[Federal Register Volume 60, Number 27 (Thursday, February 9, 1995)]
[Notices]
[Pages 7790-7791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3251]



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INTERSTATE COMMERCE COMMISSION
[Finance Docket No. 32549]


Burlington Northern Inc. and Burlington Northern Railroad 
Company--Control and Merger--Santa Fe Pacific Corporation and The 
Atchison, Topeka and Santa Fe Railway Company

AGENCY: Interstate Commerce Commission.

ACTION: Decision No. 9; Notice of Proposed Revision of Procedural 
Schedule.

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SUMMARY: The Commission is seeking public comments on the applicants' 
proposal to revise the procedural schedule adopted in Decision Nos. 4 
and 5 in this proceeding, served October 5, 1994, and November 10, 
1994, respectively, to provide for issuance of a final decision within 
165 days from the date on which the Commission decision containing 
notice of shareholder approval is served. To facilitate meeting that 
deadline and to help narrow the focus to the relevant issues, the 
Commission is proposing page limitations for certain filings and is 
considering issuing a preliminary scoping order.

DATES: Written comments must be filed with the Commission no later than 
February 21, 1995.

ADDRESSES: An original and 20 copies of all documents must refer to 
Finance Docket No. 32549 and be sent to the Office of the Secretary, 
Case Control Branch, Attn: Finance Docket No. 32549, Interstate 
Commerce Commission, 1201 Constitution Avenue, N.W., Washington, DC 
20423.
    In addition, one copy of all documents in this proceeding must be 
sent to the Honorable Stephen L. Grossman, FERC, Office of Hearings, 
825 North Capitol Street, NE, Washington, D.C. 20426 and to each of 
applicants' representatives: (1) Betty Jo Christian, Esq., Steptoe & 
Johnson, 1330 Connecticut Avenue, N.W., Washington, DC 20036-1795; and 
(2) Erika Z. Jones, Esq., Mayer, Brown & Platt, 2000 Pennsylvania 
Avenue, N.W., Suite 6500, Washington, DC 20006.

FOR FURTHER INFORMATION CONTACT: Beryl Gordon or Dugie Standeford, 
(202) 927-5610. [TDD for the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: On October 13, 1994, an application was 
filed for approval of Burlington Northern, Inc.'s (BNI) acquisition of, 
control of, and merger with Santa Fe Pacific Corporation (SFP), the 
resulting common control of Burlington Northern Railroad Company (BN) 
and The Atchison, Topeka and Santa Fe Railway Company (Santa Fe) by the 
merged company, the consolidation of BN and Santa Fe railroad 
operations and the merger of BN and Santa Fe. Applicants also seek 
exemption from regulation for the merged holding company and merged 
railroad to control The Wichita Union Terminal Railway Company [Finance 
Docket No. 32549 (Sub-No. 1)] and for 11 construction projects related 
to the primary application [Finance Docket No. 32549 (Sub-No. 2 through 
Sub-No. 12)]. We accepted the application in our Decision No. 5, served 
and published in the Federal Register on November 10, 1994 (59 FR 
56089), and we set certain filing dates under the procedural schedule 
previously adopted in our Decision No. 4, served October 5, 1994.
    In Decision No. 7, served December 5, 1994, we granted the requests 
of several parties and postponed the procedural schedule set forth in 
Decision Nos. 4 and 5 pending the outcome of an SFP shareholder vote. 
In Decision No. 7, we stated that upon approval of the proposed BNI/SFP 
merger by the shareholders, we would immediately issue a new schedule 
requiring the first comments to be filed 30 days later and adjusting 
other schedule dates accordingly. That shareholder vote has been 
postponed several times and is now scheduled for February 7, 1995.
    In New Procedures in Rail Acquisitions, Mergers and Consolidations, 
Ex Parte No. 282 (Sub-No. 19) (ICC served Jan. 26, 1995) (60 FR 5890, 
January 31, 1995), we are seeking comments on our proposed 
establishment of more timely procedures for processing applications for 
major and significant rail combinations. In the January 26, 1995 Notice 
of Proposed Rulemaking, we gave all interested parties until March 2, 
1995, to file written comments. We also served a copy of the notice on 
all parties on the service list in this merger proceeding and asked for 
comments on whether this case should be governed by the schedule 
originally adopted or the schedule proposed in Ex Parte No. 282 (Sub-
No. 19).
    By petition filed January 27, 1995, BNI, BN, SFP, and Santa Fe 
request that we adopt a modified, expedited procedural schedule which 
tracks the schedule proposed by the Commission for public comment in Ex 
Parte No. 282 (Sub-No. 19) in place of the original schedule. We are 
now seeking public comments on this proposal by the applicants to 
revise the procedural schedule previously established in this 
proceeding to provide for the service of a final decision no later than 
165 days from the date the Commission serves its decision containing 
notice of shareholder approval of the proposed merger, as set out in 
Appendix A to this Notice. Additionally, to facilitate our meeting this 
deadline and to better focus the filings on relevant issues, we are 
proposing page limitations on all filings that should not require 
extensive evidentiary submissions. The specific limitations are set out 
in Appendix A to this notice. These limits would not extend to tables 
of contents, prefaces, tables of authorities, summaries of argument, 
and other introductory materials. Further, to help narrow the focus to 
relevant issues, we are [[Page 7791]] considering issuing a preliminary 
scoping analysis immediately after the filings due on day N+30 in 
Appendix A. We seek public comments on the proposed page limitations 
and scoping order. Given that the procedural schedule proposed here 
tracks the procedural schedule we are proposing in Ex Parte No. 282 
(Sub-No. 19) for all major and significant consolidations, we also seek 
comments from any interested person on whether we should impose similar 
page limitations and employ a preliminary scoping analysis for future 
transactions under those proposed rules as well.
    In Ex Parte No. 282 (Sub-No. 19), we noted that a vital element in 
carrying out the proposed expedited merger procedures is strict 
compliance with the Commission's environmental rules at 49 CFR Part 
1105. These rules provide that environmental assessments normally be 
prepared in mergers, consolidations or acquisitions of control 
involving significant changes in operation or rail line abandonments 
and construction. If a merger is likely significantly to affect the 
environment, the National Environmental Policy Act (NEPA) requires the 
Commission to prepare an environmental impact statement (EIS).
    To expedite the NEPA environmental review process, we have proposed 
in Ex Parte No. 282 (Sub-No. 19) that applicants be required to consult 
with the Commission's Section of Environmental Analysis (SEA) with, or 
prior to, the filing of their prefiling notices for all mergers 
involving the preparation of environmental documentation. In the case 
of mergers involving an environmental assessment, the new merger 
procedures would require that the applicant submit, with its 
application, a preliminary draft environmental assessment (PDEA), to be 
based on consultations with SEA and the various agencies set forth in 
49 CFR 1105.7(b) of our environmental rules. SEA would then use the 
PDEA to prepare a draft environmental assessment for public comment.
    In their January 27, 1995 petition, applicants in this proceeding 
point out that they have already submitted a comprehensive 
environmental report. According to applicants, that report, prepared by 
the third-party consulting firm, fully complies with the Commission's 
proposed requirement for the submission of a PDEA. Applicants further 
claim an exemption from the requirements of filing historical reports 
under 49 CFR 1105.8 and have advised the Commission that no structure 
which is 50 years old or older will be affected by the proposed merger. 
According to the applicants, their environmental report shows that the 
proposed consolidation will not result in any significant environmental 
impacts sufficient to require the preparation of an EIS. Finally, 
applicants state that their third-party consultant, already at work 
under SEA's supervision, is engaged in a detailed review of the 
environmental aspects of the proposed merger and that the current 
workplan calls for completion of an environmental document, following 
public comment, by early July 1995. Applicants assert that there is no 
reason to deviate from the expedited schedule contemplated in Ex Parte 
No. 282 (Sub-No. 19) to ensure compliance with the NEPA review process.
    The filing of a PDEA is a predicate to the expedited schedule we 
proposed in Ex Parte No. 282 (Sub-No. 19). We also cautioned that 
mergers that involve actions that significantly affect the environment 
may require the preparation of an EIS, and that such a requirement 
would make it impossible to follow a 180-day schedule. Rail 
construction is such an action and the application contains requests 
for approval of 11 construction projects. We solicit further comments 
from the applicants and the parties on these environmental questions 
and suggestions on how to complete the environmental review process for 
the merger within the limits of the schedule proposed by the 
applicants.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    Decided: February 2, 1995.

    By the Commission, Chairman McDonald, Vice Chairman Morgan, and 
Commissioners Simmons and Owen.
Vernon A. Williams,
Secretary.

      Appendix A.--Proposed Revised, Expedited Procedural Schedule      
                                                                        
                                                                        
N                 Date Commission serves decision containing notice of  
                   shareholder approval on all parties.                 
N+5               Discovery conference on application held.             
N+30              Comments and protests due on the application (not to  
                   exceed 50 pages); requested conditions due;          
                   description of anticipated inconsistent and          
                   responsive applications due.                         
N+35              Discovery conference on comments, protests and        
                   conditions held.                                     
N+60              Inconsistent and responsive applications due. Response
                   to comments, protests, conditions and rebuttal in    
                   support of primary applications due (not to exceed   
                   100 pages).                                          
N+65              Discovery conference on inconsistent applications     
                   held.                                                
N+75              Notice of acceptance (if required) of inconsistent and
                   responsive applications published in the Federal     
                   Register.                                            
N+90              Response to inconsistent and responsive applications  
                   due (not to exceed 75 pages). Rebuttal in support of 
                   comments, protests, and conditions to the primary    
                   application due (not to exceed 50 pages).            
N+100             Rebuttal in support of inconsistent and responsive    
                   applications due (not to exceed 50 pages).           
N+110             Briefs due, all parties (not to exceed 50 pages).     
N+125             Oral argument (at Commission's discretion).           
N+135             Voting Conference (at Commission's discretion).       
N+165             Date for service of decision.                         

    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. Relevant excerpts of 
transcripts will be received in lieu of cross-examination at the 
hearing, unless cross-examination is needed to resolve material 
issues of disputed fact. Discovery on responsive 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. 95-3251 Filed 2-8-95; 8:45 am]
BILLING CODE 7035-01-P