BNSF Railway Company-Petition for Declaratory Order, 58711-58712 [E8-23616]

Share |
Download as PDF
Loading PDF...
Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Notices By the Board, David M. Konschnik, Director, Office of Proceedings. Anne K. Quinlan, Acting Secretary. [FR Doc. E8–23416 Filed 10–6–08; 8:45 am] BILLING CODE 4915–01–P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 35164] BNSF Railway Company—Petition for Declaratory Order Surface Transportation Board. Institution of declaratory order proceeding; request for comments. AGENCY: mstockstill on PROD1PC66 with NOTICES ACTION: SUMMARY: In response to a petition filed by BNSF Railway Company (BNSF) on July 15, 2008, the Board is instituting a declaratory order proceeding under 49 U.S.C. 721 and 5 U.S.C. 554(e) to determine whether what BNSF characterizes as two track relocation projects in Oklahoma City, OK, are subject to the Board’s jurisdiction and require prior Board approval. One reply in opposition to the petition and three letters in support of the petition have been filed. The Board seeks public comments on this matter. DATES: Supplemental evidence from BNSF is due by October 17, 2008. Replies are due by November 6, 2008. ADDRESSES: Send an original and 10 copies of any comments, referring to STB Finance Docket No. 35164, to: Surface Transportation Board, 395 E Street, SW., Washington, DC 20423– 0001. In addition, send one copy of comments to BNSF’s representative, Kristy Clark, 2500 Lou Menk Drive, Fort Worth, TX 76131–2828, and one copy to Edwin Kessler, 1510 Rosemont Drive, Norman, OK 73072. FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 245–0395. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at: 1– 800–877–8339]. SUPPLEMENTARY INFORMATION: BNSF’s petition for declaratory order concerns what it now characterizes as a project to relocate two track segments of its Chickasha Subdivision between milepost 541.69 and milepost 539.96 to facilitate the Oklahoma City I–40 Crosstown Relocation project.1 1 These track segments were previously the subject of a notice of exemption in BNSF Railway Company—Abandonment Exemption—In Oklahoma County, OK, STB Docket No. AB–6 (SubNo. 430X), that was rejected in a Board decision served June 5, 2008. VerDate Aug<31>2005 18:23 Oct 06, 2008 Jkt 217001 Petitioner states that these two track segments must be relocated to make way for this major highway project. BNSF states that the segment of the Chickasha Subdivision between milepost 540.15 and milepost 541.69 (referred to as the middle segment) would be relocated by rerouting traffic over BNSF’s Packingtown Lead, which will have the same throughput capacity and operating speeds as the Chickasha Subdivision line. BNSF states that the portion of the Chickasha Subdivision between milepost 540.15 and milepost 539.96 (referred to as the eastern segment) would be relocated to the south.2 BNSF adds that a contractor for the Oklahoma Department of Transportation (ODOT) is constructing: (1) A new railroad bridge to elevate BNSF’s Red Rock Subdivision where it crosses the Chickasha Subdivision and where the new highway will be located, and (2) new industry tracks to connect the two shippers located adjacent to the eastern segment (Producers Cooperative Oil Mill (Producers) and Mid-States Wholesale Lumber (Mid-States)) directly to BNSF’s Red Rock Subdivision north of the Chickasha Subdivision. BNSF argues that neither of these relocation projects will affect service to shippers or involve an extension into or an invasion of new territory, and that these projects are therefore outside of the Board’s jurisdiction, citing among other authorities Missouri Pac. R. Co. Trustee Construction, 282 I.C.C. 388 (1952); and City of Detroit v. Canadian National Ry. Co., et al., 9 I.C.C.2d 1208 (1993), aff’d sub nom. Detroit/Wayne County Port Authority v. ICC, 59 F.3d 1314 (D.C. Cir. 1995). BNSF requests expedited processing of this proceeding to allow the highway project to move forward. On August 4, 2008, ODOT submitted into the record a letter expressing support for an expedited declaratory ruling in favor of BNSF. ODOT also attached letters of support from Mick Cornett, Mayor of Oklahoma City, and the Greater Oklahoma City Chamber. On August 5, 2008, Edwin Kessler filed a reply to BNSF’s petition and a request for a procedural schedule, including a public hearing in Oklahoma City, OK.3 Mr. Kessler argues that BNSF has failed to demonstrate that its 2 BNSF states that it plans to file an individual exemption request or an application to abandon the western segment—the portion of the Chickasha Subdivision between milepost 541.69 and milepost 542.91—in the future. Therefore, the western segment is not at issue here. 3 The public hearing request will be denied. The Board believes that the record can be developed and the issues resolved on the basis of written submissions. PO 00000 Frm 00183 Fmt 4703 Sfmt 4703 58711 proposed actions would be mere relocations of track. Rather, Mr. Kessler argues that the relocation of these segments will deprive some shippers of service, particularly Boardman, Inc. (Boardman), and will allow BNSF to serve new markets. Mr. Kessler argues that BNSF needs Board authorization to: (1) Construct the new tracks and (2) remove the two crossing diamonds on the eastern segment that enable it to reach two other shippers (Producers CoOp Oil Mill and Mid-States Lumber Company). On August 25, 2008, BNSF filed a response to Mr. Kessler’s arguments in which it challenged several of Mr. Kessler’s factual assertions.4 BNSF also renewed its request for expedited Board handling of this matter. On September 5, 2008, Mr. Kessler filed a reply to BNSF’s August 25, 2008 response and also filed a separate document labeled ‘‘Motion to Compel’’ and ‘‘Motion to Cease and Desist’’ asking that the Board compel BNSF to undertake certain actions. In these motions, Mr. Kessler alleges that, in late July 2008, a railroad car carrying his locomotive was delivered to BNSF for transport to Boardman’s facility, but that after reaching Oklahoma City some 19 days later, the car ultimately could not be delivered because the tracks leading to Boardman’s facility had been removed. Mr. Kessler provided no verified statement to support these allegations. On September 24, 2008, BNSF moved the Board to strike Mr. Kessler’s September 5 pleading because it is an impermissible reply to a reply, is not properly verified, and involves matters that are either premature or outside the scope of this proceeding. BNSF also calls Mr. Kessler’s locomotive shipment a ‘‘fraudulent ploy,’’ which BNSF is investigating. Under 5 U.S.C. 554(e), the Board has discretionary authority to issue a declaratory order to terminate a controversy or remove uncertainty. BNSF asserts that no Board jurisdiction is implicated here, while Mr. Kessler argues that these projects are in fact subject to the Board’s jurisdiction, as they would remove service to existing shippers and would allow BNSF to extend service into new territory. A 4 In that document, BNSF also withdrew an earlier request that the Board rule that the United States District Court for the Western District of Oklahoma was without jurisdiction to enjoin the two relocation projects. On August 14, 2008, the District Court issued an order granting BNSF’s motion to dismiss Kessler’s petition to enjoin BNSF for lack of jurisdiction. Edwin Kessler v. BNSF Railway Company and Oklahoma Department of Transportation, Case No. CIV–08–358–R (W.D. Okla. 2008). E:\FR\FM\07OCN1.SGM 07OCN1 mstockstill on PROD1PC66 with NOTICES 58712 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Notices declaratory order proceeding will be instituted in this proceeding to address these issues. To facilitate BNSF’s request for expedition, BNSF will be permitted to supplement its petition by October 17, 2008. Any person seeking to reply in support of, or in opposition to, BNSF’s position may submit written comments to the Board by November 6, 2008. Because there is already a substantial record in this proceeding, the parties are directed to focus their comments on the issue of whether these two planned projects are merely track relocations not requiring Board authorization or whether they would remove service to shippers and/or extend BNSF’s operations into new territory. Both the continued ability to serve Boardman and any specific new territory that could be served should be identified and addressed. Additionally, concerning service to shippers on the eastern segment, BNSF is specifically directed to submit a statement from ODOT confirming that its contractor is obligated to construct both a new railroad bridge to elevate the Red Rock Subdivision over the planned location of the new highway and new industry tracks to connect Producers and MidStates directly to the Red Rock Subdivision. In the meantime, Mr. Kessler has not shown that his requests for injunctive relief should be entertained in this declaratory order proceeding. Mr. Kessler says that, with the request for a locomotive shipment, Boardman was ‘‘testing’’ BNSF’s ability to serve Boardman.5 But Boardman is not before us complaining that a locomotive was not delivered, or that BNSF has failed to meet any reasonable request for service. Indeed, according to BNSF, Boardman refused delivery of the shipment by transload, explaining that the car was ordered for political reasons. The Board will not order injunctive relief where the supposedly aggrieved shipper does not even appear before the agency, and certainly will not do so where, as here, the moving party has not provided any verified evidence. Any party aggrieved by a service failure may file a complaint and seek appropriate relief. Finally, because BNSF has had an opportunity to respond to Mr. Kessler’s September 5 pleading, the Board will not strike it. Board decisions, notices, and filings in this and other Board proceedings are available on our Web site at http:// www.stb.dot.gov. Decided: October 1, 2008. 5 Kessler’s Reply to BNSF’s Amendment to Petition at 11. VerDate Aug<31>2005 18:23 Oct 06, 2008 Jkt 217001 By the Board, David M. Konschnik, Director, Office of Proceedings. Anne K. Quinlan, Acting Secretary. [FR Doc. E8–23616 Filed 10–6–08; 8:45 am] BILLING CODE 4915–01–P DEPARTMENT OF THE TREASURY Open Meeting of the President’s Advisory Council on Financial Literacy Office of Financial Education, Treasury. ACTION: Notice of meeting; amendment. AGENCY: SUMMARY: The President’s Advisory Council on Financial Literacy will convene its fifth meeting on Tuesday, October 14, 2008, in the Cash Room of the Main Department Building, 1500 Pennsylvania Avenue, NW., Washington, DC, beginning at 2 p.m. Eastern Time. The meeting will be open to the public. This notice amends a meeting announcement published on Tuesday, September 30, 2008. DATES: The meeting will be held on Tuesday, October 14, 2008, at 2 p.m. Eastern Time. ADDRESSES: The President’s Advisory Council on Financial Literacy will convene its fifth meeting in the Cash Room of the Main Department Building, 1500 Pennsylvania Avenue, NW., Washington, DC. SUBMISSION OF WRITTEN COMMENTS: The public is invited to submit written statements with the President’s Advisory Council on Financial Literacy by any one of the following methods: Electronic Statements E-mail FinancialLiteracyCouncil@do.treas.gov; or Paper Statements Send paper statements in triplicate to President’s Advisory Council on Financial Literacy, Office of Financial Education, Room 1332, Department of the Treasury, 1500 Pennsylvania Avenue, NW., Washington, DC 20220. In general, the Department will post all statements on its Web site (http:// www.treasury.gov/offices/domesticfinance/financial-institution/fineducation/council/index.shtml) without change, including any business or personal information provided such as names, addresses, e-mail addresses, or telephone numbers. The Department will make such statements available for public inspection and copying in the Department’s library, Room 1428, Main Department Building, 1500 Pennsylvania Avenue, NW., PO 00000 Frm 00184 Fmt 4703 Sfmt 4703 Washington, DC 20220, on official business days between the hours of 10 a.m. and 5 p.m. You can make an appointment to inspect statements by telephoning (202) 622–0990. All statements, including attachments and other supporting materials, received are part of the public record and subject to public disclosure. You should submit only information that you wish to make available publicly. FOR FURTHER INFORMATION CONTACT: Edwin Bodensiek, Director of Outreach, Department of the Treasury, Main Department Building, 1500 Pennsylvania Avenue, NW., Washington, DC 20220, at ed.bodensiek@do.treas.gov. In accordance with section 10(a) of the Federal Advisory Committee Act, 5 U.S.C. App. and the regulations thereunder, Dubis Correal, Designated Federal Officer of the Advisory Council, has ordered publication of this notice that the President’s Advisory Council on Financial Literacy will convene its fifth meeting on Tuesday, October 14, 2008, in the Cash Room in the Main Department Building, 1500 Pennsylvania Avenue, NW., Washington, DC, beginning at 2 p.m. Eastern Time. Due to exceptional circumstances at the U.S. Department of the Treasury at this time concerning the economy, this Notice is being published with less than the required 15 days’ notice. The meeting will be open to the public. Because the meeting will be held in a secured facility, members of the public who plan to attend the meeting must contact the Office of Financial Education at 202–622–1783 or FinancialLiteracyCouncil@do.treas.gov by 5 p.m. Eastern Time on Friday, October 10, 2008, to inform the Department of their desire to attend the meeting and to provide the information that will be required to facilitate entry into the Main Department Building. To enter the building, attendees should email the Department their full name, date of birth, social security number, organization, and country of citizenship. The purpose of this meeting is for the President’s Advisory Council on Financial Literacy to discuss new agenda items, update the President’s Advisory Council on Financial Literacy on the work of the committees and follow up on issues from previous meetings. SUPPLEMENTARY INFORMATION: Dated: September 26, 2008. Taiya Smith, Executive Secretary, Treasury Department. [FR Doc. E8–23650 Filed 10–6–08; 8:45 am] BILLING CODE 4811–42–P E:\FR\FM\07OCN1.SGM 07OCN1

Agencies

[Federal Register Volume 73, Number 195 (Tuesday, October 7, 2008)]
[Notices]
[Pages 58711-58712]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23616]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 35164]


BNSF Railway Company--Petition for Declaratory Order

AGENCY: Surface Transportation Board.

ACTION: Institution of declaratory order proceeding; request for 
comments.

-----------------------------------------------------------------------

SUMMARY: In response to a petition filed by BNSF Railway Company (BNSF) 
on July 15, 2008, the Board is instituting a declaratory order 
proceeding under 49 U.S.C. 721 and 5 U.S.C. 554(e) to determine whether 
what BNSF characterizes as two track relocation projects in Oklahoma 
City, OK, are subject to the Board's jurisdiction and require prior 
Board approval. One reply in opposition to the petition and three 
letters in support of the petition have been filed. The Board seeks 
public comments on this matter.

DATES: Supplemental evidence from BNSF is due by October 17, 2008. 
Replies are due by November 6, 2008.

ADDRESSES: Send an original and 10 copies of any comments, referring to 
STB Finance Docket No. 35164, to: Surface Transportation Board, 395 E 
Street, SW., Washington, DC 20423-0001. In addition, send one copy of 
comments to BNSF's representative, Kristy Clark, 2500 Lou Menk Drive, 
Fort Worth, TX 76131-2828, and one copy to Edwin Kessler, 1510 Rosemont 
Drive, Norman, OK 73072.

FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 245-0395. 
[Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at: 1-800-877-8339].

SUPPLEMENTARY INFORMATION: BNSF's petition for declaratory order 
concerns what it now characterizes as a project to relocate two track 
segments of its Chickasha Subdivision between milepost 541.69 and 
milepost 539.96 to facilitate the Oklahoma City I-40 Crosstown 
Relocation project.\1\ Petitioner states that these two track segments 
must be relocated to make way for this major highway project. BNSF 
states that the segment of the Chickasha Subdivision between milepost 
540.15 and milepost 541.69 (referred to as the middle segment) would be 
relocated by rerouting traffic over BNSF's Packingtown Lead, which will 
have the same throughput capacity and operating speeds as the Chickasha 
Subdivision line. BNSF states that the portion of the Chickasha 
Subdivision between milepost 540.15 and milepost 539.96 (referred to as 
the eastern segment) would be relocated to the south.\2\ BNSF adds that 
a contractor for the Oklahoma Department of Transportation (ODOT) is 
constructing: (1) A new railroad bridge to elevate BNSF's Red Rock 
Subdivision where it crosses the Chickasha Subdivision and where the 
new highway will be located, and (2) new industry tracks to connect the 
two shippers located adjacent to the eastern segment (Producers 
Cooperative Oil Mill (Producers) and Mid-States Wholesale Lumber (Mid-
States)) directly to BNSF's Red Rock Subdivision north of the Chickasha 
Subdivision.
---------------------------------------------------------------------------

    \1\ These track segments were previously the subject of a notice 
of exemption in BNSF Railway Company--Abandonment Exemption--In 
Oklahoma County, OK, STB Docket No. AB-6 (Sub-No. 430X), that was 
rejected in a Board decision served June 5, 2008.
    \2\ BNSF states that it plans to file an individual exemption 
request or an application to abandon the western segment--the 
portion of the Chickasha Subdivision between milepost 541.69 and 
milepost 542.91--in the future. Therefore, the western segment is 
not at issue here.
---------------------------------------------------------------------------

    BNSF argues that neither of these relocation projects will affect 
service to shippers or involve an extension into or an invasion of new 
territory, and that these projects are therefore outside of the Board's 
jurisdiction, citing among other authorities Missouri Pac. R. Co. 
Trustee Construction, 282 I.C.C. 388 (1952); and City of Detroit v. 
Canadian National Ry. Co., et al., 9 I.C.C.2d 1208 (1993), aff'd sub 
nom. Detroit/Wayne County Port Authority v. ICC, 59 F.3d 1314 (D.C. 
Cir. 1995). BNSF requests expedited processing of this proceeding to 
allow the highway project to move forward.
    On August 4, 2008, ODOT submitted into the record a letter 
expressing support for an expedited declaratory ruling in favor of 
BNSF. ODOT also attached letters of support from Mick Cornett, Mayor of 
Oklahoma City, and the Greater Oklahoma City Chamber.
    On August 5, 2008, Edwin Kessler filed a reply to BNSF's petition 
and a request for a procedural schedule, including a public hearing in 
Oklahoma City, OK.\3\ Mr. Kessler argues that BNSF has failed to 
demonstrate that its proposed actions would be mere relocations of 
track. Rather, Mr. Kessler argues that the relocation of these segments 
will deprive some shippers of service, particularly Boardman, Inc. 
(Boardman), and will allow BNSF to serve new markets. Mr. Kessler 
argues that BNSF needs Board authorization to: (1) Construct the new 
tracks and (2) remove the two crossing diamonds on the eastern segment 
that enable it to reach two other shippers (Producers Co-Op Oil Mill 
and Mid-States Lumber Company).
---------------------------------------------------------------------------

    \3\ The public hearing request will be denied. The Board 
believes that the record can be developed and the issues resolved on 
the basis of written submissions.
---------------------------------------------------------------------------

    On August 25, 2008, BNSF filed a response to Mr. Kessler's 
arguments in which it challenged several of Mr. Kessler's factual 
assertions.\4\ BNSF also renewed its request for expedited Board 
handling of this matter.
---------------------------------------------------------------------------

    \4\ In that document, BNSF also withdrew an earlier request that 
the Board rule that the United States District Court for the Western 
District of Oklahoma was without jurisdiction to enjoin the two 
relocation projects. On August 14, 2008, the District Court issued 
an order granting BNSF's motion to dismiss Kessler's petition to 
enjoin BNSF for lack of jurisdiction. Edwin Kessler v. BNSF Railway 
Company and Oklahoma Department of Transportation, Case No. CIV-08-
358-R (W.D. Okla. 2008).
---------------------------------------------------------------------------

    On September 5, 2008, Mr. Kessler filed a reply to BNSF's August 
25, 2008 response and also filed a separate document labeled ``Motion 
to Compel'' and ``Motion to Cease and Desist'' asking that the Board 
compel BNSF to undertake certain actions. In these motions, Mr. Kessler 
alleges that, in late July 2008, a railroad car carrying his locomotive 
was delivered to BNSF for transport to Boardman's facility, but that 
after reaching Oklahoma City some 19 days later, the car ultimately 
could not be delivered because the tracks leading to Boardman's 
facility had been removed. Mr. Kessler provided no verified statement 
to support these allegations.
    On September 24, 2008, BNSF moved the Board to strike Mr. Kessler's 
September 5 pleading because it is an impermissible reply to a reply, 
is not properly verified, and involves matters that are either 
premature or outside the scope of this proceeding. BNSF also calls Mr. 
Kessler's locomotive shipment a ``fraudulent ploy,'' which BNSF is 
investigating.
    Under 5 U.S.C. 554(e), the Board has discretionary authority to 
issue a declaratory order to terminate a controversy or remove 
uncertainty. BNSF asserts that no Board jurisdiction is implicated 
here, while Mr. Kessler argues that these projects are in fact subject 
to the Board's jurisdiction, as they would remove service to existing 
shippers and would allow BNSF to extend service into new territory. A

[[Page 58712]]

declaratory order proceeding will be instituted in this proceeding to 
address these issues. To facilitate BNSF's request for expedition, BNSF 
will be permitted to supplement its petition by October 17, 2008. Any 
person seeking to reply in support of, or in opposition to, BNSF's 
position may submit written comments to the Board by November 6, 2008. 
Because there is already a substantial record in this proceeding, the 
parties are directed to focus their comments on the issue of whether 
these two planned projects are merely track relocations not requiring 
Board authorization or whether they would remove service to shippers 
and/or extend BNSF's operations into new territory. Both the continued 
ability to serve Boardman and any specific new territory that could be 
served should be identified and addressed. Additionally, concerning 
service to shippers on the eastern segment, BNSF is specifically 
directed to submit a statement from ODOT confirming that its contractor 
is obligated to construct both a new railroad bridge to elevate the Red 
Rock Subdivision over the planned location of the new highway and new 
industry tracks to connect Producers and Mid-States directly to the Red 
Rock Subdivision.
    In the meantime, Mr. Kessler has not shown that his requests for 
injunctive relief should be entertained in this declaratory order 
proceeding. Mr. Kessler says that, with the request for a locomotive 
shipment, Boardman was ``testing'' BNSF's ability to serve Boardman.\5\ 
But Boardman is not before us complaining that a locomotive was not 
delivered, or that BNSF has failed to meet any reasonable request for 
service. Indeed, according to BNSF, Boardman refused delivery of the 
shipment by transload, explaining that the car was ordered for 
political reasons. The Board will not order injunctive relief where the 
supposedly aggrieved shipper does not even appear before the agency, 
and certainly will not do so where, as here, the moving party has not 
provided any verified evidence. Any party aggrieved by a service 
failure may file a complaint and seek appropriate relief. Finally, 
because BNSF has had an opportunity to respond to Mr. Kessler's 
September 5 pleading, the Board will not strike it.
---------------------------------------------------------------------------

    \5\ Kessler's Reply to BNSF's Amendment to Petition at 11.
---------------------------------------------------------------------------

    Board decisions, notices, and filings in this and other Board 
proceedings are available on our Web site at http://www.stb.dot.gov.

    Decided: October 1, 2008.

    By the Board, David M. Konschnik, Director, Office of 
Proceedings.
Anne K. Quinlan,
Acting Secretary.
[FR Doc. E8-23616 Filed 10-6-08; 8:45 am]
BILLING CODE 4915-01-P