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    Full Text of Decision


42772                SERVICE DATE – LATE RELEASE DECEMBER 20, 2012







Docket No. FD 35654




Decision No. 5


Decided:  December 19, 2012


Digest: [1]  This decision authorizes, subject to conditions, the acquisition of RailAmerica, Inc., a noncarrier holding company of Class III railroads, by Genesee and Wyoming Inc., a noncarrier holding company of Class II and Class III railroads. 




On August 6, 2012, Genesee and Wyoming Inc. (GWI) and RailAmerica, Inc. (RailAmerica) filed an application seeking Board approval under 49 U.S.C. §§ 11323-11326 for the acquisition of control of RailAmerica, a noncarrier holding company, by GWI, a noncarrier holding company.  This proposal will be referred to here as the Transaction, and GWI and RailAmerica will be referred to collectively as Applicants.  Pursuant to the Transaction, GWI will acquire 100% of the common stock of RailAmerica, and will acquire indirect control of the Class III railroads owned or controlled by RailAmerica.  Pending the Board’s final decision in this matter, RailAmerica transferred its common stock to an independent voting trust.  See GWI Voting Trust—Control Exemption—RailAmerica, Inc., FD 35660 (STB served Aug. 17, 2012).  According to Applicants, on or after the effective date of the Board’s decision authorizing the Transaction, the voting trust will be terminated, RailAmerica’s shares will be transferred to GWI, and RailAmerica will become a wholly owned subsidiary of GWI.


By decision served and published in the Federal Register on September 5, 2012, at 77 Fed. Reg. 54,655-59, the Board accepted the application for consideration.  Based on the information provided in the application, the Board classified the Transaction as a “minor transaction” under 49 C.F.R. § 1180.2(c).[2]  Under § 1180.2, a transaction that does not involve two or more Class I railroads is considered to be minor if, based on the application itself, it appears that (1) the transaction would clearly not have anticompetitive effects, or (2) any anticompetitive effects would clearly be outweighed by the transaction’s contribution to the public interest in meeting significant transportation needs.  The Board determined that, on the face of the application, there did not appear to be a likelihood of anticompetitive effects resulting from the Transaction.  The Board explained that its findings regarding competitive impacts were preliminary and that it would give careful consideration to any claims that the Transaction would have anticompetitive effects that were not apparent from the application itself.[3]


Comments and/or requests for conditions were filed by the following parties of record:  Winamac Southern Railway Company (WSRY) and US Rail Corporation (USRP); Vermont Agency of Transportation (VTrans); The Kansas City Southern Railway Company (KCS); Southwestern Electric Power Company (SWEPCO);[4] United Transportation Union-New York State Legislative Board (UTU-NY); Railroad Salvage & Restoration, Inc. (RSR) and G.F. Wiedeman International, Inc. (GFW); and Central California Rail Shippers & Receivers Association (CCRSRA).[5]  Reply comments were filed by Kern Council of Governments (Kern COG), The National Industrial Transportation League (NITL), KCS, Norfolk Southern Railway Company (NS), and by Applicants. [6] 


By decision served November 21, 2012, we closed the evidentiary phase of this proceeding.




            Statutory Criteria.  The acquisition of control of a rail carrier by another rail carrier or by a noncarrier that controls another rail carrier requires Board approval.  49 U.S.C. § 11323(a)(3), (5).  Because the proposed Transaction does not involve the merger or control of two or more Class I railroads, this Transaction is governed by 49 U.S.C. § 11324(d), which directs us to approve the application unless we find that:  (1) as a result of the transaction, there is likely to be substantial lessening of competition, creation of a monopoly, or restraint of trade in freight surface transportation in any region of the United States; and (2) the anticompetitive effects of the transaction outweigh the public interest in meeting significant transportation needs. 


In assessing transactions subject to § 11324(d), our primary focus is on whether the Transaction would have adverse competitive impacts that are both likely and substantial.  Even if there will be likely and substantial anticompetitive impacts, we may not disapprove the transaction unless those impacts outweigh the transportation benefits and cannot be mitigated through the imposition of conditions.  Moreover, “harms caused by the merger must be distinguished from pre-existing disadvantages that other railroads, shippers, or communities may have been experiencing that are not ‘merger-related’ (i.e., pre-existing disadvantages that will neither be caused nor exacerbated by the merger).”  Canadian National Ry.—Control—Duluth, Missabe & Iron Range Ry., Bessemer and Lake Erie R.R. and the Pittsburgh & Conneaut Dock Co., FD 34424, slip op. at 14 (STB served Apr. 9, 2004).


            Based on the record here, the Board finds that the Transaction is not likely to cause a substantial lessening of competition or to create a monopoly or a restraint of trade.  Applicants explain that no shipper on the line would have reduced competitive rail service options as a result of the Transaction[7] and no party has identified any rail route or rail service option that would become unavailable to a shipper.  As noted above, Applicants have represented that the existing operating plans governing for each railroad involved in the Transaction, including those at the locations where GWI interconnects or interchanges with RailAmerica, would remain unchanged.  Therefore, all railroads would continue to operate and compete in their own local markets in the same manner as before the Transaction.  Our conclusion that the Transaction would not adversely affect competition is reinforced by our analysis of the comments of the participating parties. 


Although the record reflects extensive support for the Transaction and supports our finding that it will not adversely affect competition, several commenting parties have asked us to attach certain conditions upon our approval of the Transaction.  Under 49 U.S.C. § 11324(c), we have broad authority to impose conditions on a transaction subject to § 11324(d) to ameliorate competitive harm that would result from the transaction.  See Kan. City S.—Control—The Kan. City S. Ry., FD 34342, slip op. at 16 (STB served Nov. 29, 2004).  We will address the parties’ requested conditions below. 


Conditions Sought


WSRY-USRP.  WSRY is a shortline railroad in Northern Indiana, and USRP is a Class III rail carrier that leased approximately 58.89 miles of rail line from WSRY and Kokomo Grain Co., Inc. (KGC).  USRP’s lease included incidental trackage rights over a three-mile rail line owned by TPW, a RailAmerica affiliate.  According to WSRY-USRP, as retaliation for another RailAmerica affiliate, Central Railroad Company of Indianapolis (CERA), losing its operating lease to USRP, TPW terminated a trackage rights agreement with WSRY, effectively preventing WSRY from operating between its Kokomo Line and its Bringhurst Line.  In addition, USRP states that CERA and TPW raised their rates considerably in order to cause customers of WSRY-USRP to stop shipping by rail.  To remedy its alleged lack of interchange opportunities, WSRY-USRP proposes three conditions:  (1) a grant of trackage rights from TPW over its rail line between milepost 71.5 at or near Van and milepost 74.5 at or near Logansport, Indiana; (2) a grant of trackage rights from TPW over its rail line between milepost 74.5 at or near Logansport and a point of connection of TPW’s rail line to a rail line of CSX Transportation, Inc. (CSXT) at or near Reynolds, Ind.; and (3) a grant of trackage rights from CERA over its rail line between Kokomo and Michaelsville, Ind.[8]


We find that these requested conditions do not relate to any competitive harm that would be caused by the proposed Transaction.  Moreover, the concerns cited by WSRY-USRP pre‑date the Transaction and would not be exacerbated by the Transaction.  Further, because there is no GWI railroad in the vicinity of the lines addressed by WSRY-USRP, the competitive landscape would remain unchanged.  Therefore, we will not impose the conditions sought by WSRY-USRP. 


VTrans.  VTrans is Vermont’s principal executive agency for developing and implementing state transportation policy, planning, and programs.  VTrans has been collaborating with New England Central Railroad, Inc. (NECR) and Amtrak to restore, maintain, operate, and fund passenger train service between Washington, D.C. and St. Albans, Vt.  The line between Palmer, Mass. and St. Albans, Vt. is owned by NECR.  NECR is a RailAmerica affiliate that will come under GWI’s control once the Transaction is consummated.  Despite noting its confidence that productive collaboration can continue after GWI assumes control of NECR, VTrans is asking the Board to impose conditions that would ensure continued participation by NECR and its affiliates in various collaborative activities that support high-speed and intercity passenger rail.


We find that these conditions relate to pre-existing collaboration and contracts with RailAmerica and, therefore, do not relate to any competitive harm that would result from the proposed Transaction.  In addition, GWI has stated that “GWI and NECR intend to continue collaboration with VTrans following the Transaction, and have no intention of breaching any existing written agreements following the Transaction.”[9]  Accordingly, we find no need for further clarification nor imposition of VTrans’s requested conditions.  


SWEPCO and KCS.  SWEPCO is a utility that generates and distributes electric power to customers in Texas, Louisiana, and Arkansas.  It is the majority owner and operator of a 600-megawatt coal-fired base load electric generation station in Hempstead County, Ark. (the Turk Plant), which is expected to become operational before the end of 2012.  The Turk Plant is currently served by UP.  SWEPCO is, however, exploring other shipping options, one of which is the Kiamichi Railroad Company (KRR), currently controlled by RailAmerica.  A SWEPCO-KRR deal is dependent on the construction of an approximately one-mile long industrial track between KRR’s existing lines and the Turk Plant’s loop track.  KRR has established connections with both KCS and BNSF Railway Company (BNSF).  SWEPCO seeks representation and/or information sufficient in the record to confirm that the transfer of ownership of KRR will not trigger any provision of either the original 1987 transaction documents between BNSF’s predecessor and KRR or the 2002 RailAmerica/KRR agreement that would result in any restrictions on KRR’s ability to interchange loaded and empty coal trains with BNSF or KCS.  SWEPCO also seeks assurances that GWI has no agreement with any party that would restrict or adversely affect KRR’s participation with BNSF and/or KCS in competitive transportation routing for Powder River Basin coal shipments to the Turk Plant, and that the Transaction will not result in any new capital restrictions on KRR or limits on its ability to upgrade its infrastructure to facilitate delivery service to the Turk Plant.


KCS raises similar concerns.  It also generally seeks to be informed of “all existing or any new paper barriers (or other restrictive agreements)” limiting KRR’s ability to interchange with KCS or any side or settlement agreements with any party that would prohibit KRR from working with KCS.


GWI has addressed SWEPCO and KCS’s concerns in its Reply.  Specifically, “GWI confirms that it has not entered into any agreements that would affect or limit KRR’s right to handle any traffic with KCS to or from SWEPCO, or any other customers [and] . . . that KRR is not subject to any interchange commitments that would affect rail service to the Turk Plant.”[10]  We find GWI’s representation to be sufficient confirmation to meet the concerns of SWEPCO and KCS, and we will hold Applicants to this and all other representations that they have made on the record in this proceeding.  According to GWI, there are no competitive options available to SWEPCO other than the potential build-out.  The Transaction would not change that situation. 


UTU-NY.  UTU-NY is a collective bargaining representative for employees of several GWI and RailAmerica carriers.  UTU-NY appears concerned with GWI’s operations outside of the United States, particularly in Australia, and asks the Board to require GWI to provide an accounting for any flow of funds to overseas operations and facilities.


UTU-NY has provided no explanation of how an accounting of GWI’s overseas activities relates to any competitive harm within the United States that would result from the Transaction.  Therefore, we will not grant the condition requested by UTU-NY. 


CCRSRA, RSR, GFW, and Kern COG.  Several parties express concerns that the Transaction’s resulting debt obligation could create an incentive to use accessorial charges as profit centers to service the debt.  CCRSRA is an association of freight rail shippers and receivers and of governmental interests in the Central Valley of California.  All of CCRSRA’s business members are located on lines owned by San Joaquin Valley Railroad Company (SJVR), a RailAmerica subsidiary.  CCRSRA members have a history of disagreement with SJVR and are concerned with “non-freight” charges (e.g., line surcharges, switch maintenance fees, security deposits) GWI might impose based on the debt it will incur as part of the Transaction.  For instance, CCRSRA points to the previous acquisition of RailAmerica by Fortress Investment Group (Fortress), the promises that Fortress made at the time, and the ways in which those promises were eventually broken, particularly when Fortress “began to aggressively target ‘non-freight’ revenues, in part as a low-cost, high-profit means of servicing its large debt obligations and to satisfy shareholders’ business growth and profit demands.”[11] 


To protect its members, CCRSRA requests some very specific conditions[12] that would require GWI to review timely Rail America practices and programs affecting CCRSRA members, provide written guidance on its intentions relating to those practices and programs going forward, meet with CCRSRA members and report to the Board.  In addition, CCRSRA asks that GWI management meet periodically with receivers, shippers and governmental representatives to discuss service concerns.  Further, CCRSRA asks that GWI be required to prepare and submit detailed semi-annual, publicly available reports to the Board concerning each of its “non-freight,” accessorial programs, system integration, safety initiatives, customer service initiatives, Class I interchange performance metrics, and reinvestment and economic development initiatives with three years of Board oversight.  Finally, CCRSRA asks the Board to hold GWI to its representations made on the record during this proceeding.


RSR and GFW are commonly controlled, closely held corporations that receive, sell, and distribute metal materials.  Relevant here, RSR and GFW receive salvaged rail and other track materials at a yard in Joplin, Mo., that they lease from UP (Joplin Yard).  Joplin Yard is served exclusively by Missouri & Northern Arkansas Railroad Company, Inc. (MNA), which is owned by RailAmerica.  RSR and GFW have experienced ongoing issues with MNA regarding demurrage charges at Joplin Yard.  Like CCRSRA, RSR and GFW are concerned that GWI will continue raising their demurrage rates to offset the debt GWI will incur as part of the Transaction.  Kern COG is responsible for managing a continuous, cooperative and comprehensive transportation planning process and program within the Kern region in California.  Kern COG echoes the concerns raised by CCRSRA. 


As to CCRSRA’s last requested condition, we will require Applicants to adhere to the representations made on the record in this proceeding.  All other conditions requested by CCRSRA, RSR, GFW, and Kern COG will be denied.  Some of the first two conditions would require Applicants to review and respond to concerns and problems CCRSRA and its members have regarding their current service with RailAmerica.  These are pre-existing issues and there is no indication that they will be exacerbated by the Transaction.  Indeed, none of the conditions identify or seek to remedy any likely and substantial anticompetitive effect of the Transaction.  Nor does the concern expressed by RSR and GFW – that GWI might raise demurrage rates to offset transaction-related GWI debt – bear sufficient nexus to the competitive issues in this case.  Moreover, RSR and GFW have not provided adequate support for their suggestion that the debt is excessive or their speculation that GWI carriers will act inappropriately as a result.[13] 


In short, the record shows that the Transaction does not enhance market power.  The argument that Applicants’ leveraged debt could incentivize the Applicants to use charges (such as demurrage) as profiteering tools is speculative.  If the resulting entity ultimately does implement rates or practices that are unreasonable, persons aggrieved by those practices retain the avenues of legal redress before this agency and the courts to address such complaints.  Accordingly, we have no basis to impose the remaining conditions sought by CCRSRA, RSR, GFW, and Kern COG.


Expedited Consideration


            At the time Applicants filed their application on August 6, 2012, they also filed a motion requesting an expedited procedural schedule that would allow them to consummate the Transaction by December 31, 2012.  Applicants state that they seek expedited consideration to minimize the time that RailAmerica is held in the Voting Trust, to allow the benefits of the Transaction attested to in the Application and in the filings in support (including the extension of GWI’s highly successful safety program to the RailAmerica railroads) to be realized as soon as possible, and to have RailAmerica integrated into GWI for the full 2013 calendar year (allowing for simpler and more transparent financial reporting on a going forward basis).[14]  Applicants have reiterated their request for expedited consideration in their Reply to Comments filed on October 26, 2012, consistent with the procedural schedule we set.[15]


            In Decision No. 2, we stated that we would decide whether an expedited procedural schedule is appropriate after we reviewed the record to be developed pursuant to the procedural schedule we adopted there.  After reviewing the record before us, we have concluded that the existing record affords an adequate basis for our decision.  On November 21, 2012, we issued a decision that found that no public hearing or oral argument was necessary and ordered the evidentiary phase of this proceeding closed.


            Although some parties have opposed expedited handling of this application,[16] we have provided a full and fair process for considering the Transaction.  Given our conclusion that the record demonstrates a lack of any potential for competitive harm shown that would result from the Transaction, we will make our approval effective eight days from the service date (rather than the typical 30 days) so that Applicants may consummate the Transaction prior to the close of this calendar year.


Labor Protection Conditions


            GWI currently controls one Class II carrier, Buffalo & Pittsburgh Railroad, Inc.; all other carriers subject to the Transaction are Class III carriers.  Because the Transaction involves the control of one or more Class III rail carriers and one Class II rail carrier, it is subject to the labor protective requirements and other procedures of 49 U.S.C. § 11326(b) and Wisconsin Central—Acquisition Exemption—Lines of Union Pacific Railroad, 2 S.T.B. 218 (1997). 


Environmental Issues


Because the Transaction does not anticipate operational changes, no environmental impacts are anticipated and the thresholds established in 49 C.F.R. § 1105.7(e)(4) and (5) are not triggered.   Therefore, no environmental review is necessary or required. 


It is ordered:


1.  The application is approved.


2.  SWEPCO’s Petition for Leave to Appear and Comment is granted.


3.  CCRSRA’s Petition for Leave to File Response to Applicants’ Renewed Request for Expedited Consideration is denied.


4.  The following conditions are imposed:

            a.  Applicants must adhere to all of the representations made on the record during the course of this proceeding, whether or not such representations are specifically referenced in this decision.

            b.  Approval of the application in Docket No. FD 35654 is subject to the labor protective requirements set forth in Wisconsin Central—Acquisition Exemption—Lines of Union Pacific Railroad, 2 S.T.B. 218 (1997).


5.  This decision is effective on December 28, 2012; stay requests, if any, are due on December 24, 2012.


By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Begeman.

Appendix A





BNSF Railway Company



Central California Rail Shippers & Receivers Association


Central Railroad Company of Indianapolis


CSX Transportation, Inc.


G.F. Wiedeman International, Inc.


Genesee and Wyoming Inc.


Kansas City Southern Railway Company

Kern COG

Kern Council of Governments



Kiamichi Railroad Company



Missouri & Northern Arkansas Railroad Company, Inc.



New England Central Railroad, Inc.


RailAmerica, Inc.


Railroad Salvage & Restoration, Inc.


San Joaquin Valley Railroad Company



Southwestern Electric Power Company


Toledo, Peoria and Western Railway


Union Pacific Railroad Company



US Rail Corporation


United Transportation Union-New York State Legislative Board


Vermont Agency of Transportation


Winamac Southern Railway Company


Appendix B

Statements of Support

Congressional Statements


·       U.S. Congressman Spencer Bachus (AL-6), Chair, Financial Services

·       U.S. Congresswoman Terri A. Sewell (AL-7)


·       U.S. Senator Mark Pryor

·       U.S. Congressman Tim Griffin (AR-2)


·       U.S. Congressman Paul A. Gosar (AZ-1)


·       U.S. Congressman Wally Herger (CA-2)


·       U.S. Congressman Scott Tipton (CO-3)


·       U.S. Senator Joseph I. Lieberman, Chair, Homeland Security and Government Affairs


·       Joint letter from:

U.S. Senator Johnny Isakson

U.S. Senator Saxby Chambliss

·       U.S. Congressman Sanford D. Bishop, Jr. (GA-2)

·       U.S. Congressman John Barrow (GA-12)


·       U.S. Congressman Jerry F. Costello (IL-12)

·       U.S. Congressman Danny K. Davis (IL-7)

·       U.S. Congressman Randy Hultgren (IL-14)

·       U.S. Congressman Timothy V. Johnson (IL-15)

·       U.S. Congressman Daniel Lipinski (IL-3)

·       U.S. Congressman Mike Quigley (IL-5)


·       U.S. Congressman Larry Bucshon (IN-8)


·       U.S. Senator Pat Roberts

·       U.S. Senator Jerry Moran

·       U.S. Congressman Tim Huelskamp (KS-1)

·       U.S. Congresswoman Lynn Jenkins (KS-2)

·       U.S. Congressman Kevin Yoder (KS-3)


·       U.S. Senator Mary L. Landrieu, Chair, Small Business and Entrepreneurship


·       U.S. Congressman Roscoe G. Bartlett (MD-6)


·       U.S. Senator John F. Kerry, Chair, Foreign Relations

·       U.S. Senator Scott P. Brown

·       U.S. Congressman Richard E. Neal (MA-2)

·       U.S. Congressman John W. Olver (MA-1)


·       U.S. Congresswoman Candice S. Miller (MI-10)

·       U.S. Congressman Bill Huizenga (MI-2)


·       Joint letter from:

U.S. Senator Thad Cochran

U.S. Senator Roger Wicker

U.S. Congressman Gregg Harper (MS-3)

U.S. Congressman Alan Nunnelee (MS-1)


·       U.S. Congressman Sam Graves (MO-6), Chair, Small Business

·       U.S. Congresswoman Vicky Hartzler (MO-4)

·       U.S. Congressman Billy Long (MO-7)

New Hampshire

·       U.S. Senator Jeanne Shaheen

·       U.S. Congressman Charles F. Bass (NH-2)

New York

·       Joint letter from:

U.S. Senator Charles E. Schumer

U.S. Senator Kirsten E. Gillibrand

·       U.S. Congressman Brian Higgins (NY-27)

·       U.S. Congressman Tom Reed (NY-29)

·       U.S. Congresswoman Louise M. Slaughter (NY-28)


·       U.S. Congressman Patrick J. Tiberi (OH-12)

·       U.S. Congressman Bill Johnson (OH-6)

·       U.S. Congressman Steven LaTourette (OH-14)

·       U.S. Congressman Bob Gibbs (OH-18)

·       U.S. Congressman Tim Ryan (OH-17)


·       Joint delegation letter from:

U.S. Senator Ron Wyden

U.S. Senator Jeff Merkley

U.S. Congressman Earl Blumenauer (OR-3)

U.S. Congressman Peter DeFazio (OR-4)

U.S. Congressman Greg Walden (OR-2)

U.S. Congressman Kurt Schrader (OR-5)

U.S. Congresswoman Suzanne Bonamici (OR-1)


·       U.S. Congressman Bill Shuster (PA-9)

·       U.S. Congressman Mike Kelly (PA-3)

·       U.S. Congressman Patrick Meehan (PA-7)

·       U.S. Congressman Todd Russell Platts (PA-19)

·       U.S. Congressman Glenn Thompson (PA-5)

·       U.S. Congressman Jason Altmire (PA-4)

·       U.S. Congressman Lou Barletta (PA-11)


·       U.S. Congressman John J. Duncan, Jr. (TN-2)


·       U.S. Senator John Cornyn


·       U.S. Senator Michael S. Lee


State and Local Government Statements


·       John R. Cooper, Transportation Director, Alabama Department of Transportation


·       Jim Cook, Supervisor, Siskiyou Board of Supervisors, District 1

·       Michael N. Kobseff, Supervisor, Siskiyou Board of Supervisors, District 3


·       Senator Tommie Williams, President Pro Tempore, Georgia Senate District 19

·       Senator Jeff Mullis, Chair, Senate Transportation Committee, 53rd Georgia Senate District

·       Senator Cecil Staton, 18th Georgia Senate District

·       Senator Doug Stoner, 6th Georgia Senate District

·       Representative Ron Stephens, Chairman, Economic Development and Tourism, 164th Georgia House District

·       Keith Golden, Commissioner, Georgia Department of Transportation

·       Walter Jeffrey Lewis, Board Member, 11th Congressional District, Georgia Department of Transportation

·       Douglas R. Hooker, Executive Director, Atlanta Regional Commission


·       Ann Schneider, Secretary of Transportation, Illinois Department of Transportation


·       Mike King, Secretary of Transportation, Kansas Department of Transportation


·       David Bernhardt, Commissioner, Maine Department of Transportation

·       Robert J. Thompson, Executive Director, Androscoggin Valley Council of Governments

·       Maria R. Fuentes, Executive Director, Maine Better Transportation Association

·       Dana Connors, President, Maine State Chamber of Commerce

·       Lucien B. Gosselin, President, Lewiston-Auburn Economic Growth Council


·       Governor Phil Bryant, State of Mississippi

·       Senator Willie Simmons, Chair, Mississippi Senate Transportation Committee

·       Representative Robert L. Johnson, III, Chair, Mississippi House Transportation Committee

·       Representative Jeffrey C. Smith, Chair, Mississippi House Ways and Means Committee

·       Dick Hall, Chair, State of Mississippi Transportation Commission

New Hampshire

·       Raymond S. Burton, Executive Councilor, District One, State of New Hampshire

·       George M. Bald, Commissioner, New Hampshire Department of Resources and Economic Development

·       Senator John Gallus, 1st New Hampshire Senate District

·       Michael P. Pillsbury, Deputy Commissioner, New Hampshire Department of Transportation

·       Patrick MacQueen, City Manager, City of Berlin, New Hampshire

New York

·       Senator George D. Maziarz, Senate Vice President Pro Tem, 62nd New York Senate District

·       Senator Joseph E. Robach, Chair, Deputy Majority Leader for Policy, Chairman of Labor Committee, 56th New York Senate District

·       Senator Catharine M. Young, Chair of House, Construction and Community Development, Chair, Legislative Rural Resources Commission, 57th New York Senate District

·       Senator Thomas F. O’Mara, Chair, Committee of Elections, 53rd New York Senate District

·       Senator Martin Malavé Dilan, 17th New York Senate District

·       Senator Joseph A. Griffo, 47th New York Senate District

·       Senator Michael H. Ranzenhofer, 61st New York Senate District

·       Assemblyman Daniel J. Burling, Whip, Minority Conference, 147th New York Assembly District

·       Assemblyman David F. Gantt, Chairman, Assembly Transportation Committee, 133rd New York Assembly District

·       Assemblyman Dennis H. Gabryszak, Chair, Task Force on University-Industry Cooperation Committee, 143rd New York Assembly District

·       Assemblyman William Reilich, Chair, Minority Economic Development Education & Infrastructure Task Force, 134th New York Assembly District

·       Assemblyman, Joseph M. Giglio, Vice-Chair, Steering Committee, 149th New York Assembly District

·       Assemblyman Harry B. Bronson, 131st New York Assembly District

·       Assemblyman Sean T. Hanna, 130th New York Assembly District

·       Assemblyman Philip A. Palmesano, 136th New York Assembly District

·       Assemblyman Addie J. Russell, 118th New York Assembly District

·       Assemblyman Kevin Smardz, 146th New York Assembly District

·       New York State Department of Transportation

·       Nelson County Board of Commissioners, New York

North Carolina

·       Eugene Conti, Jr., Secretary, State of North Carolina Department of Transportation


·       Senator Thomas F. Patton, Majority Floor Leader and Senate Highways and Transportation Committee Chairman, 24th Ohio Senate District

·       Senator Tim Schaffer, Chair, Ways and Means and Economic Development Committee, 31st Ohio Senate District

·       Senator Troy Balderson, Vice-Chair, Energy and Public Utilities Committee, 20th Ohio Senate District

·       Representative Dale Mallory, Ranking Minority Member, Transportation, Public Safety and Homeland Security, 32nd Ohio House District

·       Representative Jay Hottinger, Chair, Insurance Committee, 71st Ohio House District

·       Matthew R. Dietrich, Executive Director, Ohio Rail Development Commission

·       Todd Portune, Commissioner, Hamilton County

·       Hubert Brown, Whitewater Township


·       Senator Ted Ferrioli, Senate Republican Leader, 30th Oregon Senate District

·       Senator Frank Morse, Deputy Minority Leader, Chair Health Care Reform Sub-Committee, Vice-Chair, Education and Workforce Development, Vice-Chair, Finance and Revenue and Co-Vice-Chair, Joint Committee on Tax Credits, 8th Oregon Senate District

·       Senator Alan Bates, Oregon Senate Deputy Majority Leader, 3rd Oregon Senate District

·       Senator Joanne Verger, Chair, Transportation Committee, 5th Oregon Senate District

·       Representative Arnie Roblan, Co-Speaker of the House, 9th Oregon House District

·       Representative Jeff Barker, Chair, Subcommittee on Criminal Law and Vice-Chair State and Federal Affairs, 28th Oregon House District

·       Representative Cliff Bentz, Co-Chair, Transportation and Economic Development Committee, 60th Oregon House District

·       Representative Elizabeth Terry Beyer, Chair, House Transportation Committee, 12th Oregon House District

·       Representative Brian Clem, Co-Chair, House Agriculture and Natural Resource Committee, 21st Oregon House District

·       Representative Dave Hunt, House Democratic Leader, Co-Chair, House Transportation and Economic Development Committee, 40th Oregon House District

·       Senator Mark Haas, 14th Oregon Senate District

·       Senator Betsy Johnson, 16th Oregon Senate District

·       Senator Chuck Thomsen, 26th Oregon Senate District

·       Senator Jackie Winters, 10th Oregon Senate District

·       Representative Vicki Berger, 20th Oregon House District

·       Representative Deborah Boone, 32nd Oregon House District

·       Representative Peter Buckley, 5th Oregon House District

·       Representative Tim Freeman, 2nd Oregon House District

·       Representative Wally Hicks, 3rd Oregon House District

·       Representative Val Hoyle, 14th Oregon House District

·       Representative Betty Komp, 22nd Oregon House District

·       Representative Tobias Read, 27th Oregon House District

·       Representative Mike Schaufler, 48th Oregon House District

·       Representative Brad Witt, 31st Oregon House District

·       Henry Heimuller, Commissioner for Columbia County, Oregon

·       Jerry W. Gardner, Oregon Department of Agriculture

·       Daniel Courtney, Tribal Chairman, Cow Creek Band of Umpqua Tribes


·       Senator Joseph B. Scarnati, Senate President Pro Tempore, 25th Pennsylvania Senate District

·       Senator Donald C. White, Chair, Banking and Industry Committee, Vice-Chair, Transportation, 41st Pennsylvania Senate District

·       Senator Timothy J. Solobay, 46th Pennsylvania Senate District

·       Representative Samuel H. Smith, Speaker of the House, 66th Pennsylvania House District

·       Representative Richard A. Geist, Majority Chair House Transportation Committee, 79th Pennsylvania House District

·       Representative Joseph F. Markosek, Chairman, Appropriations (D), 25th Pennsylvania House District

·       Representative Brian L. Ellis, 11th Pennsylvania House District

·       Representative Robert F. Matzie, 16th Pennsylvania House District

·       Barry J. Schoch, Secretary of Transportation, Pennsylvania Department of Transportation


·       Ron Littlefield, Mayor, City of Chattanooga, Tennessee


·       David A. Crawford, Village Manager of Essex Junction, Vermont


            [1]  The digest constitutes no part of the decision of the Board but has been prepared for the convenience of the reader.  It may not be cited to or relied upon as precedent.  Policy Statement on Plain Language Digests in Decisions, EP 696 (STB served Sept. 2, 2010).

[2]  Vice Chairman Mulvey dissented from the Board’s classification of the transaction as minor.

[3]  See Appl. 4-7 for a listing and description provided by Applicants of the rail carriers that are subject to the Transaction.

[4]  SWEPCO filed comments simultaneously with a Petition for Leave to Appear and Comment.  As no party has objected and as GWI has addressed SWEPCO’s comments in its reply, we grant SWEPCO’s petition.

[5]  A table of abbreviations appears in Appendix A.

[6]  A list of elected officials and public entities from whom the Board has received letters of support appears in Appendix B.  In addition, numerous shippers have filed letters in support of the Transaction.

[7]  See generally V.S. Kevin Neels.  There are four localities in which GWI interconnects or interchanges with RailAmerica, but the relevant lines either run in different directions or the affected shippers are served by multiple railroads.  Id. 11-13 (stating that common ownership of the Tazewell and Peoria Railroad and the Toledo, Peoria and Western Railway (TPW) in Peoria, Ill., would not have an anticompetitive effect because the affected customers are also served by the Union Pacific Railroad Company (UP) and a barge terminal); id. 13-15 (stating that although the Illinois and Midland Railroad and TPW “can theoretically interchange traffic at Sommer[, Ill.], no traffic has been interchanged between the railroads at that location in 15 years or more”); id. 19-20 (stating that the common ownership of the Meridian and Bigbee Railroad and the Alabama and Gulf Coast Railway would not negatively affect competition because one line runs north-south and the other east-west); id. 22-23 (stating that the railroads that would fall under common ownership in Columbus, Miss., not only have multiple interchange partners, but multiple Class I interchange partners); id. 27-28 (stating that there is no overlap in territory currently served by the RailAmerica line in Eugene, Ore., and territory currently served by the two GWI lines in Eugene.)

[8]  Although WSRY-USRP lays out three different requests for trackage rights in its Joint Request for Conditions, the appendix it attached denotes four distinct lines over which it is seeking trackage rights.  Compare WSRY-USRP Joint Req. for Conditions 2-3, with id. App. 1.  The last of these appears to be over a 2.5-mile stretch of rail line between Michaelsville and Marion, Ind., owned by NS.  NS filed a reply comment objecting to this request.  For the reasons discussed herein with respect to the other three requests, to the extent WSRY-USRP is seeking trackage rights over the line connecting Michaelsville and Marion, its request is likewise denied.

[9]  Applicants’ Reply 29.  

[10]  Applicants’ Reply 25.

[11]  CCRSRA Comments 13.

[12]  CCRSRA Comments 36-37.

[13]  RSR and GFW would have legal remedies if GWI’s carriers were to raise demurrage rates or assess charges in an unreasonable way.

[14]  Appl. 2-4.

[15]  Applicants’ Reply 3-4.

[16]  CCRSRA, and other parties, objected at various times in this proceeding to expedited handling, which Applicants have continued to request.  For example, on November 15, 2012, CCRSRA filed a request to respond and a response objecting to Applicants’ request for expedited consideration in their October 26 rebuttal.  Because CCRSRA has already had an opportunity to respond to Applicants' request for expedited handling, we will deny CCRSRA's request to respond to Applicants' rebuttal.