Union Pacific Railroad Company-Operation Exemption-in Tooele County, Utah, 12407-12409 [2024-03305]

Download as PDF Federal Register / Vol. 89, No. 33 / Friday, February 16, 2024 / Notices SMALL BUSINESS ADMINISTRATION [Disaster Declaration #20188 and #20189; MICHIGAN Disaster Number MI–20008] Presidential Declaration of a Major Disaster for the State of Michigan U.S. Small Business Administration. ACTION: Notice. AGENCY: This is a Notice of the Presidential declaration of a major disaster for the State of Michigan (FEMA–4757–DR), dated 02/08/2024. Incident: Severe Storms, Tornadoes, and Flooding. Incident Period: 08/24/2023 through 08/26/2023. DATES: Issued on 02/08/2024. Physical Loan Application Deadline Date: 04/08/2024. Economic Injury (EIDL) Loan Application Deadline Date: 11/08/2024. ADDRESSES: Visit the MySBA Loan Portal at https://lending.sba.gov to apply for a disaster assistance loan. FOR FURTHER INFORMATION CONTACT: Alan Escobar, Office of Disaster Recovery & Resilience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205–6734. SUPPLEMENTARY INFORMATION: Notice is hereby given that as a result of the President’s major disaster declaration on 02/08/2024, applications for disaster loans may be submitted online using the MySBA Loan Portal https://lending.sba. gov or other locally announced locations. Please contact the SBA disaster assistance customer service center by email at disastercustomerservice@sba.gov or by phone at 1–800–659–2955 for further assistance. The following areas have been determined to be adversely affected by the disaster: Primary Counties (Physical Damage and Economic Injury Loans): Eaton, Ingham, Ionia, Kent, Livingston, Macomb, Monroe, Oakland, Wayne. Contiguous Counties (Economic Injury Loans Only): Michigan: Allegan, Barry, Calhoun, Clinton, Genesee, Gratiot, Jackson, Lapeer, Lenawee, Montcalm, Muskegon, Newaygo, Ottawa, Shiawassee, St. Clair, Washtenaw Ohio: Lucas The Interest Rates are: lotter on DSK11XQN23PROD with NOTICES1 SUMMARY: For Physical Damage: Homeowners with Credit Available Elsewhere ...................... Homeowners without Credit Available Elsewhere .............. VerDate Sep<11>2014 17:24 Feb 15, 2024 5.000 2.500 Jkt 262001 Businesses with Credit Available Elsewhere ...................... Businesses without Credit Available Elsewhere .............. Non-Profit Organizations with Credit Available Elsewhere ... Non-Profit Organizations without Credit Available Elsewhere ..................................... For Economic Injury: Business and Small Agricultural Cooperatives without Credit Available Elsewhere .............. Non-Profit Organizations without Credit Available Elsewhere ..................................... 8.000 4.000 2.375 2.375 4.000 2.375 The number assigned to this disaster for physical damage is 201886 and for economic injury is 201890. (Catalog of Federal Domestic Assistance Number 59008) Francisco Sa´nchez, Jr., Associate Administrator, Office of Disaster Recovery & Resilience. [FR Doc. 2024–03307 Filed 2–15–24; 8:45 am] BILLING CODE 8026–09–P DEPARTMENT OF STATE [Public Notice: 12331] U.S. Department of State Advisory Committee on Private International Law: Notice of Annual Meeting The Department of State’s Advisory Committee on Private International Law (ACPIL) will hold its annual meeting in hybrid format on Thursday, March 21, 2024, at The George Washington University (GWU) Law School, Faculty Conference Center, Washington, DC 20052. The program is scheduled to run from 9 a.m. to 4 p.m. The meeting will include discussions on international dispute resolution, family law, and other international commercial matters. It will also address private international law developments over the last year and possible future work. If time allows, other topics of interest may be discussed. Time and Place: The meeting will take place on Thursday, March 21, 2024, GWU Law School, Faculty Conference Center, 716 20th Street NW, Washington, DC 20052 from 9:00 a.m. to 4:00 p.m. Those who cannot participate by either in-person or virtual format but wish to comment are welcome to do so by email to Joseph Khawam at PIL@ state.gov. Public Participation: This meeting is open to the public. There is currently no COVID masking mandate, but anyone is free to wear a mask. Priority for in-person seating will be given to members of the Advisory PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 12407 Committee, and remaining seating will be reserved based upon when persons contact pil@state.gov. Those persons planning to attend should provide their name, affiliation, and contact information to pil@state.gov no later than March 7, 2024, stating in their response whether they will attend inperson or virtually. Room information for in-person attendance and a Zoom link for virtual attendance will be provided following registration. When registering, please indicate whether attending in-person or via Zoom. If attending virtually, please indicate if you require captioning. Persons needing reasonable accommodation should notify pil@ state.gov not later than March 14, 2024. Requests made after that date will be considered but might not be able to be fulfilled. A more detailed agenda will be available to registered participants in advance of the meeting. Persons who wish to have their views considered are encouraged, but not required, to submit written comments in advance. Comments should be sent electronically to pil@state.gov. Joseph N. Khawam, Attorney-Adviser, Executive Director of ACPIL, Office of Private International Law, Office of the Legal Adviser, Department of State. [FR Doc. 2024–03238 Filed 2–15–24; 8:45 am] BILLING CODE 4710–08–P SURFACE TRANSPORTATION BOARD [Docket No. FD 36741] Union Pacific Railroad Company— Operation Exemption—in Tooele County, Utah On November 21, 2023, Union Pacific Railroad Company (UP) filed a petition under 49 U.S.C. 10502(a) for exemption from the prior approval requirements of 49 U.S.C. 10901 to reinstitute common carrier service over an approximately 1.04-mile portion of rail line known as the Warner Branch, between milepost 0.0 connecting to the Shafter Subdivision and milepost 1.04, in Tooele County, Utah (the Line). On December 11, 2023, BNSF Railway Company (BNSF) moved for the Board to instead institute a proceeding under 49 U.S.C. 10502(b) and set a procedural schedule for consideration of UP’s petition. As discussed below, the Board will grant UP’s petition and deny BNSF’s motion. Background According to UP, the Warner Branch was formerly owned and operated by its E:\FR\FM\16FEN1.SGM 16FEN1 12408 Federal Register / Vol. 89, No. 33 / Friday, February 16, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 predecessor, Western Pacific Railroad Company (WP). (UP Pet. 2.) In 1983, WP sought and received authority to abandon the Warner Branch in Western Pacific Railroad—Abandonment Exemption—in Tooele County, Utah, FD 30208 (ICC served Aug. 9, 1983). (UP Pet. 2.) UP says that it is seeking to reinstitute common carrier service over the Line as part of a transaction with Savage Tooele Railroad Company (STR), in which UP agreed to sell STR the right-of-way and track assets between milepost 1.04 and milepost 6.94 of the Warner Branch so STR could construct approximately 11 miles of new rail line connecting to the Warner Branch to serve shippers located at Lakeview Business Park and connect to the national rail network.1 (UP Pet. 2–3). UP further states that it did not want to sell the Line to STR because it has been using it as ancillary track to support operations on the Shafter Subdivision. (Id. at 3.) In its December 11 motion, BNSF states that, as a condition of the Board’s 1996 approval of the merger between UP and the Southern Pacific Rail Corporation (SP),2 it was granted trackage rights to operate over the Shafter Subdivision and the right to interchange with any new short line railroad connecting to the Shafter Subdivision. (BNSF Mot. 1.) BNSF argues that it appears UP structured its transaction with STR in such a way as to establish a physical barrier between the Shafter Subdivision and STR so that BNSF cannot interchange with STR, as BNSF asserts it is entitled to do under the UP/SP merger conditions and the Restated and Amended Settlement Agreement (RASA) between UP and BNSF, which the Board approved in the context of its review of the merger transaction. (Id. at 1–2.) 1 STR’s petition to construct the new line is currently before the Board in Savage Tooele Railroad—Construction & Operation Exemption— Line of Railroad in Tooele County, Utah, Docket No. FD 36616. STR had originally indicated that either UP would retain ownership of the Line for use as ancillary track or STR would acquire the Line and reinstate common carrier service over it. STR Pet. 4–5, June 30, 2022, Savage Tooele R.R., FD 36616. After the Board questioned how STR’s proposed line would connect (and remain connected) to the national rail network should UP continue to retain the Line as ancillary track under 49 U.S.C. 10906, and requested supplemental information, see Savage Tooele R.R.—Construction & Operation Exemption—Line of R.R. in Tooele Cnty., Utah, FD 36616, slip op. at 2 (STB served Aug. 24, 2022), STR confirmed that UP decided to retain ownership of the Line and petition to reinstate common carrier operating authority over this segment, STR Verified Suppl. at 1, Sept. 20, 2022, Savage Tooele R.R., FD 36616. 2 See Union Pac. Corp.—Control & Merger—S. Pac. Rail Corp., 1 S.T.B. 233, 419 (1996). VerDate Sep<11>2014 17:24 Feb 15, 2024 Jkt 262001 UP and STR separately replied to BNSF’s motion on January 10, 2024. UP asks the Board to deny BNSF’s motion, asserting that it has not violated BNSF’s rights and that BNSF can demand arbitration under the RASA’s arbitration provision if BNSF believes its rights were violated by UP. (UP Reply 4–5.) STR does not take a position on the merits of BNSF’s motion but asks the Board to deny the motion because considering BNSF’s claim and the relief it seeks in the context of this exemption proceeding would significantly prolong the proceeding and delay the rail construction project, thereby delaying STR’s ability to meet the needs of rail shippers locating in Lakeview Business Park. (STR Reply 4.) Discussion and Conclusions BNSF’s Motion. BNSF asks the Board to institute a proceeding under 49 U.S.C. 10502(b) and set a procedural schedule for consideration of UP’s petition. BNSF maintains that UP structured its transaction with STR and acted with respect to the Line so that BNSF cannot interchange with STR, thus violating its rights under the RASA. (BNSF Mot. 1–2.) According to BNSF, ‘‘UP’s action is consistent with other recent attempts by UP to frustrate the competition-preserving conditions imposed by the Board in connection with its approval of the UP/SP merger.’’ (Id. at 2.) UP’s effort to seek common carrier operating authority over the Line is separate and distinct from BNSF’s claimed right to access STR and its future shippers via the Line under the terms of the RASA. See Union Pac. R.R.—Operation Exemption—in Bexar & Wilson Cntys., Tex., FD 35776, slip op. at 3–4 (STB served Dec. 24, 2013). BNSF itself has stated that it ‘‘believes that, regardless of the ownership or regulatory status of the [Line], BNSF should have the right to interchange with STR once the new short[ ]line begins operating, consistent with STR’s stated intent and UP’s obligations under RASA Section 8(k) and the UP/SP merger conditions.’’ (BNSF Mot. 3.) Granting UP the authority to reinstitute common carrier service over the Line does not preclude BNSF from seeking, through either arbitration or a new, separate Board proceeding, a determination that BNSF is entitled to access STR via the Line. Moreover, granting UP common carrier operating authority over the Line will help avoid delay to STR’s project and ensure that its business park shippers are connected to the national rail network. The Board notes that, in any future proceeding, whether before an arbitrator or the PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 Board, this decision shall not be construed as permitting UP to defeat any rights that BNSF may have had to interchange with STR or serve shippers at Lakeview Business Park had the exemption not become effective. BNSF’s motion to institute a proceeding and set a procedural schedule will therefore be denied. UP’s Petition for Exemption. Under 49 U.S.C. 10901, a rail carrier may not reinstitute operations over abandoned rail line without the prior approval of the Board. However, under 49 U.S.C. 10502(a), the Board shall, to the maximum extent consistent with 49 U.S.C. subtitle IV, part A, exempt a transaction or service from regulation upon finding that: (1) regulation is not necessary to carry out the rail transportation policy of 49 U.S.C. 10101 (RTP); 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. 10901 is not necessary to carry out the RTP. Reinstitution of service on the Line would facilitate rail transportation to tenants of the Lakeview Business Park and thus promote the RTP by minimizing the need for federal regulatory control (49 U.S.C. 10101(2)), ensuring the development and continuation of a sound rail transportation system with effective competition among rail carriers and with other modes, to meet the needs of the public (49 U.S.C. 10101(4)), reducing regulatory entry and exit barriers (49 U.S.C. 10101(7)), and providing for the expeditious handling and resolution of proceedings (49 U.S.C. 10101(15)). Other aspects of the RTP would not be adversely affected. Regulation of this transaction is not needed to protect shippers from the abuse of market power. Rather, reinstitution of service is a step toward providing the shippers at Lakeview Business Park with a rail transportation option that otherwise would not exist. See Savage Tooele R.R.—Constr. & Operation Exemption—Line of R.R. in Tooele Cnty., Utah, FD 36616, slip op. at 2 (STB served Aug. 24, 2022) (‘‘[I]t is not clear how STR’s proposed line will connect (and remain connected) to the national rail network’’ should UP ‘‘retain the right-of-way between milepost 0.0 and milepost 1.04 to use as ancillary track. . . .’’). And, as noted above, this decision does not affect BNSF’s rights under RASA Section 8(k) and the UP/SP merger conditions. Moreover, the transaction is limited in E:\FR\FM\16FEN1.SGM 16FEN1 Federal Register / Vol. 89, No. 33 / Friday, February 16, 2024 / Notices scope since the Line is only 1.04 miles long and reinstitution of common carrier service will merely connect STR’s proposed line to the interstate rail network. Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. However, labor protective conditions may not be imposed on transactions under 49 U.S.C. 10901. See 49 U.S.C. 10901(c). UP states that the proposed action will not result in changes to existing rail carrier operations or existing operations on the Line that would exceed the applicable thresholds of 49 CFR 1105.7(e)(4) or (5). Therefore, under 49 CFR 1105.6(c), this transaction is categorically excluded from environmental review. Similarly, under 49 CFR 1105.8(b)(1), no historic report is required because the subject transaction is for reinstituted rail service, UP has indicated no plans to alter railroad properties 50 years old or older, and any abandonment of service would be subject to Board jurisdiction. It is ordered: 1. BNSF’s motion to institute a proceeding and set a procedural schedule is denied. 2. Under 49 U.S.C. 10502, the Board exempts UP’s reinstitution of service over the Line from the prior approval requirements of 49 U.S.C. 10901. 3. Notice of the exemption will be published in the Federal Register. 4. The exemption will be effective on March 14, 2024. 5. Petitions to stay must be filed by February 23, 2024. Petitions for reconsideration and petitions to reopen must be filed by March 4, 2024. 6. This decision is effective on its service date. By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and Schultz. Jeffrey Herzig, Clearance Clerk. [FR Doc. 2024–03305 Filed 2–15–24; 8:45 am] BILLING CODE 4915–01–P DEPARTMENT OF TRANSPORTATION lotter on DSK11XQN23PROD with NOTICES1 Federal Highway Administration Notice of Final Federal Agency Actions on Proposed Highway in California Federal Highway Administration (FHWA), Department of Transportation (DOT). ACTION: Notice of limitation on claims for judicial review of actions by the AGENCY: VerDate Sep<11>2014 17:24 Feb 15, 2024 Jkt 262001 California Department of Transportation (Caltrans). The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans that are final. The actions relate to a proposed highway project on State Route 65, State Route 198 and State Route 245 from post miles 29.0–R30.4, R19.5–20.0 and 0.0–0.2 in Tulare County, State of California. Those actions grant licenses, permits, and approvals for the project. SUMMARY: By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before July 15, 2024. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies. DATES: For Caltrans: Jason Adair, Acting Senior Environmental Scientist, 2015 East Shields Avenue, Suite 100, Fresno, California 93726, (559) 383–5939, jason.adair@dot.ca.gov, Mon.–Fri. 9:00 a.m.–5:00 p.m. SUPPLEMENTARY INFORMATION: Effective July 1, 2007, the Federal Highway Administration (FHWA) assigned, and the California Department of Transportation (Caltrans) assumed, environmental responsibilities for this project pursuant to 23 U.S.C. 327. Notice is hereby given that the Caltrans, has taken final agency actions subject to 23 U.S.C. 139(l)(1) by issuing licenses, permits, and approvals for the following highway project in the State of California: Caltrans proposes to make operational improvements on State Route 65 from post miles 29.0 to R30.4, State Route 198 from post miles R19.5 to 20.0, and State Route 245 from post miles 0.0 to 0.2 in Tulare County. The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Assessment(FEA)/ Finding of No Significant Impact (FONSI) for the project, approved on December 29, 2023, and in other documents in the project records. The FEA, FONSI, and other project records are available by contacting Caltrans at the address provided above. This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to: FOR FURTHER INFORMATION CONTACT: PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 12409 1. General: National Environmental Policy Act of 1969 (NEPA) [42 U.S.C. 4321–4335]. 2. Air: Clean Air Act [23 U.S.C. 109(j) and 42 U.S.C. 7521(a)]. 3. Wildlife: Federal Endangered Species Act [16 U.S.C. 1531–1543]; Fish and Wildlife Coordination Act [16 U.S.C. 661–666(C); Migratory Bird Treaty Act [16 U.S.C. 760c–760g]. 4. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f) et seq.]. 5. Wetlands and Water Resources: Clean Water Act [33 U.S.C. 1344]. 6. Hazardous Waste: Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C. 103]; Resource Conservation and Recovery Act of 1976 [42 U.S.C. 6901 et seq.]. 7. Social and Economic: NEPA implementation [23 U.S.C. 109(h)]; Civil Rights Act of 1964 [42 U.S.C. 2000(d)– 2000(d)(1)]. 8. Executive Orders: E.O. 12898 Federal Actions to Address Environmental Justice and Low-Income Populations; E.O. 11988 Floodplain Management. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.) Authority: 23 U.S.C. 139(l)(1). Antonio Johnson, Director of Planning, Environmental and Right of Way, Federal Highway Administration, California Division. [FR Doc. 2024–03229 Filed 2–15–24; 8:45 am] BILLING CODE 4910–RY–P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA–2024–0062] Agency Information Collection Activities; Renewal of an Approved Information Collection: Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT). ACTION: Notice and request for comments. AGENCY: In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit SUMMARY: E:\FR\FM\16FEN1.SGM 16FEN1

Agencies

[Federal Register Volume 89, Number 33 (Friday, February 16, 2024)]
[Notices]
[Pages 12407-12409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03305]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36741]


Union Pacific Railroad Company--Operation Exemption--in Tooele 
County, Utah

    On November 21, 2023, Union Pacific Railroad Company (UP) filed a 
petition under 49 U.S.C. 10502(a) for exemption from the prior approval 
requirements of 49 U.S.C. 10901 to reinstitute common carrier service 
over an approximately 1.04-mile portion of rail line known as the 
Warner Branch, between milepost 0.0 connecting to the Shafter 
Subdivision and milepost 1.04, in Tooele County, Utah (the Line). On 
December 11, 2023, BNSF Railway Company (BNSF) moved for the Board to 
instead institute a proceeding under 49 U.S.C. 10502(b) and set a 
procedural schedule for consideration of UP's petition. As discussed 
below, the Board will grant UP's petition and deny BNSF's motion.

Background

    According to UP, the Warner Branch was formerly owned and operated 
by its

[[Page 12408]]

predecessor, Western Pacific Railroad Company (WP). (UP Pet. 2.) In 
1983, WP sought and received authority to abandon the Warner Branch in 
Western Pacific Railroad--Abandonment Exemption--in Tooele County, 
Utah, FD 30208 (ICC served Aug. 9, 1983). (UP Pet. 2.) UP says that it 
is seeking to reinstitute common carrier service over the Line as part 
of a transaction with Savage Tooele Railroad Company (STR), in which UP 
agreed to sell STR the right-of-way and track assets between milepost 
1.04 and milepost 6.94 of the Warner Branch so STR could construct 
approximately 11 miles of new rail line connecting to the Warner Branch 
to serve shippers located at Lakeview Business Park and connect to the 
national rail network.\1\ (UP Pet. 2-3). UP further states that it did 
not want to sell the Line to STR because it has been using it as 
ancillary track to support operations on the Shafter Subdivision. (Id. 
at 3.)
---------------------------------------------------------------------------

    \1\ STR's petition to construct the new line is currently before 
the Board in Savage Tooele Railroad--Construction & Operation 
Exemption--Line of Railroad in Tooele County, Utah, Docket No. FD 
36616. STR had originally indicated that either UP would retain 
ownership of the Line for use as ancillary track or STR would 
acquire the Line and reinstate common carrier service over it. STR 
Pet. 4-5, June 30, 2022, Savage Tooele R.R., FD 36616. After the 
Board questioned how STR's proposed line would connect (and remain 
connected) to the national rail network should UP continue to retain 
the Line as ancillary track under 49 U.S.C. 10906, and requested 
supplemental information, see Savage Tooele R.R.--Construction & 
Operation Exemption--Line of R.R. in Tooele Cnty., Utah, FD 36616, 
slip op. at 2 (STB served Aug. 24, 2022), STR confirmed that UP 
decided to retain ownership of the Line and petition to reinstate 
common carrier operating authority over this segment, STR Verified 
Suppl. at 1, Sept. 20, 2022, Savage Tooele R.R., FD 36616.
---------------------------------------------------------------------------

    In its December 11 motion, BNSF states that, as a condition of the 
Board's 1996 approval of the merger between UP and the Southern Pacific 
Rail Corporation (SP),\2\ it was granted trackage rights to operate 
over the Shafter Subdivision and the right to interchange with any new 
short line railroad connecting to the Shafter Subdivision. (BNSF Mot. 
1.) BNSF argues that it appears UP structured its transaction with STR 
in such a way as to establish a physical barrier between the Shafter 
Subdivision and STR so that BNSF cannot interchange with STR, as BNSF 
asserts it is entitled to do under the UP/SP merger conditions and the 
Restated and Amended Settlement Agreement (RASA) between UP and BNSF, 
which the Board approved in the context of its review of the merger 
transaction. (Id. at 1-2.)
---------------------------------------------------------------------------

    \2\ See Union Pac. Corp.--Control & Merger--S. Pac. Rail Corp., 
1 S.T.B. 233, 419 (1996).
---------------------------------------------------------------------------

    UP and STR separately replied to BNSF's motion on January 10, 2024. 
UP asks the Board to deny BNSF's motion, asserting that it has not 
violated BNSF's rights and that BNSF can demand arbitration under the 
RASA's arbitration provision if BNSF believes its rights were violated 
by UP. (UP Reply 4-5.) STR does not take a position on the merits of 
BNSF's motion but asks the Board to deny the motion because considering 
BNSF's claim and the relief it seeks in the context of this exemption 
proceeding would significantly prolong the proceeding and delay the 
rail construction project, thereby delaying STR's ability to meet the 
needs of rail shippers locating in Lakeview Business Park. (STR Reply 
4.)

Discussion and Conclusions

    BNSF's Motion. BNSF asks the Board to institute a proceeding under 
49 U.S.C. 10502(b) and set a procedural schedule for consideration of 
UP's petition. BNSF maintains that UP structured its transaction with 
STR and acted with respect to the Line so that BNSF cannot interchange 
with STR, thus violating its rights under the RASA. (BNSF Mot. 1-2.) 
According to BNSF, ``UP's action is consistent with other recent 
attempts by UP to frustrate the competition-preserving conditions 
imposed by the Board in connection with its approval of the UP/SP 
merger.'' (Id. at 2.)
    UP's effort to seek common carrier operating authority over the 
Line is separate and distinct from BNSF's claimed right to access STR 
and its future shippers via the Line under the terms of the RASA. See 
Union Pac. R.R.--Operation Exemption--in Bexar & Wilson Cntys., Tex., 
FD 35776, slip op. at 3-4 (STB served Dec. 24, 2013). BNSF itself has 
stated that it ``believes that, regardless of the ownership or 
regulatory status of the [Line], BNSF should have the right to 
interchange with STR once the new short[ ]line begins operating, 
consistent with STR's stated intent and UP's obligations under RASA 
Section 8(k) and the UP/SP merger conditions.'' (BNSF Mot. 3.) Granting 
UP the authority to reinstitute common carrier service over the Line 
does not preclude BNSF from seeking, through either arbitration or a 
new, separate Board proceeding, a determination that BNSF is entitled 
to access STR via the Line. Moreover, granting UP common carrier 
operating authority over the Line will help avoid delay to STR's 
project and ensure that its business park shippers are connected to the 
national rail network. The Board notes that, in any future proceeding, 
whether before an arbitrator or the Board, this decision shall not be 
construed as permitting UP to defeat any rights that BNSF may have had 
to interchange with STR or serve shippers at Lakeview Business Park had 
the exemption not become effective.
    BNSF's motion to institute a proceeding and set a procedural 
schedule will therefore be denied.
    UP's Petition for Exemption. Under 49 U.S.C. 10901, a rail carrier 
may not reinstitute operations over abandoned rail line without the 
prior approval of the Board. However, under 49 U.S.C. 10502(a), the 
Board shall, to the maximum extent consistent with 49 U.S.C. subtitle 
IV, part A, exempt a transaction or service from regulation upon 
finding that: (1) regulation is not necessary to carry out the rail 
transportation policy of 49 U.S.C. 10101 (RTP); 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. 10901 is not 
necessary to carry out the RTP. Reinstitution of service on the Line 
would facilitate rail transportation to tenants of the Lakeview 
Business Park and thus promote the RTP by minimizing the need for 
federal regulatory control (49 U.S.C. 10101(2)), ensuring the 
development and continuation of a sound rail transportation system with 
effective competition among rail carriers and with other modes, to meet 
the needs of the public (49 U.S.C. 10101(4)), reducing regulatory entry 
and exit barriers (49 U.S.C. 10101(7)), and providing for the 
expeditious handling and resolution of proceedings (49 U.S.C. 
10101(15)). Other aspects of the RTP would not be adversely affected.
    Regulation of this transaction is not needed to protect shippers 
from the abuse of market power. Rather, reinstitution of service is a 
step toward providing the shippers at Lakeview Business Park with a 
rail transportation option that otherwise would not exist. See Savage 
Tooele R.R.--Constr. & Operation Exemption--Line of R.R. in Tooele 
Cnty., Utah, FD 36616, slip op. at 2 (STB served Aug. 24, 2022) (``[I]t 
is not clear how STR's proposed line will connect (and remain 
connected) to the national rail network'' should UP ``retain the right-
of-way between milepost 0.0 and milepost 1.04 to use as ancillary 
track. . . .''). And, as noted above, this decision does not affect 
BNSF's rights under RASA Section 8(k) and the UP/SP merger conditions. 
Moreover, the transaction is limited in

[[Page 12409]]

scope since the Line is only 1.04 miles long and reinstitution of 
common carrier service will merely connect STR's proposed line to the 
interstate rail network.
    Under 49 U.S.C. 10502(g), the Board may not use its exemption 
authority to relieve a rail carrier of its statutory obligation to 
protect the interests of its employees. However, labor protective 
conditions may not be imposed on transactions under 49 U.S.C. 10901. 
See 49 U.S.C. 10901(c).
    UP states that the proposed action will not result in changes to 
existing rail carrier operations or existing operations on the Line 
that would exceed the applicable thresholds of 49 CFR 1105.7(e)(4) or 
(5). Therefore, under 49 CFR 1105.6(c), this transaction is 
categorically excluded from environmental review. Similarly, under 49 
CFR 1105.8(b)(1), no historic report is required because the subject 
transaction is for reinstituted rail service, UP has indicated no plans 
to alter railroad properties 50 years old or older, and any abandonment 
of service would be subject to Board jurisdiction.
    It is ordered:
    1. BNSF's motion to institute a proceeding and set a procedural 
schedule is denied.
    2. Under 49 U.S.C. 10502, the Board exempts UP's reinstitution of 
service over the Line from the prior approval requirements of 49 U.S.C. 
10901.
    3. Notice of the exemption will be published in the Federal 
Register.
    4. The exemption will be effective on March 14, 2024.
    5. Petitions to stay must be filed by February 23, 2024. Petitions 
for reconsideration and petitions to reopen must be filed by March 4, 
2024.
    6. This decision is effective on its service date.
    By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and 
Schultz.

Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2024-03305 Filed 2-15-24; 8:45 am]
BILLING CODE 4915-01-P
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