Notice2021-25926
Canadian Pacific Railway Limited; Canadian Pacific Railway Company; Soo Line Railroad Company; Central Maine & Quebec Railway US Inc.; Dakota, Minnesota & Eastern Railroad Corporation; and Delaware & Hudson Railway Company, Inc-Control-Kansas City Southern; The Kansas City Southern Railway Company; Gateway Eastern Railway Company; and The Texas Mexican Railway Company
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 26, 2021
Issuing agencies
Surface Transportation Board
Abstract
The Surface Transportation Board (Board) is accepting for consideration the application filed on October 29, 2021 (Application), by Canadian Pacific Railway Limited (Canadian Pacific), Canadian Pacific Railway Company (CPRC), and their U.S. rail carrier subsidiaries, Soo Line Railroad Company (Soo Line), Central Maine & Quebec Railway US Inc., Dakota, Minnesota & Eastern Railroad Corporation, and Delaware & Hudson Railway Company, Inc. (collectively, CP) and Kansas City Southern and its U.S. rail carrier subsidiaries, The Kansas City Southern Railway Company (KCSR), Gateway Eastern Railway Company, and The Texas Mexican Railway Company (Tex Mex) (collectively, KCS) (CP and KCS collectively, Applicants). The Application seeks Board approval for the acquisition of control by Canadian Pacific, through its indirect, wholly owned subsidiary Cygnus Merger Sub 2 Corporation (Cygnus Merger Sub 2 Corp.), of Kansas City Southern, and through it, of KCSR and its railroad affiliates, and for the resulting common control by Canadian Pacific of its U.S. railroad subsidiaries, and KCSR and its railroad affiliates. This proposal is referred to as the Transaction. The Board finds that the Application is complete as it contains all information required by the Board's regulations. Accordingly, the Application is accepted. The Board adopts a procedural schedule for consideration of the Application.
Full Text
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<title>Federal Register, Volume 86 Issue 225 (Friday, November 26, 2021)</title>
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[Federal Register Volume 86, Number 225 (Friday, November 26, 2021)]
[Notices]
[Pages 67571-67578]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-25926]
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SURFACE TRANSPORTATION BOARD
[Docket No. FD 36500]
Canadian Pacific Railway Limited; Canadian Pacific Railway
Company; Soo Line Railroad Company; Central Maine & Quebec Railway US
Inc.; Dakota, Minnesota & Eastern Railroad Corporation; and Delaware &
Hudson Railway Company, Inc--Control--Kansas City Southern; The Kansas
City Southern Railway Company; Gateway Eastern Railway Company; and The
Texas Mexican Railway Company
AGENCY: Surface Transportation Board.
ACTION: Decision No. 11 in Docket No. FD 36500; Notice of Acceptance of
Application; Issuance of Procedural Schedule.
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SUMMARY: The Surface Transportation Board (Board) is accepting for
consideration the application filed on October 29, 2021 (Application),
by Canadian Pacific Railway Limited (Canadian Pacific), Canadian
Pacific Railway Company (CPRC), and their U.S. rail carrier
subsidiaries, Soo Line Railroad Company (Soo Line), Central Maine &
Quebec Railway US Inc., Dakota, Minnesota & Eastern Railroad
Corporation, and Delaware & Hudson Railway Company, Inc. (collectively,
CP) and Kansas City Southern and its U.S. rail carrier subsidiaries,
The Kansas City Southern Railway Company (KCSR), Gateway Eastern
Railway Company, and The Texas Mexican Railway Company (Tex Mex)
(collectively, KCS) (CP and KCS collectively, Applicants). The
Application seeks Board approval for the acquisition of control by
Canadian Pacific, through its indirect, wholly owned subsidiary Cygnus
Merger Sub 2 Corporation (Cygnus Merger Sub 2 Corp.), of Kansas City
Southern, and through it, of KCSR and its railroad affiliates, and for
the resulting common control by Canadian Pacific of its U.S. railroad
subsidiaries, and KCSR and its railroad affiliates. This proposal is
referred to as the Transaction.
The Board finds that the Application is complete as it contains all
information required by the Board's regulations. Accordingly, the
Application is accepted. The Board adopts a procedural schedule for
consideration of the Application.
DATES: The effective date of this decision is November 26, 2021. Any
person who wishes to participate in this proceeding as a Party of
Record must file, no later than December 13, 2021, a notice of intent
to participate if they have not already done so. Applicants shall file
a proposed Safety Integration Plan (SIP) with the Board's Office of
Environmental Analysis (OEA) and the Federal Railroad Administration
(FRA) by December 28, 2021. Descriptions of anticipated responsive
applications, including inconsistent applications, are due by January
12, 2022. Petitions for waiver or clarification with respect to such
applications are also due by January 12, 2022. Responsive environmental
information and environmental verified statements for responsive,
including inconsistent, applicants are due by February 22, 2022.
Comments, protests, requests for conditions, and any other evidence and
argument in opposition to the Application are due by February 28, 2022.
This includes any comments from the U.S. Department of Justice (DOJ)
and U.S. Department of Transportation (USDOT). All responsive
applications, including inconsistent applications, are also due by
February 28, 2022. Responses to comments, protests, requests for
conditions, and other opposition--including responses to DOJ and USDOT
filings--are due by April 22, 2022. Rebuttal in support of the
Application is also due by April 22, 2022. Responses to responsive
applications, including inconsistent applications, are also due by
April 22, 2022. Rebuttals in support of responsive applications,
requests for conditions, and other opposition must be filed by May 23,
2022. Final briefs will be due by July 1, 2022. If a public hearing or
oral argument is held, it will be held after the filing of final briefs
on a date to be determined by the Board.
For further information regarding dates, see the Appendix to this
decision.
ADDRESSES: Any filing submitted in this proceeding should be filed with
the Board via e-filing on the Board's website. In addition, one copy of
each filing must be sent (and may be sent by email only if service by
email is acceptable to the recipient) to each of the following: (1)
Secretary of Transportation, 1200 New Jersey Avenue SE, Washington, DC
20590; (2) Attorney General of the United States, c/o Assistant
Attorney General, Antitrust Division, Room 3109, Department of Justice,
Washington, DC 20530; (3) CP's representative, David L. Meyer, Law
Office of David L. Meyer, 1105 S Street NW, Washington, DC 20009; (4)
KCS's representative, William A. Mullins, Baker & Miller PLLC, Suite
300, 2401 Pennsylvania Avenue NW, Washington, DC 20037; (5) any other
person designated as a Party of Record on the service list; and (6) the
[[Page 67572]]
administrative law judge assigned in this proceeding, the Hon. Thomas
McCarthy, 1331 Pennsylvania Avenue NW, Washington, DC 20004-1710, and
at <a href="/cdn-cgi/l/email-protection#a1c2d5cecdc3c4d3d5e1c7ccd2c9d3c28fc6ced7"><span class="__cf_email__" data-cfemail="563522393a3433242216303b253e243578313920">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#3a4058435f48497a5c5749524859145d554c"><span class="__cf_email__" data-cfemail="83f9e1fae6f1f0c3e5eef0ebf1e0ade4ecf5">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: Valerie Quinn at (202) 245-0283.
Assistance for the hearing impaired is available through the Federal
Relay Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION: Applicants are seeking approval under 49
U.S.C. 11321-26 for a proposed transaction that involves the
acquisition of control by Canadian Pacific, through its indirect,
wholly owned subsidiary Cygnus Merger Sub 2 Corp., of Kansas City
Southern, and through it, of KCSR and its railroad affiliates, and for
the resulting common control by Canadian Pacific of its U.S. railroad
subsidiaries, and KCSR and its railroad affiliates.
By decision served April 21, 2021, the Board found the Transaction
to be a ``major'' transaction under 49 CFR 1180.2(a), as it is a
control transaction involving two or more Class I railroads. Canadian
Pacific presently controls Soo Line, a Class I railroad, and proposes
to acquire common control of KCSR, also a Class I railroad. See
Canadian Pac. Ry.--Control--Kan. City S. (Decision No. 3), FD 36500,
slip op. at 3 (STB served Apr. 21, 2021). By decision served April 23,
2021, following a public comment period, the Board found the proposed
transaction to be subject to the regulations set forth at 49 CFR part
1180, subpart A, in effect before July 11, 2001, pursuant to the waiver
for a merger transaction involving KCS and another Class I railroad
under 49 CFR 1180.0(b). See Canadian Pac. Ry.--Control--Kan. City S.
(Decision No. 4), FD 36500, slip op. at 2-3 (STB served Apr. 23, 2021)
(with Vice Chairman Primus dissenting).
The Transaction. As described in the Application, the Transaction
involves all of the U.S. mainline and branch line mileage of the CP and
KCS rail systems.\1\ (App.1-31.) \2\ The CP rail network spans Canada
from the Pacific Ocean at Vancouver to the Atlantic Ocean at Saint
John, N.B. In the United States, CP owns rail property in Michigan,
Illinois, Minnesota, North Dakota, South Dakota, Wisconsin, Maine,
Vermont, Iowa, Missouri, and New York, reaching into the U.S.
industrial centers of Chicago, Ill., Detroit, Mich., Buffalo, N.Y.,
Albany, N.Y., Kansas City, Mo., and Minneapolis, Minn. (Id. at 1-20;
id., Ex. 13, Operating Plan 8.) CP's principal routes serving the
United States extend from six Canada/United States border crossings:
North Portal, Sask./Portal, N.D.; Emerson, Man./Noyes, Minn.; Windsor,
Ont./Detroit; Buffalo; Rouses Point, N.Y.; and a point near Jackman,
Me., on the Quebec/Maine border. CP also operates a short stretch of
branch line trackage between Abercorn, Que., and Richford, Vt. (Id. at
1-22 to 1-23.)
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\1\ A full description of CP's and KCS's principal routes, as
well as maps of CP's and KCS's respective systems, is provided in
the Application. (See Appl., 1-22 to 1-26; id., Ex. 13, Operating
Plan 8-23; id., Ex. 1, Maps.)
\2\ Citations to the Application refer to the internal page
numbers of the referenced document, which appear on the bottom left-
hand corner of each page. For example, ``Appl. 1-31'' refers to
Application, Volume 1, page 31.
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The KCS rail network extends in a north-south corridor from Kansas
City, south to the Pacific Ocean at the Port of Lazaro Cardenas,
Mexico. (Id. at 1-24.) In the United States, KCS owns rail property in
Alabama, Arkansas, Illinois, Kansas, Louisiana, Mississippi, Missouri,
Oklahoma, Tennessee, and Texas. (Id. at 1-20.) KCSR's network is
centered on Shreveport, La., with lines radiating in five directions.
(Id. at 1-24.) KCSR's north-south corridor extends from the Mexican
border at Laredo, Tex., to Kansas City. (Id.) The ``Meridian Speedway''
line runs east-west through Shreveport, between the Dallas, Tex. area
and a connection with Norfolk Southern Railway Company (NSR) at
Meridian, Miss.\3\ (Id. at 1-25.) KCSR operates a secondary line that
extends southeast from Shreveport to New Orleans, La. (Id.) KCSR also
operates the former ``Gateway Western'' lines extending east from
Kansas City to Springfield, Ill., and East St. Louis, Ill., where it
connects with the Terminal Railroad Association of St. Louis and other
Class I railroads. (Id.) KCSR also operates several former ``MidSouth''
branch lines in Mississippi and Tennessee. (Id.)
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\3\ Applicants state that the portion of line between Shreveport
and Meridian is owned by KCS's affiliate Meridian Speedway, LLC, in
which NSR has a 30 percent ownership interest, and is operated by
KCSR. (Appl. 1-25.)
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As set forth in the September 15 Merger Agreement, Canadian
Pacific, through its indirect, wholly owned subsidiary Cygnus Merger
Sub 2 Corp., would acquire KCS. (Id. at 1-2.) Upon receipt of approval
by the shareholders of Canadian Pacific and KCS and the satisfaction of
other customary closing conditions, Cygnus Merger Sub 2 Corp. would
merge with and into KCS (the Merger), with KCS surviving the Merger.
(Id.) Upon completion of the Merger, holders of KCS's common stock
would become entitled to receive a combination of Canadian Pacific
common shares and cash in exchange for their common stock, and holders
of KCS's preferred stock would become entitled to receive cash in
exchange for their preferred shares. (Id.) Immediately following
completion of the Merger, Canadian Pacific would conduct a series of
internal transactions that would result in its voting interest in the
successor to KCS being placed into a voting trust,\4\ pending review
and approval of the control Transaction by the Board.\5\ (Id.) As a
result of the internal transactions, KCS would legally be merged with
and into Cygnus Merger Sub 1 Corporation, a wholly owned subsidiary of
CP, with Cygnus Merger Sub 1 Corporation surviving. (Id.) However, the
successor holding company of KCS would continue to own KCS's railroad
and other affiliates, and would maintain the same name, governance
structure, and other corporate-level attributes of KCS. (Id.)
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\4\ Applicants state that the internal transactions involve a
series of steps designed to address matters relating to tax and
corporate law, and all of those steps, including the placement of
Canadian Pacific's interest in KCS into a voting trust, would be
completed within moments of the completion of the Merger and for
practical purposes contemporaneously. Specifically, (a) KCS would
merge with and into Cygnus Merger Sub 1 Corporation (Cygnus Merger
Sub 1 Corp.), a direct, wholly owned subsidiary of Canadian Pacific,
with Cygnus Merger Sub 1 Corp. surviving; (b) Canadian Pacific would
contribute its shares in Cygnus Merger Sub 1 Corp. to CPRC, a
direct, wholly owned subsidiary of Canadian Pacific; (c) CPRC would
contribute its shares in Cygnus Merger Sub 1 Corp. to Cygnus Holding
Corp., an indirect, wholly owned subsidiary of Canadian Pacific; (d)
CPRC would transfer its shares in Cygnus Holding Corp. to Canadian
Holdco, an indirect, wholly owned subsidiary of Canadian Pacific;
and (e) Canadian Pacific would cause Cygnus Holding Corp. to
contribute its entire interest in Cygnus Merger Sub 1 Corp., and
thus in KCSR and its railroad affiliates, to the voting trust.
(Appl. 1-3.)
\5\ Applicants state that CP's acquisition of KCS's shares (and
placement of those shares into a voting trust) is contingent on the
approval of the Transaction by the shareholders of both CP and KCS--
which is expected by the end of 2021--and the approval of
Comisi[oacute]n Federal de Competencia Econ[oacute]mica (the Mexican
competition authority) and Instituto Federal de Telecomunicaciones
(the Mexican communications regulatory authority), which is expected
by the end of 2021 or at the latest during the first quarter of
2022. (Appl. 1-5.)
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Applicants state that, if and when the Board grants the
Application, CP accepts any conditions imposed by the Board, and the
Board's approval becomes administratively final, then the voting trust
would be terminated and Canadian Pacific would assume control of KCS.
(Id. at 1-3.)
By decision served May 6, 2021, the Board found that, subject to
certain required modifications described in that decision, Applicants'
proposed placement of KCS into a voting trust during the pendency of
the control proceeding would comply with the guidelines at 49 CFR part
1013, comport
[[Page 67573]]
with past agency policy and practice, and sufficiently ensure that the
day-to-day management and operation of KCS would not be controlled by
Canadian Pacific or anyone affiliated with Canadian Pacific while KCS
remains in trust. See Canadian Pac. Ry.--Control--Kan. City S.
(Decision No. 5), FD 36500, slip op. at 6 (STB served May 6, 2021); see
also Canadian Pac. Ry.--Control--Kan. City S. (Decision No. 8), FD
36500, slip op. at 3-5 (STB served Sept. 30, 2021) (with Vice Chairman
Primus dissenting) (finding that the approval granted in Decision No. 5
for Applicants to use a voting trust applied to the voting trust
described in Applicants' amended prefiling notification filed on
September 15, 2021).
Financial Arrangements. According to Applicants, CP would acquire
all of the voting securities of KCS in a stock and cash transaction, as
detailed in their September 15 Merger Agreement. (Appl. 1-8.)
Applicants state that Canadian Pacific would fund the stock portion of
the consideration through the issuance of up to 264,723,997 Canadian
Pacific common shares, which would represent approximately 28 percent
of the issued and outstanding shares of the combined entity. (Id.)
Applicants state that the cash portion of the consideration, together
with all related fees and expenses, is expected to total $8.5 billion,
which Canadian Pacific would fund through a combination of cash on hand
and new debt. (Id.) Applicants explain that the new debt would be
raised by CPRC issuing senior unsecured notes on substantially similar
terms to its outstanding unsecured notes, and that, in the event the
entire amount of debt has not been raised before the acquisition of KCS
shares, CP has obtained commitments to borrow up to $8.5 billion via a
senior unsecured 364-day bridge loan from Bank of Montreal and Goldman
Sachs Lending Partners LLC, among other financial institutions. (Id. at
1-8 to 1-9.)
Passenger Service Impacts. Applicants assert that the Transaction
would ``not result in any detrimental impact'' on the operations of the
National Railroad Passenger Corporation (Amtrak) or on commuter
operations; rather, the Transaction ``should foster expansion in
passenger operations'' on the combined CP-KCS system. (Id., Ex. 13,
Operating Plan 61.)
Amtrak Operations. Currently, as detailed in the Application, CP
hosts Amtrak's daily Empire Builder long-distance train between Chicago
and St. Paul, Minn., as well as seven pairs of Amtrak Hiawatha Service
trains between Chicago and Milwaukee, Wis. (six pairs on weekends).
(Id., V.S. Creel 17-18.) In Upstate New York, CP hosts two daily pairs
of Amtrak trains: The Adirondack (which operates between New York City
and Montreal) between Schenectady, N.Y., and the U.S. border at Rouses
Point, and the Ethan Allen Express (which operates between New York
City and Rutland, Vt.) between Schenectady and Whitehall, N.Y. (Id.,
V.S. Creel 18.) Applicants note that, ``[w]hile the segments on which
Amtrak operates will see increases in freight train volumes, CP's
infrastructure capacity over these routes[,] together with its
scheduling of freight trains to avoid conflicts with passenger train
schedules[,] will support the increased traffic without negatively
affecting Amtrak service.'' (Id., Ex. 13, Operating Plan 62.)
Applicants further state that a combined CP-KCS system would
``facilitate Amtrak's planned expansion of its passenger rail network''
by enabling CP to offer Amtrak the opportunity to increase train
frequencies on its Hiawatha Service and of its Empire Builder train, as
some of the freight traffic CP would otherwise interchange in Chicago
with Union Pacific Railroad Company (UP), BNSF Railway Company (BNSF),
and Canadian National Railway Company (CN) would bypass Chicago
entirely. (Id., V.S. Creel 19.)
Applicants state that, while KCS does not host Amtrak in the United
States, Amtrak operates over KCS-owned trackage to which other Amtrak
host railroads have access under joint facility and/or trackage rights
agreements, and that Amtrak also operates over trackage of other
carriers to which KCS has access. (Id., Ex. 13, Operating Plan 63-64.)
For example, Amtrak's Sunset Limited operates between Beaumont, Tex.,
and Rosenberg, Tex., over UP trackage that KCS currently uses pursuant
to trackage rights. (Id., Ex. 13, Operating Plan 64.) At Beaumont, UP
has operating rights across the KCS-owned Neches River bridge, and
Amtrak operates using those rights. (Id.) While the Transaction is
projected to increase KCS's train volumes between Beaumont and
Rosenberg by 8.3 trains per day, Applicants state that they would
schedule to avoid the time slot during which the Sunset Limited is
scheduled to operate and anticipate that UP dispatchers would continue
to afford Amtrak trains appropriate priority over freight operations.
(Id.) Further, Applicants state that they would prioritize Amtrak over
the Neches River bridge in coordination with UP to minimize any adverse
impact on Amtrak's operations. (Id.) Moreover, Applicants note that CP
has committed to working with Amtrak to facilitate establishing Amtrak
passenger service on KCS's line between Baton Rouge, La., and New
Orleans once CP acquires control of KCS. (Id., V.S. Creel 20.)
Commuter Rail Operations. Applicants state that the operation of
commuter trains on CP-owned lines and CP freight trains on commuter-
owned lines--specifically, lines owned by the Northeast Illinois
Regional Commuter Railroad Corporation (Metra), the Chicago-area
commuter rail agency--are governed by joint facility agreements that
restrict the times of day during which passenger and freight trains may
operate. (Id., Ex. 13, Operating Plan 65.) Currently, Metra's Milwaukee
District North line provides commuter service between Chicago and Fox
Lake, Ill., a route that includes 17 miles of CP-owned track between
Rondout, Ill., and Fox Lake. (Id., Ex. 13, Operating Plan 65-66.) CP's
Elgin Subdivision includes 34.3 miles of trackage rights over Metra's
Milwaukee District West Line, between Tower A5 in Chicago (also known
as Pacific Junction) and Almora, Ill. (near Elgin, Ill.). (Id., Ex. 13,
Operating Plan 66.) Applicants assert that a combined CP-KCS system
would avoid adverse impacts on commuter service by scheduling
additional freight traffic outside of the time slots reserved for
commuter operations and that ample capacity on the Elgin Subdivision
would accommodate the projected increase in freight traffic so as not
to adversely impact commuter operations.\6\ (Id., Ex. 13, Operating
Plan 65-66.)
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\6\ Applicants note that, while KCS does not currently host
commuter trains on its network in the United States, Dallas Area
Rapid Transit (DART) is constructing a new commuter line that would
overlap with 15 miles of KCS trackage rights over DART-owned
trackage west of Wylie, Tex., to Renner, Tex. (Appl., Ex. 13,
Operating Plan 66.) Applicants assert that there would be no impact
on DART's proposed operations, as KCS operations west of Wylie are
not expected to see any increase in train activity. (Id.)
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Discontinuances/Abandonments. Applicants state that no lines would
be abandoned and that no facilities would be rationalized because of
the Transaction. (Appl. 1-7.)
Public Interest Considerations. According to Applicants, the
Transaction would improve the quality and availability of rail
transportation services to the public, as a combined CP-KCS network
would offer more efficient and reliable single-line rail transportation
between points throughout CP's service territory in Canada and the
Upper Midwest and points throughout KCS's service territory in the
South Central United States and Mexico. (Appl. 1-14 to 1-15.)
Applicants contend that avoiding an
[[Page 67574]]
interchange at Kansas City, which is the only point where the CP and
KCS networks connect, would reduce cost, improve transit times, boost
reliability and predictability, and facilitate more aggressive
competition against other Class I railroads. (Id. at 1-15 to 1-16.)
According to Applicants, the Transaction would allow for new and
improved train services, including new intermodal services connecting
Dallas with Chicago and points beyond, as well as single-line
intermodal routes connecting Mexico with the Upper Midwest and Canada.
(Id. at 1-15.) Applicants contend that the combined CP-KCS network
would strengthen competition among rail carriers and would be more
efficient and a more capable competitor with long-haul trucks, as
Applicants' new intermodal rail services would annually divert more
than 60,000 long-haul truck shipments to rail. (Id. at 1-11, 1-28; id.,
V.S. Mut[eacute]n 17-22.)
Applicants assert that the Transaction would also enable more
efficient blocking patterns for manifest traffic moving between the KCS
and CP systems. (Appl. 1-16.) According to Applicants, an integrated
system would improve equipment utilization and allow for more efficient
rail transportation with the same number of locomotives and railcars,
which would improve cycle times for shippers who provide their own
railcars and benefit all customers with the greater availability of
railcars. (Id.) Applicants state that new rail traffic on the
integrated system would support investment in additional capacity,
service quality, and safety on a CP-KCS north-south rail artery,
transforming a relatively underutilized route into a more efficient,
higher capacity, and safer artery of north-south trade in North America
capable of supporting improved service levels. (Id. at 1-17.) According
to Applicants, the innovations and improvements enabled by CP's
operating model, including improved asset utilization, reduction of
costs, and improved on-time performance and service reliability, serve
as ``the catalyst for enabling CP/KCS to serve customers better.''
(Id., V.S. Brooks 11.)
Applicants assert that the Transaction would ``generate competitive
benefits and cause no competitive harm.'' (Appl. 1-11.) Applicants
contend that, because the CP and KCS networks do not overlap,
connecting only at Kansas City, no shippers, stations, or corridors
would ``suffer any diminished competition,'' and also assert that there
would be no reduction in geographic or product competition. (Id.)
Applicants further assert that shippers would not face any reduction in
routing options or confront any new ``bottlenecks,'' as a combined CP-
KCS system would have strong incentives to maintain all of the
efficient interline routes in which they participate today. (Id.)
Applicants state that, while they would compete against KCS's existing
interline routes where new single-line routes offer advantages for
customers, they would continue to support, both operationally and
commercially, these existing interline routes, committing to keep all
existing gateways open on commercially reasonable terms, including the
Laredo Gateway.\7\ (Id. at 1-7; id., V.S. Ottensmeyer 6; id., V.S.
Brooks 18-22.) Applicants further commit to not creating any new
regulatory ``bottlenecks,'' by waiving the right to refuse to quote a
separately challengeable short-haul tariff rate to an existing
interchange with another carrier, in light of their new ability to
handle traffic in single-line service. (Appl. 1-7; id., V.S. Brooks
23.)
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\7\ Applicants state that KCS is now, and the combined entity
would continue to be, subject to the conditions related to traffic
moving via Laredo previously imposed by the Board in Kansas City
Southern--Control--The Kansas City Southern Railway, 7 S.T.B. 933
(2004), as well as terms related to the Laredo Gateway contained in
the evergreen agreement that KCS entered into with the National
Industrial Transportation League in conjunction with that
transaction. (Appl., V.S. Ottensmeyer 6, 21; id., V.S. Brooks 21.)
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Schedule for Consummation. Applicants state that CP would acquire
the shares of KCS from the voting trust and thereby exercise control
over KCS upon the effectiveness of a Board decision approving the
Transaction. Applicants further note that integration of the two
systems would begin as soon as possible and expect full integration to
be completed within three years of the Board's decision approving the
Transaction. (Appl. 1-5 to 1-6.)
Environmental Impacts. Applicants acknowledge that environmental
review under the National Environmental Policy Act of 1969 (NEPA), 42
U.S.C. 4321-4370m-12, is necessary in this case. As discussed below,
the increased traffic that would result from this transaction would
exceed the Board's thresholds for environmental review. Due to the
potentially significant impact that the Transaction may have on the
environment and communities in the affected area, the Board will
prepare a full Environmental Impact Statement (EIS). Applicants also
have agreed to prepare a Safety Integration Plan (SIP), pursuant to the
Board's regulations at 49 CFR 1106 and the FRA's regulations at 49 CFR
part 244, which will be addressed in the EIS. In the SIP, Applicants
will specify how they would ensure safe operations during the merger
and implementation process.
Historic Impacts. As part of the approval process, the Board must
evaluate the potential impacts of the Transaction on historic
properties, in accordance with section 106 of the National Historic
Preservation Act (NHPA), 54 U.S.C. 306108; the section 106 implementing
regulations, 36 CFR part 800; and the Board's environmental
regulations, 49 CFR part 1105. Applicants do not propose to construct
any new rail lines subject to Board licensing or to abandon any rail
lines as part of the Transaction. However, Applicants propose to make
certain capital improvements within the existing rail right-of-way,
including adding approximately four miles of double track on the KCS
Pittsburg Subdivision, adding approximately five miles of facility
working track adjacent to the International Freight Gateway intermodal
terminal near Kansas City, and adding or extending 24 passing sidings
along the combined network.
Labor Impacts. Applicants state that, given the projected traffic
growth resulting from the Transaction, they anticipate that over 1,000
operating positions would be created across CP-KCS's North American
network, with more than 800 of those positions in the United States,
and with most of the anticipated job growth in union-represented
positions. (Appl. 1-17; id. Ex. 13, Operating Plan 67; id., V.S. Becker
3, 5.) \8\ Applicants state that labor force changes would include the
relocation of certain operating personnel (including Soo Line
dispatchers) currently based at CP's U.S. headquarters in Minneapolis
to the future CP-KCS U.S. headquarters in Kansas City. (Id., Ex. 13,
Operating Plan 67, id., V.S. Becker 9-10.)
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\8\ In an erratum filed on November 5, 2021, Applicants
corrected information submitted in the Application, including
information contained in their labor impact analysis.
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Applicants note that the Transaction would be subject to the
employee conditions adopted in New York Dock--Control--Brooklyn Eastern
District Terminal, 360 I.C.C. 60 (1979), and further note that
Applicants would honor the obligations established in the ``cramdown''
agreements reached in 2000 and 2001 with certain labor organizations
that represent certain classes of employees of CP and KCS. (Appl. 1-18;
id., V.S. Becker 14.)
Primary Application Accepted. The Board finds that Applicants have
provided sufficient information to satisfy the requirements for a
``major''
[[Page 67575]]
transaction application. The Board finds that the Application meets the
requirements of 49 CFR 1180.4, 1180.6, 1180.7, 1180.8, and 1180.9
(2000) and is therefore complete.\9\ See 49 CFR 1180.4(c)(7) (``A
complete application contains all information for all applicant
carriers required by these procedures, except as modified by advance
waiver.'').
---------------------------------------------------------------------------
\9\ Hereinafter, all citations to 49 CFR part 1180, subpart A,
refer to the regulations in effect before July 11, 2001, unless
otherwise indicated. See Decision No. 4, FD 36500, slip op. at 2.
---------------------------------------------------------------------------
On November 19, 2021, UP filed a petition to reject the Application
as incomplete, asserting that the Application does not include all the
information needed to satisfy the market analyses and operational data
requirements under 49 CFR 1180.7 & 1180.8. Specifically, UP argues that
the rail-to-rail diversion analysis excludes 32% of potentially
divertible traffic, which UP claims critically undermines the market
analyses and operating plan, as well as environmental analysis under
NEPA. (UP Pet. 4-8.) UP further contends that Applicants fail to
support impacts on competition, passenger services, and freight service
on tracks used jointly with other railroads. (Id. at 8-15.) Lastly, UP
asserts that Applicants should be required to submit a Service
Assurance Plan, as required for cases filed under the Board's current
rules,\10\ in light of representations made in filings to the
Securities and Exchange Commission regarding possible service
disruptions during the integration process. (Id. at 16-17.) On November
22, 2021, Applicants filed a reply to UP's petition, arguing that UP's
petition was late-filed and that none of UP's arguments warrant
rejection of the Application. Also on November 22, 2021, CN filed a
comment in support of UP's petition.
---------------------------------------------------------------------------
\10\ 49 CFR 1180.10 (2020) requires applicants in major
transactions to identify potential areas of merger-related service
degradation and develop plans for mitigating instances of degraded
service.
---------------------------------------------------------------------------
The Board's regulations provide the ``greatest leeway to develop
the best evidence on the impacts of each individual transaction.'' 49
CFR 1180.7. Here, Applicants chose a particular traffic dataset to be
used in their diversion analysis model and explained those choices in
the Application.\11\ UP's arguments, submitted near the end of the
Board's 30-day period to review the completeness of the Application,
effectively express disagreement with Applicants' modeling choices and
question the adequacy of certain supporting evidence underlying
Applicants' analysis. But, given that Applicants have provided
explanations and supporting data and workpapers regarding those
choices, such concerns are more appropriately raised as a response to
the merits of the Transaction. The Board finds that UP's arguments
regarding the diversion analysis model do not provide a basis for
rejecting the Application as incomplete. Applicants have presented a
prima facie case, disclosing facts that, if construed in their most
favorable light, are sufficient to support a finding that the proposed
transaction is consistent with the public interest. 49 CFR
1180.4(c)(8). UP's arguments regarding a Service Assurance Plan also do
not warrant rejection of the Application because such a plan is not
required under the regulations governing this transaction. The Board
notes that, while it finds the Application to be complete, it reserves
the right it has exercised in the past to require the filing of
supplemental information, as necessary. See Soo Line Corp.--Control--
Cent. Me. & Que. Ry. US, FD 36368, slip op. at 3 (STB served May 4,
2020).
---------------------------------------------------------------------------
\11\ Cf. CSX Corp.--Control & Merger--Pan Am Sys., Inc., FD
36472, slip op. at 8-12 (STB served May 26, 2021) (rejecting a
merger application as incomplete due to numerous deficiencies that
prevented the Board from properly analyzing the competitive effects
of the proposed transaction, including, in several areas, the
absence of any supporting data).
---------------------------------------------------------------------------
Accordingly, the Application is accepted and, as discussed below,
the Board adopts a procedural schedule for consideration of the
Application.
Procedural Schedule. On March 22, 2021, concurrently filed with
their original notice of intent to file an application, CP and KCS
jointly filed a petition to establish a procedural schedule.
Applicants' proposed procedural schedule provides for a 10-month period
between the date an application is filed and the date on which the
Board would issue its final decision on the merits. (Pet. 1.) On
November 2, 2021, the Board issued a decision that detailed the
proposed procedural schedule, proposed its own modifications to the
schedule, and requested public comments. See Canadian Pac. Ry.--
Control--Kan. City S. (Decision No. 9), FD 36500 (STB served Nov. 2,
2021). The Board noted that, given the high level of interest in this
proceeding, as well as the complexity and magnitude of issues that may
potentially arise, the 10-month schedule proposed by Applicants did not
provide sufficient time. Id. at 2. Instead, the Board proposed to
conform the schedule to the time frames set forth in 49 U.S.C. 11325
and 49 CFR 1180.4. Decision No. 9, FD 36500, slip op. at 2.
Application Filing Date. In Decision No. 3, the Board provided
notice of Applicants' intent to file an application seeking authority
for the acquisition of control by CP of KCS, noting that Applicants had
entered into an Agreement and Plan of Merger on March 21, 2021 (March
2021 Merger Agreement). See Decision No. 3, FD 36500, slip op. at 2. On
May 21, 2021, KCS notified the Board that it had terminated the merger
agreement with Canadian Pacific and had entered into a merger agreement
with CN. (KCS Letter 1, May 21, 2021.) KCS stated that, accordingly, it
was withdrawing as a co-applicant in this proceeding. (Id. at 2.) In an
amended notice, filed on September 15, 2021 (Amended Notice),
Applicants stated that KCS rejoins CP as a co-applicant in this
proceeding, as KCS had since terminated its agreement to be acquired by
CN. (Amended Notice 2.) Applicants stated that they had executed a
definitive Agreement and Plan of Merger (September 2021 Merger
Agreement), which ``contemplates the same transaction on terms
identical in nearly every respect to those set forth'' in the March
2021 Merger Agreement. (Amended Notice 2-3.) In Decision No. 8, the
Board provided notice of receipt of the Amended Notice. See Decision
No. 8, FD 36500, slip op. at 2-3.
Some commenters assert that, under the Board's regulations,
Applicants may not file their application before December 15, 2021,
three months from the filing of Applicants' Amended Notice. (CN Comment
1, Nov. 10, 2021; BNSF Comment 12, Nov. 12, 2021; UP Comment 2, Nov.
12, 2021; CSXT Comment 6 n.23, Nov. 12, 2021.) Given that the March
2021 Merger Agreement had been terminated, some commenters contend that
they had no reason to consider, or devote resources to considering, the
implications of the Transaction. (CN Comment 2; UP Comment 3; see also
CSXT Comment 2.) These commenters assert that Applicants' Amended
Notice effectively restarted the procedural clock and requires a
minimum three-month waiting period before their application may be
filed and argue that the Board therefore should hold the Application in
abeyance and/or treat the Application as filed on December 15, 2021, to
provide a sufficient notice period. (CN Comment 5; BNSF Comment 12; UP
Comment 4-5.) On November 16, 2021, Applicants filed a reply to these
comments.
The Board finds that the Application was properly filed and finds
no basis for holding the Application in abeyance. Under 49 CFR Sec.
1180.4(b)(1), an applicant shall submit a prefiling notification to the
Board, ``[b]etween 3 to 6 months prior to the proposed filing of an
application in a major
[[Page 67576]]
transaction.'' To account for the possibility that six months would
pass without the application being filed, the Board's regulations
explicitly provide that this prefiling notification may be amended to
indicate a change in the anticipated filing date of the application. 49
CFR 1180.4(b)(3); see also R.R. Consolidation Procs., 360 I.C.C. 200,
207 (1980). Here, Applicants satisfied the 3-to-6-month notice
requirement on March 22, 2021, when they submitted a prefiling
notification that proposed to file an application on or about June 28,
2021. In their Amended Notice, Applicants informed the Board that they
had revised the projected filing date of the Application, as
contemplated by the Board's regulations, noting that they had executed
the September 2021 Merger Agreement, which was nearly identical to the
March 2021 Merger Agreement described in Decision No. 3, and proposed
the same control transaction contemplated in the initial merger
agreement. Nothing in the Board's regulations requires an additional
notice period upon the filing of an amended notice. Further, CP did not
withdraw its original notice or seek dismissal of this proceeding;
rather, it indicated its intent to go forward with an application to
acquire control of KCS, notwithstanding the termination of the March
2021 Merger Agreement. (See, e.g., CP Pet. for Expedited Declaratory
Relief 3-4, May 27, 2021 (seeking declaratory relief pertaining to
discovery materials to enable CP to complete its application despite
KCS's termination of the initial merger agreement with CP).) Therefore,
the Board finds that Applicants appropriately filed their Application
on October 29, 2021.
Evidentiary Record Deadlines. The Board has considered Applicants'
request for an expedited procedural schedule, as well as the comments
received. The Board received six comments regarding the proposed
procedural schedule. Applicants agree with the Board's proposal to
extend the evidentiary schedule by 40 days to allow sufficient time for
interested parties to evaluate the Application and prepare comments.
(CP/KCS Comment 1, Nov. 12, 2021.) However, Applicants request that the
deadlines for submitting written comments and for submitting responsive
applications be the same. (Id. at 4.) Applicants argue that
synchronizing the deadlines for comments and responsive applications
would create certain efficiencies for the interested parties. (Id. at
2-3.)
The Board also received separate comments on the proposed
procedural schedule from four railroads: CN on November 10, 2021, and
BNSF, CSX Transportation, Inc. (CSXT), and UP on November 12, 2021. In
addition, the American Chemistry Council and The Fertilizer Institute
(ACC/TFI) submitted joint comments on November 12, 2021. The four
railroads and ACC/TFI request that the Board extend the time for filing
written comments (and, in some instances, subsequent deadlines) by
various periods.
BNSF requests that the Board extend all deadlines, starting with
the deadline for submitting written comments, by 60 days. (BNSF Comment
2.) BNSF argues that because the Application lacks certain information,
additional time would be required to develop the necessary record and
analyze the impact of the transaction on domestic and transborder
movements. (Id. at 3-9.) CN, CSXT, and UP argue that all deadlines
should be extended so that the procedural schedule does not commence
before December 15, 2021--three months after the amended notice of
intent was filed. (See CN Comment 1; CSXT Comment 6 n.23; UP Comment
2.) CN otherwise expresses general support for the schedule as proposed
by the Board. (CN Comment 6.)
CSXT advocates for additional time to develop and analyze the
record before interested parties are required to respond to the
application. (CSXT Comment 2.) CSXT includes a proposed procedural
schedule with its comments, which provides for a written comment
deadline of February 28, 2022--122 days after the date on which the
Board received the application. (Id., Ex. A.)
Similarly, UP requests that the Board set the deadline for written
comments at 120 days after the filing date, consistent with the
deadline to submit responsive applications. (UP Comment 6.) It states
that the proposed schedule does not allow interested parties sufficient
time to review the record and provide comments. (Id. at 5.) UP notes
that the rationale that the Board applied to extending the deadline for
submitting responsive applications applies equally to written comments
because interested parties are as likely to raise concerns about the
proposed transaction in written comments as they are in responsive
applications. (Id. at 5-6.)
ACC/TFI request that the Board extend the comment period, and all
other deadlines, by two weeks because the current period for written
comments encompasses the holidays, when many people would be
unavailable. (ACC/TFI Comment 2, Nov. 12, 2021.) According to ACC/TFI,
a two-week extension would provide the necessary time to prepare
comments without infringing upon holiday activities. (Id.) UP expresses
similar concerns about the proposed schedule and the holidays. (See UP
Comment 6.) In addition, ACC/TFI, BNSF, CSXT, and UP raise concerns
that, under the proposed schedule, there is not sufficient time to
resolve potential discovery disputes before the comment deadline. (ACC/
TFI Comment 2; BNSF Comment 9 n.5; CSXT Comment 2-3; UP Comment 5
n.13.)
The Board declines to adopt the expedited procedural schedule
proposed by Applicants and adopts a procedural schedule pursuant to
which the Board will issue its final decision within 90 days of the
close of the evidentiary record, consistent with 49 U.S.C. 11325(b)(3),
provided that the environmental review process described below is
complete. The Board's procedural schedule, which is longer than what
was proposed by Applicants, will allow adequate time for comments
regarding this important transaction. Additionally, in response to
concerns raised by commenters, including Applicants, the Board will
synchronize the deadlines for written comments and responsive
applications. The Board will extend the deadline for submitting written
comments to 120 days after the application filing date to coincide with
the deadline for filing responsive applications and set the deadline
for responses to written comments at 175 days after the application
filing date. The Board's schedule also provides that any necessary oral
argument or public hearing would be held on a date to be determined by
the Board. The full procedural schedule (Procedural Schedule) adopted
here is set out in the Appendix to this decision.
Notice of Intent to Participate. Any person who wishes to
participate in this proceeding as a Party of Record must file with the
Board, no later than December 13, 2021, a notice of intent to
participate, accompanied by a certificate of service indicating that
the notice has been properly served on the Secretary of Transportation,
the Attorney General of the United States, Mr. Meyer (representing CP),
and Mr. Mullins (representing KCS). Parties who have already submitted
a notice of intent to participate are not required to resubmit an
additional notice.
If a request is made in a notice of intent to participate to have
more than one name added to the service list as a Party of Record
representing a particular entity, the extra name(s) will be added to
the service list as a ``Non-Party.'' Any person designated as a Non-
Party will receive copies of Board decisions, orders, and notices but
need not be
[[Page 67577]]
served with copies of filings submitted to the Board.
Service on Parties of Record. Each Party of Record will be required
to serve upon all other Parties of Record, within 10 days of the
service date of this decision, copies of all filings previously
submitted by that party (to the extent such filings have not previously
been served upon such other parties). Each Party of Record will also be
required to file with the Board, within 10 days of the service date of
this decision, a certificate of service indicating that the service
required by the preceding sentence has been accomplished. Every filing
made by a Party of Record after the service date of this decision must
have its own certificate of service indicating that all Parties of
Record on the service list have been served with a copy of the filing.
Members of the United States Congress and Governors are not Parties of
Record and need not be served with copies of filings, unless any Member
or Governor has requested to be, and is designated as, a Party of
Record.
Deadlines Applicable to Appeals and Replies. Consistent with prior
major merger proceedings, any appeal to a decision issued by Judge
McCarthy must be filed within three working days of the date of his
decision; any response to such appeal must be filed within three
working days of the date of filing of the appeal; and any reply to any
motion filed with the Board itself in the first instance must be filed
within three working days of the date of filing of the motion.
Environmental Matters. NEPA requires that the Board take
environmental considerations into account in its decision making. Under
both the regulations of the Council on Environmental Quality (CEQ)
implementing NEPA, and the Board's own environmental regulations,
actions are separated into three classes that prescribe the level of
documentation required in the NEPA process. Actions that may
significantly affect the environment generally require the Board to
prepare an EIS. See 49 CFR 1105.4(f), 1105.6(a), 1105.10(a). Actions
that may or may not have a significant environmental impact ordinarily
require the Board to prepare a more limited Environmental Assessment
(EA). See 49 CFR 1105.4(d), 1105.6(b), 1105.10(b). Actions with
environmental effects that are ordinarily insignificant may be
categorically excluded from NEPA review, without a case-by-case
environmental review. See 49 CFR 1105.6(c). A merger transaction
generally requires the preparation of an EA or EIS where certain
thresholds would be exceeded. See 49 CFR 1105.7(e)(5).
The thresholds for assessing environmental impacts from increased
rail traffic on rail lines in railroad merger proceedings are an
increase in rail traffic of at least 100 percent (measured in gross ton
miles annually) or an increase of at least eight trains per day. 49 CFR
1105.7(e)(5). For air quality impacts, rail lines located in areas
classified as being in ``nonattainment'' areas under the Clean Air Act
(42 U.S.C. 7401-7671q) are also assessed if they would experience an
increase in rail traffic of at least 50 percent (measured in gross ton
miles annually) or an increase of at least three trains per day. 49 CFR
1105.7(e)(5)(ii). Based on the information provided by Applicants to
date, OEA has identified rail lines in Illinois, Iowa, Missouri,
Kansas, Oklahoma, Arkansas, Louisiana, and Texas that would experience
increases in rail traffic that would exceed the analysis thresholds as
a result of the Transaction.
The NEPA Process. Based on information provided by Applicants and
in consultation with OEA, the Board has determined that the preparation
of an EIS is appropriate. Under NEPA, an EIS is prepared for ``major
federal actions significantly affecting the quality of the human
environment.'' 42 U.S.C. 4332(2)(C). An EIS is usually not required in
merger cases; a more limited EA generally is sufficient because there
are not usually significant environmental impacts from the change in
owners and operators of existing lines. 49 CFR 1105.6(b)(4). In this
case, however, a full EIS is warranted in light of the magnitude of the
projected traffic increases on certain line segments and the potential
impacts of the proposed transaction on a number of communities that
would likely result from the increased activity levels on rail line
segments and at rail facilities. (See Appl. 1-29 to 1-31.)
The EIS process will ensure that the Board takes the hard look at
potential environmental consequences that is required by NEPA. On
November 12, 2021, OEA issued a Notice of Intent to prepare an EIS and
requested comments on the scope of the EIS, including the alternatives
and issues to be analyzed. After the close of the comment period on the
scope of the EIS on December 17, 2021, OEA will review all comments
received and issue a final scope of study for the EIS. Following the
issuance of the final scope, OEA will prepare a Draft EIS that will
analyze in detail the potential environmental impacts of the
Transaction and make recommendations for environmental mitigation. OEA
anticipates issuing the Draft EIS in the spring of 2022. The public
will have at least 45 days to comment on the Draft EIS. A Final EIS
will then be issued that will respond to all public comments received,
present the results of any further environmental analysis, and
incorporate final environmental mitigation recommendations. OEA
anticipates issuing the Final EIS in the fall of 2022. The Board will
consider the entire environmental record in deciding whether to
authorize the Transaction as proposed, deny the application, or grant
it with conditions, including environmental mitigation conditions.
Historic Review. In accordance with Section 106 of the NHPA, the
Board is required to determine the effects of its licensing actions on
cultural resources. The Board's environmental rules establish
exceptions to the need for historic review in certain cases, including
the sale of a rail line for the purpose of continued rail operations
where further Board approval is required to abandon any service and
there are no plans to dispose of or alter properties subject to the
Board's jurisdiction that are 50 years old or older. 49 CFR
1105.8.(b)(1). Applicants do not propose to construct any new rail
lines subject to Board licensing or to abandon any rail lines as part
of the Transaction. Applicants also have no plans to alter or dispose
of properties 50 or more years old, and any future line abandonment or
construction activities by Applicants would be subject to the Board's
jurisdiction. However, Applicants intend to make certain capital
improvements within the rail right-of-way as part of the Transaction,
including adding double track, adding facility working track, adding
new passing sidings, and extending existing sidings. Consistent with
past practice in merger cases, OEA will therefore focus any necessary
Section 106 review on the capital improvement projects that Applicants
would undertake as part of the Transaction because those projects are
the only components of the Transaction that could have the potential to
affect cultural resources.
Safety Integration Plan. Applicants state that they will work with
the FRA to formulate a SIP to address the safe integration of their
rail lines, equipment, personnel, and operating practices. (Appl., V.S.
Creel 25.) A SIP is a comprehensive written plan, prepared in
accordance with FRA guidelines or regulations, explaining the process
by which Applicants intend to integrate the operation of the properties
involved in a manner that would maintain safety at every step of the
integration process, in the event the
[[Page 67578]]
Board approves the Transaction. 49 CFR 1106.2; 49 CFR 244.9. The
proposed SIP will be submitted to the Board and to FRA and will be
reviewed by OEA and made available for public review and comment during
the EIS process, consistent with the Board's regulations at 49 CFR 1106
and with 49 CFR 244.17. If the Board authorizes the Transaction and
adopts the SIP, the Board requires compliance with the SIP as a
condition to its authorization. 49 CFR 1106.4(b)(4).
In its petition for a procedural schedule, Applicants proposed that
the SIP be filed with OEA 30 days after the filing of the Application.
However, the Board and FRA's regulations allow for Applicants to submit
the proposed SIP up to 60 days after the application is filed, which
would be December 28, 2021. Accordingly, the Board will also allow
Applicants the full 60 days to submit the SIP.
Service of Decisions, Orders, and Notices. The Board will serve
copies of its decisions, orders, and notices on those persons who are
designated on the official service list as a Party of Record or Non-
Party. All other interested persons are encouraged to secure copies of
decisions, orders, and notices via the Board's website at <a href="http://www.stb.gov">www.stb.gov</a>.
Access to Filings. Under the Board's rules, any document filed with
the Board (including applications, pleadings, etc.) shall be promptly
furnished to interested persons on request, unless subject to a
protective order. 49 CFR 1180.4(a)(3). The Application and other
filings in this proceeding will be furnished to interested persons upon
request and will also be available on the Board's website at
<a href="http://www.stb.gov">www.stb.gov</a>. In addition, the Application may be obtained from Messrs.
Meyer and Mullins at the addresses indicated above.
It is ordered:
1. The Application in Docket No. FD 36500 is accepted for
consideration.
2. The parties to this proceeding must comply with the procedural
schedule adopted by the Board in this proceeding as shown in the
Appendix to this decision. The parties to this proceeding must comply
with the procedural requirements described in this decision.
3. UP's petition to reject the Application is denied.
4. This decision will be published in the Federal Register.
5. This decision is effective on November 26, 2021.
Decided: November 23, 2021.
By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and
Schultz.
Jeffrey Herzig,
Clearance Clerk.
Appendix--Procedural Schedule
------------------------------------------------------------------------
------------------------------------------------------------------------
October 29, 2021........................ Application filed.
November 26, 2021....................... Board notice of acceptance of
Application to be published
in the Federal Register.
December 13, 2021....................... Notices of intent to
participate in this
proceeding due.
December 28, 2021....................... Proposed Safety Integration
Plan (SIP) to be filed with
OEA and FRA.
January 12, 2022........................ Descriptions of anticipated
responsive, including
inconsistent, applications
due. Petitions for waiver or
clarification with respect to
such applications due.
February 22, 2022....................... Responsive environmental
information and environmental
verified statements for
responsive, including
inconsistent, applicants due.
February 28, 2022....................... Comments, protests, requests
for conditions, and any other
evidence and argument in
opposition to the Application
due. This includes any
comments from the U.S.
Department of Justice (DOJ)
and U.S. Department of
Transportation (USDOT).
Responsive, including
inconsistent, applications
due.
March 30, 2022.......................... Notice of acceptance of
responsive, including
inconsistent, applications,
if any, published in the
Federal Register.
April 22, 2022.......................... Responses to comments,
protests, requests for
conditions, and other
opposition due, including to
DOJ and USDOT filings.
Rebuttal in support of the
Application due. Responses to
responsive, including
inconsistent, applications
due.
May 23, 2022............................ Rebuttals in support of
responsive, including
inconsistent, applications
due.
July 1, 2022............................ Final briefs due.\12\
TBD..................................... Public hearing (if
necessary).\13\ (Close of the
record.)
TBD..................................... Service date of final
decision.\14\
------------------------------------------------------------------------
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\12\ The Board will also determine the page limits for final
briefs in a later decision after the record has been more fully
developed.
\13\ The Board will decide whether to conduct a public hearing
in a later decision after the record has been more fully developed.
See 49 U.S.C. 11324(a) (``The Board shall hold a public hearing
unless the Board determines that a public hearing is not necessary
in the public interest.'').
\14\ 49 U.S.C. 11325(b)(3) provides that the Board must issue
its final decision within 90 days of the close of the evidentiary
record and that evidentiary proceedings be completed within one year
of the date of publication of this notice in the Federal Register.
However, under NEPA, the Board may not issue a final decision until
after the required environmental review is complete. In the event
the EIS process is not able to be concluded in sufficient time for
the Board to meet the 90-day provision set forth in Sec.
11325(b)(3), the Board will issue a final decision as soon as
possible after that process is complete.
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[FR Doc. 2021-25926 Filed 11-24-21; 8:45 am]
BILLING CODE 4915-01-P
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</html>Indexed from Federal Register on November 26, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.