BNSF Railway Company-Lease Exemption-Union Pacific Railroad Company, 5930-5931 [2022-02144]

Download as PDF 5930 Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Notices request.12 In granting similar exemptions, the Commission stated that it would consider similar future exemption requests, provided that: • An SRO wishing to incorporate rules of another SRO by reference has submitted a written request for an order exempting it from the requirement in Section 19(b) of the Exchange Act to file proposed rule changes relating to the rules incorporated by reference, has identified the applicable originating SRO(s), together with the rules it wants to incorporate by reference, and otherwise has complied with the procedural requirements set forth in the Commission’s release governing procedures for requesting exemptive orders pursuant to Rule 0–12 under the Exchange Act; 13 • The incorporating SRO has requested incorporation of categories of rules (rather than individual rules within a category) that are not trading rules (e.g., the SRO has requested incorporation of rules such as margin, suitability, or arbitration); and • The incorporating SRO has reasonable procedures in place to provide written notice to its members each time a change is proposed to the incorporated rules of another SRO.14 The Commission believes that the Exchange has satisfied each of these conditions. The Commission also believes that granting the Exchange an exemption from the rule filing jspears on DSK121TN23PROD with NOTICES1 12 See, e.g., Securities Exchange Act Release Nos. 83296 (May 21, 2018), 83 FR 24362 (May 25, 2018) (order granting NYSE National, Inc.’s exemptive request relating to rules of FINRA incorporated by reference); 83040 (April 12, 2018), 83 FR 17198 (April 18, 2018) (order granting MIAX PEARL, LLC’s exemptive request relating to rules of the Miami International Securities Exchange, LLC incorporated by reference); 76998 (January 29, 2016), 81 FR 6066, 6083–84 (February 4, 2016) (order granting application for registration as a national securities exchange of ISE Mercury, LLC and exemptive request relating to rules of certain self-regulatory organizations (‘‘SROs’’) (including FINRA) incorporated by reference); 61534 (February 18, 2010), 75 FR 8760 (February 25, 2010) (order granting BATS Exchange, Inc.’s exemptive request relating to rules incorporated by reference by the BATS Exchange Options Market rules) (‘‘BATS Options Market Order’’); 61152 (December 10, 2009), 74 FR 66699, 66709–10 (December 16, 2009) (order granting application for registration as a national securities exchange of C2 Options Exchange, Incorporated and exemptive request relating to rules of the Chicago Board Options Exchange, Incorporated, incorporated by reference). 13 See 17 CFR 240.0–12 and Securities Exchange Act Release No. 39624 (February 5, 1998), 63 FR 8101 (February 18, 1998) (Commission Procedures for Filing Applications for Orders for Exemptive Relief Pursuant to Section 36 of the Exchange Act; Final Rule). 14 See BATS Options Market Order, supra note 12 (citing Securities Exchange Act Release No. 49260 (February 17, 2004), 69 FR 8500 (February 24, 2004) (order granting exemptive request relating to rules incorporated by reference by several SROs) (‘‘2004 Order’’)). VerDate Sep<11>2014 21:31 Feb 01, 2022 Jkt 256001 requirements under Section 19(b) of the Exchange Act will promote efficient use of the Commission’s and the Exchange’s resources by avoiding duplicative rule filings based on simultaneous changes to identical rule text sought by more than one SRO.15 The Commission therefore finds it appropriate in the public interest and consistent with the protection of investors to exempt the Exchange from the rule filing requirements under Section 19(b) of the Exchange Act with respect to the abovedescribed FINRA rules it has incorporated by reference. This exemption is conditioned upon the Exchange promptly providing written notice to its members whenever FINRA changes a rule that the Exchange has incorporated by reference. Accordingly, IT IS ORDERED, pursuant to Section 36 of the Exchange Act,16 that the Exchange is exempt from the rule filing requirements of Section 19(b) of the Exchange Act solely with respect to changes to the rules identified in the Exemptive Request, provided that the Exchange promptly provides written notice to its members whenever FINRA proposes to change a rule that the Exchange has incorporated by reference. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.17 J. Matthew DeLesDernier, Assistant Secretary. [FR Doc. 2022–02085 Filed 2–1–22; 8:45 am] BILLING CODE 8011–01–P SURFACE TRANSPORTATION BOARD [Docket No. FD 36560] BNSF Railway Company—Lease Exemption—Union Pacific Railroad Company On November 9, 2021, BNSF Railway Company (BNSF) filed a petition under 49 U.S.C. 10502 seeking exemption from the prior approval requirements of 49 U.S.C. 11323–25 for BNSF to lease from Union Pacific Railroad Company (UP) approximately 25 miles of rail line extending from Sterling, Colo., near UP milepost 56.71, to Union, Colo., near UP milepost 81.1, on UP’s Julesburg Subdivision (the Line).1 15 See BATS Options Market Order, supra note 12, 75 FR at 8761; see also 2004 Order, supra note 14, 69 FR at 8502. 16 15 U.S.C. 78mm. 17 17 CFR 200.30–3(a)(76). 1 An executed, redacted version of the lease agreement was filed with the petition for exemption. An unredacted version was submitted to the Board under seal along with a motion for protective order, which was granted by decision served on November 24, 2021. PO 00000 Frm 00152 Fmt 4703 Sfmt 4703 The petition explains that BNSF and its predecessors have operated over the Line since 1900, and that, concurrently with the petition, BNSF filed a verified notice of exemption pursuant to 49 CFR 1180.2(d)(7) pertaining to a trackage rights agreement to supersede the agreement that had been in effect since 1951. (Pet. 2.) 2 According to the petition, BNSF and UP have agreed to enter into a lease that would modify certain roles and responsibilities set forth in the new trackage rights agreement; in particular, the lease would ‘‘allow BNSF to occupy UP’s property for the purposes of maintenance, construction, repair, and renewal of the track and appurtenant structures and facilities on the Line.’’ (Pet. 2.) 3 BNSF states that by permitting maintenance responsibilities to shift to BNSF, the sole user of the Line, the lease will streamline maintenance activity and produce more efficient rail operations. (Pet. 2.) According to BNSF, the lease transaction will have no adverse impact on commercial or operational access to the Line. (Id. at 5; see also id. at 6–7 (stating that the lease ‘‘is simply intended to produce more efficient rail operations by streamlining the Line’s maintenance activities’’ and ‘‘will have no adverse impact on the national, regional, or local rail industry’’).) 4 BNSF asserts that the Board has previously exempted similar lease agreements from the prior approval requirements of sections 11323–25 pursuant to section 10502, and that the Board should grant this petition and exempt the lease for the same reasons. (Pet. 3.) 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 2 Notice of the trackage rights exemption was published in the Federal Register on November 24, 2021 (86 FR 67111), and the exemption took effect on December 9, 2021. See BNSF Ry.—Trackage Rts. Exemption—Union Pac. R.R., FD 36561 (STB served Nov. 24, 2021). 3 BNSF’s reference to ‘‘construction’’ is in connection with the planned repair and maintenance of the existing Line. (See Pet. 2.) 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. 4 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. (Pet. 7–8.) E:\FR\FM\02FEN1.SGM 02FEN1 jspears on DSK121TN23PROD with NOTICES1 Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Notices 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 simply permit maintenance responsibilities for the Line to shift to BNSF, the sole user of the Line. As described in the petition, the lease is intended to streamline maintenance activity and would produce more efficient rail operations over the Line with no adverse competitive impacts. Therefore, the proposed transaction would promote a safe and efficient rail transportation system, (49 U.S.C. 10101(3)), foster sound economic conditions in transportation and ensure effective competition, (49 U.S.C. 10101(5)), encourage honest and efficient management, (49 U.S.C. 10101(9)), and promote energy conservation, (49 U.S.C. 10101(14)). Further, an exemption from the application process would expedite regulatory action, (49 U.S.C. 10101(2)), and reduce regulatory barriers to entry and exit, (49 U.S.C. 10101(7)). 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.5 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 the petition, the transaction will have no adverse impact on commercial or operational access to the Line. (See Pet. 5 (noting that the lease agreement specifically states that nothing contained in the lease would ‘‘amend, change or supersede the commercial access . . . terms as provided for in the Trackage Rights Agreement’’).) BNSF states that it will continue to provide common carrier service to shippers over the Line and that there will be no material change in the service provided to shippers, because the lease simply shifts the Line’s maintenance responsibilities to BNSF, the sole user of the Line. (Id. at 6.) Indeed, the lease transaction should benefit shippers by producing more efficient rail operations by streamlining the Line’s maintenance activities. Moreover, no shippers or other parties have filed any objections to the proposed transaction. 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). 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 February 2, 2022. 3. The exemption will become effective on March 4, 2022. 4. Petitions to stay must be filed by February 14, 2022. 5. Petitions for reconsideration and petitions to reopen must be filed by February 22, 2022. 5 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). SUMMARY: VerDate Sep<11>2014 21:31 Feb 01, 2022 Jkt 256001 Decided: January 25, 2022. By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and Schultz. Jeffrey Herzig, Clearance Clerk. [FR Doc. 2022–02144 Filed 2–1–22; 8:45 am] BILLING CODE 4915–01–P TENNESSEE VALLEY AUTHORITY Agency Information Collection Activities: Submission for OMB Review; Comment Request Tennessee Valley Authority (TVA). ACTION: 30-Day notice of submission of information collection approval request to OMB. AGENCY: Tennessee Valley Authority (TVA) provides notice of submission of this information clearance request (ICR) to the Office of Management and Budget PO 00000 Frm 00153 Fmt 4703 Sfmt 4703 5931 (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The general public and other federal agencies are invited to comment. TVA previously published a 60-day notice of the proposed information collection for public review (December 10, 2021) and no comments were received. DATES: The OMB will consider all written comments received on or before March 4, 2022. ADDRESSES: Written comments for the proposed information collection should be sent within 30 days of publication of this notice to www.reginfo.gov/public/ do/PRAMain. Find this particular information collection by selecting ‘‘Currently under 30-day Review—Open for Public Comments’’ or by using the search function. SUPPLEMENTARY INFORMATION: Type of Request: New collection. Title of Information Collection: Distribution Technology Capability Assessment. Frequency of Use: Every 2 years. Type of Affected Public: State, local, and tribal governments; small businesses; non-profit organizations. Small Businesses or Organizations Affected: Yes. Federal Budget Functional Category Code: 455. Estimated Number of Annual Responses: 153. Estimated Total Annual Burden Hours: 306. Estimated Average Burden Hours per Response: 2.0. Need For and Use of Information: As the Balancing Authority of the region, TVA must ensure the electrical grid is reliable. With the growth of Distributed Energy Resources (DER) on the distribution system, TVA and the Local Power Companies (LPCs) must work in tighter coordination to ensure the DER generation does not impact the reliability of the bulk electric system. To support this goal, TVA must understand the current distribution capabilities of the LPCs. Examples of capabilities include but are not limited to customer analytics, advanced asset management, advanced AMI, automated switching, DER monitoring & control, grid planning and voltage optimization. To ease access and completion, information will be submitted online. Once collected, the information will be reviewed by TVA staff and consultants to determine each LPC’s state of and plan for system modernization and will inform strategic investment roadmaps and implementation plans that are being developed as part of the Regional Grid Transformation initiative. Summary E:\FR\FM\02FEN1.SGM 02FEN1

Agencies

[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Notices]
[Pages 5930-5931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02144]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36560]


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

    On November 9, 2021, BNSF Railway Company (BNSF) filed a petition 
under 49 U.S.C. 10502 seeking exemption from the prior approval 
requirements of 49 U.S.C. 11323-25 for BNSF to lease from Union Pacific 
Railroad Company (UP) approximately 25 miles of rail line extending 
from Sterling, Colo., near UP milepost 56.71, to Union, Colo., near UP 
milepost 81.1, on UP's Julesburg Subdivision (the Line).\1\
---------------------------------------------------------------------------

    \1\ An executed, redacted version of the lease agreement was 
filed with the petition for exemption. An unredacted version was 
submitted to the Board under seal along with a motion for protective 
order, which was granted by decision served on November 24, 2021.
---------------------------------------------------------------------------

    The petition explains that BNSF and its predecessors have operated 
over the Line since 1900, and that, concurrently with the petition, 
BNSF filed a verified notice of exemption pursuant to 49 CFR 
1180.2(d)(7) pertaining to a trackage rights agreement to supersede the 
agreement that had been in effect since 1951. (Pet. 2.) \2\ According 
to the petition, BNSF and UP have agreed to enter into a lease that 
would modify certain roles and responsibilities set forth in the new 
trackage rights agreement; in particular, the lease would ``allow BNSF 
to occupy UP's property for the purposes of maintenance, construction, 
repair, and renewal of the track and appurtenant structures and 
facilities on the Line.'' (Pet. 2.) \3\ BNSF states that by permitting 
maintenance responsibilities to shift to BNSF, the sole user of the 
Line, the lease will streamline maintenance activity and produce more 
efficient rail operations. (Pet. 2.) According to BNSF, the lease 
transaction will have no adverse impact on commercial or operational 
access to the Line. (Id. at 5; see also id. at 6-7 (stating that the 
lease ``is simply intended to produce more efficient rail operations by 
streamlining the Line's maintenance activities'' and ``will have no 
adverse impact on the national, regional, or local rail industry'').) 
\4\
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    \2\ Notice of the trackage rights exemption was published in the 
Federal Register on November 24, 2021 (86 FR 67111), and the 
exemption took effect on December 9, 2021. See BNSF Ry.--Trackage 
Rts. Exemption--Union Pac. R.R., FD 36561 (STB served Nov. 24, 
2021).
    \3\ BNSF's reference to ``construction'' is in connection with 
the planned repair and maintenance of the existing Line. (See Pet. 
2.) 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.
    \4\ 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. (Pet. 7-8.)
---------------------------------------------------------------------------

    BNSF asserts that the Board has previously exempted similar lease 
agreements from the prior approval requirements of sections 11323-25 
pursuant to section 10502, and that the Board should grant this 
petition and exempt the lease for the same reasons. (Pet. 3.)

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

[[Page 5931]]

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 simply permit maintenance responsibilities 
for the Line to shift to BNSF, the sole user of the Line. As described 
in the petition, the lease is intended to streamline maintenance 
activity and would produce more efficient rail operations over the Line 
with no adverse competitive impacts. Therefore, the proposed 
transaction would promote a safe and efficient rail transportation 
system, (49 U.S.C. 10101(3)), foster sound economic conditions in 
transportation and ensure effective competition, (49 U.S.C. 10101(5)), 
encourage honest and efficient management, (49 U.S.C. 10101(9)), and 
promote energy conservation, (49 U.S.C. 10101(14)). Further, an 
exemption from the application process would expedite regulatory 
action, (49 U.S.C. 10101(2)), and reduce regulatory barriers to entry 
and exit, (49 U.S.C. 10101(7)). 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.\5\ 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 the 
petition, the transaction will have no adverse impact on commercial or 
operational access to the Line. (See Pet. 5 (noting that the lease 
agreement specifically states that nothing contained in the lease would 
``amend, change or supersede the commercial access . . . terms as 
provided for in the Trackage Rights Agreement'').) BNSF states that it 
will continue to provide common carrier service to shippers over the 
Line and that there will be no material change in the service provided 
to shippers, because the lease simply shifts the Line's maintenance 
responsibilities to BNSF, the sole user of the Line. (Id. at 6.) 
Indeed, the lease transaction should benefit shippers by producing more 
efficient rail operations by streamlining the Line's maintenance 
activities. Moreover, no shippers or other parties have filed any 
objections to the proposed transaction.
---------------------------------------------------------------------------

    \5\ 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).
---------------------------------------------------------------------------

    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).
    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 February 2, 2022.
    3. The exemption will become effective on March 4, 2022.
    4. Petitions to stay must be filed by February 14, 2022.
    5. Petitions for reconsideration and petitions to reopen must be 
filed by February 22, 2022.

    Decided: January 25, 2022.

    By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and 
Schultz.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2022-02144 Filed 2-1-22; 8:45 am]
BILLING CODE 4915-01-P