See 49
U.S.C. 14303(g).
Rose submits that the proposed transaction would have no
significant impact on the adequacy of transportation services to the
public. Rose states that it will be able to bid on and perform DOD
contracts that Cherry did not have the resources to handle. In fact,
Rose anticipates improved public service because Cherry had not bid on
or received any DOD contracts in the years prior to the transaction,
and Rose has bid on and performed several DOD contracts since the
transaction ``to the full satisfaction of all parties.'' (Appl. 7.)
Rose asserts there are no fixed charges associated with the
transaction or the proposed acquisition of control. Rose also states
that it does not anticipate a measurable reduction in force or changes
in compensation and benefits,
[[Page 29318]]
and states that Cherry has not terminated any employees since the
transaction was agreed upon in July 2015.
The Board finds that the acquisition described in the application
is consistent with the public interest and should be tentatively
approved and authorized. If any opposing comments are timely filed,
these findings will be deemed vacated, and, unless a final decision can
be made on the record as developed, a procedural schedule will be
adopted to reconsider the application. See 49 CFR 1182.6(c). If no
opposing comments are filed by the expiration of the comment period,
this notice will take effect automatically and will be the final Board
action.
Board decisions and notices are available on our Web site at
``WWW.STB.DOT.GOV''.
It is ordered:
1. The proposed transaction is approved and authorized, subject to
the filing of opposing comments.
2. If opposing comments are timely filed, the findings made in this
notice will be deemed vacated.
3. This notice will be effective June 28, 2016, unless opposing
comments are filed by June 27, 2016.
4. A copy of this notice will be served on: (1) The U.S. Department
of Transportation, Federal Motor Carrier Safety Administration, 1200
New Jersey Avenue SE., Washington, DC 20590; (2) the U.S. Department of
Justice, Antitrust Division, 10th Street & Pennsylvania Avenue NW.,
Washington, DC 20530; and (3) the U.S. Department of Transportation,
Office of the General Counsel, 1200 New Jersey Avenue SE., Washington,
DC 20590.
Decided: May 6, 2016.
By the Board, Chairman Elliott, Vice Chairman Miller, and
Commissioner Begeman.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2016-11131 Filed 5-10-16; 8:45 am]
BILLING CODE 4915-01-P