[Federal Register Volume 61, Number 72 (Friday, April 12, 1996)]
[Notices]
[Pages 16281-16284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9129]



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[[Page 16282]]


DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Finance Docket No. 32760 (Sub-No. 10)]


Responsive Application--Capital Metropolitan Transportation 
Authority

[Finance Docket No. 32760 (Sub-No. 11)]
Responsive Application--Montana Rail Link, Inc.
[Finance Docket No. 32760 (Sub-No. 12)]
Responsive Application--Entergy Services, Inc., Arkansas Power & Light 
Company, and Gulf States Utility Company
[Finance Docket No. 32760 (Sub-No. 13)]
Responsive Application--The Texas Mexican Railway Company
[Finance Docket No. 32760 (Sub-No. 14)]
Application for Terminal Trackage Rights Over Lines of the Houston Belt 
& Terminal Railway Company--The Texas Mexican Railway Company
[Finance Docket No. 32760 (Sub-No. 15)]
Responsive Application--Cen-Tex Rail Link, Ltd./South Orient Railroad 
Company, Ltd.
[Finance Docket No. 32760 (Sub-No. 16)]
Responsive Application--Wisconsin Electric Power Company
[Finance Docket No. 32760 (Sub-No. 17)]
Responsive Application--Magma Copper Company, The Magma Arizona 
Railroad Company, and the San Manuel Arizona Railroad Company
AGENCY: Surface Transportation Board.

ACTION: Decision No. 29; notice of acceptance of responsive 
applications.

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SUMMARY: The Board is accepting for consideration the responsive 
applications filed by Capital Metropolitan Transportation Authority 
(CMTA) in Finance Docket No. 32760 (Sub-No. 10); Montana Rail Link, 
Inc. (MRL) in Finance Docket No. 32760 (Sub-No. 11); Entergy Services, 
Inc. (ESI), Arkansas Power & Light Co. (AP&L), and Gulf States 
Utilities Co. (GSU) (collectively, Entergy) in Finance Docket No. 32760 
(Sub-No. 12); The Texas Mexican Railway Company (Tex Mex) in Finance 
Docket No. 32760 (Sub-No. 13), including Tex Mex's application for 
terminal trackage rights over lines of the Houston Belt & Terminal 
Railway Co. in Finance Docket No. 32760 (Sub-No. 14); Wisconsin 
Electric Power Company (WEPCO) in Finance Docket No. 32760 (Sub-No. 
16); and Magma Copper Company, The Magma Arizona Railroad Company 
(MAA), and the San Manuel Arizona Railroad Company (SMA) (collectively, 
Magma) in Finance Docket No. 32760 (Sub-No. 17). The Board is not 
accepting for consideration the responsive application filed by Cen-Tex 
Rail Link, Ltd./South Orient Railroad Company, Ltd. (Cen-Tex/South 
Orient) in Finance Docket No. 32760 (Sub-No. 15).1 These 
responsive applications are responsive to the primary application filed 
November 30, 1995, by Union Pacific Corporation (UPC), Union Pacific 
Railroad Company (UPRR), Missouri Pacific Railroad Company (MPRR), 
Southern Pacific Rail Corporation (SPR), Southern Pacific 
Transportation Company (SPT), St. Louis Southwestern Railway Company 
(SSW), SPCSL Corp. (SPCSL), and The Denver and Rio Grande Western 
Railroad Company (DRGW).2

    \1\ The Alameda Historic Complex (Alameda) filed a pleading on 
March 29, 1996, titled as a responsive application for trackage 
rights and other specified conditions. Because Alameda did not file 
a description of an anticipated responsive application by the 
January 29, 1996 deadline, and because it has not complied with the 
procedures for filing applications found at 49 CFR 1180, we will 
treat Alameda's pleading as comments on the primary application.
    LSBC Holdings, Inc. (LSBC), which filed a timely notice and 
description of inconsistent/responsive application, filed its LSBC-3 
pleading on March 29, 1996, titled as a proposed inconsistent and 
responsive application. LSBC explains that, at this time, it is 
``unable to file a Responsive Application worthy of review by the 
STB.'' We will treat LSBC's pleading as comments on the primary 
application.
    \2\ UPRR and MPRR are referred to collectively as UP. SPT, SSW, 
SPCSL, and DRGW are referred to collectively as SP.
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DATES: The effective date of this decision is April 12, 1996. Comments 
regarding any responsive application must be filed with the Board by 
April 29, 1996. Rebuttal in support of these responsive applications 
must be filed with the Board by May 14, 1996. Briefs (not to exceed 50 
pages) must be filed with the Board by June 3, 1996.

ADDRESSES: An original and 20 copies of all comments referring to 
Finance Docket No. 32760 (Sub-No. 10), Finance Docket No. 32760 (Sub-
No. 11), Finance Docket No. 32760 (Sub-No. 12), Finance Docket No. 
32760 (Sub-No. 13), Finance Docket No. 32760 (Sub-No. 14), Finance 
Docket No. 32760 (Sub-No. 16), and/or Finance Docket No. 32760 (Sub-No. 
17), as appropriate, must be filed with the Office of the Secretary, 
Case Control Branch (Attn: Finance Docket No. 32760), Surface 
Transportation Board, 1201 Constitution Avenue NW., Washington, D.C. 
20423. Parties are encouraged also to submit all comments on a 3.5-inch 
diskette in WordPerfect 5.1 format.
    In addition, one copy of all comments filed in these proceedings 
must be served, by first class mail, on: the Secretary of 
Transportation; the Attorney General of the United States; 
Administrative Law Judge Jerome Nelson, Federal Energy Regulatory 
Commission, 825 North Capitol Street NE., Washington, D.C. 20426; Arvid 
E. Roach II, Esq., Covington & Burling, 1201 Pennsylvania Avenue NW., 
P.O. Box 7566, Washington, D.C. 20044-7566 (representing primary 
applicants UPC, UPRR, and MPRR); and Paul A. Cunningham, Esq., Harkins 
Cunningham, 1300 Nineteenth Street NW., Washington, D.C. 20036 
(representing primary applicants SPR, SPT, SSW, SPCSL, and DRGW).
    Also, one copy of all comments filed in these proceedings must be 
served, by first class mail on the appropriate responsive applicant's 
representative: Albert B. Krachman, Esq., Bracewell & Patterson, 
L.L.P., 2000 K Street NW., Suite 500, Washington, D.C. 20006 
(representing CMTA); Mark H. Sidman, Esq., Weiner, Brodsky, Sidman & 
Kider, P.C., 1350 New York Avenue NW., Suite 800, Washington, D.C. 
20005 (representing MRL); Christopher A. Mills, Esq., Slover & Loftus, 
1224 Seventeenth Street, NW., Washington, D.C. 20036 (representing 
Entergy); Richard A. Allen, Esq., Zuckert, Scoutt & Rasenberger, 888 
17th Street, NW., Suite 600, Washington, D.C. 20006-3939 (representing 
Tex Mex); Thomas F. McFarland, Jr., Esq., McFarland & Herman, 20 North 
Wacker Drive, Suite 1330, Chicago, IL 60606-2902 (representing WEPCO); 
and Fritz R. Kahn, Esq., Fritz R. Kahn, P.C., Suite 750 West, 1100 New 
York Avenue, NW., Washington, D.C. 20005-3934 (representing Magma).
    Furthermore, one copy of all documents in these proceedings must be 
served, by first class mail, on all other persons designated parties of 
record [POR] on the Board's service list in Finance Docket No. 32760. 
See Finance Docket No. 32760, Decision No. 15 (served February 16, 
1996), as modified by Finance Docket No. 32760, Decision No. 17 (served 
March 7, 1996), and Decision No. 26 (served March 25, 1996).

FOR FURTHER INFORMATION CONTACT: Julia Farr, (202) 927-5352. [TDD for 
the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: In the primary application filed with the 
Interstate Commerce Commission (ICC) on November 30, 1995, primary 
applicants UPC, UPRR, MPRR, SPR,

[[Page 16283]]

SPT, SSW, SPCSL, and DRGW seek approval and authorization under 49 
U.S.C. 11343-45 (as effective prior to January 1, 1996) for: (1) the 
acquisition of control of SPR by UP Acquisition Corporation 
(Acquisition), an indirect wholly owned subsidiary of UPC; (2) the 
merger of SPR into UPRR; and (3) the resulting common control of UP and 
SP by UPC. In Decision No. 9 (served December 27, 1995, and published 
that same day in the Federal Register at 60 FR 66988), the ICC accepted 
the primary application for consideration, and directed that all 
responsive applications be filed by March 29, 1996.
    The ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 
(ICCTA), which was enacted on December 29, 1995, and took effect on 
January 1, 1996, abolished the ICC but transferred certain of its 
functions and certain proceedings then pending before it to the Board. 
We issue this decision in accordance with the ICCTA section 204(b)(1) 
transition rule, which provides that proceedings pending before the ICC 
at the time of its termination that involve functions transferred to 
the Board shall be decided by the Board under the law in effect prior 
to January 1, 1996. The Finance Docket No. 32760 proceeding, which was 
pending with the ICC at the time of its termination, involves functions 
transferred to the Board under 49 U.S.C. 11323-26 (as effective on and 
after January 1, 1996).
    In Finance Docket No. 32760 (Sub-No. 10), CMTA seeks, on behalf of 
an unnamed rail carrier unaffiliated with applicants, trackage rights 
over what will be, if the Board approves the proposed merger, the UP/SP 
track between McNeil and Kerr, TX, with interchange rights with the 
Burlington Northern Railroad Company and The Atchison, Topeka, and 
Santa Fe Railway Company (collectively, BN/Santa Fe) at either McNeil 
or Kerr. CMTA further requests that we direct applicants to cooperate 
with CMTA to arrive at a mutually acceptable accommodation of CMTA's 
planned passenger rail service through the McNeil interchange, and that 
we retain jurisdiction over this issue in the event CMTA and the merged 
railroad are unable to reach agreement.
    In Finance Docket No. 32760 (Sub-No. 11), MRL seeks authority to 
acquire rail lines, incidental trackage rights, interchange access, and 
proportional ratemaking authority to SP stations in California and 
Oregon to mitigate alleged loss of competition in the central route 
from Northern California to Kansas City, MO, resulting from the 
proposed merger.\3\
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    \3\  MRL seeks to have a to-be-formed entity (the ``Acquisition 
Company'') purchase the following lines: (1) the UP lines in 
California from Stockton, through Sacramento to Marysville, along 
with the contiguous branch lines to Read and Sutter, north through 
Keddie to Flanigan, NV, including the UP branch line from Reno 
Junction south to Reno, NV, and the branch south from Hawley to 
Loyalton, CA; (2) the SP line running north from Flanigan to 
Alturas, CA, then northwest to Klamath Falls, OR (the ``Modoc 
Line''); (3) the line from Flanigan east via the UP route to 
Winnemucca, NV, then east to Wells, NV, and Ogden, UT, via the SP 
route; (4) from Ogden, all of the DRGW lines, and their contiguous 
branches to Salt Lake City, UT, and down to Provo, UT, and east on 
the DRGW to Denver, CO, including the branches to Potash, Sunnyside, 
Clear Creek, Copperton, and Garfield, UT; (5) all of the DRGW lines 
in Colorado, from the Utah border east to Dotsero, including the 
branches to Montrose, Oliver, and Woody Creek, and at Dotsero, the 
lines northeast to Denver and southeast to Pueblo (the ``Tennessee 
Pass''), including branches to Craig and Energy Fuels via Steamboat 
Springs; (6) the DRGW line between Denver and Pueblo, extending 
south of Pueblo to Antonito, CO, including the branch line to 
Creede, CO, and the DRGW's rights, if any, to Trinidad, CO; (7) east 
of Pueblo, the rights and ownership of the former MPRR line between 
Pueblo and Herington, KS; (8) SP's ownership in and access to the 
Kansas City Terminal; and (9) the UP line from Silver Bow, MT, to 
Pocatello, ID, and the contiguous branches to Arco, Aberdeen, and 
Gay, ID.
    MRL seeks approval for the Acquisition Company to acquire all 
the railroad rolling stock and equipment owned and leased by UP/SP, 
including locomotives, cars, cabooses and equipment, roadway 
maintenance equipment and other vehicles currently used to perform 
service on the subject lines.
    MRL seeks approval for the Acquisition Company to acquire 
trackage rights over the following lines: (1) overhead rights on the 
UP line from Pocatello to Ogden; (2) overhead rights on the UP from 
Lindsborg, KS, to Salina, KS, and from Salina to Solomon, KS, with 
access to a direct interchange with Kyle Railways at Solomon; (3) 
local trackage rights on the SSW between Herington, KS, and Topeka, 
KS; (4) overhead trackage rights on UP between Topeka and Kansas 
City; (5) SP's rights on BN/Santa Fe between Topeka and Kansas City.
    MRL seeks, on behalf of the Acquisition Company, full access to 
interchange with connecting carriers, including shortlines, at all 
common points. Finally, MRL seeks for Acquisition Company the right 
to quote rates to and from SP stations in California and Oregon for 
traffic moving, respectively, via Stockton, CA, and Klamath Falls, 
OR.
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    In Finance Docket No. 32760 (Sub-No. 12), Entergy seeks the 
following trackage rights: (1) Overhead trackage rights on behalf of 
BN/Santa Fe or some other rail carrier unaffiliated with applicants 
over SSW's lines between Pine Bluff, AR, and Memphis, TN, with the 
right to transport loaded and empty trains of coal to and from AP&L's 
coal-fired, electric generating facilities known as the White Bluff 
Steam Electric Station near Redfield, AR (White Bluff) upon 
construction of a spur build-out from the White Bluff power plant to a 
connection with SP at Pine Bluff; and (2) overhead trackage rights on 
behalf of BN/Santa Fe or some other rail carrier unaffiliated with 
applicants over SP's line between Beaumont, TX, and a point of 
connection with the Southern Gulf Railway Company (SGR) near Lake 
Charles, LA, with the right to transport loaded and empty trains of 
coal to and from GSU's coal-fired, electric generating facilities known 
as the Roy S. Nelson Generating Station near Mossville, LA, upon 
completion of construction of SGR's rail line between the connection 
with SP and the Nelson power plant.
    In Finance Docket No. 32760 (Sub-No. 13), Tex Mex seeks trackage 
rights over lines from Robstown and Corpus Christi, TX, to Houston, TX, 
to a connection with the Kansas City Southern Railway Company (KCS) at 
Beaumont, TX. Tex Mex seeks rights over those lines to permit it to 
carry overhead traffic and to serve all local shippers currently 
capable of receiving service from both UP and SP, directly or through 
reciprocal switching, with full rights to interchange traffic with UP, 
SP, and any other railroad at any interchange point on such 
lines.4
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    \4\  Tex Mex requests trackage rights over the following main 
lines: (1) the UP line between Robstown and Placedo, TX; (2) the UP 
line between Corpus Christi and Odem, TX, via Savage Lane to Viola 
Yard on the UP; (3) the SP line from Placedo to Victoria, TX; (4) 
the SP line between Victoria and Flatonia, TX; (5) the SP line 
between Flatonia and West Junction, TX; (6) in the alternative, the 
UP line from Gulf Coast Junction, TX, through Settegast Junction, 
TX, to Amelia, TX (UP main line option), or the SP line from Tower 
87 to Amelia, TX (SP main line option); and (7) the joint UP/SP line 
from Amelia to Beaumont, TX, and the connection with KCS at the 
Neches River Draw Bridge in Beaumont.
    Tex Mex requests trackage rights in Houston over the following 
SP lines: (1) the line from West Junction through Bellaire Junction 
to Eureka at milepost 5.37 (Chaney Junction, TX); (2) the SP line 
from milepost 5.37 to milepost 360.7 near Tower 26 via the Houston 
Passenger station; (3) the SP line from milepost 5.37 to milepost 
360.7 near Tower 26 via the Hardy Street yard; (4) if the UP main 
line option is used, the SP line from milepost 360.7 near Tower 26 
to the connection with the Houston Belt & Terminal Railway Company 
(HB&T) at Quitman Street near milepost 1.5; (5) if the SP main line 
option is used, the SP line from Tower 26 through Tower 87 to the SP 
main line to Amelia; and (6) the SP line from West Junction to the 
connection with the Port Terminal Railway Association (PTRA) at Katy 
Neck, TX, by way of Pierce Junction.
    Tex Mex requests the right to use the following yard and other 
terminal facilities of SP, UP, and HB&T: (1) SP's Glidden (TX) Yard; 
(2) interchanges with PTRA at the North Yard, Manchester Yard, and 
Pasadena Yard in Houston, TX; and (3) interchanges with HB&T at 
HB&T's New South Yard.
    Tex Mex will seek the right to construct two improved 
connections, at Robstown and Flatonia.
    Tex Mex requests the Board to condition any approval of the 
merger on granting Tex Mex the trackage rights at the same 
compensation provided for in the settlement agreement applicants 
reached with BN/Santa Fe, except that Tex Mex requests that the 
compensation level for its trackage rights operations be subject to 
quarterly adjustments for changes in railroad productivity.

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    In Finance Docket No. 32760 (Sub-No. 14), Tex Mex seeks certain 
terminal trackage rights, contingent upon the grant of the conditions 
sought in Finance Docket No. 32760 (Sub-No. 13). It requests an order 
pursuant to 49 U.S.C. 11103 permitting Tex Mex to use the following 
segments of HB&T terminal trackage in Houston, TX: (1) the HB&T line 
from the Quitman Street connection with SP to the HB&T's connection 
with UP at Gulf Coast Junction; and (2) the HB&T line from its 
connection with the SP at T. & N.O. Junction (Tower 81) to HB&T's 
connection with UP at Settegast Junction.
    In Finance Docket No. 32760 (Sub-No. 15), Cen-Tex/South Orient 
seeks trackage rights in Texas, and the elimination of minimum payments 
and passenger restrictions on trackage rights over SP track from Alpine 
Junction, TX, to Paisano Junction, TX.5
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    \5\  Specifically, Cen-Tex/South Orient seeks trackage rights 
over: (1) UPRR's Fort Worth line from Tower 55 to the UP Fort Worth 
connection with Railtran's line; (2) the UPRR Dallas connection with 
Railtran's line to the C.J. Yard in Dallas; (3) the SP line from 
Sulphur Springs, TX, to the KCS connection in Texarkana, TX/AR.
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    In Finance Docket No. 32760 (Sub-No. 16), WEPCO seeks a grant of 
overhead trackage rights on behalf of Wisconsin Central (WC) or 
Canadian Pacific-Soo Line (CP/Soo) over the following UP rail lines: 
(1) between Chicago, IL, Milwaukee, WI, and Cleveland, WI, on the one 
hand, and on the other, WEPCO's Oak Creek Power Plant at Oak Creek, WI; 
(2) between the Oak Creek Power Plant and Cudahy Shop, Inc., a railcar 
repair facility located at Cudahy, WI; and (3) in the terminal areas of 
Chicago, IL, and Milwaukee, WI, as may be necessary or desirable to 
implement the operations described above.
    In Finance Docket No. 32760 (Sub-No. 17), Magma, and its wholly 
owned subsidiaries, MAA and SMA, seek overhead trackage rights over the 
lines operated by SP between Magma, AZ, and Phoenix and Nogales, AZ, 
for the MAA, and between Hayden, AZ (via the Copper Basin Railway 
Company (CBRY), a switching carrier for the SP operating between Hayden 
and Magma), and Phoenix and Nogales for the SMA.
    The responsive applications filed by CMTA, MRL, Entergy, Tex Mex, 
WEPCO, and Magma substantially comply with the applicable regulations, 
and therefore are being accepted for consideration by the Board.
    The responsive application filed by Cen-Tex/South Orient does not 
comply with the applicable regulations. The application contains 
virtually none of the information required by 49 CFR 1180 for 
responsive applications, such as supporting information (49 CFR 
1180.6), market analyses (49 CFR 1180.7), operational data (49 CFR 
1180.8), and financial information (49 CFR 1180.9).6 Because Cen-
Tex/South Orient's responsive application is incomplete, it is being 
rejected by the Board.
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    \6\  Cen-Tex/South Orient did not, on or before the January 29, 
1996 deadline, file a petition for waiver or clarification to have 
its responsive application designated a minor transaction. However, 
even if it had successfully done so, it has not filed the 
information necessary to support even a responsive application for a 
minor transaction.
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    The responsive applications are available for inspection in the 
Public Docket Room at the offices of the Board in Washington, DC. The 
responsive application filed by any particular responsive applicant may 
also be obtained upon request from that applicant's representative 
named above.
    The responsive applications in Finance Docket No. 32760 (Sub-Nos. 
10, 11, 12, 13, 14, 16, and 17) are consolidated for disposition with 
the primary application in Finance Docket No. 32760 (and all embraced 
proceedings). Service of an initial decision will be waived, and 
determination of the merits of these responsive applications will be 
made in the first instance by the Board itself. See 49 U.S.C. 11345(f) 
(as effective prior to January 1, 1996).
    Interested persons may participate formally by submitting written 
comments regarding any or all of these responsive applications, subject 
to the filing and service requirements specified above. Such comments 
(referred to as ``response[s]'' in the procedural schedule, see 60 FR 
at 66994) should be filed with the Board by April 29, 1996. Comments 
should include the following: the commenter's position in support of or 
in opposition to the transaction proposed in the responsive 
application; 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.
    Because the responsive applications accepted for consideration in 
this decision contain proposed conditions to approval of the primary 
application in Finance Docket No. 32760, 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.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. The responsive applications in Finance Docket No. 32760 (Sub-
Nos. 10, 11, 12, 13, 14, 16 and 17) are accepted for consideration, and 
are consolidated for disposition with the primary application in 
Finance Docket No. 32760 (and all embraced proceedings).
    2. The responsive application in Finance Docket No. 32760 (Sub-No. 
15) is rejected.
    3. The parties shall comply with all provisions as stated above.

    Decided: April 5, 1996.

    By the Board, Chairman Morgan, Vice Chairman Simmons, and 
Commissioner Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 96-9129 Filed 4-11-96; 8:45 am]
BILLING CODE 4915-00-P