83 FR 52299 - BNSF Railway Company-Lease Exemption-Union Pacific Railroad Company

SURFACE TRANSPORTATION BOARD

Federal Register Volume 83, Issue 200 (October 16, 2018)

Page Range		52299-52300
FR Document		2018-22463
Federal Register, Volume 83 Issue 200 (Tuesday, October 16, 2018)
[Federal Register Volume 83, Number 200 (Tuesday, October 16, 2018)]
[Notices]
[Pages 52299-52300]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-22463]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36222]


BNSF Railway Company--Lease Exemption--Union Pacific Railroad 
Company

    On September 6, 2018, BNSF Railway Company (BNSF) filed a petition 
under 49 U.S.C. 10502 seeking exemption from the prior approval 
requirements under 49 U.S.C. 11323-25 for BNSF to lease from Union 
Pacific Railroad Company (UP) an approximately 13.62-mile rail line 
(Line) in Pueblo County, Colo., between milepost 591.66 at NA Junction 
and milepost 605.28 at Avondale (Nyberg).
    BNSF explains that, its predecessor, The Atchison, Topeka and Santa 
Fe Railway Company (ATSF), and UP's predecessor, Missouri Pacific 
Railroad Company (Missouri Pacific), entered into an agreement in 1967 
relating to ownership and operation, maintenance, and joint use of 
ATSF's and Missouri Pacific's railroad tracks and facilities between NA 
Junction and Pueblo, which includes the Line. Pursuant to this 
agreement, BNSF and UP have jointly operated over the Line for the last 
50 years, and UP has been responsible for maintaining the Line. BNSF 
has been the primary user of the Line and currently dispatches it.
    BNSF and UP have recently entered into a lease agreement that would 
modify certain roles and responsibilities set forth in the 1967 
agreement. BNSF would ``non-exclusively lease the Line in order [] to 
maintain, construct, repair and renew the Line's track and appurtenant 
structures and facilities.'' (Pet. 2.) \1\ BNSF states that the lease 
would align track and signal maintenance with BNSF's current 
dispatching responsibilities and is intended to streamline maintenance 
activity and improve planning processes in coordination with BNSF's 
maintenance of contiguous lines on either side of the Line. BNSF states 
that these changes would reduce the number and frequency of maintenance 
windows and outages, resulting in improved operations for customers 
along the route. According to BNSF, beyond this enhancement of 
operational efficiency, no other impacts to commercial or operational 
access to customers, either locally or in through service, would result 
from the transaction.\2\
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    \1\ BNSF's reference to ``construction'' is in connection with 
the planned repair and maintenance of the existing Line. See Pet. 1. 
Therefore, the Board does not construe that reference as involving 
any new line of railroad for which construction authority would be 
needed pursuant to 49 U.S.C. 10901, and this decision does not grant 
any such authority.
    \2\ Pursuant to 49 CFR 1121.3(d), BNSF certifies that the lease 
does not contain a provision or agreement that may limit future 
interchange with a third-party connecting carrier.
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    BNSF asks for expedited consideration of its petition so that the 
exemption can become effective by November 1, 2018. BNSF explains that 
this would allow it to plan for and commence maintenance work necessary 
to remove slow orders and improve track conditions before winter 
weather makes maintenance difficult.

Discussion and Conclusions

    Under 49 U.S.C. 11323(a)(2), prior Board approval is required for a 
rail carrier to lease the property of another rail carrier. Under 49 
U.S.C. 10502, however, the Board must exempt a transaction or service 
from regulation when it finds that: (1) Regulation is not necessary to 
carry out the rail transportation policy of 49 U.S.C. 10101; and (2) 
either (a) the transaction or service is of limited scope, or (b) 
regulation is not needed to protect shippers from the abuse of market 
power.
    Detailed scrutiny of the proposed transaction through an 
application for review and approval under 49 U.S.C. 11323-25 is not 
necessary here to carry out the rail transportation policy. The 
proposed transaction would align track and signal maintenance with 
dispatching and further align maintenance of the Line with BNSF's 
maintenance activities on contiguous lines, which would result in 
improved operations along the route. As such, the proposed transaction 
would, among other things, promote a safe and efficient rail 
transportation system (49 U.S.C. 10101(3)), ensure continuation of a 
sound rail transportation system with effective competition among rail 
carriers (49 U.S.C. 10101(4)), foster sound economic conditions in 
transportation and ensure effective competition (49 U.S.C. 10101(5)), 
and encourage honest

[[Page 52300]]

and efficient management (49 U.S.C. 10101(9)). Further, an exemption 
from the application process would expedite regulatory action (49 
U.S.C. 10101(2)). Other aspects of the rail transportation policy would 
not be adversely affected.
    Regulation of the proposed transaction is also not necessary to 
protect shippers from the abuse of market power.\3\ Nothing in the 
record indicates that any shipper would lose an existing rail service 
option as a result of the proposed lease transaction. According to 
BNSF, the lease will not affect the routings available to customers on 
the Line or customers whose traffic is routed over the Line. The record 
indicates that the transaction would not result in any material change 
in UP's or BNSF's operations or commercial access to customers and that 
no customers would experience any degradation of, or competitive change 
in, rail service. Indeed, the lease transaction should benefit shippers 
by allowing BNSF and UP to move traffic more efficiently following 
improved maintenance. Moreover, no shippers or other parties have filed 
any objections to the proposed transaction.
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    \3\ Because the Board concludes that regulation is not needed to 
protect shippers from the abuse of market power, it is unnecessary 
to determine whether the transaction is limited in scope. See 49 
U.S.C. 10502(a).
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    Under 49 U.S.C. 10502(g), the Board may not use its exemption 
authority to relieve a carrier of its statutory obligation to protect 
the interests of employees. Accordingly, as a condition to granting 
this exemption, the Board will impose the standard employee protective 
conditions in Norfolk & Western Railway--Trackage Rights--Burlington 
Northern, Inc., 354 I.C.C. 605 (1978), as modified in Mendocino Coast 
Railway--Lease & Operate--California Western Railroad, 360 I.C.C. 653 
(1980).
    The proposed lease is exempt from both the environmental reporting 
requirements under 49 CFR 1105.6(c) and the historic reporting 
requirements under 49 CFR 1105.8(b).
    As noted above, BNSF seeks an expedited effective date so that it 
can commence maintenance improvements as soon as possible to avoid 
complications from winter weather conditions. For that reason, the 
exemption will be effective October 31, 2018, and petitions to stay, 
petitions for reconsideration, and petitions to reopen will be due by 
October 24, 2018.
    It is ordered:
    1. Under 49 U.S.C. 10502, the Board exempts from the prior approval 
requirements of 49 U.S.C. 11323-25 BNSF's lease of the Line, subject to 
the employee protective conditions in Norfolk & Western Railway--
Trackage Rights--Burlington Northern, Inc., 354 I.C.C. 605 (1978), as 
modified in Mendocino Coast Railway--Lease & Operate--California 
Western Railroad, 360 I.C.C. 653 (1980).
    2. Notice of the exemption will be published in the Federal 
Register on October 16, 2018.
    3. The exemption will become effective on October 31, 2018.
    4. Petitions to stay, petitions for reconsideration, and petitions 
to reopen must be filed by October 24, 2018.

    Decided: October 10, 2018.

    By the Board, Board Members Begeman and Miller.
Aretha Laws-Byrum,
Clearance Clerk.
[FR Doc. 2018-22463 Filed 10-15-18; 8:45 am]
 BILLING CODE 4915-01-P
Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Notices 52299

• Type of Request: Extension of a are referred to ITAR part 129 for maintenance with BNSF’s current
Currently Approved Collection. guidance on information to submit dispatching responsibilities and is
• Originating Office: Directorate of regarding proposed brokering activity. intended to streamline maintenance
Defense Trade Controls (DDTC). Upon implementation of DDTC’s new activity and improve planning processes
• Form Number: DS–4294. case management system, the Defense in coordination with BNSF’s
• Respondents: Respondents are U.S. Export Control and Compliance System maintenance of contiguous lines on
and foreign persons who wish to engage (DECCS), a DS–4294 may be submitted either side of the Line. BNSF states that
in International Traffic in Arms electronically. these changes would reduce the number
Regulations (ITAR)-controlled brokering and frequency of maintenance windows
of defense articles and defense services. Anthony M. Dearth,
and outages, resulting in improved
• Estimated Number of Respondents: Chief of Staff, Directorate of Defense Trade operations for customers along the
170. Controls, U.S. Department of State.
route. According to BNSF, beyond this
• Estimated Number of Responses: [FR Doc. 2018–22447 Filed 10–15–18; 8:45 am]
enhancement of operational efficiency,
170. BILLING CODE 4710–25–P no other impacts to commercial or
• Average Time per Response: 2 operational access to customers, either
hours. locally or in through service, would
• Total Estimated Burden Time: 340 SURFACE TRANSPORTATION BOARD result from the transaction.2
hours. BNSF asks for expedited
[Docket No. FD 36222]
• Frequency: On occasion. consideration of its petition so that the
• Obligation to Respond: Required to BNSF Railway Company—Lease exemption can become effective by
Obtain Benefit. Exemption—Union Pacific Railroad November 1, 2018. BNSF explains that
We are soliciting public comments to Company this would allow it to plan for and
permit the Department to: commence maintenance work necessary
• Evaluate whether the proposed On September 6, 2018, BNSF Railway to remove slow orders and improve
information collection is necessary for Company (BNSF) filed a petition under track conditions before winter weather
the proper functions of the Department. 49 U.S.C. 10502 seeking exemption from makes maintenance difficult.
• Evaluate the accuracy of our the prior approval requirements under
estimate of the time and cost burden for 49 U.S.C. 11323–25 for BNSF to lease Discussion and Conclusions
this proposed collection, including the from Union Pacific Railroad Company Under 49 U.S.C. 11323(a)(2), prior
validity of the methodology and (UP) an approximately 13.62-mile rail Board approval is required for a rail
assumptions used. line (Line) in Pueblo County, Colo., carrier to lease the property of another
• Enhance the quality, utility, and between milepost 591.66 at NA Junction rail carrier. Under 49 U.S.C. 10502,
clarity of the information to be and milepost 605.28 at Avondale however, the Board must exempt a
collected. (Nyberg). transaction or service from regulation
• Minimize the reporting burden on BNSF explains that, its predecessor, when it finds that: (1) Regulation is not
those who are to respond, including the The Atchison, Topeka and Santa Fe necessary to carry out the rail
use of automated collection techniques Railway Company (ATSF), and UP’s transportation policy of 49 U.S.C.
or other forms of information predecessor, Missouri Pacific Railroad 10101; and (2) either (a) the transaction
technology. Company (Missouri Pacific), entered or service is of limited scope, or (b)
Please note that comments submitted into an agreement in 1967 relating to regulation is not needed to protect
in response to this Notice are public ownership and operation, maintenance, shippers from the abuse of market
record. Before including any detailed and joint use of ATSF’s and Missouri power.
personal information, you should be Pacific’s railroad tracks and facilities Detailed scrutiny of the proposed
aware that your comments as submitted, between NA Junction and Pueblo, transaction through an application for
including your personal information, which includes the Line. Pursuant to review and approval under 49 U.S.C.
will be available for public review. this agreement, BNSF and UP have 11323–25 is not necessary here to carry
Abstract of Proposed Collection jointly operated over the Line for the out the rail transportation policy. The
last 50 years, and UP has been proposed transaction would align track
In accordance with part 129 of the responsible for maintaining the Line.
International Traffic in Arms and signal maintenance with
BNSF has been the primary user of the dispatching and further align
Regulations (ITAR), U.S. and foreign Line and currently dispatches it.
persons who wish to engage in ITAR- maintenance of the Line with BNSF’s
BNSF and UP have recently entered maintenance activities on contiguous
controlled brokering activity of defense into a lease agreement that would
articles and defense services must first lines, which would result in improved
modify certain roles and responsibilities operations along the route. As such, the
register with DDTC. Brokers must then set forth in the 1967 agreement. BNSF
submit a written request for approval to proposed transaction would, among
would ‘‘non-exclusively lease the Line other things, promote a safe and
DDTC and must receive DDTC’s consent in order [] to maintain, construct, repair
prior to engaging in such activities efficient rail transportation system (49
and renew the Line’s track and U.S.C. 10101(3)), ensure continuation of
unless exempted. This information is appurtenant structures and facilities.’’
currently used in the review of the a sound rail transportation system with
(Pet. 2.) 1 BNSF states that the lease effective competition among rail carriers
brokering request submitted for would align track and signal
approval and to ensure compliance with (49 U.S.C. 10101(4)), foster sound
amozie on DSK3GDR082PROD with NOTICES1

defense trade statutes and regulations. It economic conditions in transportation
1 BNSF’s reference to ‘‘construction’’ is in

is also used to monitor and control the and ensure effective competition (49
connection with the planned repair and
transfer of sensitive U.S. technology. maintenance of the existing Line. See Pet. 1. U.S.C. 10101(5)), and encourage honest
Therefore, the Board does not construe that
Methodology reference as involving any new line of railroad for 2 Pursuant to 49 CFR 1121.3(d), BNSF certifies

which construction authority would be needed that the lease does not contain a provision or
Currently submissions are made via pursuant to 49 U.S.C. 10901, and this decision does agreement that may limit future interchange with a
hardcopy documentation. Applicants not grant any such authority. third-party connecting carrier.

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52300 Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Notices

and efficient management (49 U.S.C. Norfolk & Western Railway—Trackage of a Waiver of the Hazardous Materials
10101(9)). Further, an exemption from Rights—Burlington Northern, Inc., 354 Regulations (HMR, 49 CFR parts 171–
the application process would expedite I.C.C. 605 (1978), as modified in 180) to persons conducting operations
regulatory action (49 U.S.C. 10101(2)). Mendocino Coast Railway—Lease & under the direction of EPA Region 4 or
Other aspects of the rail transportation Operate—California Western Railroad, USCG Seventh or Eighth Districts
policy would not be adversely affected. 360 I.C.C. 653 (1980). within the Hurricane Michael
Regulation of the proposed 2. Notice of the exemption will be emergency area of Florida. The Waiver
transaction is also not necessary to published in the Federal Register on is granted to support the EPA and USCG
protect shippers from the abuse of October 16, 2018. in taking appropriate actions to prepare
market power.3 Nothing in the record 3. The exemption will become for, respond to, and recover from a
indicates that any shipper would lose an effective on October 31, 2018. threat to public health, welfare, or the
existing rail service option as a result of 4. Petitions to stay, petitions for environment caused by actual or
the proposed lease transaction. reconsideration, and petitions to reopen potential oil and hazardous materials
According to BNSF, the lease will not must be filed by October 24, 2018. incidents resulting from Hurricane
affect the routings available to Decided: October 10, 2018. Michael.
customers on the Line or customers By the Board, Board Members Begeman On October 9, 2018, the President
whose traffic is routed over the Line. and Miller. issued an Emergency Declaration for
The record indicates that the transaction Aretha Laws-Byrum, Hurricane Michael for 35 Florida
would not result in any material change counties (EM 3405). This Waiver Order
Clearance Clerk.
in UP’s or BNSF’s operations or covers all areas identified in the
[FR Doc. 2018–22463 Filed 10–15–18; 8:45 am]
commercial access to customers and declaration, as amended. Pursuant to 49
that no customers would experience any BILLING CODE 4915–01–P
U.S.C. 5103(c), PHMSA has authority
degradation of, or competitive change delegated by the Secretary (49 CFR
in, rail service. Indeed, the lease 1.97(b)(3)) to waive compliance with
transaction should benefit shippers by DEPARTMENT OF TRANSPORTATION
any part of the HMR provided that the
allowing BNSF and UP to move traffic grant of the waiver is: (1) In the public
more efficiently following improved Pipeline and Hazardous Materials
Safety Administration interest; (2) not inconsistent with the
maintenance. Moreover, no shippers or safety of transporting hazardous
other parties have filed any objections to [Docket No. PHMSA–2018–0100; Notice No. materials; and (3) necessary to facilitate
the proposed transaction. 2018–17]
the safe movement of hazardous
Under 49 U.S.C. 10502(g), the Board
Hazardous Materials: Emergency materials into, from, and within an area
may not use its exemption authority to
relieve a carrier of its statutory Waiver No. 7 of a major disaster or emergency that
obligation to protect the interests of has been declared under the Robert T.
AGENCY: Pipeline and Hazardous Stafford Disaster Relief and Emergency
employees. Accordingly, as a condition
Materials Safety Administration Assistance Act (42 U.S.C. 5121 et seq.).
to granting this exemption, the Board
(PHMSA), DOT. Given the continuing impacts caused
will impose the standard employee
ACTION: Notice of emergency waiver by Hurricane Michael, PHMSA’s
protective conditions in Norfolk &
Western Railway—Trackage Rights— order. Administrator has determined that
Burlington Northern, Inc., 354 I.C.C. 605 regulatory relief is in the public interest
SUMMARY: PHMSA is issuing an and necessary to ensure the safe
(1978), as modified in Mendocino Coast emergency waiver order to persons
Railway—Lease & Operate—California transportation in commerce of
conducting operations under the hazardous materials while the EPA and
Western Railroad, 360 I.C.C. 653 (1980). direction of Environmental Protection
The proposed lease is exempt from USCG execute their recovery and
Agency (EPA) Region 4 or United States cleanup efforts in Florida. Specifically,
both the environmental reporting Coast Guard (USCG) Seventh or Eighth
requirements under 49 CFR 1105.6(c) PHMSA’s Administrator finds that
Districts within the Hurricane Michael issuing this Waiver Order will allow the
and the historic reporting requirements emergency area of Florida. The Waiver
under 49 CFR 1105.8(b). EPA and USCG to conduct their
is granted to support the EPA and USCG Emergency Support Function #10
As noted above, BNSF seeks an
in taking appropriate actions to prepare response activities under the National
expedited effective date so that it can
for, respond to, and recover from a Response Framework to safely remove,
commence maintenance improvements
threat to public health, welfare, or the transport, and dispose of hazardous
as soon as possible to avoid
environment caused by actual or materials. By execution of this Waiver
complications from winter weather
potential oil and hazardous materials Order, persons conducting operations
conditions. For that reason, the
incidents resulting from Hurricane under the direction of EPA Region 4 or
exemption will be effective October 31,
Michael. This Waiver Order is effective USCG Seventh or Eighth Districts
2018, and petitions to stay, petitions for
immediately and shall remain in effect within the Hurricane Michael
reconsideration, and petitions to reopen
for 30 days from the date of issuance. emergency areas of Florida are
will be due by October 24, 2018.
It is ordered: FOR FURTHER INFORMATION CONTACT: authorized to offer and transport non-
1. Under 49 U.S.C. 10502, the Board Adam Horsley, Deputy Assistant Chief radioactive hazardous materials under
exempts from the prior approval Counsel for Hazardous Materials Safety, alternative safety requirements imposed
requirements of 49 U.S.C. 11323–25 Pipeline and Hazardous Materials Safety by EPA Region 4 or USCG Seventh or
amozie on DSK3GDR082PROD with NOTICES1

BNSF’s lease of the Line, subject to the Administration, telephone: (202) 366– Eighth Districts when compliance with
employee protective conditions in 4400. the HMR is not practicable. Under this
SUPPLEMENTARY INFORMATION: In Waiver Order, non-radioactive
3 Because the Board concludes that regulation is
accordance with the provisions of 49 hazardous materials may be transported
not needed to protect shippers from the abuse of
market power, it is unnecessary to determine
U.S.C. 5103(c), the Administrator for to staging areas within 50 miles of the
whether the transaction is limited in scope. See 49 PHMSA, hereby declares that an point of origin. Further transportation of
U.S.C. 10502(a). emergency exists that warrants issuance the hazardous materials from staging

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Document Created: 2018-10-15 23:41:56
Document Modified: 2018-10-15 23:41:56
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
FR Citation		83 FR 52299