[Federal Register Volume 88, Number 172 (Thursday, September 7, 2023)]
[Notices]
[Pages 61658-61668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19321]


=======================================================================
-----------------------------------------------------------------------

SURFACE TRANSPORTATION BOARD

[Docket No. FD 36500 (Sub-No. 6)]


Canadian Pacific Railway Limited; Canadian Pacific Railway 
Company; Soo Line Railroad Company; Central Maine & Quebec Railway US 
Inc.; Dakota, Minnesota & Eastern Railroad Corporation; and Delaware & 
Hudson Railway Company, Inc.--Control--Kansas City Southern; The Kansas 
City Southern Railway Company; Gateway Eastern Railway Company; and The 
Texas Mexican Railway Company (General Oversight)

AGENCY: Surface Transportation Board.

ACTION: Decision No. 1; notice of general oversight proceeding and 
guidance on reporting requirements.

-----------------------------------------------------------------------

SUMMARY: By decision served March 15, 2023 (Decision No. 35), the Board 
approved the acquisition of control by Canadian Pacific Railway (CP) of 
Kansas City Southern (KCS), resulting in the newly merged entity, 
Canadian Pacific Kansas City Limited (CPKC). As a condition of the 
Board's approval, the Board imposed a seven-year oversight period, 
during which the Board will closely monitor CPKC's compliance with, and 
the effectiveness of, the conditions imposed by the Board. Throughout 
the oversight period, CPKC is required to report numerous service, 
operational, and competition-related

[[Page 61659]]

metrics at prescribed frequencies, as described in Decision No. 35, 
Appendix B, ``Reporting & Recordkeeping Requirements.'' The Board is 
now instituting this proceeding to implement the general oversight 
condition and provides further guidance regarding CPKC's reporting and 
recordkeeping obligations.

DATES: Any person who wishes to participate in this proceeding as a 
Party of Record must file, no later than September 11, 2023, a notice 
of intent to participate. CPKC's first data submission, including 
information for the required five-year lookback period (with the one 
exception pertaining to car miles described below), is due by October 
15, 2023, with subsequent submissions due on the 15th of each month for 
the duration of the oversight period. CPKC's first report on truck-to-
rail and rail-to-rail diversions will be due January 15, 2024, and will 
be due every six months thereafter, for the duration of the oversight 
period.

ADDRESSES: Any filing submitted in this proceeding must be filed with 
the Board via e-filing on the Board's website or in writing addressed 
to 395 E Street SW, Washington, DC 20423-0001. In addition, one copy of 
each filing must be sent to (1) CPKC's representative, David L. Meyer, 
Law Office of David L. Meyer, 1105 S Street NW, Washington, DC 20009; 
and (2) any other person designated as a Party of Record on the service 
list for this subdocket.

FOR FURTHER INFORMATION CONTACT:  Valerie Quinn at (202) 740-5567. If 
you require an accommodation under the Americans with Disabilities Act, 
please call (202) 245-0245.

SUPPLEMENTARY INFORMATION: In Decision No. 35, the Board established 
oversight for a period of seven years, during which the Board will 
closely monitor CPKC's compliance with, and the effectiveness of, the 
imposed conditions. Canadian Pac. Ry.--Control--Kan. City S., FD 36500 
\1\ et al., slip op. at 142 (STB served Mar. 15, 2023). On May 8, 2023, 
the Board held a technical conference with CPKC on the logistical 
aspects of the reporting and recordkeeping requirements ordered during 
the oversight period (e.g., scope, methodology, and formatting). (See 
Tech. Conf. Tr., May 8, 2023; CPKC Tech. Conf. Ex., July 13, 2023.) The 
Board is now instituting this proceeding to implement the general 
oversight condition and provide further guidance regarding CPKC's 
reporting and recordkeeping obligations during the oversight period.
---------------------------------------------------------------------------

    \1\ A copy of this decision is being served on all parties of 
record on the service list in the main docket, FD 36500.
---------------------------------------------------------------------------

    Historical Data. In Decision No. 35, the Board ordered CPKC to 
provide monthly historical information for the interchange volume and 
operational datasets for a five-year period dating back from April 14, 
2023. Decision No. 35, FD 36500 et al., slip op. at 196, 197-99. It 
required CPKC to provide this information with its first monthly 
submission. Id. at 196, 197. At the technical conference, CPKC 
indicated that while it would be ready to make its first submission by 
July 15, 2023, and while it would have a ``considerable amount of 
historical data available to report,'' it likely would not be able to 
submit all of the historical information by that date due to 
uncertainties about applying methodologies adopted to measure the 
required operational data to past events. (Tech. Conf. Tr. 26:20-28:4, 
32:13-33:8 (``We haven't been going back and making sure that [the 
methodologies] work all the way back . . . that is something we'll be 
doing once we get more closure on exactly how staff sees us 
implementing a particular metric or methodology.'').) Given the 
additional time beyond the anticipated due date of July 15 that CPKC 
will have to make its first submission, with the exception of car mile 
data discussed below, CPKC must provide all of the required historical 
data with its first monthly report October 15, 2023.
    Traffic Tapes. In Decision No. 35, the Board imposed a condition 
requiring CPKC to preserve its 100% traffic tapes for the five-year 
lookback period and for the duration of the oversight period. Decision 
No. 35, FD 36500 et al., slip op. at 82.
    Definition of 100% Traffic Tapes. The Board stated that the 100% 
traffic tapes to be retained should include origin, destination, and 
interchange information; contract and tariff information; and revenue 
information on a country-specific basis. Id. At the technical 
conference, CPKC expounded upon its understanding of what the 100% 
traffic tapes would contain. (Tech. Conf. Tr. 80:12-81:15.) CPKC 
indicated that its 100% traffic tape data would consist of traffic 
files generally drawn from revenue waybill data and presented a 
PowerPoint slide, (Slide 7), listing the associated data fields. (CPKC 
Tech. Conf. Ex., Slide 7, July 13, 2023.) On June 28, 2023, following 
the technical conference, CPKC provided descriptions of the Slide 7 
data fields, with notations indicating data fields that it does not 
anticipate populating or that it proposes to delete. (CPKC Tech. Conf. 
Ex., June 28, 2023.)
    The Board determines that the 100% traffic tapes to be retained for 
the five-year lookback period and for the duration of the oversight 
period shall include all the data listed in Slide 7, as defined in the 
descriptions submitted on June 28, 2023. While CPKC proposes to delete 
certain data fields, all the fields in Slide 7 are necessary to ensure 
the usefulness and completeness of the traffic tapes, and all must be 
retained so as not to render other data unusable. For the same reason, 
CPKC is required to retain the following additional information:

Price Data

    [cir] Applicable fuel surcharge rate (e.g., rate per car mile, 
percentage rate);
    [cir] Applicable fuel surcharge basis fuel price (e.g., No. 2 
Diesel Retail Sales by All Sellers, On-Highway Diesel, Highway Diesel 
Fuel);
    [cir] Provider of car and container/trailer (e.g., CPKC- or 
predecessor-owned, CPKC- or predecessor-leased, shipper, or foreign 
road);
    [cir] The contract, agreement, tariff, pricing authority, etc., 
that the shipment is billed under, including the amendment and item 
numbers where applicable;
    [cir] The country to which the CPKC or predecessor revenues, 
surcharges, or rebates are applied (i.e., United States, Canada, or 
Mexico);

Quantity Data

    [cir] For both legacy CP and KCS/Kansas City Southern de 
M[eacute]xico, S.A. de C.V. (KCSM) data, a weight measure indicator 
that identifies the unit of measure for every record it preserves in 
its 100% traffic tapes (e.g., pounds, short tons, metric tons, 
hundredweight); \2\
---------------------------------------------------------------------------

    \2\ CPKC indicates that KCS/KCSM does not retain a unit of 
measure for the weight of its shipments. (CPKC Tech. Conf. Ex. 4, 
June 28, 2023.)
---------------------------------------------------------------------------

Route Data 3
---------------------------------------------------------------------------

    \3\ CPKC is required to retain this data even if the data must 
be sourced from systems separate from finance/accounting.
---------------------------------------------------------------------------

    [cir] For received rebilled/Rule 11 traffic, the origin waybill 
cross reference (origin railroad, waybill number, and date);
    [cir] For delivered rebilled/Rule 11 traffic, the delivered waybill 
cross reference (receiving railroad, waybill number, and date);
    [cir] For shipments received in interchange, the date and time the 
shipment was interchanged;
    [cir] For shipments delivered in interchange, the date and time the 
shipment was interchanged;

[[Page 61660]]

    [cir] For shipments terminated on CPKC or predecessor system, the 
date and time the shipment was terminated;
    [cir] Total actual loaded movement miles;
    [cir] Total actual empty movement miles;
    [cir] Total actual miles used to derive applicable fuel surcharges;
    [cir] Total actual loaded miles on the CPKC or predecessor system;
    [cir] Total actual empty miles on the CPKC or predecessor system.
    Submission of 100% Traffic Tapes. The Board left open the 
possibility that it would require CPKC to submit its 100% traffic tapes 
to the Board, noting that such information could be valuable in 
corroborating reported information and providing visibility into 
traffic moving across the merged networks. Decision No. 35, FD 36500 et 
al., slip op. at 144.
    BNSF Railway Company (BNSF) and the American Chemistry Council, the 
Fertilizer Institute, and the National Industrial Transportation League 
(collectively, Joint Associations) request that, consistent with past 
mergers, the Board ensure that the traffic tapes CPKC is required to 
preserve be submitted to the Board and made part of the record and 
available to interested parties, subject to protective order to ensure 
confidentiality.\4\ BNSF asserts that the traffic tape data would be an 
important element in assessing potential gateway foreclosure, 
particularly the gateway to Mexico. (BNSF Comment 4.) BNSF further 
contends that allowing interested parties access to the traffic tape 
data would ``greatly simplify the [Board] staff's analysis if 
interested parties have access to the traffic tapes and an opportunity 
to submit analyses and comments on the data.'' (Id.) The Joint 
Associations endorse these arguments. (Joint Ass'ns Comment 1.)
---------------------------------------------------------------------------

    \4\ BNSF's and Joint Associations' comments were filed on April 
19, 2023, and April 24, 2023, respectively, in reply to a request 
filed by Commuter Rail Division of the Regional Transportation 
Authority d/b/a Metra (Metra), seeking clarification of, and certain 
modifications to, the oversight conditions imposed by the Board. 
Metra's request is addressed in a separate decision.
---------------------------------------------------------------------------

    CPKC asserts that making its traffic tapes part of the record is 
unwarranted and inappropriate, as this would ``disclose not only the 
level of individual shipper rates, but myriad other commercially and 
competitively sensitive details about every traffic movement--all of 
which would be sensitive not just from CPKC's vantage but also from the 
perspective of [shippers] and CPKC's interchange partners.'' (CPKC 
Reply 7, May 9, 2023.) Rather, CPKC asserts, should issues arise during 
the oversight period, the Board may then consider whether targeted 
discovery of CPKC traffic data, including certain CPKC waybill data, is 
warranted. (Id. at 8.)
    The Board continues to recognize the potential usefulness of the 
data to be included in the retained traffic tapes but will not require 
CPKC to submit its traffic tapes to the Board at this time. The 
extensive data to be submitted by CPKC--including interchange volumes, 
diversion studies, and service metrics--will greatly assist the Board 
and other interested parties in assessing and evaluating any 
transaction-related impacts, including the competitiveness of service 
provided by CPKC at the affected gateways, as well as any capacity 
issues or service degradations. However, the Board recognizes that this 
is extraordinarily commercially and competitively sensitive data and 
that certain parties may have an opportunity to receive more targeted 
data, subject to appropriate protections, in discovery if a dispute 
were to arise. The Board may require CPKC to submit its traffic tapes, 
or certain data contained therein, at a later date, as it has done in 
prior cases.
    Reporting Guidance and Clarification. As part of the Board's 
oversight condition, CPKC will report on numerous competitive, service, 
and operational metrics at prescribed frequencies, as described in 
``Reporting & Recordkeeping Guidelines,'' Appendix B of Decision No. 
35. Decision No. 35x, FD 36500 et al., slip op. at 196-99. During the 
technical conference, CPKC informed Board staff of certain limitations 
in providing the required information, as well as its intention to 
report data not explicitly listed in Appendix B. The Board addresses 
these issues below. Moreover, those participating in this oversight 
proceeding, including other carriers sharing facilities with CPKC, 
should consider collecting and retaining their own information to 
substantiate any future claims of post-merger impacts, should problems 
on lines shared with CPKC ever arise.
    Car Miles Data for CPKC Traffic Volumes Interchanged at Gateways. 
In Decision No. 35, the Board explained that CPKC should be prepared to 
discuss at the technical conference its ability to provide car mile 
data for traffic subject to CPKC's interchange reporting obligations, 
along with any burden associated with that data's production. Decision 
No. 35, FD 36500 et al., slip op. at 82. At the technical conference, 
CPKC stated that its data source for the required traffic volume 
information ``doesn't have a measure of actual car miles on the 
network.'' \5\ (Tech. Conf. Tr. 78:5-8.) CPKC indicated that while it 
could provide an ``estimate'' of that data, it would need to derive it 
from revenue information from the CPKC waybill. (Id. at 78:13-79:4; see 
also id. at 97:1-16 (``[W]e . . . would be using the implicit mileage 
that's reflected in a calculated ton miles figure . . . .'').) It 
asserted that this effort would not yield a ``precise measure of actual 
car miles.'' (Id. at 79:5-11; see also id. at 97:1-16 (stating that 
such calculation would provide an estimate not necessarily tied to the 
actual route of movement).)
---------------------------------------------------------------------------

    \5\ Separately, at the technical conference, CPKC noted that 
Decision No. 35's reference to ``count of cars interchanged,'' 
Decision No. 35, FD 36500 et al., slip op. at 196, read literally, 
may not capture intermodal traffic moved via container or trailer, 
(Tech. Conf. Tr. 60:8-61:12). The Board clarifies that it intended 
for CPKC to report on both cars and intermodal units interchanged 
with connecting carriers at the gateways identified in Appendix B, 
characterized by the two-digit STCC identified on the waybill and 
broken out by interchange partner. The Board also acknowledges 
limitations regarding what can be known about the commodities moved 
in intermodal traffic. (See Tech. Conf. Tr. 64:15-65:1 (``We know we 
don't know what's inside those containers. We know on the waybill 
they're classified as freight all kinds.'').)
---------------------------------------------------------------------------

    Although the Board emphasized in Decision No. 35 that length of 
haul is not necessarily determinative of traffic share for competing 
movements, it nonetheless recognized some relationship between traffic 
share and the relative length of the competing carriers' routes. 
Decision No. 35, FD 36500 et al., slip op. at 34. Information regarding 
length of haul may provide important context for understanding why 
certain CPKC traffic currently interchanged with a competing carrier 
may subsequently be diverted onto a longer haul on the CPKC network. 
Accordingly, CPKC is ordered to provide the car miles (or intermodal 
unit miles, see supra note 5) associated with the interchange traffic 
volumes that it must report pursuant to Decision No. 35, also 
characterized by two-digit STCC, broken out by interchange partner, and 
including five years of historical data. With its first submission, 
CPKC must explain the methodology used to derive this information. For 
this metric, CPKC may take additional time to calculate the required 
historical data, if necessary, but must offer a date in its first 
submission by which it will submit that information.
    Diversion Reporting by Route or Corridor. In Decision No. 35, the 
Board explained that CPKC should be prepared to discuss at the 
technical conference its ability to provide the required data for 
truck-to-rail and rail-to-rail diversions (i.e., carload volumes

[[Page 61661]]

characterized by two-digit STCC) on a corridor- or route-specific basis 
and any associated burden that would be incurred in doing so. Decision 
No. 35, FD 36500 et al., slip op. at 82. At the technical conference, 
CPKC indicated that it currently envisions reporting such information 
mostly on a regional basis (e.g., traffic between the upper Midwest and 
Mexico) and questioned the usefulness of more granular reporting. 
(Tech. Conf. Tr. 93:6-94:10.) It noted, however, the possibility of 
reporting specific business ``wins'' qualitatively. (Id. at 94:3-10 
(``[T]he Marketing Department may know very well that a given customer 
decided to award us the business instead of a prior Class 1 in this 
particular lane or from this plant to this destination or what have 
you, and then we'll know that and I see that as more of a qualitative 
report than a quantitative report . . . .'').) The Board will decline 
at this time to order CPKC to report the required diversion data on a 
corridor- or route-specific basis, given the possibility that the sort 
of reporting that CPKC is considering may well provide a useful and 
complete understanding of post-merger diversions to the CPKC network. 
In its first diversion report, however, CPKC must provide justification 
for the level of detail chosen to present the information required in 
Decision No. 35. Should CPKC choose not to report volumes on a 
corridor- or route-specific basis, the Board may require that 
information to be provided in subsequent reports.\6\
---------------------------------------------------------------------------

    \6\ Regardless of the level of detail chosen for reporting the 
required diversion data, any such corridor- or route-specific volume 
data possessed by CPKC for any of the CP or KCS lines subject to 
this proceeding should also be provided.
---------------------------------------------------------------------------

    Neches River Bridge. CPKC is required to provide, by railroad, 
certain operational metrics for trains operating over the Neches River 
Bridge. Decision No. 35, FD 36500 et al., slip op. at 107. During the 
technical conference, CPKC indicated that, while it could provide 
operational metrics for CPKC and Amtrak trains, it would not be able to 
provide separate metrics for Union Pacific Railroad Company (UP) and 
BNSF trains. (Tech. Conf. Tr. 144:3-10; see also CPKC Tech. Conf. Ex., 
Slide 29, July 13, 2023.) While the Board recognizes that CPKC's 
current practices may only capture aggregated data for UP and BNSF 
trains at the Neches River Bridge, the record demonstrates that CPKC is 
capable of providing separate operational metrics for UP and BNSF. (See 
CPKC Reb., R.V.S. Elphick/Orr, paras. 57 & 58 & Table 2, July 13, 2022 
(showing separate train counts and occupancy times for UP and BNSF).) 
Therefore, CPKC is ordered to provide separate operational metrics for 
UP and BNSF trains over the Neches River Bridge, as described in 
Decision No. 35, to the maximum extent practicable. With its first 
submission, CPKC must also describe in detail the methodology it 
outlined at the Technical Conference for measuring occupancy times and 
minutes held at the Neches River Bridge, including any limitations 
associated with that approach. (Tech. Conf. Tr. 143:14-154:22; see also 
id. at 155:1-6 (noting limitations on scope of historical data 
reporting); CPKC Tech. Conf. Ex., Slides 27-28, July 13, 2023.)
    Laredo Bridge Hold Time Methodology. CPKC is also required to 
provide, by railroad, certain operational metrics for trains operating 
over the Laredo Bridge, including ``minutes held prior to moving over 
the bridge per movement.'' Decision No. 35, FD 36500 et al., slip op. 
at 107. At the technical conference, CPKC informed staff that the 
statistics it maintains for operations over the Laredo Bridge do not 
capture minutes held prior to movement over the bridge but that CPKC 
would consider other approaches to consistently track hold times at the 
Laredo Bridge. (Tech. Conf. Tr. 174:20-177:16, 179:7-180:5.) The Board 
directs CPKC to report hold time at the Laredo Bridge based on whatever 
alternative approach it develops, and, with its initial data 
submission, provide an explanation of the methodology it uses to derive 
that information.
    Methodological Variations & Reporting Limits for Non-CPKC Trains & 
Lines. CPKC also must report train count, length, and transit and dwell 
time statistics for trains operating over certain additional segments 
as part of its operational metrics. Decision No. 35, FD 36500 et al., 
slip op. at 106-07. CPKC states that it will use either train movement 
event data, Centralized Traffic Control (CTC) signal data, or 
geographic information system (GIS) data \7\ to capture the required 
information, depending on which carrier owns the underlying segment 
and/or whether CPKC is reporting on its own train movements or those of 
a different railroad. (See generally CPKC Tech. Conf. Ex., Slides 17-
63, July 13, 2023.) It also identifies certain limits on its ability to 
collect the ordered data with respect to non-CPKC train movements and/
or movements on non-CPKC owned lines. For example, CPKC indicated that 
it would rely on GIS data to measure transit and dwell time for CPKC 
trains on lines where it does not have access to signal data, but that 
it will only be able to provide historical data for these metrics to 
mid-2021. (Tech. Conf. Tr. 163:16-165:2, 185:1-12; see also CPKC Tech. 
Conf. Ex., Slides 36-37, 53-54, 57-58, July 13, 2023.) CPKC also 
explained that it would be unable to provide counts of non-CPKC trains 
on BNSF-owned lines in the Twin Cities area, given its lack of 
visibility into those movements. (Tech. Conf. Tr. 135:12-19; see also 
CPKC Tech. Conf. Ex., Slide 23, July 13, 2023.) In addition, CPKC 
indicated that while it will be able use CTC signal data to measure 
counts of UP trains moving over the CPKC Polo Line, it will not be able 
to verify the identity of those trains with complete certainty. (Tech. 
Conf. Tr. 112:15-113:22 9 (``probably a very good assumption 99 percent 
of the time'' that it is a UP train); see also CPKC Tech. Conf. Ex., 
Slide 18-19; 22-23; 27-29, July 13, 2023.) The Board recognizes CPKC's 
need to use a variety of methodologies to collect the operating 
statistics ordered by the Board, and it understands that there are 
limits associated with the collection of information for lines not 
owned by CPKC and for trains not operated by CPKC. It orders CPKC, with 
its initial data submission, to provide for each reporting segment an 
explanation of the methodology used to calculate the required train 
count, length, and transit and dwell time statistics (including with 
respect to the bridges, where applicable), and any limitations 
associated with that approach. As noted above, the Board also 
encourages other stakeholders to retain any of their own data that 
would be helpful to substantiate any future claims regarding post-
merger impacts on shared lines.
---------------------------------------------------------------------------

    \7\ GIS data are collected for locomotives, track, and signal 
infrastructure through the use of Positive Train Control systems, 
which are ``integrated command, control, communications, and 
information systems for controlling train movements with safety, 
security, precision, and efficiency.'' See Positive Train Control 
(PTC) Info. (R&D), https://railroads.dot.gov/train-control/ptc/positive-train-control-ptc-information-rd (last visited August 24, 
2023).
---------------------------------------------------------------------------

    Customer Experience Metrics. During the technical conference, CPKC 
noted that the ``Customer Experience'' service metrics it is required 
to report are those that CPKC currently reports pursuant to United 
States Rail Service Issues--Performance Data Reporting, Docket No. EP 
724 (Sub-No. 4) and Urgent Issues in Freight Rail Service--Railroad 
Reporting, Docket No. EP 770 (Sub-No. 1). (Tech. Conf. Tr. 41:15-45:3; 
see also CPKC Final Br., App. A at A8, Oct. 21, 2022.) The Board 
clarifies that, by reporting the customer service metrics in those 
dockets, CPKC will be in compliance with its obligations in this 
proceeding and need not include those

[[Page 61662]]

metrics in its monthly submissions in this subdocket. Should the 
reporting obligations in EP 724 (Sub-No. 4) and/or EP 770 (Sub-No. 1) 
be discontinued, CPKC shall continue to submit these customer service 
metrics in its monthly submissions in this proceeding for the duration 
of the oversight period.
    In the technical conference, CPKC highlighted two categories of 
``Customer Experience'' service data that are not included in its 
reporting for EP 724 (Sub-No. 4) or EP 770 (Sub-No. 1) and that it 
intends to report in this subdocket. First, CPKC intends to report on 
delays caused to Metra trains by CPKC freight trains on Metra's 
Milwaukee District-West Line and Milwaukee District-North Line, to the 
extent Metra provides the requisite data and detailed information to 
CPKC. (See Decision No. 35, slip op. at 111; Hr'g Tr. 1623:6-12, Oct. 
6, 2022; Tech. Conf. Tr. 103:15-105:1.) Second, CPKC states that it 
will report the weekly average percentage of trains departing on time 
from Wylie Intermodal Terminal and the average train speed on the 
Meridian Speedway, between Shreveport, La., and Meridian, Miss. (Hr'g 
Tr. 1622:7-13, Oct. 6, 2022; Tech. Conf. Tr. 98:15-99:12.) While CPKC 
had discussed reporting these metrics during this proceeding, they are 
not explicitly included in the reporting requirements contained in 
Appendix B. The Board will hold CPKC to its representations regarding 
Metra delay and Wylie Intermodal Terminal and Meridian Speedway 
reporting, and CPKC shall include this data as part of its publicly 
filed Customer Experience service metrics. See Decision No. 35, FD 
36500 et al., slip op. at 143.
    Reporting Format. CPKC must submit its reports as filings to the 
Board, consisting of an electronic copy of the data. Board staff will 
provide revised templates to help facilitate CPKC's data 
submissions.\8\ CPKC shall provide explanations of its methodologies 
for deriving the required information with its initial filing, as 
discussed above.\9\
---------------------------------------------------------------------------

    \8\ For discussion purposes, Board staff provided sample 
templates to CPKC in advance of the technical conference. Those 
drafts were subsequently posted to the docket in Docket No. FD 36500 
on July 27, 2023. The sample templates have been revised to account 
for certain reporting issues discussed at the technical conference 
and above and will be posted to the docket in this oversight 
proceeding.
    \9\ Several revisions and minor technical corrections have been 
made to the ``Reporting & Recordkeeping Requirements'' contained in 
Appendix B of Decision No. 35 in response to certain matters 
discussed above and to describe the reporting requirements in a 
manner consistent with how the data will be reported in the 
templates. The Board also corrects minor typographical errors 
contained in the original appendix. An amended ``Reporting & 
Recordkeeping Requirements,'' along with a redline to the original 
version, is appended to this decision.
---------------------------------------------------------------------------

    Inflation Index. In Decision No. 35, the Board ordered, during the 
oversight period, CPKC to provide to a shipper a written justification 
upon request for any rate increase above the rate of inflation for 
interline movements subject to CPKC's open gateway obligation. Decision 
No. 35, FD 36500 et al., slip op. at 173. On May 30, 2023, consistent 
with Decision No. 35, id. at 78 n.131, CPKC petitioned the Board for 
permission to use the [Iacute]ndice Nacional de Precios al Consumidor 
(INPC), as reported by Mexico's National Institute of Statistics, 
Geography and Informatics, to measure the rate of inflation for 
movements in Mexico. (CPKC's Pet. Respecting Mex. Inflation-Adjusted 
Index 1.) No party opposed CPKC's petition, and for the reasons 
described therein, the Board approves use of the INPC for purposes of 
the conditions imposed in Decision No. 35.
    Protective Order. For the oversight subdocket, the Board adopts the 
protective order imposed in the main docket of this proceeding. See 
Canadian Pac. Ry.--Control--Kan. City S., FD 36500 (STB served Apr. 2, 
2021). Parties may submit filings, as appropriate, under seal marked 
Confidential or Highly Confidential pursuant to the protective order.
    Service List. A copy of this decision is being served on all 
parties of record in Docket No. FD 36500. This decision will serve as 
notice that persons who were parties of record in Docket No. FD 36500 
will not automatically be placed on the service list as parties of 
record in the general oversight proceeding, Docket No. FD 36500 (Sub-
No. 6). Any person who wishes to participate in this oversight 
proceeding as a party of record must file, in this subdocket, no later 
than September 11, 2023, a notice of intent to participate, accompanied 
by a certificate of service indicating that the notice has been 
properly served on CPKC's representative.
    It is ordered:
    1. Any person who wishes to participate in this oversight 
proceeding as a party of record must file, in this subdocket, a notice 
of intent to participate, no later than September 11, 2023, accompanied 
by a certificate of service indicating that the notice has been 
properly served on CPKC's representative.
    2. CPKC's first data submission, including information for the 
five-year lookback period (with the one exception pertaining to car 
miles described above), is due by October 15, 2023, with subsequent 
submissions due on the 15th of the month for the duration of the 
oversight period.
    3. CPKC's first report on truck-to-rail and rail-to-rail diversions 
will be due January 15, 2024, and will be due every six months 
thereafter, for the duration of the oversight period.
    4. This decision will be published in the Federal Register.
    5. This decision is effective on its service date.

    Decided: August 31, 2023.

    By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and 
Schultz. Board Member Primus concurred with a separate expression.
    Board Member Primus, concurring:
    I concur with today's decision. However, I maintain my 
objections to the Board's approval of the transaction, as stated in 
my March 15, 2023 dissent.
Brendetta Jones,
Clearance Clerk.

Appendix

Amended Reporting & Recordkeeping Requirements

Gateways Conditions

Item 1

    Applicants will provide a monthly report containing the 
following information related to interchange volumes at gateways. 
With their first submission, Applicants will also provide the same 
historical monthly information for a five-year period dating back 
from the effective date of this decision, or if data is no longer 
available for the entirety of that time period, then from the 
earliest date for which it is available. This data will be used to 
establish a baseline by which to interpret future changes.
    Count of cars/intermodal units interchanged with connecting 
carriers at interchange.
     CP Interchange Locations:

[cir] Eastport, Minneapolis/St. Paul, Chicago, and Kansas City

     KCS Interchange Locations:

[cir] Laredo, Robstown, Beaumont, Shreveport, Dallas, Jackson, 
Meridian, East St. Louis, Kansas City, and New Orleans

    Information should include the total count of cars/intermodal 
units interchanged (i) categorized by two-digit STCC, (ii) broken 
out by interchange partner, and (iii) with associated car/intermodal 
unit miles.

Item 2

    Applicants will report on a biannual basis (every six months) 
the following information, categorized by two-digit STCC and on a 
carload basis:
     Truck-to-rail diversions on the CP and KCS lines 
subject to this proceeding.
     Rail-to-rail diversions on the CP and KCS lines subject 
to this proceeding broken out in the following categories:

[cir] Joint line movements converted to single line service
[cir] Movements that CPKC has diverted from other railroads on to 
the merged system

[[Page 61663]]

Item 3

    Applicants will preserve their 100% traffic tapes for a five-
year period dating back from the effective date of this decision and 
for the duration of the oversight period. The data to be preserved 
includes all data that Applicants compile and maintain in their 100% 
traffic tapes in the ordinary course of business, including but not 
limited to the following for CP and KCS operations during the five-
year lookback period, and for CPKC operations during the oversight 
period, in the U.S. and for all transborder movements between the 
U.S. and Mexico or Canada: origin, destination, and interchange 
information; contract and tariff information; and revenue 
information on a country-specific basis. It must also include the 
data that the Board ordered to be retained in Decision No. 1 of the 
oversight proceeding.\10\
---------------------------------------------------------------------------

    \10\ If data is no longer available for the entirety of the 
five-year lookback period, then Applicants must preserve traffic 
tapes from the earliest date for which they are available. To the 
extent the oversight record retention requirements described herein 
exceed those set forth at 49 CFR parts 1220 and 1244, the oversight 
conditions control.
---------------------------------------------------------------------------

Item 4

    Applicants will establish protocols and recordkeeping practices 
sufficient to enable CPKC to respond promptly and accurately to 
inquiries by the Board and/or shippers in the event future concerns 
or disputes arise in connection with the open gateway conditions 
imposed in this decision, including being able to provide the Board 
with a list of rate increases above inflation for interline 
movements subject to the open gateway obligation.

Customer Experience

    On a monthly basis, Applicants will report weekly data on the 
service-related metrics pertaining to Metra on-time performance, on-
time train departures from the Wylie Intermodal Terminal, and 
average train speeds on the Meridian Speedway. Service-related 
metrics detailed in the CPKC Service Promise and Attachment 1 of 
their Final Brief will be reported in Docket Nos. EP 724 (Sub-No. 4) 
and EP 770 (Sub-No. 1).\11\ With their first submission, Applicants 
will provide a description of the methodology used to compile this 
data and will update that description if there is a subsequent 
change in methodology for calculating service metrics.
---------------------------------------------------------------------------

    \11\ Should the reporting obligations in Docket Nos. EP 724 
(Sub-No. 4) and/or EP 770 (Sub-No. 1) be discontinued, CPKC shall 
continue to report these customer service metrics in its monthly 
submissions in this proceeding for the duration of the oversight 
period.
---------------------------------------------------------------------------

Operational Data

    Applicants will provide a monthly report containing information 
related to train operations at the following locations, to the 
maximum extent practicable. With their first submission, Applicants 
will also provide the same historical monthly information for a 
five-year period dating back from the effective date of this 
decision, or if data is no longer available for the entirety of that 
time period, then from the earliest date for which it is available.

Polo Line in Missouri

    For the segment from Airline Junction, Mo., to Polo, Mo.

 Weekly average number of trains per day by railroad
 Weekly CPKC 25th percentile, median, 75th percentile, and 
maximum train length
 Weekly CPKC average transit time and maximum transit time

Twin Cities Area

    For the lines between Hoffman Avenue and Northtown/Shoreham, 
broken out by the BNSF St. Paul Subdivision, the BNSF Midway 
Subdivision, the CP Withrow Subdivision, and the CP St. Paul 
Subdivision.

 Weekly average number of trains per day by railroad to the 
maximum extent practicable
 Weekly CPKC 25th percentile, median, 75th percentile, and 
maximum train length
 Weekly CPKC average transit time and maximum transit time

Texas

Neches River Bridge

    By railroad (including passenger, bridge opening trains, and all 
other types of trains):

 Weekly average number of trains per day
 Weekly maximum trains per day
 Weekly 25th percentile, median, 75th percentile, and 
maximum train lengths
 Weekly number of trains over 10,000 ft
 Weekly total daily occupancy minutes
 Average occupancy time in minutes per movement
 Average minutes held prior to moving over the bridge per 
movement

Beaumont, Tex. to Rosenberg, Tex. Segment

 Weekly average number of CPKC trains per day
 Weekly CPKC 25th percentile, median, 75th percentile, and 
maximum train lengths
 Weekly number of CPKC trains over 10,000 ft
 Weekly CPKC average transit time and maximum transit time

Houston, Tex. Terminal

 Weekly CPKC average transit time
[cir] By route (e.g., Houston Subdivision Route and Beaumont 
Subdivision Route)
 Weekly CPKC average dwell

Rosenberg to Laredo, Tex. Segment

 Weekly average number of CPKC trains per day
 Weekly CPKC 25th percentile, median, 75th percentile, and 
maximum train length
 Weekly number of CPKC trains over 10,000 ft
 Weekly CPKC average transit time and maximum transit time

Laredo Bridge

    By railroad (including other types of trains):

 Weekly average number of trains per day
 Weekly maximum trains per day
 Weekly 25th percentile, median, 75th percentile, and 
maximum train length
 Weekly number of trains over 10,000 ft
 Weekly total daily occupancy minutes
 Average occupancy time in minutes per movement
 Average minutes held prior to moving over the bridge per 
movement to the maximum extent practicable

Metra & Chicago Communities

MD-W Line: Between Randall Road (Tower B-35) and Tower B-17 (Trains To/
From Chicago Subdivision)

 Weekly average transit time and weekly maximum transit time 
for CPKC through trains between Tower B-35 and Tower B-17
 Weekly average number of CPKC trains per day
    [ssquf] For MD-W Line--Randall Road (Tower B-35) and Tower B-17 
split between trains departing B35 and B17
 Weekly CPKC 25th percentile, median, 75th percentile, and 
maximum train length
 Weekly number of CPKC trains over 10,000 ft

MD-W Line: Bensenville Yard/Tower B-12 to Tower A-5

 Weekly average transit time and weekly maximum transit time 
for CPKC through trains between Tower B-12 and Tower A-5
 Weekly average number of CPKC trains per day
    [ssquf] For MD-W Line--Bensenville Yard/Tower B-12 to Tower A-5 
split between trains departing B12 and A5
 Weekly CPKC 25th percentile, median, 75th percentile, and 
maximum train length
 Weekly number of CPKC trains over 10,000 ft

MD-N Line: Rondout to Tower A-5

    Between Rondout and Tower A-20 and between Tower A-20 and Tower 
A-5:

 Weekly average transit time and weekly maximum transit time 
for CPKC through trains (CP/KCS Commitment)
 Weekly average number of CPKC trains per day
 Weekly CPKC 25th percentile, median, 75th percentile, and 
maximum train length
 Weekly number of CPKC trains over 10,000 ft

CP Marquette Subdivision Between Sabula Junction and River Junction

 Weekly average transit time for CPKC through trains across 
the segment
 Weekly CPKC 25th percentile, median, 75th percentile, and 
maximum train length
 Weekly average number of CPKC trains per day
 Weekly number of CPKC trains over 10,000 ft
 Status of capacity expansion work
BILLING CODE 4915-01-P

[[Page 61664]]

[GRAPHIC] [TIFF OMITTED] TN07SE23.014


[[Page 61665]]


[GRAPHIC] [TIFF OMITTED] TN07SE23.015


[[Page 61666]]


[GRAPHIC] [TIFF OMITTED] TN07SE23.016


[[Page 61667]]


[GRAPHIC] [TIFF OMITTED] TN07SE23.017

[GRAPHIC] [TIFF OMITTED] TN07SE23.018


[[Page 61668]]


[FR Doc. 2023-19321 Filed 9-6-23; 8:45 am]
BILLING CODE 4915-01-C