[Federal Register Volume 62, Number 24 (Wednesday, February 5, 1997)]
[Notices]
[Pages 5511-5515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2858]


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DEPARTMENT OF TRANSPORTATION
[STB Finance Docket No. 33286]


Norfolk Southern Corporation and Norfolk Southern Railway 
Company--Control--Conrail Inc. and Consolidated Rail Corporation

AGENCY: Surface Transportation Board, DOT.

ACTION: Decision No. 4; Notice of Issuance of Procedural Schedule.

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SUMMARY: The Board is issuing a procedural schedule, following the 
receipt of public comments on a proposed procedural schedule and the 
reply to those comments. This schedule provides for issuance of a final 
decision no later than 365 days after filing of the primary 
application.

EFFECTIVE DATE: The effective date of this decision is February 5, 
1997. Notices of intent to participate in this proceeding will be due 
45 days after the primary application is filed. All descriptions of 
inconsistent and responsive applications, as well as any petitions for 
waiver or clarification with respect thereto, will be due 60 days after 
the primary application is filed. All comments, protests, requests for 
conditions, inconsistent and responsive applications, and any other 
opposition evidence and argument will be due 120 days after the primary 
application is filed. For further information, see the procedural 
schedule set forth below.

ADDRESSES: An original plus 25 copies <SUP>1 of all documents, 
referring to STB Finance Docket No. 33286, must be sent to the Office 
of the Secretary, Case Control Branch, ATTN: STB Finance Docket No. 
33286, Surface Transportation Board, 1201 Constitution Avenue, N.W., 
Washington, DC 20423.<SUP>2 Parties are requested also to submit all 
pleadings, and any attachments, on a 3.5-inch diskette in WordPerfect 
5.1 format.
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    \1\ In order for a document to be considered a formal filing, 
the Board must receive an original plus 25 copies of the document, 
which must show that it has been properly served. Documents 
transmitted by facsimile (FAX), as in the past, will not be 
considered formal filings and thus are not encouraged because they 
will result in unnecessarily burdensome, duplicative processing in 
what we expect to become a voluminous record.
    Applicants may file in bound volumes an original plus 25 copies 
of related applications, petitions, and notices of exemption; 
however, to facilitate processing of these related filings, we will 
require that applicants also file two unbound copies of each of 
these filings.
    \2\ It is anticipated that the Board will move to its new 
offices in March 1997. The Board's address at the new offices will 
be: Surface Transportation Board, Mercury Building, 1925 K Street, 
N.W., Washington, DC 20423.
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    In addition, one copy of all formal filings 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 the applicants' 
representative: Richard A. Allen, Esq., Zuckert, Scoutt & Rasenberger, 
L.L.P., 888 Seventeenth Street, N.W., Washington, DC 20006-3939.

FOR FURTHER INFORMATION CONTACT: Julia M. Farr, (202) 927-5352. [TDD 
for the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: On November 6, 1996, Norfolk Southern 
Corporation (NSC) and Norfolk Southern Railway Company (NSR) \3\ 
notified the Surface Transportation Board (Board) of their intent to 
file an application seeking Board authorization under 49 U.S.C. 11323-
25 for: (1) the acquisition of control of Conrail Inc. (CRI) and 
Consolidated Rail Corporation (CRC) \4\ by NSC; and (2) the resulting 
common control by NSC of Conrail and its subsidiaries, on the one hand, 
and NSR and its subsidiaries, on the other. In the notice of intent, 
applicants state that on October 23, 1996, NSC

[[Page 5512]]

announced its intention to commence a public tender offer for equity 
securities of CRI. On October 24, 1996, NSC and its wholly owned 
subsidiary, Atlantic Acquisition Corporation (Acquisition), commenced 
the tender offer pursuant to an Offer to Purchase dated October 24, 
1996. NSC and Acquisition have offered to purchase shares of common 
stock of CRI, subject to the conditions specified in the Offer to 
Purchase. Upon purchase of CRI shares by NSC, Acquisition, or their 
affiliates, such purchased shares will be deposited in an independent 
voting trust pending approval by the Board of the acquisition of 
control by NSC of Conrail.\5\ NSC is seeking to negotiate with CRI a 
definitive merger agreement pursuant to which CRI would, as soon as 
practicable following consummation of the Offer, consummate a merger or 
similar business combination with Acquisition or another direct or 
indirect subsidiary of NSC (the Merger). To avoid the acquisition of 
control by NSC of Conrail prior to our approval, NSC intends to deposit 
all issued and outstanding common stock of Acquisition (which may 
become stock of the surviving corporation on consummation of the 
Merger) owned by NSC into the voting trust at or immediately prior to 
the Merger. Upon our approval of the acquisition by NSC of control of 
Conrail, NSC will acquire control of Conrail through stock ownership of 
the voting trust. Applicants state that they anticipate filing their 
application on or before May 1, 1997.\6\
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    \3\ NSC and NSR are referred to collectively as applicants.
    \4\ CRI and CRC are referred to collectively as Conrail.
    \5\ Applicants filed a copy of a proposed voting trust agreement 
(VTA) on October 25, 1996, to be entered into by and between NS, 
Acquisition, and a Bank (to be named as Trustee) for use in a 
possible future NS acquisition of Conrail. An informal staff opinion 
letter was issued on November 1, 1996. On November 6, 1996, 
applicants submitted an alternative VTA proposed to be entered into 
by and between NS, Acquisition, and a Bank (to be named as Trustee), 
which would revise para. 4 of the VTA to reflect that, if a merger 
between Acquisition and CRI takes place prior to our approval of the 
control application and the common stock of the merged entity is 
deposited into the voting trust in accordance with VTA para. 3, the 
Trustee will have the authority from the outset to vote all shares 
of the Trust Stock on all matters except the enumerated matters in 
para. 4 ``in accordance with its best judgment concerning the 
interests of [CRI].'' An informal opinion letter was issued on 
November 18, 1996.
    \6\ The primary application, and each related application, 
petition, and notice, must be accompanied by the appropriate fee. 
See, in general, 49 CFR 1002.2(f), as recently amended in 
Regulations Governing Fees for Services Performed in Connection with 
Licensing and Related Services--1997 Update, STB Ex Parte No. 542 
(Sub-No. 1) (STB served Jan. 23, 1997, 62 FR 3487 (Jan. 23, 1997), 
and effective February 24, 1997). The fees applicants will have to 
pay may include, among others, the fees codified at: 49 CFR 
1002.2(f)(39)(i) ($889,500 for the primary merger application); 49 
CFR 1002.2(f)(12)(i) or (12)(iii) ($44,500 for either an application 
or a petition involving the construction of a rail line); 49 CFR 
1002.2(f)(21)(i) ($13,200 for an abandonment application, except an 
abandonment application filed by CRC under the Northeast Rail 
Service Act); 49 CFR 1002.2(f)(21)(ii) ($2,200 for an abandonment 
notice of exemption); 49 CFR 1002.2(f)(21)(iii) ($3,800 for an 
abandonment petition for exemption); 49 CFR 1002.2(f)(22) ($250 for 
an abandonment application filed by CRC under the Northeast Rail 
Service Act); 49 CFR 1002.2(f)(36) ($11,300 for an application for 
use of terminal facilities); 49 CFR 1002.2(f)(40)(iv) ($750 for a 
trackage rights notice of exemption); and 49 CFR 1002.2(f)(40)(vi) 
($5,600 for a trackage rights petition for exemption). The Board is 
in the process of revising its rules and the way user fees are 
applied to reflect more accurately the resources expended on related 
filings in proceedings involving major transactions filed under fee 
items 38 through 41. We plan to issue interim rules shortly that 
also will implement a new three-tiered fee structure for 
inconsistent applications that includes a determination of whether 
the transaction being proposed is minor, significant, or major. In 
addition, we plan to clarify what a responsive application is and 
what fees should be assessed for the various types of responsive 
applications.
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    In a decision served and published in the Federal Register on 
November 27, 1996 (61 FR 60317) (Decision No. 1), the Board gave notice 
of the prefiling notification, found that the transaction proposed by 
applicants is a ``major'' transaction as defined at 49 CFR 1180.2(a), 
and invited comments from interested persons on a proposed procedural 
schedule. Comments were due on December 13, 1996, and were received on 
or before that date. Applicants replied to the comments on December 23, 
1996.

Public Comments

    Approximately 20 public comments were received in response to 
Decision No. 1. Comments were filed by shipper organizations, 
railroads, electric utilities, government entities, and rail labor 
unions and by United States Senators Byron L. Dorgan and John D. 
Rockefeller IV.
    Some commenters suggested that we hold in abeyance any decision 
regarding the procedural schedule pending the outcome of the hostile 
takeover bid launched by NSC. Others suggested that the Board 
coordinate dates in both the present proceeding and the CSX/Conrail 
proceeding (STB Finance Docket No. 33220), and issue a single 
procedural schedule.
    We find no reason to delay issuance of this procedural order, which 
only begins a procedural schedule when a NSC/Conrail application is 
filed. We realize circumstances are unusual here, but we believe that 
it would not be judicious for us to speculate about whether two merger 
applications will be filed, and we continue to have the power to revise 
our handling of this matter as necessitated by changes in these 
circumstances. Applicants in this proceeding already have filed their 
notice of intent, and pursuant to 49 CFR 1180.4(b) their application is 
anticipated within 3 to 6 months.\7\ In the interest of efficient 
government, we believe that we should establish a procedural schedule 
in a timely manner to give adequate notice to all interested persons 
prior to the anticipated filing date of the application.\8\
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    \7\ We note that, pursuant to 49 CFR 1180.4(b)(3), ``[a] 
prefiling notice may be amended to indicate a change in the 
anticipated filing date.''
    \8\ We note that, at a shareholders' meeting on January 17, 
1997, CSX failed to obtain Conrail shareholders' approval to opt out 
of Subchapter 25E of the Pennsylvania Business Corporation Act. See 
Pa. Stat. Ann., tit. 15, Secs. 2541 through 2548 (West 1995). This 
has no effect on our decision to adopt a procedural schedule in this 
proceeding or in STB Finance Docket No. 33220, as the procedural 
schedule is only triggered by the filing of a formal merger 
application. Our issuance of such a decision neither requires action 
by any person or party nor prejudices any person or party.
    We also note that CSX, Conrail and NSC have indicated an 
agreement to meet to discuss matters pertaining to a merger 
involving Conrail. Given the intent of CSX and Conrail currently on 
the record to file their application in STB Finance Docket No. 33220 
by March 1, the Board believes that it must address the pending 
petitions to set a procedural schedule for both proceedings at this 
time. As with any action that the Board takes, if circumstances 
change that warrant modification of a Board decision, the Board will 
take whatever action is appropriate.
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    We find it unnecessary to consolidate this proceeding with STB 
Finance Docket No. 33220, in which no application has yet been filed, 
and thus will adopt separate, but identical, procedural schedules for 
these proceedings, which will not begin in either case until an 
application is filed.\9\ Rather, once an application seeking approval 
to control Conrail has been filed and the procedural schedule in that 
proceeding has begun, we will require that any subsequent application 
from any other party seeking approval to control Conrail, or any 
portion of Conrail, must be filed as an inconsistent or responsive 
application in accordance with the procedural schedule then underway. 
Thus, we will in effect have a single proceeding for determining the 
control or merger of Conrail.
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    \9\ By separate decision served concurrently in STB Finance 
Docket No. 33220, we are adopting the same procedural schedule for 
the CSX proceeding.
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    After reviewing all of the comments we received on the proposed 
procedural schedule, we have determined, as discussed below, that a 
365-day procedural schedule (which is 110 days more than applicants had 
proposed) will ensure that all parties are accorded due process and 
will allow us ample time to consider fully all of the issues in this 
proceeding. Within this procedural schedule, we will consider all 
issues affecting the public interest, and will also address cumulative

[[Page 5513]]

impacts and crossover effects of prior mergers as appropriate. Further, 
we will consider the transaction in light of any settlement agreements 
that the applicants may reach with any parties, regardless of the 
complexity of the agreements.
    We have carefully considered the parties' concerns regarding the 
amount of time necessary to prepare their cases, and have crafted the 
attached procedural schedule with fairness to all parties in mind. 
Accordingly, we have adjusted the proposed procedural schedule to give 
more time for the submission of filings. We also believe that we have 
established a schedule that will provide adequate time for the 
processing of any inconsistent applications that may be filed in this 
proceeding.

Environmental Reporting

    Applicants filed comments requesting that we modify the requirement 
that applicants file an environmental report (ER) on F <SUP>10-30 days 
and instead require that only a preliminary environmental report (PER) 
be filed on F-30 days, and a full ER when the application is filed. We 
will grant applicants' request. We note, however, that, while 
applicants' two-step procedure would provide early notice of specific 
locations that will be the subject of the detailed analysis of 
localized environmental effects, the PER would not be sufficient to 
allow the Board's Section of Environmental Analysis (SEA) to commence 
an adequate review process during the 30 days prior to the filing of 
the application. Accordingly, SEA will require additional time to 
complete its environment review as a result of the delayed filing of 
applicants' ER. We have considered this delay in adopting the extended 
procedural schedule.
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    \10\  F is the date of filing of the primary application.
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    In order for us to fulfill our responsibilities under the National 
Environmental Policy Act and other environmental laws, inconsistent 
applications and responsive applications must contain certain 
environmental information. As we have stated in past merger 
proceedings, anyone intending to file an inconsistent or a responsive 
application involving significant operational changes or an action such 
as a rail line abandonment or construction under 49 CFR 1105.6(b)(4) of 
our environmental rules must include, with its application, a 
preliminary draft environmental assessment (PDEA) or a preliminary 
draft environmental impact statement (PDEIS), as determined by SEA. 
Generally, these types of actions require an environmental report under 
49 CFR 1105.6(b)(4) that would form the basis of a subsequent 
environmental assessment (or environmental impact statement, if 
warranted). Here, because of the time frames that we are adopting, a 
PDEA or PDEIS is necessary at the time that an inconsistent or 
responsive application is filed. We, however, will not require an 
inconsistent or responsive applicant to file an ER in advance of the 
filing of the inconsistent or responsive application.
    Although the information would be presented in a somewhat different 
format, the PDEA or PDEIS should address essentially the same 
environmental issues that would have been covered by an ER. The PDEA or 
PDEIS, like the ER, should be based on consultations with SEA and the 
various agencies set forth at 49 CFR 1105.7(b). In order to ensure 
timely, consistent, and appropriate environmental documentation, 
inconsistent and responsive applicants shall consult with SEA as early 
as possible. If a PDEA or PDEIS is not submitted or is insufficient, we 
will not process the inconsistent or responsive application.
    If an inconsistent or responsive application does not involve 
significant operational changes or an action such as an abandonment or 
construction, it generally is exempt from environmental review. The 
applicant must certify, however, that the proposal meets the exemption 
criteria under 49 CFR 1105.6(c)(2). Again, anyone intending to file an 
inconsistent application or responsive application shall consult with 
SEA as early as possible regarding the appropriate environmental 
documentation. Due to the uncertainties associated with this proposed 
transaction, we reserve the right to adjust the environmental review 
process, as appropriate.

Notice of Intent To Participate

    All documents received by the Board concerning this proceeding will 
become part of the record and will be placed in the public docket for 
inspection and copying. Only those documents considered formal filings 
(i.e., those meeting the filing specifications discussed above in the 
ADDRESSES section) will be downloaded to the so-called pleading list. 
Moreover, persons who submit documents that are not considered formal 
filings will not be placed on the service list in this proceeding.
    We will compile and issue an official service list at an early 
stage of this proceeding to help facilitate the participation of 
persons who will be actively participating as ``parties of record'' 
(POR). We are requiring these persons to notify the Board, in writing, 
within 45 days after the primary application is filed, of their intent 
to participate actively in this proceeding. In order to be designated a 
POR, a person must submit an original plus 25 copies of the notice, 
along with a certificate of service to the Secretary of the Board, 
indicating that the notice has been properly served on applicants' 
representatives and Judge Leventhal.<SUP>11 Every future filing must 
have its own certificate of service indicating that all PORs on the 
service list and Judge Leventhal have been served with a copy of the 
filing. Members of the United States Congress will be designated as MOC 
and Governors will be designated as GOV on the service list. They are 
not parties of record and need not be served with copies of filings, 
unless designated as a POR.
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    \11\  The Office of the Secretary will compile the official 
service list for this proceeding after service of this decision 
adopting a procedural schedule. Persons named on the earlier service 
list will not automatically be placed on the official service list.
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    We will continue to follow the practice established 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). See 
UP/SP, Decision No. 15 (STB served Feb. 16, 1996), at 2-3. Copies of 
decisions, orders, and notices will be served only on those persons who 
are designated as POR or MOC or GOV on the official service list. 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 to persons who request this service. 
The telephone number for DC News is: (202) 289-4357.

Comments, Protests, Requests for Conditions, and Other Opposition 
Evidence and Argument

    Most commenters expressed a need for more time to prepare protests, 
requests for conditions, and other opposition evidence and argument, 
and ask that these submissions be due on F+120 days or later, instead 
of due on F+75 days. In their response to those comments, applicants 
support giving

[[Page 5514]]

persons at least 120 days to make such submissions.
    We will extend the time for filing comments, protests, requests for 
conditions, and other opposition evidence and argument to F+120 days as 
requested by applicants and most of the commenters. All inconsistent 
and responsive applications, and comments, including comments from the 
United States Department of Justice (DOJ) and the United States 
Department of Transportation (DOT), are also due on F+120 days. Every 
party intending to file an inconsistent or responsive application must 
contact the Office of the Secretary at (202) 927-5686 or 927-8910 to 
reserve an STB Finance Docket No. 33286 Sub-number to use in filing the 
description of anticipated inconsistent or responsive application due 
on F+60 days. [After the Board relocates to its new offices, the new 
number will be (202) 565-1681.]

Responses and Rebuttals

    Applicants support a schedule that would permit them to file at F + 
150 days a single pleading (Consolidated Filing) containing responses 
to comments, protests, and requested conditions filed by all 
participating parties (including all government parties) and their 
rebuttal in support of the primary application, as well as their 
responses to inconsistent or responsive applications. Our schedule will 
provide for applicants' filing a Consolidated Filing containing 
responses to comments, protests, and requested conditions filed by all 
participating parties (including all government parties) and their 
rebuttal in support of the primary application, as well as their 
responses to inconsistent or responsive applications. A Consolidated 
Filing by applicants would result in a more orderly record and would 
allow them to address the issues coherently in one submission, without 
needless fragmentation or repetition. <SUP>12
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    \12\ As in prior merger proceedings, we think it appropriate to 
tighten the deadlines provided by 49 CFR 1115.1(c). Accordingly, the 
provisions of the second sentence of 49 CFR 1115.1(c) to the 
contrary notwithstanding, an 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 thereafter. Likewise, any reply to any procedural 
motion filed with the Board itself in the first instance must also 
be filed within 3 working days of the date the motion is filed.
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    Numerous commenters (including DOT), however, have urged that we 
allow them additional time to digest and respond to comments, protests, 
requested conditions, and, in particular, any inconsistent and 
responsive applications. Given the complexity and magnitude of issues 
that potentially may arise in an inconsistent or responsive 
application, we will add time in the schedule for responses to these 
filings. Responses to inconsistent and responsive applications, 
comments, protests, requested conditions, and opposition evidence and 
argument, as well as rebuttal in support of the primary application, 
will be due on F + 180 days. We note that, because inconsistent and 
responsive applicants must submit descriptions of their intended 
applications on F + 60 days, parties will have in effect 120 days to 
prepare their responses due on F + 180 days to any inconsistent and 
responsive applications. This schedule will allow adequate time for the 
processing of inconsistent and responsive applications filed in this 
proceeding, and we do not anticipate that further extensions to this 
schedule will be necessary.
    We will not allow parties filing comments, protests, and requests 
for conditions to file rebuttal in support of those pleadings. Parties 
filing inconsistent and/or responsive applications have a right to file 
rebuttal evidence, while parties simply commenting, protesting, or 
requesting conditions do not. UP/SP, Decision No. 6 (ICC served Oct. 
19, 1995, at 7-8, 60 FR 54384 (Oct. 23, 1995)); 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, Decision No. 16 (ICC served 
Apr. 20, 1995), at 11. Rebuttal in support of inconsistent and 
responsive applications will be due on F + 220 days, which will allow 
inconsistent and responsive applicants 40 days instead of 15 days to 
prepare their rebuttals.

Other Dates

    We also will expand the schedule to allow parties 5 additional days 
to prepare briefs (not to exceed 50 pages), which will be due on F + 
260 days, as well as 5 additional days to prepare for oral argument 
(close of record), which is scheduled on F + 300 days. As for the 
remainder of the schedule, we will adopt the timetable as had been 
proposed. The voting conference (at Board's discretion) is scheduled on 
F + 305 days; and the date of service of the final decision is 
scheduled on F + 365 days.
    In summary, the procedural schedule we adopt here consisting of a 
365-day time period both is fair to all of the parties and allows us 
sufficient time to resolve the unique issues that we anticipate will 
arise in connection with any merger proposal involving Conrail. Our 
schedule is consistent with the thrust and weight of the comments and 
accommodates the processing of major inconsistent or responsive 
applications.

Discovery

    In accordance with our decision in Expedited Procedures For 
Processing Rail Rate Reasonableness, Exemption and Revocation 
Proceedings, STB Ex Parte No. 527 (STB served Oct. 1, 1996, 61 FR 52710 
(Oct. 8, 1996)), parties should not file any discovery requests or 
materials with the Board unless they are attached as part of an 
evidentiary submission, or motions to compel or responses thereto. The 
Secretary's Office will otherwise reject them.
    If parties wish to engage in discovery or establish discovery 
guidelines, they are directed to consult with Administrative Law Judge 
Leventhal. Judge Leventhal is authorized to convene a discovery 
conference, if necessary and as appropriate, in Washington, DC, and to 
establish such discovery guidelines, if any, as he deems appropriate. 
However, Judge Leventhal is not authorized to make adjustments to, or 
to modify, the dates in the procedural schedule. We believe the 
schedule as adopted allows sufficient time for meaningful discovery. 
Any interlocutory appeal to a decision issued by Judge Leventhal will 
be governed by the stringent standard of 49 CFR 1115.1(c): ``Such 
appeals are not favored; they will be granted only in exceptional 
circumstances to correct a clear error of judgment or to prevent 
manifest injustice.'' See Union Pacific Corporation, Union Pacific 
Railroad Company and Missouri Pacific Railroad Company--Control--
Chicago and North Western Transportation Company and Chicago and North 
Western Railway Company, Finance Docket No. 32133, Decision No. 17 (ICC 
served July 11, 1994), at 9 (applying the ``stringent standard'' of 49 
CFR 1115.1(c) to an appeal of an interlocutory decision issued by the 
ICC's former Chief Administrative Law Judge Paul S. Cross).

Merger-Related Abandonments

    The procedural schedule applicable to merger-related abandonments 
will be as follows: (1) all merger-related abandonment proposals (which 
may be filed as applications, petitions, and/or notices) are to be 
filed, with any and all supporting documentation, simultaneously with 
the primary application; and (2) if the primary application is 
complete, we shall publish in the Federal Register, by day F + 30, 
notice of the acceptance of the

[[Page 5515]]

primary application as well as notice of any merger-related abandonment 
proposal. Thereafter, with respect to each merger-related abandonment 
proposal: (3) interested parties must file notifications of intent to 
participate in the specific abandonment proceedings by day F + 45; (4) 
interested parties must file opposition submissions, requests for 
public use conditions, and/or Trails Act requests by day F + 120; (5) 
applicants may file rebuttal in support of their abandonment proposals, 
and/or responses to any requests for public use conditions and Trails 
Act requests, by day F + 180; (6) as with the primary application and 
all related matters, briefs shall be due by day F + 260, oral argument 
will be held on day F + 300, and a voting conference will be held, at 
the Board's discretion, on day F + 305; and (7) if, in the final 
decision served on day F + 365, we approve the primary application, we 
also will 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 either 
approve or exempt any of the abandonment proposals, we shall require 
interested parties to file, no later than 10 days after the date of 
service of the final decision, offers of financial assistance with 
respect to any approved or exempted abandonments.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    Decided: January 30, 1997.

    By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.

                        Final Procedural Schedule                       
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F-30........................  Preliminary Environmental Report,         
                               including supporting documents, due.     
F...........................  Primary application & related applications
                               filed. [Environmental Report, including  
                               all supporting documents, due.]          
F+30........................  Federal Register publication of: notice of
                               acceptance of primary application and    
                               related applications, petitions and      
                               notices; and notice of any merger-related
                               abandonment applications, petitions, and 
                               notices of exemption.                    
F+45........................  Notification of intent to participate in  
                               proceeding due.                          
F+60........................  Description of anticipated inconsistent   
                               and responsive applications due;         
                               petitions for waiver or clarification due
                               with respect to such applications.       
F+120.......................  Inconsistent and responsive applications  
                               due. All comments, protests, requests for
                               conditions, and any other opposition     
                               evidence and argument due. Comments by   
                               U.S. Department of Justice and U.S.      
                               Department of Transportation due. With   
                               respect to all merger-related            
                               abandonments: opposition submissions,    
                               requests for public use conditions, and  
                               Trails Act requests due.                 
F+150.......................  Notice of acceptance (if required) of     
                               inconsistent and responsive applications 
                               published in the Federal Register.       
F+180.......................  Response to inconsistent and responsive   
                               applications due. Response to comments,  
                               protests, requested conditions, and other
                               opposition arguments and evidence due.   
                               Rebuttal in support of primary           
                               application and related applications due.
                               With respect to all merger-related       
                               abandonments: rebuttal due; and responses
                               to requests for public use and Trails Act
                               conditions due.                          
F+220.......................  Rebuttal in support of inconsistent and   
                               responsive applications due.             
F+260.......................  Briefs due, all parties (not to exceed 50 
                               pages).                                  
F+300.......................  Oral argument (close of record).          
F+305.......................  Voting conference (at Board's discretion).
F+365.......................  Date of service of final decision. With   
                               respect to any approved or exempted      
                               abandonments: offers of financial        
                               assistance must be filed no later than 10
                               days after the date of service of the    
                               final decision.                          
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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 and     
  inconsistent applications will begin immediately upon their filing.   
  The Administrative Law Judge assigned to this proceeding will have the
  authority initially to resolve any discovery disputes.                

[FR Doc. 97-2858 Filed 2-4-97; 8:45 am]
BILLING CODE 4915-00-P