Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Notices 58711 

1These 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. 

2BNSF 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. 

3The 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. 

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). 

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 

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. 

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 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 

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58712 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Notices 

5 Kessler’s Reply to BNSF’s Amendment to 

Petition at 11. 

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. 

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 

AGENCY: Office of Financial Education, 

Treasury. 

ACTION: Notice of meeting; amendment. 

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., 

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. 

SUPPLEMENTARY INFORMATION: 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. 

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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