[Federal Register Volume 77, Number 198 (Friday, October 12, 2012)]
[Notices]
[Pages 62311-62312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25118]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Docket No. FD 35506]


Western Coal Traffic League--Petition for Declaratory Order

AGENCY: Surface Transportation Board, DOT.

ACTION: Notice of request for comments.

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SUMMARY: The Surface Transportation Board seeks comments from the 
public addressing the recent discovery that Berkshire Hathaway Inc. 
(Berkshire), owned or controlled CBEC Railway (CBEC) and White City 
Terminal Union Railway (WCTU) when it acquired BNSF Railway Company 
(BNSF) in February 2010, thus subjecting Berkshire's acquisition of 
BNSF to the Board's jurisdiction pursuant to 49 U.S.C. 11323. 
Specifically, the Board seeks comments addressing the effect, if any, 
of this discovery on the post-February 2010 valuation of BNSF's asset 
base.

DATES: Comments are due by November 8, 2012. Replies are due by 
November 28, 2012.

ADDRESSES: Comments and replies may be submitted either via the Board's 
e-filing format or in traditional paper format. Any person using e-
filing should attach a document and otherwise comply with the 
instructions at the E-FILING link on the Board's Web site at http://www.stb.dot.gov. Any person submitting a filing in the traditional 
paper format should send an original and 10 copies referring to Docket 
No. FD 35506 to: Surface Transportation Board, 395 E Street SW., 
Washington, DC 20423-0001.

FOR FURTHER INFORMATION CONTACT: Valerie Quinn, (202) 245-0382. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION: By a letter dated September 13, 2012, in 
response to an inquiry from the Board, Berkshire stated that it owned 
or controlled CBEC and WCTU at the time of Berkshire's acquisition of 
BNSF in February 2010,\1\ thus subjecting this transaction to the 
Board's jurisdiction pursuant to 49 U.S.C. 11323. Berkshire also 
acknowledged that the 2008 purchase of its initial 60% ownership stake 
in the Marmon Group, which holds WCTU through one of its subsidiaries, 
was likely subject to Board jurisdiction. In its letter, Berkshire 
stated that it intends to fully comply with the requirements of Sec.  
11323 by divesting itself of CBEC and WCTU.
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    \1\ On February 12, 2010, Berkshire purchased the common stock 
of BNSF's parent company that Berkshire did not already own in a 
transaction valued at $34.5 million in cash and Berkshire stock (the 
Purchase Price). See Burlington Northern Santa Fe Corporation, 
Schedule 13D (Amendment No. 4 to Schedule 13D), at 6 (Feb. 16, 
2010), available at http://www.sec.gov/Archives/edgar/data/934612/000119312510032484/dsc13da.htm. The Purchase Price reflected a 
premium of approximately $22 billion over the net book value of the 
pre-acquisition BNSF, which was approximately $13 billion. Out of 
the $22 billion, BNSF stated in its 2010 STB Form R-1 annual report 
that it increased the cost of its tangible assets by approximately 
$8.1 billion to reflect their fair market value, and allocated $14 
billion to goodwill.
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    The Board responded to Berkshire in a letter dated September 18, 
2012, stating that Berkshire is not permitted to own or control 
multiple carriers without Board authorization, and that according to 
the facts it disclosed, Berkshire failed to comply with the 
requirements of Sec.  11323 when it acquired BNSF, and when it first 
obtained control over both the CBEC and WCTU.\2\ The Board directed 
Berkshire to submit within 10 days a letter specifying the method and 
timing by which it proposed to remedy its failure to comply with Sec.  
11323, and further stated that the Board would, at that time, consider 
whether further action is warranted.
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    \2\ An entity that is not a rail carrier must obtain prior Board 
approval to acquire a railroad line through an asset purchase. See 
49 U.S.C. 10901(a)(4). But the acquisition by a non-railroad of a 
controlling stock interest in a company that owns a railroad line 
does not trigger Sec.  10901(a)(4). Prior Board approval of the 
acquisition of a controlling interest in the stock of a rail carrier 
is only required where the purchaser already controls a rail 
carrier. See 49 U.S.C. 11323.
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    By letter dated September 25, 2012,\3\ Berkshire responded to the 
Board, stating that it fully intends to complete the divestiture of 
both WCTU and CBEC to persons that are neither rail carriers, as 
defined by 49 U.S.C. 10102(5), nor owners of other rail carriers, so 
that neither divestiture would be subject to Board jurisdiction, 
pursuant to Sec.  11323, no later than December 31, 2012. Berkshire 
stated that it and its subsidiaries are currently in the process of 
valuing both rail carriers and contacting potential transferees. 
Berkshire proposed to update the Board on the progress of these 
divestitures on November 1, 2012 and December 1, 2012. The Board 
replied to Berkshire by letter on October 9, 2012, stating that prompt 
divestiture is an appropriate remedy under Board precedent, and 
directing Berkshire to submit written progress reports on November 1, 
2012

[[Page 62312]]

and December 1, 2012, detailing the status of the divestitures. In the 
same letter, the Board also stated that should any developments or 
change in circumstances at any other time that affect the course of 
divestiture arise, Berkshire should bring them to the Board's attention 
immediately.
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    \3\ The September 13, 2012 and September 25, 2012 Berkshire 
letters, as well as the Board's September 18, 2012 and October 9, 
2012 responses, have been added to this docket.
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    On September 28, 2011, the Board opened this proceeding to address 
the May 2, 2011 petition of the Western Coal Traffic League (WCTL), 
where WCTL asked the Board to issue an order declaring that the Board 
will adjust the Uniform Railroad Costing System (URCS) costs of BNSF 
for calendar year 2010 and subsequent years. In particular, WCTL asked 
the Board to declare that it will exclude the write-up in BNSF's net 
investment base attributable to the difference between the BNSF's book 
value and the price that Berkshire paid to acquire BNSF in 2010, and to 
make corresponding changes in BNSF's annual URCS depreciation 
calculations. WCTL argued that the inclusion of the write-up could have 
an impact in rate cases, the determination of BNSF's revenue adequacy, 
and other matters. On March 22, 2012, the Board held a public hearing 
to explore the arguments raised by WCTL, BNSF, and other parties to the 
proceeding.
    The Board now seeks comments from the public on the effect, if any, 
of Berkshire's non-compliance with Sec.  11323 upon this proceeding. 
Berkshire's 2010 acquisition of BNSF was and remains subject to the 
Board's jurisdiction pursuant to Sec.  11323, but Berkshire will not 
come into compliance until December 31, 2012 (by its estimates). The 
Board seeks comments on the effect, if any, of Berkshire's non-
compliance with Sec.  11323 on the legal and accounting principles that 
govern acquisition premiums within rail mergers, here the post-February 
2010 valuation of BNSF's asset base.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. Comments are due by November 8, 2012.
    2. Replies are due by November 28, 2012.
    3. This decision is effective on its service date.

    Decided: October 9, 2012.

    By the Board, Rachel D. Campbell, Director, Office of 
Proceedings.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2012-25118 Filed 10-11-12; 8:45 am]
BILLING CODE 4915-01-P