[Federal Register Volume 69, Number 248 (Tuesday, December 28, 2004)]
[Notices]
[Pages 77830-77831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28333]


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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 States-Canadian 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.
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    \1\ The 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.
    \2\ The 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 Chewelah-
Columbia 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.
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    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\
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    \3\ CRL'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.
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    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

[[Page 77831]]

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\
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    \4\ The rail lines being leased by ATN will not connect with the 
rail lines being acquired by KFR.
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    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