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Surface Transportation Board OKs CP-KCS merger application, sets schedule

Final briefs due next July

Joanna Marsh
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A KCS train and a CP train. (Photos: Jim Allen/FreightWaves, Canadian Pacific)
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Key Takeaways:

  • The Surface Transportation Board (STB) has deemed the Canadian Pacific and Kansas City Southern merger application complete, rejecting Union Pacific's claims of insufficient data.
  • The STB established a procedural schedule, including deadlines for comments and filings, culminating in a final decision within 90 days of the evidentiary record's closure.
  • The STB rejected expedited timelines proposed by CP and KCS, opting for a longer process to allow for thorough review and public input.
  • Union Pacific's concerns will be addressed during later stages of the proceedings, not as grounds to deem the application incomplete.
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The Surface Transportation Board has decided that the merger application between Canadian Pacific and Kansas City Southern can proceed as submitted, saying that the application “is complete as it contains all information required by the Board’s regulations.”

STB’s decision includes a procedural schedule for comments, responsive applications, final briefs and other filings. Notices of intent to participate are due by Dec. 13, and any public hearing would occur after the filing of final briefs, which would be due on July 1, 2022.

Union Pacific (NYSE: UNP) recently pressed the federal agency to rule the application, filed on Oct. 29, incomplete, saying that the application didn’t include all the carload data needed to make an informed decision. Other Class I railroads had also asked STB to lengthen the timeline for the procedural schedule.

But the board said UP could bring up its concerns at a later time during the proceeding.

“UP’s arguments, submitted near the end of the Board’s 30-day period to review the completeness of the Application, effectively express disagreement with Applicants’ modeling choices and question the adequacy of certain supporting evidence underlying Applicants’ analysis,” STB said in its unanimous decision. “But, given that Applicants have provided explanations and supporting data and workpapers regarding those choices, such concerns are more appropriately raised as a response to the merits of the Transaction, the Board finds that UP’s arguments regarding the diversion analysis model do not provide a basis for rejecting the Application as incomplete. 

“Applicants have presented a prima facie case, disclosing facts that, if construed in their most favorable light, are sufficient to support a finding that the proposed transaction is consistent with the public interest. … UP’s arguments regarding a Service Assurance Plan also do not warrant rejection of the Application because such a plan is not required under the regulations governing this transaction. The Board notes that, while it finds the Application to be complete, it reserves the right it has exercised in the past to require the filing of supplemental information, as Necessary.”

STB also declined the expedited procedural schedule proposed by CP and KCS, opting instead for a schedule in which the board will issue its final decision within 90 days of the close of the evidentiary record.

“The Board’s procedural schedule, which is longer than what was proposed by Applicants, will allow adequate time for comments regarding this important transaction. Additionally, in response to concerns raised by commenters, including Applicants, the Board will synchronize the deadlines for written comments and responsive applications,” STB said. 

(Surface Transportation Board)

The dates that have yet to be determined by STB are those for a public hearing and a service date for the final decision.

CP (NYSE: CP) and KCS (NYSE: KSU) had filed their application to merge in October, saying their combined network would reach Canada, the United States and Mexico and create a single-line railroad.

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Joanna Marsh

Joanna is a Washington, DC-based writer covering the freight railroad industry. She has worked for Argus Media as a contributing reporter for Argus Rail Business and as a market reporter for Argus Coal Daily.