77828 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Notices 

20547. Express mail is recommended for 

timely delivery.

Dated: December 16, 2004. 

Patricia S. Harrison, 

Assistant Secretary for Educational and 

Cultural Affairs, Department of State.

[FR Doc. 04–28391 Filed 12–27–04; 8:45 am] 

BILLING CODE 4710–05–P

DEPARTMENT OF TRANSPORTATION

Office of the Secretary 

Aviation Proceedings, Agreements 

Filed the Week Ending December 10, 

2004 

The following Agreements were filed 

with the Department of Transportation 

under the provisions of 49 U.S.C. 412 

and 414. Answers may be filed within 

21 days after the filing of the 

application. 

Docket Number: OST–2004–19872. 

Date Filed: December 8, 2004. 

Parties: Members of the International 

Air Transport Association. 

Subject: PTC23 EUR–SEA 0193 dated 

10 December 2004, TC23/TC123 

Europe-South East Asia Expedited 

Resolutions 002ae, 015v r1–r5. Intended 

effective date: 1 February 2005.

Docket Number: OST–2004–19888. 

Date Filed: December 10, 2004. 

Parties: Members of the International 

Air Transport Association. 

Subject:

PTC3 0789 dated 7 December 2004 

TC3 Areawide Expedited Resolution 

015v r1–r6 

PTC3 0790 dated 7 December 2004 

TC3 Within South Asian 

Subcontinent Expedited Resolution 

002L r7–r13 

PTC3 0791 dated 7 December 2004 

TC3 Within South East Asia except 

between Malaysia and Guam 

Expedited Resolutions 002k, 070uu 

r14–r15 

PTC3 0792 dated 7 December 2004 

TC3 South East Asia-South Asian 

Subcontinent Expedited Resolution 

002ww r16–r22 

PTC3 0793 dated 7 December 2004 

TC3 South Asian Subcontinent-South 

West Pacific Expedited Resolution 

002pp r23–r28 

PTC3 0794 dated 7 December 2004 

TC3 Japan-Korea Expedited 

Resolution 002u r29–r31 

PTC3–0795 dated 7 December 2004 

TC3 Japan, Korea-South Asian 

Subcontinent Expedited Resolution 

002g r32–r40 

PTC3 0796 dated 7 December 2004 

TC3 Japan, Korea-South East Asia 

except between Korea (Rep. of) and 

Guam, Northern Mariana Islands 

Expedited Resolution 002cc r41–r44 

PTC3 0797 dated 7 December 2004 

TC3 Japan, Korea-South West Pacific 

except between Korea (Rep. of) and 

American Samoa Expedited 

Resolution 002q r45–r51

Intended effective date: 15 January 2005. 

Renee V. Wright, 

Supervisory Dockets Officer, Alternate 

Federal Register Liaison.

[FR Doc. 04–28406 Filed 12–27–04; 8:45 am] 

BILLING CODE 4910–62–P

DEPARTMENT OF TRANSPORTATION

Office of the Secretary 

Notice of Applications for Certificates 

of Public Convenience and Necessity 

and Foreign Air Carrier Permits Filed 

Under Subpart B (Formerly Subpart Q) 

During the Week Ending December 10, 

2004 

The following Applications for 

Certificates of Public Convenience and 

Necessity and Foreign Air Carrier 

Permits were filed under Subpart B 

(formerly Subpart Q) of the Department 

of Transportation’s Procedural 

Regulations (See 14 CFR 301.201 et. 

seq.). The due date for Answers, 

Conforming Applications, or Motions to 

Modify Scope are set forth below for 

each application. Following the Answer 

period DOT may process the application 

by expedited procedures. Such 

procedures may consist of the adoption 

of a show-cause order, a tentative order, 

or in appropriate cases a final order 

without further proceedings. 

Docket Number: OST–2004–19848. 

Date Filed: December 6, 2004. 

Due Date for Answers, Conforming 

Applications, or Motion to Modify 

Scope: December 27, 2004. 

Description: Application of Starair 

(Ireland) Limited requesting a Foreign 

Air Carrier Permit to engage in foreign 

charter air transportation of persons, 

property and mail between a point or 

points in Ireland and a point or points 

in the United States, including service 

via intermediate stops, and to engage in 

other Fifth Freedom charter operations 

in foreign air transportation.

Docket Number: OST–2004–19849. 

Date Filed: December 6, 2004. 

Due Date for Answers, Conforming 

Applications, or Motion to Modify 

Scope: December 27, 2004. 

Description: Application of Starair 

(Ireland) Ltd., requesting an exemption 

to permit it to operate foreign charter 

combination air transportation between 

a point or points in Ireland and a point 

or points in the United States, including 

service via intermediate stops, and to 

conduct Fifth Freedom combination 

charter operations in foreign air 

transportation. 

Docket Number: OST–2004–19850. 

Date Filed: December 6, 2004. 

Due Date for Answers, Conforming 

Applications, or Motion to Modify 

Scope: December 27, 2004. 

Description: Application of Air Comet 

S.A. d/b/a Air Plus Comet, requesting a 

five year permit to engage in charter 

foreign air transportation of persons, 

property, and mail between points in 

the Kingdom of Spain and the United 

States.

Docket Number: OST–2004–19877. 

Date Filed: December 8, 2004. 

Due Date for Answers, Conforming 

Applications, or Motion to Modify 

Scope: December 29, 2004. 

Description: Application of GoJet 

Airlines LLC requesting a certificate of 

public convenience and necessity to 

engage in interstate and foreign 

scheduled air transportation of persons, 

property and mail.

Renee V. Wright, 

Supervisory Dockets Officer, Alternate 

Federal Register Liaison.

[FR Doc. 04–28402 Filed 12–27–04; 8:45 am] 

BILLING CODE 4910–62–P

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety 

Administration 

[Docket No. FMCSA–2004–19882] 

Section 222 of the Motor Carrier Safety 

Improvement Act of 1999; Clarification 

of Agency Policy Statement

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT.

ACTION: Notice of clarification; agency 

policy statement. 

SUMMARY: The Federal Motor Carrier 

Safety Administration (FMCSA) clarifies 

its September 8, 2000 policy statement 

implementing section 222 of the Motor 

Carrier Safety Improvement Act of 1999. 

Section 222 requires the agency to 

assess maximum statutory penalties if a 

person is found to have committed a 

pattern of violations of critical or acute 

regulations, or previously committed 

the same or a related violation of critical 

or acute regulations. This notice 

clarifies the agency use of previous 

violations to assess maximum penalties 

under section 222. It also discusses the 

notification procedures and 

extraordinary circumstances that may 

warrant assessment of less than the 

maximum penalty.

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Notices 77829

1A Notice of Claim (NOC) becomes a Final 

Agency Order if the respondent fails to reply to the 

NOC within the time prescribed by 49 CFR 386.14. 

Under these circumstances, the NOC becomes the 

Final Agency Order 25 days after it is served.

2The case is considered closed following 

issuance of the Final Agency Order and the 

exhaustion of any post order notions such as a 

Petition for Reconsideration. However, if a Petition 

for Reconsideration of the Final Agency Order in a 

previous case is pending before the agency, the case 

should not be considered closed.

3 If a settlement agreement concludes a case 

pending before an Administrative Law Judge or the 

Assistant Administrator, the closing date would be 

Continued

DATES: December 28, 2004.

FOR FURTHER INFORMATION CONTACT:

Mary Pat Woodman, Chief of the 

Enforcement and Compliance Division 

(MC–ECE), (202) 366–9699, FMCSA, 

400 Seventh Street, SW., Washington, 

DC 20590. You may also e-mail 

marypat.woodman@fmcsa.dot.gov.

SUPPLEMENTARY INFORMATION: 

Background 

Statutory Authority 

Section 222 of the Motor Carrier 

Safety Improvement Act of 1999 

(MCSIA), (Public Law 106–159, 113 

Stat. 1748, 1769, Dec. 9, 1999; codified 

in 49 U.S.C. 521 note) directed the 

Secretary of Transportation to: 

(a) 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. 

(b) Establish and assess minimum 

civil penalties for each violation of laws 

referred to under (a) above; and, assess 

the maximum civil penalty for each 

violation by any person who is found to 

have committed a pattern of violations 

of critical or acute regulations or to have 

previously committed the same or a 

related violation of critical or acute 

regulations. 

(c) If the Secretary determines and 

documents that extraordinary 

circumstances exist which merit the 

assessment of any civil penalty lower 

than any level established above, the 

Secretary may assess such lower 

penalty. Further, in cases where a 

person has been found to have 

previously committed the same or a 

related violation of critical or acute 

regulations, extraordinary 

circumstances may be found to exist 

when the Secretary determines that 

repetition of such violation does not 

demonstrate a failure to take appropriate 

remedial action. 

September 8, 2000, Policy Statement 

On September 8, 2000, FMCSA sent a 

policy memorandum changing its fine 

assessment policy to meet the 

requirements of section 222 to its Field 

Administrators, Enforcement Team 

leaders, and State Directors. The 

memorandum defined a pattern of 

violations or previously committed 

violations as three cases within the last 

six years. The policy memorandum, in 

pertinent part, states:

(Page 1, third paragraph, beginning with 

the second sentence)

The three cases will consist of two cases 

which have been closed followed by 

discovery of new violations, all of which 

involve the same Part (e.g. Part 395). The six 

year period is measured from the end of the 

first to the end of the third compliance 

review (CR). If a case is appealed, the time 

needed to process the appeal should not be 

included as part of the six year period. If the 

third CR (and subsequent CRs) reveals 

violations of the same Part cited in two 

previous CRs within the last six years, a 

‘‘pattern of violations’’ or ‘‘previously 

committed violations’’ is established and the 

claim letter should assess the maximum 

penalty for that count(s).

An electronic copy of the policy 

memorandum is available through 

DOT’s Docket Management System 

(DMS) Web site at http://dms.dot.gov,

by using the docket number of this 

notice, FMCSA–2004–19882. The DMS 

facility is located on the Plaza Level of 

the Nassif Building, 400 Seventh Street, 

SW., Washington, DC. 

General Discussion of Questions 

We received several questions on the 

interpretation and implementation of 

FMCSA’s policy memorandum. The 

agency addresses these questions and 

clarifies its implementation policy.

1. Will the Agency use Enforcement 

Cases Closed Before Issuance of the 

Policy Memorandum To Support 

Assessment of the Maximum Penalty? 

MCSIA was signed into law on 

December 9, 1999, and FMCSA was 

created effective January 1, 2000. 

However, FMCSA did not provide 

guidance regarding implementation of 

section 222 until its September 8, 2000, 

policy memorandum was issued. We 

believe fairness to the motor carrier 

industry will be best served by using 

enforcement cases closed after 

September 8, 2000, as prior violations to 

support assessing maximum penalties 

under section 222 of MCSIA. Therefore, 

the agency will not use enforcement 

cases closed before September 8, 2000. 

2. What Type of Agency Action 

Constitutes a Finding That a Violation 

was Committed for Purposes of 

Assessing the Maximum Penalty Under 

Section 222? 

The policy memorandum provided 

that section 222 of MCSIA applies when 

there are two closed cases followed by 

discovery of new violations of the same 

Code of Federal Regulations (CFR) Part 

within a 6-year period, measured from 

the end of the first Compliance Review 

(CR) to the end of the third CR. It stated 

that the previous cases had to be closed 

but did not indicate whether an agency 

adjudication of the violations is 

required before a closed enforcement 

case is used as the basis for assessing 

the maximum civil penalty. We 

interpret section 222 as requiring that a 

previous enforcement case include 

either: (1) An explicit adjudicatory 

finding of a violation by the agency 

(Assistant Administrator or a DOT 

Administrative Law Judge); (2) an 

express admission of liability by the 

respondent in its reply to the Notice of 

Claim (NOC) and in a settlement 

agreement; or (3) a Final Agency Order 

issued under 49 CFR 386.14(e), based on 

respondent’s failure to reply to the 

NOC.1

A settlement agreement lacking in 

language admitting liability will not be 

considered a prior violation for 

purposes of section 222. Therefore, in 

response to a NOC advising respondent 

that payment will constitute an 

admission of the violations set forth in 

the NOC, payment of a civil penalty will 

constitute an express admission of 

liability. In response to a NOC that lacks 

such an advisory, payment of a civil 

penalty will not be construed as a prior 

violation for purposes of section 222, 

unless accompanied by a written 

admission of violations alleged in the 

NOC. 

3. How is the 6 Year Period Calculated 

for Determining When the Maximum 

Penalty Will Be Assessed? 

The 6 year period is determined by 

starting with the closing date of the CR 

or roadside inspection in the third 

enforcement case and determining 

whether there are two prior closed 

enforcement cases against the 

respondent involving violations of the 

same CFR Part during the immediately 

preceding 6 years. Because we are 

requiring an adjudication or admission 

of liability before using a previous 

enforcement case as a finding of a 

committed violation, a case will be 

considered closed as of the date of the 

Final Agency Order.2 In the event the 

case is resolved without a Final Agency 

Order, the relevant date will be the date 

of the response to the NOC enclosing 

payment of the civil penalty or the date 

the settlement is executed by both 

parties, whichever is later.3

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