The Alliance for Chemical Distribution, American Chemistry Council, American Fuel & Petrochemical Manufacturers, and The Fertilizer Institute are requesting that the Surface Transportation Board (STB) direct Union Pacific (UPC) and Norfolk Southern (NS) to redesignate Schedule 5.8 of their merger agreement from “Highly Confidential” to “Public.” Schedule 5.8 describes the contractual term “Materially Burdensome Regulatory Condition,” which, if imposed by the Board or a court, would give UPC the contractual right to walk away from the merger agreement that is valued at more than $250 billion.
“Schedule 5.8 does not qualify as Confidential Information under the Protective Order [that the STB entered in the UP-NS merger proceeding on Aug. 5, 2025, to safeguard confidential, proprietary, and commercially sensitive information],” the shipper associations noted in their April 14 filing (download below). “It contains no traffic data, no shipper identities, no rates, no cost data, no trade secrets, and no other protected confidential or proprietary information. Yet Applicants slapped a Highly Confidential designation on it anyway, concealing their own candid assessment of the conditions that the Board may need to impose to ameliorate the merger’s harms. Applicants have billed this merger as ‘transformational’—‘a win for the American economy, . . . our customers, and . . . our people.’ They have touted its ‘significant public benefits’ and called it ‘an unprecedented opportunity for our country.’ But they have fought to conceal their own arm’s-length assessment of its costs and benefits. Schedule 5.8 reveals which Board-imposed conditions would allow UP to pay $2.5 billion to walk away. It identifies the regulatory conditions that UPC may refuse to accept—conditions that address some of the merger’s most significant potential public harms. Applicants have done everything they can to hide it. They redacted Schedule 5.8 from discovery. They omitted it from their merger application. When the Board ordered them to include it, they designated it Highly Confidential without any apparent regard for whether it qualifies.”
The Highly Confidential designation, the associations said, “shuts out the very people who must decide whether and how to participate in this proceeding.” Rail customers, shipper associations, elected officials, and the public “cannot see Schedule 5.8,” they noted, and “[e]ven parties with outside counsel cannot discuss it with their attorneys.”
In their filing, the shipper associations told the STB that “[a]t bottom, the Board should redesignate Schedule 5.8 as public,” since it “does not qualify as Confidential Information under the Protective Order” and “does not contain protected proprietary or confidential information.” According to the associations, the Confidential or Highly Confidential designations traditionally “apply to documents containing the most sensitive and commercially valuable information, such as ‘shipper-specific rate or cost data.’” They pointed out that the STB’s Protective Order “defines Confidential Information to include traffic data, shipper identities in conjunction with traffic data, confidential terms of contracts with shippers, and confidential financial and cost data,” and Highly Confidential as “a subset of this information, ‘such as material containing shipper-specific rate or cost data or other competitively sensitive or proprietary information.’”
The associations also pointed out that UPC and NS “have no legitimate interest in protecting Schedule 5.8 because it contains nothing their competitors or customers could use against them outside this proceeding,” and the current designation “prejudices interested parties by depriving them of Applicants’ own assessment of the conditions that may be necessary to address their merger’s harms, which is essential to evaluating whether the transaction serves the public interest and making crucial advocacy decisions.” The associations noted, however, that if the STB “declines to make Schedule 5.8 public, it should at minimum redesignate it as Confidential to permit party access.”
Railway Age on April 16 reached out to UPC for comment and will update this article accordingly when one is received.
UPC and NS entered into a merger agreement July 29, 2025, to create the first U.S. transcontinental railroad, in which UPC is the acquiring carrier. In their 6,700 page application filed Dec. 19, they described the proposed transaction as an “end-to-end combination [that] will enhance competition and deliver broad public benefits.”
The STB on Jan. 16, 2026, rejected that application as “incomplete” in a unanimous decision and outlined the “deficiencies.” It noted in its rejection announcement that “the application failed to provide the complete merger agreement and all contracts or other written instruments pertaining to the transaction, including Schedule 5.8.” UPC and NS are expected to refile their application with the Board on April 30.
Further Reading:
- UP-NS Release Merger-Application Refiling Date
- STB Rejects UP-NS Merger Application as ‘Incomplete‘
- CN on UP+NS: ‘Show Us Schedule 5.8′ (UPDATED with BNSF, CSX and CPKC Filings)
- UP+NS Merger Application ‘Complete’?
- UP, NS Deliver 6,700-Page ‘Christmas Present’
- Union Pacific + Norfolk Southern: It’s Official
- ‘Temporary Tariff Pricing’ vs. ‘Committed Gateway Pricing’
- CN and UP: War on Words
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