77830 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Notices 

the date the settlement agreement is accepted by the 

decisionmaker.

1The rail line that KFR is purchasing is located 

between milepost 4.7, near West Kettle Falls, and 

milepost 77.14, at San Poil. While the termini of 

this line are located in the State of Washington, the 

segment of the line between milepost 34.375 and 

milepost 48.79 is located in British Columbia, 

Canada. Consequently, the Board has jurisdiction 

only over the acquisition of the two segments in the 

United States described above.

2The rail segment that KFR is leasing is located 

between milepost 61.0, near Chewelah, and 

milepost 144.0, near Columbia Gardens, British 

Columbia, Canada. The segment of the ChewelahColumbia Gardens line between mileposts 139.71 

and 144.0 is located in British Columbia. 

Consequently, the Board has jurisdiction only over 

the lease of the line segment in the United States 

described here. BNSF is retaining restricted 

trackage rights over the segment of the line KFR is 

leasing between milepost 61.0, near Chewelah, and 

milepost 96.0, near Kettle Falls.

3CRL’s lines are located in Illinois; GWRC’s line 

is located in Georgia; GWR’s lines are located in 

Colorado; CBGR’s lines are located in Iowa; MJ’s 

lines are located in Illinois; NSR’s lines are located 

in Ohio; NOW’s line is located in Ohio; PNR’s line 

is located in Texas; ATR’s lines are located in 

Texas; and FCR’s lines are located in Georgia.

4. What Extraordinary Circumstances 

Warrant Assessment of Less Than the 

Maximum Penalty? 

Requests to reduce the penalty based 

on extraordinary circumstances will be 

considered on a case-by-case basis. 

Section 222 of MCSIA does not define 

the term ‘‘extraordinary circumstances,’’

but expressly provides that 

extraordinary circumstances meriting a 

reduction in the maximum penalty may 

be found to exist if we determine and 

document that repetition of the 

violation does not demonstrate a failure 

to take appropriate remedial action. 

Although the statute does not limit 

application of the extraordinary 

circumstances factor, we do not believe 

it is appropriate to attempt to define all 

possible potential extraordinary 

circumstances, except as indicated in 

the next section. The respondent carries 

the burden to demonstrate that 

extraordinary circumstances merit a 

reduction in the maximum penalty in 

response to the NOC and during the 

adjudication of the case. 

5. What Type of Notice Will Be Required 

Before Assessing the Maximum Penalty? 

Although section 222 of MCSIA does 

not specifically require prior notice to 

offenders that future violations may 

result in the imposition of maximum 

penalties, the September 8, 2000, policy 

statement provided that offenders 

should be given such notice as part of 

the close-out of the second CR. This 

guidance is now modified and the 

agency may assess maximum penalties 

in all appropriate cases. To address this 

issue, we (1) modified our standard 

NOC to advise respondents of the 

requirements of section 222 of MCSIA, 

and (2) published this amended policy 

statement in the Federal Register and 

posted it on FMCSA’s Web site at

http://www.fmcsa.dot.gov. No 

additional notice requirements are 

necessary. 

6. Do FMCSA Service Centers Have 

Authority To Settle Cases Subject to 

Section 222 for Less Than the Maximum 

Penalty? 

Section 222(a) of MCSIA provides that 

the Secretary ‘‘should ensure that motor 

carriers operate safely by imposing civil 

penalties at a level calculated to ensure 

prompt and sustained compliance with 

Federal motor carrier safety and 

commercial driver’s license laws’’

(emphasis added). Section 222(b)(2) 

requires the Secretary to assess the 

maximum penalty in appropriate 

circumstances. A question was raised on 

whether Service Centers may settle 

cases subject to section 222 for less than 

the maximum penalty, provided the 

maximum penalty is assessed in the 

NOC. 

Civil Penalties are ‘‘assessed’’ in the 

NOC and are ‘‘imposed’’ in an agency 

Order or settlement agreement. Since 

the literal language of the statute 

requires that maximum penalties be 

assessed (but not necessarily imposed) 

in section 222 cases, this would 

arguably permit settlement of cases 

below the maximum penalty, provided 

the negotiated penalty (the penalty 

actually imposed) is calculated to 

ensure prompt and sustained 

compliance with the Federal Motor 

Carrier Safety Regulations. To ensure 

uniformity in implementing section 222, 

FMCSA Service Centers will not, at this 

time, be permitted to settle section 222 

cases for less than the maximum penalty 

assessed. However, settlement 

agreements establishing terms of 

payment will be permitted. As the 

agency gains more experience in 

applying section 222, this settlement 

limitation will be evaluated.

Issued on: December 16, 2004. 

Annette M. Sandberg, 

Administrator.

[FR Doc. 04–28343 Filed 12–27–04; 8:45 am] 

BILLING CODE 4910–EX–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board 

[STB Finance Docket No. 34617] 

Patrick D. Broe and OmniTRAX, Inc.—

Continuance in Control Exemption—

Kettle Falls International Railway, LLC 

Patrick D. Broe (Mr. Broe) and 

OmniTRAX, Inc. (OmniTRAX) 

(collectively, applicants) have filed a 

verified notice of exemption to continue 

in control of Kettle Falls International 

Railway, LLC (KFR), upon KFR’s 

becoming a Class III rail carrier. 

The transaction was scheduled to be 

consummated on or shortly after 

December 10, 2004. 

This transaction is related to a 

concurrently filed verified notice of 

exemption in STB Finance Docket No. 

34616, Kettle Falls International 

Railway, LLC—Acquisition Exemption—

The Burlington Northern and Santa Fe 

Railway Company, wherein KFR seeks 

to acquire by purchase and lease from 

The Burlington Northern and Santa Fe 

Railway Company (BNSF) rail lines in 

the State of Washington. The rail lines 

being purchased are between: (1) 

milepost 4.7, near West Kettle Falls, 

WA, and milepost 34.375, at the United 

States-Canadian border; and (2) 

milepost 48.79, at the United StatesCanadian border, and milepost 77.14, at 

San Poil, WA.1 The rail lines being 

leased are between: (1) milepost 0.0, 

near Kettle Falls, WA, and milepost 4.7, 

near West Kettle Falls; and (2) milepost 

61.0 near Chewelah, WA, and milepost 

139.71, at the United States-Canadian 

border.2 In addition, KFR will acquire 

incidental overhead trackage rights over 

the rail line between milepost 0.0 near 

Kettle Falls, and milepost 4.7, near West 

Kettle Falls. While KFR is leasing that 

4.7-mile line, KFR is acquiring the 

incidental trackage rights to ensure 

continued access to BNSF for 

interchange at Kettle Falls from the rail 

line KFR is purchasing, in the event the 

lease of the line between Kettle Falls 

and West Kettle Falls expires or is 

terminated.

Mr. Broe is a noncarrier individual 

who directly controls OmniTRAX, a 

noncarrier company. OmniTRAX 

currently controls ten Class III rail 

carriers: Chicago Rail Link, LLC (CRL); 

Georgia Woodlands Railroad, LLC 

(GWRC); Great Western Railway of 

Colorado, LLC (GWR); Great Western 

Railway of Iowa LLC (CBGR); 

Manufacturers’ Junction Railway, LLC 

(MJ); Newburgh & South Shore Railroad 

Limited (NSR); Northern Ohio & 

Western Railway, LLC (NOW); 

Panhandle Northern Railroad, LLC 

(PNR); Alliance Terminal Railroad, LLC 

(ATR); and Fulton County Railway, LLC 

(FCR).3

Mr. Broe and OmniTRAX also 

recently filed a notice of exemption to 

continue in control of Alabama & 

Tennessee River Railway, LLC (ATN), a 

noncarrier, upon ATN’s becoming a 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Notices 77831

4The rail lines being leased by ATN will not 

connect with the rail lines being acquired by KFR.

1The rail line that KFR is purchasing is located 

between milepost 4.7, near West Kettle Falls, and 

milepost 77.14, at San Poil. While the termini of 

this line are located in the State of Washington, the 

segment of the line between milepost 34.375 and 

milepost 48.79 is located in British Columbia, 

Canada. Consequently, the Board has jurisdiction 

only over the acquisition of the two segments in the 

United States described above.

2The rail segment that KFR is leasing is located 

between milepost 61.0, near Chewelah, and 

milepost 144.0, near Columbia Gardens, British 

Columbia, Canada. The segment of the ChewelahColumbia Gardens line between milepost 139.71 

and milepost 144.0 is located in British Columbia. 

Consequently, the Board has jurisdiction only over 

the lease of the line segment in the United States 

described here. BNSF is retaining restricted 

trackage rights over the segment of the line KFR is 

leasing between milepost 61.0, near Chewelah, and 

milepost 96.0, near Kettle Falls.

Class III railroad. See Patrick D. Broe 

and OmniTRAX, Inc.—Continuance in 

Control Exemption—Alabama & 

Tennessee River Railway, LLC, STB 

Finance Docket No. 34615 (STB served 

Dec. 17, 2004). In a transaction 

scheduled to occur on or after December 

31, 2004, ATN will lease and operate 

certain rail lines in Alabama.4

Applicants state that: (1) the rail lines 

operated by CRL, GWRC, GWR, CBGR, 

MJ, NSR, NOW, PNR, ATR, and FCR do 

not connect with the rail lines being 

purchased or leased by KFR; (2) the 

continuance in control is not part of a 

series of anticipated transactions that 

would connect the rail lines being 

acquired by KFR with any railroad in 

the OmniTRAX corporate family; and 

(3) neither KFR nor any of the carriers 

controlled by OmniTRAX are Class I rail 

carriers. Therefore, the transaction is 

exempt from the prior approval 

requirements of 49 U.S.C. 11323. See 49 

CFR 1180.2(d)(2). The purpose of the 

transaction is to reduce overhead 

expenses, coordinate billing, 

maintenance, mechanical and personnel 

policies and practices of its rail carrier 

subsidiaries and thereby improve the 

overall efficiency of rail service 

provided by the 11 railroads. 

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. Section 11326(c), however, 

does not provide for labor protection for 

transactions under sections 11324 and 

11325 that involve only Class III rail 

carriers. Accordingly, the Board may not 

impose labor protective conditions here, 

because all of the carriers involved are 

Class III carriers. 

If the verified notice contains false or 

misleading information, the exemption 

is void ab initio. Petitions to revoke the 

exemption under 49 U.S.C. 10502(d) 

may be filed at any time. The filing of 

a petition to revoke will not 

automatically stay the transaction. 

An original and 10 copies of all 

pleadings, referring to STB Finance 

Docket No. 34617, must be filed with 

the Surface Transportation Board, 1925 

K Street, NW., Washington, DC 20423–

0001. In addition, a copy of each 

pleading must be served on Karl Morell, 

Of Counsel, Ball Janik LLP, 1455 F 

Street, NW., Suite 225, Washington, DC 

20005. 

Board decisions and notices are 

available on our Web site at http://

www.stb.dot.gov.

Decided: December 20, 2004. 

By the Board, David M. Konschnik, 

Director, Office of Proceedings. 

Vernon A. Williams, 

Secretary.

[FR Doc. 04–28333 Filed 12–27–04; 8:45 am] 

BILLING CODE 4915–01–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board 

[STB Finance Docket No. 34616] 

Kettle Falls International Railway, 

LLC—Acquisition Exemption—The 

Burlington Northern and Santa Fe 

Railway Company 

Kettle Falls International Railway, 

LLC (KFR), a noncarrier, has filed a 

verified notice of exemption under 49 

CFR 1150.31 to acquire by purchase and 

lease from The Burlington Northern and 

Santa Fe Railway Company (BNSF) rail 

lines in the State of Washington. The 

rail lines being purchased are between: 

(1) milepost 4.7, near West Kettle Falls, 

WA, and milepost 34.375, at the United 

States-Canadian border; and (2) 

milepost 48.79, at the United StatesCanadian border, and milepost 77.14, at 

San Poil, WA.1 The rail lines being 

leased are between: (1) milepost 0.0, 

near Kettle Falls, and milepost 4.7, near 

West Kettle Falls; and (2) milepost 61.0 

near Chewelah, WA, and milepost 

139.71, at the United States-Canadian 

border.2 In addition, KFR will acquire 

incidental overhead trackage rights over 

the rail line between milepost 0.0 near 

Kettle Falls, and milepost 4.7, near West 

Kettle Falls. While KFR is leasing that 

4.7-mile line, KFR is acquiring the 

incidental trackage rights to ensure 

continued access to BNSF for 

interchange at Kettle Falls from the rail 

line KFR is purchasing in the event the 

lease of the line between Kettle Falls 

and West Kettle Falls expires or is 

terminated.

The transaction is related to STB 

Finance Docket No. 34617, Patrick D. 

Broe and OmniTRAX, Inc.—

Continuance in Control Exemption—

Kettle Falls International Railway, LLC, 

wherein Patrick D. Broe and 

OmniTRAX, Inc., have concurrently 

filed a verified notice of exemption to 

continue in control of KFR upon KFR’s 

becoming a Class III rail carrier. 

KFR certifies that its projected 

revenues as a result of this transaction 

will not result in KFR’s becoming a 

Class II or Class I rail carrier, and further 

certifies that its projected annual 

revenues will not exceed $5 million. 

The transaction was expected to be 

consummated on or shortly after 

December 10, 2004. 

If the notice contains false or 

misleading information, the exemption 

is void ab initio. Petitions to revoke the 

exemption under 49 U.S.C. 10502(d) 

may be filed at any time. The filing of 

a petition to revoke will not 

automatically stay the transaction. 

An original and 10 copies of all 

pleadings, referring to STB Finance 

Docket No. 34616, must be filed with 

the Surface Transportation Board, 1925 

K Street, NW., Washington, DC 20423–

0001. In addition, a copy of each 

pleading must be served on Karl Morell, 

Of Counsel, Ball Janik LLP, 1455 F 

Street, NW., Suite 225, Washington, DC 

20005. 

Board decisions and notices are 

available on our Web site at 

http://www.stb.dot.gov.

Decided: December 20, 2004.

By the Board, David M. Konschnik, 

Director, Office of Proceedings. 

Vernon A. Williams, 

Secretary.

[FR Doc. 04–28334 Filed 12–27–04; 8:45 am] 

BILLING CODE 4915–01–P

DEPARTMENT OF THE TREASURY

Fiscal Service 

Financial Management Service; 

Proposed Collection of Information: 

List of Data (A) and List of Data (B)

AGENCY: Financial Management Service, 

Fiscal Service, Treasury.

ACTION: Notice and request for 

comments. 

SUMMARY: The Financial management 

Service, as part of its continuing effort 

to reduce paperwork and respondent 

burden, invites the general public and 

other Federal agencies to take this 

opportunity to comment on a 

continuing information collection. By 

this notice, the Financial Management