[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]


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

DEPARTMENT OF TRANSPORTATION
Surface Transportation Board 1
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

[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.

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

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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