[Federal Register Volume 63, Number 221 (Tuesday, November 17, 1998)]
[Notices]
[Pages 63960-63962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30704]
[[Page 63960]]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Finance Docket No. 33556 (Sub-No. 2) et al.]
Canadian National Railway Company, Grand Trunk Corporation, and
Grand Trunk Western Railroad Incorporated--Control--Illinois Central
Corporation, Illinois Central Railroad Company, Chicago, Central and
Pacific Railroad Company, and Cedar River Railroad Company; et al.
AGENCY: Surface Transportation Board.
ACTION: Decision No. 21; Notice of Acceptance of Responsive
Applications.
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SUMMARY: The Board is accepting for consideration the responsive
application filed by Ontario Michigan Rail Corporation
(OMR)1 in STB Finance Docket No. 33556 (Sub-No. 2), and the
responsive application filed by Canadian Pacific Railway Company (CPR)
and St. Lawrence & Hudson Railway Company Limited (SL&H) in STB Finance
Docket No. 33556 (Sub-No. 3). The responsive applications relate to the
primary application filed July 15, 1998, by Canadian National Railway
Company (CNR), Grand Trunk Corporation (GTC), and Grand Trunk Western
Railroad Incorporated (GTW), Illinois Central Corporation (IC Corp.),
Illinois Central Railroad Company (ICR), Chicago, Central and Pacific
Railroad Company (CCP), and Cedar River Railroad Company
(CRRC).2
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\1\ Although OMR referred to its filing as an ``inconsistent
application,'' the relief sought by OMR is conditional to, rather
than in lieu of, approval of the primary application. Accordingly,
OMR's filing is a responsive application and will be referred to as
such. See 49 CFR 1180.3(h).
\2\ CNR, GTC, and GTW, and their affiliates, are referred to
collectively as CN. IC Corp., ICR, CCP, and CRRC, and their
affiliates, are referred to collectively as IC. CN and IC are
referred to collectively as applicants.
DATES: The effective date of this decision is November 17, 1998.
Comments regarding the responsive filings must be filed with the Board
by December 11, 1998. Rebuttal in support of the responsive filings
must be filed with the Board by January 11, 1999. Briefs (not to exceed
50 pages for the primary applicants and not to exceed 25 pages for all
other parties) must be filed with the Board by February 19,
1999.3
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\3\ The briefs should succinctly present all arguments on which
parties intend to rely, supported by clear references to any
portions of the evidentiary record supporting their positions.
ADDRESSES: An original and 25 copies of all comments referring to the
responsive applications in STB Finance Docket No. 33556 (Sub-No. 2) and
STB Finance Docket No. 33556 (Sub-No. 3) must be filed with the Surface
Transportation Board, Office of the Secretary, Case Control Unit, Attn:
STB Finance Docket No. 33556, 1925 K Street, N.W., Washington, DC
20423-0001.4
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\4\ In order for a document to be considered a formal filing,
the Board must receive an original and 25 copies of the document,
which must show that it has been properly served. In addition, each
formal filing must be accompanied by an electronic submission per
our requirements as discussed in detail in this decision. Parties
must clearly label each formal filing with an identification acronym
and number. See 49 CFR 1180.4(a)(2). Each disk or CD should be
clearly labeled with the identification acronym and number of the
corresponding paper document, and labeled as containing confidential
or redacted materials. Documents transmitted by facsimile (FAX) will
not be considered formal filings and are not encouraged because they
will result in unnecessarily burdensome, duplicative processing.
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In addition to submitting an original and 25 copies of all paper
documents filed with the Board, parties also must submit, on 3.5-inch
IBM-compatible floppy diskettes (disks) or compact discs (CDs), copies
of all textual materials, electronic workpapers, data bases and
spreadsheets used to develop quantitative evidence. Textual materials
must be in, or convertible by and into, WordPerfect 7.0. Electronic
spreadsheets must be in, or convertible by and into, Lotus 1-2-3 97
Edition, Excel Version 7.0, or Quattro Pro Version 7.0. A copy of each
disk or CD submitted to the Board should be provided to any other party
upon request.5 Further details are discussed below.
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\5\ In Decision No. 3 (served May 19, 1998, and published on May
22, 1998, in the Federal Register at 63 FR 28442-44), we denied a
petition for reconsideration of Decision No. 2, concerning the
requirement that parties submit copies of all textual materials on
disks or CDs, and stated that parties may individually seek a waiver
from the disk-CD requirement.
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In addition, one copy of each document filed in these proceedings
must be served on: the U.S. Secretary of Transportation; the U.S.
Attorney General; Administrative Law Judge David Harfeld, Federal
Energy Regulatory Commission, Office of Administrative Law Judges, 888
First Street, N.E., Suite 11F, Washington, DC 20426 [(202) 219-2514;
FAX: (202) 219-3289] and on each of applicants' representatives: (1)
Paul A. Cunningham, Esq., Harkins Cunningham, 1300 19th Street, N.W.,
Suite 600, Washington, DC 20036-1609; and (2) William C. Sippel, Esq.,
Oppenheimer Wolff & Donnelly, Two Prudential Plaza, 45th Floor, 180
North Stetson Avenue, Chicago, IL 60601-6710.
In addition, one copy of all comments filed in these proceedings
must be served on the responsive applicants' representatives: Fritz R.
Kahn, Esq., Fritz R. Kahn, P.C., Suite 750 West, 1100 New York Avenue,
N.W., Washington, D.C. 20005-3934 (representing OMR); and Terence M.
Hynes, Esq., Sidley & Austin, 1722 Eye Street, N.W., Washington, DC
20006 (representing CPR and SL&H).
In addition, one copy of all documents filed in these proceedings
must be served on all other persons designated parties of record on the
Board's service list in STB Finance Docket No. 33556. See the service
list attached to Decision No. 9 (served September 28, 1998), as
modified in Decision No. 13 (served October 20, 1998).6
\6\ Members of the United States Congress and Governors are not
parties of record and therefore need not be served with copies of
filings, unless any such Member or Governor is designated as a party
of record. See Decision No. 6 (served Aug. 14, 1998), slip op. at 9.
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FOR FURTHER INFORMATION CONTACT: Julia M. Farr, (202) 565-1613. [TDD
for the hearing impaired: (202) 565-1695.]
SUPPLEMENTARY INFORMATION: By application filed with the Board on July
15, 1998, the primary applicants seek approval and authorization under
49 U.S.C. 11321-26 for: (1) The acquisition of control, by CNR, through
its indirect wholly owned subsidiary Blackhawk Merger Sub, Inc., of
control of IC Corp. and through it of ICR and its railroad affiliates;
and (2) the resulting common control by CNR of GTW and its railroad
affiliates and ICR and its railroad affiliates. A related application
for terminal trackage rights in Springfield, IL, was also filed in STB
Finance Docket No. 33556 (Sub-No. 1), seeking relief contingent upon
approval of the primary application. In Decision No. 6, served August
14, 1998, and published that day in the Federal Register at 63 FR
43744-51, the Board accepted for consideration the primary application
and the related filing. In Decision No. 11, served October 2, 1998, the
Board extended the procedural schedule at the request of various
parties and directed that inconsistent and responsive applications be
filed by October 27, 1998.7
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\7\ By motion filed November 2, 1998 (designated as ECA-8),
Exxon Chemical Americas (ECA) requests that the public version of
its comments filed on October 27, 1998, be reclassified as
confidential because its public version filed on that date
inadvertently included information that should have been redacted.
ECA states that it has served corrected copies of the public version
of its comments on all parties of record. ECA's motion will be
granted.
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[[Page 63961]]
Responsive Filings: Conditions Requested
In STB Finance Docket No. 33556 (Sub-No. 2), as a condition to any
approval of the CN/IC transaction, OMR seeks to require CN to convey
its 50% interest in the CNCP Niagara-Detroit Partnership (NDP), owner
of the Detroit River Tunnel Company (DRTC), to OMR.8 In STB
Finance Docket No. 33556 (Sub-No. 3), CPR seeks a similar condition
requiring CN to convey its one-half interest in DRTC to CPR's affiliate
SL&H, which would result in CPR's indirect ownership of 100% of DRTC.
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\8\ In addition, OMR seeks the divestiture of CN's one-half
interest in The Canada Southern Railway Company and The Niagara
River Bridge Company, switching railroads also owned by NDP. OMR
states that these rail properties are potential sources of needed
traffic to support the DRTC.
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In its application, OMR requests that its proposed divestiture be
found to be a minor transaction.9 Even if OMR's requested
relief is a minor transaction, a responsive applicant is required to
submit certain information, including operational data and a discussion
of the public interest justification in support of the application. See
49 CFR 1180.6 and 1180.8. The filing by OMR provides rudimentary
financial and operational evidence. On the basis of this information
alone, however, the Board will be unable to determine whether there
will be significant changes in traffic patterns or whether OMR's
proposed acquisition and operation of the DRTC will be in the public
interest in terms of OMR's ability to cover, through tunnel operating
profits, the fixed charges that will arise from the proposed financing.
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\9\ Although OMR filed a description of its anticipated
inconsistent application on the August 31, 1998 due date for such
submissions, OMR failed to file a petition for waiver or
clarification with respect to its proposed relief. In Decision No. 7
(served September 18, 1998), however, we granted CPR's petition for
waiver or clarification by finding, among other things, that CPR's
similar divestiture proposal constituted a minor transaction. A
similar conclusion is warranted here with respect to OMR's proposal.
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We previously reserved the right to require the filing of
supplemental information from any party or individual if necessary to
complete the record in this matter. See Decision No. 6, slip op. at 7
n.14, 63 FR at 43747 n.14. To enable the Board to assess the impact of
OMR's proposal, OMR will be required to submit no later than December
1, 1998, the following information: (1) the operational data prescribed
at 49 CFR 1180.8(b); (2) information regarding carrier usage of the
existing tunnel and the impact of projected traffic increases on
carrier facilities on both sides of the Detroit River; (3) identity and
amount of financing for each expected source of capital, as outlined on
page 2 of the verified statement of Patrick J. O'Neill; (4) method(s)
and amount of financing expected to be undertaken by any prospective
partnership group to fund construction and ongoing operations of the
proposed Detroit-Windsor Tunnel; (5) balance sheet of OMR giving effect
to construction and financing of the tunnel, as estimated for the
beginning of the first year of post-construction operations, including
the proposed method of handling interest on debt financing during
construction; and (6) income statements showing expected revenues,
expenses, fixed charges, and net income from operations for the first
year of operations and for a normal year of operations.
Responsive Filings Accepted
The responsive applications filed by OMR, CPR, and SL&H are in
substantial compliance with the applicable regulations. We are
accepting for consideration the responsive application by CPR and SL&H.
Subject to the supplemental filing requirement above, we are accepting
for consideration the responsive application by OMR.
Public Inspection
The responsive filings are available for inspection in the Docket
File Reading Room (Room 755) at the offices of the Surface
Transportation Board, 1925 K Street, N.W., in Washington, DC. The
responsive filings may also be obtained upon request from the
applicants' representatives named above.
Proceedings Consolidated
The responsive filings in STB Finance Docket No. 33556 (Sub-Nos. 2
and 3) are consolidated for disposition with the primary application in
STB Finance Docket No. 33556 (and the embraced Sub-No. 1 proceeding).
Comments May Be Submitted
Interested persons may participate formally by submitting written
comments regarding any or all of these responsive filings, subject to
the filing and service requirements specified above. Such comments
(referred to as ``Response[s]'' in the procedural schedule) must be
filed with the Board by December 11, 1998. Comments must include the
following: the commenter's position in support of or in opposition to
the transaction proposed in the responsive filing; any and all
evidence, including verified statements, in support of or in opposition
to such proposed transaction; and specific reasons why approval of such
proposed transaction would or would not be in the public interest.
Requests for Affirmative Relief Will Not Be Accepted
Because the responsive applications accepted for consideration in
this decision contain proposed conditions to approval of the primary
application in STB Finance Docket No. 33556, the Board will entertain
no requests for affirmative relief with respect to these responsive
applications. Parties may only participate in direct support of or in
direct opposition to these responsive applications as filed.
Electronic Submissions
In addition to submitting an original and 25 paper copies of each
document filed with the Board, parties must submit, on disks or CDs,
copies of all textual materials, electronic workpapers, data bases and
spreadsheets used to develop quantitative evidence. Data must be
submitted on 3.5 inch IBM-compatible floppy disks or CDs. Textual
materials must be in, or convertible by and into, WordPerfect 7.0.
Electronic spreadsheets must be in, or convertible by and into, Lotus
1-2-3 97 Edition, Excel Version 7.0, or Quattro Pro Version 7.0. Each
disk or CD should be clearly labeled with the identification acronym
and number of the corresponding paper document, see 49 CFR
1180.4(a)(2), and a copy of such disk or CD should be provided to any
other party upon request. Also, each disk or CD should be clearly
labeled as containing confidential or redacted materials. The data
contained on the disks and CDs submitted to the Board will be subject
to the protective order granted in Decision No. 1, served February 26,
1998, and will be for the exclusive use of Board employees reviewing
substantive and/or procedural matters in this proceeding. The
flexibility provided by such computer data will facilitate timely
review by the Board and its staff.10
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\10\ The electronic submission requirements set forth in this
decision supersede, for the purposes of this proceeding, the
otherwise applicable electronic submission requirements set forth in
our regulations. See 49 CFR 1104.3(a), as amended in Expedited
Procedures for Processing Rail Rate Reasonableness, Exemption and
Revocation Proceedings, STB Ex Parte No. 527, 61 FR 52710, 52711
(Oct. 8, 1996), 61 FR 58490, 58491 (Nov. 15, 1996).
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This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
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It is ordered:
1. The responsive applications in STB Finance Docket No. 33556
(Sub-Nos. 2 and 3) are accepted for consideration, and are consolidated
for disposition with the primary application in STB Finance Docket No.
33556 (and the embraced Sub-No. 1 proceeding), subject to the
requirement that OMR file the supplemental information outlined in this
decision no later than December 1, 1998.
2. The parties shall comply with all provisions as stated above.
3. The motion in ECA-8 to reclassify as confidential the public
version of ECA's comments filed on October 27, 1998, is granted.
4. This decision is effective on November 17, 1998.
Decided: November 10, 1998.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 98-30704 Filed 11-16-98; 8:45 am]
BILLING CODE 4915-00-P
