[Federal Register Volume 59, Number 2 (Tuesday, January 4, 1994)]
[Notices]
[Pages 330-332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-88]


[[Page Unknown]]

[Federal Register: January 4, 1994]


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INTERSTATE COMMERCE COMMISSION
[Decision No. 13; Finance Docket No. 32133 (Sub-Nos. 1-3)]

 

The Kansas City Southern Railway Co., et al.; Haulage and 
Trackage Rights Over Lines of Union Pacific Railroad Co., et al.

    In the matter of [Finance Docket No. 32133 (Sub-No. 1)], the 
Kansas City Southern Railway Company--Haulage Rights Over The Lines 
of Union Pacific Railroad Company and Chicago and North Western 
Transportation Company; [Finance Docket No. 32133 (Sub-No. 2)], St. 
Louis Southwestern Railway Company and SPCL Corp.--Trackage Rights 
Over Lines of Union Pacific Railroad Company and Missouri Pacific 
Railroad Company in Wyandotte County, KS, and Jackson County, MO; 
and [Finance Docket No. 32133 (Sub-No. 3)], CCP Holdings, Inc. and 
Chicago, Central & Pacific Railroad Company--Trackage Rights Over 
Certain Lines of Union Pacific Railroad Company, Missouri Pacific 
Railroad Company, and Chicago and North Western Transportation 
Company.

AGENCY: Interstate Commerce Commission.

ACTION: Notice of Decision No. 13.

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SUMMARY: The Commission is accepting for consideration the applications 
of (1) The Kansas City Southern Railway Company (KCS), (2) Southern 
Pacific Transportation Company (SPT), The Denver and Rio Grande Western 
Railroad Company (DRGW) and St. Louis Southwestern Railway Company 
(SSW), and SPCL Corp., and (3) Chicago, Central & Pacific Railroad 
Company (CC&P) and CCP Holdings, Inc. (CCP Holdings) for the 
establishment of haulage rights, trackage rights, certain local service 
rights, and certain other conditions on lines of Union Pacific Railroad 
Company (UP), Missouri Pacific Railroad Company (MP), and Chicago and 
North Western Transportation Company (CNW). These applications are 
responsive to the proposed acquisition of control of CNW by Union 
Pacific Corporation and its subsidiary railroads, UP and MP.

EFFECTIVE DATE: This decision is effective on January 4, 1994. Written 
comments and all evidence must be filed with the Interstate Commerce 
Commission by February 28, 1994. Rebuttal is due March 29, 1994.

FOR FURTHER INFORMATION CONTACT:
Thomas B. Shick (202) 927-5257 or Donald J. Shaw (202) 927-5610; TDD 
for hearing impaired: (202) 927-5721.

ADDRESSES: An original and 20 copies of all comments referring to 
Finance Docket No. 32133 (Sub-No. 1), Finance Docket No. 32133 (Sub-No. 
2), or Finance Docket No. 32133 (Sub-No. 3), as appropriate, must be 
filed with: Office of the Secretary, Case Control Branch, Interstate 
Commerce Commission, Washington, DC 20423. Five copies of all comments 
must also be sent to: Room 2118, Office of Proceedings, Interstate 
Commerce Commission, Washington, DC 20423. One copy must be sent to the 
Attorney General of the United States, the Secretary of Transportation, 
and the other active parties of record, including the primary 
applicants' representatives.

SUPPLEMENTARY INFORMATION: In No. 32133, Union Pacific Corporation, and 
its subsidiary railroads Union Pacific Railroad and Missouri Pacific 
Railroad (collectively, UP), seek to acquire control of CNW and its 
corporate parent, Chicago and North Western Holdings Corp. Notice of 
acceptance of the UP application was published in the Federal Register 
on February 26, 1993, at 58 FR 11626. On November 29, 1993, pursuant to 
the Commission's revised procedural schedule set forth in Union Pacific 
Corp., Et Al.--Control--CNW, 9 I.C.C.2d 939 (1993), the following 
responsive applications were filed:
    Finance Docket No. 32133 (Sub-No. 1). KCS seeks the imposition of 
the following protective conditions designed to ``renovate'' its 
current ``north end'' haulage rights over UP between Kansas City and 
Omaha, NE/Council Bluffs, IA, Lincoln, NE, Atchison, KS, and Topeka, 
KS:1
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    \1\These rights were negotiated with UP as a result of the 
Commission's decisions in Union Pacific--Control--Missouri Pacific, 
Western Pacific, 366 I.C.C. 459, 566-572 (1982); and Union Pacific 
Corp. et al.--Control--MO-KS-TX Co., et al., 4 I.C.C.2d 409, 452-458 
(1988).

    (1) A new, cost-based, haulage charge, based upon UP's current, 
actual costs, with periodic adjustments;
    (2) Elimination of all restrictions as to local service and 
interlining at Kansas City of traffic moving pursuant to those 
haulage rights;
    (3) A guarantee by UP of ``most favored nation'' treatment being 
extended to KCS on all UP switching charges and practices at Omaha/
Council Bluffs; and
    (4) A guarantee by UP of minimum transit time, between the 
receipt or delivery of cars for shipment under the haulage rights, 
on the one hand, and, on the other hand, the interchange of those 
cars to KCS, with penalty provisions for any default.


KCS also seeks new haulage rights over CNW:


    (5) Haulage rights, convertible to trackage rights at KCS's 
option, over CNW lines between Council Bluffs and Sheldon, IA; 
between Council Bluffs-Fort Dodge, IA, and the surrounding area; and 
between Kansas City, MO, and Des Moines, IA; and certain related 
conditions.


    Finance Docket No. 32133 (Sub-No. 2). SP seeks denial of the 
application, but alternatively, requests the imposition of the 
following conditions:


    (1) Access by such trackage and haulage rights as would be most 
efficient in the circumstances to provide full service to all 
shippers served by CNW and its existing affiliates (except those in 
Michigan and northeast Wisconsin). SP may hold out service in its 
own name, and quote rates and contracts without the concurrence of 
CNW; CNW shall furnish the underlying rail transportation as an 
independent contractor for mutually agreed upon compensation (or 
Commission prescribed compensation in the event of a failure to 
agree); and CNW shall give such traffic equal handling and priority 
as its own traffic;
    (2) Access by such trackage and haulage rights as would be most 
efficient in the circumstances (a) to serve origins and destinations 
exclusively served by UP via Missouri Pacific Railroad (MP) and 
former Missouri-Kansas-Texas Railroad lines (MKT); and (b) to bridge 
between the CNW in the North and the SP in the South. SP may hold 
out service in its own name, and quote rates and contracts without 
the concurrence of CNW; MP shall furnish the underlying rail 
transportation as an independent contractor for mutually agreed upon 
compensation (or Commission prescribed compensation in the event of 
a failure to agree); and MP shall give such traffic equal handling 
and priority as its own traffic;
    (3) Such changes in compensation, ownership and responsibility 
for maintenance, dispatch and other operations, and terminal rights 
and access to certain intermediate points, as will permit efficient 
and effective competition by SP utilizing the trackage rights 
granted in Finance Docket No. 30,000: (a) to SSW between Kansas 
City, MO, and East St. Louis, IL; and (b) to DRGW between Pueblo, 
CO, and Kansas City. Such changes include various measures to insure 
that SP trains are to be given equal treatment with UP trains;
    (4) Provisions designed to provide access to CNW facilities at 
the Chicago Switching District that will allow SP to provide service 
and competition on terms and conditions no less favorable than those 
available to UP today, including reciprocal switching; and
    (5) Access to and participation in each of the marketing and 
operational coordinations of the type described at pages 372-376 of 
Volume 1 of the Application, which are entered into by UP and CNW 
with each other subsequent to the effective date of any control 
authority granted in this proceeding, on terms and conditions that 
are substantially equivalent to the terms and conditions of UP's 
access or participation.


    Finance Docket No. 32133 (Sub-No. 3). CC&P and CCP Holdings 
request:


    (1) Overhead trackage rights for CC&P over UP's Council Bluffs 
Subdivision between the connection of CC&P's rail line at CC&P 
milepost 512.2 (Council Bluffs, IA) and the KCS/Soo Line Joint 
Agency Yard and UPRR Neff Yard in Kansas City, MO, and Kansas City, 
KS, with the right to interchange with all connecting carriers at 
Kansas City, and to handle directly inbound movements of grain to 
all existing grain receivers located on UP and CNW at Kansas City;
    (2) Overhead trackage rights over CNW's Sioux City Subdivision 
between the connection of CC&P's line with CNW's line at CNW 
milepost 76.3 (Sioux City, IA) and the connection with CC&P's line 
at Council Bluffs, with the right to directly handle inbound 
movements of soybeans and outbound movements of soybean meal, oil, 
and other soybean products to and from the Ag Processing, Inc., 
plant located on CNW at Sergeant Bluff, IA;
    (3) Overhead trackage rights for CC&P over CNW's Fort Dodge 
Subdivision between the connection of CC&P's line to CNW's line at 
CNW milepost 372.5 (Fort Dodge, IA) and milepost 354.2, at the 
private tracks of Ag Processing, Inc., at Eagle Grove, IA, for the 
limited purpose of handling inbound shipments of soybeans and coal 
and outbound movements of grain products to/from the Ag Processing, 
Inc., plant located on CNW at Eagle Grove, IA.


    The applications substantially comply with the applicable 
regulations.2 The application and exhibits are available for 
inspection in the Public Docket Room at the offices of the Interstate 
Commerce Commission in Washington, DC. In addition, they may be 
obtained upon request from applicant's representatives.
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    \2\Although SP's application includes pro forma financial 
information for the first year of consummation of the transaction, 
it has failed to submit pro forma statements covering subsequent 
reporting period requirements under the Commission's consolidation 
procedures, 49 CFR 1180.9. Given the nature of the conditions that 
SP is requesting, the financial information omitted would appear to 
be of very limited relevance, at best, and unnecessary to a 
decision. Moreover, our regulations will change as of December 30, 
1993, and the application would qualify as complete if it had been 
filed after that date. See R.R. Consolidation Proced. of Significant 
Transactions, 9 I.C.C.2d 1198 (1993). Consequently, we will waive 
the requirement on our own motion.
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    These applications are consolidated for disposition with the 
primary application in Finance Docket No. 32133. Service of an initial 
decision will be waived, and determination of the merits of the 
applications will be made in the first instance by the entire 
Commission. 49 U.S.C. 11345(f).
    Interested persons may participate formally by submitting written 
comments regarding all or any of the responsive applications. Comments 
should indicate the exact proceeding designation, and should be filed 
with the correct number of copies and with the Commission offices 
specified above no later than February 28, 1994. Comments shall include 
the following: The person's position in support of or in opposition to 
the proposed transaction; any and all evidence, including verified 
statements, in support of or in opposition to the proposed transaction; 
and specific reasons why approval would or would not be in the public 
interest. See 49 CFR 1180.4(d)(1). Interested persons who do not intend 
to participate formally in the proceeding but who desire to comment may 
file statements, subject to the filing and service requirements 
specified below. Persons must state specifically whether they intend 
actively to participate in the proceeding or whether they wish only to 
be advised of all decisions issued by the Commission. Failure to state 
an intention to participate as an active party will result in the 
person being placed in the latter category.
    Written comments must be concurrently served by first class mail on 
the Secretary of the Department of Transportation, on the Attorney 
General of the United States, and on all other persons designated as 
active parties of record on the Commission's service list, including 
primary applicants' representatives.
    Rebuttal in support of these responsive applications must be filed 
by March 19, 1994.
    Because these applications contain proposed conditions to approval 
of the application in Finance Docket No. 32133, the Commission will 
entertain no requests for affirmative relief related to these 
proposals. Parties may only participate in direct support of or direct 
opposition to these applications as filed.
    This action will not significantly affect either the quality of the 
human environment or energy conservation.
    It is ordered:
    1. To the extent that applicants failed to submit certain financial 
evidence in the application filed in Finance Docket No. 32133 (Sub-No. 
2) as required by 49 CFR 1180.9, the requirements of that section are 
waived.
    2. The applications in Finance Docket No. 32133 (Sub-Nos. 1, 2, and 
3) are accepted for consideration.
    3. The parties shall comply with all provisions as stated above.

    Decided: December 21, 1993.

    By the Commission, Chairman McDonald, Vice Chairman Simmons, 
Commissioners Phillips and Philbin.
Sidney L. Strickland, Jr.,
Secretary.
[FR Doc. 94-88 Filed 1-3-94; 8:45 am]
BILLING CODE 7035-01-P