DOT REPORT #29 - February, 1997 ================================================================= A compilation of rail notices published by the US Department of Transportation between February 1 - 15, 1997. Includes abandonment, operation and control notices, FRA orders and related petitions. Condensed from original. ================================================================= CONTENTS: Luzerne and Susquehanna Railway Company--Lease and Operation Exemption--Luzerne County Rail Corporation, F & L Realty, Inc., and SLIBCO Utilities, Inc. Sault Ste. Marie Bridge Company--Acquisition and Operation Exemption--Lines of Union Pacific Railroad Company Summit View Incorporated--Corporate Family Exemption--Continuance in Control of the Youngstown Belt Railroad Company Consolidated Rail Corporation--Abandonment--in Huntingdon County, PA Wheeling & Lake Erie Railway Company--Abandonment Exemption--in Wyandot County, OH CSX Corporation and CSX Transportation, Inc.--Control and Merger--Conrail Inc. and Consolidated Rail Corporation Norfolk Southern Corporation and Norfolk Southern Railway Company--Control--Conrail Inc. and Consolidated Rail Corporation Sault Ste. Marie Bridge Company--Trackage Rights Exemption-- Wisconsin Central Ltd. Wisconsin Central Ltd.--Trackage Rights Exemption--Sault Ste. Marie Bridge Company Norfolk Southern Railway Company--Abandonment Exemption--Between Edgefield and Escambia Junction, SC Norfolk Southern Railway Company--Abandonment Exemption--in Greenwood and Newberry Counties, SC Grand Rapids Eastern Railroad, Inc.; Lease and Operation Exemption; Coopersville and Marne Railway Company Line Indiana & Ohio Railway Company; Aquisition Exemption; Lines of the Grand Trunk Western Railroad Inc. Owensville Terminal Company, Inc.--Acquisition and Operation Exemption--Evansville Terminal Company, Inc. The Kansas City Southern Railway Company--Trackage Rights Exemption--Burlington Northern Railroad Company Southern Pacific Transportation Company--Trackage Rights Exemption--Southern Gulf Railway Company SPCSL Corp.--Trackage Rights Exemption--Norfolk and Western Railway Company Consolidated Rail Corporation--Discontinuance Exemption--in Montgomery and Bucks Counties, PA Kansas City Southern Industries, Inc., KCS Transportation Company, and The Kansas City Southern Railway Company; Control; Gateway Western Railway Company and Gateway Eastern Railway Company Eastern Shore Railroad, Inc.; Lease and Operation Exemption; Norfolk Southern Railway Company Pickens Railway Company; Purchase Exemption; CSX Transportation, Inc. SWKR Operating Co; Abandonment Exemption; in Cochise County, AZ ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33338] Luzerne and Susquehanna Railway Company--Lease and Operation Exemption--Luzerne County Rail Corporation, F & L Realty, Inc., and SLIBCO Utilities, Inc. Luzerne and Susquehanna Railway Company (LS), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to lease and operate certain lines of Luzerne County Rail Corporation (LCRC), F & L Realty, Inc. (F & L), and SLIBCO Utilities, Inc. (SLIBCO), located in Luzerne and Lackawanna Counties, PA. The proposed transaction was to have been consummated as soon as possible after the January 20, 1997 effective date of the exemption. The lines involved are described as follows: (1) approximately 1.7 miles of rail line owned by LCRC and F & L between milepost 10.0 at the north side of Montage Road Crossing and milepost 10.5 at Little Virginia (the Dunmore Secondary Track); and between milepost 3.7 at Little Virginia and milepost 2.5 at Runaround Switch (the Brady Industrial Track); and (2) the Minooka Industrial Track owned by SLIBCO for its entire 1.5-mile length from Runaround Switch to the end of the track at Davis Street (the Minooka line). LS will lease and operate rail lines totaling approximately 3.2 miles. Decided: January 27, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33290] Sault Ste. Marie Bridge Company--Acquisition and Operation Exemption--Lines of Union Pacific Railroad Company Sault Ste. Marie Bridge Company (SSMB), a Class III rail carrier, has filed a notice of exemption under 49 CFR 1150.41 to acquire and operate approximately 220 miles of rail lines of Union Pacific Railroad Company (UP) in the Upper Peninsula of Michigan and northern Wisconsin. The lines to be acquired and operated are: (1) The Escanaba Subdivision, extending from milepost 4.0 near Duck Creek, WI, to LS&I milepost 74.50 at Ishpeming, MI, a distance of 178.25 miles. (There are milepost equations at Menominee, MI, where milepost 49.99 = milepost 51.00, and at Escanaba, MI, where milepost 116.49 = milepost 117.00.) Trackage between Negaunee, MI, and Ishpeming is owned and operated jointly by UP, Wisconsin Central Ltd. (WCL), and the Lake Superior & Ishpeming Railroad Company (LS&I). Reflecting this arrangement, changes in milepost numbering occur at West Wye near Negaunee, where milepost 176.85 and WCL milepost 164.49 designate the same point, and again at Euclid Avenue Yard in Ishpeming, where WCL milepost 170.70 and LS&I milepost 73.79 designate the same point. The Escanaba Subdivision includes industry trackage at Menominee/Marinette jointly owned or operated with the Escanaba & Lake Superior Railroad Company (E&LS). (2) The Iron Mountain Branch, extending from milepost 0.0 at Powers, MI (connection with the Escanaba Subdivision) to milepost 30.24 at Antoine, MI, a total distance of 32.01 miles. (The Iron Mountain Branch includes 1.30 miles of trackage rights over E&LS between UP mileposts 28.45 and 29.60 at Antoine, and a 1.62-mile industrial park spur at Antoine.); (3) The Niagara Industrial Lead, extending from milepost -0.40 at Quinnesec, MI (connection with the Iron Mountain Branch) to milepost 3.75 at Niagara, WI, a distance of 4.15 miles.; and (4) The Palmer Industrial Lead, extending from milepost 0.0 at Cascade (connection with the Escanaba Subdivision) to milepost 6.06 at Palmer, MI, a distance of 6.06 miles. (The Palmer Industrial Lead currently is out of service.) SSMB also will acquire by assignment from UP incidental trackage rights over lines of LS&I between Eagle Mills Jct. and Eagle Mills, MI, a distance of approximately 3 miles, and between Empire Junction and Empire Mine, MI, a distance of approximately 2 miles, and over lines of Fox Valley & Western Ltd. between Duck Creek and Green Bay, WI, a distance of approximately 4 miles. The scheduled consummation date originally was January 20, 1997, but SSMB extended it to January 24, 1997. On January 6, 1997, Inland Steel Company and LTV Steel Company, Inc., jointly filed a petition to reject the notice of exemption or to revoke the exemption. Simultaneously, they filed a petition to stay the effectiveness of the notice of exemption pending a ruling on the petition to reject or revoke. The stay request was denied by decision served January 24, 1997. The petition to reject or revoke will be handled in a separate decision. Decided: January 28, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Finance Docket No. 33332] Summit View Incorporated--Corporate Family Exemption--Continuance in Control of the Youngstown Belt Railroad Company Summit View Incorporated (Summit) has filed a notice of exemption to continue in control of its subsidiary, The Youngstown Belt Railroad Company (YBRR), upon YBRR's becoming a Class III rail carrier. The transaction was to have been consummated shortly after December 31, 1996, the effective date of the exemption. YBRR, a noncarrier, has concurrently filed a notice of exemption in The Youngstown Belt Railroad Company--Lease and Operation Exemption-- Warren & Trumbull Railroad Company, STB Finance Docket No. 33333, to lease and operate approximately 12.9 miles of rail line, together with incidental trackage rights, owned by another Summit subsidiary, The Warren and Trumbull Railroad Company (WTRC); and (2) to acquire and operate 2.4 miles of connected rail line owned by CSX Transportation, Inc. (CSXT) via simultaneous assignment of WTRC's rights under a Track Lease/Operating Agreement with CSXT, a total of 15.3 miles of rail line, exclusive of the incidental trackage rights, located in Mahoning and Trumbull Counties, OH. Summit controls four other nonconnecting Class III rail carriers: the Ohio & Pennsylvania Railroad Company; the Ohio Central Railroad, Inc.; the Ohio Southern Railroad, Inc.; and the Youngstown & Austintown Railroad, Inc. Summit has filed its notice of exemption under 49 CFR 1180.2(d)(3) as the proposed continuance in control is a corporate family transaction. Summit states that: Summit, YBRR and WTRC are members of the same corporate family; and that the transactions involved will not result in any adverse changes in service levels, significant operational changes, or a change in the competitive balance with carriers outside Summit's corporate family. The transaction therefore is exempt from the prior approval requirements of 49 U.S.C. 11323. See 49 CFR 1180.2(d)(3). This notice corrects and supersedes the notice in this proceeding that was served on January 24, 1997, and published the same date. Decided: January 29, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Docket No. AB-167 (Sub-No. 1175)] Consolidated Rail Corporation--Abandonment--in Huntingdon County, PA The Board has issued a certificate authorizing Consolidated Rail Corporation (Conrail) to abandon its 1.60-mile Mt. Union Industrial Track, from milepost 0.0 to milepost 1.60, in the Borough of Mt. Union, Huntingdon County, PA. The abandonment was granted subject to standard employee protective conditions. The abandonment certificate will become effective on March 6, 1997, unless the Board finds that a financially responsible person has offered financial assistance (through subsidy or purchase) to enable rail service to be continued. Decided: January 29, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Docket No. AB-227 (Sub-No. 7X)] Wheeling & Lake Erie Railway Company--Abandonment Exemption--in Wyandot County, OH ACTION: Notice of exemption. SUMMARY: The Board, under 49 U.S.C. 10502, exempts from the prior approval requirements of 49 U.S.C. 10903 the abandonment by the Wheeling & Lake Erie Railway Company of its 2.3-mile Carey Spur line between milepost 55.3 and milepost 53.0 near Carey, in Wyandot County, OH, subject to labor protective conditions and an environmental condition. DATES: Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on March 6, 1997. Decided: January 23, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33220] CSX Corporation and CSX Transportation, Inc.--Control and Merger--Conrail Inc. and Consolidated Rail Corporation ACTION: Decision No. 8; Notice of Issuance of Procedural Schedule. SUMMARY: The Board is issuing a procedural schedule, following the receipt of public comments on a proposed procedural schedule and replies to those comments. This schedule provides for issuance of a final decision no later than 365 days after filing of the primary application. EFFECTIVE DATE: The effective date of this decision is February 5, 1997. Notices of intent to participate in this proceeding will be due 45 days after the primary application is filed. All descriptions of inconsistent and responsive applications, as well as any petitions for waiver or clarification with respect thereto, will be due 60 days after the primary application is filed. All comments, protests, requests for conditions, inconsistent and responsive applications, and any other opposition evidence and argument will be due 120 days after the primary application is filed. For further information, see the procedural schedule set forth below. SUPPLEMENTARY INFORMATION: On October 18, 1996, CSX Corporation (CSXC), CSX Transportation, Inc. (CSXT), Conrail Inc. (CRI), and Consolidated Rail Corporation (CRC) filed their CSX/CR-1 notice of intent to file an application (hereinafter referred to as the primary application) seeking Board authorization under 49 U.S.C. 11323-25 for: (1) The acquisition of control of CRI by Green Acquisition Corp. (Acquisition), an indirect wholly owned subsidiary of CSXC; (2) the merger of CRI into Acquisition; and (3) the resulting common control of CSXT and CRC by CSXC. Applicants indicated that they expected to file their primary application, and any related applications, petitions, and notices, on or before March 1, 1997. CSXC and CSXT are referred to collectively as CSX. CRI and CRC are referred to collectively as Conrail. CSX and Conrail are referred to collectively as applicants. By letter dated December 27, 1996, CSXC and Acquisition advised the Board that certain amendments had been made to the Agreement and Plan of Merger (the Merger Agreement) dated October 14, 1996, by CSXC, Acquisition, and CRI. The Merger Agreement, as first entered into, envisioned: (1) the acquisition by Acquisition of approximately 19.9% of the common stock of CRI (this has already occurred, and the stock has been placed in a voting trust); (2) the subsequent acquisition by Acquisition of an additional approximately 20.1% of the common stock of CRI; and (3) after our approval of the primary application, the merger of CRI with and into Acquisition. As amended, however, the Merger Agreement now envisions that the merger of CRI with and into Acquisition will occur prior to our approval of the primary application. This change of plans necessarily means that applicants no longer seek our authorization for the acquisition of control of CRI by Acquisition, or for the merger of CRI into Acquisition. Applicants, however, continue to seek Board authorization for the common control, by CSXC, of CSXT and CRC (hereinafter referred to as the CSXT/CRC control transaction). Applicants continue to indicate that they expect to file their primary application, and any related applications, petitions, and notices, on or before March 1, 1997. The Merger Agreement envisions that, in connection with the merger of CRI into Acquisition, Acquisition (the surviving corporation) will be renamed ``Conrail Inc.'' References to CRI (i.e., Conrail Inc.) embrace both the ``old'' Conrail Inc. (i.e., the corporation presently known as Conrail Inc.) and the ``new'' Conrail Inc. (i.e., the renamed corporation that will exist after the merger of Conrail Inc. into Acquisition). In Decision No. 2, served and published on November 15, 1996, we gave notice of applicants' pre-filing notification, and we found that the transaction proposed by applicants is a ``major'' transaction as defined at 49 CFR 1180.2(a). In Decision No. 3, served and published on November 15, 1996, we invited comments from interested persons on a proposed procedural schedule. Comments were due on December 6, 1996; most were received on or before that date. On December 10, 1996, Norfolk Southern Corporation (NSC) responded to applicants' comments. On December 16, 1996, applicants replied to the comments. Public comments Approximately 25 comments were received in response to Decision No. 3. Comments were filed by shipper organizations, railroads, electric utilities, government entities, and rail labor unions and by United States Senators Byron L. Dorgan and John D. Rockefeller IV. Some commenters suggested that we hold in abeyance any decision regarding the procedural schedule pending the outcome of the hostile takeover bid launched by NSC. Others suggested that the Board coordinate dates in both the present proceeding and the NSC proceeding (STB Finance Docket No. 33286), and issue a single procedural schedule. We find no reason to delay issuance of this procedural order, which only begins a procedural schedule when a CSX/Conrail application is filed. We realize circumstances are unusual here, but we believe that it would not be judicious to speculate about whether two merger applications will be filed, and we continue to have the power to revise our handling of this matter as necessitated by changes in these circumstances. Applicants in this proceeding already have filed their notice of intent, and pursuant to 49 CFR 1180.4(b) their application is anticipated within 3 to 6 months. 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. We note that, at a shareholders' meeting on January 17, 1997, CSX failed to obtain Conrail shareholders' approval to opt out of Subchapter 25E of the Pennsylvania Business Corporation Act. This has no effect on our decision to adopt a procedural schedule, which is only triggered by the filing of the formal merger application. Our issuance of such a decision neither requires action by any person or party nor prejudices any person or party. We also note that CSX, Conrail and NSC have indicated an agreement to meet to discuss matters pertaining to a merger involving Conrail. Given the intent of CSX and Conrail currently on the record to file their application by March 1, the Board believes that it must address the pending petition to set a procedural schedule at this time. As with any action that the Board takes, if circumstances change that warrant modification of a Board decision, the Board will take whatever action is appropriate. We find it unnecessary to consolidate this proceeding with STB Finance Docket No. 33286, in which no application has yet been filed, and thus will adopt separate, but identical, procedural schedules for these proceedings, which will not begin in either case until an application is filed. Rather, once an application seeking approval to control Conrail has been filed and the procedural schedule in that proceeding has begun, we will require that any subsequent application from any other party seeking approval to control Conrail, or any portion of Conrail, must be filed as an inconsistent or responsive application in accordance with the procedural schedule then underway. Thus, we will in effect have a single proceeding for determining the control or merger of Conrail. After reviewing all of the comments we received on the proposed procedural schedule, we have determined, as discussed below, that a 365-day procedural schedule (which is 110 days more than applicants had proposed) will ensure that all parties are accorded due process and will allow us ample time to consider fully all of the issues in this proceeding. Within this procedural schedule, we will consider all issues affecting the public interest, and will also address cumulative impacts and crossover effects of prior mergers as appropriate. Further, we will consider the transaction in light of any settlement agreements that the applicants may reach with any parties, regardless of the complexity of the agreements. We have carefully considered the parties' concerns regarding the amount of time necessary to prepare their cases, and have crafted the attached procedural schedule with fairness to all parties in mind. Accordingly, we have adjusted the proposed procedural schedule to give more time for the submission of filings. We also believe that we have established a schedule that will provide adequate time for the processing of any inconsistent applications that may be filed in this proceeding. Environmental Reporting Applicants filed comments requesting that we modify the requirement that applicants file an environmental report (ER) on F--30 days and instead require that only a preliminary environmental report (PER) be filed on F--30 days, and a full ER when the application is filed. Applicants state that they need more time to prepare and complete a detailed analysis of environmental effects, as contemplated in 49 CFR 1105.7. We will grant applicants' request. We note, however, that, while applicants' 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 environmental review as a result of the delayed filing of applicants' ER. We have considered this delay in adopting the extended procedural schedule. Also, in their comments, applicants propose that the Board require inconsistent and responsive applicants to file their complete ERs substantially in advance of the filing of their inconsistent and responsive applications because, applicants allege, inconsistent and responsive applicants will have significantly more lead time to perform environmental analysis and will have the benefit of applicants' PER and ER. NSC, in its reply comments, disputes applicants' allegations. In order for us to fulfill our responsibilities under the National Environmental Policy Act and other environmental laws, inconsistent applications and responsive applications must contain certain environmental information. As we have stated in past merger proceedings, anyone intending to file an inconsistent or a responsive application involving significant operational changes or an action such as a rail line abandonment or construction under 49 CFR 1105.6(b)(4) of our environmental rules must include, with its application, a preliminary draft environmental assessment (PDEA) or a preliminary draft environmental impact statement (PDEIS), as determined by SEA. Generally, these types of actions require an environmental report under 49 CFR 1105.6(b)(4) that would form the basis of a subsequent environmental assessment (or environmental impact statement, if warranted). Here, because of the time frames that we are adopting, a PDEA or PDEIS is necessary at the time that an inconsistent or responsive application is filed. We, however, will not require an inconsistent or responsive applicant to file an ER in advance of the filing of the inconsistent or responsive application. Although the information would be presented in a somewhat different format, the PDEA or PDEIS should address essentially the same environmental issues that would have been covered by an ER. The PDEA or PDEIS, like the ER, should be based on consultations with SEA and the various agencies set forth at 49 CFR 1105.7(b). In order to ensure timely, consistent, and appropriate environmental documentation, inconsistent and responsive applicants shall consult with SEA as early as possible. If a PDEA or PDEIS is not submitted or is insufficient, we will not process the inconsistent or responsive application. If an inconsistent or responsive application does not involve significant operational changes or an action such as an abandonment or construction, it generally is exempt from environmental review. The applicant must certify, however, that the proposal meets the exemption criteria under 49 CFR 1105.6(c)(2). Again, anyone intending to file an inconsistent application or responsive application shall consult with SEA as early as possible regarding the appropriate environmental documentation. Due to the uncertainties associated with this proposed transaction, we reserve the right to adjust the environmental review process, as appropriate. Notice of Intent to Participate All documents received by the Board concerning this proceeding will become part of the record and will be placed in the public docket for inspection and copying. Only those documents considered formal filings will be downloaded to the so-called pleading list. Moreover, persons who submit documents that are not considered formal filings will not be placed on the service list in this proceeding. We will compile and issue an official service list at an early stage of this proceeding to help facilitate the participation of persons who will be actively participating as ``parties of record'' (POR). We are requiring these persons to notify the Board, in writing, within 45 days after the primary application is filed, of their intent to participate actively in this proceeding. In order to be designated a POR, a person must submit an original plus 25 copies of the notice, along with a certificate of service to the Secretary of the Board, indicating that the notice has been properly served on applicants' representatives and Judge Leventhal. 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. Comments, Protests, Requests for Conditions, and Other Opposition Evidence and Argument Most commenters express a need for more time to prepare protests, requests for conditions, and other opposition evidence and argument, and ask that these submissions be due on F + 120 days or later, instead of due on F + 75 days. In their response to those comments, applicants support giving persons at least 120 days to make such submissions. We will extend the time for filing comments, protests, requests for conditions, and other opposition evidence and argument to F + 120 days as requested by applicants and most of the commenters. All inconsistent and responsive applications, and comments, including comments from the United States Department of Justice (DOJ) and the United States Department of Transportation (DOT), are also due on F + 120 days. Responses and rebuttals Applicants request that the Board permit them to file at F + 150 days a single pleading (Consolidated Filing) containing responses to comments, protests, and requested conditions filed by all participating parties (including all government parties) and their rebuttal in support of the primary application, as well as their responses to inconsistent or responsive applications. We will grant applicants' request to file a Consolidated Filing containing responses to comments, protests, and requested conditions filed by all participating parties (including all government parties) and their rebuttal in support of the primary application, as well as their responses to inconsistent or responsive applications. We agree that a Consolidated Filing by applicants would result in a more orderly record and would allow them to address the issues coherently in one submission, without needless fragmentation or repetition. Numerous commenters (including DOT), however, have urged that we allow them additional time to digest and respond to comments, protests, requested conditions, and, in particular, any inconsistent and responsive applications. Given the complexity and magnitude of issues that potentially may arise in an inconsistent or responsive application in this proceeding, we will add time in the schedule for responses to these filings. Responses to inconsistent and responsive applications, comments, protests, requested conditions, and opposition evidence and argument, as well as rebuttal in support of the primary application, will be due on F + 180 days. We note that, because inconsistent and responsive applicants must submit descriptions of their intended applications on F + 60 days, parties will have in effect 120 days to prepare their responses due on F + 180 days to any inconsistent and responsive applications. This schedule will allow adequate time for the processing of inconsistent and responsive applications filed in this proceeding, and we do not anticipate that further extensions to this schedule will be necessary. We will not allow parties filing comments, protests, and requests for conditions to file rebuttal in support of those pleadings. Parties filing inconsistent and/or responsive applications have a right to file rebuttal evidence, while parties simply commenting, protesting, or requesting conditions do not. Rebuttal in support of inconsistent and responsive applications will be due on F + 220 days, which will allow inconsistent and responsive applicants 40 days instead of 15 days to prepare their rebuttals. Other dates. We also will expand the schedule to allow parties 5 additional days to prepare briefs (not to exceed 50 pages), which will be due on F + 260 days, as well as 5 additional days to prepare for oral argument (close of record), which is scheduled on F + 300 days. As for the remainder of the schedule, we will adopt the timetable as has been proposed. The voting conference (at Board's discretion) is scheduled on F + 305 days; and the date of service of the final decision is scheduled on F + 365 days. In summary, the procedural schedule we adopt here consisting of a 365-day time period both is fair to all of the parties and allows us sufficient time to resolve the unique issues that we anticipate will arise in connection with any merger proposal involving Conrail. Our schedule is consistent with the thrust and weight of the comments and accommodates the processing of major inconsistent or responsive applications. Merger-Related Abandonments The procedural schedule applicable to merger-related abandonments will be as follows: (1) all merger-related abandonment proposals (which may be filed as applications, petitions, and/or notices) are to be filed, with any and all supporting documentation, simultaneously with the primary application; and (2) if the primary application is complete, we shall publish in the Federal Register, by day F + 30, notice of the acceptance of the primary application as well as notice of any merger-related abandonment proposal. Thereafter, with respect to each merger-related abandonment proposal: (3) interested parties must file notifications of intent to participate in the specific abandonment proceedings by day F + 45; (4) interested parties must file opposition submissions, requests for public use conditions, and/or Trails Act requests by day F + 120; (5) applicants may file rebuttal in support of their abandonment proposals, and/or responses to any requests for public use conditions and Trails Act requests, by day F + 180; (6) as with the primary application and all related matters, briefs shall be due by day F + 260, oral argument will be held on day F + 300, and a voting conference will be held, at the Board's discretion, on day F + 305; and (7) if, in the final decision served on day F + 365, we approve the primary application, we also will address, in that final decision, each of the abandonment proposals, and all matters (including requests for public use conditions and Trails Act requests) relative thereto; and if we either approve or exempt any of the abandonment proposals, we shall require interested parties to file, no later than 10 days after the date of service of the final decision, offers of financial assistance with respect to any approved or exempted abandonments. This action will not significantly affect either the quality of the human environment or the conservation of energy resources. Decided: January 30, 1997. 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. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Finance Docket No. 33286] Norfolk Southern Corporation and Norfolk Southern Railway Company--Control--Conrail Inc. and Consolidated Rail Corporation 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. SUPPLEMENTARY INFORMATION: On November 6, 1996, Norfolk Southern Corporation (NSC) and Norfolk Southern Railway Company (NSR) 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) 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 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. 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. NSC and NSR are referred to collectively as applicants. CRI and CRC are referred to collectively as Conrail. Applicants filed a copy of a proposed voting trust agreement (VTA) on October 25, 1996, to be entered into by and between NS, Acquisition, and a Bank (to be named as Trustee) for use in a possible future NS acquisition of Conrail. An informal staff opinion letter was issued on November 1, 1996. On November 6, 1996, applicants submitted an alternative VTA proposed to be entered into by and between NS, Acquisition, and a Bank (to be named as Trustee), which would revise para. 4 of the VTA to reflect that, if a merger between Acquisition and CRI takes place prior to our approval of the control application and the common stock of the merged entity is deposited into the voting trust in accordance with VTA para. 3, the Trustee will have the authority from the outset to vote all shares of the Trust Stock on all matters except the enumerated matters in para. 4 ``in accordance with its best judgment concerning the interests of [CRI].'' An informal opinion letter was issued on November 18, 1996. In a decision served and published in the Federal Register on November 27, 1996 (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. 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. We note that, at a shareholders' meeting on January 17, 1997, CSX failed to obtain Conrail shareholders' approval to opt out of Subchapter 25E of the Pennsylvania Business Corporation Act. 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. 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. Rather, once an application seeking approval to control Conrail has been filed and the procedural schedule in that proceeding has begun, we will require that any subsequent application from any other party seeking approval to control Conrail, or any portion of Conrail, must be filed as an inconsistent or responsive application in accordance with the procedural schedule then underway. Thus, we will in effect have a single proceeding for determining the control or merger of Conrail. After reviewing all of the comments we received on the proposed procedural schedule, we have determined, as discussed below, that a 365-day procedural schedule (which is 110 days more than applicants had proposed) will ensure that all parties are accorded due process and will allow us ample time to consider fully all of the issues in this proceeding. Within this procedural schedule, we will consider all issues affecting the public interest, and will also address cumulative impacts and crossover effects of prior mergers as appropriate. Further, we will consider the transaction in light of any settlement agreements that the applicants may reach with any parties, regardless of the complexity of the agreements. We have carefully considered the parties' concerns regarding the amount of time necessary to prepare their cases, and have crafted the attached procedural schedule with fairness to all parties in mind. Accordingly, we have adjusted the proposed procedural schedule to give more time for the submission of filings. We also believe that we have established a schedule that will provide adequate time for the processing of any inconsistent applications that may be filed in this proceeding. Environmental Reporting Applicants filed comments requesting that we modify the requirement that applicants file an environmental report (ER) on F-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 will be downloaded to the so-called pleading list. Moreover, persons who submit documents that are not considered formal filings will not be placed on the service list in this proceeding. We will compile and issue an official service list at an early stage of this proceeding to help facilitate the participation of persons who will be actively participating as ``parties of record'' (POR). We are requiring these persons to notify the Board, in writing, within 45 days after the primary application is filed, of their intent to participate actively in this proceeding. In order to be designated a POR, a person must submit an original plus 25 copies of the notice, along with a certificate of service to the Secretary of the Board, indicating that the notice has been properly served on applicants' representatives and Judge Leventhal.<SUP>11 Every future filing must have its own certificate of service indicating that all PORs on the service list and Judge Leventhal have been served with a copy of the filing. Members of the United States Congress will be designated as MOC and Governors will be designated as GOV on the service list. They are not parties of record and need not be served with copies of filings, unless designated as a POR. 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 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. 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. 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. 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. Merger-Related Abandonments The procedural schedule applicable to merger-related abandonments will be as follows: (1) all merger-related abandonment proposals (which may be filed as applications, petitions, and/or notices) are to be filed, with any and all supporting documentation, simultaneously with the primary application; and (2) if the primary application is complete, we shall publish in the Federal Register, by day F + 30, notice of the acceptance of the primary application as well as notice of any merger-related abandonment proposal. Thereafter, with respect to each merger-related abandonment proposal: (3) interested parties must file notifications of intent to participate in the specific abandonment proceedings by day F + 45; (4) interested parties must file opposition submissions, requests for public use conditions, and/or Trails Act requests by day F + 120; (5) applicants may file rebuttal in support of their abandonment proposals, and/or responses to any requests for public use conditions and Trails Act requests, by day F + 180; (6) as with the primary application and all related matters, briefs shall be due by day F + 260, oral argument will be held on day F + 300, and a voting conference will be held, at the Board's discretion, on day F + 305; and (7) if, in the final decision served on day F + 365, we approve the primary application, we also will address, in that final decision, each of the abandonment proposals, and all matters (including requests for public use conditions and Trails Act requests) relative thereto; and if we either approve or exempt any of the abandonment proposals, we shall require interested parties to file, no later than 10 days after the date of service of the final decision, offers of financial assistance with respect to any approved or exempted abandonments. This action will not significantly affect either the quality of the human environment or the conservation of energy resources. Decided: January 30, 1997. 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. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [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. The 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. 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. Decided: January 29, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Finance Docket No. 33349] Wisconsin Central Ltd.--Trackage Rights Exemption--Sault Ste. Marie Bridge Company Sault Ste. Marie Bridge Company (SSMB) has agreed to grant Wisconsin Central Ltd. (WCL) non-exclusive overhead trackage rights over SSMB's line of railroad between milepost 118.0 at Larch, MI, and milepost 176.9 at Negaunee, MI, a distance of approximately 58.9 miles, and non-exclusive overhead and local trackage rights between milepost 4.1 at Hermansville, MI, and milepost 118.0 at Larch, MI, a distance of approximately 25.0 miles. The total distance of trackage rights to be acquired is approximately 83.9 miles. 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. The exemption in STB Finance Docket No. 33290, which covers the transaction by which SSMB would acquire the lines over which it is granting trackage rights to WCL in the present transaction, 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 decision served on January 24, 1997. The purpose of the trackage rights is to connect WCL's existing lines at Hermansville, Larch, and Negaunee, MI. The trackage rights between Larch and Negaunee will improve transit times and the quality of WCL service for shippers in Michigan's Upper Peninsula. SSMB has concurrently filed a Notice of Exemption in STB Finance Docket No. 33348, Sault Ste. Marie Bridge Company--Trackage Rights Exemption-- Wisconsin Central Ltd. In conjunction with that filing, the proposed trackage rights between Hermansville, MI, and Larch, MI, will allow WCL and SSMB to jointly utilize their parallel lines to improve the flexibility and efficiency of operations in that corridor. Decided: January 29, 1997. ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD [STB Docket No. AB-290 (Sub-No. 188X)] Norfolk Southern Railway Company--Abandonment Exemption--Between Edgefield and Escambia Junction, SC Notice to the Parties A notice in the above proceeding, served and published on January 27, 1997, inadvertently referred to the applicant as Norfolk and Western Railway Company (NW) in the title and in the text of the notice. Please correct your copies by substituting Norfolk Southern Railway Company (NS) as the applicant. Because this is a ministerial error, the procedural schedule dates set forth in the served notice will remain the same. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Docket No. AB-290 (Sub-No. 183X)] Norfolk Southern Railway Company--Abandonment Exemption--in Greenwood and Newberry Counties, SC ACTION: Notice of exemption. SUMMARY: The Board, pursuant to 49 U.S.C. 10502, exempts Norfolk Southern Railway Company (NS) from the prior approval requirements of 49 U.S.C. 10903 to permit NS to abandon a 13-mile line of railroad between milepost V-58.0, at Conrad, and milepost V-71.0, at Brickdale, in Greenwood and Newberry Counties, SC, subject to an environmental condition and standard employee protective conditions. DATES: Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on March 9, 1997. Decided: January 30, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33344] Grand Rapids Eastern Railroad, Inc.; Lease and Operation Exemption; Coopersville and Marne Railway Company Line Grand Rapids Eastern Railroad, Inc. (GRE), a Class III rail carrier, has filed a notice of exemption under 49 CFR 1150.41 to lease and operate approximately 6.94 miles of rail line owned and operated by Coopersville and Marne Railway Company Line (C&M), a Class III rail carrier, between milepost 159.5 at Grand Rapids (Walker) and milepost 166.44 at Marne, in Kent and Ottawa Counties, MI. C&M does not presently offer freight service over the line. The transaction is expected to be consummated on or after February 1, 1997. Decided: January 31, 1996. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Finance Docket No. 33180] Indiana & Ohio Railway Company; Aquisition Exemption; Lines of the Grand Trunk Western Railroad Inc. The Indiana & Ohio Railway Company (IORY), a Class III rail carrier, filed a notice of exemption under 49 CFR 1150.41 to acquire from the Grand Trunk Western Railroad Inc. (GTW) rail lines totaling approximately 146.1 miles between Diann, MI, and Springfield, OH. The lines are located between: (1) milepost 39.7 at Diann, MI, and milepost 107.29 at XN Station near Leipsic, OH; (2) milepost 128.3 at DT&I Junction near Lima, OH, and milepost 202.7 at Springfield, OH; and (3) the Ottawa Loop between mileposts 110.8 and 114.88, south of XN Station. As part of the acquisition, IORY will be assigned GTW's overhead trackage rights totaling 107.6 miles over: (1) 20.7 miles of CSX Transportation, Inc. (CSXT) line between CSXT Milepost 155.2 at XN Station and CSXT Milepost 134.5 at DT&I Junction; (2) 3.5 miles of Indiana & Ohio Central Railroad, Inc. (IOCR) line between IOCR Milepost 129.1 at Maitland Junction and IOCR Milepost 132.6 at Cold Springs, OH; and (3) 83.4 miles of Consolidated Rail Corporation (CR) line between CR Milepost 36.3 at Springfield and CR Milepost 119.7 at Cincinnati, OH. IORY will also acquire incidental overhead trackage rights over 22.5 miles of GTW's rail line between GTW milepost 39.7 at Diann and GTW milepost 17.2 at Flat Rock, MI. The transaction was scheduled to become effective on December 27, 1996. Petitions to stay the effective date of the exemption pending the consideration of concurrently filed petitions to reject or revoke the notice were filed. A decision served December 20, 1996, stayed the effective date of the exemption until January 26, 1997, and directed parties to file additional information about the transaction. A decision served January 24, 1997, extended the stay to February 4, 1997. By decision served February 3, 1997, the Board denied the petitions to reject or revoke and dismissed the petitions to stay as moot. Decided: February 3, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Finance Docket No. 33339] Owensville Terminal Company, Inc.--Acquisition and Operation Exemption--Evansville Terminal Company, Inc. Owensville Terminal Company, Inc. (OTC), a Class III rail carrier, has filed a notice of exemption under 49 CFR 1150.41 to acquire and operate approximately 22.5 miles of rail line owned by Evansville Terminal Company, Inc. (ETC) between milepost 205.0 near Browns, IL, and milepost 227.5 at or near Poseyville, IN. While OTC will be the operator of the line, ETC has embargoed rail operations. The transaction was expected to be consummated on January 28, 1997. Decided: January 31, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33313] The Kansas City Southern Railway Company--Trackage Rights Exemption--Burlington Northern Railroad Company Burlington Northern Railroad Company (BN) has agreed to grant overhead trackage rights to The Kansas City Southern Railway Company (KCS) over a total of approximately 25.9 miles of rail line over the portion of BN's Birmingham subdivision between the BN-KCS connection at New Albany, MS (line segment 1001--BN milepost 562.3), and the BN-KCS connection at Tupelo, MS (BN milepost 588.2). The transaction was expected to be consummated on February 5, 1997. On December 31, 1996, The Atchison, Topeka and Santa Fe Railway Company was merged with and into BN, with the surviving corporation named The Burlington Northern and Santa Fe Railway Company; any reference to BN in this order shall be understood to refer to the new entity. Decided: February 5, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Finance Docket No. 33352] Southern Pacific Transportation Company--Trackage Rights Exemption--Southern Gulf Railway Company Southern Gulf Railway Company (SGR) will agree to grant trackage rights to Southern Pacific Transportation Company (SPT) over its line of railroad from milepost 0.0 (SPT milepost 226.57) to milepost 4.28, a distance of 4.28 miles near Sulphur, LA. The transaction was scheduled to be consummated on February 3, 1997. The purpose of the trackage rights is to allow SPT rail access to the Roy S. Nelson Generating Station of Entergy Gulf States, Inc. Decided: February 5, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Finance Docket No. 33351] SPCSL Corp.--Trackage Rights Exemption--Norfolk and Western Railway Company Norfolk and Western Railway Company (NW) has agreed to grant trackage rights to SPCSL Corp. (SPCSL) over approximately 19,950 feet, more or less, of NW trackage at Springfield, IL. The trackage rights will allow the City of Springfield to consolidate the NW and SPCSL rights of way into one corridor. The transaction was scheduled to be consummated on February 3, 1997. Decided: February 5, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Docket No. AB-167 (Sub-No. 1177X)] Consolidated Rail Corporation--Discontinuance Exemption--in Montgomery and Bucks Counties, PA ACTION: Notice of exemption. SUMMARY: The Board, pursuant to 49 U.S.C. 10502, exempts Consolidated Rail Corporation (Conrail) from the prior approval requirements of 49 U.S.C. 10903 to permit Conrail to discontinue service pursuant to its trackage rights over Southeastern Pennsylvania Transportation Authority's (SEPTA) 14.9-mile line of railroad, known as the Bethlehem Branch, between milepost 30.5 plus-minus, near Telford, and milepost 45.4 plus-minus, near Quakertown, in Montgomery and Bucks Counties, PA, subject to standard labor protective conditions. DATES: Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on March 14, 1997. Decided: February 3, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33311] Kansas City Southern Industries, Inc., KCS Transportation Company, and The Kansas City Southern Railway Company; Control; Gateway Western Railway Company and Gateway Eastern Railway Company ACTION: Acceptance of application. SUMMARY: On January 14, 1997, Kansas City Southern Industries, Inc. (KCSI), KCS Transportation Company (KCSTC), The Kansas City Southern Railway Company (KCSR), Gateway Western Railway Company (GWWR), and Gateway Eastern Railway Company (GWER) filed an application for KCSI to acquire control of GWWR and GWER. We accept the application for consideration. We further find that this is a ``minor transaction'' under 49 CFR 1180.2(c). Finally, we establish an expedited procedural schedule. DATES: Written comments, including comments from the Secretary of Transportation and the Attorney General of the United States, must be filed with the Board no later than March 17, 1997. Applicants' reply statement is due on April 1, 1997. The Board expects to issue a final decision by May 1, 1997, with an effective date of May 5, 1997. SUPPLEMENTARY INFORMATION: Applicants seek approval under 49 U.S.C. 11323-25 for KCSI to acquire control of GWWR and GWER. On December 12, 1996, KCSI's wholly owned noncarrier subsidiary, KCSTC, acquired the stock of GWWR and GWER and placed the shares into an independent voting trust. Upon approval of this application, the voting trust will be dissolved, and the shares will be transferred to KCSTC. Applicants indicate that, after the transaction is effected, KCSI will control KCSR, GWWR, and GWER. GWWR and GWER will be marketed as part of the KCSR rail system, and their operations will be coordinated with those of KCSR. However, applicants indicate that GWWR and GWER will remain separate legal entities and will not be merged into KCSR. Applicants allege that this is a ``minor transaction'' as defined in 49 CFR part 1180, the regulations that implemented former 49 U.S.C. 11343-45. The ICCTA revised those statutory provisions and reenacted them as 49 U.S.C. 11323-25. The transaction here specifically is subject to 49 U.S.C. 11324(d) because it does not involve the merger or control of two Class I railroads. Section 204(a) of the ICCTA provides that all ICC rules in effect on the date the enactment of the ICCTA ``shall continue in effect according to their terms until modified, terminated, superceded, set aside, or revoked in accordance with law by the Board * * * or operation of law.'' While the standards and procedures of former sections 11343-45 and current sections 11323-25 are substantially similar insofar as minor transactions are concerned, the procedures of current section 11325(d), which applies if the transaction is a minor transaction, differ slightly from those at 49 CFR 1180.4 and shall govern. Otherwise, the use of the regulations at 49 CFR part 1180 for this proceeding appears proper. Under 49 U.S.C. 11324(d), in proceedings not involving the merger or control of at least two Class I railroads, the Board must approve a transaction unless it finds that: (1) The transaction will result is a ``substantial lessening of competition, creation of a monopoly, or restraint of trade in freight surface transportation in any region of the United States;'' and (2) ``the anticompetitive effects of the transaction outweigh the public interest in meeting significant transportation needs.'' KCSR is a Class I railroad that operates more than 4,000 route miles in the Midwest and Southern States. GWWR is a Class II railroad which owns and operates 461 miles of rail line between Kansas City, KS, and East St. Louis, IL. GWWR also has haulage rights over the Southern Pacific Transportation Inc. line between Springfield and Chicago, IL. GWER, which is wholly owned by GWWR, is a Class III railroad that owns and operates 17 miles of rail line between East Alton and East St. Louis, IL. The transaction here will extend KCSR's rail system into Chicago and East St. Louis. Applicants argue that the transaction will have no anticompetitive effects because it would be an end-to-end acquisition, not a parallel acquisition. According to applicants, the transaction will enhance competition and provide shippers with increased service and routing options. Applicants assert that the transaction will further the public interest in meeting significant transportation needs. They contend that the combined KCSI system will provide shippers with better equipment utilization, improved car supply resulting from access to the larger car fleet of the combined system, new opportunities for single-line service, improved plant maintenance and other operating efficiencies. Applicants further assert that the transaction will strengthen KCSI's combined system and improve its financial and operating performance. Applicants anticipate that no existing non-exempt KCSR, GWWR or GWER employees will be adversely affected by the proposed transaction. According to applicants, all of GWWR's non-management employees and maintenance-of-way employees are represented by national unions and are covered under existing collective bargaining agreements, which will remain in force. They further state that there are no plans to transfer work currently performed by GWWR or GWER employees to KCSR locations. GWWR and GWER management employees and GWER exempt personnel are not covered by collective bargaining agreements. Applicants assert that the ``applicable level of labor protection for the control transaction proposed herein is that set forth in New York Dock Ry.-Control-Brooklyn Eastern Dist., 360 I.C.C. 60 (1979).'' Under 49 CFR part 1180, the Board must determine whether a proposed transaction is major, significant, or minor. We find that the transaction is minor under 49 CFR 1180.2(c), because it has no regional or national transportation significance. Because the application substantially complies with the applicable regulations governing minor transactions, we are accepting it for consideration. By petition filed January 14, 1997, applicants request an expedited procedural schedule for processing the application. Due to the limited, end-to-end nature of the proposed transaction, it is not likely to involve complex issues. Thus, we will adopt the suggested expedited schedule, which is reflected in the DATES section above. But we reserve the right to modify this schedule if unforeseen issues arise. This action will not significantly affect either the quality of the human environment or the conservation of energy resources. It is ordered: 1. The application is accepted for consideration under 49 U.S.C. 11323-25 as a minor transaction under 49 CFR 1180.2(c). 2. The parties will comply with all provisions stated above. 3. This decision is effective on February 13, 1997. Decided: February 7, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33342] Eastern Shore Railroad, Inc.; Lease and Operation Exemption; Norfolk Southern Railway Company Eastern Shore Railroad, Inc. (ESHR), a Class III rail carrier, has filed a notice of exemption under 49 CFR 1150.41 to lease and operate two related and contiguous rail line segments, forming one continuous line, owned and operated by Norfolk Southern Railway Company, a Class I rail carrier, between approximately milepost SN-2.1 at North Junction, Norfolk, VA, and approximately milepost SN-6.7 at Diamond Springs, Virginia Beach, VA, (including two switching or connecting tracks known as the Joint Track at Coleman Place and the Middle Track), a distance of approximately 4.6 miles. The segments are the 3.1-mile North Beach Route and the 1.5- mile Diamond Springs Line. The transaction is expected to be consummated on or after February 6, 1997. Decided: February 5, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Finance Docket No. 33288] Pickens Railway Company; Purchase Exemption; CSX Transportation, Inc. ACTION: Notice of exemption. SUMMARY: The Board, pursuant to 49 U.S.C. 10502, exempts from the prior approval requirements of 49 U.S.C. 11323 Pickens Railway Company's (Pickens) purchase from CSX Transportation, Inc. (CSXT), of 9.61 miles of main line and spur trackage, from milepost AKH-555.088 to milepost AKH-561.409 and from milepost AKM-7.245 to milepost AKM-8.072, in Anderson, SC. Pickens will also acquire, through assignment from CSXT, 11.96 miles of CSXT trackage rights over Norfolk Southern Railway Company's line between Belton, SC, and Anderson. The exemption will be subject to standard labor protective conditions. The two segments of main line track are connected by the Orr Mill Spur. DATES: This exemption will be effective on March 16, 1997. Decided: February 7, 1997. ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Docket No. AB-441 (Sub-No. 2X)] SWKR Operating Co; Abandonment Exemption; in Cochise County, AZ ACTION: Notice of exemption. SUMMARY: The Board, pursuant to 49 U.S.C. 10502, exempts SWKR Operating Co. from the prior approval requirements of 49 U.S.C. 10903 to abandon the stub-end of its Douglas Branch, subject to historic preservation, trail use, public use, and standard labor protective conditions. The line extends between milepost 1055.8 near Charleston and the end of the line at milepost 1097.3, near Paul Spur, a distance of 41.5 miles, in Cochise County, AZ. DATES: Provided no formal expression of intent to file a financial assistance offer has been received, this exemption will be effective on March 16, 1997. Decided: February 7, 1997. ====================================================================== Comments or questions about this compilation should be directed to Paul Moore at 71367.1057@Compuserve.com. ======================================================================