[Federal Register Volume 63, Number 123 (Friday, June 26, 1998)]
[Notices]
[Pages 34956-34959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17132]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board
[STB Finance Docket No. 33556]


Canadian National Railway Company, Grand Trunk Corporation, and 
Grand Trunk Western Railroad Incorporated--Control--Illinois Central 
Corporation, Illinois Central Railroad Company, Chicago, Central and 
Pacific Railroad Company, and Cedar River Railroad Company

AGENCY: Surface Transportation Board.


[[Page 34957]]


ACTION: Decision No. 5 in STB Finance Docket No. 33556; Request for 
Comments on Procedural Schedule.

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SUMMARY: The Surface Transportation Board (Board) is inviting comments 
from interested persons on a proposed procedural schedule for this 
proceeding. On February 12, 1998, Canadian National Railway Company 
(CNR), Grand Trunk Corporation (GTC), and Grand Trunk Western Railroad 
Incorporated (GTW),1 and Illinois Central Corporation (IC 
Corp.), Illinois Central Railroad Company (ICR), Chicago, Central and 
Pacific Railroad Company (CCP), and Cedar River Railroad Company 
(CRRC),2 filed a notice of intent (CN/IC-1) 3 to 
file a joint application seeking Surface Transportation Board (Board) 
authority under 49 U.S.C. 11321-26 for the acquisition of control, by 
CNR, through its indirect wholly owned subsidiary Blackhawk Merger Sub, 
Inc., of control 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.4

    \1\ CNR, GTC, and GTW, and their affiliates, are referred to 
collectively as CN.
    \2\ IC Corp., ICR, CCP, and CRRC, and their affiliates, are 
referred to collectively as IC. CN and IC are referred to 
collectively as Applicants.
    \3\ CN/IC-1 reflected Applicants' expectation that they would 
file the Primary Application on or before June 12, 1998. In view of 
the need to take account of subsequent developments, Applicants 
state that they now expect to file in July.
    \4\ In Decision No. 2 (served March 13, 1998, and published that 
day in the Federal Register at 63 FR 12574), we found that the 
transaction contemplated by Applicants is a major transaction, as 
that term is defined at 49 CFR 1180.2(a); we assigned the proceeding 
to Administrative Law Judge David Harfeld for handling of all 
discovery matters and the initial resolution of discovery disputes; 
and we advised the parties that they will be required to submit all 
pleadings both in the required paper form and also as computer data 
contained on diskettes (disks) or compact discs (CDs).
    In Decision No. 4 (simultaneously being served with this 
decision today), we address Applicants' petition (CN/IC-4) for 
waiver or clarification of certain filing requirements.
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DATES: Written comments on the Board's proposed schedule must be filed 
with the Board no later than July 16, 1998. Applicants' reply is due by 
July 27, 1998.

ADDRESSES: Send an original and 25 copies of all pleadings referring to 
STB Finance Docket No. 33556 to: Surface Transportation Board, Office 
of the Secretary, Case Control Unit, 1925 K Street, N.W., Washington, 
DC 20423-0001. In addition, one copy of all documents in this 
proceeding must be sent to Administrative Law Judge David Harfeld, 
Federal Energy Regulatory Commission, Office of Administrative Law 
Judges, 888 First Street, N.E., Suite 11F, Washington, DC 20426 [(202) 
219-2514; FAX: (202) 219-3289] and to each of Applicants' 
representatives: (1) Paul A. Cunningham, Esq., Harkins Cunningham, 1300 
19th Street, N.W., Suite 600, Washington, DC 20036-1609; and (2) 
William C. Sippel, Esq., Oppenheimer Wolff & Donnelly, Two Prudential 
Plaza, 45th Floor, 180 North Stetson Avenue, Chicago, IL 60601-6710. 
Comments should contain the name and address of the commenting party, 
any recommendations for changes to the attached proposed procedural 
schedule and support for any such changes.
    In addition to submitting an original and 25 copies of all paper 
documents filed with the Board, the parties shall also submit, on disks 
or CDs, copies of all textual materials, electronic workpapers, data 
bases and spreadsheets used to develop quantitative evidence. Data must 
be submitted on 3.5 inch IBM-compatible floppy disks or CDs. Textual 
materials must be in, or convertible by and into, WordPerfect 7.0. 
Electronic spreadsheets must be in, or convertible by and into, Lotus 
1-2-3 97 Edition, Excel Version 7.0, or Quattro Pro Version 7.0. A copy 
of each disk or CD submitted to the Board should be provided to any 
other party upon request.5

    \5\ In Decision No. 3 (served May 19, 1998, and published on May 
22, 1998, in the Federal Register at 63 FR 28442-44), we denied a 
petition for reconsideration of Decision No. 2, concerning the 
requirement that parties submit copies of all textual materials on 
disks or CDs, and stated that parties may individually seek a waiver 
from the disk-CD requirement.
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FOR FURTHER INFORMATION CONTACT: Julia M. Farr, (202) 565-1613. [TDD 
for the hearing impaired: (202) 565-1695.]

SUPPLEMENTARY INFORMATION: On May 20, 1998, Applicants filed a petition 
(CN/IC-5) to establish a proposed procedural schedule 6 as 
follows:
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    \6\ Applicants' proposed schedule is similar to the 180-day 
schedule proposed to the Interstate Commerce Commission by 
applicants in Finance Docket No. 32549, Burlington Northern Inc. and 
Burlington Northern Railroad Company--Control and Merger--Santa Fe 
Pacific Corporation and The Atchison, Topeka and Santa Fe Railway 
Company (BN/SF).
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Applicants' Proposed Procedural Schedule 7

    F   Primary Application and any related applications filed.
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    \7\ The term ``F'' designates the date of filing of the 
application and ``F + n'' means ``n'' days following that date.
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    F + 30  Board notice of acceptance of primary application (and any 
related applications) published in the Federal Register.
    F + 30  Environmental Report and Safety Integration Plan due.
    F + 45  Notification of intent to participate in proceeding due. 
Description of anticipated inconsistent and responsive applications 
due; petitions for waiver or clarification due with respect to such 
applications.
    F + 60  Inconsistent and responsive applications due. All comments, 
protests, requests for conditions, and any other evidence and argument 
in opposition to the Primary Application due. Comments by U.S. 
Department of Justice (``DOJ'') and U.S. Department of Transportation 
(``DOT'') due.
    F + 75  Notice of acceptance (if required) of inconsistent and 
responsive applications published in the Federal Register.
    F + 90  Response to inconsistent and responsive applications due. 
Response to comments, protests, requested conditions, and other 
opposition due. Rebuttal in support of primary application and related 
applications due.
    F + 105  Rebuttal in support of inconsistent and responsive 
applications due.
    F + 125  Briefs due, all parties (not to exceed 50 pages).
    F + 145  Oral argument.
    F + 150  Voting conference (at Board's discretion).
    F + 180  Date of service of final decision.
    The proposed schedule contains substantially shorter time periods 
than those provided for in the statute at 49 U.S.C. 11325. For 
instance, pursuant to 49 U.S.C. 11325(b)(1), written comments about an 
application may be filed with the Board within 45 days after Board 
notice of acceptance of the primary application (and any related 
applications) is published in the Federal Register. Applicants propose 
that comments be filed within 30 days of publication in the Federal 
Register. The proposed schedule also suggests that inconsistent and 
responsive applications be filed 30 days following acceptance of the 
primary application rather than the 90 days noted in the statute.
    Comments in opposition to the Applicants' proposed procedural 
schedule were filed by the Brotherhood of Maintenance of Way Employees 
(BMWE), on June 2, 1998, and the United Transportation Union (UTU), on 
June 8, 1998. Both BMWE and UTU state that the proposed schedule is too 
short and urge the Board to adopt the statutory procedural schedule set 
forth at 49 U.S.C. 11325(b). Alternatively, UTU urges the Board to 
adopt a 350-day schedule modeled upon the procedural

[[Page 34958]]

schedule issued by the Board in 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, Decision 
No. 6 (STB served May 30, 1997).
    We do not at this time see any compelling reason to adopt a 6-month 
procedural schedule for this proceeding. The statute allows 16 months 
for the processing of major consolidation proceedings. Under 49 U.S.C. 
11325(b)(3), the Board must conclude the evidentiary stage of the 
proceeding within 13 months of the application's filing 
date,8 and must issue the final decision by the 90th day 
after the conclusion of the evidentiary stage. We believe that a 10-
month procedural schedule would be sufficiently expeditious so as not 
to delay unnecessarily any benefits that would flow from the proposed 
integration of the CN and IC systems, while at the same time allowing 
sufficient time to develop the record upon which the Board's decision 
would be based. We propose to modify Applicants' proposed procedural 
schedule so as to conclude the evidentiary stage of this proceeding 
approximately 8 months after the application is filed, and to issue the 
final decision approximately 2 months thereafter.
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    \8\ Specifically, the statute requires the completion of the 
evidentiary stage within 12 months after publication of the Federal 
Register notice accepting the application. That publication is due 
no later than 30 days after the application is filed.
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    Given the importance of the safe implementation of major rail 
consolidations, we propose to require Applicants to file Safety 
Integration Plans on Day (F + 30) as they have proposed. Also, we 
propose to require inconsistent and responsive applicants to file their 
Responsive Environmental Reports and Environmental Verified Statements 
on Day (F + 100), which is 20 days in advance of when inconsistent and 
responsive applications would be due.
    Specifically, as for the remainder of the procedural schedule, we 
propose to modify Applicants' proposed schedule to allow 30 more days 
for parties intending to file comments, protests, requests for 
conditions, and any other opposition evidence and argument, so that 
these filings would not be due until 90 days after the application is 
filed [Day (F + 90)]. Comments from the U.S. Department of Justice 
(DOJ) and the U.S. Department of Transportation (DOT) would be due 120 
days after the application is filed. Responses to comments, protests, 
requested conditions, and other opposition (except DOJ and DOT), and 
also rebuttal in support of the primary application and related 
applications would be due on Day (F + 120). We propose to keep 
inconsistent and responsive applications due 120 days after the 
application is filed [Day (F + 120)] as provided for under 49 U.S.C. 
11325(b)(2). Response to comments of DOJ and DOT would be due on Day (F 
+ 150 ). Descriptions of anticipated inconsistent and responsive 
applications and petitions for waiver or clarification due with respect 
to such applications would be due on Day (F + 60) (rather than Day (F + 
45)).
    In addition, we propose adding 5 days for responses to inconsistent 
and responsive applications (which would be due Day (F + 155)), and 
adding 15 days for rebuttals for inconsistent and responsive 
applications (which would be due Day (F + 185)). Briefs would be due on 
Day (F + 205), and we are proposing page limitations for briefs for all 
parties to promote useful, focused filings, with Applicants permitted 
to file somewhat longer briefs, as they would have more points to 
address at that time than would other parties. We propose, however, 
adding 10 days to Applicants' proposed period of time for parties to 
prepare for oral argument, so that oral argument would occur on Day (F 
+ 235). The oral argument would close the record. We propose (as did 
the Applicants) a 5-day interval between the oral argument and the 
voting conference, so that a voting conference would occur on Day (F + 
240). We also propose allowing 60 days after the voting conference for 
the service of the Board's final decision on Day (F + 300).

Proposed Procedural Schedule as Modified by The Board

    F  Primary application and any related applications filed.
    F + 30  Board notice of acceptance of primary application (and any 
related applications) published in the Federal Register.
    F + 30  Safety Integration Plan due.
    F + 45  Notification of intent to participate in proceeding due.
    F + 60  Description of anticipated inconsistent and responsive 
applications due; petitions for waiver or clarification due with 
respect to such applications.
    F + 90  All comments, protests, requests for conditions, and any 
other evidence and argument in opposition to the Primary Application 
due (except filings by U.S. Department of Justice (DOJ) and U.S. 
Department of Transportation (DOT)).
    F + 100  Responsive Environmental Report and Environmental Verified 
Statements for inconsistent and responsive applicants due.
    F + 120  Inconsistent and responsive applications due. Comments by 
DOJ and DOT due. Response to comments, protests, requested conditions, 
and other opposition (except DOJ and DOT) due. Rebuttal in support of 
primary application and related applications due.
    F + 140  Notice of acceptance (if required) of inconsistent and 
responsive applications published in the Federal Register.
    F + 150  Response to comments of DOJ and DOT due.
    F + 155  Response to inconsistent and responsive applications due.
    F + 185  Rebuttal in support of inconsistent and responsive 
applications due.
    F + 205  Briefs due, all parties (not to exceed 50 pages for 
Applicants and not to exceed 25 pages for all other parties).
    F + 235  Oral argument (close of record).
    F + 240  Voting conference (at Board's discretion).
    F + 300  Date of service of final decision.
    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 
depositions. Access to documents subject to protective order will be 
appropriately restricted.9 Discovery relating to 
applications and other filings (including responsive and inconsistent 
applications), where permitted, will begin immediately upon their 
filing. The Administrative Law Judge (ALJ) assigned to this proceeding 
will have the authority initially to resolve any discovery disputes.
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    \9\ In Decision No. 1 (served February 26, 1998), a protective 
order was issued in this proceeding.
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Environmental Review Process

    Based on consultations with Applicants, the Board's Section of 
Environmental Analysis (SEA) has determined that preparation of an 
Environmental Assessment (EA) is appropriate in this proceeding. This 
approach is consistent with the Board's environmental rules at 49 CFR 
1105.6 (b)(4), which call for an EA in a merger or acquisition such as 
this proceeding. Also, in making its determination to prepare an EA, 
SEA considered the nature of the transaction, including the projected 
changes in train traffic, the

[[Page 34959]]

anticipated changes at rail yards and intermodal facilities, and the 
number, type, and location of proposed construction projects. However, 
if SEA determines that this proceeding has the potential for 
significant environmental impacts, then SEA may prepare an 
Environmental Impact Statement, as required by the National 
Environmental Policy Act (NEPA).
    Applicants originally proposed to file an environmental report 30 
days after they filed their application. In a letter dated June 18, 
1998, however, Applicants requested that SEA conduct a modified 
environmental review process in this proceeding. SEA concurs with this 
approach. Under this approach, Applicants will provide, with their 
application and operating plan, an environmental overview rather than 
an environmental report. This is consistent with the Board's 
environmental rules at 49 CFR 1105.10 (d), which waive the requirement 
for an environmental report for applicants that retain an independent 
third-party contractor to work under SEA's direction to prepare the 
necessary environmental documentation. For this proceeding, Applicants 
have retained the requisite independent third-party contractor.
    With direction and guidance from SEA, Applicants will prepare and 
submit to SEA a Preliminary Draft Environmental Assessment (PDEA). 
Preparation of a PDEA is consistent with the Council on Environmental 
Quality regulations at 40 CFR 1506.5(b) that permit preparation of an 
environmental assessment by an applicant. Upon receipt of Applicants' 
PDEA, SEA will review and verify the environmental information provided 
by Applicants in this document. SEA will then prepare a Draft 
Environmental Assessment (Draft EA) for public review and comment. The 
Draft EA will include SEA's independent preliminary recommendations for 
mitigation to address potentially adverse environmental impacts.
    As part of the environmental review process, Applicants also 
propose to submit a safety integration plan, which will fully describe 
the extensive plans they have for maximizing the safe operation of the 
combined system.
    After reviewing all of the public comments on the Draft EA and 
conducting additional analyses, SEA will prepare a Final Environmental 
Assessment (Final EA). The Final EA will include SEA's final 
recommendations for environmental mitigation. The Board will consider 
all public comments, the Draft EA and Final EA, and SEA's environmental 
recommendations in making its final decision in this proceeding.

Other Matters

    Applicants recommend that, in addition to noting that new evidence 
may not be filed with briefs, the Board should further clarify that 
cross-examination depositions of rebuttal witnesses cannot be used as a 
vehicle for adding to the evidentiary record any documents not filed 
with the Board as part of the application or one of the rounds of 
evidentiary filings specifically provided for by the Board's schedule.
    Applicants suggest that the Board include in its procedural 
schedule language which reminds parties that, in discovery and in 
submissions to the Board, they focus strictly on relevant issues.
    Applicants request that the Board direct that parties wishing to 
engage in discovery consult with the ALJ designated to handle all 
discovery matters and to resolve initially all discovery disputes, and 
that the Board give the ALJ authority to adopt discovery guidelines and 
rule on discovery matters but not to modify the procedural schedule.
    Applicants also suggest that the Board require appeals of ALJ 
decisions to be filed within 3 working days of the date of a bench 
ruling, or in its absence the date of a written ruling, with replies to 
appeals or to any motion filed with the Board to be filed within 3 
working days.
    We invite all interested persons to submit written comments on the 
procedural schedule we are proposing here. Comments must be filed by 
July 16, 1998. Applicants may reply by July 27, 1998.10
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    \10\ The comments of BMWE and UTU will be considered along with 
any other comments received in response to this notice.
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    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    Decided: June 22, 1998.

    By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 98-17132 Filed 6-25-98; 8:45 am]
BILLING CODE 4915-00-P