CSX Corporation and CSX Transportation, Inc.Control and MergerConrail Inc. and Consolidated Rail Corporation

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

AGENCY: Surface Transportation Board, DOT.

ACTION: Decision No. 8; Notice of Issuance of Procedural Schedule.

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SUMMARY: The Board is issuing a procedural schedule, following the

receipt of public comments on a proposed procedural schedule and

replies to those comments. This schedule provides for issuance of a

final decision no later than 365 days after filing of the primary

application.

EFFECTIVE DATE: The effective date of this decision is February 5,

1997. Notices of intent to participate in this proceeding will be due

45 days after the primary application is filed. All descriptions of

inconsistent and responsive applications, as well as any petitions for

waiver or clarification with respect thereto, will be due 60 days after

the primary application is filed. All comments, protests, requests for

conditions, inconsistent and responsive applications, and any other

opposition evidence and argument will be due 120 days after the primary

application is filed. For further information, see the procedural

schedule set forth below.

ADDRESSES: An original plus 25 copies 1 of all documents,

referring to STB Finance Docket No. 33220, must be sent to the Office

of the Secretary, Case Control Branch, ATTN: STB Finance Docket No.

33220, Surface Transportation Board, 1201 Constitution Avenue, N.W.,

Washington, DC 20423.2 Parties are requested also to submit all

pleadings, and any attachments, on a 3.5-inch diskette in WordPerfect

5.1 format.

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\1\ In order for a document to be considered a formal filing,

the Board must receive an original plus 25 copies of the document,

which must show that it has been properly served. Documents

transmitted by facsimile (FAX), as in the past, will not be

considered formal filings and thus are not encouraged because they

will result in unnecessarily burdensome, duplicative processing in

what we expect to become a voluminous record.

Applicants may file in bound volumes an original plus 25 copies

of related applications, petitions, and notices of exemption;

however, to facilitate processing of these related filings, we will

require that applicants also file two unbound copies of each of

these filings.

\2\ It is anticipated that the Board will move to its new

offices in March 1997. The Board's address at the new offices will

be: Surface Transportation Board, Mercury Building, 1925 K Street,

N.W., Washington, DC 20423.

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In addition, one copy of all formal filings in this proceeding must

be sent to Administrative Law Judge Jacob Leventhal, Federal Energy

Regulatory Commission, 888 First Street, N.E., Suite 11F, Washington,

DC 20426 [(202) 219-2538; FAX: (202) 219-3289], and to each of the

applicants' representatives: (1) Dennis G. Lyons, Esq., Arnold &

Porter, 555 12th Street, N.W., Washington, DC 20004-1202; and (2) Paul

A. Cunningham, Esq., Harkins Cunningham, Suite 600, 1300 Nineteenth

Street, N.W., Washington, DC 20036.

FOR FURTHER INFORMATION CONTACT: Julia M. Farr, (202) 927-5352. [TDD

for the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: On October 18, 1996, CSX Corporation (CSXC),

CSX Transportation, Inc. (CSXT), Conrail Inc. (CRI), and Consolidated

Rail Corporation (CRC) 3 filed their CSX/CR-1 notice of intent to

file an application (hereinafter referred to as the primary

application) seeking Board authorization under 49 U.S.C. 11323-25 for:

(1) The acquisition of control of CRI by Green Acquisition Corp.

(Acquisition), an indirect wholly owned subsidiary of CSXC; (2) the

merger of CRI into Acquisition; and (3) the resulting common control of

CSXT and CRC by CSXC. Applicants indicated that they expected to file

their primary application, and any related applications, petitions, and

notices, on or before March 1, 1997.

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\3\ 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.

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By letter dated December 27, 1996, CSXC and Acquisition advised the

Board that certain amendments had been made to the Agreement and Plan

of Merger (the Merger Agreement) dated October 14, 1996, by CSXC,

Acquisition, and CRI. The Merger Agreement, as first entered into,

envisioned: (1) the acquisition by Acquisition of approximately 19.9%

of the common stock of CRI (this has already occurred, and the stock

has been placed in a voting trust); (2) the subsequent acquisition by

Acquisition of an additional approximately 20.1% of the common stock of

CRI; and (3) after our approval of the primary application, the merger

of CRI with and into Acquisition. As amended, however, the Merger

Agreement now envisions that the merger of CRI with and into

Acquisition will occur prior to our approval of the primary

application. This change of plans necessarily means that applicants no

longer seek our authorization for the acquisition of control of CRI by

Acquisition, or for the merger of CRI into Acquisition.4

Applicants, however, continue to seek Board authorization for the

common control, by CSXC, of CSXT and CRC (hereinafter referred to as

the CSXT/CRC control transaction). Applicants continue to indicate that

they expect to file their primary application, and any related

applications, petitions, and notices, on or before March 1, 1997.5

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\4\ 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).

\5\ The primary application, and each related application,

petition, and notice, must be accompanied by the appropriate fee.

See, in general, 49 CFR 1002.2(f), as recently amended in

Regulations Governing Fees for Services Performed in Connection with

Licensing and Related Services--1997 Update, STB Ex Parte No. 542

(Sub-No. 1) (STB served Jan. 23, 1997, 62 FR 3487 (Jan. 23, 1997),

and effective February 24, 1997). The fees applicants will have to

pay may include, among others, the fees codified at: 49 CFR

1002.2(f)(39)(i) ($889,500 for the primary merger application); 49

CFR 1002.2(f)(12)(i) or (12)(iii) ($44,500 for either an application

or a petition involving the construction of a rail line); 49 CFR

1002.2(f)(21)(i) ($13,200 for an abandonment application, except an

abandonment application filed by CRC under the Northeast Rail

Service Act); 49 CFR 1002.2(f)(21)(ii) ($2,200 for an abandonment

notice of exemption); 49 CFR 1002.2(f)(21)(iii) ($3,800 for an

abandonment petition for exemption); 49 CFR 1002.2(f)(22) ($250 for

an abandonment application filed by CRC under the Northeast Rail

Service Act); 49 CFR 1002.2(f)(36) ($11,300 for an application for

use of terminal facilities); 49 CFR 1002.2(f)(40)(iv) ($750 for a

trackage rights notice of exemption); and 49 CFR 1002.2(f)(40)(vi)

($5,600 for a trackage rights petition for exemption). The Board is

in the process of revising its rules and the way user fees are

applied to reflect more accurately the resources expended on related

filings in proceedings involving major transactions filed under fee

items 38 through 41. We plan to issue interim rules shortly to cover

this revision and that also will implement a new three-tiered fee

structure for inconsistent applications that includes a

determination of whether the transaction being proposed is minor,

significant, or major. In addition, we plan to clarify what a

responsive application is and what fees should be assessed for the

various types of responsive applications.

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[[Page 5508]]

In Decision No. 2, served and published on November 15, 1996 (61 FR

58613), we gave notice of applicants' pre-filing notification, and we

found that the transaction proposed by applicants is a ``major''

transaction as defined at 49 CFR 1180.2(a).

In Decision No. 3, served and published on November 15, 1996 (61 FR

58611), we invited comments from interested persons on a proposed

procedural schedule. Comments were due on December 6, 1996; most were

received on or before that date. On December 10, 1996, Norfolk Southern

Corporation (NSC) responded to applicants' comments. On December 16,

1996, applicants replied to the comments.

Public comments

Approximately 25 comments were received in response to Decision No.

3. Comments were filed by shipper organizations, railroads, electric

utilities, government entities, and rail labor unions and by United

States Senators Byron L. Dorgan and John D. Rockefeller IV.

Some commenters suggested that we hold in abeyance any decision

regarding the procedural schedule pending the outcome of the hostile

takeover bid launched by NSC. Others suggested that the Board

coordinate dates in both the present proceeding and the NSC proceeding

(STB Finance Docket No. 33286), and issue a single procedural schedule.

We find no reason to delay issuance of this procedural order, which

only begins a procedural schedule when a CSX/Conrail application is

filed. We realize circumstances are unusual here, but we believe that

it would not be judicious to speculate about whether two merger

applications will be filed, and we continue to have the power to revise

our handling of this matter as necessitated by changes in these

circumstances. Applicants in this proceeding already have filed their

notice of intent, and pursuant to 49 CFR 1180.4(b) their application is

anticipated within 3 to 6 months.6 In the interest of efficient

government, we believe that we should establish a procedural schedule

in a timely manner to give adequate notice to all interested persons

prior to the anticipated filing date of the application.7

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\6\ We note that, pursuant to 49 CFR 1180.4(b)(3), ``[a]

prefiling notice may be amended to indicate a change in the

anticipated filing date.''

\7\ We note that, at a shareholders' meeting on January 17,

1997, CSX failed to obtain Conrail shareholders' approval to opt out

of Subchapter 25E of the Pennsylvania Business Corporation Act. See

Pa. Stat. Ann., tit. 15, Secs. 2541 through 2548 (West 1995). This

has no effect on our decision to adopt a procedural schedule, 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.

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We find it unnecessary to consolidate this proceeding with STB

Finance Docket No. 33286, in which no application has yet been filed,

and thus will adopt separate, but identical, procedural schedules for

these proceedings, which will not begin in either case until an

application is filed. 8 Rather, once an application seeking

approval to control Conrail has been filed and the procedural schedule

in that proceeding has begun, we will require that any subsequent

application from any other party seeking approval to control Conrail,

or any portion of Conrail, must be filed as an inconsistent or

responsive application in accordance with the procedural schedule then

underway. Thus, we will in effect have a single proceeding for

determining the control or merger of Conrail.

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\8\ By separate decision served concurrently in STB Finance

Docket No. 33286, we are adopting the same procedural schedule for

the NSC proceeding.

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After reviewing all of the comments we received on the proposed

procedural schedule, we have determined, as discussed below, that a

365-day procedural schedule (which is 110 days more than applicants had

proposed) will ensure that all parties are accorded due process and

will allow us ample time to consider fully all of the issues in this

proceeding. Within this procedural schedule, we will consider all

issues affecting the public interest, and will also address cumulative

impacts and crossover effects of prior mergers as appropriate. Further,

we will consider the transaction in light of any settlement agreements

that the applicants may reach with any parties, regardless of the

complexity of the agreements.

We have carefully considered the parties' concerns regarding the

amount of time necessary to prepare their cases, and have crafted the

attached procedural schedule with fairness to all parties in mind.

Accordingly, we have adjusted the proposed procedural schedule to give

more time for the submission of filings. We also believe that we have

established a schedule that will provide adequate time for the

processing of any inconsistent applications that may be filed in this

proceeding.

Environmental Reporting

Applicants filed comments requesting that we modify the requirement

that applicants file an environmental report (ER) on F 9--30 days

and instead require that only a preliminary environmental report (PER)

be filed on F--30 days, and a full ER when the application is filed.

Applicants state that they need more time to prepare and complete a

detailed analysis of environmental effects, as contemplated in 49 CFR

1105.7. We will grant applicants' request. We note, however, that,

while applicants' 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.

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\9\ F is the date of filing of the primary application.

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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

[[Page 5509]]

will have the benefit of applicants' PER and ER. NSC, in its reply

comments, disputes applicants' allegations.

In order for us to fulfill our responsibilities under the National

Environmental Policy Act and other environmental laws, inconsistent

applications and responsive applications must contain certain

environmental information. As we have stated in past merger

proceedings, anyone intending to file an inconsistent or a responsive

application involving significant operational changes or an action such

as a rail line abandonment or construction under 49 CFR 1105.6(b)(4) of

our environmental rules must include, with its application, a

preliminary draft environmental assessment (PDEA) or a preliminary

draft environmental impact statement (PDEIS), as determined by SEA.

Generally, these types of actions require an environmental report under

49 CFR 1105.6(b)(4) that would form the basis of a subsequent

environmental assessment (or environmental impact statement, if

warranted). Here, because of the time frames that we are adopting, a

PDEA or PDEIS is necessary at the time that an inconsistent or

responsive application is filed. We, however, will not require an

inconsistent or responsive applicant to file an ER in advance of the

filing of the inconsistent or responsive application.

Although the information would be presented in a somewhat different

format, the PDEA or PDEIS should address essentially the same

environmental issues that would have been covered by an ER. The PDEA or

PDEIS, like the ER, should be based on consultations with SEA and the

various agencies set forth at 49 CFR 1105.7(b). In order to ensure

timely, consistent, and appropriate environmental documentation,

inconsistent and responsive applicants shall consult with SEA as early

as possible. If a PDEA or PDEIS is not submitted or is insufficient, we

will not process the inconsistent or responsive application.

If an inconsistent or responsive application does not involve

significant operational changes or an action such as an abandonment or

construction, it generally is exempt from environmental review. The

applicant must certify, however, that the proposal meets the exemption

criteria under 49 CFR 1105.6(c)(2). Again, anyone intending to file an

inconsistent application or responsive application shall consult with

SEA as early as possible regarding the appropriate environmental

documentation. Due to the uncertainties associated with this proposed

transaction, we reserve the right to adjust the environmental review

process, as appropriate.

Notice of Intent to Participate

All documents received by the Board concerning this proceeding will

become part of the record and will be placed in the public docket for

inspection and copying. Only those documents considered formal filings

(i.e., those meeting the filing specifications discussed above in the

ADDRESSES section) will be downloaded to the 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. 10 Every future filing must

have its own certificate of service indicating that all PORs on the

service list and Judge Leventhal have been served with a copy of the

filing. Members of the United States Congress will be designated as MOC

and Governors will be designated as GOV on the service list. They are

not parties of record and need not be served with copies of filings,

unless designated as a POR.

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\10\ The Office of the Secretary will compile the official

service list for this proceeding after service of this decision

adopting a procedural schedule. Persons named on the earlier service

list will not automatically be placed on the official service list.

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We will continue to follow the practice established in Union

Pacific Corporation, Union Pacific Railroad Company, and Missouri

Pacific Railroad Company--Control and Merger--Southern Pacific Rail

Corporation, Southern Pacific Transportation Company, St. Louis

Southwestern Railway Company, SPCSL Corp., and The Denver and Rio

Grande Western Railroad Company, Finance Docket No. 32760 (UP/SP). See

UP/SP, Decision No. 15 (STB served Feb. 16, 1996), at 2-3. Copies of

decisions, orders, and notices will be served only on those persons who

are designated as POR or MOC or GOV on the official service list. All

other interested persons are encouraged to make advance arrangements

with the Board's copy contractor, DC News & Data, Inc. (DC News), to

receive copies of Board decisions, orders, and notices served in this

proceeding. DC News will handle the collection of charges and the

mailing and/or faxing of decisions to persons who request this service.

The telephone number for DC News is: (202) 289-4357.

Comments, Protests, Requests for Conditions, and Other Opposition

Evidence and Argument

Most commenters express a need for more time to prepare protests,

requests for conditions, and other opposition evidence and argument,

and ask that these submissions be due on F + 120 days or later, instead

of due on F + 75 days. In their response to those comments, applicants

support giving persons at least 120 days to make such submissions.

We will extend the time for filing comments, protests, requests for

conditions, and other opposition evidence and argument to F + 120 days

as requested by applicants and most of the commenters. All inconsistent

and responsive applications, and comments, including comments from the

United States Department of Justice (DOJ) and the United States

Department of Transportation (DOT), are also due on F + 120 days. Every

party intending to file an inconsistent or responsive application must

contact the Office of the Secretary at (202) 927-5686 or 927-8910 to

reserve an STB Finance Docket No. 33220 Sub-number to use in filing the

description of anticipated inconsistent or responsive application due

on F + 60 days. [After the Board relocates to its new offices, the new

number will be (202) 565-1681.]

Responses and rebuttals

Applicants request that the Board permit them to file at F + 150

days a single pleading (Consolidated Filing) containing responses to

comments, protests, and requested conditions filed by all participating

parties (including all government parties) and their rebuttal in

support of the primary application, as well as their responses to

inconsistent or responsive applications. We will grant applicants'

request to file a Consolidated Filing containing responses to comments,

protests, and requested conditions filed by all participating parties

(including all government parties) and their rebuttal in support of the

primary application, as well as their responses to inconsistent or

responsive applications. We agree that a Consolidated Filing by

applicants would result in a more orderly record

[[Page 5510]]

and would allow them to address the issues coherently in one

submission, without needless fragmentation or repetition.\11\

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\11\ Applicants also request that, as in recent merger

proceedings, the Board indicate that it will require appeals of ALJ

decisions to be filed within 3 working days and responses to appeals

or to any procedural motion filed with the Board also to be filed

within 3 working days. As in prior merger proceedings, we think it

appropriate to tighten the deadlines provided by 49 CFR 1115.1(c).

Accordingly, the provisions of the second sentence of 49 CFR

1115.1(c) to the contrary notwithstanding, an appeal to a decision

issued by Judge Leventhal must be filed within 3 working days of the

date of his decision, and any response to any such appeal must be

filed within 3 working days thereafter. Likewise, any reply to any

procedural motion filed with the Board itself in the first instance

must also be filed within 3 working days of the date the motion is

filed.

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Numerous commenters (including DOT), however, have urged that we

allow them additional time to digest and respond to comments, protests,

requested conditions, and, in particular, any inconsistent and

responsive applications. Given the complexity and magnitude of issues

that potentially may arise in an inconsistent or responsive application

in this proceeding, we will add time in the schedule for responses to

these filings. Responses to inconsistent and responsive applications,

comments, protests, requested conditions, and opposition evidence and

argument, as well as rebuttal in support of the primary application,

will be due on F + 180 days. We note that, because inconsistent and

responsive applicants must submit descriptions of their intended

applications on F + 60 days, parties will have in effect 120 days to

prepare their responses due on F + 180 days to any inconsistent and

responsive applications. This schedule will allow adequate time for the

processing of inconsistent and responsive applications filed in this

proceeding, and we do not anticipate that further extensions to this

schedule will be necessary.

We will not allow parties filing comments, protests, and requests

for conditions to file rebuttal in support of those pleadings. Parties

filing inconsistent and/or responsive applications have a right to file

rebuttal evidence, while parties simply commenting, protesting, or

requesting conditions do not. UP/SP, Decision No. 6 (ICC served Oct.

19, 1995, at 7-8, 60 FR 54384 (Oct. 23, 1995)); Burlington Northern

Inc. and Burlington Northern Railroad Company--Control and Merger--

Santa Fe Pacific Corporation and The Atchison, Topeka and Santa Fe

Railway Company, Finance Docket No. 32549, Decision No. 16 (ICC served

Apr. 20, 1995), at 11. Rebuttal in support of inconsistent and

responsive applications will be due on F + 220 days, which will allow

inconsistent and responsive applicants 40 days instead of 15 days to

prepare their rebuttals.

Other dates. We also will expand the schedule to allow parties 5

additional days to prepare briefs (not to exceed 50 pages), which will

be due on F + 260 days, as well as 5 additional days to prepare for

oral argument (close of record), which is scheduled on F + 300 days. As

for the remainder of the schedule, we will adopt the timetable as has

been proposed. The voting conference (at Board's discretion) is

scheduled on F + 305 days; and the date of service of the final

decision is scheduled on F + 365 days.

In summary, the procedural schedule we adopt here consisting of a

365-day time period both is fair to all of the parties and allows us

sufficient time to resolve the unique issues that we anticipate will

arise in connection with any merger proposal involving Conrail. Our

schedule is consistent with the thrust and weight of the comments and

accommodates the processing of major inconsistent or responsive

applications.

Discovery

In accordance with our decision in Expedited Procedures For

Processing Rail Rate Reasonableness, Exemption and Revocation

Proceedings, STB Ex Parte No. 527 (STB served Oct. 1, 1996, 61 FR 52710

(Oct. 8, 1996)), parties should not file any discovery requests or

materials with the Board unless they are attached as part of an

evidentiary submission, or motions to compel or responses thereto. The

Secretary's Office will otherwise reject them.

If parties wish to engage in discovery or establish discovery

guidelines, they are directed to consult with Administrative Law Judge

Leventhal. Judge Leventhal is authorized to convene a discovery

conference, if necessary and as appropriate, in Washington, DC, and to

establish such discovery guidelines, if any, as he deems appropriate.

However, Judge Leventhal is not authorized to make adjustments to, or

to modify, the dates in the procedural schedule. We believe the

schedule as adopted allows sufficient time for meaningful discovery.

Any interlocutory appeal to a decision issued by Judge Leventhal will

be governed by the stringent standard of 49 CFR 1115.1(c): ``Such

appeals are not favored; they will be granted only in exceptional

circumstances to correct a clear error of judgment or to prevent

manifest injustice.'' See Union Pacific Corporation, Union Pacific

Railroad Company and Missouri Pacific Railroad Company--Control--

Chicago and North Western Transportation Company and Chicago and North

Western Railway Company, Finance Docket No. 32133, Decision No. 17 (ICC

served July 11, 1994), at 9 (applying the ``stringent standard'' of 49

CFR 1115.1(c) to an appeal of an interlocutory decision issued by the

ICC's former Chief Administrative Law Judge Paul S. Cross).

Merger-Related Abandonments

The procedural schedule applicable to merger-related abandonments

will be as follows: (1) all merger-related abandonment proposals (which

may be filed as applications, petitions, and/or notices) are to be

filed, with any and all supporting documentation, simultaneously with

the primary application; and (2) if the primary application is

complete, we shall publish in the Federal Register, by day F + 30,

notice of the acceptance of the primary application as well as notice

of any merger-related abandonment proposal. Thereafter, with respect to

each merger-related abandonment proposal: (3) interested parties must

file notifications of intent to participate in the specific abandonment

proceedings by day F + 45; (4) interested parties must file opposition

submissions, requests for public use conditions, and/or Trails Act

requests by day F + 120; (5) applicants may file rebuttal in support of

their abandonment proposals, and/or responses to any requests for

public use conditions and Trails Act requests, by day F + 180; (6) as

with the primary application and all related matters, briefs shall be

due by day F + 260, oral argument will be held on day F + 300, and a

voting conference will be held, at the Board's discretion, on day F +

305; and (7) if, in the final decision served on day F + 365, we

approve the primary application, we also will address, in that final

decision, each of the abandonment proposals, and all matters (including

requests for public use conditions and Trails Act requests) relative

thereto; and if we either approve or exempt any of the abandonment

proposals, we shall require interested parties to file, no later than

10 days after the date of service of the final decision, offers of

financial assistance with respect to any approved or exempted

abandonments.

This action will not significantly affect either the quality of the

human environment or the conservation of energy resources.

Decided: January 30, 1997.

[[Page 5511]]

By the Board, Chairman Morgan and Vice Chairman Owen.

Vernon A. Williams,

Secretary.

Final Procedural Schedule

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F-30........................ Preliminary Environmental Report,

including supporting documents, due.

F........................... Primary application & related applications

filed. [Environmental Report, including

all supporting documents, due.]

F+30........................ Federal Register publication of: notice of

acceptance of primary application and

related applications, petitions and

notices; and notice of any merger-related

abandonment applications, petitions, and

notices of exemption.

F+45........................ Notification of intent to participate in

proceeding due.

F+60........................ Description of anticipated inconsistent

and responsive applications due;

petitions for waiver or clarification due

with respect to such applications.

F+120....................... Inconsistent and responsive applications

due. All comments, protests, requests for

conditions, and any other opposition

evidence and argument due. Comments by

U.S. Department of Justice and U.S.

Department of Transportation due. With

respect to all merger-related

abandonments: opposition submissions,

requests for public use conditions, and

Trails Act requests due.

F+150....................... Notice of acceptance (if required) of

inconsistent and responsive applications

published in the Federal Register.

F+180....................... Response to inconsistent and responsive

applications due. Response to comments,

protests, requested conditions, and other

opposition arguments and evidence due.

Rebuttal in support of primary

application and related applications due.

With respect to all merger-related

abandonments: rebuttal due; and responses

to requests for public use and Trails Act

conditions due.

F+220....................... Rebuttal in support of inconsistent and

responsive applications due.

F+260....................... Briefs due, all parties (not to exceed 50

pages).

F+300....................... Oral argument (close of record).

F+305....................... Voting conference (at Board's discretion).

F+365....................... Date of service of final decision. With

respect to any approved or exempted

abandonments: offers of financial

assistance must be filed no later than 10

days after the date of service of the

final decision.

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Notes: Immediately upon each evidentiary filing, the filing party will

place all documents relevant to the filing (other than documents that

are privileged or otherwise protected from discovery) in a depository

open to all parties, and will make its witnesses available for

discovery depositions. Access to documents subject to protective order

will be appropriately restricted. Parties seeking discovery

depositions may proceed by agreement. Discovery on responsive and

inconsistent applications will begin immediately upon their filing.

The Administrative Law Judge assigned to this proceeding will have the

authority initially to resolve any discovery disputes.

[FR Doc. 97-2857 Filed 2-4-97; 8:45 am]

BILLING CODE 4915-00-P