Notice2023-19321
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 (General Oversight)
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
September 7, 2023
Issuing agencies
Surface Transportation Board
Abstract
By decision served March 15, 2023 (Decision No. 35), the Board approved the acquisition of control by Canadian Pacific Railway (CP) of Kansas City Southern (KCS), resulting in the newly merged entity, Canadian Pacific Kansas City Limited (CPKC). As a condition of the Board's approval, the Board imposed a seven-year oversight period, during which the Board will closely monitor CPKC's compliance with, and the effectiveness of, the conditions imposed by the Board. Throughout the oversight period, CPKC is required to report numerous service, operational, and competition-related metrics at prescribed frequencies, as described in Decision No. 35, Appendix B, "Reporting & Recordkeeping Requirements." The Board is now instituting this proceeding to implement the general oversight condition and provides further guidance regarding CPKC's reporting and recordkeeping obligations.
Full Text
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<title>Federal Register, Volume 88 Issue 172 (Thursday, September 7, 2023)</title>
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[Federal Register Volume 88, Number 172 (Thursday, September 7, 2023)]
[Notices]
[Pages 61658-61668]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-19321]
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SURFACE TRANSPORTATION BOARD
[Docket No. FD 36500 (Sub-No. 6)]
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 (General Oversight)
AGENCY: Surface Transportation Board.
ACTION: Decision No. 1; notice of general oversight proceeding and
guidance on reporting requirements.
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SUMMARY: By decision served March 15, 2023 (Decision No. 35), the Board
approved the acquisition of control by Canadian Pacific Railway (CP) of
Kansas City Southern (KCS), resulting in the newly merged entity,
Canadian Pacific Kansas City Limited (CPKC). As a condition of the
Board's approval, the Board imposed a seven-year oversight period,
during which the Board will closely monitor CPKC's compliance with, and
the effectiveness of, the conditions imposed by the Board. Throughout
the oversight period, CPKC is required to report numerous service,
operational, and competition-related
[[Page 61659]]
metrics at prescribed frequencies, as described in Decision No. 35,
Appendix B, ``Reporting & Recordkeeping Requirements.'' The Board is
now instituting this proceeding to implement the general oversight
condition and provides further guidance regarding CPKC's reporting and
recordkeeping obligations.
DATES: Any person who wishes to participate in this proceeding as a
Party of Record must file, no later than September 11, 2023, a notice
of intent to participate. CPKC's first data submission, including
information for the required five-year lookback period (with the one
exception pertaining to car miles described below), is due by October
15, 2023, with subsequent submissions due on the 15th of each month for
the duration of the oversight period. CPKC's first report on truck-to-
rail and rail-to-rail diversions will be due January 15, 2024, and will
be due every six months thereafter, for the duration of the oversight
period.
ADDRESSES: Any filing submitted in this proceeding must be filed with
the Board via e-filing on the Board's website or in writing addressed
to 395 E Street SW, Washington, DC 20423-0001. In addition, one copy of
each filing must be sent to (1) CPKC's representative, David L. Meyer,
Law Office of David L. Meyer, 1105 S Street NW, Washington, DC 20009;
and (2) any other person designated as a Party of Record on the service
list for this subdocket.
FOR FURTHER INFORMATION CONTACT: Valerie Quinn at (202) 740-5567. If
you require an accommodation under the Americans with Disabilities Act,
please call (202) 245-0245.
SUPPLEMENTARY INFORMATION: In Decision No. 35, the Board established
oversight for a period of seven years, during which the Board will
closely monitor CPKC's compliance with, and the effectiveness of, the
imposed conditions. Canadian Pac. Ry.--Control--Kan. City S., FD 36500
\1\ et al., slip op. at 142 (STB served Mar. 15, 2023). On May 8, 2023,
the Board held a technical conference with CPKC on the logistical
aspects of the reporting and recordkeeping requirements ordered during
the oversight period (e.g., scope, methodology, and formatting). (See
Tech. Conf. Tr., May 8, 2023; CPKC Tech. Conf. Ex., July 13, 2023.) The
Board is now instituting this proceeding to implement the general
oversight condition and provide further guidance regarding CPKC's
reporting and recordkeeping obligations during the oversight period.
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\1\ A copy of this decision is being served on all parties of
record on the service list in the main docket, FD 36500.
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Historical Data. In Decision No. 35, the Board ordered CPKC to
provide monthly historical information for the interchange volume and
operational datasets for a five-year period dating back from April 14,
2023. Decision No. 35, FD 36500 et al., slip op. at 196, 197-99. It
required CPKC to provide this information with its first monthly
submission. Id. at 196, 197. At the technical conference, CPKC
indicated that while it would be ready to make its first submission by
July 15, 2023, and while it would have a ``considerable amount of
historical data available to report,'' it likely would not be able to
submit all of the historical information by that date due to
uncertainties about applying methodologies adopted to measure the
required operational data to past events. (Tech. Conf. Tr. 26:20-28:4,
32:13-33:8 (``We haven't been going back and making sure that [the
methodologies] work all the way back . . . that is something we'll be
doing once we get more closure on exactly how staff sees us
implementing a particular metric or methodology.'').) Given the
additional time beyond the anticipated due date of July 15 that CPKC
will have to make its first submission, with the exception of car mile
data discussed below, CPKC must provide all of the required historical
data with its first monthly report October 15, 2023.
Traffic Tapes. In Decision No. 35, the Board imposed a condition
requiring CPKC to preserve its 100% traffic tapes for the five-year
lookback period and for the duration of the oversight period. Decision
No. 35, FD 36500 et al., slip op. at 82.
Definition of 100% Traffic Tapes. The Board stated that the 100%
traffic tapes to be retained should include origin, destination, and
interchange information; contract and tariff information; and revenue
information on a country-specific basis. Id. At the technical
conference, CPKC expounded upon its understanding of what the 100%
traffic tapes would contain. (Tech. Conf. Tr. 80:12-81:15.) CPKC
indicated that its 100% traffic tape data would consist of traffic
files generally drawn from revenue waybill data and presented a
PowerPoint slide, (Slide 7), listing the associated data fields. (CPKC
Tech. Conf. Ex., Slide 7, July 13, 2023.) On June 28, 2023, following
the technical conference, CPKC provided descriptions of the Slide 7
data fields, with notations indicating data fields that it does not
anticipate populating or that it proposes to delete. (CPKC Tech. Conf.
Ex., June 28, 2023.)
The Board determines that the 100% traffic tapes to be retained for
the five-year lookback period and for the duration of the oversight
period shall include all the data listed in Slide 7, as defined in the
descriptions submitted on June 28, 2023. While CPKC proposes to delete
certain data fields, all the fields in Slide 7 are necessary to ensure
the usefulness and completeness of the traffic tapes, and all must be
retained so as not to render other data unusable. For the same reason,
CPKC is required to retain the following additional information:
Price Data
[cir] Applicable fuel surcharge rate (e.g., rate per car mile,
percentage rate);
[cir] Applicable fuel surcharge basis fuel price (e.g., No. 2
Diesel Retail Sales by All Sellers, On-Highway Diesel, Highway Diesel
Fuel);
[cir] Provider of car and container/trailer (e.g., CPKC- or
predecessor-owned, CPKC- or predecessor-leased, shipper, or foreign
road);
[cir] The contract, agreement, tariff, pricing authority, etc.,
that the shipment is billed under, including the amendment and item
numbers where applicable;
[cir] The country to which the CPKC or predecessor revenues,
surcharges, or rebates are applied (i.e., United States, Canada, or
Mexico);
Quantity Data
[cir] For both legacy CP and KCS/Kansas City Southern de
M[eacute]xico, S.A. de C.V. (KCSM) data, a weight measure indicator
that identifies the unit of measure for every record it preserves in
its 100% traffic tapes (e.g., pounds, short tons, metric tons,
hundredweight); \2\
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\2\ CPKC indicates that KCS/KCSM does not retain a unit of
measure for the weight of its shipments. (CPKC Tech. Conf. Ex. 4,
June 28, 2023.)
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Route Data <SUP>3</SUP>
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\3\ CPKC is required to retain this data even if the data must
be sourced from systems separate from finance/accounting.
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[cir] For received rebilled/Rule 11 traffic, the origin waybill
cross reference (origin railroad, waybill number, and date);
[cir] For delivered rebilled/Rule 11 traffic, the delivered waybill
cross reference (receiving railroad, waybill number, and date);
[cir] For shipments received in interchange, the date and time the
shipment was interchanged;
[cir] For shipments delivered in interchange, the date and time the
shipment was interchanged;
[[Page 61660]]
[cir] For shipments terminated on CPKC or predecessor system, the
date and time the shipment was terminated;
[cir] Total actual loaded movement miles;
[cir] Total actual empty movement miles;
[cir] Total actual miles used to derive applicable fuel surcharges;
[cir] Total actual loaded miles on the CPKC or predecessor system;
[cir] Total actual empty miles on the CPKC or predecessor system.
Submission of 100% Traffic Tapes. The Board left open the
possibility that it would require CPKC to submit its 100% traffic tapes
to the Board, noting that such information could be valuable in
corroborating reported information and providing visibility into
traffic moving across the merged networks. Decision No. 35, FD 36500 et
al., slip op. at 144.
BNSF Railway Company (BNSF) and the American Chemistry Council, the
Fertilizer Institute, and the National Industrial Transportation League
(collectively, Joint Associations) request that, consistent with past
mergers, the Board ensure that the traffic tapes CPKC is required to
preserve be submitted to the Board and made part of the record and
available to interested parties, subject to protective order to ensure
confidentiality.\4\ BNSF asserts that the traffic tape data would be an
important element in assessing potential gateway foreclosure,
particularly the gateway to Mexico. (BNSF Comment 4.) BNSF further
contends that allowing interested parties access to the traffic tape
data would ``greatly simplify the [Board] staff's analysis if
interested parties have access to the traffic tapes and an opportunity
to submit analyses and comments on the data.'' (Id.) The Joint
Associations endorse these arguments. (Joint Ass'ns Comment 1.)
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\4\ BNSF's and Joint Associations' comments were filed on April
19, 2023, and April 24, 2023, respectively, in reply to a request
filed by Commuter Rail Division of the Regional Transportation
Authority d/b/a Metra (Metra), seeking clarification of, and certain
modifications to, the oversight conditions imposed by the Board.
Metra's request is addressed in a separate decision.
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CPKC asserts that making its traffic tapes part of the record is
unwarranted and inappropriate, as this would ``disclose not only the
level of individual shipper rates, but myriad other commercially and
competitively sensitive details about every traffic movement--all of
which would be sensitive not just from CPKC's vantage but also from the
perspective of [shippers] and CPKC's interchange partners.'' (CPKC
Reply 7, May 9, 2023.) Rather, CPKC asserts, should issues arise during
the oversight period, the Board may then consider whether targeted
discovery of CPKC traffic data, including certain CPKC waybill data, is
warranted. (Id. at 8.)
The Board continues to recognize the potential usefulness of the
data to be included in the retained traffic tapes but will not require
CPKC to submit its traffic tapes to the Board at this time. The
extensive data to be submitted by CPKC--including interchange volumes,
diversion studies, and service metrics--will greatly assist the Board
and other interested parties in assessing and evaluating any
transaction-related impacts, including the competitiveness of service
provided by CPKC at the affected gateways, as well as any capacity
issues or service degradations. However, the Board recognizes that this
is extraordinarily commercially and competitively sensitive data and
that certain parties may have an opportunity to receive more targeted
data, subject to appropriate protections, in discovery if a dispute
were to arise. The Board may require CPKC to submit its traffic tapes,
or certain data contained therein, at a later date, as it has done in
prior cases.
Reporting Guidance and Clarification. As part of the Board's
oversight condition, CPKC will report on numerous competitive, service,
and operational metrics at prescribed frequencies, as described in
``Reporting & Recordkeeping Guidelines,'' Appendix B of Decision No.
35. Decision No. 35x, FD 36500 et al., slip op. at 196-99. During the
technical conference, CPKC informed Board staff of certain limitations
in providing the required information, as well as its intention to
report data not explicitly listed in Appendix B. The Board addresses
these issues below. Moreover, those participating in this oversight
proceeding, including other carriers sharing facilities with CPKC,
should consider collecting and retaining their own information to
substantiate any future claims of post-merger impacts, should problems
on lines shared with CPKC ever arise.
Car Miles Data for CPKC Traffic Volumes Interchanged at Gateways.
In Decision No. 35, the Board explained that CPKC should be prepared to
discuss at the technical conference its ability to provide car mile
data for traffic subject to CPKC's interchange reporting obligations,
along with any burden associated with that data's production. Decision
No. 35, FD 36500 et al., slip op. at 82. At the technical conference,
CPKC stated that its data source for the required traffic volume
information ``doesn't have a measure of actual car miles on the
network.'' \5\ (Tech. Conf. Tr. 78:5-8.) CPKC indicated that while it
could provide an ``estimate'' of that data, it would need to derive it
from revenue information from the CPKC waybill. (Id. at 78:13-79:4; see
also id. at 97:1-16 (``[W]e . . . would be using the implicit mileage
that's reflected in a calculated ton miles figure . . . .'').) It
asserted that this effort would not yield a ``precise measure of actual
car miles.'' (Id. at 79:5-11; see also id. at 97:1-16 (stating that
such calculation would provide an estimate not necessarily tied to the
actual route of movement).)
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\5\ Separately, at the technical conference, CPKC noted that
Decision No. 35's reference to ``count of cars interchanged,''
Decision No. 35, FD 36500 et al., slip op. at 196, read literally,
may not capture intermodal traffic moved via container or trailer,
(Tech. Conf. Tr. 60:8-61:12). The Board clarifies that it intended
for CPKC to report on both cars and intermodal units interchanged
with connecting carriers at the gateways identified in Appendix B,
characterized by the two-digit STCC identified on the waybill and
broken out by interchange partner. The Board also acknowledges
limitations regarding what can be known about the commodities moved
in intermodal traffic. (See Tech. Conf. Tr. 64:15-65:1 (``We know we
don't know what's inside those containers. We know on the waybill
they're classified as freight all kinds.'').)
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Although the Board emphasized in Decision No. 35 that length of
haul is not necessarily determinative of traffic share for competing
movements, it nonetheless recognized some relationship between traffic
share and the relative length of the competing carriers' routes.
Decision No. 35, FD 36500 et al., slip op. at 34. Information regarding
length of haul may provide important context for understanding why
certain CPKC traffic currently interchanged with a competing carrier
may subsequently be diverted onto a longer haul on the CPKC network.
Accordingly, CPKC is ordered to provide the car miles (or intermodal
unit miles, see supra note 5) associated with the interchange traffic
volumes that it must report pursuant to Decision No. 35, also
characterized by two-digit STCC, broken out by interchange partner, and
including five years of historical data. With its first submission,
CPKC must explain the methodology used to derive this information. For
this metric, CPKC may take additional time to calculate the required
historical data, if necessary, but must offer a date in its first
submission by which it will submit that information.
Diversion Reporting by Route or Corridor. In Decision No. 35, the
Board explained that CPKC should be prepared to discuss at the
technical conference its ability to provide the required data for
truck-to-rail and rail-to-rail diversions (i.e., carload volumes
[[Page 61661]]
characterized by two-digit STCC) on a corridor- or route-specific basis
and any associated burden that would be incurred in doing so. Decision
No. 35, FD 36500 et al., slip op. at 82. At the technical conference,
CPKC indicated that it currently envisions reporting such information
mostly on a regional basis (e.g., traffic between the upper Midwest and
Mexico) and questioned the usefulness of more granular reporting.
(Tech. Conf. Tr. 93:6-94:10.) It noted, however, the possibility of
reporting specific business ``wins'' qualitatively. (Id. at 94:3-10
(``[T]he Marketing Department may know very well that a given customer
decided to award us the business instead of a prior Class 1 in this
particular lane or from this plant to this destination or what have
you, and then we'll know that and I see that as more of a qualitative
report than a quantitative report . . . .'').) The Board will decline
at this time to order CPKC to report the required diversion data on a
corridor- or route-specific basis, given the possibility that the sort
of reporting that CPKC is considering may well provide a useful and
complete understanding of post-merger diversions to the CPKC network.
In its first diversion report, however, CPKC must provide justification
for the level of detail chosen to present the information required in
Decision No. 35. Should CPKC choose not to report volumes on a
corridor- or route-specific basis, the Board may require that
information to be provided in subsequent reports.\6\
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\6\ Regardless of the level of detail chosen for reporting the
required diversion data, any such corridor- or route-specific volume
data possessed by CPKC for any of the CP or KCS lines subject to
this proceeding should also be provided.
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Neches River Bridge. CPKC is required to provide, by railroad,
certain operational metrics for trains operating over the Neches River
Bridge. Decision No. 35, FD 36500 et al., slip op. at 107. During the
technical conference, CPKC indicated that, while it could provide
operational metrics for CPKC and Amtrak trains, it would not be able to
provide separate metrics for Union Pacific Railroad Company (UP) and
BNSF trains. (Tech. Conf. Tr. 144:3-10; see also CPKC Tech. Conf. Ex.,
Slide 29, July 13, 2023.) While the Board recognizes that CPKC's
current practices may only capture aggregated data for UP and BNSF
trains at the Neches River Bridge, the record demonstrates that CPKC is
capable of providing separate operational metrics for UP and BNSF. (See
CPKC Reb., R.V.S. Elphick/Orr, paras. 57 & 58 & Table 2, July 13, 2022
(showing separate train counts and occupancy times for UP and BNSF).)
Therefore, CPKC is ordered to provide separate operational metrics for
UP and BNSF trains over the Neches River Bridge, as described in
Decision No. 35, to the maximum extent practicable. With its first
submission, CPKC must also describe in detail the methodology it
outlined at the Technical Conference for measuring occupancy times and
minutes held at the Neches River Bridge, including any limitations
associated with that approach. (Tech. Conf. Tr. 143:14-154:22; see also
id. at 155:1-6 (noting limitations on scope of historical data
reporting); CPKC Tech. Conf. Ex., Slides 27-28, July 13, 2023.)
Laredo Bridge Hold Time Methodology. CPKC is also required to
provide, by railroad, certain operational metrics for trains operating
over the Laredo Bridge, including ``minutes held prior to moving over
the bridge per movement.'' Decision No. 35, FD 36500 et al., slip op.
at 107. At the technical conference, CPKC informed staff that the
statistics it maintains for operations over the Laredo Bridge do not
capture minutes held prior to movement over the bridge but that CPKC
would consider other approaches to consistently track hold times at the
Laredo Bridge. (Tech. Conf. Tr. 174:20-177:16, 179:7-180:5.) The Board
directs CPKC to report hold time at the Laredo Bridge based on whatever
alternative approach it develops, and, with its initial data
submission, provide an explanation of the methodology it uses to derive
that information.
Methodological Variations & Reporting Limits for Non-CPKC Trains &
Lines. CPKC also must report train count, length, and transit and dwell
time statistics for trains operating over certain additional segments
as part of its operational metrics. Decision No. 35, FD 36500 et al.,
slip op. at 106-07. CPKC states that it will use either train movement
event data, Centralized Traffic Control (CTC) signal data, or
geographic information system (GIS) data \7\ to capture the required
information, depending on which carrier owns the underlying segment
and/or whether CPKC is reporting on its own train movements or those of
a different railroad. (See generally CPKC Tech. Conf. Ex., Slides 17-
63, July 13, 2023.) It also identifies certain limits on its ability to
collect the ordered data with respect to non-CPKC train movements and/
or movements on non-CPKC owned lines. For example, CPKC indicated that
it would rely on GIS data to measure transit and dwell time for CPKC
trains on lines where it does not have access to signal data, but that
it will only be able to provide historical data for these metrics to
mid-2021. (Tech. Conf. Tr. 163:16-165:2, 185:1-12; see also CPKC Tech.
Conf. Ex., Slides 36-37, 53-54, 57-58, July 13, 2023.) CPKC also
explained that it would be unable to provide counts of non-CPKC trains
on BNSF-owned lines in the Twin Cities area, given its lack of
visibility into those movements. (Tech. Conf. Tr. 135:12-19; see also
CPKC Tech. Conf. Ex., Slide 23, July 13, 2023.) In addition, CPKC
indicated that while it will be able use CTC signal data to measure
counts of UP trains moving over the CPKC Polo Line, it will not be able
to verify the identity of those trains with complete certainty. (Tech.
Conf. Tr. 112:15-113:22 9 (``probably a very good assumption 99 percent
of the time'' that it is a UP train); see also CPKC Tech. Conf. Ex.,
Slide 18-19; 22-23; 27-29, July 13, 2023.) The Board recognizes CPKC's
need to use a variety of methodologies to collect the operating
statistics ordered by the Board, and it understands that there are
limits associated with the collection of information for lines not
owned by CPKC and for trains not operated by CPKC. It orders CPKC, with
its initial data submission, to provide for each reporting segment an
explanation of the methodology used to calculate the required train
count, length, and transit and dwell time statistics (including with
respect to the bridges, where applicable), and any limitations
associated with that approach. As noted above, the Board also
encourages other stakeholders to retain any of their own data that
would be helpful to substantiate any future claims regarding post-
merger impacts on shared lines.
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\7\ GIS data are collected for locomotives, track, and signal
infrastructure through the use of Positive Train Control systems,
which are ``integrated command, control, communications, and
information systems for controlling train movements with safety,
security, precision, and efficiency.'' See Positive Train Control
(PTC) Info. (R&D), <a href="https://railroads.dot.gov/train-control/ptc/positive-train-control-ptc-information-rd">https://railroads.dot.gov/train-control/ptc/positive-train-control-ptc-information-rd</a> (last visited August 24,
2023).
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Customer Experience Metrics. During the technical conference, CPKC
noted that the ``Customer Experience'' service metrics it is required
to report are those that CPKC currently reports pursuant to United
States Rail Service Issues--Performance Data Reporting, Docket No. EP
724 (Sub-No. 4) and Urgent Issues in Freight Rail Service--Railroad
Reporting, Docket No. EP 770 (Sub-No. 1). (Tech. Conf. Tr. 41:15-45:3;
see also CPKC Final Br., App. A at A8, Oct. 21, 2022.) The Board
clarifies that, by reporting the customer service metrics in those
dockets, CPKC will be in compliance with its obligations in this
proceeding and need not include those
[[Page 61662]]
metrics in its monthly submissions in this subdocket. Should the
reporting obligations in EP 724 (Sub-No. 4) and/or EP 770 (Sub-No. 1)
be discontinued, CPKC shall continue to submit these customer service
metrics in its monthly submissions in this proceeding for the duration
of the oversight period.
In the technical conference, CPKC highlighted two categories of
``Customer Experience'' service data that are not included in its
reporting for EP 724 (Sub-No. 4) or EP 770 (Sub-No. 1) and that it
intends to report in this subdocket. First, CPKC intends to report on
delays caused to Metra trains by CPKC freight trains on Metra's
Milwaukee District-West Line and Milwaukee District-North Line, to the
extent Metra provides the requisite data and detailed information to
CPKC. (See Decision No. 35, slip op. at 111; Hr'g Tr. 1623:6-12, Oct.
6, 2022; Tech. Conf. Tr. 103:15-105:1.) Second, CPKC states that it
will report the weekly average percentage of trains departing on time
from Wylie Intermodal Terminal and the average train speed on the
Meridian Speedway, between Shreveport, La., and Meridian, Miss. (Hr'g
Tr. 1622:7-13, Oct. 6, 2022; Tech. Conf. Tr. 98:15-99:12.) While CPKC
had discussed reporting these metrics during this proceeding, they are
not explicitly included in the reporting requirements contained in
Appendix B. The Board will hold CPKC to its representations regarding
Metra delay and Wylie Intermodal Terminal and Meridian Speedway
reporting, and CPKC shall include this data as part of its publicly
filed Customer Experience service metrics. See Decision No. 35, FD
36500 et al., slip op. at 143.
Reporting Format. CPKC must submit its reports as filings to the
Board, consisting of an electronic copy of the data. Board staff will
provide revised templates to help facilitate CPKC's data
submissions.\8\ CPKC shall provide explanations of its methodologies
for deriving the required information with its initial filing, as
discussed above.\9\
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\8\ For discussion purposes, Board staff provided sample
templates to CPKC in advance of the technical conference. Those
drafts were subsequently posted to the docket in Docket No. FD 36500
on July 27, 2023. The sample templates have been revised to account
for certain reporting issues discussed at the technical conference
and above and will be posted to the docket in this oversight
proceeding.
\9\ Several revisions and minor technical corrections have been
made to the ``Reporting & Recordkeeping Requirements'' contained in
Appendix B of Decision No. 35 in response to certain matters
discussed above and to describe the reporting requirements in a
manner consistent with how the data will be reported in the
templates. The Board also corrects minor typographical errors
contained in the original appendix. An amended ``Reporting &
Recordkeeping Requirements,'' along with a redline to the original
version, is appended to this decision.
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Inflation Index. In Decision No. 35, the Board ordered, during the
oversight period, CPKC to provide to a shipper a written justification
upon request for any rate increase above the rate of inflation for
interline movements subject to CPKC's open gateway obligation. Decision
No. 35, FD 36500 et al., slip op. at 173. On May 30, 2023, consistent
with Decision No. 35, id. at 78 n.131, CPKC petitioned the Board for
permission to use the [Iacute]ndice Nacional de Precios al Consumidor
(INPC), as reported by Mexico's National Institute of Statistics,
Geography and Informatics, to measure the rate of inflation for
movements in Mexico. (CPKC's Pet. Respecting Mex. Inflation-Adjusted
Index 1.) No party opposed CPKC's petition, and for the reasons
described therein, the Board approves use of the INPC for purposes of
the conditions imposed in Decision No. 35.
Protective Order. For the oversight subdocket, the Board adopts the
protective order imposed in the main docket of this proceeding. See
Canadian Pac. Ry.--Control--Kan. City S., FD 36500 (STB served Apr. 2,
2021). Parties may submit filings, as appropriate, under seal marked
Confidential or Highly Confidential pursuant to the protective order.
Service List. A copy of this decision is being served on all
parties of record in Docket No. FD 36500. This decision will serve as
notice that persons who were parties of record in Docket No. FD 36500
will not automatically be placed on the service list as parties of
record in the general oversight proceeding, Docket No. FD 36500 (Sub-
No. 6). Any person who wishes to participate in this oversight
proceeding as a party of record must file, in this subdocket, no later
than September 11, 2023, a notice of intent to participate, accompanied
by a certificate of service indicating that the notice has been
properly served on CPKC's representative.
It is ordered:
1. Any person who wishes to participate in this oversight
proceeding as a party of record must file, in this subdocket, a notice
of intent to participate, no later than September 11, 2023, accompanied
by a certificate of service indicating that the notice has been
properly served on CPKC's representative.
2. CPKC's first data submission, including information for the
five-year lookback period (with the one exception pertaining to car
miles described above), is due by October 15, 2023, with subsequent
submissions due on the 15th of the month for the duration of the
oversight period.
3. CPKC's first report on truck-to-rail and rail-to-rail diversions
will be due January 15, 2024, and will be due every six months
thereafter, for the duration of the oversight period.
4. This decision will be published in the Federal Register.
5. This decision is effective on its service date.
Decided: August 31, 2023.
By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and
Schultz. Board Member Primus concurred with a separate expression.
Board Member Primus, concurring:
I concur with today's decision. However, I maintain my
objections to the Board's approval of the transaction, as stated in
my March 15, 2023 dissent.
Brendetta Jones,
Clearance Clerk.
Appendix
Amended Reporting & Recordkeeping Requirements
Gateways Conditions
Item 1
Applicants will provide a monthly report containing the
following information related to interchange volumes at gateways.
With their first submission, Applicants will also provide the same
historical monthly information for a five-year period dating back
from the effective date of this decision, or if data is no longer
available for the entirety of that time period, then from the
earliest date for which it is available. This data will be used to
establish a baseline by which to interpret future changes.
Count of cars/intermodal units interchanged with connecting
carriers at interchange.
<bullet> CP Interchange Locations:
[cir] Eastport, Minneapolis/St. Paul, Chicago, and Kansas City
<bullet> KCS Interchange Locations:
[cir] Laredo, Robstown, Beaumont, Shreveport, Dallas, Jackson,
Meridian, East St. Louis, Kansas City, and New Orleans
Information should include the total count of cars/intermodal
units interchanged (i) categorized by two-digit STCC, (ii) broken
out by interchange partner, and (iii) with associated car/intermodal
unit miles.
Item 2
Applicants will report on a biannual basis (every six months)
the following information, categorized by two-digit STCC and on a
carload basis:
<bullet> Truck-to-rail diversions on the CP and KCS lines
subject to this proceeding.
<bullet> Rail-to-rail diversions on the CP and KCS lines subject
to this proceeding broken out in the following categories:
[cir] Joint line movements converted to single line service
[cir] Movements that CPKC has diverted from other railroads on to
the merged system
[[Page 61663]]
Item 3
Applicants will preserve their 100% traffic tapes for a five-
year period dating back from the effective date of this decision and
for the duration of the oversight period. The data to be preserved
includes all data that Applicants compile and maintain in their 100%
traffic tapes in the ordinary course of business, including but not
limited to the following for CP and KCS operations during the five-
year lookback period, and for CPKC operations during the oversight
period, in the U.S. and for all transborder movements between the
U.S. and Mexico or Canada: origin, destination, and interchange
information; contract and tariff information; and revenue
information on a country-specific basis. It must also include the
data that the Board ordered to be retained in Decision No. 1 of the
oversight proceeding.\10\
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\10\ If data is no longer available for the entirety of the
five-year lookback period, then Applicants must preserve traffic
tapes from the earliest date for which they are available. To the
extent the oversight record retention requirements described herein
exceed those set forth at 49 CFR parts 1220 and 1244, the oversight
conditions control.
---------------------------------------------------------------------------
Item 4
Applicants will establish protocols and recordkeeping practices
sufficient to enable CPKC to respond promptly and accurately to
inquiries by the Board and/or shippers in the event future concerns
or disputes arise in connection with the open gateway conditions
imposed in this decision, including being able to provide the Board
with a list of rate increases above inflation for interline
movements subject to the open gateway obligation.
Customer Experience
On a monthly basis, Applicants will report weekly data on the
service-related metrics pertaining to Metra on-time performance, on-
time train departures from the Wylie Intermodal Terminal, and
average train speeds on the Meridian Speedway. Service-related
metrics detailed in the CPKC Service Promise and Attachment 1 of
their Final Brief will be reported in Docket Nos. EP 724 (Sub-No. 4)
and EP 770 (Sub-No. 1).\11\ With their first submission, Applicants
will provide a description of the methodology used to compile this
data and will update that description if there is a subsequent
change in methodology for calculating service metrics.
---------------------------------------------------------------------------
\11\ Should the reporting obligations in Docket Nos. EP 724
(Sub-No. 4) and/or EP 770 (Sub-No. 1) be discontinued, CPKC shall
continue to report these customer service metrics in its monthly
submissions in this proceeding for the duration of the oversight
period.
---------------------------------------------------------------------------
Operational Data
Applicants will provide a monthly report containing information
related to train operations at the following locations, to the
maximum extent practicable. With their first submission, Applicants
will also provide the same historical monthly information for a
five-year period dating back from the effective date of this
decision, or if data is no longer available for the entirety of that
time period, then from the earliest date for which it is available.
Polo Line in Missouri
For the segment from Airline Junction, Mo., to Polo, Mo.
<bullet> Weekly average number of trains per day by railroad
<bullet> Weekly CPKC 25th percentile, median, 75th percentile, and
maximum train length
<bullet> Weekly CPKC average transit time and maximum transit time
Twin Cities Area
For the lines between Hoffman Avenue and Northtown/Shoreham,
broken out by the BNSF St. Paul Subdivision, the BNSF Midway
Subdivision, the CP Withrow Subdivision, and the CP St. Paul
Subdivision.
<bullet> Weekly average number of trains per day by railroad to the
maximum extent practicable
<bullet> Weekly CPKC 25th percentile, median, 75th percentile, and
maximum train length
<bullet> Weekly CPKC average transit time and maximum transit time
Texas
Neches River Bridge
By railroad (including passenger, bridge opening trains, and all
other types of trains):
<bullet> Weekly average number of trains per day
<bullet> Weekly maximum trains per day
<bullet> Weekly 25th percentile, median, 75th percentile, and
maximum train lengths
<bullet> Weekly number of trains over 10,000 ft
<bullet> Weekly total daily occupancy minutes
<bullet> Average occupancy time in minutes per movement
<bullet> Average minutes held prior to moving over the bridge per
movement
Beaumont, Tex. to Rosenberg, Tex. Segment
<bullet> Weekly average number of CPKC trains per day
<bullet> Weekly CPKC 25th percentile, median, 75th percentile, and
maximum train lengths
<bullet> Weekly number of CPKC trains over 10,000 ft
<bullet> Weekly CPKC average transit time and maximum transit time
Houston, Tex. Terminal
<bullet> Weekly CPKC average transit time
[cir] By route (e.g., Houston Subdivision Route and Beaumont
Subdivision Route)
<bullet> Weekly CPKC average dwell
Rosenberg to Laredo, Tex. Segment
<bullet> Weekly average number of CPKC trains per day
<bullet> Weekly CPKC 25th percentile, median, 75th percentile, and
maximum train length
<bullet> Weekly number of CPKC trains over 10,000 ft
<bullet> Weekly CPKC average transit time and maximum transit time
Laredo Bridge
By railroad (including other types of trains):
<bullet> Weekly average number of trains per day
<bullet> Weekly maximum trains per day
<bullet> Weekly 25th percentile, median, 75th percentile, and
maximum train length
<bullet> Weekly number of trains over 10,000 ft
<bullet> Weekly total daily occupancy minutes
<bullet> Average occupancy time in minutes per movement
<bullet> Average minutes held prior to moving over the bridge per
movement to the maximum extent practicable
Metra & Chicago Communities
MD-W Line: Between Randall Road (Tower B-35) and Tower B-17 (Trains To/
From Chicago Subdivision)
<bullet> Weekly average transit time and weekly maximum transit time
for CPKC through trains between Tower B-35 and Tower B-17
<bullet> Weekly average number of CPKC trains per day
[ssquf] For MD-W Line--Randall Road (Tower B-35) and Tower B-17
split between trains departing B35 and B17
<bullet> Weekly CPKC 25th percentile, median, 75th percentile, and
maximum train length
<bullet> Weekly number of CPKC trains over 10,000 ft
MD-W Line: Bensenville Yard/Tower B-12 to Tower A-5
<bullet> Weekly average transit time and weekly maximum transit time
for CPKC through trains between Tower B-12 and Tower A-5
<bullet> Weekly average number of CPKC trains per day
[ssquf] For MD-W Line--Bensenville Yard/Tower B-12 to Tower A-5
split between trains departing B12 and A5
<bullet> Weekly CPKC 25th percentile, median, 75th percentile, and
maximum train length
<bullet> Weekly number of CPKC trains over 10,000 ft
MD-N Line: Rondout to Tower A-5
Between Rondout and Tower A-20 and between Tower A-20 and Tower
A-5:
<bullet> Weekly average transit time and weekly maximum transit time
for CPKC through trains (CP/KCS Commitment)
<bullet> Weekly average number of CPKC trains per day
<bullet> Weekly CPKC 25th percentile, median, 75th percentile, and
maximum train length
<bullet> Weekly number of CPKC trains over 10,000 ft
CP Marquette Subdivision Between Sabula Junction and River Junction
<bullet> Weekly average transit time for CPKC through trains across
the segment
<bullet> Weekly CPKC 25th percentile, median, 75th percentile, and
maximum train length
<bullet> Weekly average number of CPKC trains per day
<bullet> Weekly number of CPKC trains over 10,000 ft
<bullet> Status of capacity expansion work
BILLING CODE 4915-01-P
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[FR Doc. 2023-19321 Filed 9-6-23; 8:45 am]
BILLING CODE 4915-01-C
</pre></body>
</html>Indexed from Federal Register on September 7, 2023.
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.