proposed discontinuance and require continued operation of the affected trains for 4 months beyond the proposed discontinuance date, as permitted under 49 U.S.C. 10908(b). In a separate protest filed February 16, 1979, the city of Chicago seeks similar relief. Furthermore, the Office of Rail Public Counsel filed a Notice of Intervention on February 26, 1979, seeking a Commission order noting its intervention and recognizing its right to participate in the Commission proceeding on the discontinuance.

DISCUSSION AND CONCLUSIONS

As already indicated, we believe that the notice and supporting statement filed in Finance Docket No. 28954F (as supplemented) must be rejected. This decision is based upon applicant's failure to comply with certain statutorily prescribed time limits—and thus its failure to properly invoke Commission jurisdiction—as well as upon applicant's failure to furnish certain required environmental data. Since we are rejecting ConRail's notice and supporting statement on our own motion and not in response to the various petitions and protests, we do not believe those petitions and protests need be considered individually here. Accordingly, they will be dismissed as

moot.

JURISDICTIONAL DEFECTS

As we have long recognized, where the notice requirements specified in 49 U.S.C. 10908(a) (formerly section 13a(1) of the act) are not fully observed, serious questions arise as to whether the provisions of that statute have been effectively invoked and whether we have jurisdiction to consider the proposed discontinuance on its merits. See Chicago, M., St. P. & P. R. Co. Discontinuance of Trains, 317 I.C.C. 761, 772 (1963); Pennsylvania R. Co. Discontinuance of Trains, 347 I.C.C. 237, 239 (1967); and Pennsylvania Public Utility Commission v. United States, 311 F. Supp. 1024, 1029 (M.D. Pa. 1970).

The need for strict compliance with section 10908(a)'s notice provisions is clearly indicated by the statute's legislative history. As we stated in Chicago, M., St. P. & P. R. Co., supra, at 772:

The statute being in derogation of State laws, it is encumbent upon those who wish to invoke its provisions to comply strictly with its requirements; for they constitute the safeguards which the Congress intended to assure that the superseding of State authority would be pursuant to due process of law. It follows, therefore, that the

failure to comply strictly with the requirements prescribed in section 13a(1) results in neither invoking the provisions of that statute nor in superseding State law.

A similar interpretation of the statute's legislative history was made in Pennsylvania Public Utility Commission, supra, at 1029:

The legislative history clearly indicates that Congress did not intend to usurp the State Public Utility Commission of all power over interstate train discontinuance. *** Therefore, if the Interstate Commerce Commission is to obtain jurisdiction of train discontinuances affecting numerous States *** the notice procedure authorized by Statute must be strictly followed.

In the instant case, ConRail has twice failed to invoke our jurisdiction and supersede State jurisdiction, by twice failing to give the 30-day notice period required by 49 U.S.C. 10908(a).

In ConRail's original notice and supporting statement filed February 5, 1979, ConRail's proposed discontinuance date (March 4) was less than 30 days from the filing date of its notice (February 5). This was in clear violation of section 10908(a)'s requirement that a carrier must file a notice of its proposed discontinuance with the Commission "at least 30 days before the discontinuance *** is intended to be effective."

Accordingly, in a decision served February 9, 1979, ConRail was advised of the defect and afforded an opportunity to cure it by: (1) filing a corrected notice; (2) establishing a new discontinuance date not less than 30 days after such filing; and (3) posting new public notices indicating the revised discontinuance date.

However, ConRail's supplemental notice and supporting statement filed February 15, 1979, also failed to observe the 30-day requirement. Specifically, ConRail's supplemental February 15 notice proposed a new discontinuance date of March 18. However, when the time-computation method prescribed in rule 19 of our General Rules of Practice (49 CFR 1100.19) is applied, the proposed discontinuance date is found to fall within the 30-day notice period, rather than after it.

Since March 17 (the last day of the 30-day notice period) is a Saturday and March 18 is a Sunday, rule 19 requires that the notice period run through the end of Monday, March 19. Accordingly, the discontinuance could not be effective until Tuesday, March 20. This results both from our rule 19 as well as relevant case law. Rule 19 clearly states the method for computing the 30-day notice period. It reads in pertinent part as follows:

49 CFR 1100.19(a): *** The day of the act *** after which the designated period of time begins to run is not to be included. The last day of the period *** is to be included, unless it is a Saturday, Sunday or legal holiday *** in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a holiday. [Emphasis added.]

Thus, under rule 19's "weekend rule," the earliest possible date for ConRail's discontinuance is March 20, not March 18. Moreover, it should be noted that rule 19's time-computation method is closely patterned after rule 6(a) of the Federal Rules of Civil Procedure (FRCP), which the courts have held governs section 10908(a)'s 30day notice period. See Pennsylvania Public Utility Commission, supra, at 1028; cf. Chicago, B. & Q. R. Co. Discontinuance of Trains, 334 I.C.C. 874, 877 (1969).

While there is only a 2-day discrepancy between March 18 and 20, even this degree of noncompliance is sufficient to defeat our jurisdiction under section 10908. The courts have been quite firm in construing the statutory notice provision to require that 30 full days, as computed under the pertinent rule, must pass before any discontinuance may occur. In other words, a discontinuance cannot be scheduled for the thirtieth day or earlier. See Pennsylvania Public Utility Commission, supra, at 1029.

Indeed, the Pennsylvania P.U.C.. case presents an illustrative instance in which the Commission's jurisdiction was found to be defective, simply because the proposed discontinuance date was scheduled for the thirtieth day from the filing date of the notice (using FRCP Rule 6(a)'s time-computation method, which closely parallels our own rule 19's). As the Court there concluded, Congress intended that "thirty full days would pass before any discontinuance occurred" and that section 10908(a)'s 30-day notice requirement "must be strictly followed." Id. at 1029. The Court went on to note that:

It is not significant *** whether or not actual prejudice occurred (as a result of the failure to strictly comply with the statutory notice requirement), because failure to comply with the notice provision of section 13a(1) deprives the Interstate Commerce Commission of its jurisdiction to approve or disapprove the discontinuance. Id. at 1029.

Thus where-as here-a railroad has in any way failed to comply with the statute's 30-day notice provision, the Commission simply lacks jurisdiction to consider the proposed discontinuance on its merits. Accordingly, ConRail's notice and supporting statement (as

supplemented) must be rejected for want of jurisdiction. Moreover, even though in other circumstances we might have granted ConRail leave to cure the defect in its notice, ConRail's additional failure to furnish required environmental data convinces us that rejection is the proper action to take here.

ENVIRONMENTAL DEFECTS

Under 49 CFR 1108.12, every passenger train discontinuance application must contain a "detailed environmental impact report" (DEIR). By definition, the DEIR calls for the presentation of complex environmental information and assessments. However, ConRail failed to submit a DEIR in this case. This creates a significant problem here, since our consideration of the proposed discontinuance is circumscribed by statutorily established time

limits.

While we are empowered to investigate proposed discontinuances and to require continued operation of the affected trains pending such investigation, such continued operations cannot be required for more than 4 months beyond the proposed discontinuance date. See 49 U.S.C. 10908(b). In view of the 4-month limitation, it is important for us to recognize the problems which would arise if we accepted ConRail's incomplete discontinuance application and granted ConRail leave to submit a DEIR later.

Experience teaches that it would be extremely difficult for ConRail to file a complete DEIR in sufficient time to permit meaningful review of its entire application within 4 months of the proper discontinuance date of March 20. Moreover, there are no circumstances in this case warranting a summary waiver of the pertinent environmental regulations.*

Accordingly, due to ConRail's failure to submit the environmental information required by 49 CFR 1108.12(a), in addition to the

'We are aware that there is a difference of opinion as to whether resort to the Commission in a case such as the present one is required. Initially, ConRail sought to summarily discontinue the trains in issue under the procedures provided in section 304 of the Regional Rail Reorganization Act of 1973 ("3R Act") (45 U.S.C. 744). Its right to do so was upheld by the United States District Court for the Northern District of Illinois in People of the State of Illinois, et al. v. Consolidated Rail Corp. (No. 78-C-3768).

On appeal, the United States Court of Appeals for the Seventh Circuit reversed the lower court (No. 78-2292). The Court of Appeals held, one judge dissenting, that ConRail may not resort to the summary discontinuance procedures contained in section 304 of the 3R Act, but rather must obtain approval to discontinue from this Commission under 49 U.S.C. 10908.

We are not privy to ConRail's intentions concerning further review of that decision. Since ConRail has not specifically raised the issue of our jurisdiction in this proceeding, we will not address it.

jurisdictional problems created by ConRail's failure to comply with the statutory 30-day notice requirement, we believe that ConRail's discontinuance application docketed in Finance Docket No. 28954F (as supplemented) must be rejected, and that State jurisdiction over the proposed discontinuance has not been superseded.

INVESTIGATION AND TRAIN-CONTINUANCE ORDER

In view of our decision to reject ConRail's discontinuance application, the question of whether we should issue an investigation order and train-continuance order in Finance Docket No. 28954F pursuant to 49 U.S.C. 10908(b) is moot.

This decision will not significantly affect the quality of the human environment.

It is ordered:

(1) ConRail's notice and supporting statement filed February 5, 1979 (as supplemented February 15) is rejected. This action, however, is without prejudice to ConRail's filing a subsequent notice and supporting statement which comply with all the requirements of 49 U.S.C. 10908 and the Commission's discontinuance-related regulations.

(2) In view of our rejection of ConRail's notice and supporting statement on the above grounds, all the petitions, protests and other pleadings in opposition to the proposed discontinuance are dismissed as moot.

By the Commission, Chairman O'Neal, Vice Chairman Brown, Commissioners Stafford, Gresham, Clapp, and Christian. Commissioner Clapp absent and not participating.

360 I.C.C.