Company Name: Burlington Northern Santa Fe Corp.
Public Availability Date: February 20, 2008

Document Sections:

INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
APPENDIX
STAFF REPLY LETTER

[INQUIRY LETTER]

February 19, 2008

Burlington Northern Santa Fe Corporation - Shareholder Proposal Submitted by the International Brotherhood of Teamsters' General Fund

Ladies and Gentlemen:

This letter is submitted on behalf of Burlington Northern Santa Fe Corporation ("BNSF") to inform the Staff that BNSF hereby formally withdraws its motion for reconsideration, dated January 25, 2008. BNSF is withdrawing its motion for reconsideration in accord with the International Brotherhood of Teamsters General Fund's (the "Proponent") decision to withdraw the proposal it submitted for inclusion in BNSF's 2008 proxy statement and other proxy materials. A letter from the Proponent stating that it has withdrawn the proposal it submitted to BNSF is enclosed.

If the Staff has any questions with respect to the foregoing, please contact me at (212) 474-1131.

Very truly yours,

/s/

William V. Fogg
Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street, N.E.
Washington, D.C. 20549

Encl.

EMAIL

[INQUIRY LETTER]

January 25, 2008

Burlington Northern Santa Fe Corporation - Shareholder Proposal Submitted by the International Brotherhood of Teamsters' General Fund

Ladies and Gentlemen:

This letter is submitted on behalf of Burlington Northern Santa Fe Corporation ("BNSF" or the "Company") in response to a letter dated December 27, 2007, that BNSF received from the Division of Corporation Finance, in which the Staff denied BNSF's request for no action with respect to a shareholder proposal submitted to BNSF by the International Brotherhood of Teamsters' General Fund (the "Proponent") for inclusion in BNSF's 2008 proxy statement and other proxy materials (the "2008 Proxy Materials"). In a letter dated November 19, 2007 (the "No-Action Request"), BNSF submitted a request to the Staff for a no-action letter on the ground that the Proponent's proposal (the "Proposal") was excludable under Rule 14a-8(i)(7) and Rule 14a-8(i)(3) under the Securities Exchange Act of 1934 (the "Exchange Act"). The Proponent subsequently submitted a letter to the Staff dated December 7, 2007 (the "Proponent's Response"), addressing the No-Action Request. In response to such letter, BNSF submitted a letter to the Staff dated December 19, 2007 ("BNSF's Response"). The Proponent's Proposal is attached as Exhibit A, the No-Action Request is attached as Exhibit B, the Proponent's Response is attached as Exhibit C, and BNSF's Response is attached as Exhibit D.

BNSF hereby respectfully requests that the Staff reconsider the position taken in its letter dated December 27, 2007. In support of such request, we have identified additional arguments and lines of analysis that were not addressed by the No-Action Request or BNSF's Response. Based on such analysis, we urge the Staff to confirm that it will not recommend any enforcement action to the Commission if, in reliance on certain provisions of Commission Rule 14a-8 under the Exchange Act, BNSF excludes the Proposal from its 2008 Proxy Materials.

In accordance with Rule 14a-8(j), we are filing six copies of this letter and the Exhibits. We are simultaneously forwarding a copy of this letter via overnight courier, with copies of all enclosures, to the Proponent as additional notice of the Company's intention to exclude the Proposal from the Company's 2008 Proxy Materials.

The Proposal states:

Resolved: That the shareholders of Burlington Northern Santa Fe Corporation ("BNSF" or "Company") hereby request that the Board of Directors make available, omitting proprietary information and at reasonable cost, in BNSF's annual proxy statement, by the 2009 annual meeting, information relevant to the Company's efforts to safeguard the security of their operations arising from a terrorist attack and/or other homeland security incidents.

We believe that the Proposal may be properly omitted from BNSF's 2008 proxy materials pursuant to Rule 14a-8 for the reasons set forth below.

BASES FOR EXCLUSION

I. BNSF may exclude the Proposal in reliance on Rule 14a-8(i)(2) because the Proposal, if implemented, would cause BNSF to violate federal law.

A shareholder proposal may be properly excluded under Rule 14a-8(i)(2) "if the proposal would, if implemented, cause the company to violate any state, federal or foreign law to which it is subject." In this case, the Proposal makes a very broad request for information, specifically "information relevant to the Company's efforts to safeguard the security of [its] operations arising from a terrorist attack and/or other homeland security incidents." The information in BNSF's possession that meets this request, however, has been deemed "Sensitive Security Information," the disclosure of which would violate a variety of federal regulations and statutes to which BNSF is subject. Therefore, implementation of the proposal would force BNSF to violate federal law.

A. Compliance with the Proposal would require BNSF to violate federal regulations pertaining to Sensitive Security Information.

In the wake of the September 11, 2001 terrorist attacks on New York and Washington, the United States Congress took a variety of actions to prevent a similar tragedy. Pursuant to the Aviation and Transportation Security Act, Congress established the Transportation Security Administration (the "TSA") as an "administration of the Department of Transportation" ("DOT"). 49 U.S.C. 114(a). The TSA was subsequently given the authority to "prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security ... [if it] decides that disclosing the information would ... be detrimental to the security of transportation." 49 U.S.C. 114(s).

1. The TSA has authority to classify information as Sensitive Security Information, and it has confirmed that BNSF's security plan is Sensitive Security Information

Using the authority granted to it by Congress, the TSA enacted a set of federal regulations that pertain to the protection and non-disclosure of certain information that the TSA has "determined to be Sensitive Security Information" ("SSI"). 49 C.F.R. 1520.1. Under these regulations, SSI is defined as "information obtained or developed in the conduct of security activities, including research and development, the disclosure of which TSA has determined would ... [b]e detrimental to the security of transportation." 49 C.F.R. 1520.5(a). The regulation goes on to specify that SSI includes "[a]ny security program or security contingency plan issued, established, required, received, or approved by DOT or [the Department of Homeland Security ("DHS")]." 49 C.F.R. 1520.5(b)(1). After listing a number of other categories of SSI, the regulations further provide that "[a]ny information not otherwise described in [49 C.F.R. 1520.5] that TSA determines is SSI" will qualify as SSI for the purposes of these regulations. See 49 C.F.R. 1520.5(b)(16). This subsection, therefore, gives the TSA broad discretion to classify information as SSI. The TSA in turn has developed detailed procedures for determining whether specific information and types of information are SSI, and it has communicated these protocols and internal policies to its staff members and other parties (including private parties) through a variety of sources. For example, these procedures are outlined in the Department of Homeland Security's Management Directive Number 11056 (12/16/2005) and also in a report from the United States Government Accountability Office titled "Transportation Security Administration's Processes for Designating and Releasing Sensitive Security Information." These documents are attached to this letter as Exhibits E and F respectively. These internal policies demonstrate that only specially-trained TSA employees are entrusted with the responsibility of designating information as SSI, and that a great deal of time and energy goes into each such designation. The TSA does not make such classifications haphazardly or hastily, and when information does receive the SSI classification there is a bona fide justification for that determination: specifically, if such information were to be broadly disseminated, it would significantly compromise transportation security.

In the years since the TSA implemented this system for classifying certain information as SSI, BNSF has had many discussions and other communications with the TSA regarding the secrecy of its overall Security Management Plan. For example, a letter confirming the TSA's review of this plan is attached as Exhibit G. As confirmed by the last paragraph on page 1 of the TSA's letter, the TSA has designated information relating to BNSF's Security Management Plan, which by its very nature includes "information relevant to the Company's efforts to safeguard the security of [its] operations arising from a terrorist attack and/or other homeland security incidents," as SSI. Put differently, the TSA has confirmed that disclosure of this information would compromise the security of the railroad industry. Also, pursuant to the guidelines set forth in the letter from the TSA, other materials that BNSF has submitted to the TSA have been stamped with a label that includes "SENSITIVE SECURITY INFORMATION/FOR OFFICIAL USE ONLY." Accordingly, BNSF is required by law to protect this SSI pursuant to the strictures of the TSA regulations. Even without a specific SSI determination by TSA, certain categories of information are identified by regulation as SSI, and BNSF would be prohibited from disclosing SSI, including but not limited to security plans and procedures, contingency plans, and vulnerability assessments.

2. Disclosure of SSI is specifically prohibited by federal law

In furtherance of the Congressional goals of protecting the country from terrorist attacks and homeland security incidents, the relevant TSA regulations safeguard SSI by prohibiting persons or entities with access to SSI (such as BNSF) from making any unauthorized disclosure of such information. Specifically, the regulations provide that SSI may only be disclosed to persons "who have a need to know" the contents of the SSI. 49 C.F.R. 1520.9(a)(2) (emphasis added). The regulations go on to detail exactly when somebody has a "need to know" certain SSI. According to the regulations, a person who is not a federal employee only has a "need to know" the information under the following circumstances:

(1) When the person requires access to specific SSI to carry out transportation security activities approved, accepted, funded, recommended, or directed by DHS or DOT.

(2) When the person is in training to carry out transportation security activities approved, accepted, funded, recommended, or directed by DHS or DOT.

(3) When the information is necessary for the person to supervise or otherwise manage individuals carrying out transportation security activities approved, accepted, funded, recommended, or directed by the DHS or DOT.

(4) When the person needs the information to provide technical or legal advice to a covered person regarding transportation security requirements of Federal law.

(5) When the person needs the information to represent a covered person in connection with any judicial or administrative proceeding regarding those requirements. 49 C.F.R. 1520.11(a).

Any disclosure of SSI to a person who does not fit into these categories violates the regulations.

Based on these restrictions, if the Proposal were implemented, BNSF would be in violation of 49 C.F.R 1520.9(a)(2), as it would be disclosing SSI to many people who do not have a "need to know" such information, specifically the Proponent, other BNSF shareholders, and the general public. The Proposal broadly requests "information relevant to the Company's efforts to safeguard the security of [its] operations arising from a terrorist attack and/or other homeland security incidents." The information that meets this request, however, necessarily includes SSI in the Company's possession, including the Security Management Plan developed by the Company as a countermeasure to possible terrorist attacks and other homeland security incidents (thereby making it clearly "relevant to the Company's efforts to safeguard the security of [its] operations" against such events). Compliance with the Proposal would therefore force BNSF to violate 49 C.F.R. 1520.9(a)(2), by publishing information that TSA has deemed SSI in its annual proxy materials and thereby disseminating that information to the general public.1

In giving the TSA broad authority to designate and protect SSI, Congress's purpose was clear: to safeguard the country from future terrorist attacks by preventing sensitive information from falling into the wrong hands. Implementation of the Proposal would run counter to this important policy, as it would place secret information in the public domain, thereby providing terrorists with a blueprint to BNSF's most sensitive security procedures. The regulations cited above were implemented to prevent such an outcome, and the Proposal should therefore be excluded to prevent BNSF from having to choose between making the requested disclosures or violating these regulations.

The steps that BNSF has already taken to comply with these regulations and safeguard its SSI further illustrate the extreme sensitivity of the information that the Proponent has requested. Because the Company can only legally disseminate the information to those who have a "need to know," only a few BNSF employees (no more than 10) have been given access to all of the information that the Proponent would have BNSF place in its 2008 Proxy Materials. BNSF is careful to ensure that only those employees whose job responsibilities require that they have access to information protected as SSI receive that access; furthermore, BNSF limits the access to the portion of the SSI relevant to their job responsibilities. Not even BNSF's Board of Directors has access to all this information because it does not have a "need to know" all the SSI pursuant to federal regulations. Consistent with the detailed and careful steps BNSF has taken to safeguard SSI internally, and in compliance with the applicable federal laws and regulations, the Company should not be asked to provide public disclosure of this type of information in its annual proxy materials (or otherwise) and the Proposal should therefore be excluded.

B. Compliance with the Proposal would require BNSF to violate federal regulations pertaining to hazardous materials.

Additionally, implementation of the Proposal would cause BNSF to violate various other federal regulations that pertain to the transportation of hazardous materials. Because BNSF regularly ships hazardous materials, including toxic-by-inhalation, radioactive, and explosive materials, it is required to "develop and adhere to a security plan" for the shipment of those materials which complies with various strictures set forth by the DOT. See 49 C.F.R. 172.800, 172.802. BNSF has developed a security plan that complies with these regulations. Information about BNSF's procedures and security plan to safeguard the hazardous materials it transports would be covered by the Proposal as that information is "relevant" and pertains to the Company's "efforts to safeguard the security of [its] operations arising from a terrorist attack and/or other homeland security incidents." One of the specific risks that BNSF considered in developing this plan was the risk of a terrorist attack on trains that carry hazardous materials. Therefore, if the Proposal were implemented, the Company's security plan for hazardous materials would qualify as "information relevant to the Company's efforts to safeguard the security" of its operations.

However, disclosure of the security plan for hazardous materials would violate 49 C.F.R. 17.802(b), which states that "copies of the security plan, or portions thereof, must be available to employees who are responsible for implementing it, consistent with personnel security clearance or background investigation restrictions and a demonstrated need to know." 49 C.F.R. 17.802(b) (emphasis added). As these regulations indicate, dissemination of this sensitive information is limited to employees with appropriate clearances and a demonstrated need to know the information. The regulations safeguard the security of hazardous materials by limiting the distribution of information relating thereto, and they would be violated by any public disclosure the Company might make of its hazardous materials security plan. For this reason also, the Proposal is properly excludable from the Company's proxy.

II. BNSF may exclude the Proposal in reliance on Rule 14a-8(i)(7) because it relates to ordinary business operations.

Rule 14a-8(i)(7) permits a company to exclude a stockholder proposal if it pertains to "a matter relating to the company's ordinary business operations." According to the Commission release accompanying the 1998 amendments to Rule 14a-8, the term "ordinary business" refers to matters that are not necessarily "ordinary" in the common meaning of the word, but instead the term "is rooted in the corporate law concept of providing management with flexibility in directing certain core matters involving the company's business and operations." Exchange Act Release No. 40018 (May 21, 1998) (the "1998 Release"). In the 1998 Release, the Commission described the two "central considerations" for the ordinary business exclusion:

The first relates to the subject matter of the proposal. Certain tasks are so fundamental to management's ability to run a company on a day-to-day basis that they could not, as a practical matter, be subject to direct shareholder oversight. Examples include the management of the workforce, such as the hiring, promotion, and termination of employees, decisions on production quality and quantity, and the retention of suppliers. However, proposals relating to such matters but focusing on sufficiently significant social policy issues (e.g., significant discrimination matters) generally would not be considered to be excludable, because the proposals would transcend the day-to-day business matters and raise policy issues so significant that it would be appropriate for a shareholder vote. The second consideration relates to the degree to which the proposal seeks to "micro-manage" the company by probing too deeply into matters of a complex nature upon which shareholders, as a group, would not be in a position to make an informed judgment.

Thus, when examining whether a proposal may be excluded under Rule 14a-8(i)(7), the first step is to determine whether the proposal raises any significant social policy issue. If a proposal does not, then it may be excluded under Rule 14a-8(i)(7). If a proposal does raise a significant social policy issue, it is not the end of the analysis. As discussed below, the Staff has concurred with the exclusion of shareholder proposals that raise a significant social policy issue when other aspects of the report or action sought in the proposals implicate a company's ordinary business. We believe that most Rule 14a-8(i)(7) determinations considered by the Staff do not revolve around whether the subject matter of a proposal has raised a significant social policy issue, but instead depend on whether the specific actions sought by the proposal or some other aspect of the proposal involve day-to-day business matters.

The Staff also has stated that a proposal requesting the dissemination of a report may be excludable under Rule 14a-8(i)(7) if the substance of the report is within the ordinary business of the issuer. See Exchange Act Release No. 20091 (Aug. 16, 1983). In addition, the Staff has indicated, "[where] the subject matter of the additional disclosure sought in a particular proposal involves a matter of ordinary business ... it may be excluded under rule 14a-8(i)(7)." Johnson Controls, Inc. (Oct. 26, 1999).

A. BNSF's efforts to safeguard the security of its operations from terrorist attacks and/or other homeland security incidents is a day-to-day activity.

The entirety of BNSF's business operations revolves around the transport of its railcars and their cargo. A central feature of this service is ensuring the safety of its customers' cargo. Because BNSF's ability to manage and ensure the safety of its trains is so fundamental to the Company, it must evaluate and review its safety procedures and policies every single day. This process focuses on all risks and threats that the Company faces, including the risk of terrorist attacks, incidents involving hazardous materials, and other matters that might implicate homeland security. Terrorist attacks and other homeland security incidents may well have a major effect on the general public and the environment broadly, and for some companies these risks may involve nothing more than broad social and political issues. However, because homeland security concerns are so much a part of the regular and ordinary work of railroad companies, in BNSF's case these risks require the Company's daily attention.

Moreover, the Proposal's reference to "homeland security incidents" encompasses a wide range of security considerations separate from and in addition to a potential "terrorist attack" that BNSF must address every day. In fact, the security incidents over which the DHS has jurisdiction are broad. In creating the DHS, Congress specified that two of the Department's "primary responsibilities" are "border and transportation security" and "emergency preparedness and response." Homeland Security Act of 2002, section 101(b)(2)(C) and (D). Thus, among the responsibilities transferred to the DHS were the Federal Emergency Management Agency ("FEMA"), the United States Customs Service and the Animal and Plant Health Inspection Service. Homeland Security Act of 2002, sections 402 and 502. Recognizing that it is responsible for responding to incidents that include but are not limited to potential terrorist attacks, FEMA has established the National Incident Management System under which "first responders from different jurisdictions and disciplines can work together to respond to natural disasters and emergencies, including acts of terrorism." See Summary, Draft Revised NIMS Document (August 2007), available at http://www.fema.gov/emergency/nims/nims_doc.shtm. The DHS's FEMA operations assist in preparing for and responding to incidents such as earthquakes, floods, hurricanes, landslides, thunderstorms, tornados, wild fires and winter storms.2

In order to implement the Proposal by reporting on all of the Company's efforts to safeguard its operations from homeland security incidents, the Company would need to address:

its preparations for maintaining operations, avoiding injuries and assisting in response to natural disasters such as earthquakes, floods, hurricanes, landslides, thunderstorms, tornados, wild fires and winter storms;

its efforts to secure against incidents involving avoidance of tariffs and customs duties or smuggling of contraband and counterfeit merchandise in violation of U.S. customs rules; and

its actions to protect and inspect agricultural products and livestock that it transports to ensure that there is not an incident where tainted or diseased cargo crosses the borders into or is transported across our country.

Safeguarding the safety and security of the railroad against these types of incidents is an important, but ordinary and day-to-day aspect, of the Company's operations. As stated above, the Company dedicates considerable resources towards efforts to avoid, prepare for, respond to and minimize any impact these types of incidents could have on the Company, its employees, the communities it serves, and our country. Thus, the implementation of security measures to safeguard operations from the wide variety of incidents overseen by the Department of Homeland Security is a central and routine element of the Company's ordinary business. Regardless of whether the Company's efforts to safeguard its assets from a potential terrorist attack transcends the Company's ordinary business, the Proposal clearly also requests that the Company report on actions it has taken to safeguard the security of its operations from incidents and threats that are routine and that have been faced by railroads for more than 150 years. Therefore, given the unique features of the railroad industry, a review of BNSF's safety procedures as they relate to terrorism and homeland security is an ordinary business matter under Rule 14a-8(i)(7).

In addition to the precedents cited in the No-Action Request, we have identified a number of SEC staff no-action precedents in which the respective proposals could be read to implicate broad social policy issues, but because of the nature of the companies' businesses, were held to pertain to ordinary business matters that the companies dealt with on a daily basis. For example, in Verizon Communications Inc. (Feb. 22, 2007), the proposal at issue asked Verizon to publish "a report to shareholders in six months, at reasonable cost and excluding confidential and proprietary information, which describes the overarching technological, legal and ethical policy issues surrounding the disclosure of customer records and communications content to (1) the Federal Bureau of Investigation, NSA and other government agencies without a warrant and (2) non-governmental entities (e.g. private investigators) and their effect on the privacy rights of Verizon's MCI long-distance customers." This proposal was made shortly after the enactment of various executive orders that gave government agencies broad leeway to request companies like Verizon to disclose a variety of private customer information. This proposal was held to be excludable as pertaining to an ordinary business matter, because it related to the protection of customer information, which is an activity that Verizon undertakes on a daily basis. This decision is analogous to BNSF's case in two respects. First, as a telecommunications company, Verizon is in the business of facilitating conversations between its customers, and the efforts that it takes to safeguard those communications is a matter that Verizon deals with on a daily basis. Likewise, BNSF is in the business of transporting other people's cargo, and the efforts that it takes to ensure the safety of that service is a matter that it must analyze every day. Second, the Verizon decision demonstrates that while a proposal may raise broad social issues, the manner in which a company attempts to militate against the risks created by those issues on a daily basis can qualify as an ordinary business matter. Specifically, the proposal in Verizon related to information disclosures that the government asked of Verizon as part of a focused effort to prevent future terrorist attacks. Ordinarily, issues like dissemination of personal information and the right to informational privacy are topics of broad social and ethical discussion. However, because the safety of Verizon's customers' personal information is integral to Verizon's day-to-day business, the steps that Verizon took to deal with the risk of government requests for disclosure was held to be an ordinary business matter. In this case, the threat of terrorism compromises the safety of BNSF's railroads and the steps the Company takes to manage that risk is also an ordinary business matter.

The proposal in Newmont Mining Corp. (Feb. 5, 2005) which was held excludable as an ordinary business matter (specifically, as an evaluation of risk) is also very similar to the Proposal in this case. In Newmont Mining, the proposal asked management to "review its policies concerning waste disposal at its mining operations in Indonesia, with a particular reference to potential environmental and public health risks incurred by the company by these policies, and to report to shareholders on the findings of this review." By focusing on "environmental and public health risks," the proponent in Newmont Mining attempted to cast the proposal as a significant social policy issue that could escape the ordinary business matter exception. However, the Staff recognized that because waste disposal was such a fundamental aspect of Newmont's day-to-day operations, the proposal warranted exclusion. In this instance, the Proponent has likewise attempted to focus on public and environmental risks and harm by giving considerable attention to those matters in both the Proposal's supporting statement and in the Proponent's Response. Regardless of other interests in these matters, however, they are for the Company matters that require ordinary and daily attention. As with the proposal in Newmont Mining, the Proposal implicates an assessment of the risks faced by BNSF's operations in the course of managing its regular business operations (as such an assessment is a necessary component of its "efforts to safeguard the security of [its] operations arising from a terrorist attack and/or other homeland security incidents") and should therefore be excluded.

Additionally, the proposal in Wal-Mart Stores, Inc. (Mar. 24, 2006) also provides a strong basis for comparison. That proposal asked the company to "publish a report evaluating Company policies and procedures for systematically minimizing customers' exposure to toxic substances in products" that Wal-Mart sells to consumers. The SEC allowed Wal-Mart to exclude the proposal because it pertained to an ordinary business matter. As Wal-Mart discussed in its no-action request, even though the proposal touched on "a socially significant issue," it could not possibly be viewed as a matter that was proper for shareholder oversight because it dealt with an issue that was entirely wrapped up in the company's complex daily operations. Wal-Mart sells a myriad of products, some of which carry an inherent risk of exposing the user to toxins; the decisions that Wal-Mart makes with respect to ensuring that its customers are not harmed by those products are "complex business considerations that are outside the knowledge and expertise of shareholders." Just as Wal-Mart was asked to prepare a report on the steps it had taken to minimize its customers' exposure to the dangers that are innate to its products, BNSF has been asked to report on the steps it has taken to minimize its customers' exposure to one of the dangers that is innate to the service that it provides. The efforts that BNSF has made in this regard are likewise complex, and not a proper subject for shareholder review.

Finally, the Staff has consistently concurred that a proposal may be excluded in its entirety when it addresses both ordinary and non-ordinary business matters. Recently, the Staff affirmed this position in Peregrine Pharmaceuticals Inc. (July 31, 2007), concurring with the exclusion of a proposal under Rule 14a-8(i)(7) recommending that the board appoint a committee of independent directors to evaluate the strategic direction of the company and the performance of the management team. The Staff noted "that the proposal appears to relate to both extraordinary transactions and non-extraordinary transactions. Accordingly, we will not recommend enforcement action to the Commission if Peregrine omits the proposal from its proxy materials." In General Electric Co. (Feb 10, 2000), because a portion of the proposal related to ordinary business matters, the Staff concurred with the exclusion of a proposal requesting that the company (i) discontinue an accounting technique, (ii) not use funds from the GE Pension Trust to determine executive compensation, and (iii) use funds from the trust only as intended. See also Medallion Financial Corp. (May 11, 2004) (concurring with the exclusion of a proposal requesting that the company consult an investment bank to evaluate ways to increase shareholder value, and noting that it "appears to relate to both extraordinary transactions and non-extraordinary transactions"); Wal-Mart Stores, Inc. (Mar. 15, 1999) (concurring with the exclusion of a proposal requesting a report to ensure that the company did not purchase goods from suppliers using unfair labor practices because the proposal also requested that the report address ordinary business matters). In this case, the Proposal might touch on various non-ordinary matters, like public and environmental harm, but the thrust of the resolution asks BNSF to report on "the security of [its] operations" which, as demonstrated above, is clearly an ordinary business matter. Because the Proposal's focus remains as such, it may be excluded under Rule 14a-8(i)(7).

B. The Proposal is excludable because it seeks an evaluation and report on actions BNSF has taken to minimize the risks and liabilities of its operations.

As illustrated by the precedents cited above, even if a given shareholder proposal touches on broader social policy issues, it may be excluded if it also implicates a company's ordinary business. Moreover, the fact that even one prong of a proposal may invoke a significant policy issue does not automatically mean that prong does not involve ordinary business matters. For example, in General Motors Corp. (Apr. 4, 2007) the Staff excluded a proposal that addressed the social policy issue of executive compensation, noting that "while the proposal mentions executive compensation, the thrust and focus of the proposal is on ordinary business matters." Indeed, the Staff established its standard for determining whether shareholder proposals implicate social policy issues or ordinary business matters in Staff Legal Bulletin 14C:

To the extent that a proposal and supporting statement focus on the company engaging in an internal assessment of the risks or liabilities that the company faces as a result of its operations that may adversely affect the environment or the public's health, we concur with the company's view that there is a basis for it to exclude the proposal under rule 14a-8(i)(7) as relating to an evaluation of risk. To the extent that a proposal and supporting statement focus on the company minimizing or eliminating operations that may adversely affect the environment or the public's health, we do not concur with the company's view that there is a basis for it to exclude the proposal under rule 14a-8(i)(7).

In light of this standard, the Staff has recently issued a number of no-action letters with regards to proposals that are similar to the Proposal, in that they focus on an "evaluation of risks" resulting from steps the companies were taking to address issues that could be viewed as implicating significant social policy matters. For example, in Centex Corp. (May 14, 2007), the Staff allowed the company to exclude a shareholder proposal requesting a report on how Centex was "responding to rising regulatory, competitive and consumer pressure to address global warming," as that disclosure was simply an evaluation of risk. In The Ryland Group, Inc. (Feb. 13, 2006), the Staff concurred that the company could exclude a proposal requesting the company to assess its response to rising regulatory, competitive and public pressure to increase energy efficiency. See also Ace Ltd. (Mar. 19, 2007), (concurring in the exclusion of a proposal requesting a report on "the company's strategy and actions related to climate change, including ... steps taken by the company in response to climate change").

Moreover, shareholder proposals need not explicitly request an "evaluation of risk" to be excludable on that basis under Rule 14a-8(i)(7). For example, in Pulte Homes Inc. (Mar. 1, 2007), the Staff concurred that the company could exclude as relating to "evaluation of risk" a proposal requesting that the company "assess its response" to rising regulatory, competitive, and public pressure to increase energy efficiency. See also Wells Fargo & Co. (Feb. 16, 2006) (allowing exclusion of a proposal requesting a report on the effect on Wells Fargo's business strategy of the challenges created by global climate change called for an evaluation of risk); The Dow Chemical Co. (Feb. 23, 2005) (concurring with the exclusion of a shareholder proposal requesting a report describing the reputation and financial impact of the company's response to pending litigation because it related to an evaluation of risks and liabilities); American International Group, Inc. (Feb. 19, 2004) (concurring that the company could exclude a proposal that requested the board of directors to report on "the economic effects of HIV/AIDS, tuberculosis and malaria pandemics on the company's business strategy," because it called for an evaluation of risks and benefits).

As mentioned in the No-Action Request and in BNSF's Response, the Proponent has tried to cast its Proposal as a social policy issue by avoiding all references to financial risk. However, the thrust and focus of the Proposal remains on a risk that the Company may face as a result of its daily operations. It does not request a report on "minimizing or eliminating operations that may adversely affect the environment or the public's health." Therefore, under the standard set forth in Staff Legal Bulletin 14C, the Proposal qualifies as an evaluation of risk and may be excluded under Rule 14a-8(i)(7).

III. BNSF may exclude the Proposal in reliance on Rule 14a-8(i)(10) because it has been substantially implemented.

Rule 14a-8(i)(10) permits a company to exclude a stockholder proposal from its proxy materials "[i]f the company has already substantially implemented the proposal." The Commission stated in 1976 that the predecessor to Rule 14a-8(i)(10) was "designed to avoid the possibility of shareholders having to consider matters which already have been favorably acted upon by the management." Exchange Act Release No. 12598 (July 7, 1976). When a company can demonstrate that it already has taken actions to address each element of a stockholder proposal, the Staff has concurred that the proposal has been "substantially implemented" and may be excluded as moot. See Hewlett-Packard Company (Dec. 11, 2007); see, e.g., Exxon Mobil Corp. (Jan. 24, 2001); The Gap, Inc. (Mar. 8, 1996); and Nordstrom, Inc. (Feb. 8, 1995). Moreover, a proposal need not be "fully effected" by the company in order to be excluded as substantially implemented. See Exchange Act Release No. 34-20091, at II.E.6. (Aug. 16, 1983); see also Exchange Act Release No. 40018 at n.30 and accompanying text (May 21, 1998);

As stated in Section I of this letter, BNSF believes that the Proposal would require it to disclose information in violation of federal regulations and should be excluded on those grounds. If, on the other hand, the Proposal had been written to exclude disclosures that would violate the law, BNSF believes that it would have substantially complied with the Proposal, as such information has already been disclosed to the public.

Specifically, the Company already provides information that is responsive to the Proposal on its website and through other media. It should not be required to repackage or restate that same information in a proxy statement. Due to the Proposal's lack of specificity as to the nature of the information requested, the Company believes that the information it currently provides to the public addresses each element of the Proposal and thus "substantially implements" the Proposal.

The Company's website (www.bnsf.com) (under the "Customer Tools" tab) devotes an entire section to "Resource Protection." The links and information found therein detail a number of measures that BNSF has taken to ensure the safety of its trains and the cargo that it transports, including its "On Guard Program" and its "Trespasser Abatement Program," its participation in the e-RAILSAFE program in which third-party contractors are screened, and its participation in the Customs-Trade Partnership Against Terrorism (C-TPAT), a cooperative endeavor with the U.S. Customs Service to develop, enhance, and maintain effective security processes throughout the global supply chain. BNSF was also an industry leader in developing the first community-based private citizen reporting program called Citizens for Rail Security (CRS). This program includes security measures that are pertinent to terrorist and/or other homeland security threats and enlists the public in safely helping to address terrorist and other threats and to protect the railroad by reporting security violations, trespassers or unusual occurrences. Since its inception, more than 7,700 private citizens have joined CRS in helping protect the railroad by reporting security violations, trespassers or unusual occurrences. These programs, in addition to others listed on this website, all relate to security measures that BNSF has taken to protect its railroad from all kinds of safety risk, including terrorist threats. Also, BNSF's website provides information regarding BNSF's Police Solutions Team and its Load and Ride Solutions Team, both of which are in place to help mitigate against unforeseen safety risks. BNSF's website also has a search function, and when one runs a search for "Homeland Security," the function yields over 40 results, most of which are pertinent to the Proponent's information request. Finally, information on BNSF security precautions as they relate to employees, is available through BNSF employee publications which can be found on BNSF's public website. All told, BNSF's website already reports on its commitment to safeguard the security of its operations in the following areas:

Public safety,

Hazardous Materials Safety,

Track Maintenance and Crossing Safety;

Employee safety, and

Rail security.

As demonstrated on the website and other disclosures, the Company's efforts to safeguard the security of its operations include a highly-specialized secure network, which provides enhanced monitoring for state homeland security and law enforcement officials with respect to the status of the Company's trains and rail cars. The Company also provides for joint training among the Company's experts and law enforcement officials trained to respond to security incidents.

Thus, the Company's employees, investors, and the public at-large have access at any time to information that the Company believes would be responsive to the Proposal. To require the Company to include this or more detailed Sensitive Security Information again in its Proxy Statement is simply duplicative, unnecessary and could potentially damage the Company's ability to effectively protect its employees and critical infrastructure. BNSF continually monitors its counter terrorism efforts and the disclosures it makes with respect thereto. It strives to inform its shareholders with regard to these matters to the extent that it can do so without violating the law or jeopardizing the safety of its railroad. In that regard, BNSF intends to continue to provide such information, as it becomes available, to the public through its website and other media.

IV. Conclusion

For the foregoing reasons, we request your confirmation that the Staff will not recommend any enforcement action to the Commission if the Proposal is omitted from BNSF's 2008 proxy materials

If the Staff has any questions with respect to the foregoing, or if for any reason the Staff does not agree that BNSF may omit the Proposal from its 2008 proxy materials, please contact me at (212) 474-1131. I may also be reached by facsimile at (212) 474-3700 and would appreciate it if you would send your response to us by facsimile to that number as well as to BNSF at (817) 352-2397. The Proponents' legal representative, C. Thomas Keegel, may be reached by telephone at (202) 624-6800 and at the International Brotherhood of Teamsters, 25 Louisiana Avenue, NW, Washington, DC 20001. We request that the Staff notify the undersigned if it receives any correspondence on the Proposal from the Proponent or other persons, unless that correspondence has specifically confirmed to the Staff that BNSF or its undersigned counsel have timely been provided with a copy of the correspondence. In addition, we agree to promptly forward to the Proponent any response from the Staff to this motion for reconsideration that the Staff transmits by facsimile to us or BNSF only.

Please acknowledge receipt of this letter and the enclosures by date-stamping the enclosed copy of this letter and returning it in the enclosed self addressed stamped envelope.

Very truly yours,

/s/

William V. Fogg
Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street, N.E.
Washington, D.C. 20549

Encls.

UPS OVERNIGHT AND EMAIL

Copies w/encls. to:

Thomas J. Kim
Associate Director and Chief Counsel
Office of the Chief Counsel
Division of Corporation Finance
U.S. Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549

Jonathan Ingram
Deputy Chief Counsel
Office of the Chief Counsel
Division of Corporation Finance
U.S. Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549

C. Thomas Keegel
General Secretary-Treasurer
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, D.C. 20001

Roger Nober
Executive Vice President Law and Secretary
Burlington Northern Santa Fe Corporation
2650 Lou Menk Drive, F12
Forth Worth, TX 76131

James Dunn
Deputy General Manager, Freight Rail
TSA-28
Transportation Security Administration
601 South 12th Street
Arlington, VA 22202-4220

-----FOOTNOTES-----

1 As an ancillary matter, we note that even if BNSF were to omit "proprietary information" from the requested disclosure (as allowed by the Proposal), much of the information that it would still have to include would qualify as SSI. Though the Proponent makes no attempt to define "proprietary information," it is generally used in BNSF's industry to refer to confidential business information that is developed and exploited for commercial gain, like trade secrets. Much of BNSF's confidential SSI would not qualify as proprietary information, as it pertains to matters like threat response protocols or vulnerabilities in BNSF's security systems. Thus, the Proposal, as written, would still require BNSF to disclose SSI, which would mean that BNSF could be found in violation of federal regulations.

2 Terrorism is only one of seventeen types of incidents that FEMA addresses, as reported on its homepage. See http://www.fema.gov/index.shtm

[INQUIRY LETTER]

June 28, 2007

BY FACSIMILE: (817) 352-7171

BY UPS NEXT DAY

Mr. Roger Nober, Corporate Secretary
Burlington Northern Santa Fe Corporation
2650 Lou Menk Drive, F12
Fort Worth, TX 76131

Dear Mr. Nober:

I hereby submit the following resolution on behalf of the Teamsters General Fund, in accordance with SEC Rule 14a-8, to be presented at the Company's 2008 Annual Meeting.

The General Fund has owned 60 shares of Burlington Northern Santa Fe Corporation continuously for at least one year and intends to continue to own at least this amount through the date of the annual meeting. Enclosed is relevant proof of ownership.

Any written communication should be sent to the above address via U.S. Postal Service, UPS, or DHL, as the Teamsters have a policy of accepting only Union delivery. If you have any questions about this proposal, please direct them to Louis Malizia of the Capital Strategies Department, at (202) 624-6930.

Sincerely,

/s/

C. Thomas Keegel
General Secretary-Treasurer

CTK/lm

Enclosures

[APPENDIX]

RESOLVED: That the shareholders of Burlington Northern Santa Fe Corporation ("BNSF" or "Company") hereby request that the Board of Directors make available, omitting proprietary information and at reasonable cost, in BNSF's annual proxy statement, by the 2009 annual meeting, information relevant to the Company's efforts to safeguard the security of their operations arising from a terrorist attack and/or other homeland security incidents.

SUPPORTING STATEMENT: Since BNSF is involved with the transportation, storage and handling of hazardous materials including chemicals, explosives, radioactive materials, gases, poisons and corrosives, it is critical that shareholders be allowed to evaluate the steps the Company has taken to minimize risks to the public arising from a terrorist attack or other homeland security incident.

The United States Naval Research Lab reported that one 90-ton tank car carrying chlorine, if targeted by an explosive device, could create a toxic cloud 40 miles long and 10 miles wide, which could kill 100,000 people in 30 minutes. Safeguarding U.S. security should be a priority for BNSF, especially since the 9/11 attacks have crystallized the vulnerability of our nation's transportation infrastructure. Further, the train bombings in London and Madrid, where hundreds of people died and thousands were injured, highlight the vulnerability of railways as prime targets for terrorist attacks.

Citizens for Rail Safety, Inc. (CRS), a national non-profit public interest organization comprised of transportation consultants and concerned citizens advocating for national railroad safety and efficiency, unveiled a Penn State University report on June 12, 2007, exposing glaring holes in rail security and therefore, opportunities for terrorism in the U.S. system. The report, "Securing and Protecting America's Rail System: U.S. Railroads and Opportunities for Terrorist Threats" uncovered the need for an increase in terrorism preparedness training for rail workers in order to improve rail security and protect the public.

Rail workers throughout our Company report that BNSF has failed to implement significant security improvements to deter or respond to a terrorist attack on the U.S. rail network, which could potentially devastate communities in our country and destroy our Company.

While other rail companies, such as Canadian Pacific Railway, have disclosed extensive detail of both security actions taken to protect their infrastructure and personnel and their cost, BNSF makes only passing mention in their 10-K of efforts to improve security operations in order to tackle the threat to the railroad in high risk areas like Chicago, Houston and San Francisco. These disclosures are particularly important in light of BNSF's history of accidents involving hazardous materials, which totaled 243, the highest number of accidents at a U.S. rail company in 2006 [Gibbons, Timothy. CSX Hit with 3 Accidents Already this Year. 2/26/2007].

The lack of such information prevents shareholders from assessing crucial information relating to the protection of our country, our Company and our workers.

We urge you to support disclosure of homeland security measures at BNSF by voting FOR this proposal.

[STAFF REPLY LETTER]

February 20, 2008

William V. Fogg
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475

Re: Burlington Northern Santa Fe Corporation

Dear Mr. Fogg:

This is in regard to your letter dated February 19, 2008 concerning the shareholder proposal submitted by the International Brotherhood of Teamsters General Fund for inclusion in BNSF's proxy materials for its upcoming annual meeting of security holders. Your letter indicates that the proponent has withdrawn the proposal, and that BNSF therefore withdraws its January 25, 2008 reconsideration request. Because the matter is now moot, we will have no further comment.

Sincerely,

/s/

Jonathan A. Ingram
Deputy Chief Counsel

cc: Louis Malizia
Assistant Director
Capital Strategies Department
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001