Notice2023-04263
BNSF Railway Company-Trackage Rights Exemption-Union Pacific Railroad Company
Primary source
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Published
March 2, 2023
Issuing agencies
Surface Transportation Board
Full Text
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<title>Federal Register, Volume 88 Issue 41 (Thursday, March 2, 2023)</title>
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<body><pre>[Federal Register Volume 88, Number 41 (Thursday, March 2, 2023)]
[Notices]
[Page 13224]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-04263]
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SURFACE TRANSPORTATION BOARD
[Docket No. FD 36377 (Sub-No. 7)]
BNSF Railway Company--Trackage Rights Exemption--Union Pacific
Railroad Company
By petition filed on December 13, 2022, BNSF Railway Company (BNSF)
requests that the Board partially revoke the trackage rights exemption
granted to it under 49 CFR 1180.2(d)(7) in Docket No. FD 36377 (Sub-No.
6), as necessary to permit that trackage rights arrangement to expire
at midnight on December 31, 2023.
As explained by BNSF in its verified notice of exemption in Docket
No. FD 36377 (Sub-No. 6), BNSF and Union Pacific Railroad Company (UP)
entered into an agreement granting BNSF restricted, local trackage
rights over two rail lines owned by UP between: (1) UP milepost 93.2 at
Stockton, Cal., on UP's Oakland Subdivision, and UP milepost 219.4 at
Elsey, Cal., on UP's Canyon Subdivision, a distance of 126.2 miles; and
(2) UP milepost 219.4 at Elsey, and UP milepost 280.7 at Keddie, Cal.,
on UP's Canyon Subdivision, a distance of 61.3 miles (collectively, the
Lines). BNSF Verified Notice of Exemption 2, BNSF Ry.--Trackage Rts.
Exemption--Union Pac. R.R., FD 36377 (Sub-No. 6). BNSF further stated
that the trackage rights arrangement is intended to permit BNSF to move
empty and loaded unit ballast trains to and from the ballast pit
located at Elsey. Id. According to BNSF, it filed its verified notice
of exemption under the Board's class exemption procedures at 49 CFR
1180.2(d)(7), instead of 49 CFR 1180.2(d)(8), because the trackage
rights covered by the notice are local rather than overhead rights.
BNSF Verified Notice of Exemption 1 n.1, 2, BNSF Ry.--Trackage Rts.
Exemption--Union Pac. R.R., FD 36377 (Sub-No. 6).
In its petition, BNSF asks the Board to partially revoke the
exemption as necessary to permit the trackage rights to expire at
midnight on December 31, 2023, pursuant to the parties' agreement. (See
BNSF Pet. 1-2); see also BNSF Verified Notice of Exemption, Ex. B at 2,
BNSF Ry.--Trackage Rts. Exemption--Union Pac. R.R., FD 36377 (Sub-No.
6). BNSF argues that granting this petition will promote the rail
transportation policy at 49 U.S.C. 10101 and that the partial
revocation would be consistent with the limited scope of the
transaction and would not have an adverse effect on shippers. (BNSF
Pet. 3.) In addition, BNSF asserts that the Board has granted similar
petitions for partial revocation to permit temporary trackage rights to
expire, including petitions involving prior iterations of the trackage
rights agreement at issue here. (Id. at 3-4.)
Discussion and Conclusions
Although BNSF and UP have expressly agreed on the duration of the
proposed trackage rights agreement, trackage rights approved under the
class exemption at 49 CFR 1180.2(d)(7) typically remain effective
indefinitely, regardless of any contract provisions. At times, however,
the Board has partially revoked a trackage rights exemption to allow
those rights to expire after a limited time period rather than lasting
in perpetuity. See, e.g., BNSF Ry.--Trackage Rts. Exemption--Union Pac.
R.R., FD 36377 (Sub-No. 5) (STB served Feb. 7, 2022) (granting a
petition to partially revoke a trackage rights exemption involving the
Lines at issue in this case); New Orleans Pub. Belt R.R.--Trackage Rts.
Exemption--Ill. Cent. R.R., FD 36198 (Sub-No. 1) (STB served June 20,
2018).
Granting partial revocation in these circumstances to permit the
trackage rights to expire at the end of 2023 would eliminate the need
for BNSF to file a second pleading seeking discontinuance authority
when the agreement expires, thereby promoting the aspects of the rail
transportation policy at 49 U.S.C. 10101(2), (7), and (15). Moreover,
partially revoking the exemption to limit the term of the trackage
rights would have no adverse impact on shippers because the trackage
rights at issue are solely to allow BNSF to move empty and loaded unit
ballast trains to and from the ballast pit in Elsey for use in BNSF's
maintenance-of-way projects. (See BNSF Pet. 2.) Therefore, the Board
will grant the petition and permit the trackage rights exempted in
Docket No. FD 36377 (Sub-No. 6) to expire at midnight on December 31,
2023.
To provide the statutorily mandated protection to any employee
adversely affected by the discontinuance of trackage rights, the Board
will impose the employee protective conditions set forth in Oregon
Short Line Railroad--Abandonment Portion Goshen Branch Between Firth &
Ammon, in Bingham & Bonneville Counties, Idaho, 360 I.C.C. 91 (1979).
This action is categorically excluded from environmental review
under 49 CFR 1105.6(c).
It is ordered:
1. The petition for partial revocation of the trackage rights class
exemption is granted.
2. As discussed above, the trackage rights in Docket No. FD 36377
(Sub-No. 6) are permitted to expire at midnight on December 31, 2023,
subject to the employee protective conditions set forth in Oregon Short
Line.
3. Notice of this decision will be published in the Federal
Register.
4. This decision is effective on April 1, 2023. Petitions for stay
must be filed by March 13, 2023. Petitions for reconsideration must be
filed by March 22, 2023.
Decided: February 24, 2023.
By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and
Schultz.
Stefan Rice,
Clearance Clerk.
[FR Doc. 2023-04263 Filed 3-1-23; 8:45 am]
BILLING CODE 4915-01-P
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