Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Notices 5507

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.

3CSXC and CSXT are referred to collectively as

CSX. CRI and CRC are referred to collectively as

Conrail. CSX and Conrail are referred to collectively

as applicants.

4The Merger Agreement envisions that, in

connection with the merger of CRI into Acquisition,

Acquisition (the surviving corporation) will be

renamed ‘‘Conrail Inc.’’ References to CRI (i.e.,

Conrail Inc.) embrace both the ‘‘old’’ Conrail Inc.

(i.e., the corporation presently known as Conrail

Inc.) and the ‘‘new’’ Conrail Inc. (i.e., the renamed

corporation that will exist after the merger of

Conrail Inc. into Acquisition).

5The 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 (SubNo. 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)

Continued

NEW EXEMPTIONS—Continued

Application No. Applicant Regulations(s) affected Nature of exemption thereof

11830–N North Coast Container

Corp., Cleveland, OH.

49 CFR 178.3(a)(5),

178.503(a)(10).

To authorize the transportation of 55 gallon full removable

head and non-removable head steel drums with alternative

markings. (mode 1).

This notice of receipt of applications

for new exemptions is published in

accordance with Part 107 of the

Hazardous Materials Transportations

Act (49 U.S.C. 1806; 49 CFR 1.53(e)).

Issued in Washington, DC, on January 30,

1997.

J. Suzanne Hedgepeth,

Director, Office of Hazardous Materials,

Exemptions and Approvals.

[FR Doc. 97–2785 Filed 2–4–97; 8:45 am]

BILLING CODE 4910–60–M

Surface Transportation Board

[STB Finance Docket No. 33220]

CSX Corporation and CSX

Transportation, Inc.—Control and

Merger—Conrail Inc. and Consolidated

Rail Corporation

AGENCY: Surface Transportation Board,

DOT.

ACTION: Decision No. 8; Notice of

Issuance of Procedural Schedule.

SUMMARY: The Board is issuing a

procedural schedule, following the

receipt of public comments on a

proposed procedural schedule and

replies 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 1

of all documents, referring to STB

Finance Docket No. 33220, must be sent

to the Office of the Secretary, Case

Control Branch, ATTN: STB Finance

Docket No. 33220, Surface

Transportation Board, 1201 Constitution

Avenue, N.W., Washington, DC 20423.2

Parties are requested also to submit all

pleadings, and any attachments, on a

3.5-inch diskette in WordPerfect 5.1

format.

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

each of the applicants’ representatives:

(1) Dennis G. Lyons, Esq., Arnold &

Porter, 555 12th Street, N.W.,

Washington, DC 20004–1202; and (2)

Paul A. Cunningham, Esq., Harkins

Cunningham, Suite 600, 1300

Nineteenth Street, N.W., Washington,

DC 20036.

FOR FURTHER INFORMATION CONTACT: Julia

M. Farr, (202) 927–5352. [TDD for the

hearing impaired: (202) 927–5721.]

SUPPLEMENTARY INFORMATION: On

October 18, 1996, CSX Corporation

(CSXC), CSX Transportation, Inc.

(CSXT), Conrail Inc. (CRI), and

Consolidated Rail Corporation (CRC) 3

filed their CSX/CR–1 notice of intent to

file an application (hereinafter referred

to as the primary application) seeking

Board authorization under 49 U.S.C.

11323–25 for: (1) The acquisition of

control of CRI by Green Acquisition

Corp. (Acquisition), an indirect wholly

owned subsidiary of CSXC; (2) the

merger of CRI into Acquisition; and (3)

the resulting common control of CSXT

and CRC by CSXC. Applicants indicated

that they expected to file their primary

application, and any related

applications, petitions, and notices, on

or before March 1, 1997.

By letter dated December 27, 1996,

CSXC and Acquisition advised the

Board that certain amendments had

been made to the Agreement and Plan

of Merger (the Merger Agreement) dated

October 14, 1996, by CSXC, Acquisition,

and CRI. The Merger Agreement, as first

entered into, envisioned: (1) the

acquisition by Acquisition of

approximately 19.9% of the common

stock of CRI (this has already occurred,

and the stock has been placed in a

voting trust); (2) the subsequent

acquisition by Acquisition of an

additional approximately 20.1% of the

common stock of CRI; and (3) after our

approval of the primary application, the

merger of CRI with and into

Acquisition. As amended, however, the

Merger Agreement now envisions that

the merger of CRI with and into

Acquisition will occur prior to our

approval of the primary application.

This change of plans necessarily means

that applicants no longer seek our

authorization for the acquisition of

control of CRI by Acquisition, or for the

merger of CRI into Acquisition.4

Applicants, however, continue to seek

Board authorization for the common

control, by CSXC, of CSXT and CRC

(hereinafter referred to as the CSXT/CRC

control transaction). Applicants

continue to indicate that they expect to

file their primary application, and any

related applications, petitions, and

notices, on or before March 1, 1997.5
5508 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Notices

($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 to cover this revision and 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.

6We 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.’’

7We 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, §§ 2541 through 2548 (West

1995). This has no effect on our decision to adopt

a procedural schedule, which is only triggered by

the filing of the 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 by March 1, the Board

believes that it must address the pending petition

to set a procedural schedule 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.

8By separate decision served concurrently in STB

Finance Docket No. 33286, we are adopting the

same procedural schedule for the NSC proceeding. 9F is the date of filing of the primary application.

In Decision No. 2, served and

published on November 15, 1996 (61 FR

58613), we gave notice of applicants’

pre-filing notification, and we found

that the transaction proposed by

applicants is a ‘‘major’’ transaction as

defined at 49 CFR 1180.2(a).

In Decision No. 3, served and

published on November 15, 1996 (61 FR

58611), we invited comments from

interested persons on a proposed

procedural schedule. Comments were

due on December 6, 1996; most were

received on or before that date. On

December 10, 1996, Norfolk Southern

Corporation (NSC) responded to

applicants’ comments. On December 16,

1996, applicants replied to the

comments.

Public comments

Approximately 25 comments were

received in response to Decision No. 3.

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 NSC

proceeding (STB Finance Docket No.

33286), 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

CSX/Conrail application is filed. We

realize circumstances are unusual here,

but we believe that it would not be

judicious 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.6 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.7

We find it unnecessary to consolidate

this proceeding with STB Finance

Docket No. 33286, 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. 8

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.

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

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 9—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.

Applicants state that they need more

time to prepare and complete a detailed

analysis of environmental effects, as

contemplated in 49 CFR 1105.7. We will

grant applicants’ request. We note,

however, that, while applicants’ twostep 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

environmental review as a result of the

delayed filing of applicants’ ER. We

have considered this delay in adopting

the extended procedural schedule.

Also, in their comments, applicants

propose that the Board require

inconsistent and responsive applicants

to file their complete ERs substantially

in advance of the filing of their

inconsistent and responsive

applications because, applicants allege,

inconsistent and responsive applicants

will have significantly more lead time to

perform environmental analysis and
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Notices 5509

10The 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.

will have the benefit of applicants’ PER

and ER. NSC, in its reply comments,

disputes applicants’ allegations.

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 socalled 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. 10

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.

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 express 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

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. 33220 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 request that the Board

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. We will

grant applicants’ request to file 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. We agree

that a Consolidated Filing by applicants

would result in a more orderly record
5510 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Notices

11Applicants also request that, as in recent

merger proceedings, the Board indicate that it will

require appeals of ALJ decisions to be filed within

3 working days and responses to appeals or to any

procedural motion filed with the Board also to be

filed within 3 working days. 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.

and would allow them to address the

issues coherently in one submission,

without needless fragmentation or

repetition.11

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 in this proceeding, 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

has 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

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.
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Notices 5511

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.

3NSC and NSR are referred to collectively as

applicants.

4CRI and CRC are referred to collectively as

Conrail.

By the Board, Chairman Morgan and Vice

Chairman Owen.

Vernon A. Williams,

Secretary.

FINAL PROCEDURAL SCHEDULE

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.

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. 97–2857 Filed 2–4–97; 8:45 am]

BILLING CODE 4915–00–P

[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.

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 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 20423.2

Parties are requested also to submit all

pleadings, and any attachments, on a

3.5-inch diskette in WordPerfect 5.1

format.

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