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
5512 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Notices

5Applicants 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 ¶ 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 ¶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 ¶ 4 ‘‘in accordance with its best judgment

concerning the interests of [CRI].’’ An informal

opinion letter was issued on November 18, 1996.

6The 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)

($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.

7We 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.’’

8We 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 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.

9By separate decision served concurrently in STB

Finance Docket No. 33220, we are adopting the

same procedural schedule for the CSX proceeding.

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

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

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.

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
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Notices 5513

10 F is the date of filing of the primary

application.

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.

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 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.

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.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.

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
5514 Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Notices

12As 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.

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. 12

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
Federal Register / Vol. 62, No. 24 / Wednesday, February 5, 1997 / Notices 5515

1The exemption in STB Finance Docket No.

33290 became effective on January 20, 1997. SSMB

agreed to refrain from consummating the

acquisition until January 24, 1997. A petition to

stay the effective date, that had been filed on

January 6, 1997, was denied by a decision served

on January 24, 1997.

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

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. 97–2858 Filed 2–4–97; 8:45 am]

BILLING CODE 4915–00–P

[STB Finance Docket No. 33348]

Sault Ste. Marie Bridge Company—

Trackage Rights Exemption—

Wisconsin Central Ltd.

Wisconsin Central Ltd. (WCL) has

agreed to grant non-exclusive overhead

trackage rights to Sault Ste. Marie

Bridge Company (SSMB) over WCL’s

line of railroad between milepost 310.7

at Hermansville, MI, and milepost 342.7

at Gladstone, MI, a distance of

approximately 32.0.

The transaction is scheduled to be

consummated on January 29, 1997, or

upon SSMB’s consummation of the

transaction in STB Finance Docket No.

33290, Sault St. Marie Bridge

Company—Acquisition and Operation

Exemption—Lines of Union Pacific

Railroad Company, whichever is later.1

WCL has concurrently filed a Notice

of Exemption in STB Finance Docket

No. 33349, Wisconsin Central Ltd.—

Trackage Rights Exemption—Sault Ste.

Marie Bridge Company. In conjunction

with that filing, the proposed trackage

rights will allow SSMB and WCL to

jointly utilize their parallel lines

between Hermansville, MI, and Larch/

Gladstone, MI, for the purpose of

improving the flexibility and efficiency

of operations in that corridor.

As a condition to this exemption, any

employees affected by the trackage

rights will be protected by the

conditions imposed in Norfolk and

Western Ry. Co.—Trackage Rights—BN,

354 I.C.C. 605 (1978), as modified in

Mendocino Coast Ry., Inc.—Lease and

Operate, 360 I.C.C. 653 (1980).

This notice is filed under 49 CFR

1180.2(d)(7). If it contains false or

misleading information, the exemption

is void ab initio. Petitions to revoke the

exemption under 49 U.S.C. 10502(d)

may be filed at any time. The filing of

a petition to revoke will not

automatically stay the transaction.

An original and 10 copies of all

pleadings, referring to STB Finance

Docket No. 33348, must be filed with

the Surface Transportation Board, Office

of the Secretary, Case Control Branch,

1201 Constitution Avenue, N.W.,

Washington, DC 20423. In addition, a

copy of each pleading must be served on

Thomas J. Litwiler, Esq., Oppenheimer

Wolff & Donnelly, Two Prudential