[Federal Register Volume 65, Number 31 (Tuesday, February 15, 2000)]
[Notices]
[Pages 7610-7612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3527]



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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 33842]


Canadian National Railway Company, Grand Trunk Western Railroad 
Incorporated, Illinois Central Railroad Company, Burlington Northern 
Santa Fe Corporation, and the Burlington Northern and Santa Fe Railway 
Company; Common Control

AGENCY: Surface Transportation Board.

ACTION: Decision No. 6; Request for Comments on Procedural Schedule; 
Establishment of Schedule for Any Comments on Petition for Waiver or 
Clarification of Certain Requirements of the Board's Regulations.

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SUMMARY: Pursuant to 49 CFR 1180.4(b), Burlington Northern Santa Fe 
Corporation (BNSFC) and The Burlington Northern and Santa Fe Railway 
Company (BNSFR),\1\ and Canadian National Railway Company (CNR), Grand 
Trunk Western Railroad Incorporated (GTW), and Illinois Central 
Railroad Company (IC),\2\ have notified the Surface Transportation 
Board (Board) of their intention to file an application \3\ seeking 
Board authorization under 49 USC 11323-25 and 49 CFR part 1180 for a 
transaction (referred to as the BNSF/CN transaction) under which BNSF 
and CN would be brought under common control. In a prior decision 
(Decision No. 1, served December 28, 1999, and published in the Federal 
Register on January 4, 2000, at 65 FR 318), the Board found that the 
BNSF/CN transaction contemplated by applicants is a ``major'' 
transaction. In today's decision, the Board is requesting comments from 
interested persons on the procedural schedule proposed by applicants, 
and is setting a schedule for any comments on the applicants' petition 
for waiver or clarification of certain requirements of the Board's 
regulations.
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    \1\ BNSFC and BNSFR are referred to collectively as BNSF.
    \2\ CNR, GTW, and IC are referred to collectively as CN.
    \3\ BNSF and CN are referred to collectively as applicants.

DATES: Written comments on the procedural schedule and the petition for 
waiver or clarification must be filed with the Board no later than 
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March 1, 2000. Applicants' reply is due by March 6, 2000.

ADDRESSES: An original and 25 copies of all documents filed in this 
proceeding must refer to STB Finance Docket No. 33842 and must be sent 
to the Surface Transportation Board, Office of the Secretary, Case 
Control Unit, ATTN: STB Finance Docket No. 33842, 1925 K Street, NW, 
Washington, DC 20423-0001. In addition, one copy of each document filed 
in this proceeding must be sent to the Administrative Law Judge 
assigned to entertain and rule upon all disputes concerning discovery 
in this proceeding (an ALJ will be assigned to this proceeding in the 
near future), and to each of applicants' representatives: (1) Erika Z. 
Jones, Mayer, Brown & Platt, 1909 K Street, NW, Washington, DC 20006-
1101 (representing BNSF), and (2) Paul A. Cunningham, Harkins 
Cunningham, 801 Pennsylvania Avenue, NW, Suite 600, Washington, DC 
20004-2664 (representing CN).
    In addition to submitting an original and 25 copies of all paper 
documents filed with the Board, parties must also submit, on diskettes 
(3.5-inch IBM-compatible floppies) or compact discs, one electronic 
copy of each such document (e.g., textual materials, electronic 
workpapers, data bases and spreadsheets used to develop quantitative 
evidence). Textual materials must be in, or convertible by and into, 
WordPerfect 7.0. Spreadsheets must be in some version of Lotus, Excel, 
or Quattro Pro.\4\ Each diskette or compact disc should be clearly 
labeled with the identification acronym and number of the corresponding 
paper document, see 49 CFR 1180.4(a)(2), and a copy of such diskette or 
compact disc should be provided to any other party upon request. The 
data contained on the diskettes or compact discs submitted to the Board 
may be submitted under seal (to the extent that the corresponding paper 
copies can be submitted under seal pursuant to the protective order 
previously entered in this proceeding), and will be for the exclusive 
use of the Board employees reviewing substantive and/or procedural 
matters in this proceeding. The flexibility provided by such computer 
data is necessary for efficient review of these materials by the Board 
and its staff.\5\
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    \4\ The results derived from electronic workpapers must be 
reproducible, i.e., all underlying data bases, computer programs 
(FORTRAN, COBOL, C++, etc.) and electronic spreadsheets must be 
submitted in evidence. Program flows and logic trails must also be 
included. Computer programs must be submitted in both source code 
and executable modules. Electronic spreadsheets must be executable 
and all cell inputs must be documented.
    \5\ The electronic submission requirements set forth in this 
decision supersede, for the purposes of this proceeding, the 
otherwise applicable electronic submission requirements set forth in 
our regulations. See 49 CFR 1104.3(a).

FOR FURTHER INFORMATION CONTACT: Julia M. Farr, (202) 565-1613. [TDD 
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for the hearing impaired: 1-800-877-8339.]

SUPPLEMENTARY INFORMATION: In their BN/CN-8 petition filed February 3, 
2000, applicants have proposed a procedural schedule to govern the 
course of the BNSF/CN proceeding. In their BN/CN-9 petition filed 
February 4, 2000, applicants have requested waiver or clarification of 
certain of the Board's 49 CFR part 1180 Railroad Consolidation 
Procedures, and of certain other regulations governing filings related 
to the primary application.\6\
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    \6\ The application that will seek authorization for the BNSF/CN 
transaction is referred to as the ``primary'' application. Any other 
application, petition, or notice that will be filed by the BNSF/CN 
applicants is referred to as a ``related'' application.
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Applicants' Proposed Procedural Schedule

    The procedural schedule proposed by applicants is as follows: \7\
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    \7\ The term ``F'' designates the date of filing of the 
application and ``F + n'' means ``n'' days following that date.
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F: Primary application (and any related applications) filed.
F+30: Board notice of acceptance of primary application (and any 
related applications) published in the Federal Register.
F+45: Notification of intent to participate in proceeding due. 
Description of anticipated inconsistent and responsive applications 
due; petitions for waiver or clarification due with respect to such 
applications.
F+120: Inconsistent and responsive applications due. All comments, 
protests, requests for conditions, and any other evidence and argument 
in opposition to the primary application (and any related applications) 
due. Comments by U.S. Department of Justice and U.S. Department of 
Transportation due.
F+140: Notice of acceptance (if required) of inconsistent and 
responsive applications published in the Federal Register.
F+205: Response to inconsistent and responsive applications due. 
Response to comments, protests, requests for conditions, and other 
opposition due. Rebuttal in support of primary application (and any 
related applications) due.
F+240: Rebuttal in support of inconsistent and responsive applications 
due.
F+270: Briefs due, all parties (not to exceed 60 pages for applicants 
and not to exceed 30 pages for others).
F+300: Oral argument (close of evidentiary record).
F+305: Voting conference (at Board's discretion).

[[Page 7611]]

F+365: Date of service of final decision.

    Applicants propose that we further provide: that, immediately upon 
each evidentiary filing, the filing party must 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 must make its witnesses available for discovery 
depositions; that access to documents subject to protective order will 
be appropriately restricted; that discovery relating to applications 
and other filings (including responsive and inconsistent applications), 
where permitted, will begin immediately upon their filing; and that the 
ALJ assigned to this matter will have the authority initially to 
resolve any discovery disputes.
    Applicants also propose that parties wishing to engage in discovery 
be directed to consult with the ALJ who will be designated to handle 
all discovery matters and to resolve initially all discovery disputes; 
and that the ALJ be given authority to adopt discovery guidelines 
(which, applicants indicate, they intend to seek) and to rule on 
discovery matters, but not to modify the procedural schedule. 
Applicants further propose that we require: that appeals of ALJ 
decisions must be filed within 3 working days of the date of a bench 
ruling, or, in its absence, the date of a written ruling; and that 
replies to appeals, and also replies to any motion filed with the Board 
itself in the first instance, must be filed within 3 working days of 
the date of filing of such appeal or motion.
    As respects environmental matters, applicants propose that they be 
allowed to develop, in consultation with the Board's Section of 
Environmental Analysis (SEA), a schedule for their environmental 
submissions, one element of which (applicants indicate) will be a 
Safety Integration Plan that will be prepared under the guidelines 
established by the Federal Railroad Administration (FRA). Applicants 
add that any party contemplating the filing of an inconsistent or 
responsive application should similarly be required to consult with SEA 
to confirm the schedule for its environmental filings, with the 
understanding that a responsive environmental report for any such 
application should be filed 20 days before such application (i.e., on 
Day F+100 in the schedule proposed by applicants), unless the 
responsive/inconsistent applicant can certify that the transaction 
proposed in its application does not require environmental 
documentation pursuant to 49 CFR 1105.6(c)(2).
    As further respects environmental matters, applicants indicate that 
their proposed schedule assumes that the final environmental assessment 
(EA) or environmental impact statement (EIS) will be available prior to 
oral argument (which applicants would schedule for Day F+300). 
Applicants add that, if more time should be needed to complete the EA 
or EIS, that need could be accommodated by an appropriate extension.

Petition for Waiver or Clarification.

    In their BN/CN-9 petition, applicants seek waiver or clarification 
of certain requirements of the Board's Railroad Consolidation 
Procedures, 49 CFR part 1180, subpart A, and of certain other 
regulations governing filings related to the BNSF/CN primary 
application. Applicants seek, in particular: (A) waiver or 
clarification to provide that the primary application is not required 
to include effects of the proposed transaction that would take place 
entirely outside the United States, and therefore may be limited to 
effects within, and on traffic to and from, the United States; (B) 
waiver or clarification of 49 CFR 1180.3(a) to exclude Grand Trunk 
Corporation, Illinois Central Corporation, CCP Holdings, Inc., and 
North American Railways, Inc. (NAR) from the definition of 
``applicant'; (C) waiver or clarification of 49 CFR 1180.3(b) to limit 
the definition of ``applicant carriers'' to those Board-regulated rail 
carriers in which either CN or BNSF now holds a majority interest, and, 
where the Board's rules require the submission of information or data 
pertaining to ``applicant carriers,'' waiver or clarification to permit 
applicants to submit, as appropriate, information or data pertaining to 
CNR and BNSFC, or CNR and BNSFR, as appropriate, and their respective 
majority-owned subsidiaries on a consolidated basis; (D) waiver or 
clarification of 49 CFR 1180.6(a)(2)(v) to permit applicants to submit 
employee impact data using the classifications and format described in 
Appendices A and B to the BN/CN-9 petition; (E) waiver or clarification 
of 49 CFR 1180.6(b)(1), (2), and (4) to permit applicants to file only 
(a) the most recent Securities and Exchange Commission (SEC) Form 40-F 
for CNR and the most recent Form 10-Ks for BNSFC and BNSFR, (b) the 
joint BNSFC/CNR proxy statement/circular/prospectus included in Forms 
F-4 and S-4 filed by CNR and NAR in connection with the contemplated 
issuance of shares of CNR voting stock and shares of NAR common stock 
at the closing of the BNSF/CN control transaction, and (c) the most 
recent annual reports to shareholders of CNR and BNSFC; (F) waiver or 
clarification of 49 CFR 1180.6(b)(3), (6), and (8), relating to matters 
of corporate structure and intercorporate relationships, to permit 
applicants to exclude certain data that (applicants claim) is not 
relevant to a thorough evaluation of the BNSF/CN primary application; 
(G) waiver of 49 CFR 1105.10(a) and 1150.1(b) to provide that 
applicants may advise SEA, by no later than 30 days before the filing 
of the BNSF/CN primary application, of any control-related construction 
projects that will be the subject of applications for approval, 
petitions for exemption, or notices of exemption related to the primary 
application; and (H) certain assertedly related relief to permit the 
filing of any directly-related abandonment applications (or notices of, 
or petitions for, exemption) together with the primary application and 
the processing of any such abandonment applications on the same 
schedule as the control proceeding, as well as the waiver or 
clarification of certain abandonment regulations pursuant to 49 CFR 
1152.24(e)(5).

Request for Comments

    We invite all interested persons to submit written comments on 
applicants' proposed procedural schedule by March 1, 2000. In addition, 
interested persons who wish to comment on applicants' petition for 
waivers and clarifications will be permitted to do so by the same March 
1, 2000 deadline. \8\ Interested parties have already raised some 
concerns about filing requirements for this transaction, and in the 
interest of docket management, comments on these matters will be 
permitted so long as they are filed by March 1, 2000. Applicants' reply 
to any filings made by March 1 will be due by March 6, 2000.
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    \8\ Our permitting comments with respect to the waivers and 
clarifications sought by applicants supersedes the otherwise 
applicable provisions of 49 CFR 1180.4(f)(3) (which provides that, 
in general, replies to a petition for waiver are not permitted). We 
are superseding that regulation in view of the uniqueness of some of 
the issues raised by the proposed BNSF/CN transaction. We have 
entertained replies to petitions for waiver or clarification in rail 
consolidation proceedings where the circumstances warranted. See CSX 
Corporation and CSX Transportation, Inc., Norfolk Southern 
Corporation and Norfolk Southern Railway Company--Control and 
Operating Leases/Agreements--Conrail Inc. and Consolidated Rail 
Corporation, STB Finance Docket No. 33388, Decision No. 7, slip op. 
at 8-9 and 9 n.22 (STB served May 30, 1997).
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    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    Decided: February 9, 2000.


[[Page 7612]]


    By the Board, Chairman Morgan, Vice Chairman Burkes, and 
Commissioner Clyburn.
Vernon A. Williams,
Secretary.
[FR Doc. 00-3527 Filed 2-14-00; 8:45 am]
BILLING CODE 4915-00-P