[Federal Register Volume 90, Number 165 (Thursday, August 28, 2025)]
[Notices]
[Pages 42054-42057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-16524]
=======================================================================
-----------------------------------------------------------------------
SURFACE TRANSPORTATION BOARD
[Docket No. FD 36873]
Union Pacific Corporation and Union Pacific Railroad Company--
Control--Norfolk Southern Corporation and Norfolk Southern Railway
Company
AGENCY: Surface Transportation Board.
ACTION: Decision No. 3 in Docket No. FD 36873; notice of receipt of
prefiling notification.
-----------------------------------------------------------------------
SUMMARY: Union Pacific Corporation (UPC) and Union Pacific Railroad
Company (UP) (collectively, Union Pacific) and Norfolk Southern
Corporation (NSC) and Norfolk Southern Railway Company (NS)
(collectively, Norfolk Southern) (Union Pacific and Norfolk Southern
collectively, Applicants) have notified the Surface Transportation
Board (Board) of their intent to file an application seeking authority
for the acquisition of control by UPC, through its wholly owned
subsidiary Ruby Merger Sub 1 Corporation, of NSC and, through it, NS,
and for the resulting common control by UPC of UP and NS. Applicants
have indicated that 2023 will be the base year for their impact
analysis and that they anticipate filing their application on or before
January 29, 2026.
ADDRESSES: Any filing submitted in this proceeding, referring to Docket
No. 36873, must be filed with the Board either via e-filing on the
Board's website or in writing addressed to: Surface Transportation
Board, 395 E Street SW, Washington, DC 20423-0001. 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) UP's representative, Michael L.
Rosenthal, Covington & Burling LLP, One CityCenter, 850 Tenth Street
NW, Washington, DC 20001; (4) NS's representative, Raymond A. Atkins,
[[Page 42055]]
Sidley Austin LLP, 1501 K Street NW, Washington, DC 20005; (5) any
other person designated as a Party of Record on the service list; and,
as noted below, (6) the administrative law judge assigned in this
proceeding.
FOR FURTHER INFORMATION CONTACT: Nathaniel Bawcombe at (202) 915-3555.
If you require an accommodation under the Americans with Disabilities
Act, please call (202) 245-0245.
SUPPLEMENTARY INFORMATION: Applicants state that UPC and NSC entered
into an Agreement and Plan of Merger dated July 28, 2025, under which
UPC, through its wholly owned subsidiary, Ruby Merger Sub 1
Corporation, would acquire all outstanding shares of NSC for
consideration consisting of shares of UPC common stock and cash.
(Notice of Intent 3.) Specifically, Applicants state that upon receipt
of approval by the shareholders of UPC and NSC, a decision by the Board
approving the proposed transaction, and the satisfaction of other
customary closing conditions, Ruby Merger Sub 1 Corporation would merge
with and into NSC, and NSC would become a directly and wholly owned
subsidiary of UPC. (Id.) NSC would then be merged with and into Ruby
Merger Sub 2 LLC, another wholly owned subsidiary of UPC. (Id.)
Applicants indicate that they will use 2023 as the base year for
the impact analysis in the application and that they anticipate filing
their application on or before January 29, 2026.\1\ (Id. at 2.)
---------------------------------------------------------------------------
\1\ If Applicants anticipate filing their application earlier
than January 29, 2026, they should amend their filing date pursuant
to 49 CFR 1180.4(b)(3). Such an amendment would not change the
three-to-six-month window in which the application can be filed.
---------------------------------------------------------------------------
Major Transaction Status. The Board finds that this is a major
transaction under 49 CFR 1180.2(a), as it is a control transaction
involving two or more Class I railroads. UPC presently controls UP, a
Class I railroad, and proposes to acquire common control of NS, also a
Class I railroad.
Protective Order. By motion filed July 30, 2025, Applicants
requested a protective order to protect confidential, highly
confidential, and proprietary information to be submitted in connection
with the control application. By decision served August 5, 2025
(Decision No. 1), Applicants' motion for a protective order was
granted.
Proposed Procedural Schedule. Also on July 30, 2025, Applicants
filed a petition to establish a procedural schedule. The Board will
solicit comments on the proposed procedural schedule in a subsequent
decision.
Administrative Law Judge. The Board has signed a Memorandum of
Understanding with the U.S. Department of Health and Human Services
Office of Medicare Hearings and Appeals to employ the services of
administrative law judges (ALJs) on a case-by-case basis to perform
discrete, Board-assigned functions such as adjudicating discovery
disputes in cases pending before the Board. The Board hereby assigns
and authorizes Administrative Law Judge Jenifer Soulikias to entertain
and rule upon discovery matters and to resolve initially all disputes
concerning discovery in this proceeding. Parties are directed to send
copies of all their filings and documents in this proceeding to Judge
Soulikias at [email protected].
Board Staff Liaison. The Board staff liaison assigned to this
matter, Nathaniel Bawcombe, will provide informal opinions and
interpretations, which are not binding on the Board, regarding the
format of or information to be included in the application. 49 CFR
1180.4(c)(6)(iii).
Waiver of First-Class Service Requirement. The Board will waive the
requirement that Applicants shall serve a conformed copy of an
application by first-class mail upon all persons requesting a copy
under 49 CFR 1180.4(c)(5)(v). All such persons may access the
application on the Board's website. Applicants must comply with mailing
requirements for those entities specifically identified in 49 CFR
1180.4(c)(5)(i)-(iv).
Statement of Additional Information. As provided for in 49 CFR
1180.4(c)(2)(v), and pursuant to the Board's authority in 49 U.S.C.
1321(b), the Board will require, in advance of the application, that
Applicants file the following additional information by September 29,
2025:
Timetables, Station Lists, and Track Charts
Operating timetables (including special instructions and/
or operating rule books), station lists or station books, and track
charts or ``track profiles'' (including schematics that provide the
number, length, and ownership status (i.e., whether railroad-owned or
privately-owned)) of the tracks on the entire UP system and the entire
NS system.
These documents must be in machine-readable format to the
extent available (including all necessary documentation). If current
versions of any of the requested documents are not available, the most
recent versions available should be submitted.
Geospatial Information System (GIS) Maps
GIS maps for the entire UP system and the entire NS
system. These maps may include information used in the carriers'
Positive Train Control (PTC) systems such as the track database file
maintained in accordance with the Interoperable Train Control GIS.
The maps must include, at minimum:
[cir] Track centerline points;
[cir] Operating division;
[cir] Operating subdivision;
[cir] Integer mileposts;
[cir] Crossings, including grade crossings;
[cir] Switches (turnout leg, switch orientation);
[cir] Permanent speed restrictions;
[cir] And the joint facilities layer for all geolocated joint
facilities.
For lines that do not have PTC installed, GIS maps that
contain analogous information to the extent it is maintained in the
normal course of business.
All requested GIS documents must be in machine-readable
format (e.g., kml, kmz, shapefile, GeoJSON) to the extent available
(including all necessary documentation). If current versions of any of
the requested data are not available, the most recent versions
available should be submitted.
Joint Facilities
A list of joint facilities and joint use arrangements
(including but not limited to tracks, trackage rights agreements,
haulage agreements, yards, terminals, joint or common ownership
agreements, and lease agreements) on the entire UP system and the
entire NS system.
For each joint facility listed, Applicants must specify
the joint facility type (e.g., joint ownership, landlord-tenant, etc.)
and the involved carrier(s).
To the extent that these facilities are geolocated on a
GIS map, provide a GIS layer in the manner and format requested above.
Applicants must also address whether any such joint use
arrangements by their terms would no longer be operative following the
proposed change in control.
Interchange Commitments
A list of interchange commitments--agreements that limit
or may limit interchange with a third-party connecting carrier, whether
by outright prohibition, per-car penalty, adjustment in financial
terms, positive economic inducement, or other means--involving UP or
NS.
[[Page 42056]]
The list must specify the location of the interchange(s)
and the involved carrier(s).
Any additional information required to support the application may
be requested by the Board at a later date.
To support the Board's efficient processing of the additional
information, the Board is providing technical procedures in the
Appendix to this decision. These procedures shall apply to all
evidentiary submissions filed in this proceeding.
It is ordered:
1. The Board hereby ratifies the loan of Administrative Law Judge
Soulikias to the office of administrative law judge in the Surface
Transportation Board, under terms and conditions prescribed in 5 U.S.C.
3344 and 5 CFR 930.208, and the Board today approves her appointment as
the Board's own action under the Constitution. This proceeding is
assigned to Judge Soulikias for the handling of all discovery matters
and initial resolution of all discovery disputes.
2. In addition to filing pleadings with the Board and serving
copies on the Secretary of Transportation, the Attorney General of the
United States, Applicants' representatives, and other parties of
record, parties must send a copy of all filings and documents,
including submissions already filed with the Board, to Judge Soulikias
at [email protected].
3. Judge Soulikias will be added to the service list in this
proceeding and a copy of this decision will be served upon her.
4. A copy of this decision will be served on the U.S. Office of
Personnel Management (OPM), at Human Resource Solutions, Administrative
Law Judge Program, 1900 E Street NW, Suite 2469, Washington, DC 20415-
9400 and electronically at [email protected]. Judge
Soulikias shall send a copy of the notice or order that constitutes the
final disposition of her assignment of this case to OPM at the above
address.
5. The requirement that Applicants shall serve a conformed copy of
an application by first-class mail upon all persons requesting a copy
under 49 CFR 1180.4(c)(5)(v) is waived.
6. Applicants must submit the additional information described
above by September 29, 2025.
7. This decision is effective on its service date.
Decided: August 26, 2025.
By the Board, Board Members Fuchs, Hedlund, Primus, and Schultz.
Tammy Lowery,
Clearance Clerk.
Appendix
1. All documents and evidence referenced in a filing must be
specifically cited and included in the electronic workpapers.
2. All data and claims referenced in a filing should have
citations to the relevant spreadsheet or document. These citations
should be as specific as possible (e.g., to the relevant record, or
variable (i.e., column) within a record, spreadsheet cell, or page
number in which the data or claim is found).
3. Each filing's analytical workpapers should be able to stand
on their own, and not merely reference evidence from prior rounds of
evidence (e.g., referenced documents or spreadsheets from prior
evidence should all be included in the workpaper submission).
4. No narrative information/argument should be included in the
exhibits or the workpapers. All narrative information/argument
should be consolidated and confined to the narrative.
5. Within each spreadsheet, provide a clear description of what
that spreadsheet represents and a clear description of the rows and
columns. For example, the top row should be headers with labels.
Each row under that is a single record. Each column is a single
variable. Do not leave cells empty: have a method for noting ``No
Answer,'' ``Null,'' or ``Missing'' values so these cells are not
mistaken as zeros or otherwise misinterpreted.
6. Raw data should be accompanied by a data dictionary with: (i)
a list of field names and a definition for each field contained in
the data set; (ii) the meaning of each encoded value (e.g., P =
Platform, RR3 = Class III Railroad, etc.) that appears as a field
value in the data set; (iii) the primary key in the data set or
table that defines a unique observation, and (iv) the data encoding
type used in each column (e.g., UTF-8, ASCII, ANSI, or some other
standard).
7. Spreadsheets which contain raw or tabular data sets (i.e.,
data that is presented in the record format outlined in requirement
six above) should only display the data and associated headers. No
analyses, aggregation tables, or similarly constructed analytical or
visual aids should be included on the same spreadsheet tab (they can
be included on separate tabs within a workbook) as the relational
data. All spreadsheets should be submitted in their native format
(e.g., spreadsheets should not be submitted solely in PDF format,
they should be submitted in .csv, .xlsx, or similar).
8. A workpaper index describing the contents of each file and
the direction of data flowing between files should be included
(e.g., provide a clear description of how workpapers are linked,
either in a separate document or in summary tabs within the
spreadsheets). In addition to the workpaper index, the source of any
evidence (e.g., the sources for traffic volumes, annual frequency,
etc.) used in calculations should be noted in the spreadsheet in
which the calculation is made.
9. Include an explanation for any metric calculated for use and
cited in the narrative or an analytical work paper. The explanation
can be written in the narrative or analysis itself, in a footnote,
or by some other clear method of notation. The explanation should
include the name of the relevant data file(s) and the names of
variables used in the calculation and outline the mathematical
formulae used to calculate the metric. This requirement pertains
only to source narrative or work papers where the calculation
originates. References to calculations made in other work papers or
analysis should cite the subject work paper.
10. In subsequent evidentiary rounds, when using another party's
calculation or workpaper as a starting point, corrections or
modifications to values, methodologies, or calculations should be
clearly indicated and explained. Changes to numbers submitted in
prior rounds of evidence must be clearly explained and supported,
and include any formula used to calculate those changes. File names
of modified files should use the original filename and be appended
with appropriate modification designation (e.g., ``. . . _STB.csv,
_STB.xlsx'') or placed in a separate folder directory.
11. To the maximum extent practicable, links between
spreadsheets should be used. If links are not practicable, hard-
coded numbers may be used, but parties must include references to
the relevant source document or method of calculation. In derivative
(non-base) spreadsheets, numbers derived by formula and subsequently
hard-coded should be clearly and consistently designated as hard-
coded.
12. Use consistent corporate names, financial quarters, and
conversion factors across workpapers and the narrative.
13. Avoid using colors and comments which may not migrate into
new files. Instead, add another column with the information that
needs to be conveyed. If there is a compelling need to employ color
coding within workpapers, color coding should be consistent and
fully explained with a color-coding key and follow Section 508
guidelines.\2\
---------------------------------------------------------------------------
\2\ See https://www.section508.gov/create/spreadsheets/.
---------------------------------------------------------------------------
14. Submissions may include a password protected filing (e.g., a
protected ZIP archive transmitted via Secure File Transfer
Protocol), but no files contained within the filing should be
restricted or password protected. All files and data should be fully
accessible and modifiable by anyone authorized to view the evidence
of the case.
15. Indicate the version number of any software, packages, or
software add-ons used to generate the evidence (e.g. ``R version
4.5.1 (2025-06-13)--``Great Square Root'' Copyright (C) 2025 The R
Foundation for Statistical Computing Platform: x86_64-w64-mingw32/
x64 (64-bit)'' or ``dplyr_1.1.4'' or a .yaml file containing the
exact Python build and all package dependencies like
``numpy==2.32''. These R and Python dependency files can be created
using widely adopted package management tools like ``conda,''
``venv,'' RStudio, etc. Similarly, parties should indicate the build
[[Page 42057]]
specification for any server engine used (e.g., SQL Server 2022
build number 16.0.4210.1).
16. Any raw tabular data or database tables used for traffic
analysis should be provided, including a step-by-step guide (to
include visual snapshots that capture manual steps) used to load
those data into a database format (e.g., SQL code, R code, Python
code) and any subsequent steps taken to summarize, manipulate, or
otherwise restructure those data for analysis.
17. Maps and illustrations (e.g., track charts, timetables,
schematics, ZTS diagrams, flow charts, system maps, density maps,
etc.) included in the narrative or as exhibits should be accompanied
by the stand-alone file format used to render the image. For
example, maps rendered using GIS software should be accompanied by
ESRI shapefiles and/or geodatabases used to render the file image.
Maps and illustrations in the narrative should also be provided as a
stand-alone image file.
18. Use machine-readable and open-source formats, when
practicable, to help support downstream interoperability between
information systems and the dissemination of information to the
public, as appropriate, without the need for costly retrofitting.
Python and SQL are the preferred software packages for data
analysis.\3\ Electronic databases placed in evidence or offered as
support for spreadsheet calculations must be compatible with the
Microsoft Open Database Connectivity and Java Database Connectivity
standards. All databases must be supported with adequate
documentation on data attributes and SQL queries.
---------------------------------------------------------------------------
\3\ If using these programs will cause undue burden to parties
submitting evidence, data analysis may also be submitted in Excel,
R, or other statistical and analytical tools.
---------------------------------------------------------------------------
19. As a best practice, all empirical work should be submitted
in enough detail so that Board staff can identify the methodology
used to conduct the analysis and can review the results of the
analysis.
[FR Doc. 2025-16524 Filed 8-27-25; 8:45 am]
BILLING CODE 4915-01-P