Preserve Rail Competition


If you have concerns and reservations about the proposed merger between Union Pacific and Norfolk Southern, or you believe that conditions are needed to ensure that the merger is beneficial to you and other shippers, it is important that the Surface Transportation Board hear from you now and at every opportunity during the regulatory review process. To be clear, this Administration and the Board Members charged with the important responsibility of reviewing this proposed transaction want to hear from you. Your views matter and will help them make informed decisions. Here is how you can tell the STB to say no to unchecked market power and the loss of competitive options that you’ll never get back.

Act Now

File Your Letter with the STB
Electronically file a letter sharing your views with the STB on www.stb.gov.

The docket number is FD 36873.

Submit Your Letter to BNSF
If you would prefer not to file the letter yourself, we can file it for you. Send your views to
MessageUs@BNSF.com.

What to Include in Your Letter

It is important that the STB understand the following, which your communications can highlight for them:

  • How your specific industry and your facilities will be impacted by the UP/NS mega-merger:
    • Increased market power for UP, including Day 1 impacts as a result of controlling 45% of existing freight (and significantly more than 50% for many commodities)
      • Post-merger, some lucky customers will still have two rail options—a single-line UP service and a BNSF-CSX option. For many shippers and for many origination and destination pairs, however, there will be no BNSF-CSX option because they are served only by UP or NS at origin or destination who have no incentive or obligation to facilitate alternative routes, creating a new generation of captive shippers.
      • Even if customers are fortunate enough to have facilities that can be served by other railroads, UP has a track record of “bundling” their shipper’s captive plants, particularly in the southeast chemical corridor where UP has been the dominant rail carrier for decades. Adding NS captive origins and destinations to the volume of commerce UP can “bundle” will make UP’s strategy much more effective.
    • Operational dominance of UP as it becomes the de facto controller of the key terminals and gateways in the middle of the county, and in many cases exercising majority control of joint facilities and terminal operators like the Belt Railway company in Chicago. UP will also have a new controlling interest over equipment pools like TTX.
  • Concerns about:
    • Service impacts from integration—even if you are not directly served by the merger railroad, service failures (routine in prior mergers) will impact the national network, including key shared multi-carrier gateways you rely on.  
    • UP’s claims to pay for this merger through 10% volume growth when UP’s last mega-merger resulted in a reduction in their volumes but an increase in their revenue per unit and record profits.
    • UP’s disregard of regulatory obligations, including issuing over 1000 embargoes leading to an STB common carrier investigation, and not living up to its prior merger commitments, requiring an endless stream of litigation and STB proceedings.
    • UP’s CEO has said several times to Wall Street that it will not acknowledge any harms despite pursuing the biggest rail consolidation event ever, and will not offer fixes, much less offer enhanced competition measures. 
    • How these harms cannot be “fixed.” Traditional regulatory fixes like trackage rights and other competitive conditions rely on the merged carrier’s good behavior and UP has a clear history of not honoring the commitments of its prior mergers. Shippers in dynamic competitive markets can’t rely on protracted legal processes to preserve, much less enhance, competition.

Addressing Confidentiality Concerns

We have heard from customers that they have strong views but are concerned about expressing them on public record. If you need to raise your concerns confidentially, you can contact:

Contact:
Katie Celeste Speegle
katherine.celeste@usdoj.gov
(202) 704-1973

The Transportation, Energy, and Agriculture Section of the Department of Justice’s Antitrust Division reviews rail mergers and receives input from stakeholders as a key part of its analysis. Communications with the DOJ are not part of the public record during an investigation.

Initial Application Response

UP/NS will put in their full STB application in the coming months. Within 30 days, the STB will need to decide if their application is complete and thus can move into the full STB review process. This is an important initial moment that will frame the comprehensive review to follow.

Shippers and other stakeholders will be able to give initial comments to the STB when UP/NS present an application that ignores the competitive harms created by their transaction, fails to remedy those harms in a meaningful and enforceable way, and fails to meet their obligation to enhance competition.

Any initial concerns about the completeness of the UP/NS application should be filed quickly, ideally within one to two weeks after the application is filed.

Primary Comment Period

If the STB accepts the UP/NS application and proceeds into the full review process, the STB will set a procedural schedule with a deadline for all stakeholders to present to the STB their full views on whether this merger is in the interest of customers and the public.

UP/NS have asked for this deadline to be 90 days after the STB accepts the application.

Stakeholders also need to help the Board understand the very real competitive harms that will result Day 1 and beyond as a result of the significant increase in market power and operational dominance across the nation.

Make Sure Your Voice is Heard

Under Chairman Patrick Fuchs’s leadership, the STB will run a process that allows customers to voice their concerns and raise the specific harms they face. The STB process cannot make up for an absence of voices sharing the real-world impacts from this merger (the regulators will not necessarily make assumptions about these impacts and develop solutions on their own), and UP is counting on that. Please make sure your voice is heard.