Union Pacific and Norfolk Southern's railroad merger application has been revised four times since filing, prompting competitors BNSF, CSX, and Canadian Pacific Kansas City to ask regulators to halt the changes and certify the application as final by September 19.
- The UP-NS merger application has been amended four times (April, July, early September, and late September) with over 200 pages of revisions in just 50 days
- Competing railroads filed a joint complaint claiming the constant changes create a moving target that makes effective response impossible under board-imposed deadlines
- On Labor Day weekend alone, UP and NS submitted 2,446 new or replacement documents totaling 272 GB of data, with continued additions through the weekend
- Four witnesses revised their sworn statements after being questioned under oath, raising concerns about the merger review process integrity
- Competitors argue the problems stem from fundamental errors in the Hunt/Oliver Wyman diversion report that forms the merger application foundation
Union Pacific and Norfolk Southern have revised their railroad merger application four times since filing it, sparking complaints from competitors who say the constant changes are making it impossible to respond effectively.
BNSF, CSX Transportation and Canadian Pacific Kansas City filed a joint letter with the Surface Transportation Board on Monday, asking regulators to order UP and NS to stop revising their application. The companies want a certification by Sept. 19 that no more changes will be made.
“Applicants’ pattern of making serial changes is disruptive,” the letter states. The competing railroads say they’re being forced to address “a moving target” while working under board-imposed deadlines.
The merger application has been amended in April, July, early September and again this past Friday night. In the last 50 days alone, UP and NS have submitted more than 200 pages of corrections and revisions.
On Labor Day weekend, the companies filed 2,446 new or replacement documents totaling 272 GB of data. They continued adding and replacing materials through the weekend, according to the complaint.
The letter raises particular concern that four witnesses revised their sworn statements after being questioned under oath. Those witnesses are Powers, Janke, Turner and Barr.
The competing railroads argue this process violates how merger reviews should work. The Surface Transportation Board previously said it wanted “a single version of any revised application on which to base future action.”
The constant revisions are especially difficult for smaller stakeholders with fewer resources, the letter notes. Each time UP and NS make changes, other parties must throw out or update their analysis.
The complainants say the problems stem from fundamental errors in the Hunt/Oliver Wyman diversion report, which forms the foundation of the merger application. They claim fixing one problem reveals or creates another.
Comments on the merger application are due in 65 days. The three railroads want the board to require UP and NS to confirm whether their analysis is final or will change again before that deadline.
If the companies won’t certify the application is complete, the board should hold expedited briefings on how to proceed, the letter requests.
