[Federal Register Volume 61, Number 222 (Friday, November 15, 1996)]
[Notices]
[Pages 58611-58613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29438]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Finance Docket No. 33220]
CSX Corporation and CSX Transportation, Inc.--Control and
Merger--Conrail Inc. and Consolidated Rail Corporation
AGENCY: Surface Transportation Board.
ACTION: Decision No. 3; notice of proposed procedural schedule.
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SUMMARY: The Board invites comments from interested persons on a
proposed procedural schedule.
DATES: Written comments on the proposed schedule must be filed with the
Board no later than December 6, 1996. Applicants' reply is due by
December 16, 1996.
ADDRESSES: An original and 25 copies of all documents must refer to STB
Finance Docket No. 33220 and must be sent to the Office of the
Secretary, Case Control Branch, ATTN: STB Finance Docket No. 33220,
Surface Transportation Board, 1201 Constitution Avenue, NW.,
Washington, DC 20423.\1\ In addition, one copy of all documents in this
proceeding must be sent to each of the applicants' representatives: (1)
Dennis G. Lyons, Esq., Arnold & Porter, 555 12th Street, NW.,
Washington, DC 20004-1202; and (2) Paul A. Cunningham, Esq., Harkins
Cunningham, Suite 600, 1300 Nineteenth Street, NW., Washington, DC
20036.
\1\ In addition to submitting an original and 25 copies of all
documents filed with the Board, the parties are encouraged to submit
all pleadings and attachments as computer data contained on a 3.5-
inch floppy diskette which is formatted for WordPerfect 5.1 (or
formatted so that it can be converted into WordPerfect 5.1) and is
clearly labeled with the identification acronym and number of the
pleading contained on the diskette [49 CFR 1180.4(2)]. The computer
data contained on the computer diskettes submitted will be subject
to the protective order entered in Decision No. 1, served on October
25, 1996, in this proceeding, and is for the exclusive use of Board
employees reviewing substantive matters in this proceeding. The
flexibility provided by such computer file data will facilitate
expedited review by the Board and its staff.
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FOR FURTHER INFORMATION CONTACT:
Julia M. Farr, (202) 927-5352. [TDD for the hearing impaired: (202)
927-5721.]
SUPPLEMENTARY INFORMATION: In Decision No. 2, served and published in
the Federal Register on November 15, 1996, the Board issued a notice to
the public that, pursuant to 49 CFR 1180.4(b), CSX Corporation (CSXC),
CSX Transportation, Inc. (CSXT), Conrail Inc. (CRI), and Consolidated
Rail Corporation (CRC) \2\ had filed on October 18, 1996, a notice of
their intent to file an application seeking authority under 49 U.S.C.
11323-25 for: (1) the acquisition of control of CRI by Green
Acquisition Corp. (Acquisition), a wholly owned subsidiary of CSXC; (2)
the merger of CRI into Acquisition; and (3) the resulting common
control of CSXT and CRI and CSXC. The Board found this to be a major
transaction as defined in 49 CFR part 1180. Applicants intend to file
their application on or before March 1, 1997.
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\2\ CSXC and CSXT are referred to collectively as CSX. CRI and
CRC are referred to collectively as Conrail. CSX and Conrail are
referred to collectively as ``applicants.''
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Applicants also filed on October 18, 1996, a petition to establish
a procedural schedule (CSX/CR-3). Applicants' proposed procedural
schedule is as follows:
Applicants' Proposed Procedural Schedule
F Primary application and related applications filed.
F+30 Board notice of acceptance of primary application and related
applications published in the Federal Register.
F+45 Notification of intent to participate in proceeding due.
F+60 Description of anticipated inconsistent and responsive
applications due; petitions for waiver or clarification due with
respect to such applications.
F+120 Inconsistent and responsive applications due. All comments,
protests, requests for conditions, and any other opposition evidence
and argument due. Comments by U.S. Department of Justice (DOJ) and U.S.
Department of Transportation (DOT) due.
F+135 Notice of acceptance (if required) of inconsistent and
responsive applications published in the Federal Register.
F+150 Response to inconsistent and responsive applications due.
Response to comments, protests, requested conditions, and other
opposition due. Rebuttal in support of primary application and related
applications due.
F+165 Rebuttal in support of inconsistent and responsive applications
due.
F+185 Briefs due, all parties (not to exceed 50 pages).
F+215 Oral argument (at Board's discretion).
F+217 Voting conference.
F+255 Date of service of final decision.
Under applicants' proposal, immediately upon each evidentiary
filing, the filing party shall place all documents relevant to the
filing (other than documents that are privileged or otherwise protected
from discovery) in a depository open to all parties, and shall make its
witnesses available for discovery depositions. Access to documents
subject to the protective order shall be appropriately restricted.
Parties seeking discovery depositions may proceed by agreement.
Relevant excerpts of transcripts will be received in lieu of cross-
examination, unless cross-examination is needed to resolve material
issues of disputed fact. Discovery on responsive and inconsistent
applications will begin immediately upon their filing. The
Administrative Law Judge assigned to this proceeding will have the
authority initially to resolve any discovery disputes.\3\
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\3\ As we stated in Decision No. 2, the process of assigning an
ALJ to this proceeding is underway, and we will leave all discovery
matters, including the adoption of any guidelines governing
discovery initially, to the discretion of the ALJ. A decision naming
that judge will be issued as soon as possible.
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The proposed schedule is substantially similar to that adopted in
Union Pacific Corporation, Union Pacific Railroad Company and Missouri
Pacific Railroad Company--Control and Merger--Southern Pacific Rail
Corporation, Southern Pacific Transportation Company, St. Louis
Southwestern Railway Company, SPCSL Corp., and The Denver and Rio
Grande Western Railway Company (UP/SP), Finance Docket No. 32760 (see
Decision No. 6, ICC served Oct. 19, 1995; and Decision No. 9, ICC
served Dec. 27, 1995).
Applicants' proposal is the first major consolidation transaction
presented to the Board under the ICC Termination Act of 1995, Pub. L.
104-88, 109 Stat. 803 (ICCTA), enacted December 29, 1995, and effective
January 1, 1996. The Board is seeking comments from the public on
applicants' proposed procedural schedule, as modified by us below to
adhere more closely to the provisions of ICCTA. In ICCTA,
[[Page 58612]]
Congress provided pursuant to 49 U.S.C. 11325(b) [emphasis added]:
(b) If the application involves the merger or control of two or
more Class I railroads, as defined by the Board, the following
conditions apply:
(1) Written comments about an application may be filed with the
Board within 45 days after notice of the application is published F
+ 75 days under subsection (a) \4\ of this section. Copies of such
comments shall be served on the Attorney General and the Secretary
of Transportation, who may decide to intervene as a party to the
proceeding. That decision must be made by the 15th day after the
date of receipt of the written comments, and if the decision is to
intervene, preliminary comments about the application must be sent
to the Board by the end of the 15th day after the date of receipt of
the written comments F + 90 days.
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\4\ Under 49 U.S.C. 11325(a), ``[t]he Board shall publish notice
of the application under section 11324 in the Federal Register by
the 30th day after the application is filed with the Board * * *.''
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(2) The Board shall require that applications inconsistent with
an application, notice of which was published under subsection (a)
of this section, and applications for inclusion in the transaction,
be filed with it by the 90th day after publication of notice F + 120
days under that subsection.
(3) The Board must conclude evidentiary proceedings by the end
of 1 year after the date of publication of notice under subsection
(a) of this section. The Board must issue a final decision by the
90th day after the date on which it concludes the evidentiary
proceedings.
Specifically, we propose to modify applicants' proposed schedule to
require parties intending to file comments, protests, requests for
conditions, and any other opposition evidence and argument to file
their submissions 75 days from the date the application is filed [F +
75] as provided for under 49 U.S.C. 11325(b)(1), with comments from the
U.S. Department of Justice (DOJ) and the U.S. Department of
Transportation (DOT) due 90 days from the date the application is filed
[F + 90 days] as provided for under 49 U.S.C. 11325(b)(1). If these due
dates were to be established for comments in this proceeding, responses
to comments, protests, requested conditions, and other opposition, and
also rebuttal in support of the primary application and related
applications would be due 30 days after the due date (i.e., on F + 105
for responses to commenters and parties other than DOJ and DOT; and on
day F + 120 for responses to DOJ and DOT). We propose to keep
inconsistent and responsive applications due 120 days from the date the
application is filed [F + 120 days] as provided for under 49 U.S.C.
11325(b)(2). Because there has not been a major merger in the East
since the early 1980s, given our merger experience, we believe it would
be prudent for us to factor in some additional time to accommodate
possible unique issues that may arise. We propose extending applicants'
proposed procedural schedule by 45 days allocated as follows: (1)
Adding 5 days to applicants' proposed period of time for parties to
prepare their briefs, so that briefs would be due on F + 190 days; (2)
adding 15 days to applicants' proposed period of time for parties to
prepare for oral argument, so that oral argument would occur on F + 235
days; (3) adding 3 days to applicants' proposed 2-day interval between
the oral argument and the voting conference, so that a voting
conference would occur on F + 240 days; and (4) adding 22 days to
applicants' proposed period of time after the voting conference for the
service of the Board's final decision on F + 300 days. In addition, we
propose requiring applicants to file an environmental report, including
all supporting documents, no later than 30 days prior to the filing of
the primary application.\5\
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\5\ While applicants need not file their actual operating plan
due at the time of the filing of their application, the supporting
documents must be completely consistent with their operating plan
and contain sufficient information to allow immediate initiation of
the environmental review process.
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Proposed Procedural Schedule as Modified by the Board
F-30 Environmental report, including all supporting documents due.
F Primary application and related applications filed.
F+30 Board notice of acceptance of primary application and related
applications published in the Federal Register.
F+45 Notification of intent to participate in proceeding due.
F+60 Description of anticipated inconsistent and responsive
applications due; petitions for waiver or clarification due with
respect to such applications.
F+75 All comments, protests, requests for conditions, and any other
opposition evidence and argument due.
F+90 Comments by U.S. Department of Justice (DOJ) and U.S. Department
of Transportation (DOT) due.
F+105 Responses to comments, protests, requested conditions, and other
opposition due. Rebuttal in support of primary application and related
applications due in response to filings on day F+75.
F+120 Inconsistent and responsive applications due. Rebuttal in
support of primary application and related applications due in response
to filings of DOJ and DOT on day F+90.
F+135 Notice of acceptance (if required) of inconsistent and
responsive applications published in the Federal Register.
F+150 Response to inconsistent and responsive applications due.
F+165 Rebuttal in support of inconsistent and responsive applications
due.
F+190 Briefs due, all parties (not to exceed 50 pages).
F+235 Oral argument (close of record).
F+240 Voting conference.
F+300 Date of service of final decision.
Applicants are proposing that any applications for authority for,
or for exemption of, merger-related abandonments, and any supporting
verified statements, be filed with the primary application, and be
treated as related applications, with any opposition evidence,
comments, rebuttal and briefing on those applications to be submitted
in accordance with the same schedule as the primary application. We
agree that we should process any merger-related abandonment
applications in accordance with the overall merger procedural schedule,
rather than applying the procedures found at 49 U.S.C. 10903, which is
similar to the process we used in the UP/SP proceeding. See UP/SP
(Decision No. 9) (ICC served Dec. 27, 1995), slip op. at 9-10.
Therefore, we will grant applicants' request for waiver under 49 CFR
1152.24(e)(5) to permit modifications of the procedures and timetables
prescribed in 49 CFR 1152.25(d) (6) and (7) to be consistent with the
procedural schedule subsequently adopted in this proposed merger
proceeding.\6\
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\6\ Applicants indicate that they intend to file shortly a
petition for waiver or clarification of Railroad Consolidation
Procedures, and related relief. As in UP/SP, applicants should also
seek an exemption under 49 U.S.C. 10502 from any statutory
procedural requirements at 49 U.S.C. 10903 necessary to allow the
Board to process the merger-related abandonment applications under
the procedural schedule ultimately adopted. See UP/SP (Decision No.
3) (ICC served Sept. 5, 1995), slip op at 7-10.
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We invite all interested persons to submit written comments on the
procedural schedule we are proposing here. Comments must be filed by
December 6, 1996. Applicants may reply by December 16, 1996.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
Decided: November 13, 1996.
[[Page 58613]]
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 96-29438 Filed 11-14-96; 8:45 am]
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