40743                          SERVICE DATE – LATE RELEASE APRIL 23, 2010

DO

 

SURFACE TRANSPORTATION BOARD

 

DECISION

 

Docket No. FD 35368

 

CSX TRANSPORTATION, INC.—TRACKAGE RIGHTS EXEMPTION—CAROLINA COASTAL RAILWAY, INC.

 

MOTION FOR PROTECTIVE ORDER

 

Decided:  April 23, 2010

 

By motion filed on April 7, 2010, CSX Transportation, Inc. (CSXT), seeks a protective order under 49 C.F.R. § 1104.14 to protect the confidential and commercially sensitive terms and conditions of the unredacted version of the initial trackage rights agreement (Initial Agreement) between CSXT and Carolina Coastal Railway, Inc. (CLNA), submitted under seal in this proceeding.  Concurrently, CSXT has filed a notice of exemption under 49 C.F.R. § 1180.2(d)(7) for CSXT’s acquisition from CLNA of supplemental trackage rights described in the supplemental trackage rights agreement and has attached to the notice a redacted version of the Initial Agreement and an unredacted version of the supplemental trackage rights agreement.

 

Good cause exists to grant the motion for protective order.  CSXT submits that a protective order is necessary because the Initial Agreement contains commercially sensitive and confidential information that could harm the parties if those terms were made public. 

 

The motion conforms with the Board=s rules at 49 C.F.R. § 1104.14 governing protective orders to maintain the confidentiality of materials submitted to the Board.  Issuance of the protective order will ensure that confidential information will be used solely for this proceeding and not for other purposes.  Accordingly, the motion for protective order will be granted, and the Initial Agreement shall be subject to the Protective Order and Undertaking, as modified in the Appendix to this decision.^[1]

 

This decision will not significantly affect either the quality of the human environment or the conservation of energy resources.

 

It is ordered:

 

1.  The motion for a protective order is granted, and the Protective Order and Undertaking in the Appendix to this decision are adopted.

 

2.  The unredacted Initial Agreement submitted in Docket No. FD 35368 will be kept under seal by the Board and not placed in the public docket or otherwise disclosed to the public, unless the attached Undertaking is executed and the terms of the Protective Order are followed, or unless otherwise ordered by the Board.

 

3.  This decision is effective on its service date.

 

By the Board, Rachel D. Campbell, Director, Office of Proceedings.

 

 

APPENDIX

 

PROTECTIVE ORDER

 

 

            1.  For purposes of this Protective Order, “Confidential Information” means the unredacted Initial Trackage Rights Agreement submitted by CSX Transportation, Inc. (“CSXT”), in Docket No. FD 35368.

 

2.  Confidential Information shall be provided to any party only pursuant to this Protective Order and only upon execution and delivery to CSXT of the attached Undertaking.  Confidential Information shall be used solely for the purpose of this and any related Board proceedings, or any judicial review proceeding arising therefrom, and not for any other business, commercial, or competitive purpose.

 

3.  Confidential Information shall not be disclosed in any way or to any person without the written consent of CSXT or an order of the Board, solely for use in connection with this and related Board proceedings, or any judicial review proceeding arising therefrom, provided that such person has been given and has read a copy of this Protective Order and agrees to be bound by its terms by executing the attached Undertaking prior to receiving access to this information.

 

4.  Any documents containing Confidential Information must be destroyed, and notice of such destruction must be served on CSXT at the completion of this and any related Board proceedings, or any judicial review proceeding arising therefrom, whichever comes last.

 

5.  If the Board retains the Confidential Information, it shall, in order to keep it confidential, treat the information in accordance with the procedures set forth at 49 C.F.R. § 1104.14.

 

6.  If any party intends to use Confidential Information at hearings in this proceeding or in any related Board proceedings, or in any judicial review proceeding arising therefrom, the party shall submit any documents setting forth or revealing such Confidential Information to the Board, or the reviewing court as appropriate, under seal, and shall accompany such submission with a written request to the Board or the court to (i) restrict attendance at the hearing during discussion of such Confidential Information, and (ii) restrict access to the portion of the record or briefs reflecting discussion of such Confidential Information in accordance with the Protective Order.

 

7.  A person must file simultaneously a public version of any confidential submission it files with the Board.

 

8.  All parties must comply with all of the provisions stated in this Protective Order unless good cause, as determined by the Board, is shown by any party to warrant suspension of any of the provisions herein. 

 

 

UNDERTAKING

 

CONFIDENTIAL MATERIAL

 

I, ___________________________________, have read the Protective Order governing the filing of Confidential Information by CSX Transportation, Inc. (“CSXT”), in Docket No. FD 35368, understand the same, and agree to be bound by its terms.  I agree not to use or permit the use of any data or information obtained under this Undertaking, or to use or permit the use of any techniques disclosed or information learned as a result of receiving such data or information, for any purpose other than the preparation and presentation of evidence and argument in Docket No. FD 35368 or any judicial review proceeding taken or filed in connection therewith.  I further agree not to disclose any data or information obtained under this Protective Order to any person who is not also bound by the terms of this Protective Order and has not executed an Undertaking in the form hereof.

 

I understand and agree that money damages would not be a sufficient remedy for breach of this Undertaking and that CSXT shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and I further agree to waive any requirement for the securing or posting of any bond in connection with such remedy.  Such remedy shall not be deemed to be the exclusive remedy for breach of this Undertaking but shall be in addition to all remedies available at law or equity.

 

 

            Signed:  _________________________________

           

            Position:  ________________________________

 

            Affiliation:  ______________________________

 

            Dated:  __________________________________