[Federal Register Volume 59, Number 150 (Friday, August 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19218]
[[Page Unknown]]
[Federal Register: August 5, 1994]
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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: Notice of prefiling notification and request for comments.
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SUMMARY: Pursuant to 49 CFR 1180.4(b), applicants have notified the
Commission of their intent to file an application seeking authority for
Burlington Northern Inc.'s acquisition of control of and merger with
Santa Fe Pacific Corporation, the result in a common control of
Burlington Northern Railroad Company and The Atchison, Topeka and Santa
Fe Railway Company by the merged company, and the merger of the two
railroad entities. The Commission finds this to be a major transaction
as defined in 49 CFR Part 1180. Applicants have proposed an accelerated
procedural schedule, on which the Commission invites comments by
interested persons.
DATES: Written comments must be filed with the Interstate Commerce
Commission no later than August 22, 1994. Applicants' reply is due by
September 1, 1994.
ADDRESSES: An original and 20 copies of all documents must refer to
Finance Docket No. 32549 and must be sent to Office of the Secretary,
Case Control Branch, Attn: Finance Docket No. 32549, Interstate
Commerce Commission, Washington, DC 20423.
In addition, one copy of all documents in this proceeding must be
sent 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, (202) 927-5610. [TDD for
hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: On July 8, 1994, Burlington Northern Inc.
(BNI), Burlington Northern Railroad Company (BN), Santa Fe Pacific
Corporation (SFP), and The Atchison, Topeka and Santa Fe Railway
Company (Santa Fe) (collectively, applicants) filed a notice of intent
indicating that they will file an application seeking Commission
approval and authorization under 49 U.S.C. 11343-47 for: (1) BNI's
acquisition of control of and merger with SFP; (2) the resulting common
control of BN and Santa Fe by the merged company; and (3) the merger of
the two railroad entities.
Under an Agreement and Plan of Merger dated June 29, 1994, BNI and
SFP have agreed that SFP will merge with and into BNI in accordance
with Delaware law. The merger is subject to certain conditions,
including Commission approval. During the pendency of the Commission's
review of the application, BNI and SFP, including their carrier
subsidiaries, will continue to operate as independent companies, each
headquartered in its current city and operating under the direction of
its current board and management. Upon Commission approval, SFP will be
merged with and into BNI, which will be the surviving company and will
change its name to Burlington Northern Santa Fe Corporation. Each share
of SFP common stock will be exchanged for 0.27 of a share of newly
issued BNI common stock.
Following the merger of BNI and SFP, the merged company will
directly control both BN and Santa Fe, and the operations of the two
railroads will be fully integrated pursuant to that common control.
Applicants also are seeking authority to merge the two railroad legal
entities.
Applicants will use the year 1993 for purposes of their impact
analyses to be filed in the application. Applicants anticipate filing
their application approximately 3 to 4 months after the July 8, 1994
filing of this Notice.
The Commission finds that this is a major transaction, as defined
at 49 CFR 1180.2(a), as it is a control and merger transaction
involving two or more class I railroads. The application must conform
to the regulations set forth at 49 CFR Part 1180 and must contain all
information required therein for major transactions, except as modified
by any advance waiver. The carriers are also required to submit maps
with overlays that show the existing routes of both carriers and their
competitors.
By petition also filed July 8, 1994, applicants sought a protective
order to protect confidential, highly confidential, and proprietary
information, including contract terms, shipper-specific traffic data,
and other traffic data to be submitted in connection with the control
application. A protective order was entered in a decision served July
15, 1994.
Also on July 8, 1994, applicants filed a petition to establish a
proposed procedural schedule.1 The Commission seeks comments now
on applicants' proposed procedural schedule. Applicants' proposed
procedural schedule is as follows:2
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\1\ Applicants also state that they intend to seek a waiver of
the Commission's regulations governing the filing of directly
related applications in order to permit the filing of any related
abandonment applications up to 3\1/2\ months after the filing of the
primary application.
\2\ In addition to submitting an original and 20 copies of all
documents filed with the Commission, the parties are encouraged to
submit all pleadings and attachments as computer data contained on a
3.5-inch floppy diskette which is formatted for WordPerfect 5.1 (or
formatted so that it can be converted by WordPerfect 5.1). The
computer data contained on the computer diskettes submitted are
subject to the protective order attached to the Commission's
decision served July 15, 1994, and is for the exclusive use of
Commission employees working directly with review of substantive
matters in this proceeding. The flexibility provided by such
computer file data will facilitate expedited review by the
Commission and its staff.
Proposed Procedural Schedule
F.................. Primary
applicat
ion
filed.
F+30............... Commissio
n notice
of
acceptan
ce of
primary
applicat
ion
publishe
d.
F+75............... Comments
on
primary
applicat
ion
(except
DOJ,
DOT)
due.
F+90............... DOJ, DOT
comments
on
primary
applicat
ion due.
F+105.............. Second
lists of
protecti
ve
conditio
ns due.
Applicat
ions for
abandonm
ent,
petition
s for
exemptio
n, and
all
related
verified
statemen
ts due.
(Notice
of
intent
to
abandon
will be
filed
within
30 days
prior to
the
filing
of
applicat
ions for
abandonm
ent;
notices
of
intent
will not
be filed
as to
petition
s for
exemptio
n.)
F+120.............. Responsiv
e
applicat
ions
due;
oppositi
on to
primary
applicat
ion due.
F+130.............. Commissio
n notice
of
acceptan
ce of
applicat
ions for
abandonm
ent
publishe
d.
F+150.............. Commissio
n notice
of
acceptan
ce of
responsi
ve
applicat
ions
publishe
d.
F+240.............. Governmen
t
parties'
evidence
due;
oppositi
on to
responsi
ve
applicat
ions
due;
rebuttal
in
support
of
primary
applicat
ion due.
Oppositi
on to
applicat
ions for
abandonm
ent and
to
petition
s for
exemptio
n, and
all
related
verified
statemen
ts due.
F+285.............. Responses
to
governme
nt
parties'
evidence
due;
rebuttal
in
support
of
responsi
ve
applicat
ions
due.
F+306.............. Hearing
on all
evidence
;
witnesse
s to be
to cross-
examined
only to
the
extent
specific
need is
shown in
order to
resolve
material
issues
of
disputed
fact.
F+335.............. Opening
briefs
due.
F+360.............. Reply
briefs
due.
F+380.............. Oral
argument
.
F+430.............. Final
decision
.
Under the proposal, 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 Chief Administrative Law Judge
will have the authority: (1) to revise the schedule as may appear
necessary; and (2) initially to resolve any discovery disputes. The
dates for filing post-hearing briefs and for oral argument before the
Commission will be set upon completion of oral hearing before the Chief
Administrative Law Judge.
The proposed schedule contains substantially shorter time periods
than those provided for in our rules at 49 CFR 1180.4(a)-(e). For
example, 1180.4(e) which tracks the statute at 49 U.S.C. 11345(b)(3),
requires that the evidentiary proceedings for a major transaction be
completed in 24 months after acceptance of the primary application,
with a final decision to be issued within 180 days thereafter.
We invite interested persons to submit written comments on the
proposed procedural schedule. Comments must be filed by August 22,
1994. Applicants may reply by September 1, 1994.
Decided: July 29, 1994.
By the Commission, Chairman McDonald, Vice Chairman Phillips,
and Commissioners Simmons and Morgan.
Vernon A. Williams,
Acting Secretary.
[FR Doc. 94-19218 Filed 8-4-94; 8:45 am]
BILLING CODE 7035-01-P
