CSX Corporation and CSX Transportation, Inc., et al.-Control and Merger-Pan Am Systems, Inc., Pan Am Railways, Inc., Boston and Maine Corporation, Maine Central Railroad Company, Northern Railroad, Pan Am Southern LLC, Portland Terminal Company, Springfield Terminal Railway Company, Stony Brook Railroad Company, and Vermont & Massachusetts Railroad Company, 16009-16016 [2021-06211]
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Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Notices
use of automated collection techniques
or other forms of information
technology.
Please note that comments submitted
in response to this Notice are public
record. Before including any detailed
personal information, you should be
aware that your comments as submitted,
including your personal information,
will be available for public review.
Abstract of Proposed Collection
TechGirls enables students aged 15–
17 to gain exposure to a range of careers
in science, technology, engineering, and
mathematics (STEM) through a monthlong summer scholarship program in the
United States. The program includes
programming bootcamp, leadership
skills development, job shadow with
women in STEM fields, and a home stay
with U.S. families. In addition to
exposure to career and educational
pathways, participants gain
understanding of the United States and
its culture and create a network of
STEM-focused alumnae upon their
return home. The authority for the
program is the Mutual Educational and
Cultural Exchange Act of 1961, as
amended (22 U.S.C. 2451 et seq.).
In order to assess the efficacy and
impact of TechGirls, the U.S.
Department of State’s Bureau of
Educational and Cultural Affairs (ECA)
intends to conduct an evaluation of the
program, which will include collection
of data from program alumnae between
2012 and 2019, program staff, host
families in the United States, and job
shadow hosts. As the TechGirls program
has been running for almost 10 years,
ECA is conducting this evaluation to
determine the extent to which the
program is achieving its long-term goals.
In order to do so, ECA has contracted
Dexis Consulting Group to conduct
surveys with alumnae and surveys with
their host families, program staff, and
job shadow hosts.
Methodology
As baseline information is limited to
initial profiles, it is necessary to collect
information directly from program
alumnae to assess the outcomes of the
TechGirls experience, particularly in the
areas of educational and career
trajectories and networking with others.
Additional perspectives will be sought
from the participants’ host families and
job shadow hosts. All of these groups
will receive online surveys.
Kevin E. Bryant,
Deputy Director, Office of Directives
Management, Department of State.
[FR Doc. 2021–06208 Filed 3–24–21; 8:45 am]
BILLING CODE 4710–05–P
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DEPARTMENT OF STATE
[Public Notice 11382]
Determination and Certification Under
Section 490(b)(1)(A) of the Foreign
Assistance Act Relating to the Largest
Exporting and Importing Countries of
Certain Precursor Chemicals
Pursuant to Section 490(b)(1)(A) of
the Foreign Assistance Act of 1961, as
amended, I hereby determine and certify
the top five exporting and importing
countries and economies of
pseudoephedrine and ephedrine (the
People’s Republic of China, Denmark,
France, Germany, India, Indonesia,
Republic of Korea, Singapore,
Switzerland, Turkey, and the United
Kingdom) have cooperated fully with
the United States, or have taken
adequate steps on their own, to achieve
full compliance with the goals and
objectives established by the 1988 UN
Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances.
This determination and certification
shall be published in the Federal
Register, and copies shall be provided
to Congress together with the
accompanying Memorandum of
Justification.
Dated: February 19, 2021.
Daniel B. Smith,
Acting Deputy Secretary of State.
[FR Doc. 2021–06178 Filed 3–24–21; 8:45 am]
BILLING CODE 4710–17–P
State (telephone: 202–632–6471; email:
section2459@state.gov). The mailing
address is U.S. Department of State, L/
PD, SA–5, Suite 5H03, Washington, DC
20522–0505.
SUPPLEMENTARY INFORMATION: The
foregoing determinations were made
pursuant to the authority vested in me
by the Act of October 19, 1965 (79 Stat.
985; 22 U.S.C. 2459), Executive Order
12047 of March 27, 1978, the Foreign
Affairs Reform and Restructuring Act of
1998 (112 Stat. 2681, et seq.; 22 U.S.C.
6501 note, et seq.), Delegation of
Authority No. 234 of October 1, 1999,
and Delegation of Authority No. 236–3
of August 28, 2000.
Matthew R. Lussenhop,
Acting Assistant Secretary, Bureau of
Educational and Cultural Affairs, Department
of State.
[FR Doc. 2021–06212 Filed 3–24–21; 8:45 am]
BILLING CODE 4710–05–P
SURFACE TRANSPORTATION BOARD
[Docket No. FD 36472]
CSX Corporation and CSX
Transportation, Inc., et al.—Control
and Merger—Pan Am Systems, Inc.,
Pan Am Railways, Inc., Boston and
Maine Corporation, Maine Central
Railroad Company, Northern Railroad,
Pan Am Southern LLC, Portland
Terminal Company, Springfield
Terminal Railway Company, Stony
Brook Railroad Company, and Vermont
& Massachusetts Railroad Company
DEPARTMENT OF STATE
AGENCY:
[Public Notice 11386]
ACTION:
Notice of Determinations; Culturally
Significant Objects Being Imported for
Exhibition—Determinations: ‘‘Ce´zanne:
The Drawings’’ Exhibition
Notice is hereby given of the
following determinations: I hereby
determine that certain objects being
imported from abroad pursuant to
agreements with their foreign owners or
custodians for temporary display in the
exhibition ‘‘Ce´zanne: The Drawings’’ at
The Museum of Modern Art, New York,
New York, and at possible additional
exhibitions or venues yet to be
determined, are of cultural significance,
and, further, that their temporary
exhibition or display within the United
States as aforementioned is in the
national interest. I have ordered that
Public Notice of these determinations be
published in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Chi
D. Tran, Program Administrator, Office
of the Legal Adviser, U.S. Department of
SUMMARY:
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16009
Surface Transportation Board.
Decision No. 1 in Docket No. FD
36472; Notice of Receipt of Prefiling
Notification.
The Surface Transportation
Board (Board) 1 has reviewed the
submission filed February 25, 2021, by
CSX Corporation (CSXC), CSX
Transportation Inc. (CSXT),2 747 Merger
Sub 2, Inc. (747 Merger Sub 2), Pan Am
Systems, Inc. (Systems), Pan Am
SUMMARY:
1 This decision embraces the following dockets:
Norfolk Southern Railway—Trackage Rights
Exemption—CSX Transportation, Inc., Docket No.
FD 36472 (Sub-No. 1); Norfolk Southern Railway—
Trackage Rights Exemption—Providence &
Worcester Railroad, Docket No. FD 36472 (Sub-No
2); Norfolk Southern Railway—Trackage Rights
Exemption—Boston & Maine Corp., Docket No. FD
36472 (Sub-No. 3); Norfolk Southern Railway—
Trackage Rights Exemption—Pan Am Southern
LLC, Docket No. FD 36472 (Sub-No. 4); Pittsburg &
Shawmut Railroad—Operation Exemption—Pan
Am Southern LLC, Docket No. FD 36472 (Sub-No.
5); SMS Rail Lines of New York, LLC—
Discontinuance Exemption—in Albany County,
N.Y., Docket No. AB 1312X.
2 CSXT is a wholly owned subsidiary of CSXC.
CSXC and CSXT are referred to collectively as CSX.
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Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Notices
Railways, Inc. (PAR), Boston and Maine
Corporation (Boston & Maine), Maine
Central Railroad Company (Maine
Central), Northern Railroad (Northern),
Portland Terminal Company (Portland
Terminal), Springfield Terminal
Railway Company (Springfield
Terminal), Stony Brook Railroad
Company (Stony Brook), and Vermont &
Massachusetts Railroad Company
(V&M) (collectively, Applicants). The
submission is styled as an application
for a ‘‘minor’’ transaction seeking Board
approval for: (1) CSXC, CSXT, and 747
Merger Sub 2 to control the seven
railroads controlled by Systems and
PAR,3 and (2) CSXT to merge six of the
seven railroads into CSXT. This
proposal is referred to as the ‘‘Proposed
Transaction.’’
The Board finds that the Proposed
Transaction would be a ‘‘significant’’
transaction. The Board’s regulations
require that applicants give notice two
to four months prior to the filing of an
application in a ‘‘significant’’
transaction. Because Applicants argue
that the Proposed Transaction is a
‘‘minor’’ transaction, they did not file
the required prefiling notification before
their February 25, 2021 submission
seeking Board approval of this
‘‘significant’’ transaction and did not
pay the filing fee for a ‘‘significant’’
transaction. Their submission cannot be
treated as an application at this time.
The Board will, however, consider the
February 25, 2021 submission a
prefiling notification 4 and publish
notice of it in the Federal Register,
which will permit Applicants to perfect
their application by supplementing their
submission with the requisite
information for a ‘‘significant’’
transaction in accordance with the
Board’s regulations, between April 25
and June 25, 2021 (i.e., two to four
months after the Notice was filed).
When filing a prefiling notification,
merger applicants in a ‘‘significant’’
transaction must propose a procedural
schedule for Board review of their
proposed transaction. As part of their
tender of an application for a ‘‘minor’’
transaction, Applicants had proposed a
procedural schedule that tracks the
statutory deadlines for processing
‘‘minor’’ applications. Because the
Board finds the proposed transaction to
3 Systems
directly and wholly owns PAR, which
in turn directly and wholly owns four rail carriers:
Boston & Maine, Maine Central, Portland Terminal,
and Springfield Terminal. Boston & Maine directly
and wholly owns Northern and Stony Brook, as
well as a 98% interest in V&M. These seven rail
carriers will be referred to collectively as the PAR
Railroads.
4 Because the Board will treat the February 25,
2021 submission as the prefiling notification, that
submission will be referred to as the ‘‘Notice.’’
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be ‘‘significant,’’ Applicants must file
with the Board, no later than April 1,
2021, a revised proposed procedural
schedule that reflects the Board’s
determination that this is a ‘‘significant’’
transaction. The proposed procedural
schedule should indicate the
approximate filing date of its
supplement perfecting its application
for a ‘‘significant’’ transaction, which
date, as noted, must be between April
25 and June 25, 2021. Comments on the
proposed procedural schedule will be
due 10 days after publication of the
proposed procedural schedule in the
Federal Register.
The Board’s regulations also call for
merger applicants to indicate in their
prefiling notification the year to be used
for the impact analysis required in
‘‘significant’’ transactions. In their
Notice, Applicants used operating data
from 2019 in their Operating Plan-Minor
(Exhibit 15). The Board therefore will
designate 2019 as the year to be used for
impact analysis in the application
unless Applicants indicate otherwise
when they submit the proposed
procedural schedule.
In addition, Applicants must submit
the difference between the filing fee for
a ‘‘minor’’ transaction (which
Applicants already have paid) and the
fee for a ‘‘significant’’ transaction when
they file their application for a
‘‘significant’’ transaction.
DATES: Applicants must, by April 1,
2021, file a proposed procedural
schedule with the Board.
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)
CSX’s and 747 Merger Sub 2’s
representative, Anthony J. LaRocca,
Steptoe & Johnson LLP, 1330
Connecticut Ave. NW, Washington, DC
20036; (4) Systems’, PAR’s, and PAR
Railroads’ representative, Robert B.
Culliford, Pan Am Systems, Inc., 1700
Iron Horse Park, North Billerica, MA
01862; and (5) any other person
designated as a Party of Record on the
service list.
FOR FURTHER INFORMATION CONTACT:
Amy Ziehm at (202) 245–0391.
Assistance for the hearing impaired is
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available through the Federal Relay
Service at (800) 877–8339.
SUPPLEMENTARY INFORMATION: Systems
directly and wholly owns PAR, which
in turn directly and wholly owns Boston
& Maine, Maine Central, Portland
Terminal, and Springfield Terminal.
Boston & Maine directly and wholly
owns Northern and Stony Brook. Boston
& Maine also owns a 98% interest in
V&M. The PAR Railroads own rail lines
and provide rail service on a freight rail
network (PAR System) in New England,
from Maine in the north to the Boston
region in the south.5 Springfield
Terminal operates rail service on the
PAR System on behalf of the PAR
Railroads pursuant to leases over lines
owned and leased by the other PAR
Railroads. (Notice 2–3.)
Boston & Maine also owns a 50%
interest in Pan Am Southern LLC (PAS),
a Class II carrier. (Id. at 3.) PAS is a 50/
50 joint venture between Boston &
Maine and Norfolk Southern Railway
Company (NSR). (Id.) PAS runs between
upstate New York and a point just past
Ayer, Mass., where it connects with the
PAR System. (Notice, Ex. 22, V.S.
Reishus 6.) PAS also uses a north-south
route running between Vermont and
Connecticut over lines owned by
Genesee & Wyoming, Inc. (GWI), which
connects with the PAS mainline at East
Deerfield, Mass., and connects with
other PAS lines in Connecticut.6 (Id.,
Ex. 22, V.S. Reishus 6.) Springfield
Terminal, also a Class II rail carrier,
operates PAS as PAS’s agent. (Notice 3.)
NSR has trackage rights over the PAS
line between Mechanicville, N.Y., and
Ayer, but Springfield Terminal
currently operates NSR trains over that
segment pursuant to a haulage
agreement between PAS and NSR.
(Notice, Ex. 15, Operating Plan-Minor
6.)
CSXT, a Class I rail carrier, is a
wholly owned subsidiary of CSXC.
CSXT owns and operates approximately
19,500 miles of railroad in 23 states and
the District of Columbia, as well as in
the Canadian Provinces of Ontario and
Quebec. (Notice 28.) Applicants state
that CSXT’s access to New England
shippers occurs primarily through its
own mainline, which connects with
several New England railroads
5 Applicants state that the PAR System consists of
approximately 808 route miles of rail lines,
including approximately 724.53 owned and leased
(including perpetual freight easement) route miles
and approximately 83.62 trackage-rights route miles
in Massachusetts, Maine, New Hampshire, and
Vermont. (Notice 26.)
6 PAS’s network consists of approximately 425
route miles, including approximately 281.38 owned
route miles (including perpetual freight easement)
and approximately 143.62 trackage-rights route
miles. (Notice 31.)
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including with the PAR System at
Barbers Station, Mass., near Worcester,
Mass. (Notice, Ex. 22, V.S. Reishus 6.)
Applicants state that CSXT also serves
New England shippers by interlining
with PAS at Rotterdam Junction, N.Y.
(Id., Ex. 22, V.S. Reishus at 6.)
Under the Proposed Transaction, CSX
and 747 Merger Sub 2 would acquire
control of the PAR Railroads, and CSXT
would merge the PAR Railroads, except
V&M, into CSXT.7 (Notice 2.) As CSXT
would wholly own and control Boston
& Maine, CSX and 747 Merger Sub 2
also seek authority to acquire Boston &
Maine’s 50% joint ownership in PAS.
(Id. at 4.) Applicants state that CSXT,
NSR, and GWI have entered into
agreements regarding the operation of
PAS upon consummation of the
Proposed Transaction, specifically: (1) A
settlement agreement between CSXT
and NSR (NSR Settlement Agreement),
which includes an agreement relating to
operations at Ayer; and (2) a Term Sheet
Agreement among CSXT, NSR and GWI.
(Id. at 4–5.) Applicants state that these
two agreements contemplate
transactions (Related Transactions) that
are integrally related to the Proposed
Transaction and require Board
authorization: (1) Pittsburgh & Shawmut
Railroad, LLC, d/b/a Berkshire & Eastern
Railroad (B&E), a Class III rail carrier
and a wholly owned subsidiary of GWI,
seeks authority to replace Springfield
Terminal as the operator of PAS,8 and
(2) NSR seeks trackage rights over
existing lines owned by four carriers
(CSXT, Boston & Maine, Providence &
Worcester Railroad Company (P&W) (a
GWI subsidiary), and PAS) to allow NSR
additional flexibility with respect to
NSR’s existing service to an intermodal
facility located on the PAS network at
7 Specifically, Systems would be merged with 747
Merger Sub 1, Inc., with Systems surviving.
Immediately thereafter, Systems would be merged
with 747 Merger Sub 2, with 747 Merger Sub 2
surviving and the separate corporate existence of
Systems ceasing. 747 Merger Sub 2, as the surviving
corporation, would be renamed Pan Am Systems,
Inc., and would be a wholly owned subsidiary of
CSXC. Concurrent with closing, CSXC would
contribute Pan Am Systems, Inc., and all of its
subsidiaries to CSXT. CSXT would thereafter
control the rail carrier subsidiaries of Pan Am
Systems, Inc., and would merge those subsidiaries,
except V&M, into CSXT at a later date. (Notice 3.)
8 As described below, this operating agreement is
the subject of the petition for exemption filed in
Docket No. FD 36472 (Sub-No. 5). Applicants state
that they anticipate consummating the Proposed
Transaction and Related Transactions at the same
time; however, CSXT, NSR, and GWI have agreed
that, if the Proposed Transaction is consummated
prior to the replacement of Springfield Terminal by
B&E and the initiation of PAS operations by B&E,
then Springfield Terminal would continue to
operate PAS until Springfield Terminal is replaced
as the PAS operator. (Notice 5–6.)
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Ayer.9 (Notice 4–7; id., Ex. 15,
Operating Plan-Minor 2–3.)
Related Filings. In connection with
the Related Transactions, several
verified notices of exemption and a
petition for exemption were filed
concurrently.
NSR Trackage Rights Authority. NSR
has filed verified notices of exemption
under 49 CFR 1180.2(d)(7) for overhead
trackage rights pursuant to trackage
rights agreements with CSXT, P&W,
Boston & Maine, and PAS.10 NSR states
that trackage rights being acquired
pursuant to these verified notices of
exemption would not take effect until
the Proposed Transaction is
consummated. Applicants state in their
Notice that the trackage rights would
allow NSR, upon consummation of the
Proposed Transaction, to move up to
one train pair per day, carrying
intermodal and automotive vehicles
traffic, between NSR’s connection with
CSXT at Voorheesville, N.Y., and the
intermodal terminal located near Ayer,
over CSXT’s east-west rail line between
Voorheesville and Worcester, then over
P&W’s rail line between Worcester and
Barbers Station, then over Boston &
Maine’s rail line between Barbers
Station and Harvard, Mass., and finally
over PAS’s rail line between Harvard
and Ayer. (Notice 6.) Specifically:
• In Norfolk Southern Railway—
Trackage Rights Exemption—CSX
Transportation, Inc., Docket No. FD
36472 (Sub-No. 1), NSR seeks
approximately 161.5 miles of overhead
trackage rights on CSXT’s mainline
between approximately Voorheesville
(at or near milepost QG 22.5) and
Worcester (at or near milepost QB 44.5)
(inclusive of appurtenant passing tracks
and sidings).
• In Norfolk Southern Railway—
Trackage Rights Exemption—
Providence & Worcester Railroad,
Docket No. FD 36472 (Sub-No. 2), NSR
seeks approximately 2.90 miles of
overhead trackage rights on P&W’s
mainline between a connection with the
tracks of CSXT at Worcester at milepost
0.0, over Track 1 extending from the
east side of Green Street to the point of
9 As described below, these proposed trackage
rights are the subjects of verified notices of
exemption that have been filed in Docket Nos. FD
36472 (Sub-No. 1), FD 36472 (Sub-No. 2), FD 36472
(Sub-No. 3), and FD 36472 (Sub-No. 4).
10 NSR has filed a public version and highly
confidential versions of the trackage rights
agreements in each of these sub-dockets. A motion
for protective order was filed and a protective order
issued on March 3, 2021, in Docket No. FD 36472,
which by its terms applies to related proceedings.
To ensure clarity in the administrative record,
however, the Board will issue the same protective
order in this decision for all of the related
proceedings. See the Appendix to this decision.
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16011
merger of said Track 1 and the Main
Track so called at milepost 1.05, south
of Garden Street, and over said Main
Track thereafter from milepost 1.05 to
P&W’s Gardner Branch baseline station
153+50, which is the point of
connection with the tracks of Boston &
Maine at Barbers Station at milepost
2.90.
• In Norfolk Southern Railway—
Trackage Rights Exemption—Boston &
Maine Corp., Docket No. FD 36472 (SubNo. 3), NSR seeks approximately 22.08
miles of overhead trackage rights on
Boston & Maine’s line from milepost X
2.92 at Barber, Mass.,11 and connection
to P&W, to milepost X 25.0 at Harvard
and connection to PAS.
• In Norfolk Southern Railway—
Trackage Rights Exemption—Pan Am
Southern LLC, Docket No. FD 36472
(Sub-No. 4), NSR seeks approximately
3.01 miles of overhead trackage rights
on PAS’s line from milepost X 25.0 at
Harvard, and connection to Boston &
Maine, to milepost X 28.01 at Ayer.
Discontinuance Authority Over NSR
Line. In SMS Rail Lines of New York,
LLC—Discontinuance Exemption—in
Albany County, N.Y., Docket No. AB
1312X, NSR filed, on behalf of SMS Rail
Lines of New York, LLC (SMS) and with
SMS’s consent, a verified notice of
exemption for SMS to discontinue
common carrier service and terminate
its lease operations over approximately
15 miles of rail line owned by NSR
located between milepost 11.00 in
Voorheesville and a point 50 feet south
of the centerline of the bridge at
milepost 26.14 (or engineering station
6136+/-) in Delanson, N.Y., including
the use of wye track and any track
leading to the Northeast Industrial Park
at milepost 12.1 and 12.29, in Albany
County, N.Y.
B&E Operating Authority. In Pittsburg
& Shawmut Railroad—Operation
Exemption—Pan Am Southern LLC,
Docket No. FD 36472 (Sub-No. 5), B&E
has filed a petition for exemption under
49 U.S.C. 10502 and 49 CFR part 1121
from the provisions of 49 U.S.C.
11323(a)(2) and 11324 to allow B&E to
enter into contracts to operate the
approximately 425 route miles of lines
and incidental trackage rights of PAS
currently being operated by Springfield
Terminal.12 B&E notes that its petition
11 In the verified notice, NSR uses milepost X 2.92
at Barber, Mass., to describe the overhead trackage
rights it seeks. The trackage rights agreement
governing this transaction refers to this point as
being in Barbers Station, Mass.
12 NSR has filed a public version and highly
confidential versions of the Term Sheet Agreement,
entered into among GWI, CSXT and NSR, which
contains the significant terms of the operating
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is filed as a transaction integrally related
to, and dependent upon, approval of the
Proposed Transaction.
Public Interest Considerations.
Applicants assert that the Proposed
Transaction, combined with the Related
Transactions, would substantially
enhance competition by improving
access to New England over multiple
rail routes and would have no adverse
impact on competition. (Notice 5, 7.)
Applicants state that the Proposed
Transaction would be an end-to-end
combination of two railroad networks
and would allow CSXT to convert
interline operations between CSXT and
the PAR System to efficient, single-line
service. (Notice, Ex. 22, V.S. Pelkey 4.)
Applicants further state that the
Proposed Transaction would allow
CSXT to expand its operations into New
England, giving CSXT’s existing
customers more direct and efficient
access to New England markets and
giving the PAR System’s existing
customers better rail service and singleline access to the rest of CSXT’s rail
network. (Id., Ex. 22, V.S. Pelkey 2.)
Applicants assert that this single-line
service would reduce switching and
interchange, eliminate the need to
coordinate a hand-off between separate
rail carriers, result in a savings in transit
times, and reduce the chance of
unexpected problems in the physical
interchange of traffic between two
independent carriers. (Id., Ex. 22, V.S.
Pelkey 4.)
According to Applicants, the Related
Transactions would strengthen PAS as
an independent route to New England
for all carriers that connect to PAS and
that the agreements underlying the
Related Transactions would enhance
competition and improve rail service.
(Notice 4.) As part of the Related
Transactions, Applicants state that PAS
would replace Springfield Terminal
with B&E as the contract operator of
PAS, and that B&E would operate and
set rates for PAS in a nondiscriminatory fashion as to all rail
carriers that have the ability to
interchange traffic with PAS or
otherwise connect to PAS. (Id. at 8.)
Applicants thus argue that CSXT would
not have any control over the rates set
by PAS, as rate-setting would be
exclusively the responsibility of B&E.
(Notice, Ex. 22, V.S. Pelkey 11.)
Applicants further note that CSXT
would retain Boston & Maine’s one-half
interest in PAS and would be able to use
PAS as an alternative means to access
agreement to be entered into between PAS and B&E.
As discussed above, the Board will issue the same
protective order that was issued on March 3, 2021,
in Docket No. FD 36472, for all of the related
proceedings. See the Appendix to this decision.
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17:52 Mar 24, 2021
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New England, but CSXT would not be
able to affect the access of other carriers
to New England over PAS. (Id., Ex. 22,
V.S. Pelkey 11.) Further, Applicants
assert that GWI’s operating experience
and familiarity with the New England
rail market would improve PAS
operations and rail service. (Notice 13.)
Applicants state that the trackage
rights to be obtained by NSR would
allow NSR additional flexibility with
respect to its existing service to
intermodal and automotive facilities at
Ayer. (Id. at 5.) By obtaining trackage
rights over existing lines owned by
CSXT, Boston & Maine, P&W, and PAS,
NSR would be able to run double-stack
intermodal trains into the Boston area,
an option that the current PAS route
does not accommodate. (Notice, Ex. 22,
V.S. Pelkey 11.) Additionally,
Applicants assert that the Related
Transactions would enhance rail
capacity in New England and operations
in and around Ayer by modifying
existing trackage rights caps on PAS’s
Island Line, a short segment of rail line
between Harvard and the terminus of
PAS, just east of Ayer, which would
ensure that an integrated CSXT/PAR
System rail network would be able to
meet demand for rail service in New
England through a route that avoids the
congested Boston metropolitan area.
(Id., Ex. 22, V.S. Pelkey 11–12.) Lastly,
Applicants state that the NSR
Settlement Agreement sets forth certain
principles to strengthen existing
operations of PAS lines and that CSXT
has agreed to fund the construction of
certain improvements in facilities in
Ayer to ensure efficient operations. (Id.,
Ex. 22, V.S. Pelkey 12.)
Classification of the Proposed
Transaction. When a transaction does
not involve the merger or control of two
or more Class I railroads, its
classification will differ depending
upon whether the transaction would
have ‘‘regional or national
transportation significance.’’ 49 U.S.C
11325. Under 49 CFR 1180.2, a
transaction that does not involve two or
more Class I railroads is to be classified
as ‘‘minor’’—and thus not having
regional or national transportation
significance—if a determination can be
made that either: (1) The transaction
clearly will not have any
anticompetitive effects; or (2) any
anticompetitive effects will clearly be
outweighed by the transaction’s
anticipated contribution to the public
interest in meeting significant
transportation needs. A transaction not
involving the control or merger of two
or more Class I railroads is to be
classified as ‘‘significant’’ if neither of
these determinations can be made.
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A transaction classified as
‘‘significant’’ must meet different
procedural and informational
requirements than one classified as
‘‘minor.’’ For example, applicants are
required to submit more detailed
information regarding competitive
effects, operating plans, and other issues
for a ‘‘significant’’ transaction than for a
‘‘minor’’ transaction. 49 CFR 1180.6(c),
1180.7(a) & (c); 1180.8(b). Responsive
applications are not permitted for a
‘‘minor’’ transaction but are allowed for
a ‘‘significant’’ transaction. 49 CFR
1180.4(d). The time limit for Board
review is shorter for a ‘‘minor’’
transaction and prefiling notification is
not required. 49 U.S.C. 11325(d); 49
CFR 1180.4(e). Finally, the filing fee for
a ‘‘significant’’ transaction is higher
than the fee for a ‘‘minor’’ transaction.
49 CFR 1002.2(f).
Applicants contend that the Proposed
Transaction is ‘‘minor’’ because it is
clear, with the commitments Applicants
are making,13 that the transaction would
not have any adverse impact on
competition, as: (1) No shipper would
experience a reduction in the number of
serving carriers, (2) no existing routes
would be closed, (3) no existing
interchange options would be
eliminated, (4) no short lines that
connect with PAR Railroads would lose
a connecting alternative, (5) no Class I
carriers that currently have access to
New England would lose that access,
and (6) CSXT commits to keeping open
existing gateways on commercially
reasonable terms and to ensuring access
to rate regulation remedies if shippers
are dissatisfied with rates for
connections to other railroads. (Notice
10.)
Applicants also assert that the
agreements with NSR and GWI and the
Related Transactions would ensure that
no adverse competitive impact would
result from CSXT’s acquisition of
Springfield Terminal, the current
operator over PAS, as well as Boston &
Maine’s 50% interest in PAS. (Id. at 11.)
According to Applicants, Springfield
Terminal would be replaced by B&E as
the operator over PAS and as the entity
to set rates on PAS, and, as a result,
CSXT would not have pricing or
operational control power over two
generally parallel lines. (Notice 11; id.,
Ex. 22, V.S. Reishus 20–21.) And,
13 These commitments include: (i) CSXT’s
commitment to provide switching services to reach
PAS to certain shippers that will lose a rail
alternative as a result of the Proposed Transaction;
(ii) the gateway and rate relief commitments
described below; and (iii) price and service
commitments made by CSXT and NSR to address
potential adverse competitive impacts arising from
operation of PAS by a GWI subsidiary. (Notice, Ex.
22, V.S. Pelkey 13–16.)
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although PAS currently serves two
customers that also are served by a GWIowned carrier and PAS interchanges
with one railroad, Vermont Railway
(VTR), that also interchanges with a
GWI-owned carrier, Applicants argue
that there would be no adverse impact
on competition as a result of B&E
operating PAS, because CSXT and NSR,
as owners of PAS, have agreed to certain
concessions to those shippers and the
interchanging railroad that would
preserve existing competitive options.
(Notice 11; id., Ex. 22, V.S. Reishus 23–
25.)
Applicants contend that the public
benefits from the Proposed Transaction
are significant and clearly outweigh any
potential adverse competitive effects.
Applicants note that the Proposed
Transaction would unify two already
interconnected rail networks to produce
efficient single-line service, which
would expand market opportunities for
shippers on the PAR Railroads and
CSXT. (Notice 12.) Applicants state that
the Proposed Transaction would bring
about improved service, increased
reliability, and highly consistent rail
operations that would enhance
competition and remove truck traffic
from roads. (Id.) Additionally,
Applicants state that the agreements
reached with NSR and GWI involve
capacity additions in the vicinity of
Ayer and the establishment of operating
protocols that would improve the
efficiency and reliability of operations
on PAS. (Id. at 13.) Further, Applicants
contend that B&E, as a GWI subsidiary,
would bring GWI’s quality service to
PAS shippers and that operating PAS
would allow B&E to share resources and
facilities among other GWI-owned rail
carriers that would create opportunities
for efficiencies and cost savings. (Id. at
13.)
The purpose of the test articulated in
section 1180.2 is to allow the Board to
lessen the regulatory burden when ‘‘a
determination can clearly be made, at
the time the application is filed, that the
transaction passes muster under’’ the
statute. See R.R. Consolidation Procs.:
Definition of, & Requirements
Applicable to, ‘‘Significant
Transactions,’’ 9 I.C.C.2d 1198, 1200
(1993) (emphasis in original).
Designating a transaction under the
regulations at section 1180.2 permits the
Board to select the most appropriate
procedures to apply to a proposed
transaction. See Canadian Pac. Ry.—
Control—Dakota, Minn. & E. R.R., FD
35081, slip op. at 6 (STB served Nov. 2,
2007). It is not the purpose of section
1180.2(b) to force the Board to make an
advance determination on the extent of
the likely competitive effects or to
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weigh those effects against the public
benefits in cases where more
information would be helpful. Id. Any
broader reading of the regulation could
effectively require a preliminary
determination on the ultimate issue in
the case even where the Board regards
such a determination as premature. Id.
Here, the Board cannot make the
determination that the transaction
clearly would not have any
anticompetitive effects, based on the
current record. Under the Proposed
Transaction, CSXT would acquire
control of over 1,200 miles of rail line
throughout the New England area,
including joint ownership with NSR of
a Class II carrier that currently competes
with CSXT’s mainline in the region.
Applicants acknowledge that, because
PAS owns a route that is roughly
parallel to an existing CSXT route from
upstate New York to the Boston area,
CSXT’s joint control of PAS and its
acquisition of Springfield Terminal
could give CSXT ‘‘some influence over
competition for movements into New
England,’’ but for the agreements
reached with NSR and GWI. (Notice, Ex.
22, V.S. Huneke 3; see also id., Ex. 22,
V.S. Reishus 20 (noting the possibility
that, if CSXT were to retain pricing or
operational control of PAS, ‘‘the
transaction could present certain
competitive concerns’’).) In fact, when
the Board authorized the creation of
PAS in 2009, it noted that the
transaction ‘‘would significantly
increase competition between railroads
by providing an upgraded east-west
main line route to compete with a
parallel main line route operated by
CSXT.’’ Norfolk S. Ry.—Joint Control &
Operating/Pooling Agreements—Pan
Am S. LLC, FD 35147, slip op. at 5 (STB
served Mar. 10, 2009). The competitive
impact of CSXT acquiring joint
ownership of PAS and Springfield
Terminal is not clear at this time,
notwithstanding the remedial measures
that Applicants have proposed.
Further, Applicants have identified
‘‘limited instances where the operation
of PAS by a GWI-owned railroad could
raise competitive concerns’’ for one
railroad, VTR, that also interchanges
with a GWI-owned carrier, and two
customers that are currently served by
PAS and a GWI-owned railroad and
would be served by only GWI-owned
railroads as a result of the Proposed and
Related Transactions. (Notice, Ex. 22,
V.S. Reishus 13, 23–25.) Applicants
have also identified a small number of
jointly served PAS–CSXT shippers in
Springfield, Mass., (id., Ex. 22, V.S.
Reishus 20 n.44), as well as four
shippers that are being served
independently by both the PAR System
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16013
and CSXT, three of which are located in
Everett, Mass., an inner industrial
suburb near Boston ‘‘with difficult rail
connections to reach the less congested
portion of the freight rail network’’ (id.,
Ex. 22, V.S. Reishus 19). Thus, the
record currently before the Board does
not clearly establish that the transaction
would not have any anticompetitive
effects.
While Applicants have taken steps to
attempt to address these potential
competitive concerns, such as entering
into the agreements with NSR and GWI
and making various price, interchange,
and other commitments (and requesting
that the Board impose the terms of the
NSR Settlement Agreement and various
commitments as conditions of its
approval of the Proposed Transaction),
classifying this transaction as
‘‘significant’’ would provide the Board
with the additional information and
time needed to develop a more
comprehensive record so that the Board
may analyze the competitive concerns
identified here (and any others not
apparent from the Notice) and consider
whether Applicants’ proposed remedies,
including the conditions that
Applicants have requested the Board
impose, adequately address these
concerns.14
Applicants’ submission asserts that
there are anticipated benefits associated
with the transaction. Based on the
information the Board has about the
possible competitive impacts today, the
Board is unable to conclude at this stage
that any anticompetitive impacts would
clearly be outweighed by the potential
contribution to the public interest in
meeting significant transportation
needs. However, the classification of
this transaction as ‘‘significant’’ should
not be read as any indication of how the
Board might ultimately assess and
weigh the benefits and any impacts on
competition after development of a
more complete record.
14 Vermont Rail System (VRS), a business name
used by six short line railroads controlled by Trans
Rail Holding Company, including VTR; the
Commonwealth of Massachusetts Department of
Transportation, on behalf of itself and its
concurrently-supervised agency, the Massachusetts
Bay Transportation Authority (collectively,
MassDOT/MBTA); Republic Services, Inc., ECDC
Environmental, L.C., and Devens Recycling Center,
LLC (collectively, Republic); the State of Vermont,
acting through its Agency of Transportation
(VTrans); Massachusetts Water Resources
Authority; and several commonwealth officials filed
comments, asserting, among other things, that the
Proposed Transaction should be processed under
the Board’s procedures for a ‘‘significant’’
transaction. On March 18, 2021, Applicants filed a
reply. As discussed, the Board finds this to be a
‘‘significant’’ transaction and will evaluate both the
Proposed Transaction and the Related Transactions,
including B&E’s proposed operations on PAS, when
considering the merits of the application.
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The Board finds the Proposed
Transaction to be ‘‘significant’’ and is
therefore unable to accept the February
25, 2021 submission as an application.
However, as noted, the Board will
consider the February 25, 2021
submission a prefiling notification and
publish notice of it in the Federal
Register, which will permit Applicants
to perfect their application by
supplementing their submission with
the requisite information for a
‘‘significant’’ transaction, within two to
four months of the February 25, 2021
submission. See 49 CFR 1180.4(b),
1180.6(c), 1180.7(a) & (c), 1180.8(b). As
discussed above, the Board will
designate 2019 as the year to be used for
impact analysis in the application
unless Applicants indicate otherwise
when they submit the proposed
procedural schedule. Upon filing a
supplement perfecting their application
for a ‘‘significant’’ transaction,
Applicants will be required to pay the
remainder of the filing fee applicable for
a ‘‘significant’’ transaction. See 49 CFR
1002.2(f).
Procedural Schedule. The Board’s
determination that this transaction is
‘‘significant’’ necessitates a different
procedural schedule than that proposed
by Applicants. Applicants must file
with the Board no later than April 1,
2021, a revised proposed procedural
schedule that reflects the Board’s
determination that this is a ‘‘significant’’
transaction. The proposed procedural
schedule shall indicate the approximate
filing date of the supplement that will
perfect the application in accordance
with 49 CFR 1180.4(b). Comments on
the proposed procedural schedule will
be due 10 days after publication of the
proposed procedural schedule in the
Federal Register.15
Service List. Every filing made by a
Party of Record must have its own
certificate of service indicating that all
15 The Brotherhood of Maintenance of Way
Employes Division/IBT; Brotherhood of Railroad
Signalmen; International Association of Sheet
Metal, Air, Rail and Transportation WorkersMechanical Division; and National Conference of
Firemen and Oilers, 32BJ/SEIU (collectively, Allied
Rail Unions); the Transportation Communications
Union/IAM; the District Lodge 19 of the
International Association of Machinists and
Aerospace Workers; the American Train
Dispatchers Association; the International
Association of Sheet Metal, Air, Rail and
Transportation Workers Transportation Division;
VRS; MassDOT/MBTA; Republic; and VTrans filed
comments on the procedural schedule proposed in
Applicants’ February 25, 2021 submission. Because
Applicants are ordered to submit a revised
proposed procedural schedule that reflects the
Board’s determination that the Proposed
Transaction is ‘‘significant,’’ parties are invited to
comment on the revised proposed procedural
schedule after it is published in the Federal
Register, as described above.
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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.
In past proceedings, the Board has
served a notice containing the official
service list and required each Party of
Record to serve copies of all filings
previously submitted by that party upon
all other Parties of Record (to the extent
such filings have not previously been
served upon such other parties), and to
file a certificate of service with the
Board indicating that it had done so.
Given the availability of the service list
generated on the Board’s website for
individual proceedings, the Board finds
it unnecessary to serve an official
service list.
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
service list as a Party of Record or NonParty. All other interested persons are
encouraged to secure copies of
decisions, orders, and notices via the
Board’s website at www.stb.gov.
Submissions Received Prior to
February 25, 2021. Prior to receiving
Applicants’ Notice, the Board received
26 letters regarding the Proposed
Transaction. As no formal docket
existed at the time of their submission,
they have been held as correspondence.
Those submissions will be included in
the record of Docket No. FD 36472 and
need not be served on Parties of Record
at this time. However, all filings going
forward must comply with the service
requirements set forth above.
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 Notice
and other filings in Docket No. FD
36472 will be furnished to interested
persons upon request and will also be
available on the Board’s website at
www.stb.gov.16 In addition, the Notice
and other filings by Applicants may be
obtained from Applicants’
representatives at the addresses
indicated above.
This action will not significantly
affect either the quality of the human
16 Applicants have filed a public version and
highly confidential version of the Notice. The
highly confidential version may be obtained subject
to the protective order issued by the Board on
March 3, 2021.
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environment or the conservation of
energy resources.
It is ordered:
1. The submission filed by Applicants
on February 25, 2021, is treated as the
prefiling notification of the anticipated
application.
2. Applicants are directed to
supplement the prefiling notification by
submitting a revised proposed
procedural schedule with the Board no
later than April 1, 2021, that is
consistent with the Board’s
determination that this is a ‘‘significant’’
transaction.
3. Applicants are directed to perfect
their application for a ‘‘significant’’
transaction, as described above, and to
submit the difference between the filing
fee for a ‘‘minor’’ transaction and the fee
for a ‘‘significant’’ transaction, between
April 25 and June 25, 2021.
4. The protective order previously
issued on March 3, 2021, is issued for
Docket Nos. FD 36472 (Sub-No. 1); FD
36472 (Sub-No. 2); FD 36472 (Sub-No.
3); FD 36472 (Sub-No. 4); FD 36472
(Sub-No. 5); and AB 1312X, and is
included in the Appendix to this
decision.
5. Filings submitted prior to February
25, 2021, will be placed in the record of
Docket No. FD 36472.
6. This decision is effective on March
25, 2021.
Decided: March 19, 2021.
By the Board, Board Members Begeman,
Fuchs, Oberman, Primus, and Schultz.
Jeffrey Herzig,
Clearance Clerk.
Appendix
Protective Order
1. For purposes of this Protective Order:
(a) ‘‘Confidential Documents’’ means
documents and other tangible materials
containing or reflecting Confidential
Information.
(b) ‘‘Confidential Information’’ means
traffic data (including but not limited to
waybills, abstracts, study movement sheets,
and any documents or computer tapes
containing data derived from waybills,
abstracts, study movement sheets, or other
data bases, and cost workpapers); the
identification of potential shippers and
receivers, in conjunction with
shipperspecific or other traffic data; the
confidential terms of contracts with shippers,
or carriers or licensees; confidential financial
and cost data; and other confidential or
proprietary business or personal information.
(c) ‘‘Designated Material’’ means any
documents designated or stamped as
‘‘CONFIDENTIAL’’ or ‘‘HIGHLY
CONFIDENTIAL’’ in accordance with
paragraph 2 or 3 of this Protective Order and
any Confidential Information contained in
such materials.
(d) ‘‘Proceedings’’ means those before the
Surface Transportation Board (‘‘Board’’)
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concerning the Application for CSX
Corporation (‘‘CSXC’’), CSX Transportation,
Inc. (‘‘CSXT’’) (CSXC and CSXT are
collectively referred to as ‘‘CSX’’), and 747
Merger Sub No. 2, Inc. to acquire control of
and merge certain subsidiaries of Pan An
Systems, Inc. (‘‘Systems’’) filed in STB
Docket No. FD 36472, and any related
proceedings before the Board, including
Docket Nos. FD 36472 (Sub-No. 1), FD 36472
(Sub-No. 2), FD 36472 (Sub-No. 3), FD 36472
(Sub-No. 4), FD 36472 (Sub-No. 5), and AB
1312X, and any judicial review proceedings
arising from STB Docket No. FD 36472 or
from any related proceedings before the
Board.
2. If any party to these Proceedings
determines that any part of a document it
submits, discovery request it propounds,
discovery response it produces, transcript of
a deposition or hearing in which it
participates, or of a pleading or other paper
to be submitted, filed, or served in these
Proceedings contains Confidential
Information or consists of Confidential
Documents, then that party may designate
and stamp such Confidential Information and
Confidential Documents as
‘‘CONFIDENTIAL.’’ Any information or
documents designated or stamped as
‘‘CONFIDENTIAL’’ shall be handled as
provided for hereinafter.
3. If any party to these Proceedings
determines that any part of a document it
submits, discovery request it propounds, a
discovery response it produces, transcript of
a deposition or hearing in which it
participates, pleading or other paper to be
submitted, filed, or served in these
Proceedings contains shipper-specific rate or
cost data; or other competitively sensitive or
proprietary information, then that party may
designate and stamp such Confidential
Information as ‘‘HIGHLY CONFIDENTIAL.’’
Any information or documents so designated
or stamped shall be handled as provided
hereinafter.
4. Information and documents designated
or stamped as ‘‘CONFIDENTIAL’’ may not be
disclosed in any way, directly or indirectly,
or to any person or entity except to an
employee, counsel, consultant, or agent of a
party to these Proceedings, or an employee of
such counsel, consultant, or agent, who,
before receiving access to such information
or documents, has been given and has read
a copy of this Protective Order, has agreed to
be bound by its terms by signing a
confidentiality undertaking substantially in
the form set forth at Exhibit A to this
Protective Order, and has provided a copy of
the confidentiality undertaking to counsel for
CSX and Systems.
5. Information and documents designated
or stamped as ‘‘HIGHLY CONFIDENTIAL’’
may not be disclosed in any way, directly or
indirectly, to any employee of a party to
these Proceedings, or to any other person or
entity except to an outside counsel or outside
consultant to a party to these proceedings, or
to an employee of such outside counsel or
outside counsel or outside consultant, who,
before receiving access to such information
or documents, has been given and has read
a copy of this Protective Order, has agreed to
be bound by its terms by signing a
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confidentiality undertaking substantially in
the form set forth at Exhibit B to this
Protective Order, and has provided a copy of
the confidentiality undertaking to counsel for
CSX and Systems.
6. All parties must file simultaneously a
public version of any Highly Confidential or
Confidential submission filed with the Board
whether the submission is designated a
Highly Confidential Version or Confidential
Version. When filing a Highly Confidential
Version, the filing party does not need to file
a Confidential Version with the Board, but
must make available (simultaneously with
the party’s submission to the Board of its
Highly Confidential Version) a Confidential
Version reviewable by any other party’s inhouse counsel. The Confidential Version may
be served on other parties in electronic
format only. In lieu of preparing a
Confidential Version, the filing party may
(simultaneously with the party’s submission
to the Board of its Highly Confidential
Version) make available to outside counsel
for any other party a list of all ‘‘highly
confidential’’ information that must be
redacted from its Highly Confidential Version
prior to review by in-house personnel, and
outside counsel for any other party must then
redact that material from the Highly
Confidential Version before permitting any
clients to review the submission.
7. Any party to these Proceedings may
challenge the designation by any other party
of information or documents as
‘‘CONFIDENTIAL’’ or as ‘‘HIGHLY
CONFIDENTIAL’’ by filing a motion with the
Board or with an administrative law judge or
other officer to whom authority has been
lawfully delegated by the Board to adjudicate
such challenges.
8. Designated Material may not be used for
any purposes, including without limitation
any business, commercial or competitive
purposes, other than the preparation and
presentation of evidence and argument in
STB Docket No. FD 36472, any related
proceedings before the Board, and/or any
judicial review proceedings in connection
with STB Docket No. FD 36472 and/or with
any related proceedings.
9. Any party who receives Designated
Material in discovery shall destroy such
materials and any notes or documents
reflecting such materials (other than file
copies of pleadings or other documents filed
with the Board and retained by outside
counsel for a party to these Proceedings) at
the earlier of: (a) Such time as the party
receiving the materials withdraws from these
Proceedings, or (b) the completion of these
Proceedings, including any petitions for
reconsideration, appeals or remands.
10. No party may include Designated
Material in any pleading, brief, discovery
request or response, or other document
submitted to the Board, unless the pleading
or other document is submitted under seal,
in a package clearly marked on the outside
as ‘‘Confidential Materials Subject to
Protective Order. See 49 CFR 1104.14. All
pleadings and other documents so submitted
shall be kept confidential by the Board and
shall not be placed in the public docket in
these Proceedings except by order of the
Board or of an administrative law judge or
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16015
other officer in the exercise of authority
lawfully delegated by the Board.
11. No party may include Designated
Material in any pleading, brief, discovery
request or response, or other document
submitted to any forum other than this Board
in these Proceedings unless: (a) The pleading
or other document is submitted under seal in
accordance with a protective order that
requires the pleading or other document to be
kept confidential by that tribunal and not be
placed in the public docket in the
proceeding, or (b) the pleading or other
document is submitted in a sealed package
clearly marked, ‘‘Confidential Materials
Subject to Request for Protective Order,’’ and
is accompanied by a motion to that tribunal
requesting issuance of a protective order that
would require the pleading or other
document be kept confidential and not be
placed in the public docket in the
proceeding, and requesting that if the motion
for protective order is not issued by that
tribunal, the pleading or other document be
returned to the filing party.
12. No party may present or otherwise use
any Designated Material at a Board hearing
in these Proceedings, unless that party has
previously submitted, under seal, all
proposed exhibits and other documents
containing or reflecting such Designated
Material to the Board, to an administrative
law judge or to another officer to whom
relevant authority has been lawfully
delegated by the Board, and has accompanied
such submission with a written request that
the Board, administrative law judge or other
officer: (a) Restrict attendance at the hearing
during any discussion of such Designated
Material, and (b) restrict access to any
portion of the record or briefs reflecting
discussion of such Designated Material in
accordance with this Protective Order.
13. If any party intends to use any
Designated Material in the course of any
deposition in these Proceedings, that party
shall so advise counsel for the party
producing the Designated Material, counsel
for the deponent, and all other counsel
attending the deposition. Attendance at any
portion of the deposition at which any
Designated Material is used or discussed
shall be restricted to persons who may
review that material under the terms of this
Protective Order. All portions of deposition
transcripts or exhibits that consist of, refer to,
or otherwise disclose Designated Material
shall be filed under seal and be otherwise
handled as provided in paragraph 10 of this
Protective Order.
14. To the extent that materials reflecting
Confidential Information are produced by a
party in these Proceedings, and are held and/
or used by the receiving person in
compliance with paragraphs 1, 2 or 3 above,
such production, disclosure, holding, and
use of the materials and of the data that the
materials contain are deemed essential for
the disposition of this and any related
proceedings and will not be deemed a
violation of 49 U.S.C. 11904 or of any other
relevant provision of the ICC Termination
Act of 1995.
15. All parties must comply with all of the
provisions of this Protective Order unless the
Board or an administrative law judge or other
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officer exercising authority lawfully
delegated by the Board determines that good
cause has been shown warranting suspension
of any of the provisions herein.
16. Nothing in this Protective Order
restricts the right of any party to disclose
voluntarily any Confidential Information
originated by that party, or to disclose
voluntarily any Confidential Documents
originated by that party, if such Confidential
Information or Confidential Documents do
not contain or reflect any Confidential
Information originated by any other party.
Exhibit B
UNDERTAKING HIGHLY CONFIDENTIAL
MATERIAL
I, llllllll am outside [counsel]
[consultant] for llllllll, for whom
I am acting in this proceeding. I have read
the Protective Order served on
llllllll, 2021, governing the
production and use of Confidential
Information and Confidential Documents in
STB Docket Nos. FD 36472, FD 36472 (SubNo. 1), FD 36472 (Sub-No. 2), FD 36472 (SubNo. 3), FD 36472 (Sub-No. 4), FD 36472 (SubExhibit A
No. 5), and AB 1312X, understand the same,
and agree to be bound by its terms. I agree
UNDERTAKING CONFIDENTIAL
not to use or to permit the use of any
MATERIAL
Confidential Information or Confidential
I, llllllll, have read the
Documents obtained pursuant to that
Protective Order served on llllllll, Protective Order, or to use or to permit the
2021 governing the production and use of
use of any methodologies or techniques
Confidential Information and Confidential
disclosed or information learned as a result
Documents in STB Docket Nos. FD 36472, FD of receiving such data or information, for any
36472 (Sub-No. 1), FD 36472 (Sub-No. 2), FD
purpose other than the preparation and
36472 (Sub-No. 3), FD 36472 (Sub-No. 4), FD
presentation of evidence and argument in
36472 (Sub-No. 5), and AB 1312X,
STB Docket No. FD 36472, any related
understand the same, and agree to be bound
proceedings before the Surface
by its terms. I agree not to use or to permit
Transportation Board (‘‘Board’’), or any
the use of any Confidential Information or
judicial review proceedings in connection
Confidential Documents obtained pursuant to with STB Docket No. FD 36472 and/or with
that Protective Order, or to use or to permit
any related proceedings. I further agree not
the use of any methodologies or techniques
to disclose any Confidential Information,
disclosed or information learned as a result
Confidential Documents, methodologies,
of receiving such data or information, for any techniques, or data obtained pursuant to the
purpose other than the preparation and
Protective Order except to persons who are
presentation of evidence and argument in
also bound by the terms of the Order and
STB Docket No. FD 36472, any related
who have executed undertakings in the form
proceedings before the Surface
hereof.
Transportation Board (’’Board’’), and/or any
I also understand and agree, as a condition
judicial review proceedings in connection
precedent to my receiving, reviewing, or
with STB Docket No. FD 36472 and/or with
using copies of any information or
documents designated or stamped as
any related proceedings. I further agree not
‘‘HIGHLY CONFIDENTIAL,’’ that I will take
to disclose any Confidential Information,
all necessary steps to ensure that said
Confidential Documents, methodologies,
information or documents be kept on a
techniques, or data obtained pursuant to the
confidential basis by any outside counsel or
Protective Order except to persons who are
outside consultants working with me; that
also bound by the terms of the Order and
who have executed Undertakings in the form under no circumstances will I permit access
to said materials or information by
hereof, and that at the conclusion of this
employees of my client or its subsidiaries,
proceeding (including any proceeding on
affiliates, or owners; and that at the
administrative review, judicial review, or
conclusion of this proceeding (including any
remand), I will promptly destroy any
proceeding on administrative review, judicial
documents containing or reflecting materials
designated or stamped as ‘‘CONFIDENTIAL,’’ review, or remand), I will promptly destroy
any documents containing or reflecting
other than file copies, kept by outside
information or documents designated or
counsel, of pleadings and other documents
stamped as ‘‘HIGHLY CONFIDENTIAL,’’
filed with the Board.
other than file copies, kept by outside
I understand and agree that money
damages would not be a sufficient remedy for counsel, of pleadings and other documents
filed with the Board.
breach of this Undertaking and that
I understand and agree that money
Applicants or other parties producing
damages would not be a sufficient remedy for
Confidential Information or Confidential
breach of this Undertaking and that
Documents shall be entitled to specific
Applicants or other parties producing
performance and injunctive and/or other
Confidential Information or Confidential
equitable relief as a remedy for any such
Documents shall be entitled to specific
breach, and I further agree to waive any
performance and injunctive and/or other
requirement for the securing or posting of
equitable relief as a remedy for any such
any bond in connection with such remedy.
breach, and I further agree to waive any
Such remedy shall not be deemed to be the
requirement for the securing or posting of
exclusive remedy for breach of this
any bond in connection with such remedy.
Undertaking but shall be in addition to all
Such remedy shall not be deemed to be the
remedies available at law or equity.
Signed: lllllllllllllllll exclusive remedy for breach of this
Undertaking but shall be in addition to all
Name:
Affiliation: lllllllllllllll remedies available at law or equity.
Dated: lllllllllllllllll Signed: lllllllllllllllll
VerDate Sep<11>2014
18:38 Mar 24, 2021
Jkt 253001
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Frm 00140
Fmt 4703
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OUTSIDE [COUNSEL] [CONSULTANT]
Dated: lllllllllllllllll
[FR Doc. 2021–06211 Filed 3–24–21; 8:45 am]
BILLING CODE 4915–01–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–1999–6480; FMCSA–
2000–7006; FMCSA–2000–7363; FMCSA–
2000–8398; FMCSA–2001–10578; FMCSA–
2002–12294; FMCSA–2002–13411; FMCSA–
2004–19477; FMCSA–2005–23238; FMCSA–
2006–24783; FMCSA–2006–26066; FMCSA–
2008–0021; FMCSA–2008–0266; FMCSA–
2008–0340; FMCSA–2009–0011; FMCSA–
2009–0303; FMCSA–2010–0187; FMCSA–
2010–0354; FMCSA–2010–0385; FMCSA–
2011–0276; FMCSA–2011–0379; FMCSA–
2012–0161; FMCSA–2012–0339; FMCSA–
2013–0174; FMCSA–2014–0002; FMCSA–
2014–0003; FMCSA–2014–0006; FMCSA–
2014–0007; FMCSA–2014–0299; FMCSA–
2014–0300; FMCSA–2014–0301; FMCSA–
2016–0027; FMCSA–2016–0031; FMCSA–
2016–0033; FMCSA–2016–0210; FMCSA–
2016–0212; FMCSA–2018–0207; FMCSA–
2018–0209]
Qualification of Drivers; Exemption
Applications; Vision
Federal Motor Carrier Safety
Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of final disposition.
AGENCY:
FMCSA announces its
decision to renew exemptions for 53
individuals from the vision requirement
in the Federal Motor Carrier Safety
Regulations (FMCSRs) for interstate
commercial motor vehicle (CMV)
drivers. The exemptions enable these
individuals to continue to operate CMVs
in interstate commerce without meeting
the vision requirement in one eye.
DATES: Each group of renewed
exemptions were applicable on the
dates stated in the discussions below
and will expire on the dates provided
below.
SUMMARY:
Ms.
Christine A. Hydock, Chief, Medical
Programs Division, (202) 366–4001,
fmcsamedical@dot.gov, FMCSA,
Department of Transportation, 1200
New Jersey Avenue SE, Room W64–224,
Washington, DC 20590–0001. Office
hours are from 8:30 a.m. to 5 p.m., ET,
Monday through Friday, except Federal
holidays. If you have questions
regarding viewing or submitting
material to the docket, contact Dockets
Operations, (202) 366–9826.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
E:\FR\FM\25MRN1.SGM
25MRN1
]]>Agencies
[Federal Register Volume 86, Number 56 (Thursday, March 25, 2021)]
[Notices]
[Pages 16009-16016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06211]
=======================================================================
-----------------------------------------------------------------------
SURFACE TRANSPORTATION BOARD
[Docket No. FD 36472]
CSX Corporation and CSX Transportation, Inc., et al.--Control and
Merger--Pan Am Systems, Inc., Pan Am Railways, Inc., Boston and Maine
Corporation, Maine Central Railroad Company, Northern Railroad, Pan Am
Southern LLC, Portland Terminal Company, Springfield Terminal Railway
Company, Stony Brook Railroad Company, and Vermont & Massachusetts
Railroad Company
AGENCY: Surface Transportation Board.
ACTION: Decision No. 1 in Docket No. FD 36472; Notice of Receipt of
Prefiling Notification.
-----------------------------------------------------------------------
SUMMARY: The Surface Transportation Board (Board) \1\ has reviewed the
submission filed February 25, 2021, by CSX Corporation (CSXC), CSX
Transportation Inc. (CSXT),\2\ 747 Merger Sub 2, Inc. (747 Merger Sub
2), Pan Am Systems, Inc. (Systems), Pan Am
[[Page 16010]]
Railways, Inc. (PAR), Boston and Maine Corporation (Boston & Maine),
Maine Central Railroad Company (Maine Central), Northern Railroad
(Northern), Portland Terminal Company (Portland Terminal), Springfield
Terminal Railway Company (Springfield Terminal), Stony Brook Railroad
Company (Stony Brook), and Vermont & Massachusetts Railroad Company
(V&M) (collectively, Applicants). The submission is styled as an
application for a ``minor'' transaction seeking Board approval for: (1)
CSXC, CSXT, and 747 Merger Sub 2 to control the seven railroads
controlled by Systems and PAR,\3\ and (2) CSXT to merge six of the
seven railroads into CSXT. This proposal is referred to as the
``Proposed Transaction.''
---------------------------------------------------------------------------
\1\ This decision embraces the following dockets: Norfolk
Southern Railway--Trackage Rights Exemption--CSX Transportation,
Inc., Docket No. FD 36472 (Sub-No. 1); Norfolk Southern Railway--
Trackage Rights Exemption--Providence & Worcester Railroad, Docket
No. FD 36472 (Sub-No 2); Norfolk Southern Railway--Trackage Rights
Exemption--Boston & Maine Corp., Docket No. FD 36472 (Sub-No. 3);
Norfolk Southern Railway--Trackage Rights Exemption--Pan Am Southern
LLC, Docket No. FD 36472 (Sub-No. 4); Pittsburg & Shawmut Railroad--
Operation Exemption--Pan Am Southern LLC, Docket No. FD 36472 (Sub-
No. 5); SMS Rail Lines of New York, LLC--Discontinuance Exemption--
in Albany County, N.Y., Docket No. AB 1312X.
\2\ CSXT is a wholly owned subsidiary of CSXC. CSXC and CSXT are
referred to collectively as CSX.
\3\ Systems directly and wholly owns PAR, which in turn directly
and wholly owns four rail carriers: Boston & Maine, Maine Central,
Portland Terminal, and Springfield Terminal. Boston & Maine directly
and wholly owns Northern and Stony Brook, as well as a 98% interest
in V&M. These seven rail carriers will be referred to collectively
as the PAR Railroads.
---------------------------------------------------------------------------
The Board finds that the Proposed Transaction would be a
``significant'' transaction. The Board's regulations require that
applicants give notice two to four months prior to the filing of an
application in a ``significant'' transaction. Because Applicants argue
that the Proposed Transaction is a ``minor'' transaction, they did not
file the required prefiling notification before their February 25, 2021
submission seeking Board approval of this ``significant'' transaction
and did not pay the filing fee for a ``significant'' transaction. Their
submission cannot be treated as an application at this time. The Board
will, however, consider the February 25, 2021 submission a prefiling
notification \4\ and publish notice of it in the Federal Register,
which will permit Applicants to perfect their application by
supplementing their submission with the requisite information for a
``significant'' transaction in accordance with the Board's regulations,
between April 25 and June 25, 2021 (i.e., two to four months after the
Notice was filed).
---------------------------------------------------------------------------
\4\ Because the Board will treat the February 25, 2021
submission as the prefiling notification, that submission will be
referred to as the ``Notice.''
---------------------------------------------------------------------------
When filing a prefiling notification, merger applicants in a
``significant'' transaction must propose a procedural schedule for
Board review of their proposed transaction. As part of their tender of
an application for a ``minor'' transaction, Applicants had proposed a
procedural schedule that tracks the statutory deadlines for processing
``minor'' applications. Because the Board finds the proposed
transaction to be ``significant,'' Applicants must file with the Board,
no later than April 1, 2021, a revised proposed procedural schedule
that reflects the Board's determination that this is a ``significant''
transaction. The proposed procedural schedule should indicate the
approximate filing date of its supplement perfecting its application
for a ``significant'' transaction, which date, as noted, must be
between April 25 and June 25, 2021. Comments on the proposed procedural
schedule will be due 10 days after publication of the proposed
procedural schedule in the Federal Register.
The Board's regulations also call for merger applicants to indicate
in their prefiling notification the year to be used for the impact
analysis required in ``significant'' transactions. In their Notice,
Applicants used operating data from 2019 in their Operating Plan-Minor
(Exhibit 15). The Board therefore will designate 2019 as the year to be
used for impact analysis in the application unless Applicants indicate
otherwise when they submit the proposed procedural schedule.
In addition, Applicants must submit the difference between the
filing fee for a ``minor'' transaction (which Applicants already have
paid) and the fee for a ``significant'' transaction when they file
their application for a ``significant'' transaction.
DATES: Applicants must, by April 1, 2021, file a proposed procedural
schedule with the Board.
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) CSX's and 747 Merger Sub 2's representative,
Anthony J. LaRocca, Steptoe & Johnson LLP, 1330 Connecticut Ave. NW,
Washington, DC 20036; (4) Systems', PAR's, and PAR Railroads'
representative, Robert B. Culliford, Pan Am Systems, Inc., 1700 Iron
Horse Park, North Billerica, MA 01862; and (5) any other person
designated as a Party of Record on the service list.
FOR FURTHER INFORMATION CONTACT: Amy Ziehm at (202) 245-0391.
Assistance for the hearing impaired is available through the Federal
Relay Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION: Systems directly and wholly owns PAR, which
in turn directly and wholly owns Boston & Maine, Maine Central,
Portland Terminal, and Springfield Terminal. Boston & Maine directly
and wholly owns Northern and Stony Brook. Boston & Maine also owns a
98% interest in V&M. The PAR Railroads own rail lines and provide rail
service on a freight rail network (PAR System) in New England, from
Maine in the north to the Boston region in the south.\5\ Springfield
Terminal operates rail service on the PAR System on behalf of the PAR
Railroads pursuant to leases over lines owned and leased by the other
PAR Railroads. (Notice 2-3.)
---------------------------------------------------------------------------
\5\ Applicants state that the PAR System consists of
approximately 808 route miles of rail lines, including approximately
724.53 owned and leased (including perpetual freight easement) route
miles and approximately 83.62 trackage-rights route miles in
Massachusetts, Maine, New Hampshire, and Vermont. (Notice 26.)
---------------------------------------------------------------------------
Boston & Maine also owns a 50% interest in Pan Am Southern LLC
(PAS), a Class II carrier. (Id. at 3.) PAS is a 50/50 joint venture
between Boston & Maine and Norfolk Southern Railway Company (NSR).
(Id.) PAS runs between upstate New York and a point just past Ayer,
Mass., where it connects with the PAR System. (Notice, Ex. 22, V.S.
Reishus 6.) PAS also uses a north-south route running between Vermont
and Connecticut over lines owned by Genesee & Wyoming, Inc. (GWI),
which connects with the PAS mainline at East Deerfield, Mass., and
connects with other PAS lines in Connecticut.\6\ (Id., Ex. 22, V.S.
Reishus 6.) Springfield Terminal, also a Class II rail carrier,
operates PAS as PAS's agent. (Notice 3.) NSR has trackage rights over
the PAS line between Mechanicville, N.Y., and Ayer, but Springfield
Terminal currently operates NSR trains over that segment pursuant to a
haulage agreement between PAS and NSR. (Notice, Ex. 15, Operating Plan-
Minor 6.)
---------------------------------------------------------------------------
\6\ PAS's network consists of approximately 425 route miles,
including approximately 281.38 owned route miles (including
perpetual freight easement) and approximately 143.62 trackage-rights
route miles. (Notice 31.)
---------------------------------------------------------------------------
CSXT, a Class I rail carrier, is a wholly owned subsidiary of CSXC.
CSXT owns and operates approximately 19,500 miles of railroad in 23
states and the District of Columbia, as well as in the Canadian
Provinces of Ontario and Quebec. (Notice 28.) Applicants state that
CSXT's access to New England shippers occurs primarily through its own
mainline, which connects with several New England railroads
[[Page 16011]]
including with the PAR System at Barbers Station, Mass., near
Worcester, Mass. (Notice, Ex. 22, V.S. Reishus 6.) Applicants state
that CSXT also serves New England shippers by interlining with PAS at
Rotterdam Junction, N.Y. (Id., Ex. 22, V.S. Reishus at 6.)
Under the Proposed Transaction, CSX and 747 Merger Sub 2 would
acquire control of the PAR Railroads, and CSXT would merge the PAR
Railroads, except V&M, into CSXT.\7\ (Notice 2.) As CSXT would wholly
own and control Boston & Maine, CSX and 747 Merger Sub 2 also seek
authority to acquire Boston & Maine's 50% joint ownership in PAS. (Id.
at 4.) Applicants state that CSXT, NSR, and GWI have entered into
agreements regarding the operation of PAS upon consummation of the
Proposed Transaction, specifically: (1) A settlement agreement between
CSXT and NSR (NSR Settlement Agreement), which includes an agreement
relating to operations at Ayer; and (2) a Term Sheet Agreement among
CSXT, NSR and GWI. (Id. at 4-5.) Applicants state that these two
agreements contemplate transactions (Related Transactions) that are
integrally related to the Proposed Transaction and require Board
authorization: (1) Pittsburgh & Shawmut Railroad, LLC, d/b/a Berkshire
& Eastern Railroad (B&E), a Class III rail carrier and a wholly owned
subsidiary of GWI, seeks authority to replace Springfield Terminal as
the operator of PAS,\8\ and (2) NSR seeks trackage rights over existing
lines owned by four carriers (CSXT, Boston & Maine, Providence &
Worcester Railroad Company (P&W) (a GWI subsidiary), and PAS) to allow
NSR additional flexibility with respect to NSR's existing service to an
intermodal facility located on the PAS network at Ayer.\9\ (Notice 4-7;
id., Ex. 15, Operating Plan-Minor 2-3.)
---------------------------------------------------------------------------
\7\ Specifically, Systems would be merged with 747 Merger Sub 1,
Inc., with Systems surviving. Immediately thereafter, Systems would
be merged with 747 Merger Sub 2, with 747 Merger Sub 2 surviving and
the separate corporate existence of Systems ceasing. 747 Merger Sub
2, as the surviving corporation, would be renamed Pan Am Systems,
Inc., and would be a wholly owned subsidiary of CSXC. Concurrent
with closing, CSXC would contribute Pan Am Systems, Inc., and all of
its subsidiaries to CSXT. CSXT would thereafter control the rail
carrier subsidiaries of Pan Am Systems, Inc., and would merge those
subsidiaries, except V&M, into CSXT at a later date. (Notice 3.)
\8\ As described below, this operating agreement is the subject
of the petition for exemption filed in Docket No. FD 36472 (Sub-No.
5). Applicants state that they anticipate consummating the Proposed
Transaction and Related Transactions at the same time; however,
CSXT, NSR, and GWI have agreed that, if the Proposed Transaction is
consummated prior to the replacement of Springfield Terminal by B&E
and the initiation of PAS operations by B&E, then Springfield
Terminal would continue to operate PAS until Springfield Terminal is
replaced as the PAS operator. (Notice 5-6.)
\9\ As described below, these proposed trackage rights are the
subjects of verified notices of exemption that have been filed in
Docket Nos. FD 36472 (Sub-No. 1), FD 36472 (Sub-No. 2), FD 36472
(Sub-No. 3), and FD 36472 (Sub-No. 4).
---------------------------------------------------------------------------
Related Filings. In connection with the Related Transactions,
several verified notices of exemption and a petition for exemption were
filed concurrently.
NSR Trackage Rights Authority. NSR has filed verified notices of
exemption under 49 CFR 1180.2(d)(7) for overhead trackage rights
pursuant to trackage rights agreements with CSXT, P&W, Boston & Maine,
and PAS.\10\ NSR states that trackage rights being acquired pursuant to
these verified notices of exemption would not take effect until the
Proposed Transaction is consummated. Applicants state in their Notice
that the trackage rights would allow NSR, upon consummation of the
Proposed Transaction, to move up to one train pair per day, carrying
intermodal and automotive vehicles traffic, between NSR's connection
with CSXT at Voorheesville, N.Y., and the intermodal terminal located
near Ayer, over CSXT's east-west rail line between Voorheesville and
Worcester, then over P&W's rail line between Worcester and Barbers
Station, then over Boston & Maine's rail line between Barbers Station
and Harvard, Mass., and finally over PAS's rail line between Harvard
and Ayer. (Notice 6.) Specifically:
---------------------------------------------------------------------------
\10\ NSR has filed a public version and highly confidential
versions of the trackage rights agreements in each of these sub-
dockets. A motion for protective order was filed and a protective
order issued on March 3, 2021, in Docket No. FD 36472, which by its
terms applies to related proceedings. To ensure clarity in the
administrative record, however, the Board will issue the same
protective order in this decision for all of the related
proceedings. See the Appendix to this decision.
---------------------------------------------------------------------------
In Norfolk Southern Railway--Trackage Rights Exemption--
CSX Transportation, Inc., Docket No. FD 36472 (Sub-No. 1), NSR seeks
approximately 161.5 miles of overhead trackage rights on CSXT's
mainline between approximately Voorheesville (at or near milepost QG
22.5) and Worcester (at or near milepost QB 44.5) (inclusive of
appurtenant passing tracks and sidings).
In Norfolk Southern Railway--Trackage Rights Exemption--
Providence & Worcester Railroad, Docket No. FD 36472 (Sub-No. 2), NSR
seeks approximately 2.90 miles of overhead trackage rights on P&W's
mainline between a connection with the tracks of CSXT at Worcester at
milepost 0.0, over Track 1 extending from the east side of Green Street
to the point of merger of said Track 1 and the Main Track so called at
milepost 1.05, south of Garden Street, and over said Main Track
thereafter from milepost 1.05 to P&W's Gardner Branch baseline station
153+50, which is the point of connection with the tracks of Boston &
Maine at Barbers Station at milepost 2.90.
In Norfolk Southern Railway--Trackage Rights Exemption--
Boston & Maine Corp., Docket No. FD 36472 (Sub-No. 3), NSR seeks
approximately 22.08 miles of overhead trackage rights on Boston &
Maine's line from milepost X 2.92 at Barber, Mass.,\11\ and connection
to P&W, to milepost X 25.0 at Harvard and connection to PAS.
---------------------------------------------------------------------------
\11\ In the verified notice, NSR uses milepost X 2.92 at Barber,
Mass., to describe the overhead trackage rights it seeks. The
trackage rights agreement governing this transaction refers to this
point as being in Barbers Station, Mass.
---------------------------------------------------------------------------
In Norfolk Southern Railway--Trackage Rights Exemption--
Pan Am Southern LLC, Docket No. FD 36472 (Sub-No. 4), NSR seeks
approximately 3.01 miles of overhead trackage rights on PAS's line from
milepost X 25.0 at Harvard, and connection to Boston & Maine, to
milepost X 28.01 at Ayer.
Discontinuance Authority Over NSR Line. In SMS Rail Lines of New
York, LLC--Discontinuance Exemption--in Albany County, N.Y., Docket No.
AB 1312X, NSR filed, on behalf of SMS Rail Lines of New York, LLC (SMS)
and with SMS's consent, a verified notice of exemption for SMS to
discontinue common carrier service and terminate its lease operations
over approximately 15 miles of rail line owned by NSR located between
milepost 11.00 in Voorheesville and a point 50 feet south of the
centerline of the bridge at milepost 26.14 (or engineering station
6136+/-) in Delanson, N.Y., including the use of wye track and any
track leading to the Northeast Industrial Park at milepost 12.1 and
12.29, in Albany County, N.Y.
B&E Operating Authority. In Pittsburg & Shawmut Railroad--Operation
Exemption--Pan Am Southern LLC, Docket No. FD 36472 (Sub-No. 5), B&E
has filed a petition for exemption under 49 U.S.C. 10502 and 49 CFR
part 1121 from the provisions of 49 U.S.C. 11323(a)(2) and 11324 to
allow B&E to enter into contracts to operate the approximately 425
route miles of lines and incidental trackage rights of PAS currently
being operated by Springfield Terminal.\12\ B&E notes that its petition
[[Page 16012]]
is filed as a transaction integrally related to, and dependent upon,
approval of the Proposed Transaction.
---------------------------------------------------------------------------
\12\ NSR has filed a public version and highly confidential
versions of the Term Sheet Agreement, entered into among GWI, CSXT
and NSR, which contains the significant terms of the operating
agreement to be entered into between PAS and B&E. As discussed
above, the Board will issue the same protective order that was
issued on March 3, 2021, in Docket No. FD 36472, for all of the
related proceedings. See the Appendix to this decision.
---------------------------------------------------------------------------
Public Interest Considerations. Applicants assert that the Proposed
Transaction, combined with the Related Transactions, would
substantially enhance competition by improving access to New England
over multiple rail routes and would have no adverse impact on
competition. (Notice 5, 7.) Applicants state that the Proposed
Transaction would be an end-to-end combination of two railroad networks
and would allow CSXT to convert interline operations between CSXT and
the PAR System to efficient, single-line service. (Notice, Ex. 22, V.S.
Pelkey 4.) Applicants further state that the Proposed Transaction would
allow CSXT to expand its operations into New England, giving CSXT's
existing customers more direct and efficient access to New England
markets and giving the PAR System's existing customers better rail
service and single-line access to the rest of CSXT's rail network.
(Id., Ex. 22, V.S. Pelkey 2.) Applicants assert that this single-line
service would reduce switching and interchange, eliminate the need to
coordinate a hand-off between separate rail carriers, result in a
savings in transit times, and reduce the chance of unexpected problems
in the physical interchange of traffic between two independent
carriers. (Id., Ex. 22, V.S. Pelkey 4.)
According to Applicants, the Related Transactions would strengthen
PAS as an independent route to New England for all carriers that
connect to PAS and that the agreements underlying the Related
Transactions would enhance competition and improve rail service.
(Notice 4.) As part of the Related Transactions, Applicants state that
PAS would replace Springfield Terminal with B&E as the contract
operator of PAS, and that B&E would operate and set rates for PAS in a
non-discriminatory fashion as to all rail carriers that have the
ability to interchange traffic with PAS or otherwise connect to PAS.
(Id. at 8.) Applicants thus argue that CSXT would not have any control
over the rates set by PAS, as rate-setting would be exclusively the
responsibility of B&E. (Notice, Ex. 22, V.S. Pelkey 11.) Applicants
further note that CSXT would retain Boston & Maine's one-half interest
in PAS and would be able to use PAS as an alternative means to access
New England, but CSXT would not be able to affect the access of other
carriers to New England over PAS. (Id., Ex. 22, V.S. Pelkey 11.)
Further, Applicants assert that GWI's operating experience and
familiarity with the New England rail market would improve PAS
operations and rail service. (Notice 13.)
Applicants state that the trackage rights to be obtained by NSR
would allow NSR additional flexibility with respect to its existing
service to intermodal and automotive facilities at Ayer. (Id. at 5.) By
obtaining trackage rights over existing lines owned by CSXT, Boston &
Maine, P&W, and PAS, NSR would be able to run double-stack intermodal
trains into the Boston area, an option that the current PAS route does
not accommodate. (Notice, Ex. 22, V.S. Pelkey 11.) Additionally,
Applicants assert that the Related Transactions would enhance rail
capacity in New England and operations in and around Ayer by modifying
existing trackage rights caps on PAS's Island Line, a short segment of
rail line between Harvard and the terminus of PAS, just east of Ayer,
which would ensure that an integrated CSXT/PAR System rail network
would be able to meet demand for rail service in New England through a
route that avoids the congested Boston metropolitan area. (Id., Ex. 22,
V.S. Pelkey 11-12.) Lastly, Applicants state that the NSR Settlement
Agreement sets forth certain principles to strengthen existing
operations of PAS lines and that CSXT has agreed to fund the
construction of certain improvements in facilities in Ayer to ensure
efficient operations. (Id., Ex. 22, V.S. Pelkey 12.)
Classification of the Proposed Transaction. When a transaction does
not involve the merger or control of two or more Class I railroads, its
classification will differ depending upon whether the transaction would
have ``regional or national transportation significance.'' 49 U.S.C
11325. Under 49 CFR 1180.2, a transaction that does not involve two or
more Class I railroads is to be classified as ``minor''--and thus not
having regional or national transportation significance--if a
determination can be made that either: (1) The transaction clearly will
not have any anticompetitive effects; or (2) any anticompetitive
effects will clearly be outweighed by the transaction's anticipated
contribution to the public interest in meeting significant
transportation needs. A transaction not involving the control or merger
of two or more Class I railroads is to be classified as ``significant''
if neither of these determinations can be made.
A transaction classified as ``significant'' must meet different
procedural and informational requirements than one classified as
``minor.'' For example, applicants are required to submit more detailed
information regarding competitive effects, operating plans, and other
issues for a ``significant'' transaction than for a ``minor''
transaction. 49 CFR 1180.6(c), 1180.7(a) & (c); 1180.8(b). Responsive
applications are not permitted for a ``minor'' transaction but are
allowed for a ``significant'' transaction. 49 CFR 1180.4(d). The time
limit for Board review is shorter for a ``minor'' transaction and
prefiling notification is not required. 49 U.S.C. 11325(d); 49 CFR
1180.4(e). Finally, the filing fee for a ``significant'' transaction is
higher than the fee for a ``minor'' transaction. 49 CFR 1002.2(f).
Applicants contend that the Proposed Transaction is ``minor''
because it is clear, with the commitments Applicants are making,\13\
that the transaction would not have any adverse impact on competition,
as: (1) No shipper would experience a reduction in the number of
serving carriers, (2) no existing routes would be closed, (3) no
existing interchange options would be eliminated, (4) no short lines
that connect with PAR Railroads would lose a connecting alternative,
(5) no Class I carriers that currently have access to New England would
lose that access, and (6) CSXT commits to keeping open existing
gateways on commercially reasonable terms and to ensuring access to
rate regulation remedies if shippers are dissatisfied with rates for
connections to other railroads. (Notice 10.)
---------------------------------------------------------------------------
\13\ These commitments include: (i) CSXT's commitment to provide
switching services to reach PAS to certain shippers that will lose a
rail alternative as a result of the Proposed Transaction; (ii) the
gateway and rate relief commitments described below; and (iii) price
and service commitments made by CSXT and NSR to address potential
adverse competitive impacts arising from operation of PAS by a GWI
subsidiary. (Notice, Ex. 22, V.S. Pelkey 13-16.)
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Applicants also assert that the agreements with NSR and GWI and the
Related Transactions would ensure that no adverse competitive impact
would result from CSXT's acquisition of Springfield Terminal, the
current operator over PAS, as well as Boston & Maine's 50% interest in
PAS. (Id. at 11.) According to Applicants, Springfield Terminal would
be replaced by B&E as the operator over PAS and as the entity to set
rates on PAS, and, as a result, CSXT would not have pricing or
operational control power over two generally parallel lines. (Notice
11; id., Ex. 22, V.S. Reishus 20-21.) And,
[[Page 16013]]
although PAS currently serves two customers that also are served by a
GWI-owned carrier and PAS interchanges with one railroad, Vermont
Railway (VTR), that also interchanges with a GWI-owned carrier,
Applicants argue that there would be no adverse impact on competition
as a result of B&E operating PAS, because CSXT and NSR, as owners of
PAS, have agreed to certain concessions to those shippers and the
interchanging railroad that would preserve existing competitive
options. (Notice 11; id., Ex. 22, V.S. Reishus 23-25.)
Applicants contend that the public benefits from the Proposed
Transaction are significant and clearly outweigh any potential adverse
competitive effects. Applicants note that the Proposed Transaction
would unify two already interconnected rail networks to produce
efficient single-line service, which would expand market opportunities
for shippers on the PAR Railroads and CSXT. (Notice 12.) Applicants
state that the Proposed Transaction would bring about improved service,
increased reliability, and highly consistent rail operations that would
enhance competition and remove truck traffic from roads. (Id.)
Additionally, Applicants state that the agreements reached with NSR and
GWI involve capacity additions in the vicinity of Ayer and the
establishment of operating protocols that would improve the efficiency
and reliability of operations on PAS. (Id. at 13.) Further, Applicants
contend that B&E, as a GWI subsidiary, would bring GWI's quality
service to PAS shippers and that operating PAS would allow B&E to share
resources and facilities among other GWI-owned rail carriers that would
create opportunities for efficiencies and cost savings. (Id. at 13.)
The purpose of the test articulated in section 1180.2 is to allow
the Board to lessen the regulatory burden when ``a determination can
clearly be made, at the time the application is filed, that the
transaction passes muster under'' the statute. See R.R. Consolidation
Procs.: Definition of, & Requirements Applicable to, ``Significant
Transactions,'' 9 I.C.C.2d 1198, 1200 (1993) (emphasis in original).
Designating a transaction under the regulations at section 1180.2
permits the Board to select the most appropriate procedures to apply to
a proposed transaction. See Canadian Pac. Ry.--Control--Dakota, Minn. &
E. R.R., FD 35081, slip op. at 6 (STB served Nov. 2, 2007). It is not
the purpose of section 1180.2(b) to force the Board to make an advance
determination on the extent of the likely competitive effects or to
weigh those effects against the public benefits in cases where more
information would be helpful. Id. Any broader reading of the regulation
could effectively require a preliminary determination on the ultimate
issue in the case even where the Board regards such a determination as
premature. Id.
Here, the Board cannot make the determination that the transaction
clearly would not have any anticompetitive effects, based on the
current record. Under the Proposed Transaction, CSXT would acquire
control of over 1,200 miles of rail line throughout the New England
area, including joint ownership with NSR of a Class II carrier that
currently competes with CSXT's mainline in the region. Applicants
acknowledge that, because PAS owns a route that is roughly parallel to
an existing CSXT route from upstate New York to the Boston area, CSXT's
joint control of PAS and its acquisition of Springfield Terminal could
give CSXT ``some influence over competition for movements into New
England,'' but for the agreements reached with NSR and GWI. (Notice,
Ex. 22, V.S. Huneke 3; see also id., Ex. 22, V.S. Reishus 20 (noting
the possibility that, if CSXT were to retain pricing or operational
control of PAS, ``the transaction could present certain competitive
concerns'').) In fact, when the Board authorized the creation of PAS in
2009, it noted that the transaction ``would significantly increase
competition between railroads by providing an upgraded east-west main
line route to compete with a parallel main line route operated by
CSXT.'' Norfolk S. Ry.--Joint Control & Operating/Pooling Agreements--
Pan Am S. LLC, FD 35147, slip op. at 5 (STB served Mar. 10, 2009). The
competitive impact of CSXT acquiring joint ownership of PAS and
Springfield Terminal is not clear at this time, notwithstanding the
remedial measures that Applicants have proposed.
Further, Applicants have identified ``limited instances where the
operation of PAS by a GWI-owned railroad could raise competitive
concerns'' for one railroad, VTR, that also interchanges with a GWI-
owned carrier, and two customers that are currently served by PAS and a
GWI-owned railroad and would be served by only GWI-owned railroads as a
result of the Proposed and Related Transactions. (Notice, Ex. 22, V.S.
Reishus 13, 23-25.) Applicants have also identified a small number of
jointly served PAS-CSXT shippers in Springfield, Mass., (id., Ex. 22,
V.S. Reishus 20 n.44), as well as four shippers that are being served
independently by both the PAR System and CSXT, three of which are
located in Everett, Mass., an inner industrial suburb near Boston
``with difficult rail connections to reach the less congested portion
of the freight rail network'' (id., Ex. 22, V.S. Reishus 19). Thus, the
record currently before the Board does not clearly establish that the
transaction would not have any anticompetitive effects.
While Applicants have taken steps to attempt to address these
potential competitive concerns, such as entering into the agreements
with NSR and GWI and making various price, interchange, and other
commitments (and requesting that the Board impose the terms of the NSR
Settlement Agreement and various commitments as conditions of its
approval of the Proposed Transaction), classifying this transaction as
``significant'' would provide the Board with the additional information
and time needed to develop a more comprehensive record so that the
Board may analyze the competitive concerns identified here (and any
others not apparent from the Notice) and consider whether Applicants'
proposed remedies, including the conditions that Applicants have
requested the Board impose, adequately address these concerns.\14\
---------------------------------------------------------------------------
\14\ Vermont Rail System (VRS), a business name used by six
short line railroads controlled by Trans Rail Holding Company,
including VTR; the Commonwealth of Massachusetts Department of
Transportation, on behalf of itself and its concurrently-supervised
agency, the Massachusetts Bay Transportation Authority
(collectively, MassDOT/MBTA); Republic Services, Inc., ECDC
Environmental, L.C., and Devens Recycling Center, LLC (collectively,
Republic); the State of Vermont, acting through its Agency of
Transportation (VTrans); Massachusetts Water Resources Authority;
and several commonwealth officials filed comments, asserting, among
other things, that the Proposed Transaction should be processed
under the Board's procedures for a ``significant'' transaction. On
March 18, 2021, Applicants filed a reply. As discussed, the Board
finds this to be a ``significant'' transaction and will evaluate
both the Proposed Transaction and the Related Transactions,
including B&E's proposed operations on PAS, when considering the
merits of the application.
---------------------------------------------------------------------------
Applicants' submission asserts that there are anticipated benefits
associated with the transaction. Based on the information the Board has
about the possible competitive impacts today, the Board is unable to
conclude at this stage that any anticompetitive impacts would clearly
be outweighed by the potential contribution to the public interest in
meeting significant transportation needs. However, the classification
of this transaction as ``significant'' should not be read as any
indication of how the Board might ultimately assess and weigh the
benefits and any impacts on competition after development of a more
complete record.
[[Page 16014]]
The Board finds the Proposed Transaction to be ``significant'' and
is therefore unable to accept the February 25, 2021 submission as an
application. However, as noted, the Board will consider the February
25, 2021 submission a prefiling notification and publish notice of it
in the Federal Register, which will permit Applicants to perfect their
application by supplementing their submission with the requisite
information for a ``significant'' transaction, within two to four
months of the February 25, 2021 submission. See 49 CFR 1180.4(b),
1180.6(c), 1180.7(a) & (c), 1180.8(b). As discussed above, the Board
will designate 2019 as the year to be used for impact analysis in the
application unless Applicants indicate otherwise when they submit the
proposed procedural schedule. Upon filing a supplement perfecting their
application for a ``significant'' transaction, Applicants will be
required to pay the remainder of the filing fee applicable for a
``significant'' transaction. See 49 CFR 1002.2(f).
Procedural Schedule. The Board's determination that this
transaction is ``significant'' necessitates a different procedural
schedule than that proposed by Applicants. Applicants must file with
the Board no later than April 1, 2021, a revised proposed procedural
schedule that reflects the Board's determination that this is a
``significant'' transaction. The proposed procedural schedule shall
indicate the approximate filing date of the supplement that will
perfect the application in accordance with 49 CFR 1180.4(b). Comments
on the proposed procedural schedule will be due 10 days after
publication of the proposed procedural schedule in the Federal
Register.\15\
---------------------------------------------------------------------------
\15\ The Brotherhood of Maintenance of Way Employes Division/
IBT; Brotherhood of Railroad Signalmen; International Association of
Sheet Metal, Air, Rail and Transportation Workers-Mechanical
Division; and National Conference of Firemen and Oilers, 32BJ/SEIU
(collectively, Allied Rail Unions); the Transportation
Communications Union/IAM; the District Lodge 19 of the International
Association of Machinists and Aerospace Workers; the American Train
Dispatchers Association; the International Association of Sheet
Metal, Air, Rail and Transportation Workers Transportation Division;
VRS; MassDOT/MBTA; Republic; and VTrans filed comments on the
procedural schedule proposed in Applicants' February 25, 2021
submission. Because Applicants are ordered to submit a revised
proposed procedural schedule that reflects the Board's determination
that the Proposed Transaction is ``significant,'' parties are
invited to comment on the revised proposed procedural schedule after
it is published in the Federal Register, as described above.
---------------------------------------------------------------------------
Service List. Every filing made by a Party of Record 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.
In past proceedings, the Board has served a notice containing the
official service list and required each Party of Record to serve copies
of all filings previously submitted by that party upon all other
Parties of Record (to the extent such filings have not previously been
served upon such other parties), and to file a certificate of service
with the Board indicating that it had done so. Given the availability
of the service list generated on the Board's website for individual
proceedings, the Board finds it unnecessary to serve an official
service list.
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 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 www.stb.gov.
Submissions Received Prior to February 25, 2021. Prior to receiving
Applicants' Notice, the Board received 26 letters regarding the
Proposed Transaction. As no formal docket existed at the time of their
submission, they have been held as correspondence. Those submissions
will be included in the record of Docket No. FD 36472 and need not be
served on Parties of Record at this time. However, all filings going
forward must comply with the service requirements set forth above.
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 Notice and other filings in
Docket No. FD 36472 will be furnished to interested persons upon
request and will also be available on the Board's website at
www.stb.gov.\16\ In addition, the Notice and other filings by
Applicants may be obtained from Applicants' representatives at the
addresses indicated above.
---------------------------------------------------------------------------
\16\ Applicants have filed a public version and highly
confidential version of the Notice. The highly confidential version
may be obtained subject to the protective order issued by the Board
on March 3, 2021.
---------------------------------------------------------------------------
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
It is ordered:
1. The submission filed by Applicants on February 25, 2021, is
treated as the prefiling notification of the anticipated application.
2. Applicants are directed to supplement the prefiling notification
by submitting a revised proposed procedural schedule with the Board no
later than April 1, 2021, that is consistent with the Board's
determination that this is a ``significant'' transaction.
3. Applicants are directed to perfect their application for a
``significant'' transaction, as described above, and to submit the
difference between the filing fee for a ``minor'' transaction and the
fee for a ``significant'' transaction, between April 25 and June 25,
2021.
4. The protective order previously issued on March 3, 2021, is
issued for Docket Nos. FD 36472 (Sub-No. 1); FD 36472 (Sub-No. 2); FD
36472 (Sub-No. 3); FD 36472 (Sub-No. 4); FD 36472 (Sub-No. 5); and AB
1312X, and is included in the Appendix to this decision.
5. Filings submitted prior to February 25, 2021, will be placed in
the record of Docket No. FD 36472.
6. This decision is effective on March 25, 2021.
Decided: March 19, 2021.
By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and
Schultz.
Jeffrey Herzig,
Clearance Clerk.
Appendix
Protective Order
1. For purposes of this Protective Order:
(a) ``Confidential Documents'' means documents and other
tangible materials containing or reflecting Confidential
Information.
(b) ``Confidential Information'' means traffic data (including
but not limited to waybills, abstracts, study movement sheets, and
any documents or computer tapes containing data derived from
waybills, abstracts, study movement sheets, or other data bases, and
cost workpapers); the identification of potential shippers and
receivers, in conjunction with shipperspecific or other traffic
data; the confidential terms of contracts with shippers, or carriers
or licensees; confidential financial and cost data; and other
confidential or proprietary business or personal information.
(c) ``Designated Material'' means any documents designated or
stamped as ``CONFIDENTIAL'' or ``HIGHLY CONFIDENTIAL'' in accordance
with paragraph 2 or 3 of this Protective Order and any Confidential
Information contained in such materials.
(d) ``Proceedings'' means those before the Surface
Transportation Board (``Board'')
[[Page 16015]]
concerning the Application for CSX Corporation (``CSXC''), CSX
Transportation, Inc. (``CSXT'') (CSXC and CSXT are collectively
referred to as ``CSX''), and 747 Merger Sub No. 2, Inc. to acquire
control of and merge certain subsidiaries of Pan An Systems, Inc.
(``Systems'') filed in STB Docket No. FD 36472, and any related
proceedings before the Board, including Docket Nos. FD 36472 (Sub-
No. 1), FD 36472 (Sub-No. 2), FD 36472 (Sub-No. 3), FD 36472 (Sub-
No. 4), FD 36472 (Sub-No. 5), and AB 1312X, and any judicial review
proceedings arising from STB Docket No. FD 36472 or from any related
proceedings before the Board.
2. If any party to these Proceedings determines that any part of
a document it submits, discovery request it propounds, discovery
response it produces, transcript of a deposition or hearing in which
it participates, or of a pleading or other paper to be submitted,
filed, or served in these Proceedings contains Confidential
Information or consists of Confidential Documents, then that party
may designate and stamp such Confidential Information and
Confidential Documents as ``CONFIDENTIAL.'' Any information or
documents designated or stamped as ``CONFIDENTIAL'' shall be handled
as provided for hereinafter.
3. If any party to these Proceedings determines that any part of
a document it submits, discovery request it propounds, a discovery
response it produces, transcript of a deposition or hearing in which
it participates, pleading or other paper to be submitted, filed, or
served in these Proceedings contains shipper-specific rate or cost
data; or other competitively sensitive or proprietary information,
then that party may designate and stamp such Confidential
Information as ``HIGHLY CONFIDENTIAL.'' Any information or documents
so designated or stamped shall be handled as provided hereinafter.
4. Information and documents designated or stamped as
``CONFIDENTIAL'' may not be disclosed in any way, directly or
indirectly, or to any person or entity except to an employee,
counsel, consultant, or agent of a party to these Proceedings, or an
employee of such counsel, consultant, or agent, who, before
receiving access to such information or documents, has been given
and has read a copy of this Protective Order, has agreed to be bound
by its terms by signing a confidentiality undertaking substantially
in the form set forth at Exhibit A to this Protective Order, and has
provided a copy of the confidentiality undertaking to counsel for
CSX and Systems.
5. Information and documents designated or stamped as ``HIGHLY
CONFIDENTIAL'' may not be disclosed in any way, directly or
indirectly, to any employee of a party to these Proceedings, or to
any other person or entity except to an outside counsel or outside
consultant to a party to these proceedings, or to an employee of
such outside counsel or outside counsel or outside consultant, who,
before receiving access to such information or documents, has been
given and has read a copy of this Protective Order, has agreed to be
bound by its terms by signing a confidentiality undertaking
substantially in the form set forth at Exhibit B to this Protective
Order, and has provided a copy of the confidentiality undertaking to
counsel for CSX and Systems.
6. All parties must file simultaneously a public version of any
Highly Confidential or Confidential submission filed with the Board
whether the submission is designated a Highly Confidential Version
or Confidential Version. When filing a Highly Confidential Version,
the filing party does not need to file a Confidential Version with
the Board, but must make available (simultaneously with the party's
submission to the Board of its Highly Confidential Version) a
Confidential Version reviewable by any other party's in-house
counsel. The Confidential Version may be served on other parties in
electronic format only. In lieu of preparing a Confidential Version,
the filing party may (simultaneously with the party's submission to
the Board of its Highly Confidential Version) make available to
outside counsel for any other party a list of all ``highly
confidential'' information that must be redacted from its Highly
Confidential Version prior to review by in-house personnel, and
outside counsel for any other party must then redact that material
from the Highly Confidential Version before permitting any clients
to review the submission.
7. Any party to these Proceedings may challenge the designation
by any other party of information or documents as ``CONFIDENTIAL''
or as ``HIGHLY CONFIDENTIAL'' by filing a motion with the Board or
with an administrative law judge or other officer to whom authority
has been lawfully delegated by the Board to adjudicate such
challenges.
8. Designated Material may not be used for any purposes,
including without limitation any business, commercial or competitive
purposes, other than the preparation and presentation of evidence
and argument in STB Docket No. FD 36472, any related proceedings
before the Board, and/or any judicial review proceedings in
connection with STB Docket No. FD 36472 and/or with any related
proceedings.
9. Any party who receives Designated Material in discovery shall
destroy such materials and any notes or documents reflecting such
materials (other than file copies of pleadings or other documents
filed with the Board and retained by outside counsel for a party to
these Proceedings) at the earlier of: (a) Such time as the party
receiving the materials withdraws from these Proceedings, or (b) the
completion of these Proceedings, including any petitions for
reconsideration, appeals or remands.
10. No party may include Designated Material in any pleading,
brief, discovery request or response, or other document submitted to
the Board, unless the pleading or other document is submitted under
seal, in a package clearly marked on the outside as ``Confidential
Materials Subject to Protective Order. See 49 CFR 1104.14. All
pleadings and other documents so submitted shall be kept
confidential by the Board and shall not be placed in the public
docket in these Proceedings except by order of the Board or of an
administrative law judge or other officer in the exercise of
authority lawfully delegated by the Board.
11. No party may include Designated Material in any pleading,
brief, discovery request or response, or other document submitted to
any forum other than this Board in these Proceedings unless: (a) The
pleading or other document is submitted under seal in accordance
with a protective order that requires the pleading or other document
to be kept confidential by that tribunal and not be placed in the
public docket in the proceeding, or (b) the pleading or other
document is submitted in a sealed package clearly marked,
``Confidential Materials Subject to Request for Protective Order,''
and is accompanied by a motion to that tribunal requesting issuance
of a protective order that would require the pleading or other
document be kept confidential and not be placed in the public docket
in the proceeding, and requesting that if the motion for protective
order is not issued by that tribunal, the pleading or other document
be returned to the filing party.
12. No party may present or otherwise use any Designated
Material at a Board hearing in these Proceedings, unless that party
has previously submitted, under seal, all proposed exhibits and
other documents containing or reflecting such Designated Material to
the Board, to an administrative law judge or to another officer to
whom relevant authority has been lawfully delegated by the Board,
and has accompanied such submission with a written request that the
Board, administrative law judge or other officer: (a) Restrict
attendance at the hearing during any discussion of such Designated
Material, and (b) restrict access to any portion of the record or
briefs reflecting discussion of such Designated Material in
accordance with this Protective Order.
13. If any party intends to use any Designated Material in the
course of any deposition in these Proceedings, that party shall so
advise counsel for the party producing the Designated Material,
counsel for the deponent, and all other counsel attending the
deposition. Attendance at any portion of the deposition at which any
Designated Material is used or discussed shall be restricted to
persons who may review that material under the terms of this
Protective Order. All portions of deposition transcripts or exhibits
that consist of, refer to, or otherwise disclose Designated Material
shall be filed under seal and be otherwise handled as provided in
paragraph 10 of this Protective Order.
14. To the extent that materials reflecting Confidential
Information are produced by a party in these Proceedings, and are
held and/or used by the receiving person in compliance with
paragraphs 1, 2 or 3 above, such production, disclosure, holding,
and use of the materials and of the data that the materials contain
are deemed essential for the disposition of this and any related
proceedings and will not be deemed a violation of 49 U.S.C. 11904 or
of any other relevant provision of the ICC Termination Act of 1995.
15. All parties must comply with all of the provisions of this
Protective Order unless the Board or an administrative law judge or
other
[[Page 16016]]
officer exercising authority lawfully delegated by the Board
determines that good cause has been shown warranting suspension of
any of the provisions herein.
16. Nothing in this Protective Order restricts the right of any
party to disclose voluntarily any Confidential Information
originated by that party, or to disclose voluntarily any
Confidential Documents originated by that party, if such
Confidential Information or Confidential Documents do not contain or
reflect any Confidential Information originated by any other party.
Exhibit A
UNDERTAKING CONFIDENTIAL MATERIAL
I, ________, have read the Protective Order served on ________,
2021 governing the production and use of Confidential Information
and Confidential Documents in STB Docket Nos. FD 36472, FD 36472
(Sub-No. 1), FD 36472 (Sub-No. 2), FD 36472 (Sub-No. 3), FD 36472
(Sub-No. 4), FD 36472 (Sub-No. 5), and AB 1312X, understand the
same, and agree to be bound by its terms. I agree not to use or to
permit the use of any Confidential Information or Confidential
Documents obtained pursuant to that Protective Order, or to use or
to permit the use of any methodologies or techniques disclosed or
information learned as a result of receiving such data or
information, for any purpose other than the preparation and
presentation of evidence and argument in STB Docket No. FD 36472,
any related proceedings before the Surface Transportation Board
(''Board''), and/or any judicial review proceedings in connection
with STB Docket No. FD 36472 and/or with any related proceedings. I
further agree not to disclose any Confidential Information,
Confidential Documents, methodologies, techniques, or data obtained
pursuant to the Protective Order except to persons who are also
bound by the terms of the Order and who have executed Undertakings
in the form hereof, and that at the conclusion of this proceeding
(including any proceeding on administrative review, judicial review,
or remand), I will promptly destroy any documents containing or
reflecting materials designated or stamped as ``CONFIDENTIAL,''
other than file copies, kept by outside counsel, of pleadings and
other documents filed with the Board.
I understand and agree that money damages would not be a
sufficient remedy for breach of this Undertaking and that Applicants
or other parties producing Confidential Information or Confidential
Documents shall be entitled to specific performance and injunctive
and/or other equitable relief as a remedy for any such breach, and I
further agree to waive any requirement for the securing or posting
of any bond in connection with such remedy. Such remedy shall not be
deemed to be the exclusive remedy for breach of this Undertaking but
shall be in addition to all remedies available at law or equity.
Signed:----------------------------------------------------------------
Name:
Affiliation:-----------------------------------------------------------
Dated:-----------------------------------------------------------------
Exhibit B
UNDERTAKING HIGHLY CONFIDENTIAL MATERIAL
I, ________ am outside [counsel] [consultant] for ________, for
whom I am acting in this proceeding. I have read the Protective
Order served on ________, 2021, governing the production and use of
Confidential Information and Confidential Documents in STB Docket
Nos. FD 36472, FD 36472 (Sub-No. 1), FD 36472 (Sub-No. 2), FD 36472
(Sub-No. 3), FD 36472 (Sub-No. 4), FD 36472 (Sub-No. 5), and AB
1312X, understand the same, and agree to be bound by its terms. I
agree not to use or to permit the use of any Confidential
Information or Confidential Documents obtained pursuant to that
Protective Order, or to use or to permit the use of any
methodologies or techniques disclosed or information learned as a
result of receiving such data or information, for any purpose other
than the preparation and presentation of evidence and argument in
STB Docket No. FD 36472, any related proceedings before the Surface
Transportation Board (``Board''), or any judicial review proceedings
in connection with STB Docket No. FD 36472 and/or with any related
proceedings. I further agree not to disclose any Confidential
Information, Confidential Documents, methodologies, techniques, or
data obtained pursuant to the Protective Order except to persons who
are also bound by the terms of the Order and who have executed
undertakings in the form hereof.
I also understand and agree, as a condition precedent to my
receiving, reviewing, or using copies of any information or
documents designated or stamped as ``HIGHLY CONFIDENTIAL,'' that I
will take all necessary steps to ensure that said information or
documents be kept on a confidential basis by any outside counsel or
outside consultants working with me; that under no circumstances
will I permit access to said materials or information by employees
of my client or its subsidiaries, affiliates, or owners; and that at
the conclusion of this proceeding (including any proceeding on
administrative review, judicial review, or remand), I will promptly
destroy any documents containing or reflecting information or
documents designated or stamped as ``HIGHLY CONFIDENTIAL,'' other
than file copies, kept by outside counsel, of pleadings and other
documents filed with the Board.
I understand and agree that money damages would not be a
sufficient remedy for breach of this Undertaking and that Applicants
or other parties producing Confidential Information or Confidential
Documents shall be entitled to specific performance and injunctive
and/or other equitable relief as a remedy for any such breach, and I
further agree to waive any requirement for the securing or posting
of any bond in connection with such remedy. Such remedy shall not be
deemed to be the exclusive remedy for breach of this Undertaking but
shall be in addition to all remedies available at law or equity.
Signed:----------------------------------------------------------------
OUTSIDE [COUNSEL] [CONSULTANT]
Dated:-----------------------------------------------------------------
[FR Doc. 2021-06211 Filed 3-24-21; 8:45 am]
BILLING CODE 4915-01-P
