[Federal Register Volume 88, Number 41 (Thursday, March 2, 2023)]
[Notices]
[Page 13224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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