43744 Federal Register / Vol. 63, No. 157 / Friday, August 14, 1998 / Notices

Valen 6 through the acquisition all of enhancing the benefits resulting from By the Board, Chairman Morgan and Vice their outstanding stock. these control transactions. Chairman Owen. Vernon A. Williams, Applicant submits that there will be Applicant certifies that: (1) Maine no transfer of any federal or state Line, Olympia, and Valen hold Secretary. operating authorities held by the satisfactory safety ratings from the U.S. [FR Doc. 98–21935 Filed 8–13–98; 8:45 am] acquired carriers. Following the Department of Transportation, while BILLING CODE 4915±00±P consummation of the control Mini Coach holds a conditional safety transaction, these carriers will continue rating and Gray Line has not been rated; DEPARTMENT OF TRANSPORTATION operating in the same manner as before, (2) each of the acquired carriers and, according to applicant, granting the maintains sufficient liability insurance; Surface Transportation Board application will not reduce competitive (3) none of the acquired carriers is options available to the traveling public. [STB Finance Docket No. 33556] 1 domiciled in Mexico nor owned or Applicant asserts that the acquired carriers do not compete with one controlled by persons of that country; Canadian National Railway Company, another, to any meaningful degree. and (4) approval of the transaction will Grand Trunk Corporation, and Grand Applicant submits that each of the not significantly affect either the quality Trunk Western Railroad IncorporatedÐ acquired carriers is relatively small and of the human environment or the ControlÐIllinois Central Corporation, that each faces substantial competition conservation of energy resources. Illinois Central Railroad Company, from other bus companies and Additional information may be obtained Chicago, Central and Pacific Railroad transportation modes. from applicant’s representatives. Company, and Cedar River Railroad Applicant also submits that granting Under 49 U.S.C. 14303(b), we must Company the application will produce substantial approve and authorize a transaction we AGENCY: Surface Transportation Board. benefits, including interest cost savings find consistent with the public interest, ACTION: Decision No. 6 in STB Finance from the restructuring of debt and taking into consideration at least: (1) the Docket No. 33556; Notice of Acceptance reduced operating costs from Coach’s effect of the transaction on the adequacy of Primary Application and Related enhanced volume purchasing power. of transportation to the public; (2) the Filing; Issuance of Final Procedural Specifically, applicant claims that each total fixed charges that result; and (3) Schedule. carrier to be acquired will benefit from the interest of affected carrier the lower insurance premiums employees. SUMMARY: The Board is accepting for negotiated by Coach and from volume consideration the primary application On the basis of the application, we discounts for equipment and fuel. and related filing filed July 15, 1998, by find that the proposed acquisition of Applicant indicates that Coach will Canadian National Railway Company control is consistent with the public provide each carrier to be acquired with (CNR), Grand Trunk Corporation (GTC), interest and should be authorized. If any centralized legal and accounting and Grand Trunk Western Railroad functions and coordinated purchasing opposing comments are timely filed, Incorporated (GTW),2 Illinois Central services. In addition, applicant states this finding will be deemed vacated and Corporation (IC Corp.), Illinois Central that vehicle sharing arrangements will a procedural schedule will be adopted Railroad Company (ICR), Chicago, be facilitated through Coach to ensure to reconsider the application. If no Central and Pacific Railroad Company maximum use and efficient operation of opposing comments are filed by the (CCP), and Cedar River Railroad equipment, and that coordinated driver expiration of the comment period, this Company (CRRC).3 The primary training services will be provided. decision will take effect automatically application seeks Surface Applicant also states that the proposed and will be the final Board action. Transportation Board (Board) approval transaction will benefit the employees Board decisions and notices are and authorization under 49 U.S.C. of the acquired carriers and that all available on our website at 11321–26 for: (1) the acquisition of collective bargaining agreements will be ‘‘WWW.STB.DOT.GOV.’’ control, by CNR, through its indirect honored by Coach. wholly owned subsidiary Blackhawk This decision will not significantly Merger Sub, Inc., of control of IC Corp. Coach plans to acquire control of affect either the quality of the human additional motor passenger carriers in and through it of ICR and its railroad environment or the conservation of affiliates, and (2) for the resulting the coming months. It asserts that the energy resources. financial benefits and operating common control by CNR of GTW and its efficiencies will be enhanced further by It is ordered: railroad affiliates and ICR and its these subsequent transactions. Over the 1. The proposed acquisition of control railroad affiliates. The related filing, an long term, Coach states that it will is approved and authorized, subject to application for terminal trackage rights, provide centralized marketing and the filing of opposing comments. reservation services for the bus firms 1 This decision covers: (i) the primary 2. If timely opposing comments are application, which was filed in the STB Finance that it controls, thereby further filed, the findings made in this decision Docket No. 33556 lead docket; and (ii) one related will be deemed as having been vacated. filing, an application for terminal trackage rights in 6 Valen is a California corporation. It holds Springfield, IL, filed in the embraced docket, STB federally issued operating authority in Docket No. 3. This decision will be effective on Finance Docket No. 33556 (Sub-No. 1), Canadian MC–212398 which includes regular-route authority September 28, 1998, unless timely National Railway Company, Illinois Central Railroad Company, The Kansas City Southern between points in California, Nevada and Arizona, opposing comments are filed. as well as authority from the California Public Railway Company, and Gateway Western Railway Utilities Commission to conduct intrastate 4. A copy of this notice will be served Company—Terminal Trackage Rights—Union Pacific Railroad Company and Norfolk & Western operations in that state. It operates a fleet of on the U.S. Department of Justice, approximately 5 motorcoaches and other vehicles. Railway Company. Valen’s gross revenue for FY 1997 was Antitrust Division, 10th Street & 2 CNR, GTC, and GTW, and their affiliates, are approximately $2.5 million. Prior to the transfer of Pennsylvania Avenue, NW., referred to collectively as CN. its stock into voting trust, it was owned by Michael Washington, DC 20530. 3 IC Corp., ICR, CCP, and CRRC, and their L. Valen, Michaeleen Valen, Bipinchandra M. affiliates, are referred to collectively as IC. CN and Ramaiya, and Marguerite L. Skinner. Decided: August 7, 1998. IC are referred to collectively as applicants. Federal Register / Vol. 63, No. 157 / Friday, August 14, 1998 / Notices 43745 seeks related relief contingent upon 11F, Washington, DC 20426 [(202) 219– southern terminus is Chicago. CN’s approval of the primary application. 2514; FAX: (202) 219–3289] and to each traffic, between Duluth/Superior and Having received public comments on of applicants’ representatives: (1) Paul Chicago, is carried under haulage the proposed procedural schedule, as A. Cunningham, Esq., Harkins agreements over the lines of The modified by the Board, and applicants’ Cunningham, 1300 19th Street, NW., Burlington Northern and Santa Fe reply to those comments, the Board is Suite 600, Washington, DC 20036–1609; Railway Company (BNSF) and issuing a final procedural schedule. and (2) William C. Sippel, Esq., Wisconsin Central Ltd. (WC). This schedule provides for the issuance Oppenheimer Wolff & Donnelly, Two IC operates approximately 3,370 route of a final decision no later than May 11, Prudential Plaza, 45th Floor, 180 North miles of track running north-south 1999 (300 days after the primary Stetson Avenue, Chicago, IL 60601– between Chicago and the Gulf of application’s filing date of July 15, 6710. Mexico, and east-west between Chicago 1998). In addition to submitting an original and Nebraska and Iowa. IC’s main DATES: The effective date of this and 25 copies of all paper documents north-south route reaches every major decision is August 14, 1998. Any party filed with the Board, parties also must metropolitan area on the Mississippi who wishes to participate in this submit, on 3.5-inch IBM-compatible River, including Chicago, IL; St. Louis, proceeding as a party of record must floppy diskettes (disks) or compact discs MO; Memphis, TN; Jackson, MS; and file, no later than August 31, 1998, a (CDs), copies of all textual materials, New Orleans, LA. IC’s east-west route notice of intent to participate. electronic workpapers, data bases and extends from Sioux City and Council Descriptions of responsive (including spreadsheets used to develop Bluffs, IA, in the West to Chicago in the inconsistent) applications, and petitions quantitative evidence. Textual materials East. for waiver or clarification regarding must be in, or convertible by and into, The principal routes of the combined those applications, must be filed by WordPerfect 7.0. Electronic CN/IC rail system would be identical to August 31, 1998. All comments, spreadsheets must be in, or convertible those of the individual railroads. The protests, requests for conditions, and by and into, Lotus 1–2–3 97 Edition, southern terminus of CN’s rail system, any other evidence and argument in Excel Version 7.0, or Quattro Pro Chicago, is the northern terminus of IC’s opposition to the primary application, Version 7.0. A copy of each disk or CD rail system. Applicants state that no including filings by the U.S. Department submitted to the Board should be track redundancies would be created by of Justice (DOJ) and U.S. Department of provided to any other party upon the transaction, and no abandonments Transportation (DOT), and responsive request.5 Further details are discussed or substantial rerouting would result (including inconsistent) applications below. from the combination of the two must be filed by October 13, 1998. FOR FURTHER INFORMATION CONTACT: Julia systems. Response to comments, protests, M. Farr, (202) 565–1613. [TDD for the requested conditions, and other hearing impaired: (202) 565–1695.] Tender Offer and Merger opposition, response to comments of SUPPLEMENTARY INFORMATION: According to applicants, on February DOJ and DOT, rebuttal in support of the Applicants are seeking approval of a 10, 1998, CN, Blackhawk Merger Sub, primary application and related proposed transaction set forth in their Inc. (Merger Sub), and IC entered into application, and response to primary application (CN/IC–6) filed on an Agreement and Plan of Merger (as inconsistent and responsive July 15, 1998. The proposed transaction subsequently amended, the Merger applications, must be filed by November involves the acquisition of control by Agreement). In accordance with the 27, 1998. For further information CNR, through its indirect wholly owned Merger Agreement, as of March 14, respecting dates, see Appendix A (Final subsidiary Blackhawk Merger Sub, Inc., 1998, the CNR acquired 46,051,761 Procedural Schedule). of IC Corp., and through it of ICR and shares (or approximately 75%) of the ADDRESSES: Send an original and 25 its railroad affiliates, and for the outstanding common stock of IC (the IC copies of all pleadings referring to STB resulting common control by CNR of Common Shares), at a price of $39.00 Finance Docket No. 33556 to: Surface GTW and its railroad affiliates and ICR per share 6 through a cash tender offer Transportation Board, Office of the and its railroad affiliates. (the Tender Offer) by Merger Sub. On Secretary, Case Control Unit, 1925 K June 4, 1998, CN consummated a The Applicants Street, NW., Washington, DC 20423– second-step merger (the Merger) 0001.4 In addition, one copy of all CN’s rail network consists of between IC and Merger Sub, with IC documents in this proceeding must be approximately 1,150 route miles in the being the surviving corporation. In the sent to Administrative Law Judge David United States, and approximately Merger, the remaining 25% of Harfeld, Federal Energy Regulatory 14,150 route miles in eight Canadian outstanding IC Common Shares were Commission, Office of Administrative provinces. CN has principal routes to exchanged for approximately 10.1 Law Judges, 888 First Street, N.E., Suite every major metropolitan area in million common shares of CN, Canada, and the major U.S. cities of: representing 10.3% of the outstanding 4 In order for a document to be considered a Buffalo, NY; Detroit, MI; Duluth, MN/ common shares of CN after the Merger formal filing, the Board must receive an original Superior, WI; and Chicago, IL. The and 25 copies of the document, which must show on a fully diluted basis. As a result of that it has been properly served. In addition, each eastern terminus of CN’s network is the Tender Offer and the Merger, CN formal filing must be accompanied by an electronic Halifax, Nova Scotia; the western became the indirect beneficial owner of submission per our requirements as discussed in termini are Prince Rupert and all of the stock of IC. detail in this decision. Parties must clearly label Vancouver, British Columbia; and the each formal filing with an identification acronym Voting Trust and number. See 49 CFR 1180.4(a)(2). Each disk or CD should be clearly labeled with the identification 5 In Decision No. 3 (served May 19, 1998, and Applicants state that, in accordance acronym and number of the corresponding paper published on May 22, 1998, in the Federal Register with the Merger Agreement, the shares document, and labeled as containing confidential or at 63 FR 28442–44), we denied a petition for redacted materials. Documents transmitted by reconsideration of Decision No. 2, concerning the acquired by CN in the Tender Offer and facsimile (FAX) will not be considered formal requirement that parties submit copies of all textual filings and are not encouraged because they will materials on disks or CDs, and stated that parties 6 Applicants stated that all monetary amounts result in unnecessarily burdensome, duplicative may individually seek a waiver from the disk-CD listed in the application are stated in U.S. dollars, processing. requirement. unless otherwise noted. 43746 Federal Register / Vol. 63, No. 157 / Friday, August 14, 1998 / Notices in the Merger are held in a voting trust unlawful control, and that publicly held with the staff opinion and find that (the Voting Trust) pursuant to an railroads negotiating a potential merger applicants’ VTA conforms to Board agreement dated as of March 13, 1998, agreement are entitled to engage in regulations as well as long-standing by and among CN, Merger Sub, and The appropriate due diligence inquiries Board and Interstate Commerce Bank of New York, a voting trustee that about each other, as required by the Commission precedent recognizing that is a banking corporation (the Trustee). Board’s rules and decisions, and as beneficial ownership can be separated The Trustee will act by written consent contemplated by the Board’s protective from control by an appropriate voting or will vote all IC stock held by the order; 7 and (3) even if UTU’s motion trust instrument.8 Thus, UTU’s request Voting Trust (the Trust Stock) in favor alleged an arguable control violation, it for dismissal of the proceeding is denied of any proposal necessary to effectuate would not warrant dismissal, and that at this time.9 Should UTU or any other the Merger pursuant to the Merger such a violation could not warrant person obtain evidence of unauthorized Agreement, and, generally so long as the denial of the application unless it were common control, through breach of the Merger Agreement is in effect, against so serious and substantial that it clearly VTA or otherwise, that person may any other proposed merger, business outweighed other public interest factors, submit that evidence for our review. combination, or similar transaction which UTU has not alleged or shown. involving IC. On other matters, Applicants request that the Board Labor Impact including the election or removal of should deny UTU’s motion as being Applicants have submitted one Labor officers, the Trustee generally will vote substantively without merit, both Impact Statement which shows the the Trust Stock in the Trustee’s sole factually and legally, and procedurally projected effects of the CN/IC merger on discretion unless the holder(s) of trust flawed. all categories of employment, including certificates, with the prior written The Board shares UTU’s concerns that both agreement and nonagreement approval of the Board, directs the there not be management or operations personnel of the combined CN/IC Trustee as to any such vote. GTC, a in common between railroad entities system. The Labor Impact Statement is wholly owned subsidiary of CN, absent our approval of the common organized by job classification, and for currently holds the trust certificate for management or operations. Here, each classification, it reflects the all IC stock in the Voting Trust. however, the applicants have location at which positions will be On February 25, 1998, CN received an satisfactorily addressed the matters created, eliminated, or transferred, if informal opinion from the Board’s staff raised by UTU and the factors described applicable; the number of positions to the effect that CN’s use of the Voting do not demonstrate unlawful control. affected at each location; and whether Trust will be consistent with the Board’s Nor does the structure of the proposed positions will be moved to another policies and will preclude unlawful arrangement reflect unauthorized location, abolished, or added. If a control of IC by CN. common control of two or more carriers. position is to be relocated, the Labor As previously mentioned, by letter Related United Transportation Union Impact Statement identifies the new dated February 25, 1998, the Board’s (UTU) Filing location. staff issued an informal opinion As explained in the Joint Verified On July 16, 1998, UTU filed a Motion concerning a Voting Trust Agreement Statement submitted with the Labor to Dismiss and Comment on the (VTA) proposed to be entered into by Impact Statement,10 the number and Procedural Schedule (UTU–3). UTU is and between CNR, Merger Sub, and a percentage of adversely affected the designated representative for various Trustee, and found that the VTA employees will be small in relation to crafts or classes of operating employees provided for the placement, into an the number of employees on the on ICR and GTW. The request for independent and irrevocable voting combined CN/IC system. The combined dismissal is based upon the ground that trust, of all of the common stock of IC system will have approximately 26,000 these carriers have violated 49 U.S.C. Corp. acquired by CN or by any of its employees, of which approximately 11323 by effectively merging the affiliates. In the staff opinion, it was 5,200 will be in the United States. properties of these two carriers into one found that the voting trust to be Approximately 311 positions will be corporation for the management and established under the VTA will abolished, and approximately 138 other operation of the previously separately effectively insulate CN and its affiliates positions will be transferred within the owned properties without the approval from the violation of Subtitle IV of Title United States. In this regard, applicants or authorization of the Board. UTU 49 of the United States Code and the anticipate the following: (1) Impacts of further states that IC and CN have policy of the Board that would result if the transaction will be mostly violated section 11323 by beginning to CN were to acquire, without accommodated by normal attrition coordinate the labor relations functions authorization, a sufficient interest in the during the 3-year implementation of these two large carriers without prior carrier subsidiaries of IC Corp. as period; (2) the transaction should have approval. otherwise to result in control; and that, a positive effect on job opportunities; (3) On August 5, 1998, applicants filed a under the VTA, control of IC Corp. and some employees may be offered the Reply to UTU’s Motion to Dismiss (CN/ its carrier subsidiaries can be exercised option of receiving a severance package; IC–12). Applicants state that: (1) UTU by CN and its subsidiaries only has raised no issue supporting a subsequent to approval by the Board of 8 See CSX Corporation and CSX Transportation, conclusion that CN may have engaged the CN/IC control application. We agree Inc., Norfolk Southern Corporation and Norfolk in unlawful control of IC, and that, even Southern Railway Company—Control and if the particular conduct UTU alleges 7 Applicants note that the Board issued a Operating Leases/Agreements—Conrail Inc. and protective order in Decision No. 1, served February Consolidated Rail Corporation, STB Finance Docket occurred, it would amount to no more No. 33388, Decision No. 89 (STB served July 23, than necessary and proper 26, 1998, which provided that exchanges of data or other cooperative efforts between CN and IC for 1998) (CSX/NS/CR No. 89), slip op. at 127. communication and coordination purposes of this proceeding will not be deemed a 9 UTU states that the Board should dismiss the between merging railroads; (2) UTU has violation of 49 U.S.C. 11323; UTU alleges that CN proceeding, or alternatively, impose the statutory cited no legal authority for its basic and IC filed together a notice of intent to file a joint procedural schedule set forth at 49 U.S.C. 11325(b) to ensure proper review of the transaction. premise that the exchange of application for CN control of IC. Applicants state that such joint notices of intent are common in 10 See CN/IC–7 at 283–84, Joint Verified information it alleges constitutes control proceedings, and its use here is of no Statement of Richard J. Dixon, Joseph T. Torchia, improper conduct or evidence of consequence. and James M. Harrell. Federal Register / Vol. 63, No. 157 / Friday, August 14, 1998 / Notices 43747 and (4) some adversely affected with the applicable regulations and transactions in CSX/NS/CR, UP/SP, and employees will refuse relocation offers requirements.14 BN/SF. TFI also urges that we adopt a and voluntarily forfeit their right to schedule similar to the 180-day Public Inspection protective benefits. schedule proposed by applicants. Applicants anticipate that, if we The primary application and related Specifically, applicants request that approve the transactions proposed in filing, including the various we eliminate the proposed bifurcation the primary application and the related accompanying exhibits, are available for and trifurcation of filings because it will filing, we will impose on such inspection in the Docket File Reading create needless problems and burdens transactions the standard labor Room (Room 755) at the offices of the on all parties. TFI also urges the protective conditions customarily Surface Transportation Board, 1925 K elimination of staggered filing dates for imposed on similar such transactions. Street, N.W., in Washington, DC. different parties. Applicants propose See CN/IC–7 at 283. that all comments, protests, and Procedural Schedule requests for conditions, any other Related Filing In Decision No. 5, served June 23, evidence or argument in opposition to In STB Finance Docket No. 33556 1998, and published June 26, 1998, in the application by all parties, and any (Sub-No. 1), CN, IC, Kansas City the Federal Register at 63 FR 34956–59, inconsistent or responsive applications, Southern Railway Company (KCS) and we issued a proposed procedural be due at the same date (F+90 days its affiliate Gateway Western Railway schedule, and invited all interested under the Board’s proposed schedule), Company (GWWR), have filed an parties to submit written comments on and that applicants’ rebuttal or other application for an order under 49 U.S.C. the proposed procedural schedule by responses to those filings be due 30 days 11102 permitting GWWR to use without July 16, 1998, with applicants’ reply due later (F+120 days). Applicants note that restriction three short connected by July 27, 1998. In response, we no major merger in this decade has been segments of terminal trackage in received the following comments: (1) considered under a fragmented Springfield, IL. These segments are now UTU–3, UTU’s motion to dismiss and procedural format, and that there is owned by Union Pacific Railroad comment on procedural schedule; (2) nothing inherent in the CN/IC Company (UP) as successor to SPCSL The Fertilizer Institute’s (TFI) transaction to warrant such a departure Corp. (SPCSL), and Norfolk & Western comments; and (3) CN/IC–10, from consistent prior practice. Railway Company (N&W), an affiliate of applicants’ comments. Applicants also We will grant applicants’ and TFI’s Norfolk Southern Corporation (NS).11 filed reply comments (CN/IC–11) on request that we eliminate the staggered Applicants state that, without such July 27, 1998 and Allied Rail Unions filing dates. As suggested by applicants, relief, GWWR and IC will be unable to responded (ARU–2) on August 5, 1998, all comments, protests, and requests for establish an efficient interchange to that filing, and argued against conditions, any other evidence or necessary to serve effectively the new shortening the proposed schedule . We argument in opposition to the competitive traffic movements made have carefully reviewed and considered application by all parties, and any possible by the CN/IC combination, as all of these comments. inconsistent or responsive applications, augmented by an agreement among CN, As we noted previously in our will be due on the same date (F+90 IC, and KCS dated April 15, 1998.12 discussion of UTU’s motion to dismiss, days). Applicants’ rebuttal and other UTU requests that we dismiss the responses to those filings will be due 45 Acceptance of Primary Application and proceeding, or alternatively, impose the days later. Other relevant due dates are Related Filing statutory procedural schedule set forth discussed in detail under our discussion We are accepting the primary at 49 U.S.C. 11325(b) to ensure proper of filing due dates. application for consideration because it review of the transaction. The statute Few objections have been raised to is in substantial compliance with the allows 16 months for the processing of the 10-month proposed procedural applicable regulations, waivers,13 and major consolidation proceedings. Under schedule. In light of UTU’s concerns, we requirements. See 49 U.S.C. 11321–26; 49 U.S.C. 11325(b)(3), the Board must are reluctant at this time to reduce the time for processing the application. 49 CFR part 1180. We are also accepting conclude the evidentiary stage of the Earlier comments in opposition to for consideration the related filing, proceeding within 13 months of the applicants’ 6-month proposed which is also in substantial compliance application’s filing date,15 and must procedural schedule were filed by the issue the final decision by the 90th day 11 Brotherhood of Maintenance of Way Applicants in this sub-numbered docket have after the conclusion of the evidentiary Employees (BMWE) on June 2, 1998, advised that they have contacted UP about securing stage. consent for use of the trackage involved in order for and the UTU on June 8, 1998. Both In their comments and reply GWWR and IC to be able to interchange traffic in BMWE and UTU had stated that Springfield without regard to the limitations of the comments, applicants request that we Ridgely Yard agreement, and are willing to continue applicants’ 180-day proposed schedule adopt their original 180-day proposed was too short and urged the Board to such discussions after the filing of this application. schedule or, at least, adopt a middle- They will advise the Board if those discussions adopt the statutory procedural schedule make it unnecessary to act on this application. ground schedule and a single filing date set forth at 49 U.S.C. 11325(b). 12 Applicants state that this agreement creates a approach. Applicants further state that, Alternatively, UTU urged the Board to strategic alliance among the parties and provides for while the CN/IC transaction is adopt a 350-day schedule modeled upon their cooperative undertakings to provide joint-line important, it does not compare in size service in specified areas competitive with other the procedural schedule issued by the rail carriers, and provides that the alliance will use and complexity to the recent control Board in CSX/NS/CR No. 6 (STB served Springfield as one of two main interchanges for May 30, 1997). We believe that a 10- designated traffic. The agreement also provides that 14 We reserve the right to require the filing of the railroads will use their best efforts to remove supplemental information from applicants or any month procedural schedule would not any impediments to the full utilization of an other party or individual, if necessary to complete delay unnecessarily any benefits that efficient connection between IC and GWWR in the the record in this matter. would flow from the proposed vicinity of Springfield. 15 Specifically, the statute requires the completion integration of the CN and IC systems 13 In Decision No. 4, served June 23, 1998, we of the evidentiary stage within 12 months after granted to the extent set forth in the decision, publication of the Federal Register notice accepting and is middle-ground schedule that applicants’ CN/IC–4 petition for waiver or the application. That publication is due no later would allow sufficient time to develop clarification, and related relief. than 30 days after the application is filed. the record upon which the Board’s 43748 Federal Register / Vol. 63, No. 157 / Friday, August 14, 1998 / Notices decision would be based. If, at some the collection of charges and the mailing significant environmental impact; or (2) point in this proceeding (perhaps after and/or faxing of decisions, orders, and a responsive environmental report (RER) Board receipt of filings due on F+90 notices to persons who request this that contains detailed environmental days), it becomes clear that there are few service. The telephone number for DC information regarding the responsive contested issues to be resolved, we News is: (202) 289–4357.16 (including inconsistent) application. would be open to a reexamination of Descriptions of, and Filings Respecting, The RER whether a shorter schedule and a more Responsive (Including Inconsistent) expeditious resolution can be The RER should comply with all Applications 17 accommodated. requirements for environmental reports Because the transaction proposed by contained in our environmental rules at Notice of Intent To Participate applicants constitutes a major 49 CFR 1105.7. The RER should be Any person who wishes to participate transaction within the meaning of our based on consultations with the Board’s in this proceeding as a party of record rail consolidation rules (49 CFR part Section of Environmental Analysis (POR) must file with the Secretary of the 1180) 18 parties intending to file (SEA) and the various agencies set forth Board, no later than August 31, 1998, an responsive (including inconsistent) in 49 CFR 1105.7(b). In addition, the original and 25 copies of a notice of applications must submit descriptions information in the RER should be intent to participate, accompanied by a of those applications by August 31, organized as follows: Executive certificate of service indicating that the 1998. The description must state that Summary; Purpose and Need for Agency notice has been properly served on the commenting party intends to file an Action; Description of the Inconsistent Judge Harfeld and on applicants’ application seeking affirmative relief or Responsive Application and Related representatives. In addition, as that requires an application to be filed Operations; Description of the Affected previously noted, parties must submit with the Board (e.g., divestiture, Environment; Description of one electronic copy of each document purchase, trackage rights, inclusion, Alternatives; Analysis of the Potential filed with the Board. Further details construction, or abandonment) and Environmental Impacts; Proposed respecting such electronic submissions must include a general statement of Mitigation; and Appropriate are provided below. what that application is expected to Appendices that include We will serve, as soon as practicable include. This will be considered a correspondence and consultation after August 31, 1998, a notice prefiling notice without which the responses, bibliography, and a list of containing the official service list (the Board will not entertain applications for preparers. service list notice). Each party of record this type of relief. The purpose of an RER is to provide will be required to serve upon all other Petitions for waiver or clarification by us the information we need to assess the parties of record, within 10 days of the responsive (including inconsistent) potential environmental impacts of all service date of the service list notice, applicants must be filed by August 31, inconsistent and responsive copies of all filings previously 1998. Each responsive (including applications in the context of the overall submitted by that party (to the extent inconsistent) application filed and merger proposal. After an RER is such filings have not previously been accepted will be consolidated with the received, SEA will verify the served upon such other parties). Each primary application in this proceeding. information contained in the document. party of record also will be required to Any responsive (including If the RER is acceptable, SEA will file with the Secretary of the Board, inconsistent) applicant must file by include the RER with the Draft within 10 days of the service date of the September 21, 1998, either: (1) a verified Environmental Assessment (Draft EA) service list notice, an original plus five statement that the responsive (including for the entire merger that will be served copies of a certificate of service, along inconsistent) application will have no and made available for public comment. with an electronic copy, indicating that In order to ensure timely, consistent, the service required by the preceding 16 An interested person does not need to be on and appropriate environmental sentence has been accomplished. Every the service list to obtain a copy of the primary application or any other filing made in this documentation, inconsistent and filing made by a party of record after the proceeding. Our Railroad Consolidation Procedures responsive applicants must consult with service date of the service list notice provide: ‘‘Any document filed with the Board SEA as early as possible. If an RER is must have its own certificate of service (including applications, pleadings, etc.) shall be insufficient, we may require additional indicating that both Judge Harfeld and promptly furnished to interested persons on request, unless subject to a protective order.’’ See environmental information or reject the all PORs on the service list have been 49 CFR 1180.4(a)(3), as recently amended in inconsistent or responsive application. served with a copy of the filing. Railroad Consolidation Procedures—Modification Members of the United States Congress of Fee Policy, STB Ex Parte No. 556, 62 FR 9714, A verified statement of no significant (MOCs) and Governors (GOVs) are not 9717 (Mar. 4, 1997) (interim rules), 62 FR 28375 impact (May 23, 1997) (final rules). Furthermore, DC News parties of record (PORs), and therefore, will provide, for a charge, copies of the primary If an action proposed under an need not be served with copies of application or any other filing made in this inconsistent or responsive transaction filings, unless any such Member or proceeding, except to the extent any such filing is would typically fall within 49 CFR Governor has requested to be, and is subject to the protective order heretofore entered in 1105.6(c)(2), an RER would not be designated as, a POR. this proceeding. required because such an action is 17 An original and 25 copies of such descriptions, We will serve copies of our decisions, petitions for waiver or clarification, Responsive generally exempt from environmental orders, and notices only on those Environmental Reports, and Verified Statements review. In such a case, the inconsistent persons who are designated on the must refer to STB Finance Docket No. 33556 (lead or responsive applicant would be official service list as either POR, MOC, docket) and must be filed with the Surface required to file only a verified Transportation Board, Office of the Secretary, Case or GOV. All other interested persons are Control Unit, 1925 K Street, N.W., Washington, DC statement. The verified statement must encouraged to make advance 20423–0001. In addition, parties must submit one demonstrate that the inconsistent or arrangements with the Board’s copy electronic copy of each document filed with the responsive application meets the contractor, DC News & Data, Inc. (DC Board. Further details respecting such electronic exemption criteria of 49 CFR submissions are provided below. News), to receive copies of Board 18 See Decision No. 2, served March 13, 1998, and 1105.6(c)(2). Again, anyone desiring to decisions, orders, and notices served in published that day in the Federal Register at 63 FR file an inconsistent application or this proceeding. DC News will handle 12574–75. responsive application must consult Federal Register / Vol. 63, No. 157 / Friday, August 14, 1998 / Notices 43749 with SEA as early as possible regarding party and its representative upon whom designated to handle discovery matters the appropriate environmental service shall be made; (3) the and disputes. Judge Harfeld has the documentation. commenting party’s position, i.e., authority to rule on discovery matters SEA will review the verified whether it supports or opposes the but not to modify the procedural statements. If a verified statement is proposed transaction; (4) a list of any schedule. insufficient, we may require additional specific protective conditions sought; Deadlines Applicable to Appeals and environmental information or reject the and (5) an analysis of the issues with Replies inconsistent or responsive application. particular attention to our general policy The verified statements, like the RERs, statement for the merger or control of at Any appeal to a decision issued by will be included in the Draft EA, which least two Class I railroads (49 CFR Judge Harfeld must be filed within 3 will be available for public review and 1180.1), the statutory criteria (49 U.S.C. working days of the date of his decision; comment. 11324), and antitrust policy. any response to such appeal must be Protesting parties are advised that, if filed within 3 working days of the date Comments, Protests, Requests for they seek either the denial of the of filing of the appeal; and any reply to Conditions, and Other Opposition primary application or the imposition of any motion filed with the Board itself in Evidence and Argument, Including conditions upon any approval thereof, the first instance must be filed within 3 Filings by DOJ and DOT; Responsive on the theory that approval without working days of the date of filing of the (Including Inconsistent) Applications imposition of conditions will harm motion. Any interested persons, including the either their ability to provide essential Environmental Review Process U.S. Attorney General and the U.S. services and/or competition, they must Secretary of Transportation, may file present substantial evidence in support SEA has determined that preparation written comments, protests, requests for of their positions. See Lamoille Valley of an Environmental Assessment (EA) is conditions, and any other opposition R.R. Co. v. ICC, 711 F.2d 295 (D.C. Cir appropriate in this proceeding. This evidence and argument, as well as 1983). approach is consistent with the Board’s responsive (including inconsistent) environmental rules at 49 CFR applications no later than October 13, Response to Comments, Protests, 1105.6(b)(4), which call for an EA in a 1998. This deadline applies to Requested Conditions, and Other merger or acquisition such as this one. comments, etc., addressing the primary Opposition, Including DOJ and DOT; In making its determination to prepare application or the related filing Rebuttal in Support of Primary an EA, SEA considered the nature and submitted with the primary application. Application and Related Application scope of environmental issues that Parties filing comments, protests, Parties submitting responses to could arise in this proceeding, as well requests for conditions, and any other comments, protests, requested as its consultation with applicants and opposition evidence and argument conditions, and other opposition, its evaluation of the information to date, (including filings by DOJ and DOT) including DOJ and DOT, and rebuttal in including the operating plan and must submit an original and 25 copies support of the primary application and associated environmental data that CN/ of such documents, referring to STB related application, must be filed with IC submitted with their primary Finance Docket No. 33556 (lead docket). the Board by November 27, 1998. application filed on July 15, 1998. We Parties filing responsive (including agree with SEA that an EA is warranted inconsistent) applications must contact Other Dates in this proceeding. the Office of the Secretary, Case Control The procedural schedule adopted in The procedural schedule that we are Unit, at (202) 565–1681 to obtain docket this decision further provides: (1) that adopting will permit us to take a hard numbers for their respective applicants must file a Safety Integration look at environmental issues required applications, and must submit an Plan on August 14, 1998, as they have by the National Environmental Policy original and 25 copies of each proposed; (2) that responses to any Act (NEPA) and related regulations of responsive (including inconsistent) responsive (including inconsistent) the Council on Environmental Quality, application, referring to the assigned applications must be filed by November and will provide the necessary time to sub-docket number for that application 27, 1998; (3) that rebuttal in support of enable us to prepare an EA and to and must accompany such application responsive (including inconsistent) include public participation by federal, with the appropriate filing fee. All applications must be filed by December state, and local agencies, as well as submissions must be filed with the 28, 1998; (4) that briefs must be filed by other concerned parties. If SEA Surface Transportation Board, Office of February 5, 1999; (5) that oral argument determines that this proceeding has the the Secretary, Case Control Unit, 1925 K will be heard on March 8, 1999; (6) that, potential for significant environmental Street, NW., Washington, DC 20423– at the discretion of the Board, a voting impacts, then SEA may prepare an 0001. In addition, as previously noted, conference will be held on March 15, Environmental Impact Statement, as parties must submit one electronic copy 1999; and (7) that the final written required by NEPA. of each document filed with the Board. decision, addressing the primary The EA will address potential Further details respecting such application and the related filing, and environmental impacts of activities electronic submissions are provided also addressing any responsive associated with the proposed merger, below. (including inconsistent) applications including rail line traffic density Written comments, etc., must be will be served on May 11, 1999. increases and decreases, rail yard and concurrently served by first class mail intermodal facility activity changes, and on the U.S. Attorney General and the Discovery new construction. Specifically, the EA U.S. Secretary of Transportation, Judge In Decision No. 2, served March 13, will address potential environmental Harfeld, applicants’ representatives, and 1998, this proceeding was assigned to impacts on safety, transportation all other parties of record. Judge Harfeld for the handling of all systems, land use, energy, air quality, Written comments, etc., must include: discovery matters and the initial noise, biological resources, water (1) the docket number and title of the resolution of all discovery disputes. resources, historic and cultural proceeding; (2) the name, address, and Parties wishing to engage in discovery resources, environmental justice, and telephone number of the commenting must consult with Judge Harfeld, who is socioeconomic effects directly related to 43750 Federal Register / Vol. 63, No. 157 / Friday, August 14, 1998 / Notices changes in the environment, and will Electronic Submissions must be filed within 3 working days of also include SEA’s recommendations for As already mentioned, in addition to the date of filing of the appeal. environmental mitigation. submitting an original and 25 paper 6. Any reply to any motion filed with Applicants originally proposed to file copies of each document filed with the the Board itself in the first instance an environmental report 30 days after Board, parties must submit, on disks or must be filed within 3 working days of they filed their application. In a letter CDs, copies of all textual materials, the date of filing of the motion. dated June 18, 1998, however, 7. This decision is effective on August electronic workpapers, data bases and applicants requested that SEA conduct 14, 1998. spreadsheets used to develop a modified environmental review quantitative evidence. Data must be Decided: August 10, 1998. process in this proceeding. SEA concurs submitted on 3.5 inch IBM-compatible By the Board, Chairman Morgan and Vice with this approach. Under this floppy disks or CDs. Textual materials Chairman Owen. approach, applicants provided, with must be in, or convertible by and into, Vernon A. Williams, their application and operating plan, an Secretary. environmental overview rather than an WordPerfect 7.0. Electronic environmental report. See CN/IC–6, spreadsheets must be in, or convertible Appendix A: Final Procedural Schedule by and into, Lotus 1–2–3 97 Edition, Environmental Data—Exhibit 4, at 22– July 15, 1998 34. This is consistent with the Board’s Excel Version 7.0, or Quattro Pro Primary application and related environmental rules at 49 CFR Version 7.0. Each disk or CD should be application filed. 1105.10(d), which waive the clearly labeled with the identification August 14, 1998 requirement for an environmental report acronym and number of the Board notice of acceptance of primary for applicants that retain an corresponding paper document, see 49 application and related application published in the Federal Register. independent third-party contractor to CFR 1180.4(a)(2), and a copy of such disk or CD should be provided to any August 14, 1998 work under SEA’s direction to prepare Safety Integration Plan due. the necessary environmental other party upon request. Also, each disk or CD should be clearly labeled as August 31, 1998 documentation. For this proceeding, Notification of intent to participate due. applicants have retained the requisite containing confidential or redacted August 31, 1998 independent third-party contractor. materials. The data contained on the Description of anticipated inconsistent and With direction and guidance from disks and CDs submitted to the Board responsive applications due; petitions SEA, applicants will prepare and submit will be subject to the protective order for waiver or clarification due with to SEA a Preliminary Draft granted in Decision No. 1, served respect to such applications. Environmental Assessment (PDEA). February 26, 1998, and will be for the September 21, 1998 Preparation of a PDEA is consistent with exclusive use of Board employees Responsive Environmental Report and Environmental Verified Statements for the Council on Environmental Quality reviewing substantive and/or procedural matters in this proceeding. The inconsistent and responsive applicants regulations at 40 CFR 1506.5(b) that due. permit preparation of an environmental flexibility provided by such computer October 13, 1998 assessment by an applicant. Upon data will facilitate timely review by the All comments, protests, requests for receipt of applicants’ PDEA, SEA will Board and its staff.19 conditions, and any other evidence and review and verify the environmental This action will not significantly argument in opposition to the primary information provided by applicants in affect either the quality of the human application due, including filings of the this document. SEA will then prepare a environment or the conservation of U.S. Department of Justice (DOJ) and the Draft EA for public review and energy resources. U.S. Department of Transportation (DOT). Inconsistent and responsive comment. The Draft EA will include It is ordered applications due. SEA’s independent preliminary November 2, 1998 recommendations for mitigation to 1. UTU’s motion to dismiss is denied. 2. The primary application in STB Notice of acceptance (if required) of address potentially adverse inconsistent and responsive applications environmental impacts. Finance Docket No. 33556, and the published in the Federal Register. As part of the environmental review related filing in the embraced docket, November 27, 1998 process, applicants will also submit a STB Finance Docket No. 33556 (Sub-No. Response to comments, protests, requested Safety Integration Plan, which will fully 1), are accepted for consideration. conditions, and other opposition due. describe the extensive plans they have 3. Parties must comply with the Final Response to comments of DOJ and DOT for maximizing the safe operation of the Procedural Schedule adopted by the due. Rebuttal in support of primary Board in this proceeding as shown in application and related applications due. combined system. Response to inconsistent and responsive After reviewing all of the public Appendix A. 4. Parties must comply with the applications due. comments on the Draft EA and December 28, 1998 conducting additional analyses, SEA procedural requirements described in Rebuttal in support of inconsistent and will prepare a Final Environmental this decision. responsive applications due. Assessment (Final EA). 5. Any appeal to a decision issued by February 5, 1999 The Final EA will include SEA’s final Judge Harfeld must be filed within 3 Briefs due, all parties (not to exceed 50 recommendations for environmental working days of the date of his decision, pages for applicants and not to exceed 25 mitigation. The Board will consider all and any response to any such appeal pages for all other parties). public comments, the Draft EA and March 8, 1999 19 Oral argument (close of record). Final EA, and SEA’s environmental The electronic submission requirements set forth in this decision supersede, for the purposes March 15, 1999 recommendations in making its final of this proceeding, the otherwise applicable Voting conference (at Board’s discretion). decision in this proceeding. electronic submission requirements set forth in our May 11, 1999 For additional information on regulations. See 49 CFR 1104.3(a), as amended in Date of service of final decision. preparation of the EA, contact SEA’s Expedited Procedures for Processing Rail Rate Reasonableness, Exemption and Revocation Immediately upon each evidentiary filing, Project Manager for the proposed CN/IC Proceedings, STB Ex Parte No. 527, 61 FR 52710, the filing party will place all documents Acquisition, Michael Dalton, at (202) 52711 (Oct. 8, 1996), 61 FR 58490, 58491 (Nov. 15, relevant to the filing (other than documents 565–1530. 1996). that are privileged or otherwise protected Federal Register / Vol. 63, No. 157 / Friday, August 14, 1998 / Notices 43751 from discovery) in a depository open to all 49 CFR 1152.50(d)(1) (notice to conditions will be imposed, where parties, and will make its witnesses available governmental agencies) have been met. appropriate, in a subsequent decision. for depositions. Access to documents subject As a condition to this exemption, any Pursuant to the provisions of 49 CFR to protective order will be appropriately employee adversely affected by the 1152.29(e)(2), UP shall file a notice of restricted. Discovery relating to applications and other filings (including responsive and abandonment shall be protected under consummation with the Board to signify inconsistent applications), where permitted, Oregon Short Line R. Co.— that it has exercised the authority will begin immediately upon their filing. The Abandonment—Goshen, 360 I.C.C. 91 granted and fully abandoned the line. If Administrative Law Judge (ALJ) assigned to (1979). To address whether this consummation has not been effected by this proceeding will have the authority condition adequately protects affected UP’s filing of a notice of consummation initially to resolve any discovery disputes. employees, a petition for partial by August 14, 1999, and there are no [FR Doc. 98–21934 Filed 8–13–98; 8:45 am] revocation under 49 U.S.C. 10502(d) legal or regulatory barriers to BILLING CODE 4915±00±P must be filed. Provided no formal consummation, the authority to expression of intent to file an offer of abandon will automatically expire. financial assistance (OFA) has been Board decisions and notices are DEPARTMENT OF TRANSPORTATION received, this exemption will be available on our website at effective on September 13, 1998, unless ‘‘WWW.STB.DOT.GOV.’’ Surface Transportation Board stayed pending reconsideration. Decided: August 6, 1998. [STB Docket No. AB±33 (Sub±No. 124X)] Petitions to stay that do not involve By the Board, David M. Konschnik, 2 environmental issues, formal Director, Office of Proceedings. Union Pacific Railroad CompanyÐ expressions of intent to file an OFA Vernon A. Williams, Abandonment ExemptionÐin under 49 CFR 1152.27(c)(2),3 and trail Secretary. Sedgwick County, KS use/rail banking requests under 49 CFR 1152.29 must be filed by August 24, [FR Doc. 98–21754 Filed 8–13–98; 8:45 am] Union Pacific Railroad Company (UP) BILLING CODE 4915±00±P has filed a notice of exemption under 49 1998. Petitions to reopen or requests for CFR Part 1152 Subpart F—Exempt public use conditions under 49 CFR 1152.28 must be filed by September 3, Abandonments and Discontinuances of DEPARTMENT OF TRANSPORTATION Service and Trackage Rights to abandon 1998, with: Surface Transportation and discontinue service over a 0.56-mile Board, Office of the Secretary, Case Bureau of Transportation Statistics line of railroad on the Midland Valley Control Unit, 1925 K Street, N.W., Industrial Lead extending from the end Washington, DC 20423. Advisory Council on Transportation of the line at milepost 312.09 to A copy of any petition filed with the Statistics milepost 312.65 in Wichita, Sedgwick Board should be sent to applicant’s representative: Joseph D. Anthofer, AGENCY: Bureau of Transportation County, KS. The line traverses United Statistics, DOT. States Postal Service Zip Code 67213.1 General Attorney, Union Pacific UP has certified that: (1) no local Railroad Company, 1416 Dodge Street, ACTION: Notice of meeting. traffic has moved over the line for at Room 830, Omaha, NE 68179. If the verified notice contains false or SUMMARY: Pursuant to section 10(A)(2) least 2 years; (2) any overhead traffic on of the Federal Advisory Committee Act the line can be rerouted over other lines; misleading information, the exemption is void ab initio. (Public Law 72–363; 5 U.S.C. App. 2), (3) no formal complaint filed by a user notice is hereby given of a meeting of of rail service on the line (or by a state UP has filed an environmental report which addresses the effects of the the Bureau of Transportation Statistics or local government entity acting on (BTS) Advisory Council on behalf of such user) regarding cessation abandonment and discontinuance, if any, on the environment and historic Transportation Statistics (ACTS) to be of service over the line either is pending held Monday, September 14, 1998, with the Surface Transportation Board resources. The Section of Environmental Analysis (SEA) will issue an 10:00 to 4:00 p.m. The meeting will take (Board) or with any U.S. District Court place at the U.S. Department of or has been decided in favor of environmental assessment (EA) by August 19, 1998. Interested persons may Transportation, 400 Seventh Street, complainant within the 2-year period; SW., Washington, DC, in conference and (4) the requirements at 49 CFR obtain a copy of the EA by writing to SEA (Room 500, Surface Transportation room 6200–04 of the Nassif Building. 1105.7 (environmental reports), 49 CFR The Advisory Council, called for 1105.8 (historic reports), 49 CFR Board, Washington, DC 20423) or by calling SEA, at (202) 565–1545. under section 6007 of Public Law 102– 1105.11 (transmittal letter), 49 CFR 240, Intermodal Surface Transportation 1105.12 (newspaper publication), and Comments on environmental and historic preservation matters must be Efficiency Act of 1991, December 18, 1991, and chartered on June 19, 1995, 1 By petition for exemption filed July 9, 1998, UP filed within 15 days after the EA is seeking an exemption from the requirements of becomes available to the public. was created to advise the Director of 49 U.S.C. 10904 (offers of financial assistance) Environmental, historic preservation, BTS on transportation statistics and (OFAs) and 49 U.S.C. 10905 (public use public use, or trail use/rail banking analyses, including whether or not the conditions). The City of Wichita, KS, supports UP’s statistics and analysis disseminated by petition. The merits of the petition will be addressed in a subsequent Board decision. 2 The Board will grant a stay if an informed the Bureau are of high quality and are The line will be conveyed to the City of Wichita, decision on environmental issues (whether raised based upon the best available objective KS (City), pursuant to a Memorandum of by a party or by the Board’s Section of information. Understanding between UP and the City, which was Environmental Analysis in its independent The agenda for this meeting will approved in Union Pacific Corporation, Union investigation) cannot be made before the Pacific Railroad Company, and Missouri Pacific exemption’s effective date. See Exemption of Out- include a review of the last meeting, Railroad Company—Control and Merger—Southern of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any discussion of TEA–21 and its impact on Pacific Rail Corporation, Southern Pacific request for a stay should be filed as soon as possible BTS, identification of substantive Transportation Company, St. Louis Southwestern so that the Board may take appropriate action before issues, review of plans and schedule, Railway Company, SPCSL Corp., and The Denver the exemption’s effective date. and Rio Grande Western Railroad Company, 3 Each offer of financial assistance must be other items of interest, discussion and Finance Docket No. 32760 (STB served July 8, accompanied by the filing fee, which currently is agreement of date(s) for subsequent 1998). set at $1000. See 49 CFR 1002.2(f)(25). meetings, and comments from the floor.