[Federal Register Volume 61, Number 138 (Wednesday, July 17, 1996)]
[Notices]
[Pages 37313-37314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18129]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board 1
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\1\ The ICC Termination Act of 1996, 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 Interstate Commerce
Commission (ICC) and transferred certain functions to the Surface
Transportation Board (Board). This notice relates to railroad
acquisitions that are subject to Board jurisdiction pursuant to 49
U.S.C. 11323-25.
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[STB Finance Docket No. 32974]
Burlington Northern Santa Fe Corporation, BNSF Acquisition Corp.,
and Burlington Northern Railroad Company--Control--Washington Central
Railroad Company
AGENCY: Surface Transportation Board.
ACTION: Notice of acceptance of application.
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SUMMARY: On June 17, 1996, the Washington Central Railroad Company
(WCRC), the Burlington Northern Santa Fe Corporation (BNSF), the
Burlington Northern Railroad Company (BNRR), and BNSF Acquisition
Corporation (BNSF Acquisition) filed an application for BNSF to
continue in control of BNSF Acquisition after BNSF Acquisition acquires
the stock of WCRC. We accept the application for consideration. We
further find that this is a ``minor transaction'' under 49 CFR
1180.2(c). Finally, we establish an expedited procedural schedule that
would provide for the issuance of a final decision approximately 60
days prior to the deadline established for minor transactions in 49
U.S.C. 11325(d).
DATES: Written comments, including comments from the Secretary of
Transportation and the Attorney General of the United States, must be
filed with the Board no later than August 16, 1996. The Board will
issue a service list shortly thereafter. Comments must be served on all
parties of record within 10 days after the Board issues the service
list. Applicants' reply is due on August 30, 1996. Unless unforeseen
issues arise, the Board expects to be able to issue a final decision by
October 15, 1996, with an effective date of October 30, 1996.
ADDRESSES: Send pleadings referring to STB Finance Docket No. 32974 to:
(1) Office of the Secretary, Case Control Branch, Surface
Transportation Board, 1201 Constitution Avenue, N.W., Washington, DC
20423; (2) Docket Clerk, Office of Chief Counsel, Federal Railroad
Administration, Room 5101, 400 Seventh Street, S.W., Washington, DC
20590; (3) Attorney General of the United States, Washington, DC 20530;
(4) Kathryn A. Kusske, Mayer, Brown & Platt, 2000 Pennsylvania Avenue,
N.W., Suite 6500, Washington, DC 20006; and (5) Mark H. Sidman and Jo
A. DeRoche, Weiner, Brodsky, Sidman & Kider, P.C., 1350 New York
Avenue, N.W., Suite 800, Washington, DC 20005-4797.
FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 927-5660.
[TDD for hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: Applicants seek approval under 49 U.S.C.
11323-25 for BNSF to continue in control of its noncarrier subsidiary
BNSF Acquisition after BNSF Acquisition acquires the common stock of,
and is subsequently merged with, WCRC. Applicants also seek approval
under 49 U.S.C. 11323 for BNRR (controlled indirectly by BNSF) to
operate the lines of the current WCRC system after WCRC is acquired by
BNSF Acquisition, except for certain lines that will be leased to the
Columbia Basin Railroad Company (CBRC).2 Authority for this lease
will be sought in a separate proceeding before the Board. Although BNRR
will conduct most of WCRC's rail operations, BNSF Acquisition will
retain its separate corporate existence.
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\2\ The lines to be leased to CBRC are: (1) Connell, WA (MP
186.9) to Wheeler, WA (MP 147.3); (2) Bassett Junction, WA (MP 0.0)
to Schrag, WA (MP 12.50); and (3) Moses Lake, WA (MP 18.3) to
Sieler, WA (MP 5.0). In a separate transaction to be submitted to
the Board, CBRC will receive trackage rights from BNRR to provide
service between Warden, WA (MP 1976.0) and Othello, WA (MP 1989.0),
a distance of approximately 13 miles.
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The applicants allege that this is a ``minor transaction'' as
defined in 49 CFR part 1180, the regulations that implemented former 49
U.S.C. 11343-45. The ICCTA has revised those statutory provisions and
reenacted them as 49 U.S.C. 11323-25. The transaction here specifically
is subject to 49 U.S.C. 11324(d) because the transaction does not
involve the merger or control of two Class I railroads. Section 204(a)
of the ICCTA provides that all ICC rules in effect on the date of the
enactment of the ICCTA ``shall continue in effect according to their
terms until modified, terminated, superseded, set aside, or revoked in
accordance with law by the Board . . . or operation of law.'' While the
standards and procedures of former sections 11343-45 and current
section 11323-25 are substantially similar insofar as minor
transactions are concerned, the procedures of current section 11325(d),
which applies if the transaction is a minor transaction, differ
slightly from those at 49 CFR 1180.4 and shall govern. Otherwise, the
use of the regulations at 49 CFR part 1180 for this proceeding appears
proper.
Under 49 U.S.C. 11324(d), applying to proceedings that do not
involve the merger or control of at least two Class I railroads, the
Board shall approve a transaction unless it finds that: (1) the
transaction will result in a ``substantial lessening of competition,
creation of a monopoly, or restraint of trade in freight surface
transportation in any region of the United States''; and (2) ``the
anticompetitive effects of the transaction outweigh the public interest
in meeting significant transportation needs.'' Addressing the first
qualification in section 11324(d), applicants argue that the
transaction can have no adverse competitive effects because it would be
an end-to-end acquisition, not a parallel acquisition. According to
applicants, the transaction would merely result in the reacquisition of
connecting track that was previously owned by the BNRR before the track
was sold to WCRC in 1986.
Addressing the second qualification in section 11324(d), applicants
assert that the transaction will further the public interest in meeting
significant transportation needs. BNSF Senior Vice
[[Page 37314]]
President Babb testifies that the transaction would reduce track
congestion in the Pacific Northwest, increase capacity to meet a
growing demand for rail service, increase operating efficiency, and
allow more timely service.
Applicants anticipate that no existing BNRR employees will be
adversely affected by the transaction but that a total of 17 WCRC
positions could be eliminated in the first year. According to
applicants, the newly formed CBRC will employ at least 15 present WCRC
employees. Applicants assert that ``[t]he applicable level of labor
protection for the transaction proposed herein is that set forth in New
York Dock--Control--Brooklyn Eastern District Terminal, 360 I.C.C. 60
(1979).''
Under 49 CFR part 1180, the Board must determine whether a proposed
transaction is major, significant, or minor. We find that the
transaction is minor under 49 CFR 1180.2(c), because the transaction,
which would merely allow BNSF to reacquire track that was previously
sold to a Class III carrier (WCRC) by BNRR, has no regional or national
transportation significance and clearly will not have any anticompetive
effects. Because the application substantially complies with the
applicable regulations governing minor transactions, we are accepting
it for consideration.
Our finding that this transaction is minor under 49 CFR 1180.2(c)
also satisfies the criteria for application of current 49 U.S.C.
11325(a)(3) and 11325(d).
By motion filed June 17, 1996, applicants suggest an expedited
procedural schedule for processing the application. Due to the limited,
end-to-end nature of the proposed transaction, it is not likely to
involve complex issues. Thus, we will adopt the suggested expedited
schedule, which is reflected in the ``DATES'' section above. But we
reserve the right to modify this schedule if unforeseen issues arise.
The application and exhibits are available for inspection in the
Public Docket Room at the Offices of the Surface Transportation Board
in Washington, DC. In addition, they may be obtained upon request from
applicants' representatives named above.
Interested persons, including government entities, may participate
in this proceeding by submitting written comments. Any person who files
timely comments will be considered a party of record if the person so
requests. No petition for leave to intervene need be filed.
Consistent with 49 CFR 1180.4(d)(1)(iii), written comments must
contain:
(a) The docket number and title of the proceeding;
(b) The name, address, and telephone number of the commenting party
and its representative upon whom service shall be made;
(c) The commenting party's position, i.e., whether it supports or
opposes the proposed transaction;
(d) A statement whether the commenting party intends to participate
formally in the proceeding, or merely to comment on the proposal;
(e) If desired, a request for an oral hearing with reasons
supporting this request; the request must indicate the disputed
material facts that can be resolved only at a hearing; and
(f) A list of all information sought to be discovered from
applicant carriers.
Because we have determined that this proposal is a minor
transaction, no responsive applications will be permitted. The time
limits for processing this application are set forth at 49 U.S.C.
11325(d), but, as noted above, we have provisionally adopted an
expedited schedule.
Discovery may begin immediately. We encourage the parties to
resolve all discovery matters expeditiously and amicably.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
It is ordered:
1. This application is accepted for consideration under 49 U.S.C.
11323-25 as a minor transaction under 49 CFR 1180.2(c).
2. The parties will comply with all provisions stated above.
This decision is effective on July 17, 1996.
Decided: July 11, 1996.
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 96-18129 Filed 7-16-96; 8:45 am]
BILLING CODE 4915-00-P
