[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Notices]
[Pages 19390-19393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10337]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board
[STB Finance Docket No. 33388]


CSX Corporation and CSX Transportation, Inc., Norfolk Southern 
Corporation and Norfolk Southern Railway Company--Control and Operating 
Leases/Agreements-- Conrail Inc. and Consolidated Rail Corporation

AGENCY: Surface Transportation Board, DOT.

ACTION: Decision No. 2; Notice of prefiling notification and request 
for comments.

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SUMMARY: Pursuant to 49 CFR 1180.4(b), CSX Corporation (CSXC), CSX 
Transportation, Inc. (CSXT), Norfolk Southern Corporation (NSC), 
Norfolk Southern Railway Company (NSR), Conrail Inc. (CRI), and 
Consolidated Rail Corporation (CRC) 1 have notified the Surface 
Transportation Board (Board) of their intent to file a joint 
application seeking authority under 49 U.S.C. 11323-25 for: (1) The 
acquisition of control, by CSX and NS, of CRI, which is to be jointly 
owned by CSXC and NSC, by and through a special purpose limited 
liability company (LLC) and LLC's wholly owned subsidiary, Green 
Acquisition Corporation (Acquisition); and (2) as soon as practicable 
after the authorization and exercise of such control, the division of 
Conrail's assets into (a) certain assets which will continue to be held 
by CRI and CRC or their subsidiaries and operated for Conrail's account 
and that

[[Page 19391]]

of its stockholders; (b) certain assets which will be the subject of 
separate long-term operating agreements, operating leases or other 
operating arrangements with CSX and NS, respectively; and (c) certain 
assets which will be separately owned by CSX and NS. In addition, as 
part of the overall transaction, NSR will sell to CSXT a line of 
railroad formerly owned by Conrail and now owned by NSR.
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    \1\ CSXC and CSXT are referred to collectively as CSX. NSC and 
NSR are referred to collectively as NS. CRI and CRC are referred to 
collectively as Conrail. CSX, NS, and Conrail are referred to 
collectively as applicants.
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    The Board finds this to be a major transaction as defined in 49 CFR 
part 1180. As requested by applicants, the Board also waives the 
minimum 3-month prefiling notification requirement of 49 CFR 
1180.4(b)(1), and invites comments from interested persons on 
applicants' proposed procedural schedule.

DATES: Written comments on applicants' proposed schedule must be filed 
with the Board no later than May 1, 1997. Applicants' reply is due by 
May 8, 1997.

ADDRESSES: An original and 25 copies of all documents must refer to STB 
Finance Docket No. 33388 and must be sent to the Office of the 
Secretary, Case Control Unit, ATTN: STB Finance Docket No. 33388, 
Surface Transportation Board, 1925 K Street, N.W., Washington, DC 
20423-0001.2 In addition, one copy of all documents in this 
proceeding must be sent to Administrative Law Judge Jacob Leventhal, 
Federal Energy Regulatory Commission, 888 First Street, N.E., Suite 
11F, Washington, DC 20426 [(202) 219-2538; FAX: (202) 219-3289] and to 
each of applicants' representatives: (1) Dennis G. Lyons, Esq., Arnold 
& Porter, 555 12th Street, N.W., Washington, DC 20004-1202; (2) Richard 
A. Allen, Esq., Zuckert, Scoutt & Rasenberger, L.L.P., 888 Seventeenth 
Street, N.W., Washington, DC 20006-3939; and (3) Paul A. Cunningham, 
Esq., Harkins Cunningham, Suite 600, 1300 Nineteenth Street, N.W., 
Washington, DC 20036.
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    \2\ 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 7.0 (or 
formatted so that it can be converted into WordPerfect 7.0) 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 granted in Decision No. 1, served on April 
16, 1997, 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.

FOR FURTHER INFORMATION CONTACT: Julia M. Farr, (202) 565-1613. [TDD 
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for the hearing impaired: (202) 565-1695.]

SUPPLEMENTARY INFORMATION: In the notice of intent (CSX/NS-1) filed 
April 10, 1997, applicants state that CSX and NS will participate 
jointly in the acquisition of CRI consistent with CSX's and CRI's 
October 14, 1996 Merger Agreement, as amended through and including a 
Fourth Amendment dated April 8, 1997, and under agreements made between 
CSX and NS. CSX and NS jointly, through LLC and Acquisition, will 
acquire all CRI shares not already held by voting trusts of which CSX 
and NS are beneficiaries, through a tender offer to be followed by the 
merger of CRI with a subsidiary of Acquisition. The shares of CRI as 
acquired will be placed in a voting trust subject to the Board's 
regulations at 49 CFR part 1013.
    Once the CRI stock has been acquired, and contingent on and 
following the Board's authorization and approval of control and the 
other contemplated transactions, CSX and NS will assume control of 
Conrail and, as soon as practicable thereafter, will cause Conrail to 
be restructured into (a) certain assets and functions that will 
continue to be operated and performed by Conrail for its own account 
but for the benefit of NS and CSX, (b) certain fixed assets, to be 
owned by Conrail or subsidiaries, which will be the subject of separate 
long-term operating agreements, operating leases, or other arrangements 
with CSX and NS, respectively, and (c) certain other assets of Conrail 
which will be divided between CSX and NS and acquired and operated by 
them. The surviving company will own and operate, directly or through 
subsidiaries, among other things, certain track and other fixed rail 
assets in the New York/New Jersey area, the Philadelphia, PA/South New 
Jersey area and the Detroit, MI, area. Both CSX and NS will serve 
shippers on the former Monongahela Railroad.
    The subjects of the operating agreement or operating lease with CSX 
will include, among other things, a north-south route between the New 
York area and Philadelphia and a route from the New York area through 
Albany, NY, Buffalo, NY, and Cleveland, OH, to St. Louis, MO. The 
subjects of the operating agreement or operating lease with NS will 
include, among other things, north-south routes from the New York area 
to Washington, DC, and to Hagerstown, MD, a route westward from 
Philadelphia, and a route westward from the New York area to Buffalo.
    As part of the contemplated transaction, NSR will transfer to CSXT 
its line of railroad (formerly a Conrail line) between Ft. Wayne, IN, 
and the Chicago, IL, metropolitan area.
    Applicants state that they will use the year 1995 as the base year 
for purposes of their impact analysis to be filed in the application, 
and that they anticipate filing their application on or before July 10, 
1997.3
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    \3\ Applicants propose to submit their primary application 
approximately 2 months from the date of filing of their Notice of 
Intent if the prefiling requirement is waived. As discussed below, 
we will grant applicants' petition for waiver of the prefiling 
requirement of 49 CFR 1180.4(b) and permit filing of the application 
sooner than 3 months after the filing of the Notice of Intent.
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    The Board finds that this is a major transaction, as defined at 49 
CFR 1180.2(a), as it is a control transaction involving two or more 
Class I railroads. The application must conform to the regulations set 
forth at 49 CFR part 1180 and must contain all information required 
therein for major transactions, except as modified by any advance 
waiver.4 The carriers are also required to submit maps with 
overlays that show their existing routes and those of their 
competitors.
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    \4\ The ICC Termination Act of 1995, Pub. L. No. 104-88, 109 
Stat. 803, requires that we consider the effect of the proposed 
transaction ``on competition among rail carriers in the affected 
region or in the national rail system.'' 49 U.S.C. 11324(b)(5). 
Applicants are reminded to include analysis on both elements of this 
criterion in their competitive analyses.
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Petition for Waiver

    By petition filed April 10, 1997 (CSX/NS-2), applicants request 
that the Board waive the requirements of 49 CFR 1180.4(b)(1) so that 
they need not wait 3 months before filing their proposed primary 
application. Applicants propose to submit their primary application 
approximately 2 months from the date of filing of their Notice of 
Intent. Applicants contend that the public has been afforded sufficient 
notice of the proposed control proceeding. According to applicants, the 
Notice of Intent that CSX filed on October 18, 1996, regarding a 
proposed merger with Conrail, the Notice of Intent that NS filed on 
November 6, 1996, regarding a competing proposed merger with Conrail, 
and the substantial and continuous media coverage of the proposed 
acquisition of Conrail and the negotiations leading to the current 
agreement assure that the Board and all interested parties and members 
of the public have had notice that an application will be filed, as 
well as of the nature of the proposed transaction.
    On April 16, 1997, Canadian National Railway Company (CN) filed 
(CN-4) a response in opposition to applicants' CSX/NS-2 petition for 
waiver.5 First,

[[Page 19392]]

CN argues that ``any waiver of the 3-month notice requirement would cut 
into time needed by the Board and all parties to deal with a 
transaction of the size and scope proposed in this proceeding.'' 
Second, CN argues that, ``if there is to be any expedition, it is 
better that it come during the period when the application is being 
prepared rather than during the period when the application is being 
analyzed, responded to and acted upon by the agency with responsibility 
to decide this matter.'' Accordingly, CN argues that any waiver of the 
prefiling notification should not set a precedent for truncating the 
365-day procedural schedule adopted earlier by the Board for 
considering a proposed Conrail merger, and that the final procedural 
schedule should take into account any shortening of the 3-month notice 
requirement that may have been granted. Finally, CN argues that a 
complete and open-ended waiver is inappropriate and prejudicial to all 
other parties because it would create uncertainty for the Board and for 
other parties, who could be faced with a ``surprise'' filing in 5 or 6 
weeks.
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    \5\ Our merger rules specifically do not allow replies to 
petitions for waiver. See 49 CFR 1180.4(f)(3). Under the 
circumstances, however, we will accept the CN-4 pleading.
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    We believe that the public has been afforded sufficient notice of 
the proposed control proceeding, and we disagree that a waiver of the 
prefiling notice requirement would create uncertainty or be prejudicial 
to any party. Parties will be given an opportunity to comment on 
applicants' proposed expedited procedural schedule, and these comments 
will be considered by the Board in determining a fair and reasonable 
final procedural schedule. We find that waiver of the prefiling 
requirement set forth at 49 CFR 1180.4(b)(1) is appropriate, and 
therefore grant applicants' CSX/NS-2 petition.

Petition for Protective Order

    By petition also filed April 10, 1997 (CSX/NS-3), applicants 
requested a protective order to protect confidential, highly 
confidential, and proprietary information, including contract terms, 
shipper-specific traffic data, and other traffic data to be submitted 
in connection with the control application. In Decision No. 1, served 
April 16, 1997, applicants' petition for a protective order was granted 
and Administrative Law Judge Jacob Leventhal was assigned to handle all 
discovery matters and the initial resolution of all discovery disputes 
in this proceeding.6
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    \6\ CN filed a reply that was received by the Board after 
issuance of Decision No. 1.
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Petition to Establish a Procedural Schedule

    Also on April 10, 1997, applicants filed a petition to establish a 
proposed procedural schedule (CSX/NS-4). Applicants' proposed 
procedural schedule is as follows:

Proposed Procedural Schedule

    F-30  Preliminary Environmental Report provided to Section of 
Environmental Analysis.
    F  Primary application (including the Environmental Report) and 
related applications filed.
    F+30  Board notice of acceptance of primary application and related 
applications, [petitions, and notices] published in the Federal 
Register, including notice of any transaction-related abandonment 
proposals.
    F+45  Notification of intent to participate in proceeding due, 
including notice of intent to participate in abandonment proceedings.
    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 arguments due. Comments by U.S. Department of Justice (DOJ) and 
U.S. Department of Transportation (DOT) due. Opposition submissions, 
requests for public use conditions, and Trails Act requests due for all 
transaction-related abandonment proposals.
    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. Rebuttal [and] responses to requests for public use 
and Trails Act conditions for transaction-related abandonments due.
    F+165  Rebuttal in support of inconsistent and responsive 
applications due.
    F+185  Briefs due, all parties (not to exceed 50 pages), except 
that CSX and NS may file separate briefs, each not to exceed 50 pages.
    F+200  Oral argument (at Board's discretion).
    F+205  Voting conference.
    F+255  Date of service of final decision.
    Under applicants' proposal, immediately upon each evidentiary 
filing, the filing party will 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 (except that CSX 
and NS may maintain separate depositories), and will make its witnesses 
available for discovery depositions. Access to documents subject to 
protective order will 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.
    Applicants also request that, as in recent merger proceedings, the 
Board indicate that it will require appeals of ALJ decisions to be 
filed within 3 working days and responses to appeals or to any 
procedural motion filed with the Board also to be filed within 3 
working days.
    Applicants' 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 are proposing that any applications, petitions, or 
notices 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 proceedings in accordance with the overall merger 
procedural schedule, rather than applying the procedures found at 49 
U.S.C. 10903-04, 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

[[Page 19393]]

applicants' request for waiver under 49 CFR 1152.24(e)(5) to permit 
modifications of the procedures and timetables for handling abandonment 
applications prescribed in 49 CFR 1152.26 7 to be consistent with 
the procedural schedule subsequently adopted in this proposed merger 
proceeding.8
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    \7\ Applicants' CSX/NS-4 petition sought waiver of the Board's 
rules to permit ``departures from the procedures and timetables 
prescribed in 49 [CFR] 1152.25(d) (6) and (7).'' Those references 
are to rules no longer in effect.
     8  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. 10903-04 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 
applicants' proposed procedural schedule. Comments must be filed by May 
1, 1997. Applicants' reply is due by May 8, 1997.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    Decided: April 16, 1997.

    By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 97-10337 Filed 4-18-97; 8:45 am]
BILLING CODE 4915-00-P