Federal Register / Vol. 63, No. 111 /Wednesday, June 10, 1998 / Notices 31827

Petitioner PEMCO AEROPLEX INC.

Regulations Affected CAR

4b.362(c)(1), 4b.362(e)(7), and 4b.382(d).

Description of Petition PEMCO

AEROPLEX INC. petitions for

exemption from the noted requirements

to permit the accommodation of two

supernumeraries forward of a rigid

cargo bulkhead and smoke-tight door,

on 727–200 aircraft with Class E

compartments.

Petitions for Exemption

Docket No: 29148.

Petitioner: Performance Designs, Inc.

Sections of the FAR Affected: 14 CFR

91.307(a)(1) and 105.43(a)(1).

Description of Relief Sought: To

permit an owner or operator of a PDI

Ram-Air reserve parachute to operate

the parachute on a progressive

inspection program consisting of an

annual repack and detailed external

inspections every 120 days.

Docket No: 29196

Petitioner: Lucent Aviation

Sections of the FAR Affected: 14 CFR

61.57(b)(1)(ii)

Description of Relief Sought: To

permit pilots employed by Lucent to

meet the night currency requirements to

act as pilot in command of an aircraft by

accomplishing three takeoffs and three

landings in the same category and class,

but not type, of aircraft in which the

pilot will act as pilot in command. The

proposed exemption would also permit

those pilots to maintain pilot-incommand night currency by

accomplishing the required takeoffs,

and landings in a flight simulator

representative of the category and class,

but not type, of aircraft to be flown.

Dispositions of Petitions

Docket No: 28639.

Petitioner: PenAir.

Sections of the FAR Affected: 14 CFR

121.574(a)(1) and (3).

Description of Relief Sought/

Disposition: To permit the carriage and

operation of oxygen storage and

dispensing equipment for medical use

by patients requiring emergency or

continuing medical attention while on

board an aircraft operated by PenAir

when the equipment is furnished and

maintained by a hospital treating the

patient. GRANT, May 22, 1998,

Exemption No. 6523A.

Docket No: 28485.

Petitioner: Polar Air Cargo, Inc.

Sections of the FAR Affected: 14 CFR

121.583(a)(8).

Description of Relief Sought/

Disposition: To permit up to three

dependents of Polar employees who are

accompanied by an employee sponsor

traveling on official business only and

who are trained and qualified in the

operation of the emergency equipment

on Polar’s Boeing-747 cargo aircraft to

be added to the list of persons Polar is

authorized to transport without

complying with the passenger-carrying

requirements of §§ 121.309(f), 121.310,

121.391, 121.571, and 121.587; the

passenger-carrying operation

requirements in §§ 121.157(c), 121.161,

and 121.291; and the requirements

pertaining to passengers in §§ 121.285,

121.313(f), 121.317, 121.547, and

121.573. GRANT, May 22, 1998,

Exemption No. 6530A.

Docket No: 17145.

Petitioner: United Airlines.

Sections of the FAR Affected: 14 CFR

121.665 and 121.697(a) and (b)

Description of Relief Sought/

Disposition: To permit UAL to use

computerized load manifests that bear

the printed name and position of the

person responsible for loading the

aircraft, instead of that person’s

signature. GRANT, May 22, 1998,

Exemption No. 2466K.

Docket No: 29188.

Petitioner: Civil Air Patrol.

Sections of the FAR Affected: 14 CFR

61.113(e).

Description of Relief Sought/

Disposition: To permit the CAP to

reimburse CAP members who are

private pilots for fuel, oil, supplemental

oxygen, fluids, lubricants, preheating,

deicing, airport expenses, servicing, and

maintenance expenses and certain per

diem expenses incurred while serving

on official USAF-assigned CAP

missions, subject to certain conditions

and limitations. GRANT, May 28, 1998,

Exemption No. 6771.

Docket No.: 29013.

Petitioner: Vintage Flying Museum.

Sections of the FAR Affected: 14 CFR

91.315.

Description of Relief Sought/

Disposition: To permit Vintage to

operate its Boeing B–17G (B–17G)

aircraft, which is certificated in the

limited category, for the purpose of

carrying passengers for compensation or

hire. GRANT, May 27, 1998, Exemption

No. 6775.

Docket No.: 29097.

Petitioner: Daniel Webster College.

Sections of the FAR Affected: 14 CFR

141.35(d)(2)(i).

Description of Relief Sought/

Disposition: To permit Mr. Joyce to be

eligible to serve as the chief flight

instructor for DWC without meeting the

required minimum flight training

experience of 1,000 flight hours.

DENIAL, May 21, 1998, Exemption No.

6774.

Docket No.: 29209.

Petitioner: AirNet Systems, Inc.

Sections of the FAR Affected: 14 CFR

135.143(c)(2).

Description of Relief Sought/

Disposition: To permit AirNet to operate

eight Learjet aircraft under the

provisions of part 135 without a TSO–

C112 (Mode S) transponder installed on

those aircraft. GRANT, May 22, 1998,

Exemption No. 6772.

Docket No.: 29201.

Petitioner: Capt. Richard P. Siano.

Sections of the FAR Affected: 14 CFR

121.383(c).

Description of Relief Sought/

Disposition: To permit the petitioner to

act as pilot in operations conducted

under part 121 after reaching his 60th

birthday. DENIAL, May 22, 1998,

Exemption No. 6773.

[FR Doc. 98–15459 Filed 6–9–98; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

Petition for Declaratory Order

Regarding Application of Federal

Motor Carrier Truth In-Leasing

Regulations

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Notice of denial of petition for

declaratory order.

SUMMARY: The Owner-Operator

Independent Drivers Association, Inc.

(OOIDA), Howard Jenkins, Marshall

Johnson, Susan Johnson and Jerry

Vanboetzelaer filed with the FHWA a

petition for declaratory order (the

OOIDA petition) seeking a formal ruling

by the FHWA that New Prime, Inc., dba

Prime, Inc. (Prime) and Success Leasing,

Inc. (Success) violated certain

provisions of the federal motor carrier

truth-in-leasing regulations (49 CFR part

376). This petition was filed after the

U.S. District Court for the Western

District of Missouri dismissed

petitioners’ class action complaint

against Prime and Success, seeking

enforcement of these regulations, on the

ground that FHWA has primary

jurisdiction to determine whether the

regulations have been violated.

The FHWA is denying the OOIDA

petition because it fails to raise any

issues not adequately addressed by

existing legal precedent which require

the special expertise of this agency.

Although denials of petitions for

declaratory orders will not ordinarily be

published in the Federal Register, the

FHWA is publishing this decision to
31828 Federal Register / Vol. 63, No. 111 /Wednesday, June 10, 1998 / Notices

provide guidance to courts, carriers,

owner-operators and other interested

parties regarding the agency’s general

policy in handling such petitions,

particularly those involving issues

arising under the truth-in-leasing

regulations. This policy applies to all

petitions for declaratory orders,

regardless of whether filed in

connection with private litigation.

FOR FURTHER INFORMATION CONTACT: Mr.

Michael J. Falk, Motor Carrier Law

Division, Office of the Chief Counsel,

(202) 366–1384, Federal Highway

Administration, Department of

Transportation, 400 Seventh Street,

SW., Washington, D.C. 20590. Office

hours are from 8 a.m. to 4:30 p.m., e.t.,

Monday through Friday, except Federal

holidays.

SUPPLEMENTARY INFORMATION:

The OOIDA Petition

On March 5, 1998, OOIDA and four

owner-operators filed a petition for

declaratory order seeking a ruling from

the FHWA that Prime and Success

violated the truth-in-leasing regulations.

Petitioners initially sought damages and

enforcement of these regulations by

filing a class action complaint, under 49

U.S.C. 14704, in the U.S. District Court

for the Western District of Missouri.

However, the court dismissed the

complaint on the ground that the FHWA

had primary jurisdiction to resolve the

issues in controversy.

According to the OOIDA petition,

several owner-operators leased

equipment to Prime which they

obtained through lease-purchase

agreements with Success, an equipment

leasing company allegedly under

common ownership with Prime. Under

the terms of these lease-purchase

agreements, Prime deducted rental/

purchase payments for the equipment

from the owner-operators’ compensation

and remitted the money to Success.

Owner-operators were also required to

remit money into several reserve funds

maintained by Success to cover the cost

of repairs and maintenance of the

equipment. Owner-operators who

terminated their leases with Prime were

not refunded their reserve fund

balances.

Petitioners claim that Prime violated

49 CFR 376.12(i) because its leases

failed to specify the terms of any leasepurchase agreement authorizing the

carrier to deduct lease purchase

payments from lessor compensation.

They also allege that the reserve funds

maintained by Success are escrow funds

within the meaning of 49 CFR 376.2(f),

and that any balances in these funds

must be returned to them with interest,

within 45 days of termination of their

leases, under 49 CFR 376.12(k).

Petitioners contend that the district

court’s dismissal of their complaint,

potentially with prejudice: (1) conflicts

with their right to seek private

enforcement by filing a civil action

under § 14704; (2) conflicts with

congressional intent to eliminate DOT’s

role in resolving private disputes; and

(3) improperly applied the doctrine of

primary jurisdiction, which is limited to

cases where the reasonableness of a

federal regulation is in dispute and an

agency’s technical expertise is necessary

to resolve the issues before the court.

Petitioners have appealed the dismissal

of their complaint to the Court of

Appeals for the Eighth Circuit.

Consequently, petitioners request, in the

alternative, that the FHWA rulethat it

lacks primary jurisdiction over

regulatory issues where a private party

has elected to litigate these issues in

federal district court under 49 U.S.C.

14704. Petitioners further contend that

FHWA’s technical expertise is not

needed in this case because the

Interstate Commerce Commission (ICC)

previously ruled on the applicability of

the part 376 escrow provisions to

carrier-affiliated equipment leasing

companies in Dart Transit Company—

Petition for Declaratory Order, 9 I.C.C.

2d 700 (1993).

Petitions for Declaratory Orders

Although fairly new to the FHWA,

petitions for declaratory orders were a

common device for obtaining guidance

from the ICC in resolving disputes

within that agency’s jurisdiction. An

agency’s authority to issue declaratory

orders comes from § 5(d) of the

Administrative Procedure Act, 5 U.S.C.

554(e), which gives agencies ‘‘sound

discretion’’ to issue declaratory orders

to ‘‘terminate a controversy or remove

uncertainty’’. The FHWA intends to

exercise this authority much more

selectively than the ICC because

Congress, in transferring several ICC

functions to the Department of

Transportation (DOT) through the ICC

Termination Act of 1995 (ICCTA),

envisioned that DOT would generally

not become involved in resolving

disputes between private parties.

The ICCTA expanded the rights and

remedies of persons injured by carriers

by providing for private enforcement of

its provisions in court. Under 49 U.S.C.

14704, an injured party may seek both

damages and injunctive relief against a

motor carrier in federal district court to

redress violations of part 376. In

discussing this provision, the House

Transportation and Infrastructure

Committee stated that DOT should not

allocate its scarce resources to resolving

essentially private disputes, and that the

right of private enforcement ‘‘will

permit these private, commercial

disputes to be resolved the way that all

other commercial disputes are

resolved—by the parties’’. H. Rep. No.

104–311, pp. 87–88.

The FHWA believes that issuing

declaratory orders, except in

extraordinary circumstances, would

undermine the Congressional intent to

keep DOT out of private commercial

disputes, particularly where one of the

parties has filed suit in federal court

under § 14704. Accordingly, although

the FHWA reserves the right to issue

declaratory orders to resolve

controversies between third parties in

appropriate circumstances, it will

generally do so only in cases having

industry-wide significance that raise

issues not adequately addressed by

existing legal precedent.

Primary Jurisdiction

The doctrine of primary jurisdiction is

‘‘a doctrine specifically applicable to

claims properly cognizable in court that

contain some issue within the special

competence of an administrative

agency.’’ Reiter v. Cooper, 507 U.S. 258

(1993), at 268. In contrast to the doctrine

of exhaustion of administrative

remedies, it does not require parties to

seek relief from the agency before

invoking the jurisdiction of the court.

The court, when faced with an issue it

believes requires the special expertise of

an agency, has equitable discretion to

give that agency the first opportunity to

pass on the issue by staying further

proceedings and giving the parties a

reasonable opportunity to seek an

administrative ruling. However, an

agency is not required to rule on issues

directly referred to it by a court or, as

in this case, indirectly referred to it

following a court’s order of dismissal. If

an agency declines to issue a ruling, the

court must then resolve the issues

without the benefit of the agency’s

views. See Atchison, Topeka & S.F. Ry.

Co. v. Aircoach Transp. Ass’n, 253 F.2d

877 (D.C. Cir.,1958).

Although the FHWA does not agree

with petitioners’ contention that the

doctrine of primary jurisdiction applies

only to issues involving the

reasonableness of a federal regulation, it

does agree that special expertise is

generally not needed to resolve disputes

regarding the part 376 truth-in-leasing

regulations. These regulations contain

specific, straightforward, non-technical

requirements which a court is ordinarily

competent to construe. Consistent with

the Congressional intent underlying 49

U.S.C. 14704, the FHWA will generally
Federal Register / Vol. 63, No. 111 /Wednesday, June 10, 1998 / Notices 31829

decline to exercise its primary

jurisdiction with regard to court

referrals involving violations of part

376.

Conclusion

The OOIDA petition does not raise

issues which require special expertise

by the FHWA. The questions of whether

Prime’s leases contain the necessary

terms required by § 376.12(i), or

whether escrow funds were returned

within 45 days of lease termination, are

fairly straightforward matters clearly

within the competence of a court to

resolve. Although part 376 does not

expressly apply to carrier-affiliated

equipment leasing companies, the ICC

fully addressed the applicability of the

regulations to such entities in the Dart

decision. The FHWA sees no reason to

revisit this issue. Accordingly, OOIDA’s

petition for declaratory order is denied.

In Washington, District of Columbia, this

29th day of May, 1998.

Gloria J. Jeff,

Deputy Administrator, Federal Highway

Administration.

[FR Doc. 98–15391 Filed 6–9–98; 8:45 am]

BILLING CODE 4910–22–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 33407]

Dakota, Minnesota & Eastern Railroad

Corporation—Construction and

Operation of New Rail Facilities in

Campbell, Converse, Niobrara, and

Weston Counties, Wyoming, Custer,

Fall River, Jackson, and Pennington

Counties, South Dakota, and Blue

Earth, Nicollet, and Steele Counties,

Minnesota

AGENCY: Surface Transportation Board.

ACTION: Notice of Availability of Draft

Scope of Study for the Environmental

Impact Statement (EIS) and Request for

Comments.

SUMMARY: On February 20, 1998, the

Dakota, Minnesota & Eastern Railroad

Corporation (DM&E) filed an application

with the Surface Transportation Board

(Board) for authority to construct and

operate new rail line facilities in eastcentral Wyoming, southwest South

Dakota, and south-central Minnesota.

The project involves a total new

construction of 280.9 miles of rail line.

Additionally, DM&E proposes to rebuild

597.8 miles of existing rail line along its

current system to standards acceptable

for operation of unit coal trains. Because

the construction and operation of this

project has the potential to result in

significant environmental impact, the

Board’s Section of Environmental

Analysis (SEA) has determined that the

preparation of an Environmental Impact

Statement (EIS) is appropriate. SEA will

hold agency and public scoping

meetings as part of the EIS process, as

discussed in the Notice of Intent to

Prepare an Environmental Impact

Statement (EIS), Request for Comments

on the Proposed EIS Scope, and Notice

of Scoping Meetings published by the

Board on March 27, 1998. As part of the

scoping process, the SEA has developed

a draft Scope of Study for the EIS. The

draft Scope of Study presents those

issues that would normally be evaluated

in an EIS for a project of this nature.

DATES: Written comments on the draft

Scope of Study are due July 10, 1998.

FILING ENVIRONMENTAL COMMENTS:

Interested persons and agencies are

invited to participate in the EIS scoping

process. A signed original and 10 copies

of comments should be submitted

separately to: Office of the Secretary,

Case Control Unit, STB Finance Docket

No. 33407, Surface Transportation

Board, 1925 K Street, NW, Washington,

D.C. 20423–0001.

To ensure proper handling of your

comments, you must mark your

submission: Attention: Elaine K. Kaiser,

Chief, Section of Environmental

Analysis, Environmental Filing.

FOR FURTHER INFORMATION CONTACT: Ms.

Victoria Rutson, SEA Project Manager,

Powder River Basin Expansion Project,

(202) 565–1545 or Mr. Steve Thornhill

of Burns & McDonnell, SEA’s third

party contractor, at (816) 822–3851.

SUPPLEMENTARY INFORMATION:

Draft Scope of Study for the EIS

Proposed Action and Alternatives

The proposed action, referred to as

the Powder River Basin Expansion

Project, would involve the construction

and operation of 280.9 miles of new rail

line and the rebuilding of 597.8 miles of

existing rail line by the Dakota,

Minnesota & Eastern Railroad

Corporation (DM&E), Brookings, South

Dakota, as described in the February 20,

1998 application for construction and

operation authority for the project filed

by DM&E and in the March 27, 1998

Notice of Intent to Prepare an EIS

published in the Federal Register by the

Board.

Consistent with its jurisdiction under

the ICC Termination Act of 1995, Pub.

L. No. 104–88, 109 Stat. 803 (1995), the

Board intends to conduct an

environmental analysis of the new

construction and the increase in

operations over DM&E’s existing system.

The EIS will not consider any proposed

construction or improvements to

DM&E’s existing system, but will

address the anticipated impacts of the

projected increases in train traffic over

the entire existing system.

The reasonable and feasible

alternatives that will be evaluated in the

EIS are (1) the no-action alternative (2)

construction of the project along the

identified preferred alignments in

Wyoming and South Dakota for the

mainline extension and in Minnesota

for the Mankato Bypass and Owatonna

connecting track and (3) construction of

the project along each of the identified

alternative alignments in Wyoming and

South Dakota for the mainline extension

and in Minnesota for the Mankato

Bypass and Owatonna connecting track.

Environmental Impact Analysis

Proposed New Construction

Analysis in the EIS will address the

proposed activities associated with the

construction and operation of new rail

facilities and their potential

environmental impacts, as appropriate.

The scope of the analysis will include

the following activities:

1. Proposed construction of new rail

mainline extension to access coal mines

south of Gillette, Wyoming.

2. Proposed construction of new rail

mainline to bypass DM&E’s existing

trackage rights on Union Pacific

Railroad in Mankato, Minnesota.

3. Proposed construction of new rail

line connection between DM&E and

I&M Rail Link south of Owatonna,

Minnesota.

Impact Categories

The EIS will address potential

impacts from the proposed construction

and operation of new rail facilities on

the human and natural environment.

Impacts areas addressed will include

the categories of land use, biological

resources, water resources, geology and

soils, air quality, noise, energy

resources, socioeconomics as they relate

to physical changes in the environment,

safety, transportation systems, cultural

and historic resources, recreation,

aesthetics, and environmental justice.

The EIS will include a discussion of

each of these categories as they

currently exist in the project area and

address the potential impacts from the

proposed project on each category as

described below:

1. Land Use

The EIS will:

A. Describe existing land use patterns

within the project area and identify

those land uses and the amounts of each