[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]


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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.

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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.''
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    \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.
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    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).
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    \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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    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.)
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    \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.)
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    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.)
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    \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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    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.)
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    \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).
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    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:
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    \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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     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.
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    \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.
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     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.
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    \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.
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    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.)
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    \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\
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    \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\
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    \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