2010-5587. Union Pacific Railroad Company-Temporary Trackage Rights Exemption-BNSF Railway Company

AGENCY:

Surface Transportation Board, DOT.

ACTION:

Partial revocation of exemption.

SUMMARY:

Under 49 U.S.C. 10502, the Board revokes the class exemption as it pertains to the trackage rights described in STB Finance Docket No. 34554 (Sub-No. 12) ^[1] to permit the trackage rights to expire on or about December 18, 2010, in accordance with the agreement of the parties,^[2] subject to the employee protective conditions set forth in Oregon Short Line R. Co.—Abandonment—Goshen, 360 I.C.C. 91 (1979).

DATES:

This exemption will be effective on April 14, 2010. Petitions to stay must be filed by March 25, 2010. Petitions for reconsideration must be filed by April 5, 2010.

ADDRESSES:

Send an original and 10 copies of all pleadings, referring to STB Finance Docket No. 34554 (Sub-No. 13) to: Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on UP's representative: Mack H. Shumate, Jr., Senior General Attorney, 101 North Wacker Drive, Room #1920, Chicago, IL 60606.

FOR FURTHER INFORMATION CONTACT:

Joseph H. Dettmar, [phone]. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Additional information is contained in the Board's decision. Board decisions and notices are available on our Web site at http://www.stb.dot.gov.

Decided: March 8, 2010.

By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Nottingham.

Jeffrey Herzig,

Clearance Clerk.

Footnotes

1.  In that docket, on December 18, 2009, UP filed a verified notice of exemption under the Board's class exemption procedures at 49 CFR 1180.2(d)(7). The notice covered the agreement by BNSF Railway Company (BNSF) to extend to December 18, 2010, the expiration date of the local trackage rights granted to UP over BNSF's line of railroad extending from BNSF milepost 579.3 near Mill Creek, OK, to BNSF milepost 631.1 near Joe Junction, TX, a distance of approximately 52 miles. UP submits that while the trackage rights are only temporary rights, because they are “local” rather than “overhead” rights, they do not qualify for the Board's class exemption for temporary trackage rights under 49 CFR 1180.2(d)(8). See Union Pacific Railroad Company—Temporary Trackage Rights Exemption—BNSF Railway Company, STB Finance Docket No. 34554 (Sub-No. 12) (STB served Dec. 31, 2009).

2.  The trackage rights were originally granted in Union Pacific Railroad Company—Temporary Trackage Rights Exemption—The Burlington Northern and Santa Fe Railway Company, STB Finance Docket No. 34554 (STB served Oct. 7, 2004). Subsequently, the parties filed several notices of exemption based on their agreements to extend expiration dates of the same trackage rights. See STB Finance Docket No. 34554 (Sub-No. 2) (decision served February 11, 2005); STB Finance Docket No. 34554 (Sub-No. 4) (decision served March 3, 2006); STB Finance Docket No. 34554 (Sub-No. 6) (decision served January 12, 2007); STB Finance Docket No. 34554 (Sub-No. 8) (decision served January 4, 2008); and STB Finance Docket No. 34554 (Sub-No. 10) (decision served January 8, 2009). Because the original and subsequent trackage rights notices were filed under the class exemption at 49 CFR 1180.2(d)(7), under which trackage rights normally remain effective indefinitely, in each instance the Board granted partial revocation of the class exemption to permit the authorized trackage rights to expire. See STB Finance Docket No. 34554 (Sub-No. 1) (decision served November 24, 2004); STB Finance Docket No. 34554 (Sub-No. 3) (decision served March 25, 2005); STB Finance Docket No. 34554 (Sub-No. 5) (decision served March 23, 2006); STB Finance Docket No. 34554 (Sub-No. 7) (decision served March 13, 2007); STB Finance Docket No. 34554 (Sub-No. 9) (decision served March 20, 2008); and STB Finance Docket No. 34554 (Sub-No. 11) (decision served March 11, 2009). At the time of the extension authorized in STB Finance Docket No. 34554 (Sub-No. 10), the parties anticipated that the authority to allow the rights to expire would be exercised by December 31, 2009. However, the parties filed on December 18, 2009, in STB Finance Docket No. 34554 (Sub-No. 12) their most recent notice of exemption so that the trackage rights could be extended to December 18, 2010, and in STB Finance Docket No. 34554 (Sub-No. 13) their latest petition to partially revoke the class exemption to permit expiration, which we are addressing here.