Federal Register / Vol. 60, No. 46 / Thursday, March 9, 1995 / Notices 12973

[Finance Docket No. 32549] SUPPLEMENTARY INFORMATION: On proceeding, served February 3, 1995, we October 13, 1994, an application was requested public comments on the Burlington Northern Inc. and filed for approval of BNI’s acquisition applicants’ proposal to revise the Burlington Northern Railroad of, control of, and merger with SFP, the procedural schedule to provide for the CompanyÐControl and MergerÐSanta resulting common control of Burlington service of a final decision no later than Fe Pacific Corporation and The Northern Railroad Company (BN) and 165 days from the date the Commission Atchison, Topeka and Santa Fe The Atchison, Topeka and Santa Fe publishes its decision restarting the Railway Company Railway Company (Santa Fe) by the schedule for processing the proceeding. merged company, the consolidation of Additionally, we requested public AGENCY: Interstate Commerce comments on proposed page limitations Commission. BN and Santa Fe railroad operations, and the merger of BN and Santa Fe. on certain filings, on whether a ACTION: Decision No. 10; notice of Applicants also seek exemption from preliminary scoping order should be issuance of new procedural schedule. regulation for the merged holding issued, and on the feasibility of meeting company and merged railroad to control all environmental review requirements SUMMARY: The Commission is issuing a The Wichita Union Terminal Railway within the proposed compressed new procedural schedule, which Company [Finance Docket No. 32549 schedule. Public comments on these follows the Santa Fe Pacific Corporation (Sub-No. 1)] and for 11 construction issues were due on February 21, 1995. (SFP) shareholders’ and Burlington projects related to the primary Over 170 public comments were Northern Inc. (BNI) shareholders’ vote application [Finance Docket No. 32549 received in response to Decision No. 9. on February 7, 1995, to approve the (Sub-No. 2 through Sub-No. 12)]. We The vast majority of these comments proposed BNI/SFP merger. This accepted the application in our Decision were from shippers; however, comments schedule will provide for issuance of a No. 5, served and published in the were also filed by several Members of final decision no later than August 23, Federal Register (59 FR 56089) on Congress, government parties, railroads, 1995. The Commission also is setting a November 10, 1994, and we set certain electric utilities, other shipper interests, 50-page limitation for briefs, which filing dates under the procedural and rail labor unions. In addition, the must be filed in accordance with the schedule previously adopted in our applicants responded to Decision No. 9. requirements at 49 CFR 1104.2. In Decision No. 4, served October 5, 1994.1 Approximately 55 commenters addition, the Commission is requiring In Decision No. 7, served December 5, specifically supported the applicants’ that a Preliminary Draft Environmental 1994, we granted the requests of several proposed 165-day procedural schedule. Assessment (PDEA) be submitted, where parties and postponed the procedural There were a number of statements in applicable, with each inconsistent and schedule set forth in Decision Nos. 4 support of a 180-day schedule as responsive application. and 5 pending the outcome of an SFP proposed by the Commission in New EFFECTIVE DATE: The effective date of shareholder vote. In Decision No. 7, we Procedures in Rail Acquisitions, this decision is March 9, 1995. All stated that upon approval of the Mergers and Consolidations, Ex Parte comments, protests, requests for proposed BNI/SFP merger by the No. 282 (Sub-No. 19) (ICC served Jan. conditions, and any other opposition shareholders, we would immediately 26, 1995), and several parties suggested evidence and argument are due on May issue a new schedule.2 On February 7, alternative 180-day schedules. Over 25 10, 1995. For further information, see 1995, the shareholders approved the shippers approved an expedited merger the attached procedural schedule. proposed BNI/SFP merger. process, but suggested no time limits. By petition filed January 27, 1995, By contrast, approximately 65 ADDRESSES: An original and 20 copies of commenters stated their opposition to all documents must refer to Finance BNI, BN, SFP, and Santa Fe requested that we adopt a modified, expedited the proposed 165-day schedule, Docket No. 32549 and be sent to the procedural schedule which tracks the although not all of these entities Office of the Secretary, Case Control schedule proposed by the Commission specifically objected to the total time of Branch, Attn: Finance Docket No. for public comment in Ex Parte No. 282 165 days; rather, some were more 32549, Interstate Commerce (Sub-No. 19).3 In Decision No. 9 in this concerned with having only 30 days to Commission, 1201 Constitution Ave., comment on the application. Many of N.W., Washington, DC 20423. Parties 1 SP contends that the Supplemental Materials the opposing commenters asked the are encouraged also to submit all filed by applicants on February 17, 1995 (BN/SF– Commission to lengthen the review pleadings and attachments on a 3.5-inch 25) contain certain deficient information about the process to at least 9 months. diskette in WordPerfect 5.1 format. additional debt that applicants will incur in order to consummate their tender offers for SFP common We have determined after review of In addition, one copy of all stock. SP’s concern relates to form rather than all the comments that a 165-day documents in this proceeding must be substance. Adequate information about this procedural schedule will allow us time sent to Administrative Law Judge financing and its possible effects on applicants’ pro to consider fully all of the issues in this Stephen L. Grossman, Federal Energy forma projections of merged operations is ascertainable from information contained in the proceeding and to ensure that all parties Regulatory Commission, Office of application filed October 13, 1994, and in the are accorded due process.4 We will Hearings, 825 North Capitol Street, N.E., Supplemental Materials, primarily the agree, however, to giving additional Supplemental Verified Statement of Thomas N. Washington, DC 20426 and to each of time to interested parties, including the applicants’ representatives: (1) Betty Jo Hund and Don S. Snyder and the Amendments to SEC Form S–4, filed by BNI and BNSF Corporation. Christian, Esq., Steptoe & Johnson, 1330 2 In Decision No. 7, we stated that the new processing applications for major and significant Connecticut Avenue, N.W., Washington, schedule would require comments to be filed 30 rail combinations. We also served a copy of the DC 20036–1795; and (2) Erika Z. Jones, days later and adjust other schedule dates notice on all parties on the service list in this Esq., Mayer, Brown & Platt, 2000 accordingly. As explained later in this decision, merger proceeding and asked for comments on comments will not be due until 62 days from the whether this case should be governed by the Pennsylvania Avenue, N.W., Suite 6500, date of publication of this decision. schedule originally adopted or the schedule Washington, DC 20006. 3 In New Procedures in Rail Acquisitions, proposed in Ex Parte No. 282 (Sub-No. 19). FOR FURTHER INFORMATION CONTACT: Julia Mergers and Consolidations, Ex Parte No. 282 (Sub- 4 Technically, Appendix A to this decision No. 19) (ICC served Jan. 26, 1995 and published at envisions a 167-day procedural schedule. We found Farr or Dugie Standeford, (202) 927– 60 FR 5890, January 31, 1995), we requested it necessary to add two additional days to the 7513. (TDD for hearing impaired: (202) comments, due March 2, 1995, on our proposed schedule so that no date on the schedule would fall 927–5721.) establishment of more timely procedures for on a Saturday, a Sunday, or a legal holiday. 12974 Federal Register / Vol. 60, No. 46 / Thursday, March 9, 1995 / Notices

Department of Justice (DOJ) and the 1105.6(b)(4) which would form the basis Company—Control—Chicago And Department of Transportation (DOT), in of a subsequent environmental North Western Transportation Company which to file written comments and assessment (or environmental impact And Chicago And North Western protests on the primary application statement, if warranted). Here, because Railway Company, Finance Docket No. (including any comments in opposition of the accelerated time frames, a PDEA 32133, Decision No. 17, at 9 (ICC served to the primary application), as well as is necessary at the outset. July 11, 1994) (applying the ‘‘stringent requested conditions. These filings will The preparation of a PDEA should not standard’’ of 49 CFR 1115.1(c) to an be due 62 days after publication of this be burdensome. Although the appeal of an interlocutory decision notice, which is the same date that information would be presented in a issued by former Chief Administrative inconsistent and responsive somewhat different format, the PDEA Law Judge Paul S. Cross).5 applications are due. All descriptions of should address essentially the same This action will not significantly anticipated inconsistent or responsive environmental issues that would have affect either the quality of the human applications, as well as petitions for been covered by an environmental environment or the conservation of waiver or clarification, will be due 32 report. The PDEA, like the energy resources. days after publication of this notice. environmental report, should be based Decided: March 3, 1995. There were a few comments on the on consultations with the Section of By the Commission, Chairman McDonald, proposed page limitations. Most Environmental Analysis (SEA) and the Vice Chairman Morgan, and Commissioners commenters were generally opposed, various agencies set forth in 49 CFR Simmons and Owen. but were willing to accept some page 1105.7(b). SEA will be available to Vernon A. Williams, limitations on briefs. To facilitate provide assistance as needed. meeting the expedited deadline set out SEA will use the PDEA to expedite Secretary. in this notice, the Commission will limit the environmental review process. If a Appendix A—Final Procedural briefs to 50 pages, but will impose no PDEA is not submitted or is insufficient, Schedule we will not process the inconsistent or page limitations on evidentiary April 10, 1995—Description of responsive application. submissions. Briefs must be filed in anticipated inconsistent and If an inconsistent or responsive accordance with the requirements at 49 responsive applications due; petitions CFR 1104.2. Because reply briefs appear application does not involve significant operational changes or an action such as for waiver or clarification due. to be unnecessary to complete our May 10, 1995—Inconsistent and an abandonment or construction, it review of a merger, we do not anticipate responsive applications due. All generally is exempt from environmental granting any requests to file reply briefs. comments, protests, requests for review. The applicant must certify, Based on the lack of response to our conditions, and any other opposition however, that the proposal meets the proposed preliminary scoping order, we evidence and argument due. DOJ and exemption criteria under 49 CFR do not anticipate issuing such an order DOT comments due. 1105.6(c)(2). at this time. However, in pursuing May 25, 1995—Notice of acceptance (if discovery and in preparing pleadings, Anyone desiring to file an inconsistent application or responsive required) of inconsistent and we encourage the parties (and will responsive applications published in instruct the Administrative Law Judge) application should consult with SEA as early as possible regarding the the Federal Register. to focus strictly on relevant issues, as June 9, 1995—Response to inconsistent appropriate environmental identified by the applicable statutory and responsive applications due. standards and our control regulations, documentation. If the parties wish to engage in any Response to comments, protests, including our merger policy statement requested conditions, and other (49 CFR 1180.1). For example, discovery or establish any discovery guidelines (see, e.g., the proposed opposition due. Rebuttal in support of arguments that the transaction will primary application due. cause competitive harm should be discovery guidelines in BN/SF–24; see also the proposed discovery guidelines June 19, 1995—Rebuttal in support of accompanied by a clear statement of inconsistent and responsive how rates will be raised, service in KCS–3, Ex. D, pp. 4–7), they are directed to consult with Stephen L. applications due. degraded, or both, in some identifiable June 29, 1995—Briefs due, all parties Grossman, Administrative Law Judge. market. Responses countering such (not to exceed 50 pages). competitive arguments should explain Judge Grossman is authorized to July 14, 1995—Oral argument (at clearly why those adverse impacts will convene a discovery conference, if Commission’s discretion). not occur. necessary and as appropriate, in July 24, 1995—Voting Conference (at In order for us to fulfill our Washington, DC, and to establish such Commission’s discretion). responsibilities under the National discovery guidelines, if any, as he August 23, 1995—Date for service of Environmental Policy Act and other deems appropriate. However, Judge final decision. environmental laws, inconsistent Grossman is not authorized to make adjustments to, or to modify, the dates Notes: Immediately upon each evidentiary applications and responsive filing, the filing party will place all applications must contain certain in the procedural schedule. We believe documents relevant to the filing (other than environmental information. Anyone the schedule as adopted allows documents that are privileged or otherwise desiring to file an inconsistent or a sufficient time for meaningful responsive application involving discovery. Any interlocutory appeal to a 5 For the purposes of the present proceeding, we significant operational changes or an decision issued by Judge Grossman will think it appropriate to tighten the deadlines action such as a rail line abandonment be governed by the stringent standard of provided by 49 CFR 1115.1(c). Accordingly, the provisions of the second sentence of 49 CFR or construction under 49 CFR 49 CFR 1115.1(c): ‘‘Such appeals are not 1115.1(c) to the contrary notwithstanding, any 1105.6(b)(4) of our environmental rules favored; they will be granted only in appeal to a decision issued by Judge Grossman must must include, with its application, a exceptional circumstances to correct a be filed within 3 working days of the service date preliminary draft environmental clear error of judgment or to prevent of his decision, and any response to any such appeal must be filed within 3 working days assessment (PDEA). Generally, these manifest injustice.’’ See Union Pacific thereafter. Likewise, any reply to any procedural types of actions require an Corporation, Union Pacific Railroad motion filed with the Commission itself in the first environmental report under 49 CFR Company And Missouri Pacific Railroad instance must also be filed within 3 working days. Federal Register / Vol. 60, No. 46 / Thursday, March 9, 1995 / Notices 12975 protected from discovery) in a depository daily service once NNRC’s connecting 146.152), a total distance of 18.152 open to all parties, and will make its line is constructed.1 miles. The line will connect at each end witnesses available for discovery depositions. The Commission’s Section of with another line operated by NNRC. Access to documents subject to protective Environmental Analysis (SEA), order will be appropriately restricted. Parties NNRC planned to begin operation seeking discovery depositions may proceed reviewed the proposed start up during January 1995. Operations consist by agreement. Relevant excerpts of operations that are the subject of the of moving about one train per week over transcripts will be received in lieu of cross- modified certificate. Specifically, by the line in each direction. Operations examination, unless cross-examination is letter dated January 13, 1995, NNRC will increase to daily service once needed to resolve material issues of disputed sought clarification under 49 CFR NNRC’s connecting line is constructed.1 fact. Discovery on responsive and 1105.6(d) that the start up operations inconsistent applications will begin Prior to the City of Ely acquiring the under the modified certificate do not line, the line was owned and operated immediately upon their filing. The require environmental review. NNRC Administrative Law Judge assigned to this by Nevada Northern Railway Company, proceeding will have the authority initially to provided supporting data concerning a subsidiary of Kennecott Copper resolve any discovery disputes. commodities and the nature of the Corporation. In Nevada Northern [FR Doc. 95–5799 Filed 3–8–95; 8:45 am] proposed operations. By letter dated Railway Company—Abandonment January 27, 1995, based on the BILLING CODE 7035±01±P Exemption in White (Pine) County, NV, information available at that time, SEA Docket No. AB–285X (ICC served July 6, notified NNRC that the modified 1987), the Commission authorized [Finance Docket No. 32624] certificate operations had independent Nevada Northern Railway Company to utility and that no environmental abandon the line. Since that time, the Northern Nevada Railroad review would be required to transport line has been operated for the City of CorporationÐModified Rail the commodities NNRC had identified. Ely by the White Pine Historical CertificateÐBetween Cobre and McGill Accordingly, this modified certificate is Railroad Foundation (WPHRR). WPHRR Junction, NV issued only as to those identified has entered into an operating agreement commodities and, under the certificate, On December 2, 1994, Northern with NNRC. NNRC may conduct those operations Nevada Railroad Corporation (NNRC), The Commission’s Section of filed a notice for a modified certificate prior to completion of the construction exemption proceedings in Finance Environmental Analysis (SEA), of public convenience and necessity reviewed the proposed start up under 49 CFR part 1150, subpart C— Docket No. 32476. The Commission will serve a copy of operations that are the subject of this Modified Certificate of Public modified certificate. Specifically, by Convenience and Necessity, to operate this notice on the Association of American Railroads (Car Service letter dated January 13, 1995, NNRC over a line of railroad owned by the sought clarification under 49 CFR Department of Water and Power of the Division), as agent of all railroads 1105.6(d) that the start up operations City of Los Angeles (Los Angeles) subscribing to the car-service and car- under the modified certificate do not between Cobre, Elko County NV hire agreement, 50 F Street NW., require environmental review. NNRC (milepost 0.0) and McGill Junction, Washington, DC 20001, and on the provided supporting data concerning White Pine County, NV (milepost American Short Line Railroad commodities and the nature of the 128.0), a total distance of 128.0 miles. Association, 1120 G Street NW., Suite Prior to Los Angeles acquiring the 520, Washington, DC 20005. proposed operations. By letter dated line, the line was formerly owned and Decided: March 1, 1995. January 27, 1995, based on the information available at that time, SEA operated by Nevada Northern Railway By the Commission, David M. Konschnik, Company. Department of Water and Director, Office of Proceedings. notified NNRC that the modified Power of the City of Los Angeles— Vernon A. Williams, certificate operations had independent utility and that no environmental Acquisition and Operation Exemption— Secretary. The Nevada Northern Railway review would be required to transport [FR Doc. 95–5797 Filed 3–8–95; 8:45 am] the commodities NNRC had identified. Company, Finance Docket No. 31030 BILLING CODE 7035±01±P (ICC served June 8, 1987). Subsequently, Accordingly, this modified certificate is in Los Angeles Department of Water and issued only as to those identified Power D/B/A Nevada Northern Railway [Finance Docket No. 32623] commodities, and, under the certificate, Company—Abandonment Exemption— NNRC may conduct those operations Line in Nevada, Docket No. AB–285 Northern Nevada Railroad prior to completion of the construction (Sub-No. 1X) (ICC served Oct. 3, 1988), CorporationÐModified Rail exemption proceedings in Finance the line was authorized to be CertificateÐBetween McGill Junction Docket No. 32476. abandoned. and Keystone, NV The Commission will serve a copy of NNRC’s notice indicates that the line On December 2, 1994, Northern this notice on the Association of will connect with the Southern Pacific Nevada Railroad Corporation (NNRC), American Railroads (Car Service Transportation Company at Cobre filed a notice for a modified certificate Division), as agent of all railroads (milepost 0.0); with the Union Pacific of public convenience and necessity subscribing to the car-service and car- Railroad Company at Shafter, NV under 49 CFR part 1150, subpart C— hire agreement, 50 F Street NW., (milepost 18.8); and with NNRC at Modified Certificate of Public Washington, DC 20001, and on the McGill Junction (milepost 128.0). Los Convenience and Necessity, to operate a American Short Line Railroad Angeles has entered into an operating line of railroad owned by the City of Ely Association, 1120 G Street NW., Suite agreement with NNRC which planned to between McGill Junction, NV, (milepost 520, Washington, DC 20005. begin operation during January 1995. 128.0) and Keystone, NV, (milepost Decided: March 1, 1995. Operations consist of moving about one train per week over the line in each 1 Northern Nevada Railroad Corporation— 1 Northern Nevada Railroad Corporation— direction. Operations will increase to Construction and Operation Exemption—White Construction and Operation Exemption—White Pine County, NV, Finance Docket No. 32476 (ICC Pine County, NV, Finance Docket No. 32476 (ICC served Feb. 24, 1995). served Feb. 24, 1995).