[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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
---------------------------------------------------------------------------

    \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