BNSF Railway Company-Petition for Declaratory Order, 58711-58712 [E8-23616]
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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).
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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 https://
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 (https://
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
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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
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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]
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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 https://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