Federal Register / Vol. 60, No. 46 / Thursday, March 9, 1995 / Notices 12973

1 SP contends that the Supplemental Materials

filed by applicants on February 17, 1995 (BN/SF–

25) contain certain deficient information about the

additional debt that applicants will incur in order

to consummate their tender offers for SFP common

stock. SP’s concern relates to form rather than

substance. Adequate information about this

financing and its possible effects on applicants’ pro

forma projections of merged operations is

ascertainable from information contained in the

application filed October 13, 1994, and in the

Supplemental Materials, primarily the

Supplemental Verified Statement of Thomas N.

Hund and Don S. Snyder and the Amendments to

SEC Form S–4, filed by BNI and BNSF Corporation.

2 In Decision No. 7, we stated that the new

schedule would require comments to be filed 30

days later and adjust other schedule dates

accordingly. As explained later in this decision,

comments will not be due until 62 days from the

date of publication of this decision.

3 In New Procedures in Rail Acquisitions,

Mergers and Consolidations, Ex Parte No. 282 (SubNo. 19) (ICC served Jan. 26, 1995 and published at

60 FR 5890, January 31, 1995), we requested

comments, due March 2, 1995, on our proposed

establishment of more timely procedures for

processing applications for major and significant

rail combinations. 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).

4Technically, Appendix A to this decision

envisions a 167-day procedural schedule. We found

it necessary to add two additional days to the

schedule so that no date on the schedule would fall

on a Saturday, a Sunday, or a legal holiday.

[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. 10; notice of

issuance of new procedural schedule.

SUMMARY: The Commission is issuing a

new procedural schedule, which

follows the Santa Fe Pacific Corporation

(SFP) shareholders’ and Burlington

Northern Inc. (BNI) shareholders’ vote

on February 7, 1995, to approve the

proposed BNI/SFP merger. This

schedule will provide for issuance of a

final decision no later than August 23,

1995. The Commission also is setting a

50-page limitation for briefs, which

must be filed in accordance with the

requirements at 49 CFR 1104.2. In

addition, the Commission is requiring

that a Preliminary Draft Environmental

Assessment (PDEA) be submitted, where

applicable, with each inconsistent and

responsive application.

EFFECTIVE DATE: The effective date of

this decision is March 9, 1995. All

comments, protests, requests for

conditions, and any other opposition

evidence and argument are due on May

10, 1995. For further information, see

the attached procedural schedule.

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 Ave.,

N.W., Washington, DC 20423. Parties

are encouraged also to submit all

pleadings and attachments on a 3.5-inch

diskette in WordPerfect 5.1 format.

In addition, one copy of all

documents in this proceeding must be

sent to Administrative Law Judge

Stephen L. Grossman, Federal Energy

Regulatory Commission, Office of

Hearings, 825 North Capitol Street, N.E.,

Washington, DC 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: Julia

Farr or Dugie Standeford, (202) 927–

7513. (TDD for hearing impaired: (202)

927–5721.)

SUPPLEMENTARY INFORMATION: On

October 13, 1994, an application was

filed for approval of BNI’s acquisition

of, control of, and merger with 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 (59 FR 56089) on

November 10, 1994, and we set certain

filing dates under the procedural

schedule previously adopted in our

Decision No. 4, served October 5, 1994.1

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.2 On February 7,

1995, the shareholders approved the

proposed BNI/SFP merger.

By petition filed January 27, 1995,

BNI, BN, SFP, and Santa Fe requested

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).3 In Decision No. 9 in this

proceeding, served February 3, 1995, we

requested public comments on the

applicants’ proposal to revise the

procedural schedule to provide for the

service of a final decision no later than

165 days from the date the Commission

publishes its decision restarting the

schedule for processing the proceeding.

Additionally, we requested public

comments on proposed page limitations

on certain filings, on whether a

preliminary scoping order should be

issued, and on the feasibility of meeting

all environmental review requirements

within the proposed compressed

schedule. Public comments on these

issues were due on February 21, 1995.

Over 170 public comments were

received in response to Decision No. 9.

The vast majority of these comments

were from shippers; however, comments

were also filed by several Members of

Congress, government parties, railroads,

electric utilities, other shipper interests,

and rail labor unions. In addition, the

applicants responded to Decision No. 9.

Approximately 55 commenters

specifically supported the applicants’

proposed 165-day procedural schedule.

There were a number of statements in

support of a 180-day schedule as

proposed by the Commission in New

Procedures in Rail Acquisitions,

Mergers and Consolidations, Ex Parte

No. 282 (Sub-No. 19) (ICC served Jan.

26, 1995), and several parties suggested

alternative 180-day schedules. Over 25

shippers approved an expedited merger

process, but suggested no time limits.

By contrast, approximately 65

commenters stated their opposition to

the proposed 165-day schedule,

although not all of these entities

specifically objected to the total time of

165 days; rather, some were more

concerned with having only 30 days to

comment on the application. Many of

the opposing commenters asked the

Commission to lengthen the review

process to at least 9 months.

We have determined after review of

all the comments that a 165-day

procedural schedule will allow us time

to consider fully all of the issues in this

proceeding and to ensure that all parties

are accorded due process.4 We will

agree, however, to giving additional

time to interested parties, including the
12974 Federal Register / Vol. 60, No. 46 / Thursday, March 9, 1995 / Notices

5For the purposes of the present proceeding, 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, any

appeal to a decision issued by Judge Grossman must

be filed within 3 working days of the service 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 Commission itself in the first

instance must also be filed within 3 working days.

Department of Justice (DOJ) and the

Department of Transportation (DOT), in

which to file written comments and

protests on the primary application

(including any comments in opposition

to the primary application), as well as

requested conditions. These filings will

be due 62 days after publication of this

notice, which is the same date that

inconsistent and responsive

applications are due. All descriptions of

anticipated inconsistent or responsive

applications, as well as petitions for

waiver or clarification, will be due 32

days after publication of this notice.

There were a few comments on the

proposed page limitations. Most

commenters were generally opposed,

but were willing to accept some page

limitations on briefs. To facilitate

meeting the expedited deadline set out

in this notice, the Commission will limit

briefs to 50 pages, but will impose no

page limitations on evidentiary

submissions. Briefs must be filed in

accordance with the requirements at 49

CFR 1104.2. Because reply briefs appear

to be unnecessary to complete our

review of a merger, we do not anticipate

granting any requests to file reply briefs.

Based on the lack of response to our

proposed preliminary scoping order, we

do not anticipate issuing such an order

at this time. However, in pursuing

discovery and in preparing pleadings,

we encourage the parties (and will

instruct the Administrative Law Judge)

to focus strictly on relevant issues, as

identified by the applicable statutory

standards and our control regulations,

including our merger policy statement

(49 CFR 1180.1). For example,

arguments that the transaction will

cause competitive harm should be

accompanied by a clear statement of

how rates will be raised, service

degraded, or both, in some identifiable

market. Responses countering such

competitive arguments should explain

clearly why those adverse impacts will

not occur.

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. Anyone

desiring 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). Generally, these

types of actions require an

environmental report under 49 CFR

1105.6(b)(4) which would form the basis

of a subsequent environmental

assessment (or environmental impact

statement, if warranted). Here, because

of the accelerated time frames, a PDEA

is necessary at the outset.

The preparation of a PDEA should not

be burdensome. Although the

information would be presented in a

somewhat different format, the PDEA

should address essentially the same

environmental issues that would have

been covered by an environmental

report. The PDEA, like the

environmental report, should be based

on consultations with the Section of

Environmental Analysis (SEA) and the

various agencies set forth in 49 CFR

1105.7(b). SEA will be available to

provide assistance as needed.

SEA will use the PDEA to expedite

the environmental review process. If a

PDEA 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).

Anyone desiring to file an

inconsistent application or responsive

application should consult with SEA as

early as possible regarding the

appropriate environmental

documentation.

If the parties wish to engage in any

discovery or establish any discovery

guidelines (see, e.g., the proposed

discovery guidelines in BN/SF–24; see

also the proposed discovery guidelines

in KCS–3, Ex. D, pp. 4–7), they are

directed to consult with Stephen L.

Grossman, Administrative Law Judge.

Judge Grossman 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

Grossman 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 Grossman 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, at 9 (ICC served

July 11, 1994) (applying the ‘‘stringent

standard’’ of 49 CFR 1115.1(c) to an

appeal of an interlocutory decision

issued by former Chief Administrative

Law Judge Paul S. Cross).5

This action will not significantly

affect either the quality of the human

environment or the conservation of

energy resources.

Decided: March 3, 1995.

By the Commission, Chairman McDonald,

Vice Chairman Morgan, and Commissioners

Simmons and Owen.

Vernon A. Williams,

Secretary.

Appendix A—Final Procedural

Schedule

April 10, 1995—Description of

anticipated inconsistent and

responsive applications due; petitions

for waiver or clarification due.

May 10, 1995—Inconsistent and

responsive applications due. All

comments, protests, requests for

conditions, and any other opposition

evidence and argument due. DOJ and

DOT comments due.

May 25, 1995—Notice of acceptance (if

required) of inconsistent and

responsive applications published in

the Federal Register.

June 9, 1995—Response to inconsistent

and responsive applications due.

Response to comments, protests,

requested conditions, and other

opposition due. Rebuttal in support of

primary application due.

June 19, 1995—Rebuttal in support of

inconsistent and responsive

applications due.

June 29, 1995—Briefs due, all parties

(not to exceed 50 pages).

July 14, 1995—Oral argument (at

Commission’s discretion).

July 24, 1995—Voting Conference (at

Commission’s discretion).

August 23, 1995—Date for service of

final 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
Federal Register / Vol. 60, No. 46 / Thursday, March 9, 1995 / Notices 12975

1Northern Nevada Railroad Corporation—

Construction and Operation Exemption—White

Pine County, NV, Finance Docket No. 32476 (ICC

served Feb. 24, 1995).

1Northern Nevada Railroad Corporation—

Construction and Operation Exemption—White

Pine County, NV, Finance Docket No. 32476 (ICC

served Feb. 24, 1995).

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 crossexamination, unless cross-examination is

needed to resolve material issues of disputed

fact. 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. 95–5799 Filed 3–8–95; 8:45 am]

BILLING CODE 7035–01–P

[Finance Docket No. 32624]

Northern Nevada Railroad

Corporation—Modified Rail

Certificate—Between Cobre and McGill

Junction, NV

On December 2, 1994, Northern

Nevada Railroad Corporation (NNRC),

filed a notice for a modified certificate

of public convenience and necessity

under 49 CFR part 1150, subpart C—

Modified Certificate of Public

Convenience and Necessity, to operate

over a line of railroad owned by the

Department of Water and Power of the

City of Los Angeles (Los Angeles)

between Cobre, Elko County NV

(milepost 0.0) and McGill Junction,

White Pine County, NV (milepost

128.0), a total distance of 128.0 miles.

Prior to Los Angeles acquiring the

line, the line was formerly owned and

operated by Nevada Northern Railway

Company. Department of Water and

Power of the City of Los Angeles—

Acquisition and Operation Exemption—

The Nevada Northern Railway

Company, Finance Docket No. 31030

(ICC served June 8, 1987). Subsequently,

in Los Angeles Department of Water and

Power D/B/A Nevada Northern Railway

Company—Abandonment Exemption—

Line in Nevada, Docket No. AB–285

(Sub-No. 1X) (ICC served Oct. 3, 1988),

the line was authorized to be

abandoned.

NNRC’s notice indicates that the line

will connect with the Southern Pacific

Transportation Company at Cobre

(milepost 0.0); with the Union Pacific

Railroad Company at Shafter, NV

(milepost 18.8); and with NNRC at

McGill Junction (milepost 128.0). Los

Angeles has entered into an operating

agreement with NNRC which planned to

begin operation during January 1995.

Operations consist of moving about one

train per week over the line in each

direction. Operations will increase to

daily service once NNRC’s connecting

line is constructed.1

The Commission’s Section of

Environmental Analysis (SEA),

reviewed the proposed start up

operations that are the subject of the

modified certificate. Specifically, by

letter dated January 13, 1995, NNRC

sought clarification under 49 CFR

1105.6(d) that the start up operations

under the modified certificate do not

require environmental review. NNRC

provided supporting data concerning

commodities and the nature of the

proposed operations. By letter dated

January 27, 1995, based on the

information available at that time, SEA

notified NNRC that the modified

certificate operations had independent

utility and that no environmental

review would be required to transport

the commodities NNRC had identified.

Accordingly, this modified certificate is

issued only as to those identified

commodities and, under the certificate,

NNRC may conduct those operations

prior to completion of the construction

exemption proceedings in Finance

Docket No. 32476.

The Commission will serve a copy of

this notice on the Association of

American Railroads (Car Service

Division), as agent of all railroads

subscribing to the car-service and carhire agreement, 50 F Street NW.,

Washington, DC 20001, and on the

American Short Line Railroad

Association, 1120 G Street NW., Suite

520, Washington, DC 20005.

Decided: March 1, 1995.

By the Commission, David M. Konschnik,

Director, Office of Proceedings.

Vernon A. Williams,

Secretary.

[FR Doc. 95–5797 Filed 3–8–95; 8:45 am]

BILLING CODE 7035–01–P

[Finance Docket No. 32623]

Northern Nevada Railroad

Corporation—Modified Rail

Certificate—Between McGill Junction

and Keystone, NV

On December 2, 1994, Northern

Nevada Railroad Corporation (NNRC),

filed a notice for a modified certificate

of public convenience and necessity

under 49 CFR part 1150, subpart C—

Modified Certificate of Public

Convenience and Necessity, to operate a

line of railroad owned by the City of Ely

between McGill Junction, NV, (milepost

128.0) and Keystone, NV, (milepost

146.152), a total distance of 18.152

miles. The line will connect at each end

with another line operated by NNRC.

NNRC planned to begin operation

during January 1995. Operations consist

of moving about one train per week over

the line in each direction. Operations

will increase to daily service once

NNRC’s connecting line is constructed.1

Prior to the City of Ely acquiring the

line, the line was owned and operated

by Nevada Northern Railway Company,

a subsidiary of Kennecott Copper

Corporation. In Nevada Northern

Railway Company—Abandonment

Exemption in White (Pine) County, NV,

Docket No. AB–285X (ICC served July 6,

1987), the Commission authorized

Nevada Northern Railway Company to

abandon the line. Since that time, the

line has been operated for the City of

Ely by the White Pine Historical

Railroad Foundation (WPHRR). WPHRR

has entered into an operating agreement

with NNRC.

The Commission’s Section of

Environmental Analysis (SEA),

reviewed the proposed start up

operations that are the subject of this

modified certificate. Specifically, by

letter dated January 13, 1995, NNRC

sought clarification under 49 CFR

1105.6(d) that the start up operations

under the modified certificate do not

require environmental review. NNRC

provided supporting data concerning

commodities and the nature of the

proposed operations. By letter dated

January 27, 1995, based on the

information available at that time, SEA

notified NNRC that the modified

certificate operations had independent

utility and that no environmental

review would be required to transport

the commodities NNRC had identified.

Accordingly, this modified certificate is

issued only as to those identified

commodities, and, under the certificate,

NNRC may conduct those operations

prior to completion of the construction

exemption proceedings in Finance

Docket No. 32476.

The Commission will serve a copy of

this notice on the Association of

American Railroads (Car Service

Division), as agent of all railroads

subscribing to the car-service and carhire agreement, 50 F Street NW.,

Washington, DC 20001, and on the

American Short Line Railroad

Association, 1120 G Street NW., Suite

520, Washington, DC 20005.

Decided: March 1, 1995.