[Federal Register Volume 63, Number 99 (Friday, May 22, 1998)]
[Notices]
[Pages 28442-28444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13776]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board
[STB Finance Docket No. 33556 \1\ et al.]


Railroad Operation, Acquisition, Construction, Etc: Canadian 
National Railway Co. et al.

AGENCY: Surface Transportation Board.

    \1\ These proceedings are not consolidated. A single decision is 
being issued for administrative convenience only. In addition, this 
oversight matter was recently assigned the Sub-No. 26 docket number 
and a new case title.
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ACTION: Decision No. 3 in STB Finance Docket No. 32760 (Sub-No. 26) and 
Decision No. 3 in STB Finance Docket No. 33556; Denial of general 
waiver.

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SUMMARY: The Surface Transportation Board (Board) is denying petitions 
for reconsideration in these proceedings of the requirement that 
parties submit copies of all textual materials on diskettes (disks) or 
compact discs (CDs). Parties may, however, seek individual waivers of 
the disk filing requirement.

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

SUPPLEMENTARY INFORMATION: On March 26, 1998, Joseph C. Szabo, for and 
on behalf of the United Transportation Union--Illinois Legislative 
Board (UTUIL), filed a petition for reconsideration of Decision No. 2 
in the STB Finance Docket No. 33556 proceeding served and published in 
the Federal Register on March 13, 1998 (63 FR 12574).\2\ On April 20, 
1998, UTU Committees \3\ filed a petition for reconsideration of 
Decision No. 1 in the STB Finance Docket No. 32760 (Sub-No. 26) 
proceeding (formerly Decision No. 12 in STB Finance Docket No. 32760 
(Sub-No. 21)), which was served on March 31, 1998, and published in the 
Federal Register on April 3, 1998 (63 FR 16628).\4\ The petitions are 
nearly identical and will be considered together. UTU Committees seek 
reconsideration of the requirement in these proceedings that all 
parties submit copies of their textual materials on 3.5 inch IBM-
compatible disks or CDs.\5\

[[Page 28443]]

Applicants in STB Finance Docket No. 33556 filed a reply opposing the 
relief sought by UTU Committees.
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    \2\ In that decision the Board announced, inter alia, that, 
pursuant to 49 CFR 1180.4(b), Canadian National Railway Company 
(CNR), Grand Trunk Corporation, and Grand Trunk Western Railroad 
Incorporated (GTW), Illinois Central Corporation (IC Corp.), 
Illinois Central Railroad Company (ICR), Chicago, Central and 
Pacific Railroad Company, and Cedar River Railroad Company 
(collectively, applicants) had notified us of their intent to file 
an application seeking authority under 49 U.S.C. 11323-25 for the 
acquisition of control, by CNR, through its indirect wholly owned 
subsidiary Blackhawk Merger Sub, Inc., of IC Corp., and through it 
of ICR and its railroad affiliates, and for the resulting common 
control by CNR of GTW and its railroad affiliates and ICR and its 
railroad affiliates. The Board found this to be a major transaction 
as defined in 49 CFR part 1180.
    \3\ In what is now STB Finance Docket No. 32760 (Sub-No. 26), 
the petition for reconsideration was filed by UTU-IL, and by United 
Transportation Union-General Committee of Adjustment (GO-386), 
United Transportation Union-General Committee of Adjustment (GO-
401), and United Transportation Union-General Committee of 
Adjustment (ALS). We will refer to the petitioners in both 
proceedings collectively as UTU Committees.
    \4\ In that decision, the Board instituted a proceeding as part 
of the 5-year oversight condition that it imposed in Union Pacific 
Corporation, Union Pacific Railroad Company, and Missouri Pacific 
Railroad Company--Control and Merger--Southern Pacific Rail 
Corporation, Southern Pacific Transportation Company, St. Louis 
Southwestern Railway Company, SPCSL Corp., and The Denver and Rio 
Grande Western Railroad Company, Finance Docket No. 32760 (UP/SP 
Merger), Decision No. 44 (STB served Aug. 12, 1996), to examine 
additional remedial conditions to the UP/SP merger as they pertain 
to rail service in the Houston, Texas/Gulf Coast region.
    \5\ In Decision No. 2 at 3 and Decision No. 1 at 3, we directed 
that:
    [i]n addition to submitting an original and 25 copies of all 
paper documents filed with the Board, the parties shall also submit, 
on diskettes or compact discs, copies of all textual materials * * 
*. Data must be submitted on 3.5 inch IBM-compatible floppy 
diskettes or compact discs.
    Parties were also directed to submit ``electronic workpapers, 
data bases, and spreadsheets'' on disks or CDs. We also stated that 
a copy of each disk or CD should be given to any other party upon 
request.
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    We stated in Decision No. 2 and Decision No. 1 that the submission 
of computer data on disks and CDs was needed for the efficient review 
of filings by the Board and our staff. We found that the disk/CD 
requirement superseded for these proceedings the otherwise applicable 
electronic filing requirements in Expedited Procedures for Processing 
Rail Rate Reasonableness, Exemption and Revocation Proceedings, STB Ex 
Parte No. 527 (STB served Oct. 1, 1996 and Nov. 15, 1996), aff'd sub 
nom. United Transp. Union--Ill. Legis. Bd. v. STB et al., 132 F.3d 71 
(D.C. Cir. 1998) (Ex Parte No. 527) and codified at 49 CFR 1104.3(a). 
Those rules require parties to submit computer disks for pleadings of 
20 or more pages and for spreadsheets.\6\
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    \6\ Section 1104.3 reads in relevant part:
    (a) * * * In addition to the paper copies required to be filed 
with the Board, 3 copies of:
    (1) Textual submissions of 20 or more pages; and
    (2) All electronic spreadsheets should be submitted on 3.5 inch, 
IBM compatible formatted diskettes or QIC-80 tapes. Textual 
materials must be in WordPerfect 5.1 format, and electronic 
spreadsheets must be in LOTUS 1-2-3 release 5 or earlier format. One 
copy of each such computer diskette or tape submitted to the Board 
should, if possible, be provided to any other party requesting a 
copy.
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    UTU Committees contend that mandating that all textual material be 
filed on disks constitutes material error. They argue that, by 
superseding the applicable disk rule at 49 CFR 1104.3(a), our disk/CD 
requirement in STB Finance Docket Nos. 32760 (Sub-No. 26) and 33556 
precludes meaningful participation in those cases by railroad employees 
as well as the general public. They allege that many railway employees 
do not have access to computers, and they would not be able to provide 
copies of disks to the many parties likely to participate in the 
proceeding.\7\ They argue, moreover, that the burdens on local labor 
units will prevent them from actively participating, which, they 
assert, would be a denial of due process.
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    \7\ We note that, under our Decision No. 2 and Decision No. 1 
procedures, electronic copies are provided only upon request of 
another party, and under 49 CFR 1104.3, the requested disks are only 
provided to other parties ``if possible.''
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    UTU Committees also claim that the requirements of Decision No. 2 
and Decision No. 1 are inconsistent with the Ex Parte No. 527 
procedures because disks will contain more rather than less information 
than the paper filings, and they are required for all filings, not just 
lengthy ones. They also contend that there is no waiver provision for 
the Decision No. 2 and Decision No. 1 disk/CD requirement. UTU 
Committees ask that we reconsider the mandatory disk requirement and 
restore application of the section 1104.3 rule.\8\
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    \8\ UTU Committees also request that, if the waiver provision is 
available, that the Board waive the disk/CD requirement and 
reinstate the 20-page disk rule.
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    Finally, UTU Committees argue that the Board may have always 
intended that there be an absolute disk requirement, and ``the 20-page 
rule may have been merely an interim scheme to promote such a result.'' 
It also claims that the real reason for the rule is to inhibit 
participation by employees and ``to curry favor with carriers * * *.''
    In response to UTU Committee's petition, applicants in STB Finance 
Docket No. 33556 assert that the effort and expense needed to create a 
disk is minimal whether the submission is lengthy or less than 20 
pages. Further, they assert that where a party does not have access to 
a word processor, it should file an individual request for a waiver.

Discussion and Conclusions

    We will deny the petitions for reconsideration, but we will permit 
individual parties to seek a waiver of the disk/CD requirement. With 
this safeguard, we believe that the need to efficiently and 
expeditiously analyze the anticipated large number of filings outweighs 
the burden on parties of filing disks.
    While the disk/CD requirement in these proceedings broadens the 
regulation issued in Ex Parte No. 527, we believe that its purpose and 
its procedures are compatible with the 20-page rule. The Board issued 
the 20-page rule to assist the agency in its ``task of reviewing and 
analyzing voluminous records.'' October 1 decision at 2-3. In the 
context of that rule, ``voluminous'' referred to the length of the 
filing. Nevertheless, in situations such as merger proceedings where 
the number of pleadings can also be described as voluminous and where 
decisions must be issued promptly, we believe that imposing the disk 
requirement for all paper filings will enable the Board and our staff 
to efficiently review case filings.\9\ The 20-page rule is not an 
``interim scheme,'' but the STB Finance Docket No. 33556 merger and the 
UP/SP Houston/Gulf Coast Oversight by their natures have made us more 
dependent on electronic media.\10\ The use of disk/CDs in STB Finance 
Docket No. 33556 will help us reach a decision on the merits within the 
applicable statutory deadlines (see 49 U.S.C. 11325), and, in STB 
Finance Docket No. 32760 (Sub-No. 26), their use will assist us in 
issuing a decision as soon as possible after the record closes. 
Utilizing disks is consistent with the practice we have followed in 
other recent mergers where we ``encouraged'' or ``requested'' the 
filing of disks.\11\
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    \9\ While STB Finance Docket No. 32760 (Sub-No. 26) is not a 
merger proceeding but a merger oversight case, we still anticipate a 
large number of filings, and we must issue a decision in as timely 
manner as possible.
    \10\ For these reasons, the assertion that the disk requirement 
was intended to prevent participation by employees or to win the 
favor of railroads is baseless.
    \11\ See Union Pacific Corporation, Union Pacific Railroad 
Company, and Missouri Pacific Railroad Company--Control and Merger--
Southern Pacific Rail Corporation, Southern Pacific Transportation 
Company, St. Louis Southwestern Railway Company, SPCSL Corp., and 
The Denver and Rio Grande Western Railroad Company, Finance Docket 
No. 32760 (STB served Sept. 1, 1995); 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, STB Finance Docket 
No. 33388 (STB served May 30, 1997); and Burlington Northern Inc. 
and Burlington Northern Railroad Company--Control and Merger--Santa 
Fe Pacific Corporation and The Atchison, Topeka and Santa Fe Railway 
Company, Finance Docket No. 32549 (STB served Aug. 5, 1994).
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    We also believe that submitting a disk does not constitute a 
hardship, unless the party does not have access to a word processor or 
there is some other reason why filing would be difficult.\12\ In those 
situations, consistent with Ex Parte No. 527, such parties may seek a 
waiver of the disk filing requirement.\13\ UTU Committees contend that, 
while under 49 CFR 1110.9, any person may seek a waiver of a rule, the 
disk/CD requirement in this proceeding is not a ``rule'' and thus a 
waiver is not available. We note, however, that, under 49 CFR 1100.3, 
our rules are to be

[[Page 28444]]

liberally construed ``to secure just, speedy, and inexpensive 
determination of the issues presented.'' Accordingly, any person may 
seek a waiver of the disk/CD requirement in these proceedings. Parties 
should file the waiver request with the paper version of its filing, 
and we can rule upon the waiver even after the filing date.\14\
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    \12\ In STB Finance Docket No. 32760 (Sub-No. 26), UTU 
Committees claim that not only railroad employees, but ``other 
public parties'' would be harmed by requiring disks. They contend 
that a majority of such parties did not file disks in response to 
the decision in Review of Rail Access and Competition Issues, STB Ex 
Parte No. 575 (STB served Mar. 20, 1998). We believe that the disk 
filing requirement is reasonable. No other party has objected to it. 
Moreover, as discussed infra, the ability to file a waiver request 
should ameliorate any harm.
    \13\ The Court in Ex Parte No. 527 stated that ``UTU complains 
that the waiver rule denies due process to the union and to rail 
employees who do not have the necessary computer equipment or 
expertise to submit a disk * * *. We do not doubt, therefore, that 
the availability of the waiver provision adequately protects a party 
for whom compliance with the rule would be burdensome.'' 132 F.3d at 
75.
    \14\ As noted, UTU Committees indicate that, if the waiver 
provision is available, it seeks to have us waive the disk/CD 
requirement. We are not sure whether this request is being made on 
behalf of UTU Committees, local units, or individual railroad 
employees, or some combination of the above. UTU Committees maintain 
that in many cases railway employees lack access to computers. In 
those instances where this is true, there would appear to be valid 
grounds for a waiver, but each situation is best addressed on its 
own merits.
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    Finally, we are not sure how UTU Committees' argument that disks 
can contain more information than paper filings relates to the issue of 
the hardship of filing disks. In any event, in Decisions No. 1 and 2, 
we required that ``copies of all textual materials'' are to be 
submitted on disks. These disks are the electronic version or 
counterpart of the textual paper filing. The paper copy remains the 
official record. Thus, for the reasons discussed above, we are denying 
the petitions for reconsideration.
    Board decisions and notices are available on our website at 
``WWW.STB.DOT.GOV.''
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. UTU Committees' petitions for reconsideration are denied. 
Parties may individually seek a waiver from the disk/CD requirement.
    2. This decision is effective on the service date.

    Decided: May 14, 1998.

    By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 98-13776 Filed 5-21-98; 8:45 am]
BILLING CODE 4915-00-P