[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
