[Federal Register Volume 62, Number 141 (Wednesday, July 23, 1997)]
[Notices]
[Pages 39577-39591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19372]
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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. 12; Notice of Acceptance of Primary Application
and Related Filings; Notice of Related Abandonments Proposed By
Applicants.1
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\1\ This decision covers: (i) the primary application, which was
filed in the STB Finance Docket No. 33388 lead docket; and (ii) the
39 related filings (1 application, 16 petitions, and 22 notices),
which were filed in the 40 embraced dockets listed in Appendix A
(one related filing, respecting the proposed abandonment in Edgar
and Vermilion Counties, IL, was filed in two dockets).
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SUMMARY: The Board is accepting for consideration the primary
application and related filings filed June 23, 1997, by CSX Corporation
(CSXC), CSX Transportation, Inc. (CSXT), Norfolk Southern Corporation
(NSC), Norfolk Southern Railway Company (NSR), Conrail Inc. (CRR), and
Consolidated Rail Corporation (CRC).2 The primary
application seeks Board approval and authorization under 49 U.S.C.
11321-25 for: (1) the acquisition by CSX and NS of control of Conrail;
and (2) the division of the assets of Conrail by and between CSX and
NS. The related filings, which include (among other things) two
abandonment petitions and three abandonment notices, seek related
relief contingent upon approval of the primary application.
\2\ CSXC and CSXT, and their wholly owned subsidiaries, are
referred to collectively as CSX. NSC and NSR, and their wholly owned
subsidiaries, are referred to collectively as NS. CRR and CRC, and
their wholly owned subsidiaries, are referred to collectively as
Conrail. CSX, NS, and Conrail are referred to collectively as
applicants.
DATES: The effective date of this decision is July 23, 1997. Any person
who wishes to participate in this proceeding as a party of record must
file, no later than August 7, 1997, a notice of intent to participate.
Descriptions of responsive (including inconsistent) applications, and
petitions for waiver or clarification regarding those applications,
must be filed by August 22, 1997. Responsive (including inconsistent)
applications, written comments (including comments of the U.S.
Secretary of Transportation and the U.S. Attorney General), protests,
requests for conditions, and any other opposition evidence and argument
must be filed by October 21, 1997. For further information respecting
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dates, see Appendix B.
ADDRESSES: An original and 25 copies of all documents must be sent to
the Surface Transportation Board, Office of the Secretary, Case Control
Unit, ATTN.: STB Finance Docket No. 33388, 1925 K Street, N.W.,
Washington, DC 20423-0001.3
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\3\ In order for a document to be considered a formal filing,
the Board must receive an original and 25 copies of the document,
which must show that it has been properly served. Documents
transmitted by facsimile (FAX) will not be considered formal filings
and are not encouraged because they will result in unnecessarily
burdensome, duplicative processing in what we expect to become a
voluminous record.
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In addition to submitting an original and 25 paper copies of each
document filed with the Board, parties are also requested to submit one
electronic copy of each such document. Further details respecting such
electronic submissions are provided below.
Furthermore, one copy of each document filed 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., Suite 600, 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.
FOR FURTHER INFORMATION CONTACT: Julia M. Farr, (202) 565-1613. [TDD
for the hearing impaired: (202) 565-1695.]
SUPPLEMENTARY INFORMATION: The transaction for which approval is sought
in the primary application involves: the purchase by CSX and NS, by and
through their subsidiaries, of all of the stock of CRR; the operation
or use of some of Conrail's lines and assets by CSX and NS separately;
and the operation or use of the remainder of Conrail's lines and assets
by CSX and NS jointly.
The Applicants
CSX operates approximately 18,504 route miles and 31,961 track
miles of railroad in 20 states east of the Mississippi River and in
Ontario, Canada. Of that total, approximately 1,607 miles are operated
under trackage rights while the remaining mileage is either owned by
CSX or operated by CSX under contract or lease. CSX has principal
routes to, and serves, virtually every major metropolitan area east of
the Mississippi River, from Chicago, IL, St. Louis, MO, Memphis, TN,
and New Orleans, LA, on the West to Miami, FL, Jacksonville, FL,
Charleston, SC, Norfolk, VA, Washington, D.C., and Philadelphia, PA, on
the East. Other major metropolitan areas served by CSX include Atlanta,
GA, Nashville, TN, Cincinnati, OH, Detroit, MI, Pittsburgh, PA,
Baltimore, MD, Charlotte, NC, Birmingham, AL, and Louisville, KY. CSX
interchanges traffic with other railroads at virtually all of the
aforementioned locations and at numerous other points on its railroad
system.
NS operates approximately 14,282 route miles and 25,236 track miles
of railroad in 20 states, primarily in the South and the Midwest, and
in Ontario, Canada. Of that total, approximately 1,520 miles are
operated under trackage rights while the remaining mileage is either
owned by NS or operated by NS under contract or lease. NS has routes
to, and serves, virtually every major market in an area that stretches
from Kansas City, MO, in the Midwest to Norfolk, VA, in the East, to
Chicago, IL, and Buffalo, NY, in the North, and to New Orleans, LA, and
Jacksonville, FL, in the South. These markets include Memphis,
Chattanooga and Knoxville, TN; St. Louis, MO; Fort Wayne, IN; Detroit,
MI; Toledo, Cincinnati, Columbus, and Cleveland, OH; Louisville and
Lexington, KY; Bluefield, WV; Alexandria, Roanoke, Lynchburg, and
Richmond, VA; Winston-Salem, Raleigh, Durham, Charlotte, and Morehead
City, NC; Greenville, Spartanburg, Columbia, and Charleston, SC;
Atlanta, Macon, Valdosta, and Savannah, GA; Bessemer, Birmingham,
Montgomery, and Mobile, AL; Des Moines, IA; and Peoria, Springfield,
and Decatur, IL. NS interchanges traffic with other railroads at
virtually all of the locations mentioned above and at numerous other
locations on its railroad system.
Conrail operates approximately 10,500 miles of railroad in the
Northeast and Midwest, and its primary network
[[Page 39578]]
forms an ``X'' connecting Chicago (via the Chicago Line) and East St.
Louis (via the St. Louis and Indianapolis Lines) in the West, with
Boston, MA, New York, NY, and Northern New Jersey (via the Chicago Line
and other main lines), and with Pittsburgh, Harrisburg, PA,
Philadelphia, Baltimore, and Washington, DC (via the Pittsburgh Line
and other main lines) in the East. The ``hub'' of the ``X'' is located
in, and about, Cleveland, OH.
Conrail's Chicago Line extends between Chicago and the Albany, NY,
area and connects there (through the Selkirk Branch) with the River
Line (serving North Jersey via the west shore of the Hudson River), the
Hudson Line (through which Conrail reaches New York City and Long
Island), and the Boston Line (which extends to Boston and via which
Conrail serves New England). Other important routes contiguous to the
Chicago Line include the Detroit Line (between Detroit and a connection
with the Chicago Line at Toledo), the Michigan Line (the portion
between Detroit and Kalamazoo), and the Kalamazoo Secondary and Branch
(between Kalamazoo, MI, and Elkhart, IN, on the Chicago Line), the
Montreal Secondary (between Syracuse, NY, and Adirondack Junction,
Quebec), and the Southern Tier (between Buffalo, NY, and Croxton, NJ).
Conrail's St. Louis Line extends between East St. Louis, IL, and
Indianapolis, IN, connecting there with the Indianapolis Line which, in
turn, extends between Indianapolis and the Cleveland area (connection
with the Chicago Line). Conrail's Cincinnati Line (between Cincinnati
and Columbus, OH) and its Columbus Line (between Columbus and Galion,
OH, on the Indianapolis Line) and the Scottslawn Secondary Track
(between Columbus and Ridgeway, OH, on the Indianapolis Line) all
accommodate traffic flows between other parts of the Conrail system and
Cincinnati, Columbus and/or Conrail points served via the West Virginia
Secondary Track between Columbus and the Kanawha Valley of West
Virginia.
Conrail's principal interchange points are in Chicago, East St.
Louis and Salem, IL, via Union Pacific Railroad Company (UPRR) trackage
rights between Salem and St. Elmo on the St. Louis Line; Streator, IL;
Cincinnati; Hagerstown, MD; and Washington, D.C. Other important
interchange points include Effingham, IL; Fort Wayne, IN; Toledo and
Columbus, OH; Buffalo and Niagara Falls, NY; Montreal, Quebec;
Rotterdam Junction, NY; and Worcester (including Barbers), MA.
The Proposed Transaction
The transaction for which approval is sought in the primary
application involves the joint acquisition of control by CSX and NS of
CRR and its subsidiaries (the Control Transaction), and the division
between CSX and NS of the operation and use of Conrail's assets (the
Division). The Control Transaction and the Division are governed
principally by an agreement (the Transaction Agreement) dated as of
June 10, 1997, between CSXC, CSXT, NSC, NSR, CRR, CRC, and CRR Holdings
LLC (CRR Holdings, a recently created limited liability company jointly
owned by CSXC and NSC). See CSX/NS-25, Volumes 8B & 8C (the Transaction
Agreement, including various schedules and exhibits). The Control
Transaction and the Division are also governed by a letter agreement
(the CSX/NS Letter Agreement) dated as of April 8, 1997, between CSXC
and NSC, but only to the extent such CSX/NS Letter Agreement has not
been superseded either by the Transaction Agreement or by the agreement
(the CRR Holdings Agreement) that governs CRR Holdings. See CSX/NS-25,
Volume 8A at 350-99 (the CSX/NS Letter Agreement) and at 400-36 (the
CRR Holdings Agreement).
Acquisition of Control of Conrail
CSX and NS have already acquired 100% of the common stock of CRR in
a series of transactions that included a CSX tender offer that was
consummated on November 20, 1996, a NS tender offer that was
consummated on February 4, 1997, a joint CSX/NS tender offer that was
consummated on May 23, 1997, and a merger that was consummated on June
2, 1997. In the aftermath of this series of transactions: CRC remains a
direct wholly owned subsidiary of CRR; CRR has become a direct wholly
owned subsidiary of Green Acquisition Corp. (Tender Sub); Tender Sub is
now a direct wholly owned subsidiary of CRR Holdings; and CRR Holdings
is jointly owned by CSXC and NSC (CSXC holds a direct 50% voting
interest and a 42% equity interest in CRR Holdings; NSC holds a direct
50% voting interest and a 58% equity interest in CRR Holdings). The
merger that was consummated on June 2, 1997 (the Merger), involved the
merger of Green Merger Corp. (Merger Sub, a direct wholly owned
subsidiary of Tender Sub) into CRR, with CRR being the surviving
corporation; and, in connection with the Merger: (i) Each remaining
outstanding share of CRR common stock not held by CSX, NS, or their
affiliates was converted into the right to receive $115 in cash,
without interest; and (ii) the shares of Merger Sub, all of which were
then owned by Tender Sub, were converted into 100 newly issued shares
of CRR, all of which were placed into a voting trust (the CSX/NS Voting
Trust) to prevent CSXC and NSC, and their respective affiliates, from
exercising control of CRC and its carrier subsidiaries pending review
by the Board of the primary application. See CSX/NS-25, Volume 8A at
323-49 (the agreement that governs the CSX/NS Voting Trust).
At the present time, the affairs of CRR and CRC are under the
control of their independent boards of directors. The Transaction
Agreement provides that, following the effective date of the Board's
approval of the primary application (the Control Date), CRR and CRC
will each be managed by a board of directors consisting of six
directors divided into two classes, each class having three directors.
On each board, CSXC will have the right to designate three directors
and NSC will likewise have the right to designate three directors; and
actions that require the approval of either board will require approval
both by a majority of the directors on that board designated by CSX and
by a majority of the directors on that board designated by NS.
Division of Conrail
The Transaction Agreement provides that, if the primary application
is approved, the division of the operation and use of Conrail's assets
will be effected on the Closing Date, which is defined as the third
business day following the date on which certain conditions precedent
(including the effectiveness of a final Board order and, where
necessary, sufficient labor implementing agreements) shall have been
satisfied or waived, or such other date as may be agreed upon. See CSX/
NS-18 at 11; CSX/NS-25, Volume 8B at 45. It is anticipated that, during
the period beginning on the Control Date and ending on the Closing
Date, CSX and NS will exercise joint control of Conrail as a separately
functioning rail system.
Formation of NYC and PRR
To effect the Division, CRC will form two wholly owned subsidiaries
(referred to collectively as the Subsidiaries): New York Central Lines
LLC (NYC) and Pennsylvania Lines LLC (PRR). CSXC will have exclusive
authority to appoint the officers and directors of NYC; NSC will
likewise have exclusive authority to appoint the officers and directors
of PRR; and CRC, as the sole member of the Subsidiaries, will (with
certain exceptions) follow CSXC's and NSC's
[[Page 39579]]
directions with respect to the management and operation of NYC and PRR,
respectively.
Allocation of Conrail Assets and Liabilities
On the date of the Division, CRC will assign to NYC and PRR certain
of CRC's assets. NYC will be assigned those CRC assets designated to be
operated as part of CSX's rail system (the NYC-Allocated Assets), and
PRR will be assigned those CRC assets designated to be operated as part
of NS's rail system (the PRR-Allocated Assets). These assets will
include, among other things, certain lines and facilities currently
operated by CRC, whether owned by CRC or operated by CRC under trackage
rights. Certain additional assets (referred to as the Retained Assets)
will continue to be held by CRR and CRC (or their subsidiaries other
than NYC and PRR) and will be operated by them for the benefit of CSX
and NS. In addition, on the date of the Division: the former Conrail
line now owned by NS that runs from Fort Wayne, IN, to Chicago, IL (the
Fort Wayne Line), will be transferred to CRC in a like-kind exchange
for CRC's Chicago South/Illinois Lines (the Streator Line); and CRC
will assign the Fort Wayne line to NYC, to be operated together with
the other Conrail lines to be assigned to NYC and used by CSX as part
of CSX's rail system.
Assets Allocated to NYC. The NYC-Allocated Assets will include the
following primary routes currently operated by Conrail (routes over
which Conrail operates pursuant to trackage rights are designated
``TR''):
(1) NY/NJ Area to Cleveland (New York Central Railroad route),
including: (a) Line segments from North NJ Terminal to Albany
(Selkirk), (b) Albany to Poughkeepsie, NY, (c) Poughkeepsie to New York
City (TR), (d) New York City to White Plains (TR), (e) Albany to
Cleveland via Syracuse, Buffalo and Ashtabula, OH, (f) Boston to
Albany, (g) Syracuse to Adirondack Jct., PQ, (h) Adirondack Jct. to
Montreal (TR), (i) Woodard, NY, to Oswego, NY, (j) Syracuse to Hawk,
NY, (k) Hawk to Port of Oswego (TR), (l) Buffalo Terminal to Niagara
Falls/Lockport, (m) Lockport to West Somerset (TR), (n) Syracuse to
NYSW/FL connections, NY, (o) Albany/Boston Line to Massachusetts branch
lines, (p) Albany/Boston Line to Massachusetts branch lines (TR), (q)
New York City to Connecticut branch lines (TR), (r) Connecticut branch
lines (TR), (s) Connecticut Branch lines, (t) Churchville, NY, to
Wayneport, NY, (u) Mortimer, NY, to Avon, NY, and (v) Rochester Branch,
NY;
(2) Crestline, OH, to Chicago (Pennsylvania Railroad route),
including: (a) Crestline to Dunkirk, OH, (b) Dunkirk to Ft. Wayne, IN,
(c) Ft. Wayne to Warsaw, IN, (d) Warsaw to Chicago Terminal (Clarke
Jct.), IN, and (e) Adams, IN, to Decatur, IN;
(3) Berea to E. St. Louis, including: (a) Cleveland Terminal to
Crestline, (b) Crestline to E. St. Louis via Galion, OH, Ridgeway, OH,
Indianapolis, IN, Terre Haute, IN, Effingham, IL, and St. Elmo, IL, (c)
Anderson, IN, to Emporia, IN, (d) Columbus to Galion, (e) Terre Haute
to Danville, IL, (f) Danville to Olin, IN, (g) Indianapolis to Rock
Island, IN, (h) Indianapolis to Crawfordsville, (i) Indianapolis to
Shelbyville, IN, (j) HN Cabin, IL, to Valley Jct., IL, (k) St. Elmo to
Salem, IL (TR), (l) Muncie (Walnut Street), IN, to New Castle RT, IN
(TR), and (m) New Castle RT, IN;
(4) Columbus to Toledo, including: (a) Columbus to Toledo via
Ridgeway, (b) Toledo Terminal to Woodville, and (c) Toledo Terminal to
Stonyridge, OH;
(5) Bowie to Woodzell, MD, including: (a) Bowie to Morgantown, and
(b) Brandywine to Chalk Point;
(6) NY/NJ to Philadelphia (West Trenton Line), including:
Philadelphia to North NJ Terminal;
(7) Washington, D.C., to Landover, MD;
(8) Quakertown Branch, line segment from Philadelphia Terminal to
Quakertown, PA (TR), and
(9) Chicago Area, line segment from Porter, IN, to the westernmost
point of Conrail ownership in Indiana.
Along with these lines, CSXT will operate certain yards and shops,
as well as the Conrail Philadelphia Headquarters and Philadelphia area
information technology facilities.
Assets Allocated to PRR. The PRR-Allocated Assets will include the
following primary routes currently operated by Conrail (routes over
which Conrail operates pursuant to trackage rights are designated
``TR''):
(1) NJ Terminal to Crestline (Pennsylvania Railroad route),
including: (a) North NJ Terminal to Allentown, PA, via Somerville, NJ,
(b) Little Falls, NJ, to Dover, NJ (TR), (c) Orange, NJ, to Denville,
NJ (TR), (d) Dover to Rockport (TR), (e) Rockport to E. Stroudsburg via
Phillipsburg, NJ, (f) Allentown Terminal, (g) Orange to NJ Terminal
(TR), (h) NJ Terminal to Little Falls (TR), (i) Bound Brook to Ludlow,
NJ (TR), (j) Allentown, PA, to Harrisburg via Reading, (k) Harrisburg
Terminal, (l) Harrisburg to Pittsburgh, (m) Conemaugh Line via
Saltsburg, PA, (n) Pittsburgh to W. Brownsville, PA, (o) Central City,
PA, to South Fork, PA, (p) Pittsburgh Terminal, (q) Monongahela, PA, to
Marianna, PA, (r) Pittsburgh to Alliance, OH, via Salem, (s) Beaver
Falls, PA, to Wampum, PA, (t) Alliance to Cleveland Terminal, (u)
Mantua, OH, to Cleveland Terminal, (v) Alliance to Crestline, (w)
Alliance to Omal, OH, (x) Rochester, PA, to Yellow Creek, OH, (y) E.
Steubenville, WV, to Weirton, WV, (z) Steubenville Branches Bridge, OH,
(aa) Pittsburgh Branches, (bb) Ashtabula to Youngstown, OH, (cc)
Ashtabula Harbor to Ashtabula, (dd) Niles, OH, to Latimer, OH, (ee)
Alliance, OH, to Youngstown, (ff) Youngstown to Rochester, (gg)
Allentown to Hazelton, PA, (hh) CP Harris, PA, to Cloe, PA (TR), (ii)
Cloe to Shelocta, PA, (jj) Tyrone, PA, to Lock Haven, PA (TR), (kk)
Creekside, PA, to Homer City, PA, (ll) Monongahela Railroad, (mm)
portion of Kinsman Connection in Cleveland, (nn) portion of 44 Ind.
Track including: Dock 20 Lead, and (oo) Gem Ind. Track-Lordstown, OH;
(2) Cleveland to Chicago (New York Central Railroad route),
including: (a) Cleveland Terminal to Toledo Terminal, (b) Elyria, OH,
to Lorain, OH, (c) Toledo Terminal to Sylvania, OH, (d) Toledo Terminal
to Goshen, IN, (e) Elkhart, IN, to Goshen, and (f) Elkhart to Porter,
IN;
(3) Philadelphia to Washington (Amtrak's Northeast Corridor,
referred to as NEC), including: (a) Philadelphia Terminal to
Perryville, MD (TR), (b) Wilmington Terminal, DE, (c) Perryville to
Baltimore (TR), (d) Baltimore Terminal, (e) Baltimore Bay View to
Landover, MD (TR), (f) Baltimore to Cockeysville, MD, (g) Pocomoke, MD,
to New Castle Jct., DE, (h) Harrington, DE, to Frankford/Indian River,
DE, (i) Newark, DE, to Porter, DE, (j) Claremont R.T., (k) Loneys Lane
Lead, and (l) Grays Yard (TR);
(4) Michigan Operations (excluding the Detroit Shared Assets Area),
including: (a) Toledo Terminal to Detroit Terminal, (b) Detroit
Terminal to Jackson, MI, (c) Jackson to Kalamazoo, MI, (d) Kalamazoo to
Elkhart, IN, (e) Jackson to Lansing, MI, (f) Kalamazoo to Grand Rapids,
(g) Kalamazoo to Porter, IN (TR), (h) Kalamazoo Ind. Track, and (i)
Comstock Ind. Track;
(5) Eastern Pennsylvania lines, including (a) Philadelphia Terminal
to Reading, (b) Reading Terminal, (c) Thorndale, PA, to Woodbourne, PA,
(d) Leola/Chesterbrook, PA, lines, (e) Philadelphia Terminal to
Lancaster, PA (TR), (f) Lancaster to Royalton, PA (TR), (g) Lancaster
to Lititz/Columbia, PA, (h) portion of Stoney Creek Branch, (i) West
Falls Yard, and (j) Venice Ind. Track;
(6) Indiana lines, including (a) Anderson to Goshen via Warsaw, (b)
Marion to Red Key, IN, and (c) Lafayette Ind. Track;
[[Page 39580]]
(7) Buffalo to NY/NJ Terminal, including (a) NJ/NY Jct. to Suffern,
NY (TR), (b) Suffern to Port Jervis, NY, (c) Port Jervis to Binghamton,
(d) Binghamton to Waverly, (e) NJ/NY Jct. to Spring Valley, NY (TR),
(f) Paterson Jct., NJ, to Ridgewood, NJ (TR), (g) Waverly to Buffalo,
(h) Waverly to Mehoopany, PA, (i) Sayre, PA, to Ludlowville, NY, (j)
Lyons, NY, to Himrods Jct., NY, (k) Corning, NY, to Himrods Jct., NY,
(l) North Jersey Terminal to Paterson Jct., NJ (TR), (m) Paterson Jct.
to North Newark, NJ, and (n) NJ/NY Jct. to North Jersey Terminal (TR);
(8) Buffalo to Harrisburg and South, including (a) Perryville, MD,
to Harrisburg, PA, (b) Carlisle, PA, to Harrisburg, (c) Wago, PA, to
York (area), PA, (d) Harrisburg to Shocks, PA, (e) Williamsport, MD, to
Buffalo via Harrisburg, PA, (f) Watsontown, PA, to Strawberry Ridge,
PA, (g) Ebenezer Jct., NY, to Lackawanna, NY, (h) Hornell, NY, to
Corry, PA, (i) Corry to Erie, PA (TR), and (j) Youngstown to Oil City,
PA;
(9) Cincinnati to Columbus to Charleston, WV, including (a)
Columbus to Cincinnati, (b) Cincinnati Terminal, (c) Columbus Terminal
to Truro, OH, (d) Truro to Charleston, WV, (e) Charleston to Cornelia,
WV, and (f) Charleston to Morris Fork, WV;
(10) Chicago South/Illinois operations, including (a) Osborne, IN,
to Chicago Heights, IL, via Hartsdale, (b) Hartsdale to Schneider, IN,
(c) Schneider to Hennepin, IL, (d) Keensburg, IL, to Carol, IL, and (e)
Schneider to Wheatfield, IN; and
(11) Chicago Market, including (a) Western Ave. Operations/Loop to
Cicero/Elsdon, IL, (b) Chicago to Porter, IN, (c) Clarke Jct., IN, to
CP 501, IN, (d) CP 509 to Calumet Park, IL, (e) Western Ave. Ind.
Track, (f) Old Western Ave. Ind. Track, (g) North Joint Tracks, (h)
Elevator Lead & Tri-River Dock, (i) CR&I Branch, (j) 49th Street Ind.
Track, (k) 75th Street to 51st Street (TR), (l) Port of Indiana, IN,
and (m) CP 502, IN, to Osborne, IN.
Along with these lines, the abandoned Conrail line from Danville to
Schneider, IL, will also be a PRR-Allocated Asset.
Allocated Assets: Other Aspects. Certain equipment will be included
in the NYC-Allocated Assets and the PRR-Allocated Assets and will be
made available to CSXT and NSR pursuant to a CSXT Equipment Agreement
and a NSR Equipment Agreement, respectively. Much of the locomotive
equipment and rolling stock equipment, however, will not be included in
the NYC-and PRR-Allocated Assets but will be included, instead, in the
Retained Assets (discussed below), and will be leased by CRC or its
affiliates to NYC or PRR pursuant to equipment agreements to be
negotiated by the parties.
CRC currently holds certain trackage rights over CSXT and NSR. In
general (though there are exceptions), CRC will assign the trackage
rights that it holds over CSXT to PRR (to be operated by NSR), and it
will assign the trackage rights that it holds over NSR to NYC (to be
operated by CSXT).
The shares currently owned by Conrail in TTX Company (TTX, formerly
known as Trailer Train) will be allocated to NYC and PRR. Applicants'
current ownership interest in TTX is: CSX, 9.345%; NS, 7.788%; CRC,
21.807%. Following approval of the primary application, the ownership
of TTX by applicants and their subsidiaries will be as follows: CSX,
9.345%; NYC, 10.125%; NS, 7.788%; PRR, 11.682%.
Conrail's 50% interest in Triple Crown Services Company will be
allocated to PRR.
Certain additional special treatments are provided in particular
areas within the allocated assets. A description of the areas in which
special arrangements are made is set forth below under the caption
``Other Areas with Special Treatments.'' 4
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\4\ The Transaction Agreement also contemplates that certain CRC
facilities currently used for the benefit of the entire Conrail
system: will be operated, during a transition period following the
Closing Date, for the joint benefit of CSX and NS; and will be
operated, after such transition period, for the party to whom they
have been allocated. See CSX/NS-18 at 11 (lines 14-18) and 12 (line
1 & n.3).
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Applicants indicate that they have taken steps to ensure that all
of the existing contractual commitments of Conrail to its shippers will
be fulfilled. The Transaction Agreement provides that all
transportation contracts of CRC in effect as of the Closing Date
(referred to as Existing Transportation Contracts) will remain in
effect through their respective stated terms and will be allocated as
NYC-Allocated Assets and PRR-Allocated Assets, and that the obligations
under them shall be carried out after the Closing Date by CSXT,
utilizing NYC-Allocated Assets, and by NSR, using PRR-Allocated Assets,
or pursuant to the Shared Assets Areas Agreements, as the case may be.
The Transaction Agreement further provides, with respect to the
Existing Transportation Contracts: that CSXT and NSR will allocate the
responsibilities to serve customers under these contracts; and that
CSXT and NSR shall cooperate as necessary to assure shippers under
these contracts all benefits, such as volume pricing, volume refunds,
and the like, to which they are contractually entitled.
Retained Assets. The Retained Assets include assets contained
within three Shared Assets Areas (the Detroit Shared Assets Area, the
North Jersey Shared Assets Area, and the South Jersey/Philadelphia
Shared Assets Area) that are more fully described below.
The Retained Assets also include Conrail's System Support
Operations (SSO) facilities, including equipment and other assets
associated with such facilities, currently used by Conrail to provide
support functions benefitting its system as a whole, including
Conrail's: (1) customer service center in Pittsburgh, PA; (2) crew
management facility in Dearborn, MI; (3) system maintenance-of-way
equipment center in Canton, OH; (4) signal repair center in Columbus,
OH; (5) system freight claims facility in Buffalo, NY; (6) system non-
revenue billing facility at Bethlehem, PA; (7) system rail welding
plant at Lucknow (Harrisburg), PA; (8) system road foreman/engineer
training center at Philadelphia and Conway, PA; (9) police operations
center at Mt. Laurel, NJ; (10) the Philadelphia Division headquarters
building and offices located at Mount Laurel, NJ; and (11) other SSO
facilities identified by CSX and NS prior to the Closing Date. Each SSO
Facility will be operated by Conrail for the benefit of CSXT/NYC and
NSR/PRR, and the costs of operating each SSO Facility will be retained
by Conrail as ``Corporate Level Liabilities'' and will be shared
between CSX and NS.5
---------------------------------------------------------------------------
\5\ At least some of the SSO Facilities will apparently be
operated for the joint benefit of CSX and NS ``for a short period''
only. See CSX/NS-18 at 12 (lines 2-5).
---------------------------------------------------------------------------
Liabilities. In general: NYC will assume all liabilities arising on
or after the Closing Date that relate predominantly to the NYC-
Allocated Assets; PRR will assume all such liabilities that relate
predominantly to the PRR-Allocated Assets; CRC will be responsible for
all such liabilities that do not relate predominantly to the NYC-or
PRR-Allocated Assets; and CRC will also be responsible for certain
liabilities arising prior to the Closing Date.
Separation Costs (as defined in the Transaction Agreement, see CSX/
NS-25, Volume 8B at 20) incurred following the Control Date in
connection with Conrail agreement employees now working jobs at or in
respect of NYC-Allocated Assets will be the sole responsibility of CSX,
while Separation Costs incurred in connection with Conrail agreement
employees now
[[Page 39581]]
working jobs at or in respect of PRR-Allocated Assets will be the sole
responsibility of NS. Separation Costs incurred in connection with
Conrail agreement employees working jobs at or in respect of Retained
Assets will be shared by CSX and NS. Separation Costs incurred
following the Control Date for Conrail agreement employees at Conrail's
Altoona and Hollidaysburg shops will be the responsibility of NS, and
Separation Costs incurred following the Control Date in connection with
agreement employees at Conrail's Philadelphia headquarters and
technology center and Conrail's Pittsburgh customer service center will
be the responsibility of CSX. Separation Costs for eligible Conrail
non-agreement employees will be shared by CSX and NS.
After the Closing Date, compensation and other expenses (excluding
Separation Costs) for agreement employees (other than certain Conrail
employees performing general and administrative functions) working jobs
at or in respect of NYC-Allocated Assets will be the sole
responsibility of CSX, while such expenses for such agreement employees
working jobs at or in respect of PRR-Allocated Assets will be the sole
responsibility of NS.
Operation of Assets
Applicants indicate: that CSXT and NYC will enter into the CSXT
Operating Agreement, which provides for CSXT's use and operation of the
NYC-Allocated Assets; that NSR and PRR will enter into the NSR
Operating Agreement, which provides for NSR's use and operation of the
PRR-Allocated Assets; and that CRC, NYC, PRR, CSXT and/or NSR will
enter into Shared Assets Areas Operating Agreements, which provide for
the operation of certain Shared Assets Areas for the benefit of both
CSXT and NSR.
CSXT and NSR Operating Agreements. The CSXT Operating Agreement and
the NSR Operating Agreement (collectively, the Allocated Assets
Operating Agreements) provide that CSXT and NSR will each have the
right, for an initial term of 25 years, to use and operate, as part of
their respective systems, the NYC-Allocated Assets and the PRR-
Allocated Assets. Those agreements will require CSXT and NSR each to
bear the responsibility for and the cost of operating and maintaining
their respective Allocated Assets. CSXT and NSR will each receive for
its own benefit and in its own name all revenues and profits arising
from or associated with the operation of its Allocated Assets.
CSXT will pay NYC an operating fee based on the fair market rental
value of the NYC-Allocated Assets. NSR will similarly pay PRR an
operating fee based on the fair market rental value of the PRR-
Allocated Assets. CSXT and NSR will have the right to receive the
benefits of NYC and PRR, respectively, under any contract or agreement
included in the NYC-Allocated Assets or the PRR-Allocated Assets,
respectively, and, with the consent of NYC and PRR, respectively, to
modify or amend any such contract or agreement on behalf of NYC and
PRR.
CSXT and NSR will each have the right to renew its Allocated Assets
Operating Agreement for two additional terms of ten years each. The
Allocated Assets Operating Agreements contemplate that, upon
termination of the agreements, CSXT and NSR will be deemed to have
returned their Allocated Assets to NYC or PRR, subject to any
regulatory requirements.
Shared Assets Areas and Operating Agreements. Both CSXT and NSR
will be permitted to serve shipper facilities located within the three
Shared Assets Areas (North Jersey, South Jersey/Philadelphia, and
Detroit), which will be owned, operated, and maintained by CRC for the
exclusive benefit of CSX and NS. CSXT and NSR will enter into a Shared
Assets Area Operating Agreement with CRC in connection with each of the
Shared Assets Areas, and CRC will grant to CSXT and NSR the right to
operate their respective trains, with their own crews and equipment and
at their own expense, over any tracks included in the Shared Assets
Areas. CSXT and NSR will each have exclusive and independent authority
to establish all rates, charges, service terms, routes, and divisions,
and to collect all freight revenues, relating to freight traffic
transported for its account within the Shared Assets Areas. Other
carriers that previously had access to points within the Shared Assets
Areas will continue to have the same access as before.
(1) The North Jersey Shared Assets Area encompasses all northern
New Jersey trackage east of and including the NEC, and also: (a)
Certain line segments north of the NEC as it turns East to enter the
tunnel under the Hudson River, (b) the CRC Lehigh line west to Port
Reading Junction, (c) the rights of CRC on the New Jersey Transit
Raritan line, (d) the CRC Port Reading Secondary line west to Bound
Brook, (e) the CRC Perth Amboy Secondary line west to South Plainfield,
and (f) the NEC local service south to the Trenton area.
(2) The South Jersey/Philadelphia Shared Assets Area encompasses
all CRC ``Philadelphia'' stations and stations within the Philadelphia
City limits, industries located on the CRC Chester Industrial and
Chester Secondary tracks, all CRC trackage in Southern New Jersey,
CRC's rights on the NEC north from Zoo Tower in Philadelphia to
Trenton, NJ, and the Ameriport intermodal terminal and any replacement
of such terminal built substantially through public funding.
(3) The Detroit Shared Assets Area encompasses all CRC trackage and
access rights east of the CP-Townline (Michigan Line MP 7.4) and south
to and including Trenton (Detroit Line MP 20).6
---------------------------------------------------------------------------
\6\ For a more complete description of the three Shared Assets
Areas, see CSX/NS-18 at 46-49 (and references there cited).
---------------------------------------------------------------------------
Other Areas with Special Treatments. A number of other areas,
though not referred to as Shared Assets Areas, are nevertheless subject
to special arrangements that provide for a sharing of routes or
facilities to a certain extent.
(1) Monongahela Area: Although the CRC lines formerly a part of the
Monongahela Railway will be operated by NSR, CSXT will have equal
access for 25 years, subject to renewal, to all current and future
facilities located on or accessed from the former Monongahela Railway,
including the Waynesburg Southern.
(2) Chicago Area: Both CSXT and NSR will have access to CRC's
rights concerning access to and use of the Willow Springs Yard of The
Burlington Northern and Santa Fe Railway Company (BNSF); applicants
will enter into an agreement concerning their respective rights as
successors to Conrail and as parties controlling the controlling
shareholder in the Indiana Harbor Belt Railway (IHB), a 51%-owned
subsidiary of CRC (the stock of IHB will be a CRC-retained asset);
certain trackage rights of CRC over IHB will be assigned or made
available to NYC to be operated by CSXT or to PRR to be operated by
NSR; CSXT and NSR will enter into an agreement to permit each of them
to maintain current access and trackage rights enjoyed by them over
terminal railroads in the Chicago area; and CSX will be granted an
option, exercisable if CSXT and BNSF come under common control, to
purchase the Streator Line from Osborne, IN, to Streator, IL.
(3) Ashtabula Harbor Area: NSR will have the right to operate and
control CRC's Ashtabula Harbor facilities, with CSXT receiving use and
access, up to a proportion of the total ground storage, throughput, and
tonnage capacity of 42%.
[[Page 39582]]
(4) Buffalo Area: CSXT will operate Seneca Yard, and NSR will
receive access to yard tracks in that yard.
(5) Cleveland Area: CRC's switching yard at Collinwood will be
operated by CSXT and its Rockport Yard will be operated by NSR.
(6) Columbus, OH: NSR will operate CRC's Buckeye Hump Yard, and
CSXT will operate the former Local Yard and intermodal terminal at
Buckeye.
(7) Erie, PA: Norfolk and Western Railway Company (NW, a wholly
owned NSR subsidiary) will have a permanent easement and the right to
build a track on the easement along the CRC right of way through Erie,
PA, to be operated by CSXT. NW will have trackage rights in Erie to
connect its route from Corry to its existing Buffalo-Cleveland line if
such connection can be achieved without using the CRC Buffalo-Cleveland
line to be operated by CSXT.
(8) Fort Wayne, IN: CSX will operate the line between Fort Wayne
and Chicago, currently owned by NSR.
(9) Indianapolis, IN: NSR will have overhead trackage rights from
Lafayette and Muncie to Hawthorne Yard to serve, via CSXT switch,
shippers that presently receive service from two railroads.
(10) Toledo, OH: CRC's Stanley Yard will be operated by CSXT, and
its Airline Junction Yard will be operated by NSR.
(11) Washington, D.C.: CRC's Landover Line from Washington, D.C.,
to Landover, MD, will be allocated to NYC, and NSR will be given
overhead trackage rights.
(12) Allocation of Rights with Respect to Freight Operations Over
Amtrak's NEC: CRC's NEC overhead trackage rights north of New York
(Penn Station) will be assigned to NYC. Both NYC and PRR will have
overhead rights to operate trains between Washington, D.C., and New
York (Penn Station), subject to certain limitations. From Zoo Tower,
Philadelphia, to Penn Station, NY, CRC's NEC rights to serve local
customers will be part of the Retained Assets and CRC will assign those
rights to NYC and PRR, with NYC and PRR having equal access to all
local customers and facilities. Between Washington, D.C., and Zoo
Tower, Philadelphia, CRC's NEC rights to serve local customers will be
assigned to PRR. The right to serve local customers on the NEC north of
New York (Penn Station) will be assigned to NYC.7
---------------------------------------------------------------------------
\7\ For a more complete description of the areas addressed here
under the heading ``Other Areas with Special Treatments,'' see CSX/
NS-18 at 49-54 (and references there cited).
---------------------------------------------------------------------------
Succession to Conrail Activities
Applicants intend that the Allocated Assets conveyed to NYC and PRR
will be operated for them by CSXT and NSR, respectively, and that both
the Allocated Assets conveyed to NYC and PRR as well as the Retained
Assets made available by CRC to CSXT or NSR or both will be enjoyed and
used by CSXT and NSR (subject to the terms of the governing agreements)
as if the carrier in question were itself CRC. Applicants similarly
intend that the Shared Assets Areas will be used, enjoyed, and operated
as fully by CSXT and NSR as if each of them were CRC.
The Continuing Conrail Activities
From the Closing Date forward, CSXT and NSR will be responsible for
all of the operating expenses and new liabilities attributable to the
assets which they are operating. It is expected, however, that most of
the pre-Closing Date liabilities of CRC, CRR, and their subsidiaries
will remain in place. It is contemplated that CRC will pay its pre-
Closing Date liabilities, including its debt obligations, out of
payments received, either directly or through NYC and PRR, from CSXT
and NSR in connection with the Allocated Assets and the Shared Assets
Areas. Applicants expect that such payments will be sufficient to
permit CRC and its subsidiaries (1) to cover their operating,
maintenance, and other expenses, (2) to pay all of their obligations as
they mature, (3) to provide dividends to CRR sufficient to permit it to
discharge its debts and obligations as they mature, and (4) to receive
a fair return for the operation, use, and enjoyment by CSXT and NSR of
the Allocated Assets and Shared Assets Areas. Applicants add, however,
that if for any reason these sources of funds to CRC and CRR prove
insufficient to permit them to pay and discharge their obligations, CSX
and NS have agreed that CRR Holdings shall provide the necessary funds,
which it will obtain from CSXC and NSC.
Applicants anticipate that, following the Division of Conrail,
approximately 350 employees will be employed by Conrail in the
Philadelphia area (where the headquarters of CRR and CRC are now
located). These employees will include Conrail employees managing and
operating trains for CSX and NS, the employees in the local Shared
Assets Area, and the management personnel for the continuing Conrail
functions. In addition, each of CSX and NS anticipates establishing a
regional headquarters-type function in Philadelphia at which an
undetermined number of additional personnel will be employed.
It is intended that, following the Division: CRC will not hold
itself out to the public as performing transportation services directly
and for its own account; CRC will not enter into any contract (other
than with CSXT or NSR) for the performance of transportation services;
and all transportation services performed by CRC will be performed as
agent or subcontractor of CSXT or NSR.
``2-to-1'' Situations
Applicants claim: that the division of Conrail proposed in the
primary application has enabled applicants to avoid, ``wherever
possible,'' situations where shippers will see their rail options
decline from two carriers to one; and that in ``virtually all of the
few'' 2-to-1 situations that the division proposed in the primary
application would otherwise have entailed, CSX and NS have agreed to
provide one another with trackage and/or haulage rights that will
permit the continuation of two rail carrier service. See CSX/NS-18 at
4. See also CSX/NS-18 at 74-75 (CSX will provide trackage or haulage
rights that will allow for alternative rail service to facilities that
otherwise would be, as a result of the transaction proposed in the
primary application, rail-served solely by CSX) and 80 (NS will provide
trackage or haulage rights that will allow for alternative rail service
to facilities that otherwise would be, as a result of the transaction
proposed in the primary application, rail-served solely by NS).
Labor Impact
Applicants have provided three Labor Impact Exhibits, each using a
different base line in calculating the impacts that the transactions
proposed in the primary application and the related filings will have
on rail carrier employees. See CSX/NS-26 (filed July 7, 1997), which:
(a) corrects the single Labor Impact Exhibit filed with the primary
application itself on June 23, 1997, see CSX/NS-18 at 24-25; CSX/NS-20,
Volume 3A at 485-546; and CSX/NS-20, Volume 3B at 493-526; and (b) adds
two additional Labor Impact Exhibits. See also Decision No. 7, served
May 30, 1997, slip op. at 8-9 (we required applicants to use the year
1995 as the base line for setting forth the impacts the proposed
transactions will have on rail carrier employees, but we added that
applicants, if they were so inclined, would be allowed to supplement
1995 data with data demonstrating employment reductions in 1996 and/or
1997).
[[Page 39583]]
Applicants' 1996/97 Labor Impact Exhibit projects, with respect to
both the CSX and NS expanded systems, that the proposed transactions
will result in the abolition of 3,090 jobs and the creation of 1,109
jobs (for a net loss of 1,981 jobs), and will also result in the
transfer of an additional 2,323 jobs. See CSX/NS-26, 1996/97 Exhibit at
13. The 1996/97 Exhibit is based on an April 1, 1997 nonagreement
employee count and a November 1996 agreement employee count.
Applicants' 1996 Labor Impact Exhibit projects, with respect to
both the CSX and NS expanded systems, that the proposed transactions
will result in the abolition of 3,822 jobs and the creation of 1,152
jobs (for a net loss of 2,670 jobs), and will also result in the
transfer of an additional 2,323 jobs. See CSX/NS-26, 1996 Exhibit at
16. The 1996 Exhibit is based on calendar year 1996 average monthly
employment levels. 8
---------------------------------------------------------------------------
\8\ The 1996 Labor Impact Exhibit submitted with the CSX/NS-26
filing on July 7, 1997, is a slightly corrected version of the Labor
Impact Exhibit submitted with the primary application itself on June
23, 1997.
---------------------------------------------------------------------------
Applicants' 1995 Labor Impact Exhibit projects, with respect to
both the CSX and NS expanded systems, that the proposed transactions
will result in the abolition of 6,654 jobs and the creation of 1,699
jobs (for a net loss of 4,955 jobs), and will also result in the
transfer of an additional 2,288 jobs. See CSX/NS-26, 1995 Exhibit at
33. The 1995 Exhibit is based on calendar year 1995 average monthly
employment levels. But see CSX/NS-26, Peifer/Spenski V.S. at 1 n.1
(1995 data is incomplete).
Applicants emphasize that the projections contained in their Labor
Impact Exhibits are short term projections; applicants maintain that,
in the long term, the transactions proposed in the primary application
and the related filings will provide opportunities for rail
transportation growth and, therefore, new jobs. Applicants anticipate
that, if we approve the transactions proposed in the primary
application and the related filings, we will impose on such
transactions the standard labor protective conditions customarily
imposed on similar such transactions. See CSX/NS-18 at 25.
Relief Requested in the Primary Application
In the STB Finance Docket No. 33388 lead docket, applicants seek:
approval of the transaction proposed in the primary application (in
paragraph 1 below); approval of certain ``elements'' of that
transaction, referred to as Transaction Elements (in paragraphs 2, 3,
4, 5, 6, 7, 8, 9, 10, and 11 below); and a ``fairness determination''
respecting the terms under which CSX and NS have acquired all of the
common stock of CRR (in paragraph 12 below).
(1) Applicants seek approval and authorization, pursuant to 49
U.S.C. 11323 and 11324, of the acquisition by CSXC and NSC (each a
noncarrier corporation controlling one or more rail carriers) of joint
control of, and the power to exercise joint control over, CRR (also a
noncarrier corporation controlling one or more rail carriers). See 49
U.S.C. 11323(a)(5).9
---------------------------------------------------------------------------
\9\ As applicants note, although joint control by CSXC and NSC
of Conrail as a separately functioning rail system will last only
until the Division is effected, such joint control, even though
transitory, requires approval and authorization under 49 U.S.C.
11323(a)(5). See CSX/NS-18 at 90 & n.14.
---------------------------------------------------------------------------
(2) Applicants seek approval and authorization, pursuant to 49
U.S.C. 11323 and 11324, of the acquisition by NYC and PRR of, and of
the operation by CSXT and NSR over, the CRC lines and other assets,
including without limitation trackage and other rights, that will be
allocated to NYC and PRR, respectively. Applicants also ask that we
expressly provide that, pursuant to the sought approval and
authorization under 49 U.S.C. 11323 and 11324, and notwithstanding any
purported limitations on assignability, NYC and PRR each will have the
same right, title, and interest in the CRC lines and other assets
forming its part of the Allocated Assets as CRC itself now has,
including the power to pass the use and enjoyment of those lines and
other assets to CSXT and NSR.10
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\10\ The CRC lines and other assets to be allocated to NYC and
PRR include both: (i) those owned by CRC; and also (ii) those not
owned by CRC but operated by CRC under leases, trackage rights, and
similar arrangements (such arrangements are hereinafter referred to
as ``Trackage Agreements''). Because applicants are concerned that
CRC's interests under some of these Trackage Agreements may be
subject to limitations on assignability, approval and authorization
under 49 U.S.C. 11323 and 11324 has been sought in order to bring
these Trackage Agreements within the scope of the immunizing power
of 49 U.S.C. 11321(a). See Norfolk & Western Ry. Co. v. American
Train Dispatchers' Ass'n, 499 U.S. 117 (1991).
---------------------------------------------------------------------------
(3) Applicants request a declaratory order that 49 U.S.C. 10901
does not apply to the transfer of the Allocated Assets to NYC and
PRR.11 Applicants concede that, because NYC and PRR are not
now carriers, an argument can be made that authority under 49 U.S.C.
10901 is required for the transfer; applicants maintain, however, that
the transfer should be viewed in context as simply a part of a larger
transaction involving the operation by CSX and NS of the assets to be
transferred to NYC and PRR, respectively; and applicants claim that the
transfer, when viewed in context, requires authorization not under 49
U.S.C. 10901 but rather under 49 U.S.C. 11323 and 11324. In the event
we do not issue the sought declaratory order, applicants seek
authorization for the transfer of the CRC assets to NYC and PRR: under
49 U.S.C. 10901; and, in order to bring the transfer within the scope
of the immunizing power of 49 U.S.C. 11321(a), also under 49 U.S.C.
11323 and 11324.
---------------------------------------------------------------------------
\11\ As applicants note, the immunizing power of 49 U.S.C.
11321(a) does not extend to an authorization under 49 U.S.C. 10901.
---------------------------------------------------------------------------
(4) Applicants seek approval and authorization, pursuant to 49
U.S.C. 11323 and 11324: (i) for CSXT and NSR to enter into the
Allocated Assets Operating Agreements and to operate the assets held by
NYC and PRR, respectively; (ii) for CSXT, NSR, and CRC to enter into
the three Shared Assets Areas Operating Agreements and to operate the
assets in such areas; and (iii) for CSX and NS to use, operate,
perform, and enjoy the Allocated Assets and the assets in the Shared
Assets Areas consisting of assets other than routes (including, without
limitation, the Existing Transportation Contracts). See 49 U.S.C.
11323(a)(2). See also 49 U.S.C. 11323(a)(6). Applicants also request a
declaratory order, or a declaration to the same effect as a declaratory
order: (a) that, by virtue of the immunizing power of 49 U.S.C.
11321(a), CSX and NS will have the authority to conduct operations over
the routes of CRC covered by the Trackage Agreements as fully and to
the same extent as CRC itself could, whether or not such routes are
listed in CSX/NS-18, Appendix L (CSX/NS-18 at 216-24), and
notwithstanding any clause in any such agreement purporting to limit or
prohibit unilateral assignment by CRC of its rights thereunder; and (b)
that, also by virtue of the immunizing power of 49 U.S.C. 11321(a), CSX
and NS may use, operate, perform, and enjoy the Allocated Assets and
the assets in the Shared Assets Areas consisting of assets other than
routes (including, without limitation, the Existing Transportation
Contracts) as fully and to the same extent as CRC itself could.
(5) For the period following the transfer of CRC assets to NYC and
PRR, applicants seek approval and authorization, pursuant to 49 U.S.C.
11323 and 11324: (a) for CSXC, NSC, and CRR to continue to control NYC
and PRR; and (b) for the common control, by CSXC, CSXT, NSC, NSR, CRR,
and CRC of (i) NYC and PRR, and (ii) the carriers currently controlled
by CSXC, CSXT, NSC, NSR, CRR, and CRC. Such authorization and approval
will be
[[Page 39584]]
necessary because, as applicants note: CRC, NYC, and PRR will not be
part of a ``single system'' of rail carriers, and therefore
authorization to control CRC will not in and of itself imply
authorization to control NYC and PRR; and, although CSX will exercise
day-to-day control of NYC and NS will exercise day-to-day control of
PRR, the fact that certain major actions concerning NYC and PRR will
remain under the control of CRC will result in an ongoing common
control relationship involving CSXC, NSC, and CRR, and the subsidiaries
of each.
(6) Applicants seek approval and authorization, pursuant to 49
U.S.C. 11323 and 11324: for the acquisition by CSXT of certain trackage
rights over PRR; and for the acquisition by NSR of certain trackage
rights over NYC. See 49 U.S.C. 11323(a)(6). The lines over which these
trackage rights will run are listed in items 1.B and 1.A, respectively,
of Schedule 4 to the Transaction Agreement. See CSX/NS-25, Volume 8B at
110-21.12
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\12\ The trackage rights identified in Schedule 4 to the
Transaction Agreement, see CSX/NS-25, Volume 8B at 110-21, fall into
three categories: existing trackage rights held by CRC over other
carriers, which are covered in paragraph 4 above; new trackage
rights to be held by CSXT over PRR and by NSR over NYC, which are
covered in this paragraph 6; and certain additional new trackage
rights provided for in the related filings in STB Finance Docket No.
33388 (Sub-Nos. 25, 27, 28, 29, 30, 32, 33, & 34), which are covered
in the ``Related Filings'' discussion below. See CSX/NS-18 at 96
n.17.
---------------------------------------------------------------------------
(7) Applicants seek approval and authorization, pursuant to 49
U.S.C. 11323 and 11324, of the trackage rights provided to CSXT, See
CSX/NS-25, Volume 8C at 715-57, to access all current and future
facilities located on or accessed from the former Monongahela Railway,
including the Waynesburg Southern. See 49 U.S.C.
11323(a)(6).13
---------------------------------------------------------------------------
\13\ Applicants indicate, see CSX/NS-18 at 96 (lines 9-10), that
the rights referenced in paragraphs 6 and 7 fall under 49 U.S.C.
11323(a)(2) (approval and authorization required for a ``purchase,
lease, or contract to operate property of another rail carrier by
any number of rail carriers''). The rights referenced in paragraphs
6 and 7, however, appear to be trackage rights, and we therefore
believe that these rights fall under 49 U.S.C. 11323(a)(6) (approval
and authorization required for the acquisition ``by a rail carrier
of trackage rights over, * * * or joint use of, a railroad line * *
* owned or operated by another rail carrier'').
---------------------------------------------------------------------------
(8) The trackage rights covered by paragraph 6 include, among many
other such trackage rights, certain trackage rights to be acquired by
NSR over the NYC Bound Brook, NJ-Woodbourne, PA line. See CSX/NS-25,
Volume 8B at 112 (item 20). These particular trackage rights, however,
are intended to be temporary in duration, and will expire, by their
terms, at the end of 3 years. Applicants therefore seek authorization,
pursuant to 49 U.S.C. 10903, for NSR to discontinue the Bound Brook-
Woodbourne trackage rights in accordance with the terms
thereof.14
---------------------------------------------------------------------------
\14\ Applicants indicate that, in due course, NSR will
``abandon'' its Bound Brook-Woodbourne trackage rights. See CSX/NS-
18 at 96-97 (item e) and 103 (item e). We think it would be more
accurate to say that NSR will ``discontinue'' these trackage rights.
---------------------------------------------------------------------------
(9) Applicants seek approval and authorization, pursuant to 49
U.S.C. 11323 and 11324, of certain incidental trackage rights granted
in connection with operations within the Shared Assets Areas. These
trackage rights include: (i) trackage rights granted by CSXT to NSR and
CRC; and (ii) trackage rights granted by NSR to CSXT and CRC. See CSX/
NS-18 at 97-98. See also CSX/NS-25, Volume 8C at 76, 115-16, and
156.15
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\15\ Applicants indicate, see CSX/NS-18 at 98 (lines 1-2), that
the rights referenced in paragraph 9 fall under 49 U.S.C.
11323(a)(2). The rights referenced in paragraph 9, however, appear
to be trackage rights, and we therefore believe that these rights
fall under 49 U.S.C. 11323(a)(6).
---------------------------------------------------------------------------
(10) To the extent that any matter concerning either (i) the joint
ownership by CSX and NS of CRR, CRC, NYC, and/or PRR, or (ii) the
Transaction Agreement and the Ancillary Agreements referred to
therein,16 including the provision for handling Existing
Transportation Contracts, might be deemed to be a pooling or division
by CSX and NS of traffic or services or of any part of their earnings,
applicants request approval for such pooling or division under 49
U.S.C. 11322.17
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\16\ As used in the Transaction Agreement, the term ``Ancillary
Agreements'' means the Equipment Agreements, the CSXT Operating
Agreement, the NSR Operating Agreement, the NYC LLC Agreement, the
PRR LLC Agreement, the CRR Holdings LLC Agreement, the Trackage
Rights Agreements, the CSXT/NSR Haulage Agreements, the Tax
Allocation Agreement, the Shared Assets Agreements, and the Other
Operating Agreements. See CSX/NS-25, Volume 8B at 10.
\17\ Such approval under 49 U.S.C. 11322 is sought because, as
applicants note, payments with respect to the rights granted in
connection with both the Allocated Assets and the Shared Assets
Areas, as well as payments for the services performed by CRC in
connection with the Shared Assets Areas, are to be made by CSXT and
NSR to entities (CRC or its subsidiaries) in which both CSX and NS
will have economic interests.
---------------------------------------------------------------------------
(11) Applicants seek approval and authorization, pursuant to 49
U.S.C. 11323 and 11324, for the transfer of CRC's Streator Line from
CRC to NSR/NW.18
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\18\ See Decision No. 4 (served May 2, 1997), slip op. at 7
n.16: ``The transfer of the Streator line from CRC to NSR will be
considered in the lead docket because this transfer, like all
aspects of the division of CRC assets between CSX and NS, is
integral to, and an inseparable part of, the control transaction.''
See also CSX/NS-22 at 446, defining the Streator Line as the CRC
line running: (i) between MP 6.3 at Osborn, IN, and MP 33.2 at
Schneider, IN; and (ii) between MP 56.4 at Wheatfield, IN, and MP
186.0 at Moronts, IL.
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(12) Applicants seek a determination that the terms under which CSX
and NS, both individually and jointly, have acquired all of the common
stock of CRR are fair and reasonable to the stockholders of CSXC, the
stockholders of NSC, and the stockholders of CRR. See Schwabacher v.
United States, 334 U.S. 192 (1948).
Related Filings
In STB Finance Docket No. 33388 (Sub-No. 1), CSXT has filed a
notice of exemption under 49 CFR 1150.36 to construct and operate, at
Crestline, OH, a connection track in the northwest quadrant of the
intersection of CRC's North-South line between Greenwich, OH, and
Indianapolis, IN, and CRC's East-West line between Pittsburgh, PA, and
Ft. Wayne, IN. The connection will extend approximately 1,507 feet
between approximately MP 75.4 on the North-South line and approximately
MP 188.8 on the East-West line.19
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\19\ In accordance with the waiver granted in Decision No. 9,
served June 12, 1997, and as indicated in the notice published in
the Federal Register on July 11, 1997 (62 FR 37331), we will
consider on an expedited basis, in advance of our consideration of
the primary application: (i) the physical construction of the
Crestline connection track, as proposed in the STB Finance Docket
No. 33388 (Sub-No. 1) embraced docket; and (ii) operation thereover
by CSXT. The operational implications of the transactions proposed
in the primary application and in the related filings as a whole,
including proposed operations over the Crestline connection track,
if authorized, will be examined in the context of the environmental
impact statement (EIS) that will be prepared by our Section of
Environmental Analysis (SEA).
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In STB Finance Docket No. 33388 (Sub-No. 2), CSXT has filed a
petition under 49 U.S.C. 10502 for exemption from the provisions of 49
U.S.C. 10901 to construct and operate, in Willow Creek, IN, a
connection track in the southeast quadrant of the intersection between
CSXT's line between Garrett, IN, and Chicago, IL, and CRC's line
between Porter, IN, and Gibson Yard, IN (outside Chicago). The
connection will extend approximately 2,800 feet between approximately
MP BI-236.5 on the CSXT line and approximately MP 248.8 20
on the CRC line. 21
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\20\ We question the MP 248.8 designation, see CSX/NS-22 at 106
(line 1); our review of CRC's timetable for its Porter Branch
suggests that the correct designation may be MP 246.8. We also
question CSXT's assertion that the Sub-No. 2 connection track will
provide a direct link between CRC and CSXT tracks ``and the parallel
IHB line at Willow Creek,'' see CSX/NS-22 at 106 (lines 16-17); our
review of CRC's timetable for its Porter Branch suggests that the
link with IHB may be at Ivanhoe, not at Willow Creek.
\21\ In accordance with the waiver granted in Decision No. 9,
and as indicated in the notice published in the Federal Register
concurrently herewith, we will consider on an expedited basis, in
advance of our consideration of the primary application: (i) the
physical construction of the Willow Creek connection track, as
proposed in the STB Finance Docket No. 33388 (Sub-No. 2) embraced
docket; and (ii) operation thereover by CSXT. The operational
implications of the transactions proposed in the primary application
and in the related filings as a whole, including proposed operations
over the Willow Creek connection track, if authorized, will be
examined in the context of the EIS that will be prepared by SEA.
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[[Page 39585]]
In STB Finance Docket No. 33388 (Sub-No. 3), CSXT has filed a
petition under 49 U.S.C. 10502 for exemption from the provisions of 49
U.S.C. 10901 to construct and operate, in Greenwich, OH, connection
tracks in the northwest and southeast quadrants of the intersection
between the CSXT line between Chicago and Pittsburgh and the CRC line
between Cleveland and Cincinnati. The connection in the northwest
quadrant, a portion of which will be constructed utilizing existing
trackage and/or right-of-way of the Wheeling & Lake Erie Railway
Company, will extend approximately 4,600 feet between approximately MP
BG-193.1 on the CSXT line and approximately MP 54.1 on the CRC line.
The connection in the southeast quadrant will extend approximately
1,044 feet between approximately MP BG-192.5 on the CSXT line and
approximately MP 54.6 on the CRC line. 22
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\22\ In accordance with the waiver granted in Decision No. 9,
and as indicated in the notice published in the Federal Register
concurrently herewith, we will consider on an expedited basis, in
advance of our consideration of the primary application: (i) the
physical construction of the Greenwich connection tracks, as
proposed in the STB Finance Docket No. 33388 (Sub-No. 3) embraced
docket; and (ii) operation thereover by CSXT. The operational
implications of the transactions proposed in the primary application
and in the related filings as a whole, including proposed operations
over the Greenwich connection tracks, if authorized, will be
examined in the context of the EIS that will be prepared by SEA.
---------------------------------------------------------------------------
In STB Finance Docket No. 33388 (Sub-No. 4), CSXT has filed a
petition under 49 U.S.C. 10502 for exemption from the provisions of 49
U.S.C. 10901 to construct and operate, at Sidney Junction, OH, a
connection track in the southeast quadrant of the intersection between
the CSXT line between Cincinnati, OH, and Toledo, OH, and the CRC line
between Cleveland, OH, and Indianapolis, IN. The connection will extend
approximately 3,263 feet between approximately MP BE-96.5 on the CSXT
line and approximately MP 163.5 on the CRC line. 23
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\23\ In accordance with the waiver granted in Decision No. 9,
and as indicated in the notice published in the Federal Register
concurrently herewith, we will consider on an expedited basis, in
advance of our consideration of the primary application: (i) the
physical construction of the Sidney Junction connection track, as
proposed in the STB Finance Docket No. 33388 (Sub-No. 4) embraced
docket; and (ii) operation thereover by CSXT. The operational
implications of the transactions proposed in the primary application
and in the related filings as a whole, including proposed operations
over the Sidney Junction connection track, if authorized, will be
examined in the context of the EIS that will be prepared by SEA.
---------------------------------------------------------------------------
In STB Finance Docket No. 33388 (Sub-No. 5), NW has filed a
petition under 49 U.S.C. 10502 for exemption from the provisions of 49
U.S.C. 10901 to construct and operate, at Sidney, IL, a connection
track between the UPRR north-south line between Chicago, IL, and St.
Louis, MO, and the NW east-west line between Decatur, IL, and Tilton,
IL. The connection, which will be in the southwest quadrant of the
intersection of the two lines, will be approximately 3,256 feet in
length. 24
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\24\ In accordance with the waiver granted in Decision No. 9,
and as indicated in the notice published in the Federal Register
concurrently herewith, we will consider on an expedited basis, in
advance of our consideration of the primary application: (i) the
physical construction of the Sidney connection track, as proposed in
the STB Finance Docket No. 33388 (Sub-No. 5) embraced docket; and
(ii) operation thereover by NW. The operational implications of the
transactions proposed in the primary application and in the related
filings as a whole, including proposed operations over the Sidney
connection track, if authorized, will be examined in the context of
the EIS that will be prepared by SEA.
---------------------------------------------------------------------------
In STB Finance Docket No. 33388 (Sub-No. 6), NW has filed a
petition under 49 U.S.C. 10502 for exemption from the provisions of 49
U.S.C. 10901 to construct and operate, at Alexandria, IN, a connection
track between the CRC line between Anderson, IN, and Goshen, IN, and
the NW line between Muncie, IN, and Frankfort, IN. The connection,
which will be in the northeast quadrant of the intersection of the two
lines, will be approximately 970 feet in length. 25
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\25\ In accordance with the waiver granted in Decision No. 9,
and as indicated in the notice published in the Federal Register
concurrently herewith, we will consider on an expedited basis, in
advance of our consideration of the primary application: (i) the
physical construction of the Alexandria connection track, as
proposed in the STB Finance Docket No. 33388 (Sub-No. 6) embraced
docket; and (ii) operation thereover by NW. The operational
implications of the transactions proposed in the primary application
and in the related filings as a whole, including proposed operations
over the Alexandria connection track, if authorized, will be
examined in the context of the EIS that will be prepared by SEA.
---------------------------------------------------------------------------
In STB Finance Docket No. 33388 (Sub-No. 7), NW has filed a
petition under 49 U.S.C. 10502 for exemption from the provisions of 49
U.S.C. 10901 to construct and operate, at Bucyrus, OH, a connection
track between NW's Bellevue, OH-Columbus, OH line and CRC's Ft. Wayne,
IN-Crestline, OH line. The connection, which will be in the southeast
quadrant of the intersection of the two lines, will be approximately
2,467 feet in length. 26
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\26\ In accordance with the waiver granted in Decision No. 9,
and as indicated in the notice published in the Federal Register
concurrently herewith, we will consider on an expedited basis, in
advance of our consideration of the primary application: (i) the
physical construction of the Bucyrus connection track, as proposed
in the STB Finance Docket No. 33388 (Sub-No. 7) embraced docket; and
(ii) operation thereover by NW. The operational implications of the
transactions proposed in the primary application and in the related
filings as a whole, including proposed operations over the Bucyrus
connection track, if authorized, will be examined in the context of
the EIS that will be prepared by SEA.
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In STB Finance Docket No. 33388 (Sub-No. 8), CSXT has filed a
notice of exemption under 49 CFR 1150.36 to construct and operate, at
Little Ferry, NJ, two connection tracks between the CRC Selkirk-North
Bergen line and the New York, Susquehanna and Western Railway (NYS&W)
Paterson-Croxton line. The first connection will extend approximately
480 feet between approximately MP 5.75 on the CRC line and
approximately MP 5.65 on the NYS&W line. The second connection will
extend approximately 600 feet between approximately MP 4.04 on the CRC
line and approximately MP 4.15 on the NYS&W line.
In STB Finance Docket No. 33388 (Sub-No. 9), CSXT and The Baltimore
and Ohio Chicago Terminal Railroad Company (B&OCT, a wholly owned CSXT
subsidiary) have filed a notice of exemption under 49 CFR 1150.36 to
construct and operate a connection track in the vicinity of 75th Street
SW, Chicago, IL, in the southwest quadrant of the intersection of the
lines of B&OCT and The Belt Railway Company of Chicago (BRC). The
connection will extend approximately 1,640 feet between approximately
MP DC-22.43 on B&OCT's North-South line between Cleveland and Brighton
Park, and approximately MP 12.95 on BRC's East-West line between
Bedford Park Yard and South Chicago Yard.
In STB Finance Docket No. 33388 (Sub-No. 10), CSXT has filed a
petition under 49 U.S.C. 10502 for exemption from the provisions of 49
U.S.C. 10901 to construct and operate a connection track in Exermont,
IL, in the northwest quadrant of the intersection between CSXT's
Cincinnati-East St. Louis line and CRC's Cleveland-East St. Louis line.
The connection will extend approximately 3,590 feet between
approximately MP BC-327.9 on the CSXT line and approximately MP 231.4
on the CRC line.
In STB Finance Docket No. 33388 (Sub-No. 11), CSXT and B&OCT have
filed a notice of exemption under 49 CFR 1150.36 to construct and
operate a
[[Page 39586]]
connection track in the vicinity of Lincoln Avenue in Chicago, IL, in
the northeast quadrant of the intersection of the lines of B&OCT and
IHB. The connection will extend approximately 840 feet between
approximately MP DC-9.5 on B&OCT's line between Cleveland and Barr
Yard, and approximately MP 10.43 on IHB's line between Gibson Yard and
Blue Island Jct.
In STB Finance Docket No. 33388 (Sub-No. 12), NSR has filed a
petition under 49 U.S.C. 10502 for exemption from the provisions of 49
U.S.C. 10901 to construct and operate, at Kankakee, IL, a connection
track between the Illinois Central Railroad Company (ICR) Chicago, IL-
Gibson City, IL north-south line, over which NSR has trackage rights,
and the CRC Streator, IL-Schneider, IN east-west line. The connection,
which will be in the southeast quadrant of the intersection of the two
lines, will be approximately 1,082 feet in length.
In STB Finance Docket No. 33388 (Sub-No. 13), NW has filed a notice
of exemption under 49 CFR 1150.36 to construct and operate a connection
track at Tolono, IL, in the southeast quadrant of the intersection of
the ICR line between Chicago, IL, and Centralia, IL, and the NW line
between Decatur, IL, and Tilton, IL. The connection will be about 1,600
feet in length.
In STB Finance Docket No. 33388 (Sub-No. 14), NW has filed a
petition under 49 U.S.C. 10502 for exemption from the provisions of 49
U.S.C. 10901 to construct and operate, at Butler, IN, a connection
track between NW's Detroit, MI-Fort Wayne, IN line and CRC's Elkhart,
IN-Toledo, OH line. The connection, which will be in the northwest
quadrant of the intersection of the two lines, will be approximately
1,750 feet in length.
In STB Finance Docket No. 33388 (Sub-No. 15), NW has filed a notice
of exemption under 49 CFR 1150.36 to construct and operate a connection
track at Tolleston, IN. This track, which will connect a NW line and a
CRC line, will be about 930 feet in length.
In STB Finance Docket No. 33388 (Sub-No. 16), NW has filed a notice
of exemption under 49 CFR 1150.36 to construct and operate a double
track connection at Hagerstown, MD. This track, which will connect a NW
line and a CRC line, will be about 800 feet in length.
In STB Finance Docket No. 33388 (Sub-No. 17), NW has filed a notice
of exemption under 49 CFR 1150.36 to construct and operate a connection
track at Ecorse Junction (Detroit), MI. This track, which will connect
a NW line and a CRC line, will be about 400 feet in length.
In STB Finance Docket No. 33388 (Sub-No. 18), NW has filed a
petition under 49 U.S.C. 10502 for exemption from the provisions of 49
U.S.C. 10901 to construct and operate, at Blasdell (Buffalo), NY, a
connecting track approximately 2,500 feet in length between NW's Erie,
PA-Buffalo, NY Line and CRC's Buffalo, NY-Harrisburg, PA Line.
In STB Finance Docket No. 33388 (Sub-No. 19), NW has filed a notice
of exemption under 49 CFR 1150.36 to construct and operate, at
Gardenville Junction (Buffalo), NY, a connecting track approximately
1,700 feet in length between CRC's Buffalo, NY-Harrisburg, PA Line and
CRC's Ebenezer Secondary Track.
In STB Finance Docket No. 33388 (Sub-No. 20), NW has filed a notice
of exemption under 49 CFR 1150.36 to construct and operate, at
Columbus, OH, a NW-CRC connecting track approximately 1,423 feet in
length. See CSX/NS-22 at 315 (map).
In STB Finance Docket No. 33388 (Sub-No. 21), NW has filed a
petition under 49 U.S.C. 10502 for exemption from the provisions of 49
U.S.C. 10901 to construct and operate, at Oak Harbor, OH, a connecting
track approximately 4,965 feet in length between, and in the northwest
quadrant of the intersection of, NW's Toledo, OH-Bellevue, OH line and
CRC's Toledo, OH-Cleveland, OH line.
In STB Finance Docket No. 33388 (Sub-No. 22), NW has filed a
petition under 49 U.S.C. 10502 for exemption from the provisions of 49
U.S.C. 10901 to construct and operate, at Vermilion, OH, a connecting
track approximately 5,398 feet in length between NW's Cleveland, OH-
Bellevue, OH line and CRC's Toledo, OH-Cleveland, OH line.
In STB Finance Docket No. 33388 (Sub-No. 23), NW has filed a notice
of exemption under 49 CFR 1180.2(d)(5) regarding a joint project
involving relocation of NW's rail line running down 19th Street in
Erie, PA (a distance of approximately 6.1 miles, between approximately
MP B-85.10 near Downing Avenue and approximately MP B-91.25 west of
Pittsburgh Avenue) to a parallel railroad right-of-way currently owned
and operated by CRC that will be allocated to CSXT in connection with
the primary application.
In STB Finance Docket No. 33388 (Sub-No. 24), CRC and NW have filed
a petition under 49 U.S.C. 10502 for exemption from the provisions of
49 U.S.C. 11323-25 regarding the acquisition by CRC (or by NYC) of the
Fort Wayne Line, between MP 441.8 at Fort Wayne, IN, and MP 319.2 at
Tolleston (Gary), IN. See CSX/NS-22 at 446 and 449 (indicating that the
mileposts are as stated in the preceding sentence). But see CSX/NS-22
at 461-62 (indicating that the mileposts are MP 441.8 at Tolleston and
MP 319.2 at Fort Wayne).
In STB Finance Docket No. 33388 (Sub-No. 25), NW and CSXT have
filed a notice of exemption under 49 CFR 1180.2(d)(7) regarding the
acquisition by NW of trackage rights over approximately 32.7 miles of a
CSXT line between Lima, OH (Erie Junction), at or near CSXT MP BE-
129.2, and Sidney, OH, at or near CSXT MP BE-96.5. The trackage rights
to be acquired by NW include overhead trackage rights between Lima and
Sidney and local trackage rights that will allow NW to serve 2-to-1
shippers at Sidney.
In STB Finance Docket No. 33388 (Sub-No. 26), CSXC, CSXT, and The
Lakefront Dock and Railroad Terminal Company (LD&RT) have filed an
application seeking approval and authorization under 49 U.S.C. 11323-25
for the acquisition and exercise by CSXC and CSXT of control of LD&RT,
and the common control of LD&RT and CSXT and the other rail carriers
controlled by CSXT and/or CSXC. LD&RT, a Class III railroad in which
CSXT and CRC each currently owns a 50% voting stock interest, operates
approximately 17 miles of yard tracks at Oregon, OH.
In STB Finance Docket No. 33388 (Sub-No. 27), NW and CSXT have
filed a notice of exemption under 49 CFR 1180.2(d)(7) regarding the
acquisition by NW of overhead trackage rights over approximately 5 to 6
miles of a CSXT line between Columbus, OH (Parsons Yard), at or near
CSXT MP CJ 71.5, and Scioto, OH, at or near CSXT MP CK 2.5.
In STB Finance Docket No. 33388 (Sub-No. 28), CSXT and NW have
filed a notice of exemption under 49 CFR 1180.2(d)(7) regarding the
acquisition by CSXT of overhead trackage rights over approximately 2.02
miles of a NW line between Columbus, OH (Watkins Yard), at or near NW
MP N-696.7, and Bannon, OH, at or near NW MP N-698.72.
In STB Finance Docket No. 33388 (Sub-No. 29), CSXT and NW have
filed a notice of exemption under 49 CFR 1180.2(d)(7) regarding the
acquisition by CSXT of overhead trackage rights over approximately 1.4
miles of a NW line between Erie Junction (Delray), MI, at or near MP
D4.4, and Ecorse Junction, MI, at or near MP D5.8.
In STB Finance Docket No. 33388 (Sub-No. 30), NW and CSXT have
filed
[[Page 39587]]
a notice of exemption under 49 CFR 1180.2(d)(7) regarding the
acquisition by NW of overhead trackage rights over approximately 1.7
miles of a CSXT line between the connection of two CSXT lines near
Washington Street at or near MP 123.7, and the connection of two CSXT
lines at Pine at or near MP 122.0, in Indianapolis, IN.
In STB Finance Docket No. 33388 (Sub-No. 31), CSXC and CSXT have
filed a petition under 49 U.S.C. 10502 for exemption from the
provisions of 49 U.S.C. 11323-25, to the extent those provisions may
apply, regarding the acquisition by CSXC and CSXT of control of Albany
Port Railroad Corporation (APR). APR, which operates approximately 16.5
miles of track at the Port of Albany, NY, is owned in equal 50% shares
by CRC and D&H Corporation (D&H, an affiliate of Canadian Pacific
Limited); and, if the primary application is approved, CRC's 50%
interest in APR will be allocated to CSXT in the Division.
27
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\27\ Implicit in the Sub-No. 31 docket is a request for a
determination that acquisition by CSXC and CSXT of a 50% interest in
APR will not enable CSXC and CSXT to ``control'' APR within the
meaning of 49 U.S.C. 11323.
---------------------------------------------------------------------------
In STB Finance Docket No. 33388 (Sub-No. 32), NW and B&OCT have
filed a notice of exemption under 49 CFR 1180.2(d)(7) regarding the
acquisition by NW of overhead trackage rights over approximately 9.8
miles of the IHB McCook Branch between the connection of IHB and B&OCT
at McCook, Il, at or near MP 28.5, and the connection of IHB and
Canadian Pacific Rail System at Franklin Park, IL, at MP 39.3.
28
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\28\ Applicants indicate that the Sub-No. 32 trackage rights
run for approximately 9.8 miles. See CSX/NS-22 at 420 and 425. By
our calculations, however, these trackage rights would appear to run
for approximately 10.8 miles.
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In STB Finance Docket No. 33388 (Sub-No. 33), NW and B&OCT have
filed a notice of exemption under 49 CFR 1180.2(d)(7) regarding the
acquisition by NW of trackage rights over B&OCT's Barr Subdivision
between the connection of the NSR Chicago Line and the B&OCT line at
Pine Junction, IN (CP 497) and: (i) the connection with B&OCT's McCook
Subdivision at Blue Island Junction, IL, at or near MP DC 14.9, a
distance of approximately 14.9 miles; and beyond to (ii) the B&OCT/IHB
connection at McCook, IL, at or near MP 28.5, a distance of
approximately 13.6 miles.
In STB Finance Docket No. 33388 (Sub-No. 34), CSXT and NW have
filed a notice of exemption under 49 CFR 1180.2(d)(7) regarding the
acquisition by CSXT of overhead trackage rights over approximately 45.5
miles of a NW line between Bucyrus, OH, at or near NW MP S-63.0, and
Sandusky, OH, at or near NW MP S-108.5. The trackage rights to be
acquired by CSXT, although described as ``overhead'' trackage rights,
will allow CSXT to access 2-to-1 shippers at Sandusky.
In STB Docket Nos. AB-167 (Sub-No. 1181X) and AB-55 (Sub-No. 551X),
CRC and CSXT, respectively, have filed a notice of exemption under 49
CFR 1152.50 to abandon an approximately 29-mile portion of the Danville
Secondary Track between MP 93.00 at Paris, IL, and MP
122.00 at Danville, IL, in Edgar and Vermilion Counties,
IL. The line, which is presently owned and operated by CRC and which is
proposed to be operated by CSXT pursuant to the authority sought in the
primary application, traverses United States Postal Service Zip Codes
61846, 61870, 61883, 61924, and 61944.
In STB Docket No. AB-290 (Sub-No. 194X), NW has filed a notice of
exemption under 49 CFR 1152.50 to abandon a line between MP SK-2.5 near
South Bend, IN, and MP SK-24.0 near Dillon Junction, IN, a distance of
approximately 21.5 miles in St. Joseph and La Porte Counties, IN. The
line traverses or adjoins United States Postal Service Zip Codes 46613,
46614, 46619, 46536, 46554, and 46365.
In STB Docket No. AB-290 (Sub-No. 195X), NW has filed a petition
under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C.
10903 to abandon a line between MP I-137.3 near Dillon Junction, IN,
and MP I-158.8 near Michigan City, IN, a distance of approximately 21.5
miles in La Porte County, IN. The line traverses or adjoins United
States Postal Service Zip Codes 46350 and 46360.
In STB Docket No. AB-290 (Sub-No. 196X), NW has filed a petition
under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C.
10903 to abandon a line between MP TM-5.0 in Toledo, OH, and MP TM-12.5
near Maumee, OH, a distance of approximately 7.5 miles in Lucas County,
OH. The line traverses or adjoins United States Postal Service Zip
Codes 43612, 43613, 43606, 43607, 43609, and 43614.
In STB Docket No. AB-290 (Sub-No. 197X), NW has filed a notice of
exemption under 49 CFR 1152.50 to abandon the Toledo Pivot Bridge
extending between MP CS-2.8 and MP CS-3.0 near Toledo, OH, a distance
of approximately 0.2 miles in Lucas County, OH. The line traverses or
adjoins either United States Postal Service Zip Code 42611 or United
States Postal Service Zip Code 43611 (see CSX/NS-22 at 84-86).
Primary Application and Related Filings Accepted.
We are accepting the primary application for consideration because
it is in substantial compliance with the applicable regulations,
waivers, and requirements. See 49 U.S.C. 11321-25; 49 CFR part 1180. We
are also accepting for consideration all of the related filings, which
are also in substantial compliance with the applicable regulations,
waivers, and requirements. 29
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\29\ We reserve the right to require the filing of supplemental
information from applicants or any other party or individual, if
necessary to complete the record in this matter.
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Public Inspection.
The primary application and all related filings, including the
various accompanying exhibits, are available for inspection in the
Docket File Reading Room (Room 755) at the offices of the Surface
Transportation Board, 1925 K Street, N.W., in Washington, DC.
Procedural Schedule
In Decision No. 6, served May 30, 1997, and published that day in
the Federal Register at 62 FR 29387, we adopted a procedural
schedule.30 To provide further notice to interested persons,
we have attached that schedule to this decision as Appendix B and have
filled in all of the dates.
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\30\ In Decision No. 9, we added to the procedural schedule
adopted in Decision No. 6 by requiring applicants to file, by
September 5, 1997, Preliminary Draft Environmental Assessments for
the construction projects referenced in the STB Finance Docket No.
33388 (Sub-Nos. 1, 2, 3, 4, 5, 6, and 7) embraced dockets. As
indicated in the notice published in the Federal Register on July
11, 1997 (62 FR 37331), we will consider on an expedited basis, in
advance of our consideration of the primary application: (i) the
physical construction of the Crestline connection track, as proposed
in the STB Finance Docket No. 33388 (Sub-No. 1) embraced docket; and
(ii) operation thereover by CSXT. As indicated in the notices
published in the Federal Register concurrently herewith, we will
consider on an expedited basis, in advance of our consideration of
the primary application: (i) the physical construction of the Willow
Creek, Greenwich, Sidney Junction, Sidney, Alexandria, and Bucyrus
connection tracks, as proposed in the STB Finance Docket No. 33388
(Sub-Nos. 2, 3, 4, 5, 6, and 7) embraced dockets, respectively; and
(ii) operation thereover by applicants. As further indicated in the
notice published on July 11, 1997, and in the notices published
concurrently herewith, the operational implications of the
transactions proposed in the primary application and in the related
filings as a whole, including proposed operations over the
Crestline, Willow Creek, Greenwich, Sidney Junction, Sidney,
Alexandria, and Bucyrus connection tracks, if authorized, will be
examined in the context of the EIS that will be prepared by SEA.
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Notice of Intent to Participate
Any person who wishes to participate in this proceeding as a party
of record
[[Page 39588]]
(POR) must file with the Secretary of the Board, no later than August
7, 1997, an original plus 25 copies of a notice of intent to
participate, accompanied by a certificate of service indicating that
the notice has been properly served on Judge Leventhal and on
applicants' representatives.
We will serve, as soon as practicable after August 7, 1997, a
notice containing the official service list (the service list notice).
Each party of record will be required to serve upon all other parties
of record, within 10 days of the service date of the service list
notice, copies of all filings previously submitted by that party (to
the extent such filings have not previously been served upon such other
parties). Each party of record will also be required to file with the
Secretary of the Board, within 10 days of the service date of the
service list notice, an original plus five copies of a certificate of
service indicating that the service required by the preceding sentence
has been accomplished. Every filing made by a party of record after the
service date of the service list notice must have its own certificate
of service indicating that both Judge Leventhal and all PORs on the
service list have been served with a copy of the filing. Members of the
United States Congress (MOCs) and Governors (GOVs) are not parties of
record (PORs) and therefore need not be served with copies of filings,
unless any such Member or Governor is designated as a POR.
As noted in Decision No. 6, slip op. at 5, 62 FR at 29389, we will
serve copies of our decisions, orders, and notices only on those
persons who are designated on the official service list as either POR,
MOC, or GOV. All other interested persons are encouraged to make
advance arrangements with the Board's copy contractor, DC News & Data,
Inc. (DC News), to receive copies of Board decisions, orders, and
notices served in this proceeding. DC News will handle the collection
of charges and the mailing and/or faxing of decisions, orders, and
notices to persons who request this service. The telephone number for
DC News is: (202) 289-4357.31
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\31\ An interested person does not need to be on the service
list to obtain a copy of the primary application or any other filing
made in this proceeding. Our Railroad Consolidation Procedures
provide: ``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.'' See 49 CFR 1180.4(a)(3), as recently amended in Railroad
Consolidation Procedures--Modification of Fee Policy, STB Ex Parte
No. 556, 62 FR 9714, 9717 (Mar. 4, 1997) (interim rules), 62 FR
28375 (May 23, 1997) (final rules). Furthermore, DC News will
provide, for a charge, copies of the primary application or any
other filing made in this proceeding, except to the extent any such
filing is subject to the protective order heretofore entered in this
proceeding.
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Descriptions of, and Petitions Respecting, Responsive (Including
Inconsistent) Applications
Because the transaction proposed by applicants constitutes a major
transaction within the meaning of our rail consolidation rules (49 CFR
part 1180),32 railroads intending to file responsive
(including inconsistent) applications must submit descriptions of those
applications by August 22, 1997. The description must state that the
commenting railroad intends to file an application seeking affirmative
relief that requires an application to be filed with the Board (e.g.,
divestiture, purchase, trackage rights, inclusion, construction, or
abandonment) and must include a general statement of what that
application is expected to include. This will be considered a prefiling
notice without which the Board will not entertain applications for this
type of relief.
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\32\ See Decision No. 2, served April 21, 1997, and published
that day in the Federal Register at 62 FR 19390.
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Petitions for waiver or clarification by responsive (including
inconsistent) applicants must be filed by August 22, 1997. Each
responsive (including inconsistent) application filed and accepted will
be consolidated with the primary application in this proceeding.
Parties should contact the Office of the Secretary, Case Control Unit,
at 202-565-1681 to obtain docket numbers for their responsive
(including inconsistent) applications.
Any responsive (including inconsistent) applicant must file, by
October 1, 1997, either: (1) A verified statement that the responsive
(including inconsistent) application will have no significant
environmental impact; or (2) a responsive environmental report (RER)
that contains detailed environmental information regarding the
responsive (including inconsistent) application. See Decision No. 6,
slip op. at 3-4, 62 FR at 29388-89.
Responsive (Including Inconsistent) Applications, Comments, Protests,
Requests for Conditions, and Other Opposition Evidence and Argument
Any interested persons, including the U.S. Secretary of
Transportation and the U.S. Attorney General, may file written
comments, protests, requests for conditions, and any other opposition
evidence and argument, and/or responsive (including inconsistent)
applications, no later than October 21, 1997. This deadline applies to
comments, etc., addressing either the primary application or any of the
related filings submitted with the primary application. An original and
25 copies of such comments, etc., must be filed with the Surface
Transportation Board, Office of the Secretary, Case Control Unit,
ATTN.: STB Finance Docket No. 33388, 1925 K Street, N.W., Washington,
DC 20423-0001. In addition, as previously noted, parties are also
requested to submit one electronic copy of each document filed with the
Board. Further details respecting such electronic submissions are
provided below.
Written comments, etc., must be concurrently served by first class
mail on the U.S. Secretary of Transportation, the U.S. Attorney
General, Judge Leventhal, applicants' representatives, and all other
parties of record.
Written comments, etc., shall include: (1) The docket number and
title of the proceeding; (2) the name, address, and telephone number of
the commenting party and its representative upon whom service shall be
made; (3) the commenting party's position, i.e., whether it supports or
opposes the proposed transaction; (4) a list of any specific protective
conditions sought; and (5) an analysis of the issues with particular
attention to our general policy statement for the merger or control of
at least two Class I railroads (49 CFR 1180.1), the statutory criteria
(49 U.S.C. 11324), and antitrust policy.
Protesting parties are advised that, if they seek either the denial
of the primary application or the imposition of conditions upon any
approval thereof, on the theory that approval without imposition of
conditions will harm either their ability to provide essential services
and/or competition, they must present substantial evidence in support
of their positions. See Lamoille Valley R.R. Co. v. ICC, 711 F.2d 295
(D.C. Cir. 1983).
Other Dates
The procedural schedule adopted in Decision No. 6 further provides:
(1) that rebuttal in support of the primary application, or in support
of any of the related filings, must be filed by December 15, 1997; (2)
that responses to any responsive (including inconsistent) applications,
as well as responses to all comments, protests, requests for
conditions, and other opposition evidence and argument, must also be
filed by December 15, 1997; (3) that rebuttal in support of any
responsive (including inconsistent) applications must be filed by
January 14, 1998; (4) that briefs may be filed by February 23, 1998;
(5) that oral argument will be
[[Page 39589]]
heard on April 9, 1998; (6) that, at the discretion of the Board, a
voting conference will be held on April 14, 1998; and (7) that the
final written decision, addressing the primary application and the
related filings, and also addressing any responsive (including
inconsistent) applications, will be served on June 8, 1998.
Dates Respecting Abandonments
We will process the abandonments proposed by applicants in
accordance with the overall procedural schedule, rather than applying
the procedural schedules required by 49 U.S.C. 10904 and our 49 CFR
part 1152 abandonment regulations.33 Therefore, with respect
to each related abandonment proposal: (1) in order to be designated a
party of record (POR), a person must file with the Secretary of the
Board, no later than August 7, 1997, an original plus 25 copies of a
notice of intent to participate along with a certificate of service
indicating that the notice has been properly served on Judge Leventhal
and on applicants' representatives; (2) opposition submissions,
requests for public use conditions,34 and/or Trails Act
requests 35 must be filed by October 21, 1997; (3) rebuttal
in support of the abandonment proposals, and/or responses to any
requests for public use conditions and Trails Act requests, must be
filed by December 15, 1997; (4) as with the primary application and all
related matters, briefs may be filed by February 23, 1998, oral
argument will be held on April 9, 1998, and a voting conference will be
held, at the Board's discretion, on April 14, 1998; and (5) if, in the
final decision served on June 8, 1998, we approve the primary
application, we shall also address, in that final decision, each of the
abandonment proposals, and all matters (including requests for public
use conditions and Trails Act requests) relative thereto; and if we
exempt any of the abandonment proposals, we shall require interested
persons to file, no later than 10 days after the date of service of the
final decision, offers of financial assistance 36 with
respect to any of the exempted abandonments.
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\33\ All references herein to our 49 CFR part 1152 abandonment
regulations are to our new regulations, which took effect on January
23, 1997. See Abandonment and Discontinuance of Rail Lines and Rail
Transportation Under 49 U.S.C. 10903, STB Ex Parte No. 537, 61 FR
67876 (Dec. 24, 1996), 62 FR 34669 (June 27, 1997).
\34\ See 49 CFR 1152.28 (61 FR at 67894).
\35\ See 49 CFR 1152.29 (61 FR at 67894-96).
\36\ See 49 CFR 1152.27 (61 FR at 67891-94).
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Discovery
In Decision No. 1, served April 16, 1997, this proceeding was
assigned to Judge Leventhal for the handling of all discovery matters
and the initial resolution of all discovery disputes. In Decision No.
10, served June 27, 1997, Judge Leventhal adopted discovery guidelines
to govern the conduct of discovery in this proceeding.
Deadlines Applicable to Appeals and Replies
As noted in Decision No. 6, slip op. at 7, 62 FR at 29390: any
appeal to a decision issued by Judge Leventhal must be filed within 3
working days of the date of his decision; any response to any such
appeal must be filed within 3 working days of the date of filing of the
appeal; and any reply to any motion filed with the Board itself in the
first instance must be filed within 3 working days of the date of
filing of the motion.
Environmental Review Process Scope
By notice served July 3, 1997, and published in the Federal
Register on July 7, 1997, at 62 FR 36332, the Board's Section of
Environmental Analysis (SEA): (a) provided notice to interested persons
that, to evaluate and consider the potential environmental impacts that
may result from the transactions proposed in the primary application
and in the related filings, SEA intends to prepare an environmental
impact statement (EIS); (b) set out the draft scope of the EIS that SEA
intends to prepare; (c) directed that written comments respecting the
draft scope be filed by August 6, 1997; and (d) set forth projected
time frames for conducting the EIS process.
Electronic Submissions
In addition to submitting an original and 25 paper copies of each
document filed with the Board, parties are also requested to submit, on
diskettes (3.5-inch IBM-compatible floppies) or compact discs, one
electronic copy of each such document. Textual materials must be in, or
convertible into, WordPerfect 7.0. Spreadsheets must be in, or
convertible into, Lotus 1-2-3 Version 7.37 Each diskette or
compact disc should be clearly labeled with the identification acronym
and number of the corresponding paper document, see 49 CFR
1180.4(a)(2), and a copy of such diskette or compact disc should be
provided to any other party upon request. The data contained on the
diskettes and compact discs submitted to the Board will be subject to
the protective order granted in Decision No. 1, served April 16, 1997
(as modified in Decision No. 4, served May 2, 1997), and will be for
the exclusive use of Board employees reviewing substantive and/or
procedural matters in this proceeding. The flexibility provided by such
computer data will facilitate timely review by the Board and its staff.
38
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\37\ Parties intending to submit spreadsheets in formats other
than Lotus 1-2-3 Version 7 may wish to consult with our staff
regarding such submissions. Some (though not all) spreadsheets
prepared in other formats, though perhaps not convertible into Lotus
1-2-3 Version 7, may nevertheless be useable by our staff. For
further information, contact Julia M. Farr, (202) 565-1613.
\38\ The electronic submission requirements set forth in this
decision supersede, for the purposes of this proceeding, the
otherwise applicable electronic submission requirements set forth in
our regulations. See 49 CFR 1104.3(a), as amended in Expedited
Procedures for Processing Rail Rate Reasonableness, Exemption and
Revocation Proceedings, STB Ex Parte No. 527, 61 FR 52710, 52711
(Oct. 8, 1996), 61 FR 58490, 58491 (Nov. 15, 1996).
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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 primary application in STB Finance Docket No. 33388, and the
related filings in the various embraced dockets listed in Appendix A,
are accepted for consideration.
2. The parties shall comply with the procedural requirements
described in this decision.
3. Any appeal to a decision issued by Judge Leventhal must be filed
within 3 working days of the date of his decision, and any response to
any such appeal must be filed within 3 working days of the date of
filing of the appeal.
4. Any reply to any motion filed with the Board itself in the first
instance must be filed within 3 working days of the date of filing of
the motion.
5. This decision is effective on July 23, 1997.
Decided: July 15, 1997.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
Appendix A--Embraced Proceedings
This decision covers both the STB Finance Docket No. 33388 lead
proceeding and the following embraced proceedings:
STB Finance Docket No. 33388 (Sub-No. 1), CSX Transportation,
Inc.--Construction and Operation Exemption--Connection Track at
Crestline, OH;
STB Finance Docket No. 33388 (Sub-No. 2), CSX Transportation,
Inc.--Construction and Operation Exemption--Connection Track at Willow
Creek, IN;
[[Page 39590]]
STB Finance Docket No. 33388 (Sub-No. 3), CSX Transportation,
Inc.--Construction and Operation Exemption--Connection Tracks at
Greenwich, OH;
STB Finance Docket No. 33388 (Sub-No. 4), CSX Transportation,
Inc.--Construction and Operation Exemption--Connection Track at Sidney
Junction, OH;
STB Finance Docket No. 33388 (Sub-No. 5), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Union Pacific Railroad Company at Sidney, IL;
STB Finance Docket No. 33388 (Sub-No. 6), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Consolidated Rail Corporation at Alexandria, IN;
STB Finance Docket No. 33388 (Sub-No. 7), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Consolidated Rail Corporation at Bucyrus, OH;
STB Finance Docket No. 33388 (Sub-No. 8), CSX Transportation,
Inc.--Construction and Operation Exemption--Connection Track at Little
Ferry, NJ;
STB Finance Docket No. 33388 (Sub-No. 9), CSX Transportation, Inc.
and The Baltimore and Ohio Chicago Terminal Railroad Company--
Construction and Operation Exemption--Connection Track at 75th Street
SW, Chicago, IL;
STB Finance Docket No. 33388 (Sub-No. 10), CSX Transportation,
Inc.--Construction and Operation Exemption--Connection Track at
Exermont, IL;
STB Finance Docket No. 33388 (Sub-No. 11), CSX Transportation, Inc.
and The Baltimore and Ohio Chicago Terminal Railroad Company--
Construction and Operation Exemption--Connection Track at Lincoln
Avenue, Chicago, IL;
STB Finance Docket No. 33388 (Sub-No. 12), Norfolk Southern Railway
Company--Construction and Operation Exemption--Connecting Track With
Consolidated Rail Corporation at Kankakee, IL;
STB Finance Docket No. 33388 (Sub-No. 13), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Illinois Central Railroad Company at Tolono, IL;
STB Finance Docket No. 33388 (Sub-No. 14), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Consolidated Rail Corporation at Butler, IN;
STB Finance Docket No. 33388 (Sub-No. 15), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Consolidated Rail Corporation at Tolleston, IN;
STB Finance Docket No. 33388 (Sub-No. 16), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Consolidated Rail Corporation at Hagerstown, MD;
STB Finance Docket No. 33388 (Sub-No. 17), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Consolidated Rail Corporation at Ecorse Junction (Detroit), MI;
STB Finance Docket No. 33388 (Sub-No. 18), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Consolidated Rail Corporation at Blasdell (Buffalo), NY;
STB Finance Docket No. 33388 (Sub-No. 19), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Consolidated Rail Corporation at Gardenville Junction (Buffalo),
NY;
STB Finance Docket No. 33388 (Sub-No. 20), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Consolidated Rail Corporation at Columbus, OH;
STB Finance Docket No. 33388 (Sub-No. 21), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Consolidated Rail Corporation at Oak Harbor, OH;
STB Finance Docket No. 33388 (Sub-No. 22), Norfolk and Western
Railway Company--Construction and Operation Exemption--Connecting Track
With Consolidated Rail Corporation at Vermilion, OH;
STB Finance Docket No. 33388 (Sub-No. 23), Norfolk and Western
Railway Company--Joint Relocation Project Exemption--Over CSX
Transportation, Inc. (Currently Consolidated Rail Corporation) at Erie,
PA;
STB Finance Docket No. 33388 (Sub-No. 24), Consolidated Rail
Corporation-- Acquisition Exemption--Line Between Fort Wayne, IN, and
Tolleston (Gary), IN;
STB Finance Docket No. 33388 (Sub-No. 25), Norfolk and Western
Railway Company--Trackage Rights Exemption--CSX Transportation, Inc.;
STB Finance Docket No. 33388 (Sub-No. 26), CSX Corporation and CSX
Transportation, Inc.--Control--The Lakefront Dock and Railroad Terminal
Company;
STB Finance Docket No. 33388 (Sub-No. 27), Norfolk and Western
Railway Company--Trackage Rights Exemption--CSX Transportation, Inc.;
STB Finance Docket No. 33388 (Sub-No. 28), CSX Transportation,
Inc.-- Trackage Rights Exemption--Norfolk and Western Railway Company;
STB Finance Docket No. 33388 (Sub-No. 29), CSX Transportation,
Inc.-- Trackage Rights Exemption--Norfolk and Western Railway Company;
STB Finance Docket No. 33388 (Sub-No. 30), Norfolk and Western
Railway Company--Trackage Rights Exemption--CSX Transportation, Inc.;
STB Finance Docket No. 33388 (Sub-No. 31), CSX Corporation and CSX
Transportation, Inc.--Control Exemption--Albany Port Railroad
Corporation;
STB Finance Docket No. 33388 (Sub-No. 32), Norfolk and Western
Railway Company--Trackage Rights Exemption--The Baltimore and Ohio
Chicago Terminal Railroad Company;
STB Finance Docket No. 33388 (Sub-No. 33), Norfolk and Western
Railway Company--Trackage Rights Exemption--The Baltimore and Ohio
Chicago Terminal Railroad Company;
STB Finance Docket No. 33388 (Sub-No. 34), CSX Transportation,
Inc.-- Trackage Rights Exemption--Norfolk and Western Railway Company;
STB Docket No. AB-167 (Sub-No. 1181X), Consolidated Rail
Corporation-- Abandonment Exemption--In Edgar and Vermilion Counties,
IL;
STB Docket No. AB-55 (Sub-No. 551X), CSX Transportation, Inc.--
Abandonment Exemption--In Edgar and Vermilion Counties, IL;
STB Docket No. AB-290 (Sub-No. 194X), Norfolk and Western Railway
Company--Abandonment Exemption--Between South Bend and Dillon Junction
in St. Joseph and La Porte Counties, IN;
STB Docket No. AB-290 (Sub-No. 195X), Norfolk and Western Railway
Company--Abandonment Exemption--Between Dillon Junction and Michigan
City in La Porte County, IN;
STB Docket No. AB-290 (Sub-No. 196X), Norfolk and Western Railway
Company--Abandonment Exemption--Between Toledo and Maumee in Lucas
County, OH; and
STB Docket No. AB-290 (Sub-No. 197X), Norfolk and Western Railway
Company--Abandonment Exemption--Toledo Pivot Bridge in Lucas County,
OH.
[[Page 39591]]
Appendix B: Procedural Schedule
May 16, 1997 Preliminary Environmental Report filed.
June 23, 1997 Primary application and related filings filed.
Environmental Report filed.
July 23, 1997 Publication in the Federal Register, by this date, of:
notice of acceptance of primary application and related filings; and
notice of the five related abandonment filings.
August 6, 1997 Comments on the draft scope of the Environmental Impact
Statement due.39
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\39\ See the notice served July 3, 1997, and published in the
Federal Register on July 7, 1997, at 62 FR 36332. As indicated in
that notice, slip op. at 3, 62 FR at 36333, it is not necessary to
be a party of record to file comments on the draft scope of the EIS
and/or to participate in the environmental review process.
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August 7, 1997 Notice of intent to participate in proceeding due.
August 22, 1997 Description of anticipated responsive (including
inconsistent) applications due; petitions for waiver or clarification
due with respect to such applications.
September 5, 1997 Preliminary Draft Environmental Assessments for the
construction projects referenced in Decision No. 9 due.
October 1, 1997 Responsive Environmental Report and Environmental
Verified Statements of responsive (including inconsistent) applicants
due.
October 21, 1997 Responsive (including inconsistent) applications due.
All comments, protests, and requests for conditions, and any other
opposition evidence and argument, due.40 Comments of the
U.S. Secretary of Transportation and the U.S. Attorney General due.
With respect to all related abandonments: opposition submissions,
requests for public use conditions, and Trails Act requests due.
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\40\ As indicated in the notice published in the Federal
Register on July 11, 1997 (62 FR 37331), petitions for
reconsideration with respect to the physical construction of the
Crestline connection track, as proposed in the STB Finance Docket
No. 33388 (Sub-No. 1) embraced docket, and/or operation thereover by
CSXT, are due by July 31, 1997. As indicated in the notices
published in the Federal Register concurrently herewith, comments
respecting the physical construction of the Willow Creek, Greenwich,
Sidney Junction, Sidney, Alexandria, and Bucyrus connection tracks,
as proposed in the STB Finance Docket No. 33388 (Sub-Nos. 2, 3, 4,
5, 6, and 7) embraced dockets, respectively, and/or operation
thereover by applicants, are due by August 22, 1997.
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November 20, 1997 Notice of acceptance (if required) of responsive
(including inconsistent) applications published in the Federal
Register.
December 15, 1997 Response to responsive (including inconsistent)
applications due. Response to comments, protests, requested conditions,
and other opposition evidence and argument due. Rebuttal in support of
primary application and related filings due. With respect to all
related abandonments: rebuttal due; and responses to requests for
public use and Trails Act conditions due.
January 14, 1998 Rebuttal in support of responsive (including
inconsistent) applications due.
February 23, 1998 Briefs due, all parties (not to exceed 50 pages).
April 9, 1998 Oral argument (close of record).
April 14, 1998 Voting conference (at Board's discretion).
June 8, 1998 Date of service of final decision. With respect to any
exempted abandonments: offers of financial assistance may be filed no
later than 10 days after the date of service of the final decision.
Notes: 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, 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. Discovery on
responsive (including inconsistent) applications will begin
immediately upon their filing.
[FR Doc. 97-19372 Filed 7-22-97; 8:45 am]
BILLING CODE 4915-00-P