Animal and Plant Health Inspection Service
Food Safety and Inspection Service
Grain Inspection, Packers and Stockyards Administration
National Agricultural Library
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Engineers Corps
Foreign-Trade Zones Board
International Trade Administration
Army Department
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Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Children and Families Administration
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Justice Programs Office
Veterans Employment and Training Service
Committee for the Implementation of Textile Agreements
Federal Aviation Administration
Federal Highway Administration
Maritime Administration
Research and Special Programs Administration
Saint Lawrence Seaway Development Corporation
Thrift Supervision Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Animal and Plant Health Inspection Service, USDA.
Final rule.
We are amending the regulations by adding the fluorescence polarization assay to the lists of confirmatory and official tests for determining the brucellosis disease status of test-eligible cattle, bison, and swine. This action is warranted because the fluorescence polarization assay has been shown to provide an efficient, accurate, automated, and cost-effective means of determining the brucellosis status of test eligible cattle, bison, and swine. Adding the fluorescence polarization assay to the lists of confirmatory and official tests for brucellosis in cattle, bison, and swine will help to prevent the spread of brucellosis by making available an additional tool for its diagnosis in those animals.
Effective December 6, 2004.
Dr. Arnold Gertonson, National Center for Animal Health Programs, VS, APHIS, 2150 Centre Avenue, Bldg. B. MSC 3E20, Fort Collins, CO 80526-8117; (970) 494-7363.
Brucellosis is a contagious disease affecting animals and humans, caused by bacteria of the genus
On May 6, 2004, we published in the
We solicited comments concerning our proposal for 60 days ending June 21, 2004. We subsequently reopened the comment period until July 21, 2004, in a document published in the
Some commenters stated that the Animal and Plant Health Inspection Service's (APHIS's) intentions regarding testing on wild bison were unclear in the proposed rule and that a statement should be added in the final rule clarifying that we do not intend to use the FP assay on wild bison. The commenters requested that APHIS provide additional information, including an additional disclosure of all FP assay validation data for bison, an analysis of FP assay data from Yellowstone National Park bison sampled in the winter of 2002-2003, and a description of the specific FP assay procedures that would be used on Yellowstone bison. The commenters stated that even if APHIS were to provide this additional information to their satisfaction, APHIS would need to prove that it had legal authority over wild bison. The commenters admitted that while “animal,” as defined by the Animal Health Protection Act (AHPA), includes wild animals, the Act limits APHIS's authority to domestic livestock and other animals that are under human control. The commenters contended that the FP assay cannot be applied to wild animals because their movements are not associated with interstate trade or importation. The commenters added that the only circumstances in which APHIS would have control over wildlife is if the Secretary determines that an extraordinary emergency exists because of the presence in the United States of a pest or disease that threatens U.S. livestock. The commenters note that the Secretary has not done so for brucellosis to date.
With respect to the commenters' request for additional information, we note that the data and analyses sought by the commenters are summarized in the report we made available with the proposed rule. As noted earlier in this document, the report may be viewed on the Internet at
We do not agree with the commenters' characterization of APHIS's authority under the AHPA. For example, the AHPA gives APHIS broad authority “to carry out operations and measures to detect, control, or eradicate any pest or disease of livestock (including the drawing of blood and diagnostic testing of animals)” (7 U.S.C. 8308). This provision clearly includes testing of wild animals if it is determined that such animals pose a threat of spreading disease to U.S. livestock. As the commenter noted, the term “animal” is defined to include any member of the animal kingdom. In the past wild bison and elk have been identified as the source of brucellosis infection in domestic livestock, and we will test such animals when we believe it is necessary to prevent the further spread of brucellosis in livestock.
One commenter suggested that we amend our proposed changes to the definition of
We are approving the FP assay as an official test, meaning it can be carried out whenever it is considered necessary to test cattle, bison, and swine for brucellosis. We agree with this commenter that the FP assay is also recognized as a confirmatory test, but rather than amending paragraph (a)(13) of the definition of
Some commenters stated that APHIS and/or other agencies involved in Yellowstone bison management must first evaluate the potential impacts of the FP assay on bison in the Greater Yellowstone Area before using the test on wild bison. They requested an environmental assessment be conducted evaluating potential environmental effects on using the test on wild bison in the Yellowstone area.
We have determined that an environmental assessment is not needed in connection with our addition of the FP assay to the lists of official and confirmatory tests. With respect to bison, by adding the FP assay to the lists of official and confirmatory tests, we are merely saying that it is a tool that can be used for test-eligible bison (with no distinction between domestic and wild bison) without requiring its use. The record of decision (ROD) for the environmental impact statement (EIS) prepared for the Bison Management Plan
Some commenters requested proof that the test's validation process is consistent with Office of International Epizooties (OIE) standards. The commenters contended that APHIS did not follow the appropriate process, as set by OIE, in validating the FP assay, which includes conducting an estimate of the disease prevalence in the specific population and ensuring that diagnostic sensitivity and specificity estimates are as accurate as possible.
We believe that the FP assay validation process was consistent with OIE standards. In fact, the FP assay is recognized by OIE as one of four serologic tests recommended for use in diagnosing bovine brucellosis. According to OIE's
Evidence has previously been presented in the FP assay validation report regarding the performance of the FP assay among cattle, bison, and swine populations in several countries, including Canada and the United States. OIE's
Some commenters stated that the FP assay suffers from the same flaw that other brucellosis tests do in that it can only detect exposure, not infection. The commenters stated that no research was done regarding the potential for cross-reactive antibodies in wild bison that might result in false-positive results and contended that the use of this test on wild bison will lead to the additional slaughter of bison that were only exposed but not infected.
Research shows the FP assay to be highly accurate, easily performed, and more effective than other brucellosis tests. We believe this will lead to animals being more accurately diagnosed and prevent the unnecessary slaughter of uninfected bison.
The FP assay validation report contained data showing the FP assay, in one study, to have 100 percent sensitivity. Some commenters took issue with this conclusion. The commenters noted that some data in the report indicated that a large number of serologically positive animals were later found to have been slaughtered unnecessarily because they were culture-negative and therefore not infected.
The commenters are incorrect in their calculations of sensitivity. Sensitivity is determined by calculating the proportion of infected animals that are positive to the test under consideration. One hundred percent of the animals that were culture-positive were positive to the FP assay, for a sensitivity of 100 percent. And 100 percent of the animals that were serologically positive to other tests were positive to the FP assay, again a sensitivity of 100 percent. Nevertheless, these results are from one study of the FP assay's performance. Another study cited in our technical report found the FP assay to have a 92 percent sensitivity (Gall 2000). It is not expected that any serologic test is truly 100 percent sensitive, but in comparison with other serologic brucellosis assays, the studies show that the FP assay has consistently high sensitivity. As stated in our response to the previous comment, we believe the accuracy, ease of use, and effectiveness of the FP assay will lead to more accurate diagnoses of brucellosis and prevent the unnecessary slaughter of uninfected animals.
Two commenters took issue with the description of the testing procedure we provided in the proposed rule's supplementary information section. The commenters stated that we described an indirect binding or competitive binding assay, but the FP assay is actually a direct binding assay. Both commenters recommended we describe the procedure as follows:
The brucellosis FP diagnostic assay is a direct binding assay that uses fluorescence polarization technology to determine the presence of
The technician performs the test as follows. A specific quantity of a sample of animal serum is added to a glass test tube or microtitre plate well containing a specified amount of buffer solution. The fluorescence polarization measurement instrument is used to determine the natural fluorescence of the sample in the buffer solution. Then, the technician adds a specific quantity of fluorescent conjugate antigen. And then the fluorescence polarization instrument measures the change in fluorescence polarization of the conjugate which indicates if the antibody is present in the sample.
We agree that the text suggested by the commenters clarifies the FP assay's binding type. However, because the paragraphs pointed out by the commenters appeared only in the proposed rule's supplementary information section, it is not necessary to make any changes in the regulatory text of this final rule in response to the comments.
One commenter suggested that we retain the provisions that were found in paragraph (a)(13) of the definition of
It appears that the commenter misunderstood; we did not propose to remove the text of paragraph (a)(13) in the definition of
Some commenters stated that while the assay interpretation for swine is the same as that for bison and cattle, the FP assay for swine uses 40 microliters of sample instead of the 10 microliters of sample used for cattle and bison. For suspect swine samples, the test is repeated using a 40-microliter sample, whereas the sample size is doubled (to 20 microliters) when repeating the test for suspect cattle and bison samples.
We agree with these commenters and have changed all references to sample amounts to 40 microliters in paragraph (b)(5) of the definition of
The supplementary information of our proposal described a test tube being used to perform the FP assay. Two commenters noted that the FP assay can be conducted in either a test tube or a microtiter plate format.
We agree with these commenters and acknowledge so in this final rule. However, this information appeared in the background information of the proposed rule and did not appear in the text of the proposed regulations.
One commenter suggested adding a sentence to the background information stating that FP assay technology has been developed for numerous human applications.
We believe it is unnecessary to describe human applications of FP assay technology in this rule concerning brucellosis in cattle, bison, and swine.
One commenter stated that the concentration immunoassay technology (CITE
We are not removing the CITE
One commenter suggested adding the following sentence to the economic analysis's discussion of the price of the FP assay: “A smaller test kit size is being planned. High volume purchases are expected to have pricing discounts.”
We have added a statement to the economic analysis indicating the possibility of smaller kits in the future and the possible effects on test kit prices. The addition of this statement has no effect on the conclusions of our economic analysis, however.
One commenter stated that cattle should be kept out of areas where bison live. The commenter added that we should perform brucellosis tests on all cattle within 20 miles of bison. The commenter also suggested that all cattle movement between States stop.
We do not believe that such extreme steps are warranted or necessary to prevent the spread of brucellosis in the United States.
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.
This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.
We are amending the regulations by adding the FP assay to the lists of confirmatory and official tests for determining the brucellosis disease status of test-eligible cattle, bison, and swine. This action is warranted because the FP assay has been shown to provide an efficient, accurate, automated, and cost-effective means of determining the brucellosis status of test eligible cattle, bison, and swine. Adding the FP assay to the lists of confirmatory and official tests for brucellosis in cattle, bison, and swine will help to prevent the spread of brucellosis by making available an additional tool for its diagnosis in those animals.
This new test will help to prevent the spread of brucellosis by identifying infected cattle, bison, and swine. Preventing the spread of brucellosis is critical because of its potentially costly consequences for U.S. herd owners and consumers. In 1952, when brucellosis was widespread throughout the United States, annual losses from lowered milk production, aborted calves and pigs, and reduced breeding efficiency were estimated to total more than $400 million. Since then, eradication efforts have reduced annual losses due to brucellosis to less than $1 million. However, studies have shown that if eradication efforts were stopped, the cost of producing beef and milk would increase by an estimated $80 million annually in less than 10 years.
While the test will provide long-term benefits by identifying animals infected with brucellosis, herd owners with animals that are found to be positive as a result of the FP assay, or any other official test, may experience some negative consequences. Once an infected herd is identified, the infection is contained by quarantining all infected animals and limiting their movement to slaughter only, until the disease can be eliminated from the herd. Quarantines affect the current income of herd owners, and depopulation affects their future income. Depopulation costs are mitigated by the sale of affected animals for slaughter and indemnity payments, but, in many cases, indemnification provides only partial compensation.
However, there is no basis to conclude that the addition of the FP assay as an official and confirmatory test for brucellosis will result in more positive finds in privately owned herds
We do not expect that adding the FP assay to the lists of official and confirmatory tests for brucellosis will affect the market price of animals tested. Although more rapid testing may allow faster marketing, the effect on herd owners is not expected to be significant.
The Regulatory Flexibility Act requires that agencies consider the economic impact of rule changes on small businesses, organizations, and governmental jurisdictions. We expect that the entities that will be affected by the addition of the FP assay to the lists of official and confirmatory tests will be herd owners, test reagent and equipment producers, livestock markets, shows, and exhibitions, and livestock buyers and sellers. It is anticipated that affected entities will be positively affected because the use of this test should provide greater assurance of the brucellosis status of the animals tested.
Affected herd owners are likely to be small in size (when judged by the U.S. Small Business Administration's (SBA) standards). This determination is based on composite data for providers of the same and similar services. The latest Census data show that, in 2002, there were 736,968 farms in the United States primarily engaged in beef cattle ranching and farming and dairy cattle and milk production. In 2002, 98 percent of those farms had sales of less than $500,000, which is well below the SBA's small entity threshold of $750,000 for farms in that category. Similarly, in 2002, there were 33,655 U.S. farms primarily engaged in raising hogs and pigs. Of those farms, 81 percent had sales that year of less than $500,000, which is well below the SBA's small entity threshold of $750,000 for farms in that category. Additionally, in 2002, there were 41,238 farms listed under North American Industry Classification System code 11299, the classification category that includes farms primarily engaged in bison farming. The per-farm average sales for those 41,238 farms in 2002 was $39,868, which is well below the SBA's small entity threshold of $750,000 for farms in that category. Accordingly, most herd owners potentially affected by this rule will be small entities.
The test will be performed at Federal/State cooperative brucellosis laboratories. Depending upon the Federal/State brucellosis cooperative agreement, APHIS may supply the reagents and equipment for performing this test. If APHIS supplies the reagents and equipment, it is anticipated that the test cost to the livestock producer will be the same as for the other brucellosis test options.
Currently, the reagents are sold in two kit sizes, a 1,000-test kit ($1.00/test) and a 10,000-test kit ($0.50/test). The costs to the laboratory to perform the test will vary, depending upon the number of tests performed. The test kit manufacturer has indicated that a smaller test kit size is being planned and that high volume purchases are expected to have pricing discounts. However, we currently have no information indicating what those discounts may be.
A consideration that may affect the livestock producer is whether the test is performed by a federally accredited veterinarian at a livestock market. If the market inspecting veterinarian uses the test, the cost may vary depending upon the agreement the veterinarian has with the State to perform brucellosis testing at the market.
It is anticipated that the test reagent and equipment producers will benefit from increased sales due to increased usage of the test. With increased usage of the test, the cost of the reagents and equipment should decline over time.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
This final rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Animal diseases, Bison, Cattle, Hogs, Quarantine, Reporting and recordkeeping requirements, Transportation.
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
(13)
(b) * * *
(5)
(6) The evaluation of test results for all swine shall be the responsibility of a designated epidemiologist in each State. The designated epidemiologist shall consider the animal and herd history and other epidemiologic factors when determining the brucellosis classification of swine. Deviations from the brucellosis classification criteria as provided in this definition of official test are acceptable when made by the designated epidemiologist.
In Title 10 of the Code of Federal Regulations, Parts 51 to 199, revised as of January 1, 2004, in part 74, at the beginning of page 466, the following text is reinstated:
The Commission may, upon application of any interested person or upon its own initiative, grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law and will not endanger life or property or the common defense and security, and are otherwise in the public interest.
(a) The Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act (44 U.S.C. 3501
(b) The approved information collection requirements contained in this part appear in §§ 74.11, 74.13, 74.15, 74.17, 74.19, 74.31, 74.33, 74.41, 74.43, 74.45, 74.51, 74.57, and 74.59.
(c) This part contains information collection requirements in addition to those approved under the control number specified in paragraph (a) of this section. These information collection requirements and the control numbers under which they are approved are as follows:
(1) In § 74.15, DOE/NRC Form-741 is approved under Control No. 3150-0003.
(2) In § 74.13, DOE/NRC Form-742 is approved under Control No. 3150-0004.
(3) In § 74.13, DOE/NRC Form-742C is approved under Control No. 3150-0058.
(4) In § 74.17, NRC Form 327 is approved under Control No. 3150-0139.
(a) Each licensee who possesses one gram or more of contained uranium-235, uranium-233, or plutonium shall notify the NRC Operations Center within 1 hour of discovery of any loss or theft or other unlawful diversion of special nuclear material which the licensee is licensed to possess, or any incident in which an attempt has been made to commit a theft or unlawful diversion of special nuclear material. The requirement to report within 1 hour of discovery does not pertain to measured quantities of special nuclear material disposed of as discards or inventory difference quantities. Each licensee who operates an uranium enrichment facility shall notify the NRC Operations Center within 1 hour of discovery of any unauthorized production of enriched uranium. For centrifuge enrichment facilities the requirement to report enrichment levels greater than
Office of Thrift Supervision, Treasury.
Final rule.
The Federal Civil Penalties Inflation Adjustment Act of 1990 requires all federal agencies with statutory authority to impose civil money penalties (CMPs) to evaluate and adjust those CMPs every four years. The Office of Thrift Supervision (OTS) last adjusted its CMP statutes in 2000. Consequently, OTS is issuing this final rule to implement the required adjustments to OTS's CMP statutes.
Effective November 4, 2004.
Timothy P. Leary, Counsel (Banking & Finance), (202) 906-7170, Regulations and Legislation Division, Office of the Chief Counsel, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
The Federal Civil Penalties Inflation Adjustment Act of 1990
While the CMP statutes of many agencies provide for minimum and maximum penalty amounts, all of OTS's CMP statutes provide only for a daily maximum amount per violation. Today's rule therefore refers only to maximum CMPs. Today's increases in maximum CMPs may not necessarily affect the amount of any CMP that OTS may seek for a particular violation. OTS calculates each CMP on a case-by-case basis based upon a variety of factors (including the gravity of the violation, whether the violation was willful or recurring, and any harm to the depository institution). As a result, the maximums merely serve as caps.
Under the statute, the agency determines the inflation adjustment by increasing the maximum CMP by a “cost-of-living” adjustment. The “cost-of-living” adjustment is the percentage by which the Consumer Price Index (CPI) for the month of June of the calendar year preceding the adjustment exceeds the CPI for the month of June of the calendar year in which the amount of the CMP was last set or adjusted. Under Section 3 of the statute, the CPI is the Consumer Price Index for all urban consumers (CPI-U) published by the Department of Labor.
The statute contains specific rules for rounding any increase.
To explain the inflation adjustment calculation, we will use the following example. Under 12 U.S.C. 1818(i), as adjusted in 2000 under 12 CFR 509.103, OTS may impose a daily maximum third-tier CMP not to exceed $1,175,000 for violations of certain banking laws.
First, we determine the appropriate CPI-Us. The statute requires OTS to use the CPI-U for June of the calendar year preceding the year of adjustment. Here, because we are adjusting CMPs in 2004, we use the CPI-U for June 2003, which was 183.7. We must also determine the CPI-U for June of the year the CMP was last set by law or adjusted for inflation. Because OTS last adjusted the CMPs under 12 U.S.C. 1818 in 2000, we use the CPI-U for June 2000, which was 172.4.
Second, we calculate the cost of living adjustment or inflation factor. To do this, we divide the CPI-U for June 2003 (183.7) by the CPI-U for June 2000 (172.4). Our result is 1.065 (
Third, we calculate the raw inflation adjustment. To do this, we multiply the maximum penalty amounts by the inflation factor. In our example, $1,175,000 multiplied by the inflation factor of 1.065 equals $1,251,375.
Fourth, we round the raw inflation amounts according to the rounding rules in sec. 5(a) of the FCPIAA. Since we round only the increased amount, we calculate the increased amount by subtracting the current maximum penalty amounts from the raw maximum inflation adjustments. Accordingly, the increased amount for the maximum penalty in our example is $76,375 (
Fifth, we add the rounded increase to the maximum penalty amount last set or adjusted. In our example, $1,175,000 plus $75,000 yields a maximum inflation adjusted penalty amount of $1,250,000.
Moreover, because of application of the rounding rules, the $350 per violation penalty for failure to require flood insurance or notify the borrower of lack of coverage found in 42 U.S.C. 4012a(f) has never been adjusted for inflation. For that penalty, we compared the CPI-U for June of the year of enactment, 1994 (see Riegle Community Development and Regulatory Improvement Act of 1994, Pub. L. 103-325, Title V, section 525, 108 Stat. 2260) (148.0) with the CPI-U for June 2003 (183.7). This resulted in an inflation increase of 24.1%. Because this is the first time these CMPs have been adjusted pursuant to the statute, the adjustment cannot exceed 10%. The adjustment to the per violation penalty in 42 U.S.C. 4012a(f) therefore is capped at $35; the resulting penalty is $385.
To issue a final rule without public notice and comment, an agency must find good cause that notice and comment are impracticable, unnecessary, or contrary to the public interest.
Under the statute, agencies must make the required CMP inflation adjustments: (1) According to the very specific formula in the statute; and (2) within four years of the last inflation adjustment, or by October 31, 2004. Agencies have no discretion as to the amount or timing of the adjustment. The regulation is ministerial, technical, and noncontroversial. OTS is unable to vary the amounts of the adjustments to reflect any views or suggestions provided by commenters. Accordingly, OTS believes that notice and comment are unnecessary. For these same reasons, OTS believes that there is good cause to make this rule effective immediately upon publication.
An initial regulatory flexibility analysis under the Regulatory Flexibility Act (RFA) is required only when an agency must publish a general notice of proposed rulemaking.
OTS has determined that this final rule does not constitute a “significant
OTS had determined that the final rule will not result in expenditures by state, local, or tribal governments or by the private sector of $100 million or more. Accordingly, this rulemaking is not subject to sec. 202 of the Unfunded Mandates Act.
Administrative practice and procedure, Penalties.
5 U.S.C. 504, 554-557; 12 U.S.C. 1464, 1467, 1467a, 1468, 1817(j), 1818, 3349, 4717; 15 U.S.C. 78(l), 78o-5, 78u-2; 28 U.S.C. 2461 note; 31 U.S.C. 5321; 42 U.S.C. 4012a.
(c)
By the Office of Thrift Supervision.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA adopts a new airworthiness directive (AD) for all GROB-WERKE (GROB) Model G120A airplanes. This AD requires you to repetitively inspect visually the area between the vertical stabilizer main spar and the nearby vertical stabilizer skin for any disbonding/crack; repair any disbonding/crack found; and calculate weight and balance after any repair. This AD is the result of mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for Germany. We are issuing this AD to detect and correct any disbonding/crack in the area between the vertical stabilizer main spar and nearby stabilizer skin, which could result in possible structural failure. This failure could lead to difficulty in airplane flight control.
This AD becomes effective on December 27, 2004.
As of December 27, 2004, the Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulation.
To get the service information identified in this AD, contact GROB Luft-und Raumfahrt, Lettenbachstrasse 9, D-86874 Tussenhausen-Mattsies, Federal Republic of Germany; telephone: 011 49 8268 998139; facsimile: 011 49 8268 998200. To review this service information, go to the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, go to:
To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001 or on the Internet at
Karl Schletzbaum, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4146; facsimile: (816) 329-4090.
We estimate the following costs to do any necessary repairs that would be required based on the results of this proposed inspection. We have no way of determining the number of airplanes that may need this repair:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective on December 27, 2004.
(b) None.
(c) This AD affects Model G120A airplanes, all serial numbers, that are certificated in any category.
(d) This AD is the result of mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for Germany. The actions specified in this AD are intended to detect and correct any disbonding/crack in the area between the vertical stabilizer main spar and nearby stabilizer skin, which could result in possible structural failure. This failure could lead to difficulty in airplane flight control.
(e) To address this problem, you must do the following:
(f) You may request a different method of compliance or a different compliance time for this AD by following the procedures in 14 CFR 39.19. Unless FAA authorizes otherwise, send your request to your principal inspector. The principal inspector may add comments and will send your request to the Manager, Standards Office, Small Airplane Directorate, FAA. For information on any already approved alternative methods of compliance, contact Karl Schletzbaum, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4146; facsimile: (816) 329-4090.
(g) German AD Number D-2004-204, dated April 23, 2004, also addresses the subject of this AD.
(h) You must do the actions required by this AD following the instructions in GROB Luft-und Raumfahrt Service Bulletin No. MSB1121-049, dated April 20, 2004. The Director of the Federal Register approved the incorporation by reference of this service bulletin in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To get a copy of this service information, contact GROB Luft-und Raumfahrt, Lettenbachstrasse 9, D-86874 Tussenhausen-Mattsies, Federal Republic of Germany; telephone: 011 49 8268 998139; facsimile: 011 49 8268 998200. To review copies of this service information, go to the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, go to:
Federal Aviation Administration, DOT.
Final rule.
This amendment supersedes an existing airworthiness directive (AD), applicable to certain Boeing Model 747-400 series airplanes, that currently requires installation of strap assemblies on the ceiling panels and rails that support the video monitors. For certain airplanes, this amendment requires replacement of certain plate assemblies within the ceiling panel strap assemblies with new, improved plate assemblies. This amendment also revises the applicability by adding airplanes. The actions specified by this AD are intended to prevent ceiling panels from falling into the passenger cabin area in the event of failure of
Effective December 9, 2004.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of December 9, 2004.
The service information referenced in this AD may be obtained from Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Patrick Gillespie, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office; telephone (425) 917-6429; fax (425) 917-6590.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 99-18-07, amendment 39-11273 (64 FR 47372, August 31, 1999), which is applicable to certain Boeing Model 747-400 series airplanes, was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.
The Summary section of the proposed AD inadvertantly stated that the existing AD that is being superseded, AD 99-18-07, amendment 39-11273 (64 FR 47372, August 31, 1999), is applicable to certain Boeing Model 747-400 and 747-400D series airplanes. The existing AD is applicable only to certain Boeing Model 747-400 series airplanes. The Summary section of this final rule has been changed to correctly state that the existing AD is applicabe to certain Boeing Model 747-400 series airplanes.
We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.
There are approximately 346 airplanes of the affected design in the worldwide fleet. The FAA estimates that 43 airplanes of U.S. registry will be affected by this AD.
The actions that are currently required by AD 99-18-07, and retained in this AD, take approximately 9 work hours per ceiling panel, and between 18 and 126 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Required parts cost between $1,366 and $9,575 per airplane. Based on these figures, the cost impact of the previously required actions on U.S. operators is estimated to be between $2,536 and $17,765 per airplane.
The installation of new plates that is required by this new AD will take approximately 7 work hours per ceiling panel, and between 18 and 126 work hours per airplane, at an average labor rate of $65 per work hour. Required parts will cost between $1,700 and $12,200 per airplane. Based on these figures, the cost impact of the new requirements of this AD on U.S. operators is estimated to be between $2,870 and $20,390 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
To prevent ceiling panels from falling into the passenger cabin area in the event of failure of certain latch assemblies on the ceiling panels, which could result in
(a) For airplanes on which ceiling panel strap assemblies were installed in accordance with Boeing Alert Service Bulletin 747-25A3142, dated October 16, 1997; or Revision 1, dated August 6, 1998; or had plate assembly 411U5513-123 installed in production as of the effective date of this AD: Within 24 months after the effective date of this AD, replace any plate assembly having part number (P/N) 411U5513-123, with a new, improved plate assembly having P/N 411U5513-131, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-25A3142, Revision 3, dated August 14, 2003.
(b) For airplanes on which ceiling panel strap assemblies were not installed in accordance with Boeing Alert Service Bulletin 747-25A3142, dated October 16, 1997; or Revision 1, dated August 6, 1998: Within 24 months after the effective date of this AD, install strap assemblies on the ceiling panels and rails that support the video monitors in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-25A3142, Revision 3, dated August 14, 2003.
(c) Accomplishment of the specified actions before the effective date of this AD per Boeing Alert Service Bulletin 747-25A3142, Revision 2, dated March 20, 2003, is considered acceptable for compliance with the applicable requirements of paragraphs (a) and (b) of this AD.
(d)(1) In accordance with 14 CFR 39.19, the Manager, Seattle Aircraft Certification Office, FAA, is authorized to approve alternative methods of compliance (AMOCs) for this AD.
(2) Alternative methods of compliance, approved previously in accordance with AD 99-18-07, amendment 39-11273, are approved as alternative methods of compliance with the applicable actions of this AD.
(e) Unless otherwise specified in this AD, the actions shall be done in accordance with Boeing Alert Service Bulletin 747-25A3142, Revision 3, dated August 14, 2003. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
(f) This amendment becomes effective on December 9, 2004.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for certain Gulfstream Model GV and GV-SP series airplanes. This AD requires a one-time general visual inspection for contact or insufficient clearance between the crew oxygen bottle/supports and any wiring harness, and related investigative and corrective actions if necessary. This AD also requires, for certain airplanes, adjusting the wiring harness to obtain a minimum clearance between the crew oxygen bottle and wiring, and applying Teflon sheeting, as applicable; and for certain other airplanes, reworking certain wiring bundles. This AD is prompted by reports of insufficient clearance between certain wiring harnesses and the crew oxygen bottle on several in-production and in-service airplanes. We are issuing this AD to prevent chafing of the electrical wires of the wiring harness against the crew oxygen bottle, which could result in electrical shorting and possible fire in the underfloor structure of the airplane.
Effective November 19, 2004.
The incorporation by reference of certain publications listed in the AD is approved by the Director of the Federal Register as of November 19, 2004.
We must receive comments on this AD by January 3, 2005.
Use one of the following addresses to submit comments on this AD.
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590.
Fax: (202) 493-2251.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this AD, contact Gulfstream Aerospace Corporation, P.O. Box 2206, Mail Station D-10, Savannah, Georgia 31402-9980. You can examine this information at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
You can examine the contents of this AD docket on the Internet at
The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.
You can examine the AD docket on the Internet at
We have received reports indicating that insufficient clearance was found between certain wiring harnesses and the crew oxygen bottle on several in-production and in-service Gulfstream Model GV and GV-SP series airplanes. Interference between the wiring harness and crew oxygen bottle could cause chafing of the electrical wires of the wiring harness and consequent electrical shorting. Electrical shorting, if not prevented, could result in a fire in the underfloor structure of the airplane.
On August 26, 1998, we issued AD 98-18-15, amendment 39-10731 (63 FR 46870, September 3, 1998), which addresses the same unsafe condition as this AD. AD 98-18-15 is applicable to certain other Gulfstream Model GV series airplanes (serial numbers 501 through 549 inclusive) that are not included in the applicability of this AD. That AD currently requires a one-time inspection to measure the clearance between a certain wiring harness and the crew oxygen bottle; corrective actions, if necessary; and eventual relocation of the crew oxygen bottle and rework of the lines and tubing associated with the crew and passenger oxygen bottles.
We have reviewed the following customer bulletins:
• Adding new harness supports to the existing harness supports at stations 241, 253, and 265;
• For certain airplanes, relocating the completion center wire bundle through the new support, and for certain other airplanes, relocating wire bundle R77 ORG through the new support; and
• Inspecting any remaining harness bundles in the area around the passenger and crew oxygen bottles, and redressing any harness bundles that do not meet the minimum separation requirement of 0.500 inch.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.
The unsafe condition described previously is likely to exist or develop on other airplanes of the same type design. Therefore, we are issuing this AD to prevent chafing of the electrical wires of the wiring harness against the crew oxygen bottle, which could result in electrical shorting and possible fire in the underfloor structure of the airplane. This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and Customer Bulletins.”
In this AD, the inspections for clearance and damage to wiring specified in the Gulfstream customer bulletins are referred to as “general visual inspections.” We have included the definition for a general visual inspection in a note in this AD.
Although the customer bulletins specify that operators may contact the manufacturer for disposition of certain repair conditions, this AD would require operators to repair those conditions according to a method approved by the FAA.
Although the customer bulletins referenced in this AD specify to submit certain information to the manufacturer, this AD does not include that requirement.
An unsafe condition exists that requires the immediate adoption of this AD; therefore, providing notice and opportunity for public comment before the AD is issued is impracticable, and good cause exists to make this AD effective in less than 30 days.
This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any relevant written data, views, or arguments regarding this AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications with you. You can get more information about plain language at
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective November 19, 2004.
(b) None.
(c) This AD applies to Gulfstream Model GV series airplanes, serial numbers (S/N) 550 through 693 inclusive and 699; and Model GV-SP series airplanes, S/N 5001 through 5051 inclusive; certificated in any category.
(d) This AD was prompted by reports of insufficient clearance between certain wiring harnesses and the crew oxygen bottle on several in-production and in-service airplanes. The FAA is issuing this AD to prevent chafing of the electrical wires of the wiring harness against the crew oxygen bottle, which could result in electrical shorting and possible fire in the underfloor structure of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) The term “customer bulletin,” as used in this AD, means the Accomplishment Instructions of the following customer bulletins, as applicable:
(1) Gulfstream GV Alert Customer Bulletin 21, dated September 13, 2004 (for Model GV series airplanes);
(2) Gulfstream G500 Alert Customer Bulletin 1, dated September 13, 2004, including Gulfstream Drawing 1159SB59987, Revision A, dated September 8, 2004 (for Model GV-SP (G500) series airplanes); and
(3) Gulfstream G550 Alert Customer Bulletin 1, dated September 13, 2004, including Gulfstream Drawing 1159SB59987, Revision A, dated September 8, 2004 (for Model GV-SP (G550) series airplanes).
(g) For all airplanes: Within 25 flight hours after the effective date of this AD, do a one-time general visual inspection for contact or insufficient clearance between the crew oxygen bottle/supports and any wiring harness, and related investigative and corrective actions if necessary, by doing all of the actions in Part I of the applicable customer bulletin. If any damage is found during the general visual inspection required by this AD, and the customer bulletin specifies contacting Gulfstream for appropriate action: Before further flight, repair the damage according to a method approved by the Manager, Atlanta Aircraft Certification Office (ACO), FAA. For a repair method to be approved by the Manager, Atlanta ACO, as required by this paragraph, the Manager's approval letter must specifically refer to this AD.
For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(h) For Model GV series airplanes: If the clearance between the crew oxygen bottle/supports and any wiring harness is found to be 0.250 inch or more during the inspection required by paragraph (g) of this AD, no further action is required by this AD. If the clearance between the crew oxygen bottle/supports and any wiring harness is found to be less than 0.250 inch during the inspection required by paragraph (g) of this AD, within 150 flight hours after completing paragraph (g) of this AD, adjust the wiring harness to obtain a minimum clearance of 0.250 inch between the crew oxygen bottle and wiring, and apply Teflon sheeting as applicable, in accordance with Part II of the applicable customer bulletin.
(i) For Model GV-SP series airplanes: Within 150 flight hours after completing paragraph (g) of this AD, rework the wiring bundle by complying with Drawing 1159SB59987, in accordance with Part II of the applicable customer bulletin.
(j) Although the customer bulletins referenced in this AD specify to submit certain information to the manufacturer, this AD does not include that requirement.
(k) The Manager, Atlanta ACO, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(l) You must use the service information that is specified in Table 1 of this AD to perform the actions that are required by this AD, unless the AD specifies otherwise.
68 Stat. 92-96, 33 U.S.C. 981-990; Agreement between the Governments of United States and of Canada dated March 9, 1959, 10 U.S.T. 323, unless otherwise noted.
24 FR 9307, Nov. 18, 1959; 24 FR 10445, Dec. 23, 1959, unless otherwise noted.
The Board shall hear complaints relating to the interpretation of the St. Lawrence Seaway Tariff of Tolls or allegations of unjust discrimination arising out of the operation of the said Tariff and shall conduct such other business as agreed to by the Board (Rule 1).
These rules govern practice and procedure before the Joint Tolls Review Board unless the Board directs or permits a departure therefrom in any proceeding [Rule 2].
In these rules, unless the context otherwise requires:
(a)
(b)
(c)
(d) Words in the singular include the plural and words in the plural include the singular [Rule 3].
(a) Every proceeding before the Board shall be commenced by an application made to it, which shall be in writing and signed by, or on behalf of, the applicant.
(b) An applicant shall file six copies of his application setting forth a clear and complete statement of the facts the grounds for the complaint, and the relief
(c) Applicants resident in Canada shall file their complaints with the St. Lawrence Seaway Joint Tolls Reviews Board, Tower “A”, Place de Ville, 320 Queen Street, Ottawa, Ontario KIR 5A3. Applicants resident in the United States of America shall file their complaints with the St. Lawrence Seaway Joint Tolls Review Board, 800 Independence Ave., SW., Washington, D.C. 20591. Other applicants may file their
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to an adverse comment, EPA is withdrawing the direct final rule to approve reasonable available control technology (RACT) to limit nitrogen oxides (NO
The Direct final rule is withdrawn as of November 4, 2004.
Rose Quinto, (215) 814-2182, or by e-mail at
Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Airbus Model A310 series airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model C4 605R Variant F airplanes (collectively called A300-600). This proposed AD would require relocating contactor 9DG located at rack (relay box) 107VU and adding protective sleeves to the two wire (cable) looms near the door hinge of rack 107VU. This proposed AD is prompted by reports that interference was noticed during production between the wire looms located near the door hinge of rack 107VU and the terminals of contactor 9DG. We are proposing this AD to prevent possible short circuits in the wire looms supplying the fuel pump systems and the pitot probe heating system, which could lead to a possible loss of function of flight-critical systems and reduced controllability of the airplane.
We must receive comments on this proposed AD by December 6, 2004.
Use one of the following addresses to submit comments on this proposed AD.
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590.
• By fax: (202) 493-2251.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this proposed AD, contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France.
You can examine the contents of this AD docket on the Internet at
The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You can get more information about plain language at
You can examine the AD docket on the Internet at
The Direction Ge
Airbus has issued Service Bulletin A310-24-2087 (for Model A310 series airplanes); and Service Bulletin A300-24-6081 (for Model A300 B4-600, B4-600R, and F4-600R series airplanes; and Model C4 605R Variant F airplanes (collectively called A300-600)); both Revision 01, both dated December 18, 2003. The service bulletins describe procedures for relocating contactor 9DG and adding protective sleeves to the two wire looms located near the door hinge of rack 107VU. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The DGAC mandated the service information and issued French airworthiness directive F-2003-412, dated November 12, 2003, to ensure the continued airworthiness of these airplanes in France.
These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.
This proposed AD would affect about 167 airplanes of U.S. registry. The proposed actions would take about 3 work hours per airplane, at an average labor rate of $65 per work hour. Required parts would cost about $290 per airplane. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $80,995, or $485 per airplane.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The Federal Aviation Administration must receive comments on this AD action by December 6, 2004.
(b) None.
(c) This AD applies to Airbus Model A310 series airplanes, as listed in Airbus Service Bulletin A310-24-2087, Revision 01, dated December 18, 2003; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model C4 605R Variant F airplanes (collectively called A300-600), as listed in Airbus Service Bulletin A300-24-6081, Revision 01, dated December 18, 2003; certificated in any category.
(d) This AD was prompted by reports that interference was noticed during production between two wire (cable) looms located near the door hinge of rack (relay box) 107VU and the terminals of contactor 9DG located at rack 107VU. We are issuing this AD to prevent possible short circuits in the wire looms supplying the fuel pump systems and the pitot probe heating system, which could lead to a possible loss of function and reduced controllability of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 12 months after the effective date of this AD, relocate contactor 9DG located at rack 107VU and add protective sleeves to the two wire looms located at the door hinge of rack 107VU, by doing all actions in accordance with the Accomplishment Instructions of Airbus Service Bulletin A310-24-2087, Revision 01 (for Model A310 series airplanes); or Service Bulletin A300-24-6081, Revision 01 (for Model A300-600 series airplanes); both dated December 18, 2003; as applicable.
(g) Actions accomplished before the effective date of this AD in accordance with Airbus Service Bulletin A310-24-2087; or Airbus Service Bulletin A300-24-6081; both dated June 7, 2002; are considered acceptable for compliance with the corresponding actions specified in paragraph (f) of this AD.
(h) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(i) French airworthiness directive F-2003-412, dated November 12, 2003, also addresses the subject of this AD.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain EMBRAER Model EMB-135BJ series airplanes. This proposed AD would require modifying the electrical wiring for the “stick pusher” system. This proposed AD is prompted by a report that the stick pushers are not being inhibited when the AP/PUSH/TRIM switches are activated, which can result in reduced controllability of the airplane if there is a system malfunction. We are proposing this AD to prevent reduced controllability of the airplane if the stick pusher system malfunctions.
We must receive comments on this proposed AD by December 6, 2004.
Use one of the following addresses to submit comments on this proposed AD.
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, room PL-401, Washington, DC 20590.
• By fax: (202) 493-2251.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this proposed AD, contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil.
You can examine the contents of this AD docket on the Internet at
The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You can get more information about plain language at
You can examine the AD docket on the Internet at
The Departamento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, notified us that an unsafe condition may exist on certain EMBRAER Model EMB-135BJ series airplanes. The DAC advises that the “stick pushers” are not inhibited when the AP/PUSH/TRIM switches are activated. The switches are installed on the control wheels for the pilot and co-pilot. The stick pushers are part of the stall protection system and are automatically activated when an airplane approaches a stall condition. If the stick pushers cannot be inhibited, the workload for the pilot and co-pilot is increased because they have to exert additional physical force against the control wheels to control the airplane. Malfunction of the stick pusher system could result in reduced controllability of the airplane.
EMBRAER has issued Service Bulletin 145LEG-27-0009, dated March 1, 2004. The service bulletin describes procedures for modifying the electrical wiring for the stick pusher system. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The DAC mandated the service information and issued Brazilian airworthiness directive 2004-04-02, dated May 6, 2004, to ensure the continued airworthiness of these airplanes in Brazil.
This airplane model is manufactured in Brazil and is type certificated for operation in the United States under the
Therefore, we are proposing this AD, which would require modifying the electrical wiring for the stick pusher system. The proposed AD would require you to use the service information described previously to perform these actions.
The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The Federal Aviation Administration must receive comments on this AD action by December 6, 2004.
(b) None.
(c) This AD applies to EMBRAER Model EMB-135BJ series airplanes, serial numbers 145462, 145495, 145505, 145528, 145625, 145637, and 145642; certificated in any category.
(d) This AD was prompted by a report that the stick pushers are not being inhibited when the AP/PUSH/TRIM switches are activated, which can result in reduced controllability of the airplane if there is a system malfunction. We are issuing this AD to prevent reduced controllability of the airplane if the stick pusher system malfunctions.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 400 flight hours or 180 calendar days after the effective date of this AD, whichever is first: Modify the wiring for the stick pusher system by accomplishing all of the actions specified in the Accomplishment Instructions of EMBRAER Service Bulletin 145LEG-27-0009, dated March 1, 2004.
(g) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(h) Brazilian airworthiness directive 2004-04-02, dated May 6, 2004, also addresses the subject of this AD.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Boeing Model 777-200, -200ER, and -300 series airplanes. This proposed AD would require inspection of the outer cylinder of the main landing gear (MLG) to determine the serial number; an ultrasonic inspection of the outer cylinder of the MLG for cracks if necessary; and applicable specified and corrective actions if necessary. This proposed AD is prompted by reports indicating that two outer cylinders were found fractured in the weld area. We are proposing this AD to detect and correct cracks or defects that could result in a fracture of the outer cylinder of the
We must receive comments on this proposed AD by December 20, 2004.
Use one of the following addresses to submit comments on this proposed AD.
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590.
• By fax: (202) 493-2251.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207.
You can examine the contents of this AD docket on the Internet at
Gary Oltman, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 917-6443; fax (425) 917-6590.
The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.
We invite you to submit any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under
We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review DOT's complete Privacy Act Statement in the
We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You can get more information about plain language at
You can examine the AD docket on the Internet at
We have received reports indicating that two outer cylinders of the main landing gear (MLG) were found fractured in the weld area while at the supplier, before delivery to Boeing for installation on Boeing Model 777-200 series airplanes. The outer cylinder of the MLG is a two-piece design, which is welded together on the main barrel. Investigation revealed that the fractured outer cylinders were cleaned with an unapproved cleaning solution before welding. The cleaning solution that was used contained small amounts of oil that may have contaminated the bonding surfaces of the weld, which could cause cracks or defects in the weld. These conditions, if not detected and corrected, could result in a fracture of the outer cylinder of the MLG, which could lead to collapse of the MLG during landing.
We have reviewed Boeing Alert Service Bulletin 777-32A0038, Revision 1, dated February 19, 2004. The service bulletin describes procedures for an ultrasonic inspection for cracks or defects of the outer cylinder of the MLG, applicable specified actions, and corrective actions if necessary. Applicable specified actions may involve jacking up the airplane to remove the MLG, and disassembling the MLG to remove the outer cylinder for the ultrasonic inspection. Corrective actions involve replacing the outer cylinder of the MLG with a new MLG whose part identification numbers are not listed in the service bulletin. The service bulletin also recommends reporting the inspection results to Boeing. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require inspection of the outer cylinder of the MLG to determine the serial number; an ultrasonic inspection of the outer cylinder of the MLG for cracks if necessary; and applicable specified and corrective actions as necessary. The proposed AD would require you to use the service information described previously to perform these actions, except as discussed under “Differences Between the Proposed AD and the Service Bulletin.” The proposed AD would also require that operators send the results of their ultrasonic inspection findings to the FAA only if the inspection finds any crack.
Unlike the effectivity of the service bulletin, this proposed AD would affect Boeing Model 777-200ER and -300 series airplanes in addition to Model 777-200 series airplanes listed in the service bulletin. We have determined
In addition, we have determined that the service bulletin does not completely address the rotability of the affected parts. Therefore, this proposed AD would also require a one-time inspection to determine if a suspect serial number of an outer cylinder may be installed on airplanes other than those listed in the effectivity of the service bulletin.
The service bulletin specifies a compliance time of 8,000 flight cycles or when the outer cylinder is 6 years old, whichever occurs first. We have determined that a grace period of 4,000 flight cycles or 750 days after the effective date of the AD, whichever occurs first, is necessary to prevent unnecessary grounding of airplanes that are over the threshold specified in the service bulletin.
Operators should note that, although the Accomplishment Instructions of the referenced service bulletin describe procedures for submitting a report of all ultrasonic inspection results to the manufacturer, this proposed AD would require submitting the inspection report to the FAA only if the inspection finds any crack. We need further information on the extent of the quality control (QC) problem. When the unsafe condition addressed by an AD is likely due to a manufacturer's QC problem, a reporting requirement is instrumental in ensuring that we can gather as much information as possible regarding the extent and nature of the QC problem or breakdown, especially in cases where such data may not be available through other established means. This information is necessary to ensure that we can apply knowledge and lessons learned from these inspections to future MLG actions. The differences discussed in “Differences Between the Proposed AD and the Service Bulletin” have been coordinated with Boeing.
This proposed AD would affect about 463 Model 777 series airplanes worldwide. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The Federal Aviation Administration (FAA) must receive comments on this AD action by December 20, 2004.
(b) None.
(c) This AD applies to all Boeing Model 777-200, -200ER, -300 series airplanes; certificated in any category.
(d) This AD was prompted by reports that two outer cylinders of the main landing gear (MLG) were found fractured in the weld area. We are issuing this AD to detect and correct cracks or defects that could result in a fracture of the outer cylinder of the MLG, which could lead to collapse of the MLG during landing.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) The term “the service bulletin,” as used in this AD, means the Accomplishment Instructions of Boeing Alert Service Bulletin 777-32A0038, Revision 1, dated February 19, 2004.
(g) Perform the applicable actions specified in paragraph (h) of this AD at the later of the times specified in paragraphs (g)(1) and (g)(2) of this AD.
(1) Within 4,000 flight cycles or 750 days after the effective date of this AD, whichever occurs first; or
(2) Before accumulation of 8,000 total flight cycles on the outer cylinder or 72 months on the outer cylinder since new, whichever occurs first.
(h) Inspect the outer cylinder of the MLG to determine whether an outer cylinder having a serial number (S/N) listed in paragraph 1.D., “Description,” of the service bulletin is installed. Instead of an inspection of the outer cylinder of the MLG, a review of airplane maintenance records is acceptable if the S/N of the outer cylinder can be positively determined from that review.
(1) If no S/N identified in the service bulletin is installed, no further action is required by this paragraph.
(2) If any S/N identified in the service bulletin is installed, before further flight, do an ultrasonic inspection of the outer cylinder of the MLG for cracks, all applicable specified actions, and any corrective actions per the service bulletin. Do any applicable corrective action before further flight.
(i) Submit a report of any crack is found during the inspection required by paragraph (h)(2) of this AD to the Manager, Seattle Aircraft Certification Office (ACO), FAA, 1601 Lind Avenue, SW., Renton, Washington, at the applicable time specified in paragraph (i)(1) or (i)(2) of this AD. The report must include the inspection results, a description of any discrepancies found, the outer cylinder serial number and part number, and the number of landings and flight hours on the outer cylinder. Under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(1) If the inspection was done after the effective date of this AD: Submit the report within 10 days after the inspection.
(2) If the inspection was accomplished prior to the effective date of this AD: Submit the report within 10 days after the effective date of this AD.
(j) As of the effective date of this AD, no person may install an outer cylinder having a S/N listed in paragraph 1.D., “Description,” of the service bulletin on any airplane unless it has been inspected and all specified and corrective actions are accomplished in accordance with paragraph (h)(2) of this AD.
(k)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) An AMOC that provides an acceptable level of safety may be used for any action required by this AD, if it is approved by a Boeing Company Designated Engineering Representative who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the approval must specifically refer to this AD.
Food and Drug Administration, HHS.
Proposed rule; withdrawal.
The Food and Drug Administration (FDA) is withdrawing the proposed rule the agency issued in the
The proposed rule is withdrawn on November 4, 2004.
Joseph M. Sheehan, Center for Devices and Radiological Health (HFZ-215), Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850, 301-827-2974.
In the
In the August 2000 proposed rule, FDA proposed regulations to amend the physical medicine devices regulations to remove the class III (premarket approval) iontophoresis device identification. FDA proposed this action because it believed that there were no preamendments iontophoresis devices marketed for uses other than those described in the class II identification. FDA expected that manufacturers of those devices currently in class III would be able to relabel their devices to meet the class II identification.
FDA received substantial comment in response to the August 2000 proposed rule. Several comments disagreed with FDA's assertion that no class III preamendments iontophoresis devices existed. In response to these comments, FDA is considering other courses of action and is withdrawing the August 2000 proposed rule.
Elsewhere in this issue of the
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Animal and Plant Health Inspection Service, USDA.
Advance notice of public meeting and request for suggested agenda topics.
We are issuing this notice to inform producers and users of veterinary biological products, and other interested individuals, that we will be holding our 13th public meeting to discuss regulatory and policy issues related to the manufacture, distribution, and use of veterinary biological products. We are planning the meeting agenda and are requesting suggestions for topics of general interest to producers and other interested individuals.
The public meeting will be held from Wednesday, April 6, through Friday, April 8, 2005, from 1 p.m. to approximately 5 p.m. on Wednesday, 8:30 a.m. to approximately 5 p.m. on Thursday, and from 8:30 a.m. to approximately noon on Friday.
The public meeting will be held in the Scheman Building at the Iowa State Center, Iowa State University, Ames, IA.
For further information on agenda topics, contact Mr. Steven A. Karli, Director, Center for Veterinary Biologics, Veterinary Services, APHIS, 510 South 17th Street, Suite 104, Ames, IA 50010-8197; phone (515) 232-5785, fax (515) 232-7120, or e-mail
Since 1989, the Animal and Plant Health Inspection Service (APHIS) has held 12 public meetings in Ames, IA, on veterinary biologics. The meetings provide an opportunity for the exchange of information between APHIS representatives, producers and users of veterinary biological products, and other interested individuals. APHIS is in the process of planning the agenda for the 13th such meeting, which will be held April 6 through April 8, 2005.
The agenda for the meeting is not yet complete. Topics that have been suggested include: (1) Autogenous biologics and their role in the treatment/prevention of disease; (2) transmissible spongiform encephalopathies and their impact on veterinary biologics production; (3) current Center for Veterinary Biologics activities; (4) updates on regulatory initiatives; and (5) novel vaccine technologies. Before finalizing the agenda, APHIS is seeking suggestions for additional meeting topics from the interested public.
We would also like to invite interested individuals to use this meeting to present their ideas and suggestions concerning the licensing, manufacturing, testing, distribution, and regulation of products for the diagnosis, prevention, and treatment of diseases of animals.
Please submit suggested meeting topics and proposed presentation titles to Mr. Steven A. Karli (
After the agenda is finalized, APHIS will announce the agenda topics in the
Food Safety and Inspection Service (FSIS), USDA.
Correction.
The Food Safety and Inspection Service published a document in the
This corrected notice announces that the U.S. Department of Agriculture (USDA) is soliciting nominations for membership on the National Advisory Committee on Microbiological Criteria for Foods (NACMCF). Nominations for membership are being sought from individuals with scientific expertise in the fields of epidemiology, food technology, microbiology (food, clinical, and predictive), risk assessment, infectious disease, biostatistics, and other related sciences. Persons from State and Federal governments, industry, consumer groups, and academia, as well as all other interested persons, are invited to submit nominations. Members who are not Federal government employees will be appointed to serve as non-compensated special government employees (SGEs). SGEs will be subject to appropriate conflict of interest statutes and standards of ethical conduct.
The nominee's typed resume or curriculum vitae must be received by December 4, 2004.
Nominations should be sent to Ms. Karen Thomas, Advisory Committee Specialist, USDA, Food Safety and Inspection Service, Room 333 Aerospace Center, 1400 Independence Avenue, SW., Washington, DC 20250-3700.
Ms. Karen Thomas, Advisory Committee Specialist, at the above address or by telephone 202-690-6620 or FAX 202-690-6634.
The NACMCF was established in March 1988, in response to a recommendation in a 1985 report of the National Academy of Sciences Committee on Food Protection, Subcommittee on Microbiological
The Committee provides scientific advice and recommendations to the Secretary of Agriculture and the Secretary of Health and Human Services concerning the development of microbiological criteria by which the safety and wholesomeness of food can be assessed. For example, the Committee assists in the development of criteria for microorganisms that indicate whether food has been processed using good manufacturing practices.
Appointments to the Committee will be made by the Secretary of Agriculture after consultation with the Secretary of Health and Human Services to ensure that recommendations made by the Committee take into account the needs of the diverse groups served by the Department. Membership shall include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities.
Given the complexity of issues, the full Committee expects to meet at least once yearly, and the meetings will be announced in the
Appointment to the Advisory Committee is a two-year term; renewable for a total of three consecutive terms. Members must be prepared to work outside of scheduled Committee and subcommittee meetings, and may be required to assist in document preparation. Committee members serve on a voluntary basis; however, travel reimbursement and per diem are available.
All nominees who are selected must submit a USDA Advisory Committee Membership Background Information form AD-755, available on-line at:
In particular to their appointment, SGEs must complete the Office of Government Ethics (OGE) 450 Confidential Financial Disclosure Report, as new entrants before rendering any advice, or prior to their first meeting. All members will be reviewed for conflict of interest pursuant to 18 U.S.C. 208 in relation to specific NACMCF work charges. Financial disclosure updates will be required of members before each meeting. Members must report any changes in financial holdings requiring additional disclosure. OGE 450 forms are available on-line at:
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that the public and in particular minorities, women, and persons with disabilities, are aware of this notice, FSIS will announce it both on-line through the FSIS Web page located at
FSIS also will make copies of this
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice.
The Grain Inspection, Packers and Stockyards Administration (GIPSA) is announcing its intent to provide official protein content measurement for barley using an Artificial Neural Network (ANN) calibration on the official near-infrared transmittance (NIRT) instruments. GIPSA will provide protein content measurement in barley as official criteria under the authority of the United States Grain Standards Act (USGSA).
July 1, 2005.
Steven N. Tanner, Director, Technical Services Division, GIPSA, USDA, 10383 N. Ambassador Drive, Kansas City, Missouri 64153; telephone (816) 891-0401; fax (816) 891-0478.
GIPSA's official inspection system has not previously offered an official test for barley protein content. Recently developed state-of-the-art Artificial Neural Network (ANN) calibration development techniques, allow for wheat and barley protein content to be determined with a greater degree of accuracy than was possible with more limited calibration approaches. GIPSA will begin using an ANN calibration for official wheat protein content measurement in May 2005 (69 FR 52645).
The barley protein content testing service will be available, upon request of an interested person, as official criteria for barley, under the authority of the USGSA, as amended.
Therefore, to better facilitate the marketing of barley, and provide official barley protein testing to producers and other interested parties on a voluntary basis, GIPSA is establishing a new official criteria, available upon request, to determine the protein content of barley. GIPSA believes offering this service will facilitate the marketing of malting barley, by providing a fair, accurate and transparent third party
Based on its evaluation, GIPSA has decided to implement the new ANN barley protein calibration on official NIRT instruments on July 1, 2005.
7 U.S.C. 71
USDA, Agricultural Research Service, National Agricultural Library.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13) and Office of Management and Budget (OMB) regulations at 5 CFR Part 1320 (60 FR 44978, August 29, 1995), this notice announces the National Agricultural Library's intent to request approval for renewal information collection relating to existing nutrition education and training materials targeting low-income persons. This voluntary form gives Food Stamp nutrition education providers the opportunity to share resources that they have developed or used.
Comments on this notice must be received by January 10, 2005 to be assured of consideration.
Address all comments concerning this notice to Shannon Fries, Technical Information Specialist, Food and Nutrition Information Center, National Agricultural Library, 10301 Baltimore Avenue, Beltsville, MD 20705-2351, telephone (301) 504-5368 or fax (301) 504-6409.
Submit electronic comments to
The Sharing Form is available for completion online at the Food Stamp Nutrition Connection Web site. Individuals may also print and return it via fax or mail. The form consists of four parts. These various sections include: Part 1 consisting of three questions about the responder; Part 2 with nine questions about the resource; Part 3 with five questions about the resource development; and Part 4 with six questions about ordering/obtaining the resource. Responders are asked to complete only relevant sections of the form. Instructions about which sections to complete, based on one's relationship to the resource, are provided in Part 1. For instance, those that use the resource but are neither its developer or distributor would only complete Parts 1 and 2.
This form enables FNIC to inform nutrition educators of existing nutrition education and training materials targeting low-income Americans. This identification of existing materials will help educators spend their monies wisely in the development of needed educational resources.
Comments are invited on (a) Whether the proposed collection of information is necessary for the proper performance for the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and the assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who respond, including the use of appropriate automated, electronic, mechanical, or other technology. Comments should be sent to the address in the preamble. All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record.
Natural Resources Conservation Service, USDA.
Notice of a Finding of No Significant Impact.
Pursuant to Section 102 (2)(c) of the National Environmental Policy Act of 1969; the Council on Environmental Quality Regulations (40 CFR part 1500); and the Natural Resources Conservation Service Regulations (7 CFR part 650), Natural Resources Conservation Service, U.S. Department of Agriculture, gives notice than an environmental impact statement is not being prepared for Segment No. 7 of Main Ditch, Poinsett Watershed, Craighead and Poinsett Counties, Arkansas.
Kalven L. Trice, State Conservationist, Natural Resources Conservation Service, Room 3416, Federal Building, 700 West
The environmental assessment of this federally assisted action indicates that the project will not cause significant local, regional, or national impacts on the environment. As a result of these findings, Kalven L. Trice, State Conservationist, has determined that the preparation and review of an environmental impact statement are not needed for this project.
The purpose of this project is to provide flood control. The planned works of improvement include four miles of channel improvement for Segment No. 7 of the Main Ditch south of Jonesboro, Arkansas in the Poinsett Watershed.
A limited number of copies of the FONSI are available at the above address to fill single copy requests. Basic data developed during the environmental assessment are on file and may be reviewed by contacting David Weeks, Assistant State Conservationist Natural Resource Planning, Natural Resources Conservation Service, Room 3416, Federal Building, 700 West Capitol Avenue, Little Rock, Arkansas 72201-3225.
No administrative action on implementation of the proposal will be taken until 30 days after the date of this publication in the
Poinsett Watershed is a federally assisted action authorized under Pub. L. 83-566, Watershed Protection and Flood Prevention Act of 1954, as amended. The original Poinsett Watershed Work Plan was prepared in February 1968. The primary purpose of the plan is to provide flood reduction to the agricultural lands subject to flood damages. The plan was prepared by the local sponsoring organizations with technical assistance from the Natural Resources Conservation Service (NRCS). The Supplemental Watershed Plan No. 4 was prepared to add Segment No. 7 of the Main Ditch to the Plan. The Environmental Assessment (EA) was prepared to update and review items that are of concern with channel improvement for Segment No. 7 of the Main Ditch considering the present rules and regulations.
This particular action involves only the channel improvement of Segment No. 7 of the Poinsett Watershed. Federal assistance will be provided under authority of the Pub. L. 83-566, Watershed Protection and Flood Prevention Act of 1954, as amended. The EA was conducted in consultation with local, State, and Federal agencies as well as with interested organizations and individuals.
Data developed during the assessment are available for public review at the following location: U.S. Department of Agriculture, Natural Resources Conservation Service, Room 3416, Federal Building, 700 West Capitol Avenue, Little Rock, Arkansas 72201-3225.
The drainage area at the downstream end of the Segment No. 7 is 20.6 square miles. The project area is located in northeastern Arkansas in Craighead and Poinsett Counties. The southern limit of the city of Jonesboro is located in the northern most part of the watershed. The watershed land use of Segment No. 7 is about 30 percent (%) urban, 40% cropland, and 30% pasture, range, and woods.
Local Sponsoring organizations are Poinsett Watershed Improvement District, Craighead County Conservation District, and Poinsett County Conservation District.
Alternative 1 is the No Action or Future Without Project. This alternative consists of maintaining the existing channel capacity of Segment No. 7 of the Main Ditch. No Federal funds would be spent on Segment No. 7. Flood damages to agricultural areas, infrastructure, and residential area in the floodplain would continue at the present level.
Alternative 2 is the Channel Improvement of Segment No. 7. This alternative consists of improving the existing channel from station 1328+00 to 1542+60, two rock chutes to stabilize grade, and 33 grade stabilization structures to drop water from the field or drains into the ditch improvement. This alternative will meet the need and purpose of the project to provide flood protection benefits to the agricultural land along Segment No. 7, infrastructure in the project area, and residences in the southern part of Jonesboro.
Alternative 2 is the recommended alternative and consists of channel improvement of Segment No. 7 of the Main Ditch to provide for flood prevention benefits. This alternative provides the most net benefits and is the National Economic Development (NED) Plan.
The estimated total average annual monetary benefits will be $94,220. The average annual cost is $78,000, resulting in a benefit to cost ratio of 1.2 to 1.0.
The existing channel has inadequate capacity to protect cropland and other agricultural lands from flooding by moving floodwaters from Jonesboro through the agricultural areas. The average annual area flooded within Segment No. 7 evaluation reach is approximately 1770 acres. Channel improvement of Segment No. 7 would reduce flood damages to agricultural lands, infrastructure, and other private lands. The average annual area flooded would be reduced by 1,470 acres.
Requirements of Section 106 of the National Historic Preservation Act of 1966 as amended were fully implemented. Planning activities for the protection and preservation of historic properties have been conducted in compliance with Section 106 and Section 110 (f) and (k) of the National Historic Preservation Act. Processes consistent with the Advisory Council on Historic Preservation regulations (36 CFR 800) have been followed by NRCS. No known cultural resources were identified. NRCS will take action to protect and/or recover any historic properties discovered during construction.
The land use on both sides of the ditch is open cropland with the exception of two small wooded areas. The open cropland affords food for seed-eating birds and provides some ground cover. Water within the ditch is very shallow and unshaded. Some species of fish such as sunfish, carp, buffalo, and catfish may use the ditch at various times. However, fishery habitats are very low quality and are of very little value as a fishery resource.
The channel improvement will have minor short-term impact on the existing fishery habitats. Reduction in flooding depth and duration in the floodplain will improve the upland wildlife habitats on agricultural land.
The endangered fat pocketbook
Presently, there are 4,005 acres of prime farmland in the project area. Prime farmland will be impacted by reduced frequency and depth of flooding on 1,209 acres. Enlargement of the planned channel will result in a loss of 78 acres of prime farmland adjacent to the existing ditch. Overall there will be a positive impact on prime farmland due to a reduction in flooding.
The land use on both sides of the ditch is open cropland with the exception of two small wooded areas. The wooded area located at approximately from channel station 1369+00 to station 1381+00 has some minor wetlands. These are located greater than 90 feet from the centerline of the existing channel.
Construction methods will be used to avoid any adverse impacts. The channel will be constructed from both sides with spoil placed approximately equally on both sides of the ditch except at the location from channel station 1369+00 to station 1381+00. At that location construction methods will be used to limit fill on the side where the wooded area is located. Constructed channel dimensions on the wooded area side will not
Disturbed areas will be planted to permanent grasses.
Construction, operation, and maintenance of the channel improvement of Segment No. 7 of the Main Ditch will require irretrievable commitments of energy, material, and financial resources, as typical for similar projects.
Original local sponsoring organizations (sponsors) are the Poinsett Watershed Improvement District, Craighead Conservation District, and Poinsett Conservation District. At the initiation of the planning process, meetings were held with representatives of the sponsors to ascertain their watershed concerns and project purposes. Meetings with the sponsors were held throughout the planning process.
An Interdisciplinary Planning Team provided for the technical administration of this project. Examples of tasks completed by the Planning Team include, but are not limited to, preliminary investigations, hydrologic and engineering analysis, economic analysis, formulating and evaluating alternatives, and writing the Supplemental Watershed Plan and EA. Informal discussions among the planning team, sponsors, NRCS, and landowners were conducted throughout the planning period.
Twenty-eight letters were sent to Federal, State, and local agencies requesting information available and concerns on Poinsett Watershed, Segment No. 7 of the Main Ditch. A meeting and field tour with agencies were held on May 5, 2004, to assess proposed measures and their potential impact on resources of concern. Eleven Federal, State, and local agencies were invited to participate. The following agencies participated in this field review:
• Arkansas Department of Environmental Quality;
• USDA-NRCS State, Area, Project, and Field levels;
• Poinsett Watershed Improvement District.
Other agencies invited but not attending included the U.S. Fish and Wildlife Service (FWS), U.S. Army Corps of Engineers, and Environmental Protection Agency (EPA).
A public meeting was held on April 14, 2004, to explain the proposed channel improvement and to scope resource problems, issues, and concerns of local residents associated with the Poinsett Watershed, Segment No. 7 of the Main Ditch. Notice of the public meeting was posted and published in the local newspaper over three consecutive weeks. In addition, a letter of notice of meeting and comment forms were mailed to potentially affected landowners around Segment No. 7 of the Main Ditch. The meeting participants provided verbal and written comment on issues and concerns to be considered in the planning process.
A coordination meeting with project sponsors and NRCS was held on June 10, 2004, to summarize planning accomplishments, convey results of the hydraulic analysis, and present various channel improvement alternatives. Consensus was reached on the layout and configuration of the Channel Improvement Alternative. A follow-up meeting was conducted with the sponsors, officials with the city of Jonesboro, and Craighead County on August 31, 2004.
A Final Draft was distributed on July 21, 2004, for interagency and public review to appropriate local, state, and federal agencies and other interested groups. The availability of Final Draft was publicized in the local newspaper. The Final Draft was distributed to the following agencies and groups for review and comment.
Poinsett County Watershed Improvement District, Craighead County Conservation District, Poinsett County Conservation District, Mayor, City of Jonesboro, and Craighead County Judge.
U.S. Fish and Wildlife Service, U.S. Environmental Protection Agency, U.S. Army Corps of Engineers, Memphis District, USDA Forest Service, Southern Region, USDA/Farm Service Agency, USDA/Rural Development, USDA/FSA, and Federal Highway Administration.
Governor's Office, State Clearinghouse, Arkansas Soil and Water Conservation Commission, Arkansas Game and Fish Commission, AR Department of Health, AR Department of Parks and Tourism, AR Waterways Commission, AR Forestry Commission, AR Natural Heritage Commission, Arkansas Department of Environmental Quality, AR Department of Economic Development, AR Highway & Transportation Dept., Natural Resources Leasing, Arkansas Geological Commission, Arkansas Department of Emergency Management, and Arkansas Water Resources Research Center.
Wildlife Management Institute, Arkansas Wildlife Federation, National Audubon Society, and National Wildlife Federation.
After a 45-day review period, comments were incorporated into the Final Supplemental Watershed Plan and EA.
Table 1 displays a summary of comparison of the environmental impacts on important resource concerns.
The purpose of the improvement to Segment No. 7 of the Main Ditch is to provide flood prevention benefits to the agricultural lands, infrastructure, and residential area along Segment No. 7. The Environmental Assessment summarized above indicates that this Federal action will not cause significant local, regional, or national impacts on the environment. I find that neither the proposed action nor any of the alternatives is a major Federal action significantly affecting the quality of the human environment. Therefore, based on above findings, I have determined that an Environmental Impact Statement for Segment No. 7 of the Main Ditch, Poinsett Watershed is not required.
Rural Utilities Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended), the Rural Utilities Service (RUS) invites comments on this information collection for which RUS intends to request approval from the Office of Management and Budget (OMB).
Comments on this notice must be received by January 3, 2005.
Richard C. Annan, Acting Director, Program Development and Regulatory Analysis, Rural Utilities Service, 1400 Independence Ave., SW., STOP 1522, Room 5174 South Building, Washington, DC 20250-1522. Telephone: (202) 720-0784, FAX: (202) 720-4120.
The Office of Management and Budget's (OMB) regulation (5 CFR part 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) requires that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)). This notice identifies an information collection that RUS is submitting to OMB for extension.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to: Richard C. Annan, Director, Program Development and Regulatory Analysis, Rural Utilities Service, U.S. Department of Agriculture, STOP 1522, Room 5068, 1400 Independence Ave., SW., Washington, DC 20250-1522. FAX: (202) 720-4120.
Initiating a digital broadcast requires the installation of a new antenna, transmitter or translator, and new digital program management facilities consisting of processing and storage systems. Public television stations use a combination of transmitters and translators to serve the rural public. If the public television station is to perform program origination functions, as most do, digital cameras, editing and mastering systems are required. A new studio-to-tower site communications link may be required to transport the digital broadcast signal to each transmitter and translator. The capability to broadcast some programming in a high definition television format is inherent in the digital television standard, and this can require additional facilities at the studio. These are the new components of the digital transition.
In designing the national competition for the distribution of these grant funds, priority is given to public television stations serving the areas that would be most unable to fund the digital transition without a grant. The largest sources of funding for public television stations are public membership and business contributions. In rural areas, lower population density reduces the field of membership, and rural areas have fewer businesses per capita than urban and suburban areas. Therefore, rurality is a primary predictor of the need for grant funding for a public television station's digital transition. In addition, some rural areas have per capita income levels that are lower than the national average, and public television stations covering these areas in particular are likely to have difficulty funding the digital transition. As a result, the consideration of the per capita income of a public television station's coverage area is a secondary predictor of the need for grant funding. Finally, some public television stations may face special difficulty accomplishing the transition, and a third scoring factor for station hardship will account for conditions that make these public television stations less likely to accomplish the digital transition without a grant.
Copies of this information collection can be obtained from MaryPat Daskal, Program Development and Regulatory Analysis, at (202) 720-7853. FAX: (202) 720-4120
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Tuesday, November 16, 2004, at 7 p.m. local time.
North West Georgia Trade and Convention Center, Lecture Hall Theater, 2211 Dug Gap Battle Road, Dalton, Georgia, (Telephone No. 1-800-824-7469).
Open to the public.
The Chemical Safety and Hazard Investigation Board (CSB) is convening a community meeting in connection with its investigation of a toxic gas release that occurred on April 12, 2004, at the MFG Chemical Inc. facility located in Dalton, Georgia.
At the meeting CSB staff will present their preliminary investigative findings to the Board, including a summary of the incident. There will also be a panel discussion consisting of five emergency response organizations. After the staff presentations the Board will allow time for public comment.
All staff presentations are preliminary and are intended solely to allow the Board to consider in a public forum the issues and factors involved in the incident. Factual analyses, conclusions, or findings contained in the staff presentations should not be considered final.
This meeting will be open to the public. Please notify CSB if a translator or interpreter is needed, at least five (5) business days prior to the meeting.
Daniel Horowitz, (202) 261-7600.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board), by the Greater Kansas City Foreign Trade Zone, Inc., grantee of FTZ 15, requesting special-purpose subzone status for the manufacturing facilities of Pfizer, Inc. (Pfizer), in the Lee's Summit, Missouri, area, within the Kansas City Missouri Customs port of entry. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on October 29, 2004.
Pfizer's plant (104 acres) is located at One Pfizer Way, Lee's Summit, Jackson County, Missouri. The facility (approximately 235 employees) is used for the manufacture, processing, warehousing and distribution of pharmaceuticals, as well as for research and development activities. Pfizer will use zone procedures at the Lee's Summit plant to manufacture Revolution (TM), (HTSUS 3004.90.9103), a topical parasiticide for dogs and cats. The activity related to the manufacture of Revolution (TM) involves the use of the foreign-sourced chemicals butylated hydroxytoluene (HTSUS 2907.19.8000), hydroxylamine (HTSUS 2928.00.5000), and selamectin (HTSUS 2932.29.5050), two of which are processed at Pfizer's Groton, Connecticut facility, prior to shipment to the Lee's Summit facility. A subzone application is currently pending with the FTZ Board for Pfizer's Groton facility (Docket 45-2004). Foreign-sourced chemicals will account for most of the material value of the finished product.
Zone procedures used at Lee's Summit would exempt Pfizer from Customs duty payments on foreign
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment on the application is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at one of the following addresses:
1.
2.
The closing period for their receipt is January 3, 2005. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to January 18, 2005).
A copy of the application and accompanying exhibits will be available during this time for public inspection at the address Number 1 listed above, and at the U.S. Department of Commerce Export Assistance Center, 2345 Grand Boulevard, Suite 650, Kansas City, MO 64108.
Import Administration, International Trade Administration, Department of Commerce.
November 4, 2004.
Mark Young at (202) 482-6397, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue (1) the preliminary results of a review within 245 days after the last day of the anniversary month of an order or finding for which a review is requested, and (2) the final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within that time period, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the preliminary results to a maximum of 365 days and the final results to a maximum of 180 days (or 300 days if the Department does not extend the time limit for the preliminary results) from the date of the publication of the preliminary results.
On August 22, 2003, the Department published a notice of initiation of the administrative review of the antidumping duty order on certain pasta from Turkey, covering the period July 1, 2002, to June 30, 2003.
We determine that it is not practicable to complete the final results of this review within the original time limit because the Department needs additional time to fully consider parties' arguments regarding the proposed modifications to the wheat codes and rejection of untimely submissions. Therefore, we are extending the deadline for the final results of the above-referenced review until February 2, 2005.
This extension is in accordance with section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2).
Import Administration, International Trade Administration, Department of Commerce.
Mark Young at (202) 482-6397, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue (1) the preliminary results of a review within 245 days after the last day of the anniversary month of an order or finding for which a review is requested, and (2) the final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within that time period, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the preliminary results to a maximum of 365 days and the final results to a maximum of 180 days (or 300 days if the Department does not extend the
On August 22, 2003, the Department published a notice of initiation of the administrative review of the antidumping duty order on certain pasta from Italy, covering the period July 1, 2002, to June 30, 2003 (68 FR 50750). On March 17, 2004, the Department fully extended the preliminary results of the review by 120 days (69 FR 12641). On August 6, 2004, the Department published the preliminary results of its review (69 FR 47880). The final results of this review are currently due no later than December 6, 2004.
We determine that it is not practicable to complete the final results of this review within the original time limit because the Department needs additional time to fully consider parties' arguments regarding the application of facts available with respect to Barilla Alimentare, S.p.A., and certain respondents' proposed modifications to the wheat codes. Therefore, we are extending the deadline for the final results of the above-referenced review until February 2, 2005.
This extension is in accordance with section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2).
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of the expedited sunset review of the antidumping duty finding: polychoroprene rubber from Japan.
On July 1, 2004, the Department of Commerce (“the Department”) initiated a sunset review of the antidumping duty finding on certain polychloroprene rubber from Japan.
November 4, 2004.
Martha V. Douthit, Office of Policy, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-5050.
On July 1, 2004, the Department initiated a sunset review of the antidumping duty finding on polychloroprene rubber from Japan in accordance with section 751(c) of the Act.
The Department received a Notice of Intent to Participate within the applicable deadline specified in section 351.218(d)(1)(i) of the Department's regulations on behalf of DuPont Dow Elastomers L.L.C. (“DDE”).
The Department received complete substantive responses from the domestic interested party within the 30-day deadline specified in the Department's regulations under section 351.218(d)(3)(i). However, the Department did not receive adequate responses from respondent interested parties to this proceeding. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted an expedited sunset review of this antidumping duty finding.
Imports covered by this sunset review are shipments of polychloroprene rubber, an oil resistant synthetic rubber also known as polymerized chlorobutadiene or neoprene, currently classifiable under items 4002.42.00, 4002.49.00, 4003.00.00, 4462.15.21 and 4462.00.00 of the Harmonized Tariff Schedule (“HTS”). The HTS item numbers are provided for convenience and customs purposes. The written descriptions remain dispositive.
All issues raised in this sunset review are addressed in the “Issues and Decision Memorandum (“Decision Memo”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to James J. Jochum, Assistant Secretary for Import Administration, dated October 29, 2004, which is hereby adopted by this notice. The issues discussed in the Decision Memo include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail if the antidumping duty finding were revoked. Parties can find a complete discussion of all issues raised in this sunset review and the corresponding recommendations in this public memorandum, which is on file in room B-099 of the main Commerce Building.
In addition, a complete version of the Decision Memo can be accessed directly on the Web at
The Department determines that revocation of the antidumping duty finding on polychloroprene rubber from Japan would be likely to lead to continuation or recurrence of dumping at the following weighted-average margins:
This notice also serves as the only reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing the results and notice in accordance with sections 751(c), 752, and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of expedited sunset review: Stainless steel plate in coils from Belgium.
On April 1, 2004, the Department initiated a sunset review of the countervailing duty (“CVD”) order on stainless steel plate in coils (“SSPC”) from Belgium pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”).
November 4, 2004.
Hilary Sadler, Esq., Office of Policy for Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4340.
The Department's procedures for the conduct of sunset reviews are set forth in 19 CFR 351.218. Guidance on methodological or analytical issues relevant to the Department's conduct of sunset reviews is set forth in the Department's Policy Bulletin 98.3—Policies Regarding the Conduct of Five-year (“Sunset”) Reviews of Antidumping and Countervailing Duty Orders; Policy Bulletin, 63 FR 18871 (April 16, 1998).
On April 1, 2004, the Department initiated a sunset review of the CVD order on SSPC from Belgium pursuant to section 751(c) of the Act.
The Department received a waiver of participation from U & A Belgium, a respondent interested party.
As a result of the lack of respondent company participation in this sunset review, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted an expedited (120-day) sunset review of this order.
The product covered by this order is certain stainless steel plate in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject plate products are flat-rolled products, 254 mm or over in width and 4.75 mm or more in thickness, in coils, and annealed or otherwise heat treated and pickled or otherwise descaled. The subject plate may also be further processed (
All issues raised in this review are addressed in the “Issues and Decision Memorandum” (“Decision Memorandum”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to James J. Jochum, Assistant Secretary for Import Administration, dated October 28, 2004, which is hereby adopted by this notice. The issues discussed in the accompanying Decision Memorandum include the likelihood of continuation or recurrence of countervailable subsidies and the net subsidy likely to prevail were the order revoked. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room B-099, of the main Commerce building. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at
We determine that revocation of the countervailing duty order on SSPC from Belgium would be likely to lead to continuation or recurrence of countervailable subsidies at the rate listed below:
This notice also serves as the only reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305 of the Department's regulations. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing the results and notice in accordance with sections 751(c), 752, and 777(i)(1) of the Act.
The Committee for the Implementation of Textile Agreements (CITA).
Denial of the request alleging that certain twill rayon/nylon/spandex warp stretch fabric, for use in apparel articles, cannot be supplied by the domestic industry in commercial quantities in a timely manner under the CBTPA.
On August 31, 2004 the Chairman of CITA received a petition from Mast Industries, Inc. alleging that certain twill rayon/nylon/spandex warp stretch fabric, of specifications detailed below, classified in subheading 5516.22.0040 of the Harmonized Tariff Schedule of the United States (HTSUS), for use in apparel articles, cannot be supplied by the domestic industry in commercial quantities in a timely manner. It requested that apparel of such fabrics be eligible for preferential treatment under the CBTPA. Based on currently available information, CITA has determined that these subject fabrics can be supplied by the domestic industry in commercial quantities in a timely manner and therefore denies the request.
Janet Heinzen, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-3400.
Section 213(b)(2)(A)(v)(II) of the Caribbean Basin Economic Recovery Act, as added by Section 211(a) of the CBTPA; Section 6 of Executive Order No. 13191 of January 17, 2001.
The CBTPA provides for quota- and duty-free treatment for qualifying textile and apparel products. Such treatment is generally limited to products manufactured from yarns and fabrics formed in the United States or a beneficiary country. The CBTPA also provides for quota- and duty-free treatment for apparel articles that are both cut (or knit-to-shape) and sewn or otherwise assembled in one or more CBTPA beneficiary countries from fabric or yarn that is not formed in the United States, if it has been determined that such fabric or yarn cannot be supplied by the domestic industry in commercial quantities in a timely manner. In Executive Order No. 13191, the President delegated to CITA the authority to determine whether yarns or fabrics cannot be supplied by the domestic industry in commercial quantities in a timely manner under the CBTPA and directed CITA to establish procedures to ensure appropriate public participation in any such determination. On March 6, 2001, CITA published procedures that it will follow in considering requests. (66 FR 13502).
On August 31, 2004, the Chairman of CITA received a petition from Mast Industries, Inc. alleging that certain twill rayon/nylon/spandex warp stretch fabric, of specifications detailed below, classified in HTSUS subheading 5516.22.0040, cannot be supplied by the domestic industry in commercial quantities in a timely manner and requesting quota- and duty-free treatment under the CBTPA for apparel articles that are both cut and sewn in one or more CBTPA beneficiary countries from such fabrics.
On September 8, 2004, CITA solicited public comments regarding this petition (69 FR 54269), particularly with respect to whether these fabrics can be supplied by the domestic industry in commercial quantities in a timely manner. On September 24, 2004, CITA and the Office of the U.S. Trade Representative offered to hold consultations with the relevant Congressional committees. We also requested the advice of the U.S. International Trade Commission and the relevant Industry Trade Advisory Committees.
The petitioner emphasized that domestic mills do not have the processing capabilities or equipment to manufacture warp stretch woven fabrics. CITA found that there is domestic capacity to weave, dye and finish the subject fabric. A variety of stretch fabric programs are currently being manufactured in the United States. CITA concluded that the domestic industry is capable of supplying the subject fabric in commercial quantities in a timely manner.
Based on the information provided, including review of the petition, public comments and advice received, and our knowledge of the industry, CITA has determined that certain twill rayon/nylon/spandex warp stretch fabric, described above, classified in HTSUS subheading 5516.22.0040, for use in apparel articles, can be supplied by the domestic industry in commercial quantities in a timely manner. Mast Industries' request is denied.
The Committee for the Implementation of Textile Agreements (CITA).
Denial of the request alleging that certain woven fabrics, of the specifications detailed below, for use in apparel articles, cannot be supplied by the domestic industry in commercial quantities in a timely manner under the CBTPA.
On August 24, 2004 the Chairman of CITA received a petition from Sharretts, Paley, Carter & Blauvelt, P.C., on behalf of Fishman & Tobin, alleging that certain woven fabrics, of the specifications detailed below, classified in the indicated subheadings of the Harmonized Tariff Schedule of the United States (HTSUS), for use in apparel articles, cannot be supplied by the domestic industry in commercial quantities in a timely manner. It requested that apparel of such fabrics be eligible for preferential treatment under the CBTPA. Based on currently available information, CITA has determined that these subject fabrics can be supplied by the domestic industry in commercial quantities in a timely manner and therefore denies the request.
Martin J. Walsh, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-2818.
Section 213(b)(2)(A)(v)(II) of the Caribbean Basin Economic Recovery Act, as added by Section 211(a) of the CBTPA; Section 6 of Executive Order No. 13191 of January 17, 2001.
The CBTPA provides for quota- and duty-free treatment for qualifying textile and apparel products. Such treatment is generally limited to products manufactured from yarns and fabrics formed in the United States or a beneficiary country. The CBTPA also provides for quota- and duty-free treatment for apparel articles that are both cut (or knit-to-shape) and sewn or otherwise assembled in one or more CBTPA beneficiary countries from fabric or yarn that is not formed in the United States, if it has been determined that such fabric or yarn cannot be supplied by the domestic industry in commercial quantities in a timely manner. In Executive Order No. 13191, the President delegated to CITA the authority to determine whether yarns or fabrics cannot be supplied by the domestic industry in commercial quantities in a timely manner under the CBTPA and directed CITA to establish procedures to ensure appropriate public participation in any such determination. On March 6, 2001, CITA published procedures that it will follow in considering requests. (66 FR 13502).
On August 24, 2004, the Chairman of CITA received a petition from Sharretts, Paley, Carter & Blauvelt, P.C., on behalf of Fishman & Tobin, alleging that certain woven fabrics, of the specifications detailed below, classified in the indicated subheadings of the Harmonized Tariff Schedule of the United States (HTSUS), for use in apparel articles, cannot be supplied by the domestic industry in commercial quantities in a timely manner and requesting quota- and duty-free treatment under the CBTPA for apparel articles that are both cut and sewn in one or more CBTPA beneficiary countries from such fabrics.
On August 31, 2004, CITA solicited public comments regarding this petition (69 FR 53047), particularly with respect to whether these fabrics can be supplied by the domestic industry in commercial quantities in a timely manner. On September 16, 2004, CITA and the Office of the U.S. Trade Representative offered to hold consultations with the relevant Congressional committees. We also requested the advice of the U.S. International Trade Commission and the
CITA found that there are several domestic manufacturers with the ability to weave the subject fabrics. There was a general concern expressed about the sourcing of the required rayon staple fibers. However, rayon fiber can be sourced worldwide and be used in qualifying U.S. formed fabric for preferential treatment under the CBTPA.
Based on the information provided, including review of the petition, public comments and advice received, and our knowledge of the industry, CITA has determined that certain woven fabrics, of the specifications detailed below, classified in the indicated subheadings of the Harmonized Tariff Schedule of the United States (HTSUS), for use in apparel articles, can be supplied by the domestic industry in commercial quantities in a timely manner. Sharretts, Paley, Carter & Blauvelt's request is denied.
Department of the Army, DoD.
Notice of availability.
The Army announces the availability of a Draft Environmental Impact Statement (DEIS) for the construction and operation of a co-located Battle Area Complex (BAX) and a Combined Arms Collective Training Facility (CACTF) within U.S. Army training lands in Alaska, and the execution of routine, joint military training at these locations. The purpose of the proposed project is to provide a year-round, fully automated, multi-purpose, and realistic training facility for U.S. Army, Alaska and other units. The DEIS analyzes the proposed action's impacts upon Alaska's natural and man-made environments. The Army prepared this DEIS in compliance with the National Environmental Policy Act (NEPA).
Written comments on the DEIS are invited during the 45-day public comment period, which begins on the date the U.S. Environmental Protection Agency publishes notice of receipt of the DEIS in the
Written comments should be directed to: Mr. Kevin Gardner, Directorate of Public Works, 730 Quartermaster Road, Attention: APVR-RPW-EV (GARDNER), Fort Richardson, AK 99505-6500; facsimile: (907) 384-3047; e-mail:
Major Dan Hunter, Public Affairs Officer, 600 Richardson Drive, #5600, ATTN: APVR-RPV-O (HUNTER), Fort Richardson, AK 99505-5600; telephone: (907) 384-3306; facsimile: (907) 384-2060; e-mail:
U.S. Army, Alaska (USARAK) proposes to construct and to operate a state-of-the-art, fully automated and instrumented combat training facility. This involves the construction and operation of a co-located BAX (rural environment) and CACTF (urban environment). The BAC and CACTF require approximately 3,500 and 800 acres of land suitable for the construction and operation of these ranges, respectively. In addition, a surface danger zone is associated with both, brining the total required area to approximately 30,000 acres.
The purpose of the proposed action is to provide year-round, fully automated, comprehensive, and realistic training and range facilities, which, in combination, would support company (200 soldiers) through battalion (800 soldiers) combat team training events. The construction and operation of a co-located BAX and CACTF would support required higher levels of realistic combat training in both urban and rural environments. Automated facilities will be used to provide timely feedback that is critical to effective training.
The BAX and CACTF would fully train soldiers for war by maintaining unit readiness and availability in recognition of the threats facing our nation and the world today. The BAX would support company combat team live-fire operations on a fully automated rural maneuver range and would provide for joint combined arms team training with other Department of Defense organizations. The CACTF would support battalion combat team training and joint operations in an urban environment.
Tribes, Federal, state, and local agencies and the public were invited to participate in the scoping process for the preparation of this DEIS. The primary issues analyzed in the DEIS include the result of public scoping. These issues are: Soil resources; wildlife and fisheries; cultural resources; surface water (particularly local flooding events); fire management; noise; and human health and safety. These issues have been analyzed based on the following proposed alternative courses of action: (1) No Action (maintain existing range infrastructure and do not construct a BAX and a CACTF); (2) Construction and operation of a BAX and a CACTF within Eddy Drop Zone; (3) Construction and operation of a BAX and a CACTF within Donnelly Drop Zone; and (4) Construction and operation of a BAX and a CACTF within North Texas Range. These three alternative sites are located in Donnelly Training Area, East, which is adjacent to Fort Greely, Alaska.
Copies of the DEIS are available for review at the following locations: Noel Wien Public Library, 1215 Cowles Street, Fairbanks, AK; Delta Junction Public Library, Deborah Street, Delta Junction, AK; Donnelly Training Area Natural Resources Office, Building T100, Room 201, Fort Greely, AK; and Fort Wainwright Environmental Resources Department, Building 3023, Fort Wainwright, AK. A copy of the DEIS may be obtained at the following Web site:
Comments on the DEIS, received during the 45-day public comment period, will be considered in preparing the Final Environmental Impact Statement. The Army will hold public meetings to solicit comments on the DEIS. Notification of the dates, times and locations for the meetings will be published in local newspapers.
Department of the Army; U.S. Army Corps of Engineers, DOD.
Notice of intent/notice of preparation.
The U.S. Army Corps of Engineers (Corps) is currently constructing the Channel Deepening Project. Disposal sites developed for the Channel Deepening Project have proven to be inadequate to provide disposal capacity for all sediments that require removal as part of the Channel Deepening Project. In addition, as identified in the project Feasibility Study, various berths located throughout the Port of Los Angeles (POLA) require dredging in order to accommodate deeper draft vessels that the Channel Deepening Project will allow to navigate the Main Channel.
A formal scoping meeting to solicit public comment and concerns on the proposed action and alternatives will be held on November 30, 2004, at 6 p.m.
The meeting location is in the Bannings Landing Community Center; 100 East Water Street; Wilmington, CA 90748. Telephone: (310) 522-2015.
For further information contact Mr. Larry Smith, U.S. Army Corps of Engineers, Los Angeles District, CESPL-PD-RN, P.O. Box 532711, Los Angeles, CA 90053-2325; phone (213) 452-3846; or E-mail:
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b. The Corps and the POLA are preparing a joint SEIS/SEIR to address potential impacts associated with the proposed project. The Corps is the Lead Federal Agency for compliance with NEPA for the project, and the POLA is the Lead State Agency for compliance with the CEQA for the non-Federal aspects of the project. The Draft SEIS/SEIR (DSEIS/SEIR) document will incorporate public concerns in the analysis of impacts associated with the Proposed Action and associated project alternatives. The DSEIS/SEIR will be sent out for a 45-day public review period, during which time both written and verbal comments will be solicited on the adequacy of the document. The Final SEIS/SEIR (FSEIS/SEIR) will address the comments received on the DSEIS/SEIR during public review, and will be furnished to all who commented on the DSEIS/SEIR, and is made available to anyone that requests a copy during the 30-day public comment period. The final step involves, for the federal SEIS, preparing a Record of Decision (ROD) and, for the state SEIR, certifying the SEIR and adopting a Mitigation Monitoring and Reporting Plan. The ROD is a concise summary of the decisions made by the Corps from among the alternatives presented in the FSEIS/SEIR. The ROD can be published immediately after the FSEIS public comment period ends. A certified SEIR indicates that the environmental document adequately assesses the environmental impacts of the proposed project with respect to CEQA.
c. The public, as well as Federal, State, and local agencies are encouraged to participate in the scoping process by attending the scoping meeting and/or submitting data, information, and comments identifying relevant environmental and socioeconomic issues to be addressed in the environmental analysis. Useful information includes other environmental studies, published and unpublished data, historical photos of the area, alternatives that should be addressed in the analysis, and potential environmental enhancement and restoration opportunities that exist along the Main Channel and San Pedro Bay. Individuals and agencies may offer information or data relevant to the proposed study and provide comments by attending the public scoping meeting, or by mailing the information to Mr. Larry Smith before December 13, 2004. Requests to be placed on the mailing list for announcements and the DSEIS/SEIR should also be sent to Mr. Larry Smith.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of open meeting.
In accordance with 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), announcement is made of the forthcoming meeting. The meeting is open to the public.
Mr. Norman Edwards, Headquarters, U.S. Army Corps of Engineers, Washington, DC 20314-1000; Ph: 202-761-1934.
The Board advises the Chief of Engineers on environmental policy, identification and resolution of environmental issues and missions, and addressing challenges, problems and opportunities in an environmentally sustainable manner. The EAB will visit the Buffalo area prior to the meeting to gain a better perspective of the water resources issues and challenges in the region. The public meeting will, however, focus on general issues of national significance rather than on individual project or region related topics. The intent of this meeting is to present an opportunity for the Chief of Engineers to receive the views of his EAB. Time will be provided for public comment. Each speaker will be limited to no more than three minutes in order to accommodate as many people as possible within the limited time available.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of open meeting.
In accordance with 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), announcement is made of the forthcoming meeting.
Mr. Norman T. Edwards, Headquarters, U.S. Army Corps of Engineers, CEMP-POD, 441 G Street, NW., Washington, DC 20314-1000; Ph: 202-761-1934.
The meeting is open to the public. Any interested persons may attend, appear before, or file statements with the committee at the time and in the manner permitted by the committee.
Office of Fossil Energy, DOE.
Notice of Orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during September 2004, it issued Orders granting, amending, and vacating authority to import and export natural gas, including liquefied natural gas. These Orders are summarized in the attached appendix and may be found on the FE Web site at
Federal Energy Regulatory Commission, DOE.
Notice.
In compliance with the requirements of section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the Federal Energy Regulatory Commission (Commission) has submitted the information collection described below to the Office of Management and Budget (OMB) for review and reinstatement of this information collection requirement. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission received no comments in response to an earlier
Comments on the collection of information are due by November 29, 2004.
Address comments on the collection of information to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Federal Energy Regulatory Commission Desk Officer. Comments to OMB should be filed electronically, c/o
Documents filed electronically via the Internet must be prepared in WordPerfect, MS Word, Portable Document Format, or ASCII format. To file the document, access the Commission's Web site at
All comments are available for review at the Commission or may be viewed on the Commission's Web site at
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collection submitted for OMB review contains the following:
1.
2.
3.
The Commission is now requesting that OMB review and approve with a three-year extension of the expiration date, with no changes to the existing collection. The information filed with the Commission is mandatory.
4.
Under section 203 of the FPA, FERC must review proposed mergers, acquisitions and dispositions of jurisdictional facilities by public utilities, if the value of the facilities exceeds $50,000, and must approve these transactions if they are consistent with the public interest. Today, one of FERC's overarching goals is to promote competition in wholesale power markets, having determined that effective competition, as opposed to traditional forms of price regulation, can best protect the interests of ratepayers. Market power, however, can be exercised to the detriment of effective competition and customers. Therefore, FERC regulates transmission service, mergers and wholesale rates so as to prevent the exercise of market power in bulk power markets. The Commission implements these filing requirements in
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7.
Section 203 of the Federal Power Act, (18 U.S.C. 824b).
Federal Energy Regulatory Commission, DOE.
Notice.
In compliance with the requirements of section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the Federal Energy Regulatory Commission (Commission) has submitted the information collection described below to the Office of Management and Budget (OMB) for review and extension of this information collection requirement. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission received no comments in response to an earlier
Comments on the collection of information are due by November 29, 2004.
Address comments on the information collection to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Federal Energy Regulatory Commission Desk Officer. Comments to OMB should be filed electronically, c/o
Documents filed electronically via the Internet must be prepared in, MS Word, Portable Document Format, Word Perfect or ASCII format. To file the document, access the Commission's Web site at
All comments are available for review at the Commission or may be viewed on the Commission's Web site at
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collection submitted for OMB review contains the following:
1.
2.
3.
The Commission is now requesting that OMB approve with a three-year extension of the expiration date, with no changes to the existing collection. The information filed with the Commission is mandatory.
4.
The Commission implements these filing requirements in the Code of Federal Regulations (CFR) under 18 CFR parts 20, 34, 131.43 and 131.50.
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Sections 19, 20 and 204 of the Federal Power Act (FPA) (16 U.S.C. 792-828c).
Federal Energy Regulatory Commission, DOE.
Notice.
In compliance with the requirements of section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the Federal Energy Regulatory Commission (Commission) has submitted the information collection described below to the Office of Management and Budget (OMB) for review and extension of this information collection requirement. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission received no comments in response to an earlier
Comments on the collection of information are due by November 29, 2004.
Address comments on the information collection to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Federal Energy Regulatory Commission Desk Officer. Comments to OMB should be filed electronically, c/o
Documents filed electronically via the Internet must be prepared in, MS Word, Portable Document Format, Word Perfect or ASCII format. To file the document, access the Commission's Web site at
All comments are available for review at the Commission or may be viewed on the Commission's Web site at
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collection submitted for OMB review contains the following:
1.
2.
3.
The Commission is now requesting that OMB approve with a three-year extension of the expiration date, with no changes to the existing collection. The information filed with the Commission is mandatory.
4.
Tracking filings may be submitted at any time or on a regularly scheduled basis in accordance with the pipeline company's tariff. Filings may be either: (1) Accepted; (2) suspended and set for hearing; (3) suspended, but not set for hearing; or (4) suspended for further review, such as technical conference or some other type of Commission action. The Commission implements these filing requirements in the Code of Federal Regulations (CFR) under 18 CFR part 154, 154.4, 154.7, 154.101, 154.107, 154.201, 154.207-209 and 154.401-403.
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Federal Energy Regulatory Commission, DOE.
Notice.
In compliance with the requirements of section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the Federal Energy Regulatory Commission (Commission) has submitted the information collection described below to the Office of Management and Budget (OMB) for
Comments on the collection of information are due by November 29, 2004.
Address comments on the information collection to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Federal Energy Regulatory Commission Desk Officer. Comments to OMB should be filed electronically, c/o
Documents filed electronically via the Internet must be prepared in, MS Word, Portable Document Format, Word Perfect or ASCII format. To file the document, access the Commission's Web site at
All comments are available for review at the Commission or may be viewed on the Commission's Web site at
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collection submitted for OMB review contains the following:
1.
2.
3.
The Commission is now requesting that OMB approve with a three-year extension of the expiration date, with no changes to the existing collection. The information filed with the Commission is mandatory.
4.
Service and tariff revision information necessary for Commission examination and subsequent approval of any certificated pipeline
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Sections 4, 5 and 16 of the Natural Gas Act (NGA), Pub. L. 75-688) (15 U.S.C. 717-717) and Title IV of the Natural Gas Policy Act (15 U.S.C. 3301-3432).
Federal Energy Regulatory Commission, DOE.
Notice.
In compliance with the requirements of section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the Federal Energy Regulatory Commission (Commission) has submitted the information collection described below to the Office of Management and Budget (OMB) for review and extension of this information collection requirement. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission received no comments in response to an earlier
Comments on the collection of information are due by November 30, 2004.
Address comments on the information collection to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Federal Energy Regulatory Commission Desk Officer. Comments to OMB should be filed electronically, c/o
Documents filed electronically via the Internet must be prepared in, MS Word, Portable Document Format, Word Perfect or ASCII format. To file the document, access the Commission's Web site at
All comments are available for review at the Commission or may be viewed on the Commission's Web site at
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collection submitted for OMB review contains the following:
1.
2.
3.
The Commission is now requesting that OMB approve with a three-year extension of the expiration date, with no changes to the existing collection. The information filed with the Commission is mandatory.
4.
A primary objective of PURPA is the conservation of energy through efficient use of energy resources in the generation of electric power. One means of achieving this objective is to encourage electric power production by cogeneration facilities which make use of reject heat associated with commercial or industrial processes, and by small power production facilities which use waste and renewable resources as fuel. PURPA through the establishment of various regulatory benefits, encourages the development of small power production facilities and cogeneration facilities which meet certain technical and corporate criteria. Facilities that meet these criteria are called QF's.
Owners and operators of small power production and cogeneration facilities desiring QF certification for their facilities must file the information prescribed in FERC Form 556 with the Commission. (A copy of the form can be obtained from the Commission's Web site at
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Sections 3 of the Federal Power Act (FPA) (16 U.S.C. 792-828c) and Sections 201 and 210 of the Public Utility Regulatory Policies Act of 1978 (16 U.S.C § 2601).
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act, this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. This ICR is scheduled to expire on October 31, 2004. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. This ICR describes the nature of the information collection and its estimated burden and cost.
Additional comments may be submitted on or before December 6, 2004.
Submit your comments, referencing docket ID number OAR-2004-0073, to (1) EPA online using EDOCKET (our preferred method), by e-mail to
Maria Noell, Office of Air Quality Planning and Standards, Mail Code C339-03, Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 541-5607; fax number (919) 541-5509; E-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 19, 2004 (69 FR 28885), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments.
EPA has established a public docket for this ICR under Docket ID Number OAR-2004-0073, which is available for public viewing at the Air and Radiation Docket and Information Center, in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Avenue, NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket and Information Center is: (202) 566-1742. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice. EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EDOCKET as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose public disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EDOCKET. The entire printed comment, including the copyrighted material, will be available in the public docket. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket, see EPA's
The information collected in the section 112(g) applications provides (for the purposes of compliance determination) documentation of the selection of a particular control technology for case-by-case MACT. Applications are reviewed by a state or local agency for which authority has been delegated by EPA to make the requisite determinations. In addition, EPA will review some applications as an oversight function.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB Control Numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15, and are identified on the form and/or instrument, if applicable.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank
Board of Governors of the Federal Reserve System, October 29, 2004.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than November 30, 2004.
Board of Governors of the Federal Reserve System, October 29, 2004.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), a notice is hereby given of the following committee meeting:
1. Approval of the minutes of the March 23, 2004, meeting.
2. Report of the Executive Director on Thrift Savings Plan status.
3. Parallel call center/dedicated main frame computer and data center.
4. “Life” funds.
5. Legislation.
6. New business (spousal accounts).
7. Frequency of meetings.
Federal Trade Commission (“FTC” or “Commission”).
Notice.
The proposed information collection requirements described below will be submitted to the Office of Management and Budget (“OMB”) for review, as required by the Paperwork Reduction Act (“PRA”). The FTC is seeking public comments on its proposal to extend through September 30, 2007 the current PRA clearance for information collection requirements contained in its Appliance Labeling Rule (“Rule”), promulgated pursuant to the Energy Policy and Conservation Act of 1975 (“EPCA”). That clearance was scheduled to expire on September 30, 2004. On September 14, 2004, the OMB granted the FTC's request for a short-term extension to November 30, 2004 to allow for this second opportunity to comment.
Comments must be submitted on or before December 6, 2004.
Interested parties are invited to submit written comments. Comments should refer to “Appliance Labeling Rule: Paperwork comment, R611004” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission/Office of the Secretary, Room H-159 (Annex U), 600 Pennsylvania Avenue, NW., Washington, DC 20580. If the comment contains any material for which confidential treatment is requested, it must be filed in paper (rather than electronic) form, and the first page of the document must be clearly labeled “Confidential.”
The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments will be considered by the Commission, and will be available to the public on the FTC Web site, to the extent practicable, at
Requests for additional information or copies of the proposed information collection requirements should be addressed to Hampton Newsome, Attorney, Bureau of Consumer Protection, Division of Enforcement, Room NJ-2122, Federal Trade Commission, 600 Pennsylvania Ave., NW., Washington, DC 20580 (202-326-2889).
On July 21, 2004, the FTC sought comment on the information collection requirements associated with the Appliance Labeling Rule, 16 CFR part 305 (Control Number 3084-0069).
The Appliance Labeling Rule establishes testing, reporting, recordkeeping, and labeling requirements for manufacturers of major household appliances. The requirements relate specifically to the disclosure of information relating to energy consumption and water usage. The Rule's testing and disclosure requirements enable consumers purchasing appliances to compare the energy use or efficiency of competing models. In addition, EPCA and the Rule require manufacturers to submit relevant data to the Commission regarding energy or water usage in connection with the products they manufacture. The Commission uses this data to compile ranges of comparability for covered appliances for publication in the
The estimated hours burden imposed by Section 324 of EPCA and the Commission's Rule include burdens for testing (360,721 hours); reporting (1,324 hours); recordkeeping (767 hours); labeling (101,333 hours); and retail catalog disclosures (2,550 hours). The total burden for these activities is 467,000 hours (rounded to the nearest thousand), which is the same as staff's previous estimate in its 2001 submission to OMB.
The following estimates of the time needed to comply with the requirements of the Rule are based on census data, Department of Energy figures and estimates, general knowledge of manufacturing practices, and industry input and figures. Because compliance burden falls almost entirely on manufacturers and importers (with a
Under the Rule, manufacturers of covered products must test each basic model they produce to determine energy usage (or, in the case of plumbing fixtures, water consumption). The burden imposed by this requirement is determined by the number of basic models produced, the average number of units tested per model, and the time required to conduct the applicable test.
Manufacturers need not subject each basic model to testing annually; they must retest only if the product design changes in such a way as to affect energy consumption. The staff estimates that the frequency with which models are tested every year ranges roughly between 10% and 50% and that the actual percentage of basic models tested varies by appliance category. In addition, it is likely that only a small portion of the tests conducted is attributable to the Rule's requirements. Given the lack of specific data on this point, staff has conservatively assumed that all of the tests conducted are attributable to the Rule's requirements and will use the high end of the range noted above. Accordingly, the burden estimates are based on the assumption that 50% of all basic models are tested annually. Thus, the estimated testing burden for the various categories of products covered by the Rule is as follows:
Reporting burden estimates are based on information from industry representatives. Manufacturers of some products indicate that, for them, the reporting burden is best measured by the estimated time required to report on each model manufactured, while others state that an estimated number of annual burden hours by manufacturer is a more meaningful way to measure. The figures below reflect these different methodologies as well as the varied burden hour estimates provided by manufacturers of the different product categories that use the latter methodology.
Staff estimates that the average reporting burden for these manufacturers is approximately two minutes per basic model. Based on this estimate, multiplied by a total of 10,033 basic models of these products, the annual reporting burden for the appliance, HVAC equipment, and pool heater industry is an estimated 334 hours (2 minutes × 10,033 models ÷ 60 minutes per hour).
The total annual reporting burden for manufacturers of fluorescent lamp ballasts, lamp products, and plumbing products is based on the estimated average annual burden for each category of manufacturers, multiplied by the number of manufacturers in each respective category, as shown below:
The total reporting burden for industries covered by the Rule is 1,324 hours annually (334 + 120 + 750 + 120).
EPCA and the Appliance Labeling Rule require manufacturers to keep records of the test data generated in performing the tests to derive information included on labels and required by the Rule. As with reporting, burden is calculated by number of models for appliances, HVAC equipment, and pool heaters, and by number of manufacturers for fluorescent lamp ballasts, lamp products, and plumbing products.
The recordkeeping burden for manufacturers of appliances, HVAC equipment, and pool heaters varies directly with the number of tests performed. Staff estimates total recordkeeping burden to be approximately 167 hours for these manufacturers, based on an estimated average of one minute per record stored (whether in electronic or paper format), multiplied by 10,033 tests performed annually (1 minute × 10,033 basic models ÷ 60 minutes per hour).
The total annual recordkeeping burden for manufacturers of fluorescent lamp ballasts, lamp products, and plumbing products is based on the estimated average annual burden for each category of manufacturers (derived from industry sources), multiplied by the number of manufacturers in each respective category, as shown below:
The total recordkeeping burden for industries covered by the Rule is 767 hours annually (167 + 40 + 500 + 60).
EPCA and the Rule require that manufacturers of covered products provide certain information to consumers, through labels, fact sheets, or permanent markings on the products. The burden imposed by this requirement consists of (1) the time needed to prepare the information to be provided, and (2) the time needed to provide it, in whatever form, with the products. The applicable burden for each category of products is described below:
EPCA and the Rule specify the content, format, and specifications for the required labels, so manufacturers need only add the energy consumption figures derived from testing. In addition, most larger companies use automation to generate labels, and the labels do not change from year to year. Given these considerations, staff estimate that the time to prepare labels for appliances, HVAC equipment, and pool heaters is no more than four minutes per basic model. Thus, for appliances, HVAC equipment, and pool heaters, the approximate annual drafting burden involved in preparing labels is 669 hours per year [10,033 (basic models) × 4 minutes (drafting time per basic model) ÷ 60 (minutes per hour)].
Industry representatives and trade associations have estimated that it takes between 4 and 8 seconds to affix each label to each product. Based on an average of 6 seconds per unit, the annual burden for affixing labels to appliances, HVAC equipment, and pool heaters is 83,522 hours [6 (seconds) × 50,113,098 (the number of total products shipped) ÷ 3,600 (seconds per hour)].
The Rule also requires that HVAC equipment manufacturers disclose energy usage information on a separate fact sheet or in an approved industry-prepared directory of products. Staff has estimated the preparation of these fact sheets requires approximately 30 minutes per basic model. Manufacturers producing at least 95 percent of the affected equipment, however, are members of trade associations that produce approved directories (in connection with their certification programs independent of the Rule) that satisfy the fact sheet requirement. Thus, the drafting burden for fact sheets for HVAC equipment is approximately 102 hours annually [4,073 (basic models) × .5 hours × .05 (proportion of equipment for which fact sheets are required)].
The Rule allows manufacturers to prepare a directory containing fact sheet information for each retail establishment as long as there is a fact sheet for each basic model sold. Assuming that six HVAC manufacturers (
The total annual labeling burden for appliances, HVAC equipment, and pool heaters is 669 hours for preparation plus 83,522 hours for affixing, or 84,191 hours. The total annual fact sheet burden is 102 hours for preparation and 96 hours for distribution, or 198 hours. The total annual burden for labels and fact sheets for the appliance, HVAC, and pool heater industries is, therefore, estimated to be 84,389 hours.
The statute and the Rule require that labels for fluorescent lamp ballasts contain an “E” within a circle. Since manufacturers label these ballasts in the ordinary course of business, the only impact of the Rule is to require manufacturers to reformat their labels to include the “E” symbol. Thus, the burden imposed by the Rule for labeling fluorescent lamp ballasts is minimal.
The burden attributable to labeling lamp products is also minimal, for similar reasons. The Rule requires certain disclosures on packaging for lamp products. Since manufacturers were already disclosing the substantive information required under the Rule prior to its implementation, the practical effect of the Rule was to require that manufacturers redesign packaging materials to ensure they include the disclosures in the manner and form prescribed by the Rule. Because this effort is now complete, there is no ongoing labeling burden imposed by the Rule for lamp products.
The statute and the Rule require that manufacturers disclose the water flow rate for plumbing fixtures. Manufacturers may accomplish this disclosure by attaching a label to the product, through permanent markings imprinted on the product as part of the manufacturing process, or by including the required information on packaging material for the product. While some methods might impose little or no additional incremental time burden and cost on the manufacturer, other methods (such as affixing labels) could. Thus, staff estimate an overall blended average burden associated with this disclosure requirement of one second per unit sold. Staff also estimate that there are approximately 9,000,000 covered fixtures and 52,000,000 fittings sold annually in the country. Therefore, the estimated annual burden to label plumbing products is 16,944 hours [61,000,000 (units) × 1 (seconds) ÷ 3,600 (seconds per hour)].
The total labeling burden for all industries covered by the Rule is 101,333 hours (84,389 + 16,944) annually.
The Rule requires that sellers offering covered products through retail sales catalogs disclose in the catalog energy (or water) consumption for each covered product. Because this information is supplied by the product manufacturers, the burden on the retailer consists of incorporating the information into the catalog presentation.
Paper catalog sellers now have substantial experience with the Rule and its requirements and it is likely that many of the required disclosures would be made in the ordinary course of business. Thus, staff believe that any incremental burden the Rule imposes on these paper catalog sellers would be minimal.
Staff estimates that there are an additional 150 new online sellers of covered products who are subject to the Rule's catalog disclosure requirements. Many of these sellers may not have the experience the paper catalog sellers have in incorporating energy and water consumption data into their catalogs. Staff estimates that these online sellers each require approximately 17 hours per year to incorporate the data into their online catalogs. This estimate is based on the assumption that entry of the required information takes 1 minute per covered product and an assumption that the average online catalog contains approximately 1,000 covered products (based on a sampling of Web sites of affected retailers). Given that there is a great variety among sellers in the volume of products they offer online, it is very difficult to estimate such volume with precision. In addition, this analysis assumes that information for all 1,000
Based on the above estimates and assumptions, the total annual labor costs for the five different categories of burden under the Rule, applied to all the products covered by it, is $8,353,641 (rounded to the nearest thousand), derived as follows:
Staff has examined the five distinct burdens imposed by EPCA through the Rule—testing, reporting, recordkeeping, labeling, and retail catalog disclosures—as they affect the 11 groups of products that the Rule covers. Staff has concluded that there are no current start-up costs associated with the Rule. Manufacturers have in place the capital equipment necessary—especially equipment to measure energy and/or water usage—to comply with the Rule.
Under this analysis, testing, recordkeeping, and retail catalog disclosures are activities that incur no capital or other non-labor costs. As mentioned above, testing has been performed in these industries in the normal course of business for many years as has the associated recordkeeping. The same is true regarding compliance applicable to the requirements for paper catalogs. Manufacturers and retailers who make required disclosures in catalogs already are producing catalogs in the ordinary course of their businesses; accordingly, capital cost associated with such disclosure would be minimal or nil. Staff recognizes that there may be initial costs associated with posting online disclosure, and it invites further comment to reasonably quantify such costs.
Manufacturers that submit required reports to the Commission directly (rather than through trade associations) incur some nominal costs for paper and postage. Staff estimates that these costs do not exceed $2,500. Manufacturers must also incur the cost of procuring labels and fact sheets used in compliance with the Rule. Based on estimates of 50,113,098 units shipped and 128,650 fact sheets prepared,
This program is authorized under section 301 (a) [42 U.S.C. 241(a)] of the Public Health Service Act, and section 391(a)[42 U.S.C. 280b(a)] of the Public Service Health Act, as amended.
The purposes of this program are to:
• Solicit research applications that address the priorities reflected under the heading, “Research Objectives”.
• Encourage professionals from a wide spectrum of disciplines to conduct research aimed at preventing and controlling injuries more effectively.
• Support injury research by new investigators who are doctoral-level graduates and who have not previously received injury-related CDC R49 or their equivalent grants.
• Build the scientific base for the prevention and control of unintentional- and violence-related injuries, disabilities, and deaths.
• Encourage qualified applicants who are beginning to focus on injury-related research.
The career development objectives of this program are to encourage scientists to develop independent research skills and to gain experience in advanced methods and experimental approaches in injury-related research. This program is also intended to jump start the careers of researchers in injury prevention and control by providing support for pilot studies, enhancements to existing studies, or other studies that will serve as a foundation for a career in injury prevention and control. Applicants are required to have a mentor with extensive injury research experience who will assist the applicant with scientific and career-related issues during the period of the award.
This program addresses the “Healthy People 2010” focus area of Injury and Violence Prevention.
Measurable outcomes of the program will be in alignment with one (or more) of the following performance goal(s) for the National Center for Injury Prevention and Control (NCIPC):
• Increase the capacity of injury prevention and control programs to address the prevention of injuries and violence.
• Monitor and detect fatal and non-fatal injuries.
• Conduct a targeted program of research to reduce injury-related death and disability.
For the purposes of this program announcement, unintentional injuries are defined as unintentional damage to the body resulting from acute exposure to thermal, mechanical, electrical, or chemical energy or from the absence of such essentials as heat or oxygen.
Unintentional injuries continue to be a major public health problem. In 2000, 97,900 people died in the United States as a result of unintentional injuries. Someone dies every six minutes in the U.S. from causes such as motor vehicle crashes, falls, poisoning, drowning, fires and burns, pedestrians struck by vehicles, bicycle crashes, or choking and suffocation. In addition to deaths, injuries also constitute a significant cause of both permanent and temporary disability. In 2000, unintentional injuries resulted in an estimated 29.1 million emergency department visits and millions more seek treatment for injuries from health care professionals. In addition to the emotional costs of injuries, the financial costs of unintentional injuries are staggering: well over $200 billion a year in medical care, wage and productivity losses and employer costs alone. Unintentional injuries are not accidents, they are predictable and they are preventable.
Deaths and injuries associated with interpersonal violence and suicidal behavior are also a major public health problem in the United States and around the world. In 2000, over 46,000 people died from homicide and suicide in the United States. Among 15 to 24 year olds, homicide and suicide ranked as the second and third leading causes of death. Violent deaths are the most visible consequence of violent behavior in our society. Morbidity associated with physical and emotional injuries and disabilities resulting from violence, however, also constitute an enormous public health problem. For every homicide that occurs each year there are over 100 nonfatal injuries resulting from interpersonal violence. For every completed suicide it is estimated that there are 20 to 25 suicide attempts. The mortality and morbidity resulting from violence are associated with a variety of types of violence including child maltreatment, youth violence, intimate partner violence, sexual violence, elder abuse, and self-directed violence or suicidal behavior.
The field of biomechanics quantifies the response and tolerance of the human body to impact (
NCIPC's biomechanics program attempts to build on the basic knowledge of biomechanics and encourage interdisciplinary intervention-oriented injury control research as supported in the CDC Injury Research Agenda.
Each year, Americans make between 30 and 40 million emergency department (ED) visits for injuries. While most injured patients are treated and released, many are admitted to inpatient trauma units and later receive rehabilitative services. The most favorable outcomes are achieved when acute care and subsequent rehabilitation are offered as early as possible and focus on returning patients to baseline or to an optimal level of functioning. Trauma systems are designed to match trauma patients with the acute care and rehabilitative facilities they need, but in many parts of the U.S. trauma systems are not fully operational or are nonexistent. Where these systems are lacking, as many as 30 percent to 40 percent of deaths among trauma patients are due to preventable problems in clinical care, including missed diagnoses and treatment delays.
Injuries are a major cause of disabilities in the U.S. Central nervous system injuries (those to the brain and spinal cord) are most likely to result in serious long-term disability. Each year, an estimated 80,000 Americans sustain a traumatic brain injury (TBI) that results in disability; an estimated 5.3 million Americans live with TBI-related disability. Although physical impairments from the injury may contribute to TBI disability, cognitive deficits are the hallmark, frequently resulting in secondary conditions such as depression and other adverse outcomes such as the inability to work. An estimated 177,000 to 200,000 people in the U.S. live with spinal cord injuries (SCI), and this number increases annually by as many as 20,000 individuals.
Applicants are encouraged to propose studies that can feasibly be completed within the available funds and funding period. Proposed research for this program announcement must address one of the following research priorities. Applications that fail to address one of these topics will be deemed nonresponsive.
1. Develop a theory-based intervention for use of supervision of children to reduce unintentional injury outcomes.
2. Evaluate existing and develop new methods to obtain exposure and injury
3. Identify risk and protective factors related to injury from childhood falls, crashes involving young drivers or related to motor vehicle and pedestrian travel of older adults.
4. Evaluate the effectiveness of environmental, behavioral, legislative or regulatory interventions to prevent pedestrian injuries or injuries related to sports, exercise, and recreation (including drowning).
5. Assess how tailoring, training, packaging, feasibility (and other dimensions of an effective intervention or policy) would promote greater adoption, usability and uptake, especially for interventions that impact older adult falls injury, transportation safety, and sports & recreation injury prevention (including drowning).
6. Evaluate theory-based strategies to increase dissemination of effective interventions that reduce injuries related to transportation, at home, or during recreation.
For more information on the unintentional injury research objectives, see Attachment 2 of this announcement. The attachment is posted along with this announcement on the CDC Web site:
1. Conduct studies to build knowledge on methods, structures, and processes to implement evidence-based interventions, programs and policies to prevent intimate partner violence, child maltreatment and youth violence. This research is intended to bridge the gap between prevention research and everyday practice by building a knowledge base about how evidence-based violence prevention information and strategies are disseminated, translated and integrated for use by communities and policymakers.
2. Evaluate the efficacy, effectiveness, and cost effectiveness of primary prevention interventions, programs, and policies to prevent perpetration of intimate partner violence, sexual violence, child maltreatment (includes physical, sexual, emotional abuse and neglect), youth violence or suicidal behavior. There is particular interest in assessing the impact of interventions, programs, or policies that may affect multiple forms of violence simultaneously.
3. Identify protective factors across at least two levels of influence (
1. Use biomechanics research and the knowledge of injury tolerance and injury mechanisms to develop and/or evaluate interventions that address the following specific injury prevention and control problems. An intervention can be broadly defined as a specific action, policy, device or strategy designed to address injury prevention and control:
a. Falls that occur among older, community dwelling adults (
b. Injuries in mass trauma events.
c. Severe and disabling falls among children.
d. Sports, recreation, and exercise-related injuries (
e. Injuries associated with people initiating or increasing physical activity (
f. Injuries related to outdoor recreation (
g. Motorcycling, bicycling and pedestrian injuries (
h. Injuries to child occupants of motor vehicles (
i. Injuries to older drivers.
j. Injuries associated with the effects of emerging vehicle technologies.
2. Identify the biomechanics and specific injuries that would be highly predictive of diagnoses of intimate partner violence and child maltreatment, and improve case definitions.
3. Advance the biomechanical understanding of traumatic injury (
4. Define the human tolerance limits for injury in children and older adults (greater than 65 years old), especially determining the differences in human tolerance by age, fitness level, and gender and the biomechanics and injury tolerances of tissue, bone, and other human structures as a prerequisite for developing interventions.
5. Identify the modifiable risk factors for and mechanisms of nonfatal whiplash injuries of the neck and back.
1. Develop and evaluate protocols that provide onsite interventions in acute care settings or linkages to off-site services for patients at risk of injury or psychosocial problems following injury.
2. Identify methods and strategies to ensure that people with traumatic brain injuries (TBI) and spinal cord injuries (SCI) receive needed services.
3. Identify the effects on acute injury care of inter-jurisdictional, legal, governmental, and interdisciplinary issues related to mass casualty events.
4. Identify and evaluate the components of trauma systems which contribute to improvement in care of the injured.
5. Develop and evaluate new methods for linking prehospital databases to trauma registries, and other hospital databases, including those related to subsequent levels of care (
Approximately $500,000 of the total award amount will be reserved to fund up to five proposals that address acute injury care research.
Rigorous evaluations are needed to determine the effectiveness of interventions, programs, and policies addressing the prevention of injury. Experimental designs are strongly encouraged. However, NCIPC will consider other evaluation designs, if justified, as required by the needs and constraints in a particular setting.
For effective interventions, it is possible to do cost-effectiveness studies. To be comparable to other cost effectiveness studies, they should follow the guidelines in the following references:
For randomized trials, applicants are encouraged to clearly state how study subjects, whether individuals or groups, were selected, randomized, and followed through the trial. One relevant useful guidance document is Moher D, Schulz KF, Altman D, The CONSORT Statement, JAMA 2001;285:1987-2001.
Allowable costs include partial salary and tuition support for the applicant; direct research project expenses, such as trainee stipends, interviewer costs, data processing, participant incentives, statistical consultation services, and supplies; and travel to one scientific meeting, if adequately justified. Applicants should also include travel costs for one, two-day trip to CDC in Atlanta to present research findings.
Applications may be submitted by public and private nonprofit and for profit organizations and by governments and their agencies, such as:
• Public nonprofit organizations.
• Private nonprofit organizations.
• For profit organizations.
• Small, minority, women-owned businesses.
• Universities.
• Colleges.
• Research institutions.
• Hospitals.
• Community-based organizations.
• Faith-based organizations.
• Federally recognized Indian tribal governments.
• Indian tribes.
• Indian tribal organizations.
• State and local governments or their Bona Fide Agents (this includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Commonwealth of the Northern Marianna Islands, American Samoa, Guam, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau).
• Political subdivisions of States (in consultation with States).
A Bona Fide Agent is an agency/organization identified by the State as eligible to submit an application under the State eligibility in lieu of a State application. If you are applying as a bona fide agent of a State or local government, you must provide a letter from the State or local government as documentation of your status. Place this documentation behind the first page of your application form.
Matching funds are not required for this program.
If you request a funding amount greater than the ceiling of the award range, your application will be considered non-responsive, and will not be entered into the review process. You will be notified that your application did not meet the submission requirements.
Eligible applicants may enter into contracts, including consortia agreements, as necessary to meet the requirements of the program and strengthen the overall application.
It is especially important that the abstract of your grant application (Description, PHS 398 form page 2) reflects the project's focus, because the abstract will be used to help determine the responsiveness of the application.
If your application is incomplete or non-responsive to the requirements listed in this section, it will not be entered into the review process. You will be notified that your application did not meet submission requirements.
• Late applications will be considered non-responsive. See section “IV.3. Submission Dates and Times” for more information on deadlines.
• Grant applications must demonstrate an overall match between the applicant's proposed theme and research objectives and the program priorities as described under the heading, “Research Objectives.”
• Applications must demonstrate effective and well-defined working relationships within the performing organization and with outside entities, which will ensure implementation of the proposed activities.
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• The principal investigator must have a research or a health-professional doctorate-level degree from an accredited program and have demonstrated the capacity or potential for highly productive research in the period after the doctorate, commensurate with level of experience.
• Applicants who have been the principal investigator on an RO1 or RO1-equivalent health-related research grant or who have had equivalent injury-related research support from an existing Injury Control Research Center (ICRC) are not eligible. Recipients of dissertation research grants or NIH Small Grant Awards are eligible to apply.
• A principal investigator who has specific authority and responsibility to carry out the proposed project.
• The ability of the principal investigator to carry out injury control research projects as defined under Attachment 1 of this program announcement. The attachment is posted along with this announcement on the CDC Web site:
Applications, which do not meet the above requirements, will be considered non-responsive.
Any individual with the skills, knowledge, and resources necessary to carry out the proposed injury research as outlined above is invited to work with their institution to develop an application for support. Individuals from underrepresented racial and ethnic groups as well as individuals with disabilities are always encouraged to apply for CDC programs.
Principal investigators are encouraged to submit only one proposal in response to this program announcement. With few exceptions (
To apply for this funding opportunity, use application form PHS 398 (OMB number 0925-0001 rev. 5/2001). Forms and instructions are available in an interactive format on the CDC Web site, at the following Internet address:
Forms and instructions are also available in an interactive format on the National Institutes of Health (NIH) Web site at the following Internet address:
If you do not have access to the Internet, or if you have difficulty accessing the forms on-line, you may contact the CDC Procurement and Grants Office Technical Information Management Section (PGO-TIM) staff at: (770) 488-2700. Application forms can be mailed to you.
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• Written in plain language, avoid jargon.
Your LOI must contain the following information:
• Descriptive title of the proposed research.
• Name, address, e-mail address, and telephone number of the Principal Investigator.
• Names of other key personnel.
• Participating institutions.
• Number and title of this Program Announcement.
• Brief description of the scope and intent of the proposed research work.
You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the Federal Government. Your DUNS number must be entered on line 11 of the face page of the PHS 398 application form. The DUNS number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access
This announcement uses the non-modular budgeting format. Follow the PHS-398 instructions for non-modular budget research grant applications.
An applicant organization has the option of having specific salary and fringe benefit amounts for individuals omitted from the copies of the application, which are made available to outside reviewing groups. To exercise this option: on the original and five copies of the application, the applicant must use asterisks to indicate those individuals for whom salaries and fringe benefits are not shown; however, the subtotals must still be shown. In addition, the applicant must submit an additional copy of page 4 of Form PHS-398, completed in full, with the asterisks replaced by the salaries and fringe benefits. This budget page will be reserved for internal staff use only.
In addition to the instructions provided in the PHS 398 for writing the Description on page 2 of the PHS 398 form, structure the Description using the following components:
• Statement of the problem.
• Purpose of the proposed research.
• Methods, including study population, data sources and any statistical analyses to be performed.
• Implications for prevention.
The Description (abstract) should answer the following questions:
• Does the Description state the hypothesis?
• Does the Description describe the objectives and specific aims?
• Does the Description state the importance of the research and how it is innovative?
• Does the Description outline the methods that will be used to accomplish the goals?
• Is the language of the Description simple and easy to understand for a broad audience?
You must include a research plan in your application. The research plan should be no more than 25 pages, printed on one side, single spaced, with one half-inch margins, and unreduced 12-point font. The research plan should address activities to be conducted over the entire project period. Use the information in the Research Objectives, Administrative and National Policy Requirements, and Application Review Information sections to develop the application content. The research plan should include the following information:
• The project's focus, a justification for the research proposed, and a description of the scientific basis for the research. The focus should be based on recommendations in “Healthy People 2010” (
• Specific, measurable, and time-framed objectives.
• A detailed plan describing the methods, which will achieve the objectives, including their sequence. A comprehensive evaluation plan is an essential component of the application.
• A description of the roles and responsibilities of the principal investigator and the mentor.
• A description of those activities related to, but not supported by, the grant.
• A description of the involvement of other entities that will relate to the proposed project, if applicable. It should include commitments of support and a clear statement of their roles.
• An explanation of how the research findings will contribute to the national effort to reduce the morbidity, mortality and disability caused by injuries within three to five years from project start-up.
• An official transcript of the applicant's graduate school record.
• A statement describing the applicant's prior research training and experience and short and long term career goals in injury research, including a paragraph describing why he or she qualifies as a new investigator.
• A letter from a senior injury researcher acknowledging that he or she has read the application and agrees to serve as a mentor. The letter should also include: (1) An outline of the mentor's specific roles and responsibilities and time commitment (percent time); (2) a proposed plan for providing scientific advice and consultation to the applicant; and (3) a two-page biography of the mentor. (Use the Biographical Sketch page in application form PHS 398.)
• A justification for any proposed tuition support.
Additional requirements that may require you to submit additional documentation with your application are listed in section “VI.2. Administrative and National Policy Requirements.”
For additional help in preparing your grant application please see the “frequently asked questions” section on the NCIPC Web page at:
CDC requests that you send a LOI if you intend to apply for this program. Although the LOI is not required, not binding, and does not enter into the review of your subsequent application, the LOI will be used to gauge the level of interest in this program, and to allow CDC to plan the application review.
This announcement is the definitive guide on LOI and grant application content, submission address, and deadline. It supersedes information provided in the application instructions. If your application does not meet the deadline above, it will not be eligible for review, and will be discarded. You will be notified that you did not meet the submission requirements.
CDC will not notify you upon receipt of your submission. If you have a question about the receipt of your LOI or application, first contact your courier. If you still have a question, contact the PGO-TIM staff at: (770) 488-2700. Before calling, please wait two to three days after the submission deadline. This will allow time for submissions to be processed and logged.
Executive Order 12372 does not apply to this program.
Restrictions, which must be taken into account while writing your budget, are as follows:
• Funds relating to the conduct of research will not be released until the appropriate assurances and Institutional Review Board (IRB) approvals are in place.
• Grant funds will not be made available to support the provision of direct care.
• Eligible applicants may enter into contracts, including consortia agreements, as necessary to meet the requirements of the program and strengthen the overall application.
• Allowable costs include partial salary and tuition support for the applicant; direct research project expenses, such as trainee stipends, interviewer costs, data processing, participant incentives, statistical consultation services, and supplies; and travel to one scientific meeting, if adequately justified.
• Applicants should also include travel costs for one, two-day trip to CDC in Atlanta to present research findings.
• Funds for tuition support are limited to no more than 20 percent of the overall award and their use must be generally related to the content and methods of the proposed research.
• Indirect costs for this trainee-related grant are limited to eight percent.
If you are requesting indirect costs in your budget, you must include a copy of your indirect cost rate agreement. If your indirect cost rate is a provisional rate, the agreement should be less than 12 months of age.
At the time of submission, four additional copies of the application, and four copies of all appendices must be sent to: NCIPC Extramural Resources Team, CDC, National Center for Injury Prevention and Control.
Address for Express Mail or Delivery Service: 2945 Flowers Road, Yale Building, Room 2054, Atlanta, Georgia 30341.
Address for U.S. Postal Service Mail: 4770 Buford Hwy, NE., Mailstop K-62, Atlanta, GA 30341.
Applications may not be submitted electronically at this time.
Applicants are required to provide measures of effectiveness that will demonstrate the accomplishment of the various identified objectives of the grant. Measures of effectiveness must relate to the performance goals stated in the “Purpose” section of this announcement. Measures must be objective and quantitative, and must measure the intended outcome. These measures of effectiveness must be submitted with the application and will be an element of evaluation.
The goals of CDC-supported research are to improve the control and prevention of disease and injury and to enhance health. In the written comments, reviewers will be asked to evaluate the application in order to judge the likelihood that the proposed research will have a substantial impact on the pursuit of these goals.
The scientific review group will address and consider each of the following criteria equally in assigning the application's overall score, weighting them as appropriate for each application. The application does not need to be strong in all categories to be judged likely to have major scientific impact and thus deserve a high priority score. For example, an investigator may propose to carry out important work that by its nature is not innovative, but is essential to move a field forward.
The review criteria are as follows:
All investigators proposing research involving human subjects should read the “NIH Policy and Guidelines” on the inclusion of children as participants in research involving human subjects that is available at
Applications will be reviewed for completeness by the PGO and for responsiveness by NCIPC. Incomplete applications and applications that are non-responsive to the eligibility criteria will not advance through the review process. Applicants will be notified that their application did not meet submission requirements.
Applications that are complete and responsive to the announcement will be evaluated for scientific and technical merit by an appropriate peer review panel convened by the NCIPC in accordance with the review criteria listed above. As part of the initial merit review, all applications will:
• Undergo a process in which only those applications deemed to have the highest scientific merit by the review group, generally the top half of the applications under review, will be discussed and assigned a priority score.
• Receive a written critique.
The primary review will be a peer review conducted by NCIPC Initial Review Group (IRG). Applications may be subjected to a preliminary evaluation (streamline review) by the IRG to determine if the application is of sufficient technical and scientific merit to warrant further review. NCIPC will withdraw from further consideration applications judged to be noncompetitive and promptly notify the principal investigator/program director and the official signing for the applicant organization. Those applications judged to be competitive will be further evaluated by the IRG. These applications will be reviewed for scientific merit using current NIH criteria (a scoring system of 100-500 points) to evaluate the methods and scientific quality of the application.
The secondary review will be conducted by the Science and Program Review Subcommittee (SPRS) of the Advisory Committee for Injury Prevention and Control (ACIPC). The ACIPC Federal agency experts will be invited to attend the secondary review and will receive modified briefing books (
ACIPC Federal agency experts will be encouraged to participate in deliberations when applications address overlapping areas of research interest, so that unwarranted duplication in federally funded research can be avoided and special subject area expertise can be shared. The NCIPC Division Associate Directors for Science (ADS) or their designees will attend the secondary review in a similar capacity as the ACIPC Federal agency experts to assure that research priorities of the announcement are understood and to provide background regarding current research activities. Only SPRS members will vote on funding recommendations, and their recommendations will be carried to the entire ACIPC for voting by the ACIPC members in closed session. If any further review is needed by the ACIPC, regarding the recommendations of the SPRS, the factors considered will be the same as those considered by the SPRS.
The ACIPC committee's responsibility is to develop funding recommendations for the NCIPC Director based on the results of the primary review, the relevance and balance of proposed research relative to the NCIPC programs and priorities, and to assure that unwarranted duplication of federally-funded research does not occur. The secondary review committee has the latitude to recommend to the NCIPC Director, to reach over better-ranked proposals in order to assure maximal impact and balance of proposed research.
The factors to be considered will include:
• The results of the primary review including the application's priority score as the primary factor in the selection process.
• The relevance and balance of proposed research relative to the NCIPC programs and priorities.
• The significance of the proposed activities in relation to the priorities and objectives stated in “Healthy People 2010,” the Institute of Medicine report, “Reducing the Burden of Injury,” and the “CDC Injury Research Agenda.” (
• Budgetary considerations.
All awards will be determined by the Director of the NCIPC based on priority scores assigned to applications by the primary review committee IRG, recommendations by the secondary review committee of the Science and Program Review Subcommittee of the ACIPC, consultation with NCIPC senior staff, and the availability of funds.
• Scientific merit (as determined by peer review).
• Availability of funds.
• Programmatic priorities.
August 30, 2005.
Successful applicants will receive a Notice of Grant Award (NGA) from the CDC Procurement and Grants Office. The NGA shall be the only binding, authorizing document between the recipient and CDC. The NGA will be signed by an authorized Grants Management Officer, and mailed to the recipient fiscal officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review by mail.
For more information on the Code of Federal Regulations,
The following additional requirements apply to this project:
• AR-1 Human Subjects Requirements.
• AR-2 Requirements for Inclusion of Women and Racial and Ethnic Minorities in Research.
• AR-3 Animal Subjects Requirements.
• AR-9 Paperwork Reduction Act Requirements.
• AR-10 Smoke-Free Workplace Requirements.
• AR-11 Healthy People 2010.
• AR-12 Lobbying Restrictions.
• AR-13 Prohibition on Use of CDC Funds for Certain Gun Control Activities.
• AR-21 Small, Minority, and Women-Owned Business.
• AR-22 Research Integrity.
Additional information on AR-1 through AR-22 can be found on the CDC Web site at the following Internet address:
• AR-25 Release and Sharing of Data.
Starting with the December 1, 2003 receipt date, all “Requests for Applications (RFA)/Program Announcements (PA)” soliciting proposals for individual research projects of $500,000 or more in total (direct and indirect) costs per year require the applicant to include a plan describing how the final research data will be shared/released or explain why data sharing is not possible. Details on data sharing and release, including information on the timeliness of the data and the name of the project data steward, should be included in a brief paragraph immediately following the “Research Plan” section of the PHS 398 form. References to data sharing and release may also be appropriate in other sections of the application (
Further detail on the requirements for addressing data sharing in applications for NCIPC funding may be obtained by contacting NCIPC program staff or by visiting the NCIPC Internet: at
You must provide CDC with an original, plus two hard copies of the following reports:
1. Financial status report, no more than 90 days after the end of the budget period.
2. The final performance report, no more than 90 days after the end of the project period. The final performance report will be a brief summary (2,500 to 4,000 words in length) written in non-scientific [laymen's] terms. The report should highlight the findings and their implications for injury prevention programs, policies, environmental changes, etc. The grant recipient will also include a description of the dissemination plan for research findings. This plan will include publications in peer-reviewed journals and ways in which research findings will be made available to stakeholders outside of academia (
These reports must be mailed to the Grants Management Specialist listed in the “Agency Contacts” section of this announcement.
We encourage inquiries concerning this announcement. For general questions, contact: Technical Information Management Section, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341, Telephone: (770) 488-2700.
For scientific/research issues, contact: Paul Smutz, Ph.D, Project Officer, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention (CDC), 4770 Buford Highway, NE., Mailstop K-02, Atlanta, GA 30341, Telephone: (770) 488-1508, E-mail:
For questions about peer review, contact: Gwendolyn Cattledge, Ph.D, Scientific Review Administrator, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention (CDC), 4770 Buford Highway, NE., Mailstop K-02, Atlanta, GA 30341, Telephone: 770-488-1430, E-mail:
For financial, grants management, or budget assistance, contact: Pamela Render, Grants Management Specialist, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341, Telephone: (770) 488-2712, E-mail:
This and other CDC funding opportunity announcements can be found on the CDC Web site, Internet address:
This program is authorized under section 301(a) [42 U.S.C. 241(a)] of the Public Health Service Act, and section 391(a) [42 U.S.C. 280b(a)] of the Public Service Health Act, as amended.
• Solicit research applications that address the priorities reflected under the heading, “Research Objectives”.
• Build the scientific base for the prevention and control of fatal and nonfatal injuries and related disabilities.
• Encourage professionals from a wide spectrum of disciplines of epidemiology, behavioral and social sciences, medicine, biostatistics, public health, law, criminal justice, and engineering to perform research in order to prevent and control injuries more effectively.
• Encourage investigators to propose research that: involves intervention development and testing as well as research on methods; enhances the adoption and maintenance of effective intervention strategies among individuals, organizations, or communities.
This program addresses the “Healthy People 2010” focus area of Injury and Violence Prevention.
Measurable outcomes of the program will be in alignment with one (or more) of the following performance goal(s) for the National Center for Injury Prevention and Control (NCIPC):
• Increase the capacity of injury prevention and control programs to address the prevention of injuries and violence.
• Monitor and detect fatal and non-fatal injuries.
• Conduct a targeted program of research to reduce injury-related death and disability.
NCIPC is soliciting investigator-initiated research that will help expand and advance our understanding of non-occupational unintentional and violence-related injuries, and to minimize the consequences of injuries when they do occur. NCIPC's public health approach draws on biomechanics in seven topic areas:
1. Preventing Injuries at Home and in the Community.
2. Preventing Injuries in Sports, Recreation, and Exercise.
3. Preventing Transportation Injuries.
4. Preventing Intimate Partner Violence, Sexual Violence, and Child Maltreatment.
5. Preventing Suicidal Behavior.
6. Preventing Youth Violence.
7. Acute Care, Disability, and Rehabilitation.
The following research themes are the focus of this solicitation: (Applications that fail to address one of these research objectives will be considered non-responsive).
It is expected that half of the total awards will address high priority objectives.
1. Use biomechanics research and the knowledge of injury tolerance and injury mechanisms to develop and/or evaluate interventions that address the following specific injury prevention and control problems. An intervention can be broadly defined as a specific action, policy, device or strategy designed to address injury prevention and control:
a. Falls that occur among older, community dwelling adults (
b. Injuries in mass trauma events.
c. Severe and disabling falls among children.
d. Sports, recreation, and exercise-related injuries (
e. Injuries associated with people initiating or increasing physical activity (
f. Injuries related to outdoor recreation (
g. Motorcycling, bicycling and pedestrian injuries (
h. Injuries to child occupants of motor vehicles (
i. Injuries to older drivers.
j. Injuries associated with the effects of emerging vehicle technologies.
2. Identify the biomechanics and specific injuries that would be highly predictive of diagnoses of intimate partner violence and child maltreatment, and improve case definitions.
3. Advance the biomechanical understanding of traumatic injury (
4. Define the human tolerance limits for injury in children and older adults (greater than 65 years old), especially determining the differences in human tolerance by age, fitness level, and gender and the biomechanics and injury tolerances of tissue, bone, and other human structures as a prerequisite for developing interventions.
5. Identify the modifiable risk factors for and mechanisms of nonfatal whiplash injuries of the neck and back.
Applicants need to identify and explain in their grant application whether they are addressing a high or lower priority research objective. They also need to provide a short justification as to why they feel their grant application fits into the high or lower priority research objectives. This justification should not exceed one page in length.
Rigorous evaluations are needed to determine the effectiveness of interventions, programs, and policies addressing the prevention of injury. Experimental designs are strongly encouraged. However, NCIPC will consider other evaluation designs, if justified, as required by the needs and constraints in a particular setting.
For effective interventions, it is possible to do cost-effectiveness studies. To be comparable to other cost effectiveness studies, they should follow the guidelines in the following references:
For randomized trials, applicants are encouraged to clearly state how study subjects, whether individuals or groups, were selected, randomized, and followed through the trial. One relevant useful guidance document is Moher D, Schulz KF, Altman D. The CONSORT Statement, JAMA 2001; 285:1987-2001.
Throughout the project period, CDC's commitment to continuation of awards will be conditioned on the availability of funds, evidence of satisfactory progress by the recipient (as documented in required reports), and the determination that continued funding is in the best interest of the Federal Government.
Consideration will also be given to current grantees that submit a competitive supplement application requesting one year of funding to enhance or expand existing projects, or to conduct one-year pilot studies. These awards will not exceed $150,000, including both direct and indirect costs. Supplemental awards will be made for the budget period to coincide with the actual budget period of the grant and are based on the availability of funds.
Applications may be submitted by public and private nonprofit and for profit organizations and by governments and their agencies, such as:
• Public nonprofit organizations.
• Private nonprofit organizations.
• For profit organizations.
• Small, minority, women-owned businesses.
• Universities.
• Colleges.
• Research institutions.
• Hospitals.
• Community-based organizations.
• Faith-based organizations.
• Federally recognized Indian tribal governments.
• Indian tribes.
• Indian tribal organizations.
• State and local governments or their Bona Fide Agents (this includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Commonwealth of the Northern Marianna Islands, American Samoa, Guam, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau).
• Political subdivisions of States (in consultation with States).
A Bona Fide Agent is an agency/organization identified by the State as eligible to submit an application under the State eligibility in lieu of a State application. If you are applying as a bona fide agent of a State or local government, you must provide a letter from the State or local government as documentation of your status. Place this documentation behind the first page of your application form.
Matching funds are not required for this program.
If you request a funding amount greater than the ceiling of the award range, your application will be considered non-responsive, and will not be entered into the review process. You will be notified that your application did not meet the submission requirements.
Eligible applicants may enter into contracts, including consortia agreements, as necessary to meet the requirements of the program and strengthen the overall application.
It is especially important that the abstract of your grant application (Description, PHS 398 form page 2) reflects the project's focus, because the abstract will be used to help determine the responsiveness of the application.
If your application is incomplete or non-responsive to the requirements listed in this section, it will not be entered into the review process. You will be notified that your application did not meet submission requirements.
• Late applications will be considered non-responsive.
• Grant applications must demonstrate an overall match between the applicant's proposed theme and research objectives and the program priorities as described under the heading, “Research Objectives.”
• Applications must demonstrate effective and well-defined working relationships within the performing organization and with outside entities, which will ensure implementation of the proposed activities.
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• A principal investigator who has conducted injury prevention and control research, published the findings in a peer-reviewed journal, and has specific authority and responsibility to carry out the proposed project.
• The ability of the principal investigator to carry out injury control research projects as defined under Attachment 1 of this program announcement. The attachment is posted along with this announcement on the CDC Web site:
Applications, which do not meet the above requirements, will be considered non-responsive.
Any individual with the skills, knowledge, and resources necessary to carry out the proposed injury research as outlined above is invited to work with their institution to develop an application for support. Individuals from underrepresented racial and ethnic groups as well as individuals with disabilities are always encouraged to apply for CDC programs.
Principal investigators are encouraged to submit only one proposal in response to this program announcement. With few exceptions (
To apply for this funding opportunity, use application form PHS 398 (OMB number 0925-0001 rev. 5/2001). Forms and instructions are available in an interactive format on the CDC Web site, at the following Internet address:
Forms and instructions are also available in an interactive format on the National Institutes of Health (NIH) Web site at the following Internet address:
If you do not have access to the Internet, or if you have difficulty accessing the forms on-line, you may contact the CDC Procurement and Grants Office Technical Information Management Section (PGO-TIM) staff at: (770) 488-2700. Application forms can be mailed to you.
Letter of Intent (LOI): Your LOI must be written in the following format:
• Maximum number of pages: Two.
• Font size: 12-point unreduced.
• Paper size: 8.5 by 11 inches.
• Page margin size: One inch.
• Printed only on one side of page.
• Single spaced.
• Written in plain language, avoid jargon.
Your LOI must contain the following information:
• Descriptive title of the proposed research.
• Name, address, e-mail address, and telephone number of the Principal Investigator.
• Names of other key personnel.
• Participating institutions.
• Number and title of this Program Announcement.
• Brief description of the scope and intent of the proposed research work.
You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the Federal Government. Your DUNS number must be entered on line 11 of the face page of the PHS 398 application form. The DUNS number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access
This announcement uses the non-modular budgeting format. Follow the PHS-398 instructions for non-modular budget research grant applications.
An applicant organization has the option of having specific salary and fringe benefit amounts for individuals omitted from the copies of the application, which are made available to outside reviewing groups. To exercise this option: on the original and five copies of the application, the applicant must use asterisks to indicate those individuals for whom salaries and fringe benefits are not shown; however, the subtotals must still be shown. In addition, the applicant must submit an additional copy of page 4 of Form PHS-398, completed in full, with the asterisks replaced by the salaries and fringe benefits. This budget page will be reserved for internal staff use only.
In addition to the instructions provided in the PHS 398 for writing the Description on page 2 of the PHS 398 form, structure the Description using the following components:
• Statement of the problem.
• Purpose of the proposed research.
• Methods, including study population, data sources and any statistical analyses to be performed.
• Implications for prevention.
The Description (abstract) should answer the following questions:
• Does the Description state the hypothesis?
• Does the Description describe the objectives and specific aims?
• Does the Description state the importance of the research and how it is innovative?
• Does the Description outline the methods that will use to accomplish the goals?
• Is the language of the Description simple and easy to understand for a broad audience?
You must include a research plan in your application. The research plan should be no more than 25 pages, printed on one side, single spaced, with one half-inch margins, and unreduced 12-point font. The research plan should address activities to be conducted over the entire project period. Use the information in the Research Objectives, Administrative and National Policy Requirements, and Application Review Information sections to develop the application content. The research plan should include the following information:
• The project's focus, a justification for the research proposed, and a description of the scientific basis for the research. The focus should be based on recommendations in “Healthy People 2010” (
• Specific, measurable, and time-framed objectives.
• A detailed plan describing the methods by which the objectives will be achieved, including their sequence. A comprehensive evaluation plan is an essential component of the application.
• A description of the principal investigator's role and responsibilities.
• A description of those activities related to, but not supported by, the grant.
• A description of the involvement of other entities that will relate to the proposed project, if applicable. It should include commitments of support and a clear statement of their roles.
• An explanation of how the research findings will contribute to the national effort to reduce the morbidity, mortality and disability caused by injuries within three to five years from project start-up.
Additional requirements that may require you to submit additional documentation with your application are listed in section “VI.2. Administrative and National Policy Requirements.”
For additional help in preparing your grant application please see the “frequently asked questions” section on the NCIPC Web page at:
CDC requests that you send a LOI if you intend to apply for this program. Although the LOI is not required, not binding, and does not enter into the review of your subsequent application, the LOI will be used to gauge the level of interest in this program, and to allow CDC to plan the application review.
This announcement is the definitive guide on LOI and grant application content, submission address, and deadline. It supersedes information provided in the application instructions. If your application does not meet the deadline above, it will not be eligible for review, and will be discarded. You will
CDC will not notify you upon receipt of your submission. If you have a question about the receipt of your LOI or application, first contact your courier. If you still have a question, contact the PGO-TIM staff at: 770-488-2700. Before calling, please wait two to three days after the submission deadline. This will allow time for submissions to be processed and logged.
Executive Order 12372 does not apply to this program.
Restrictions, which must be taken into account while writing your budget, are as follows:
• Funds relating to the conduct of research will not be released until the appropriate assurances and Institutional Review Board (IRB) approvals are in place.
• Grant funds will not be made available to support the provision of direct care.
If you are requesting indirect costs in your budget, you must include a copy of your indirect cost rate agreement. If your indirect cost rate is a provisional rate, the agreement should be less than 12 months of age.
At the time of submission, four additional copies of the application, and four copies of all appendices must be sent to: NCIPC Extramural Resources Team, CDC, National Center for Injury Prevention and Control.
Address for Express Mail or Delivery Service: 2945 Flowers Road, Yale Building, Room 2054, Atlanta, Georgia 30341.
Address for U.S. Postal Service Mail: 4770 Buford Hwy, NE., Mailstop K-62, Atlanta, GA 30341.
Applications may not be submitted electronically at this time.
Applicants are required to provide measures of effectiveness that will demonstrate the accomplishment of the various identified objectives of the grant. Measures of effectiveness must relate to the performance goals stated in the “Purpose” section of this announcement. Measures must be objective and quantitative, and must measure the intended outcome. These measures of effectiveness must be submitted with the application and will be an element of evaluation.
The goals of CDC-supported research are to improve the control and prevention of disease and injury and to enhance health. In the written comments, reviewers will be asked to evaluate the application in order to judge the likelihood that the proposed research will have a substantial impact on the pursuit of these goals.
The scientific review group will address and consider each of the following criteria equally in assigning the application's overall score, weighting them as appropriate for each application. The application does not need to be strong in all categories to be judged likely to have major scientific impact and thus deserve a high priority score. For example, an investigator may propose to carry out important work that by its nature is not innovative, but is essential to move a field forward.
The review criteria are as follows:
All investigators proposing research involving human subjects should read the “NIH Policy and Guidelines” on the inclusion of children as participants in research involving human subjects that is available at
Applications will be reviewed for completeness by the PGO and for responsiveness by NCIPC. Incomplete applications and applications that are non-responsive to the eligibility criteria will not advance through the review process. Applicants will be notified that their application did not meet submission requirements.
Applications that are complete and responsive to the announcement will be evaluated for scientific and technical merit by an appropriate peer review panel convened by the NCIPC in accordance with the review criteria listed above. As part of the initial merit review, all applications will:
• Undergo a process in which only those applications deemed to have the highest scientific merit by the review group, generally the top half of the applications under review, will be discussed and assigned a priority score.
• Receive a written critique.
The primary review will be a peer review conducted by NCIPC Initial Review Group (IRG). Applications may be subjected to a preliminary evaluation (streamline review) by the IRG to determine if the application is of sufficient technical and scientific merit to warrant further review. NCIPC will withdraw from further consideration applications judged to be noncompetitive and promptly notify the principal investigator/program director and the official signing for the applicant organization. Those applications judged to be competitive will be further evaluated by the IRG. These applications will be reviewed for scientific merit using current NIH criteria (a scoring system of 100-500 points) to evaluate the methods and scientific quality of the application.
The secondary review will be conducted by the Science and Program Review Subcommittee (SPRS) of the Advisory Committee for Injury Prevention and Control (ACIPC). The ACIPC Federal agency experts will be invited to attend the secondary review and will receive modified briefing books (
ACIPC Federal agency experts will be encouraged to participate in deliberations when applications address overlapping areas of research interest, so that unwarranted duplication in federally funded research can be avoided and special subject area expertise can be shared. The NCIPC Division Associate Directors for Science (ADS) or their designees will attend the secondary review in a similar capacity as the ACIPC Federal agency experts to assure that research priorities of the announcement are understood and to provide background regarding current research activities. Only SPRS members will vote on funding recommendations, and their recommendations will be carried to the entire ACIPC for voting by the ACIPC members in closed session. If any further review is needed by the ACIPC, regarding the recommendations of the SPRS, the factors considered will be the same as those considered by the SPRS.
The ACIPC committee's responsibility is to develop funding recommendations for the NCIPC Director based on the results of the primary review, the relevance and balance of proposed research relative to the NCIPC programs and priorities, and to assure that unwarranted duplication of federally-funded research does not occur. The secondary review committee has the latitude to recommend to the NCIPC Director, to reach over better-ranked proposals in order to assure maximal impact and balance of proposed research. The factors to be considered will include:
• The results of the primary review including the application's priority score as the primary factor in the selection process.
• The relevance and balance of proposed research relative to the NCIPC programs and priorities.
• The significance of the proposed activities in relation to the priorities and objectives stated in “Healthy People 2010,” the Institute of Medicine report, “Reducing the Burden of Injury,” and the “CDC Injury Research Agenda.” (
• Budgetary considerations.
All awards will be determined by the Director of the NCIPC based on priority scores assigned to applications by the primary review committee IRG, recommendations by the secondary review committee of the Science and Program Review Subcommittee of the ACIPC, consultation with NCIPC senior staff, and the availability of funds.
Competing supplemental grant awards may be made, when funds are available, to support research work or activities not previously approved by the IRG. Applications should be clearly labeled to denote their status as requesting supplemental funding support. These applications will be reviewed by the IRG and the secondary review group.
Continuation awards made after FY 2005, but within the project period, will be made on the basis of the availability of funds and the following criteria:
• The accomplishments reflected in the progress report of the continuation application indicate that the applicant is meeting previously stated objectives or milestones contained in the project's annual work plan and satisfactory progress is being demonstrated through presentations at work-in-progress monitoring workshops (travel expenses for this annual one-day meeting should be included in the applicant's proposed budget).
• The objectives for the new budget period are realistic, specific, and measurable.
• The methods described will clearly lead to achievement of these objectives.
• The evaluation plan will allow management to monitor whether the methods are effective.
• The budget request is clearly explained, adequately justified, reasonable and consistent with the intended use of grant funds.
• Scientific merit (as determined by peer review).
• Availability of funds.
• Programmatic priorities.
August 30, 2005.
Successful applicants will receive a Notice of Grant Award (NGA) from the CDC Procurement and Grants Office. The NGA shall be the only binding, authorizing document between the recipient and CDC. The NGA will be signed by an authorized Grants Management Officer, and mailed to the recipient fiscal officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review by mail.
For more information on the Code of Federal Regulations, see the National Archives and Records Administration at the following Internet address:
• AR-1 Human Subjects Requirements.
• AR-2 Requirements for Inclusion of Women and Racial and Ethnic Minorities in Research.
• AR-3 Animal Subjects Requirements.
• AR-9 Paperwork Reduction Act Requirements.
• AR-10 Smoke-Free Workplace Requirements.
• AR-11 Healthy People 2010.
• AR-12 Lobbying Restrictions.
• AR-13 Prohibition on Use of CDC Funds for Certain Gun Control Activities.
• AR-21 Small, Minority, and Women-Owned Business.
• AR-22 Research Integrity.
Additional information on AR-1 through AR-22 can be found on the CDC Web site at the following Internet address:
• AR-25 Release and Sharing of Data.
Starting with the December 1, 2003 receipt date, all “Requests for Applications (RFA)/Program Announcements (PA)” soliciting proposals for individual research projects of $500,000 or more in total (direct and indirect) costs per year require the applicant to include a plan describing how the final research data will be shared/ released or explain why data sharing is not possible. Details on data sharing and release, including information on the timeliness of the data and the name of the project data steward, should be included in a brief paragraph immediately following the “Research Plan” section of the PHS 398 form. References to data sharing and release may also be appropriate in other sections of the application (
Further detail on the requirements for addressing data sharing in applications for NCIPC funding may be obtained by contacting NCIPC program staff or by visiting the NCIPC Internet at:
You must provide CDC with an original, plus two hard copies of the following reports:
1. Interim progress report (use form PHS 2590, OMB Number 0925-0001, rev. 5/2001 as posted on the CDC Web site) no less than 90 days before the end of the budget period. The progress report will serve as your non-competing continuation application, and must contain the following elements:
a. Current Budget Period Activities Objectives.
b. Current Budget Period Financial Progress.
c. New Budget Period Program Proposed Activity Objectives.
d. Budget.
e. Measures of Effectiveness.
f. Additional Requested Information.
2. Financial status report, no more than 90 days after the end of the budget period.
3. Final financial and performance reports, no more than 90 days after the end of the project period.
4. At the completion of the project, the grant recipient will submit a brief summary 2,500 to 4,000 words written in non-scientific [laymen's] terms. The narrative should highlight the findings and their implications for injury prevention programs, policies, environmental changes, etc. The grant recipient will also include a description of the dissemination plan for research findings. This plan will include publications in peer-reviewed journals and ways in which research findings will be made available to stakeholders outside of academia (
These reports must be mailed to the Grants Management Specialist listed in the “Agency Contacts” section of this announcement.
We encourage inquiries concerning this announcement. For general questions, contact: Technical Information Management Section, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341, Telephone: (770) 488-2700.
For scientific/research issues, contact: Paul Smutz, Ph.D, Project Officer, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention (CDC), 4770 Buford Highway, NE., Mailstop K-02, Telephone: (770) 488-1508, Atlanta, GA 30341, E-mail:
For questions about peer review, contact: Gwendolyn Cattledge, Ph.D, Scientific Review Administrator, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention (CDC), 4770 Buford Highway, NE., Mailstop K-02, Atlanta, GA 30341, Telephone: (770) 488-1430, E-mail:
For financial, grants management, or budget assistance, contact: James Masone, Contract Specialist, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341, Telephone: (770) 488-2736, E-mail:
This and other CDC funding opportunity announcements can be found on the CDC Web site, Internet address:
This program is authorized under section 301(a) [42 U.S.C. 241(a)] of the Public Health Service Act, and section 391(a) [42 U.S.C. 280b(a)] of the Public Service Health Act, as amended.
• Solicit research applications that address the priorities reflected under the heading, “Research Objectives”.
• Build the scientific base for the prevention and control of fatal and nonfatal injuries and related disabilities.
• Encourage professionals from a wide spectrum of disciplines of epidemiology, behavioral and social sciences, medicine, biostatistics, public health, law, criminal justice, and engineering to perform research in order to prevent and control injuries more effectively.
• Encourage investigators to propose research that: involves intervention development and testing as well as research on methods; enhances the adoption and maintenance of effective intervention strategies among individuals, organizations, or communities.
This program addresses the “Healthy People 2010” focus area of Injury and Violence Prevention.
Measurable outcomes of the program will be in alignment with one (or more) of the following performance goal(s) for the National Center for Injury Prevention and Control (NCIPC):
• Increase the capacity of injury prevention and control programs to address the prevention of injuries and violence.
• Monitor and detect fatal and non-fatal injuries.
• Conduct a targeted program of research to reduce injury-related death and disability.
1. Conduct studies to build knowledge on methods, structures, and processes to implement evidence-based interventions, programs and policies to prevent intimate partner violence, child maltreatment and youth violence. This research is intended to bridge the gap between prevention research and everyday practice by building a knowledge base about how evidence-based violence prevention information and strategies are disseminated, translated and integrated for use by communities and policy makers. ($600,000 will be reserved to fund up to two proposals addressing this priority.)
2. Evaluate the efficacy, effectiveness, and cost effectiveness of primary prevention interventions, programs, and policies to prevent perpetration of intimate partner violence, sexual violence, child maltreatment (includes physical, sexual, emotional abuse and neglect), youth violence or suicidal behavior. There is particular interest in assessing the impact of interventions, programs, or policies that may affect multiple forms of violence simultaneously.
3. Identify protective factors across at least two levels of influence (
Rigorous evaluations are needed to determine the effectiveness of interventions, programs, and policies addressing the prevention of violence. Experimental designs are strongly encouraged. However, NCIPC will consider other evaluation designs, if justified, as required by the needs and constraints in a particular setting.
For effective interventions, it is possible to do cost-effectiveness studies. To be comparable to other cost effectiveness studies, they should follow the guidelines in the following references: Gold MR, Siegel JE, Russell LB, Weinstein MC. Cost-effectiveness in Health and Medicine. New York: Oxford University Press, 1996.
Haddix AC, Teutsch SM, Corso, PS. Prevention Effectiveness: A Guide to Decision Analysis and Economic Evaluation. Second Edition. New York: Oxford University Press, 2003.
For randomized trials, applicants are encouraged to clearly state how study subjects, whether individuals or groups, were selected, randomized, and followed through the trial. One relevant useful guidance document is Moher D, Schulz KF, Altman D. The CONSORT Statement, JAMA 2001;285:1987-2001.
Throughout the project period, CDC's commitment to continuation of awards will be conditioned on the availability of funds, evidence of satisfactory progress by the recipient (as documented in required reports), and the determination that continued funding is in the best interest of the Federal government.
Consideration will also be given to current grantees that submit a competitive supplement application requesting one year of funding to enhance or expand existing projects, or to conduct one-year pilot studies. These awards will not exceed $150,000, including both direct and indirect costs. Supplemental awards will be made for the budget period to coincide with the actual budget period of the grant and are based on the availability of funds.
Applications may be submitted by public and private nonprofit and for profit organizations and by governments and their agencies, such as:
• Public nonprofit organizations.
• Private nonprofit organizations.
• For profit organizations.
• Small, minority, women-owned businesses.
• Universities.
• Colleges.
• Research institutions.
• Hospitals.
• Community-based organizations.
• Faith-based organizations.
• Federally recognized Indian tribal governments.
• Indian tribes.
• Indian tribal organizations.
• State and local governments or their
• Political subdivisions of States (in consultation with States).
A
Matching funds are not required for this program.
If you request a funding amount greater than the ceiling of the award range, your application will be considered non-responsive, and will not be entered into the review process. You will be notified that your application did not meet the submission requirements.
Eligible applicants may enter into contracts, including consortia agreements, as necessary to meet the requirements of the program and strengthen the overall application.
It is especially important that the abstract of your grant application (Description, PHS 398 form page 2) reflects the project's focus, because the abstract will be used to help determine the responsiveness of the application.
• Late applications will be considered non-responsive. See section “IV.3. Submission Dates and Times” for more information on deadlines.
• Grant applications must demonstrate an overall match between the applicant's proposed theme and research objectives and the program priorities as described under the heading, “Research Objectives.”
• Applications must demonstrate effective and well-defined working relationships within the performing organization and with outside entities, which will ensure implementation of the proposed activities.
•
• A principal investigator who has conducted violence prevention research, published the findings in a peer-reviewed journal, and has specific authority and responsibility to carry out the proposed project.
• The ability of the principal investigator to carry out injury control research projects as defined under Attachment 1 of this program announcement. The attachment is posted with this announcement on the CDC Web site:
Applications, which do not meet the above requirements, will be considered non-responsive.
Any individual with the skills, knowledge, and resources necessary to carry out the proposed injury research as outlined above is invited to work with their institution to develop an application for support. Individuals from underrepresented racial and ethnic groups as well as individuals with disabilities are always encouraged to apply for CDC programs.
Principal investigators are encouraged to submit only one proposal in response to this program announcement. With few exceptions (
To apply for this funding opportunity, use application form PHS 398 (OMB number 0925-0001 rev. 5/2001). Forms and instructions are available in an interactive format on the CDC Web site, at the following Internet address:
Forms and instructions are also available in an interactive format on the National Institutes of Health (NIH) Web site at the following Internet address:
If you do not have access to the Internet, or if you have difficulty accessing the forms on-line, you may contact the CDC Procurement and Grants Office Technical Information Management Section (PGO-TIM) staff at: 770-488-2700. Application forms can be mailed to you.
• Maximum number of pages: Two.
• Font size: 12-point unreduced.
• Paper size: 8.5 by 11 inches.
• Page margin size: One inch.
• Printed only on one side of page.
• Single spaced.
• Written in plain language, avoid jargon.
Your LOI must contain the following information:
• Descriptive title of the proposed research.
• Name, address, e-mail address, and telephone number of the Principal Investigator.
• Names of other key personnel.
• Participating institutions.
• Number and title of this Program Announcement.
• Brief description of the scope and intent of the proposed research work.
You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the Federal government. Your DUNS number must be entered on line 11 of the face page of the PHS 398 application form. The DUNS number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access
For more information,
This announcement uses the non-modular budgeting format. Follow the PHS-398 instructions for non-modular budget research grant applications.
An applicant organization has the option of having specific salary and fringe benefit amounts for individuals omitted from the copies of the application, which are made available to outside reviewing groups. To exercise this option: on the original and two copies of the application, the applicant must use asterisks to indicate those
In addition to the instructions provided in the PHS 398 for writing the Description on page 2 of the PHS 398 form, structure the Description using the following components:
• Statement of the problem.
• Purpose of the proposed research.
• Methods, including study population, data sources and any statistical analyses to be performed.
• Implications for prevention.
The Description (abstract) should answer the following questions:
• Does the Description state the hypothesis?
• Does the Description describe the objectives and specific aims?
• Does the Description state the importance of the research and how it is innovative?
• Does the Description outline the methods that will be used to accomplish the goals?
• Is the language of the Description simple and easy to understand for a broad audience?
You must include a research plan in your application. The research plan should be no more than 25 pages, printed on one side, single spaced, with one half-inch margins, and unreduced 12-point font. The research plan should address activities to be conducted over the entire project period. Use the information in the Research Objectives, Administrative and National Policy Requirements, and Application Review Information sections to develop the application content. The research plan should include the following information:
• The project's focus, a justification for the research proposed, and a description of the scientific basis for the research. The focus should be based on recommendations in “Healthy People 2010” (
• Specific, measurable, and time-framed objectives.
• A detailed plan describing the methods, which will achieve the objectives, including their sequence. A comprehensive evaluation plan is an essential component of the application.
• A description of the principal investigator's role and responsibilities.
• A description of those activities related to, but not supported by, the grant.
• A description of the involvement of other entities that will relate to the proposed project, if applicable. It should include commitments of support and a clear statement of their roles.
• An explanation of how the research findings will contribute to the national effort to reduce the morbidity, mortality and disability caused by injuries within three to five years from project start-up.
Additional requirements that may require you to submit additional documentation with your application are listed in section “VI.2. Administrative and National Policy Requirements.”
For additional help in preparing your grant application please see the “frequently asked questions” section on the NCIPC Web page at:
CDC requests that you send a LOI if you intend to apply for this program. Although the LOI is not required, not binding, and does not enter into the review of your subsequent application, the LOI will be used to gauge the level of interest in this program, and to allow CDC to plan the application review.
This announcement is the definitive guide on LOI and grant application content, submission address, and deadline. It supersedes information provided in the application instructions. If your application does not meet the deadline above, it will not be eligible for review, and will be discarded. You will be notified that you did not meet the submission requirements.
CDC will not notify you upon receipt of your submission. If you have a question about the receipt of your LOI or application, first contact your courier. If you still have a question, contact the PGO-TIM staff at: (770) 488-2700. Before calling, please wait two to three days after the submission deadline. This will allow time for submissions to be processed and logged.
Executive Order 12372 does not apply to this program.
Restrictions, which must be taken into account while writing your budget, are as follows:
• Funds relating to the conduct of research will not be released until the appropriate assurances and Institutional Review Board (IRB) approvals are in place.
• Grant funds will not be made available to support the provision of direct care.
If you are requesting indirect costs in your budget, you must include a copy of your indirect cost rate agreement. If your indirect cost rate is a provisional rate, the agreement should be less than 12 months of age.
At the time of submission, four additional copies of the application, and four copies of all appendices must be sent to: NCIPC Extramural Resources Team, CDC, National Center for Injury Prevention and Control, Address for Express Mail or Delivery Service: 2945 Flowers Road, Yale Building, Room 2054, Atlanta, Georgia 30341.
Address for U.S. Postal Service Mail: 4770 Buford Hwy, NE., Mailstop K-62, Atlanta, GA 30341.
Applications may not be submitted electronically at this time.
Applicants are required to provide measures of effectiveness that will demonstrate the accomplishment of the various identified objectives of the grant. Measures of effectiveness must relate to the performance goals stated in the “Purpose” section of this announcement. Measures must be objective and quantitative, and must measure the intended outcome. These measures of effectiveness must be submitted with the application and will be an element of evaluation.
The goals of CDC-supported research are to improve the control and prevention of disease and injury and to enhance health. In the written comments, reviewers will be asked to evaluate the application in order to judge the likelihood that the proposed research will have a substantial impact on the pursuit of these goals.
The scientific review group will address and consider each of the following criteria equally in assigning the application's overall score, weighting them as appropriate for each application. The application does not need to be strong in all categories to be judged likely to have major scientific impact and thus deserve a high priority score. For example, an investigator may propose to carry out important work that by its nature is not innovative, but is essential to move a field forward.
The review criteria are as follows:
All investigators proposing research involving human subjects should read the “NIH Policy and Guidelines” on the inclusion of children as participants in research involving human subjects that is available at
Applications will be reviewed for completeness by the PGO and for responsiveness by NCIPC. Incomplete applications and applications that are non-responsive to the eligibility criteria will not advance through the review process. Applicants will be notified that their application did not meet submission requirements.
Applications that are complete and responsive to the announcement will be evaluated for scientific and technical merit by an appropriate peer review panel convened by the NCIPC in accordance with the review criteria listed above. As part of the initial merit review, all applications will:
• Undergo a process in which only those applications deemed to have the highest scientific merit by the review group, generally the top half of the applications under review, will be discussed and assigned a priority score.
• Receive a written critique.
The primary review will be a peer review conducted by NCIPC Initial Review Group (IRG). Applications may be subjected to a preliminary evaluation (streamline review) by the IRG to determine if the application is of sufficient technical and scientific merit to warrant further review. NCIPC will withdraw from further consideration applications judged to be noncompetitive and promptly notify the principal investigator/program director and the official signing for the applicant organization. Those applications judged to be competitive will be further evaluated by the IRG. These applications will be reviewed for scientific merit using current NIH criteria (a scoring system of 100-500 points) to evaluate the methods and scientific quality of the application.
The secondary review will be conducted by the Science and Program Review Subcommittee (SPRS) of the Advisory Committee for Injury Prevention and Control (ACIPC). The ACIPC Federal agency experts will be invited to attend the secondary review and will receive modified briefing books (
The ACIPC committee's responsibility is to develop funding recommendations for the NCIPC Director based on the results of the primary review, the relevance and balance of proposed research relative to the NCIPC programs and priorities, and to assure that unwarranted duplication of federally-funded research does not occur. The secondary review committee has the latitude to recommend to the NCIPC Director, to reach over better-ranked proposals in order to assure maximal impact and balance of proposed research. The factors to be considered will include:
• The results of the primary review including the application's priority score as the primary factor in the selection process.
• The relevance and balance of proposed research relative to the NCIPC programs and priorities.
• The significance of the proposed activities in relation to the priorities and objectives stated in “Healthy People 2010,” the Institute of Medicine report, “Reducing the Burden of Injury,” and the “CDC Injury Research Agenda.” (See Attachment 1, Resource Materials. The attachment is posted with this announcement on the CDC Web site:
• Budgetary considerations.
All awards will be determined by the Director of the NCIPC based on priority scores assigned to applications by the primary review committee IRG, recommendations by the secondary review committee of the Science and Program Review Subcommittee of the ACIPC, consultation with NCIPC senior staff, and the availability of funds.
Competing supplemental grant awards may be made, when funds are available, to support research work or activities not previously approved by the IRG. Applications should be clearly labeled to denote their status as requesting supplemental funding support. These applications will be reviewed by the IRG and the secondary review group.
Continuation awards made after FY 2005, but within the project period, will be made on the basis of the availability of funds and the following criteria:
• The accomplishments reflected in the progress report of the continuation application indicate that the applicant is meeting previously stated objectives or milestones contained in the project's annual work plan and satisfactory progress is being demonstrated through presentations at work-in-progress monitoring workshops (travel expenses for this annual one-day meeting should be included in the applicant's proposed budget).
• The objectives for the new budget period are realistic, specific, and measurable.
• The methods described will clearly lead to achievement of these objectives.
• The evaluation plan will allow management to monitor whether the methods are effective.
• The budget request is clearly explained, adequately justified, reasonable and consistent with the intended use of grant funds.
• Scientific merit (as determined by peer review).
• Availability of funds.
• Programmatic priorities.
August 30, 2005.
Successful applicants will receive a Notice of Grant Award (NGA) from the CDC Procurement and Grants Office. The NGA shall be the only binding, authorizing document between the recipient and CDC. The NGA will be signed by an authorized Grants Management Officer, and mailed to the recipient fiscal officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review by mail.
45 CFR part 74 and part 92.
For more information on the Code of Federal Regulations, see the National Archives and Records Administration at the following Internet address:
The following additional requirements apply to this project:
• AR-1 Human Subjects Requirements.
• AR-2 Requirements for Inclusion of Women and Racial and Ethnic Minorities in Research.
• AR-3 Animal Subjects Requirements.
• AR-9 Paperwork Reduction Act Requirements.
• AR-10 Smoke-Free Workplace Requirements.
• AR-11 Healthy People 2010.
• AR-12 Lobbying Restrictions.
• AR-13 Prohibition on Use of CDC Funds for Certain Gun Control Activities.
• AR-21 Small, Minority, and Women-Owned Business.
• AR-22 Research Integrity.
Additional information on AR-1 through AR-22 can be found on the CDC Web site at the following Internet address:
• AR-25 Release and Sharing of Data.
Starting with the December 1, 2003, receipt date, all “Requests for Applications (RFA)/Program Announcements (PA)” soliciting proposals for individual research projects of $500,000 or more in total (direct and indirect) costs per year require the applicant to include a plan describing how the final research data will be shared/released or explain why data sharing is not possible. Details on data sharing and release, including information on the timeliness of the data and the name of the project data steward, should be included in a brief paragraph immediately following the “Research Plan” section of the PHS 398 form. References to data sharing and release may also be appropriate in other sections of the application (
Further detail on the requirements for addressing data sharing in applications for NCIPC funding may be obtained by contacting NCIPC program staff or by visiting the NCIPC Internet at:
You must provide CDC with an original, plus two hard copies of the following reports:
1. Interim progress report, (use form PHS 2590, OMB Number 0925-0001, rev. 5/2001 as posted on the CDC Web site) no less than 90 days before the end of the budget period. The progress report will serve as your non-competing continuation application, and must contain the following elements:
a. Current Budget Period Activities Objectives.
b. Current Budget Period Financial Progress.
c. New Budget Period Program Proposed Activity Objectives.
d. Budget.
e. Measures of Effectiveness.
f. Additional Requested Information.
2. Financial status report, no more than 90 days after the end of the budget period.
3. Final financial and performance reports, no more than 90 days after the end of the project period.
4. At the completion of the project, the grant recipient will submit a brief summary 2,500 to 4,000 words written in non-scientific [laymen's] terms. The narrative should highlight the findings and their implications for injury prevention programs, policies, environmental changes,
These reports must be mailed to the Grants Management Specialist listed in the “Agency Contacts” section of this announcement.
We encourage inquiries concerning this announcement.
For general questions, contact: Technical Information Management Section, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341. Telephone: (770) 488-2700.
For scientific/research issues, contact: Paul Smutz, Ph.D, Project Officer, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention (CDC), 4770 Buford Highway, NE., Mailstop K-02, Atlanta, GA 30341. Telephone: (770) 488-1508; e-mail:
For questions about peer review, contact: Gwendolyn Cattledge, Ph.D, Scientific Review Administrator, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention (CDC), 4770 Buford Highway, NE., Mailstop K-02, Atlanta, GA 30341. Telephone: (770) 488-1430; e-mail:
For financial, grants management, or budget assistance, contact: Pamela Render, Grants Management Specialist, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341. Telephone: (770) 488-2712; e-mail:
This and other CDC funding opportunity announcements can be found on the CDC Web site, Internet address:
Food and Drug Administration, HHS.
Notice of intent.
The Food and Drug Administration (FDA) announces an opportunity to submit information and comments concerning FDA's intent to initiate a proceeding to reclassify those iontophoresis devices currently in class III (premarket approval) into class II (special controls). An iontophoresis device is a device that is intended to use a direct current to introduce ions of soluble salts or other drugs into the body and induce sweating for diagnostic or other uses. Elsewhere in this issue of the
Submit written or electronic comments by February 2, 2005.
Submit written comments to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Joseph M. Sheehan, Center for Devices and Radiological Health (HFZ-215), Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850, 301-827-2974.
In the
In the
In response to the August 2000 proposed rule, FDA received seven comments. Several comments disagreed with FDA's assertion that no class III preamendments iontophoresis devices existed. Two comments were confused as to whether the requirement that a drug used with an iontophoresis device bear adequate directions for use with that specific device applies to the diagnosis of cystic fibrosis or applies only to other uses. Two comments asserted that the assumption that there are differences in iontophoresis devices that would warrant linking a particular device to a particular drug is in error, and suggested that FDA should consider reclassification of iontophoresis devices into either class I or class II as drug delivery systems comparable to syringes and pumps. In contrast, another comment rejected what it perceived as the implication that all iontophoresis drug delivery systems were the same and that any iontophoresis device could be relabeled to reference any drug approved for iontophoretic administration, whether or not the drug had actually been tested for use with that particular device.
FDA is issuing this document to provide interested persons with an opportunity to submit any new information concerning the safety and effectiveness of the iontophoresis device. After FDA reviews any information that the agency receives in response to this document, FDA will decide whether the agency should go forward with the reclassification of those iontophoresis devices currently in class III and whether a panel meeting is necessary before taking any action.
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Listed Drugs, 30-Month Stays, and Approval of ANDAs and 505(b)(2) Applications Under Hatch-Waxman, as Amended by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003—Questions and Answers.” This draft guidance follows the enactment of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Public Law 108-173) (MMA) on December 8, 2003. In part, this guidance satisfies FDA's obligation under that law to clarify the definition of “listed drug” for persons who wish to submit a change (i.e., an amendment or supplement) to an abbreviated new drug application (ANDA). The guidance explains when a change to an application should reference a drug different from the drug listed in the original ANDA, requiring the change to be made through an entirely new application.
In addition to the definition of “listed drug,” the draft guidance clarifies certain other provisions of the MMA that significantly change the law that existed before the MMA's enactment. These include changes regarding 30-month stays and approval of ANDAs and new drug applications submitted under section 505(b)(2) of the Federal Food, Drug, and Cosmetic Act (505(b)(2) applications). The draft guidance also explains the effective dates that apply to the MMA's provisions.
Submit written or electronic comments on the draft guidance by February 2, 2005. General comments on agency guidance documents are welcome at any time.
Submit written requests for single copies of the draft guidance to the Division of Drug Information (HFD-240), Center for Drug Evaluation and Research, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857. Send one self-addressed adhesive label to assist that office in processing your requests. Submit written comments on the draft guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Martin Shimer, Center for Drug Evaluation and Research (HFD-615), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855 301-827-5710.
FDA is announcing the availability of a draft guidance for industry entitled “Listed Drugs, 30-Month Stays, and Approval of ANDAs and 505(b)(2) Applications Under Hatch-Waxman, as Amended by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003—Questions and Answers.” On December 8, 2003, the MMA was signed into law. Among other things, Title XI of that law, “Access to Affordable Pharmaceuticals,” states that guidance will be issued to define the term “listed drug” with respect to amendments and supplements to ANDAs. This guidance is necessary because the MMA specifies that, “An
In addition to the definition of “listed drug,” the draft guidance clarifies certain other significant changes made by the MMA to provisions of the act that were originally added by the Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) (Hatch-Waxman). These include changes made by the MMA with respect to the availability and termination of 30-month stays of approval on ANDAs and 505(b)(2) applications under section 505(j)(5)(B)(iii) and 505(c)(3)(C) of the act, respectively, and to requirements for notice of patent certifications described by section 505(b)(2)(A)(iv) and 505(j)(2)(A)(vii)(IV) of the act (paragraph IV certifications). The draft guidance also clarifies the applicability of certain changes made by the MMA regarding the period described by section 505(j)(5)(B)(iv) of the act during which ANDAs with paragraph IV certifications that were not the first to be submitted cannot be approved (180-day exclusivity). Finally, this guidance explains the effective dates that apply to the MMA's amendments. FDA is aware that these changes are complex and include significant departures from previous law. The agency therefore wishes to provide guidance to industry to clarify these amendments.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the agency's current thinking on the definition of “listed drug” for amendments and supplements to ANDAs, and on 30-month stays and certain other matters related to the approval of ANDAs and 505(b)(2) applications. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
Coast Guard, DHS, and Maritime Administration, DOT.
Notice of public hearing; request for comments.
The U.S. Coast Guard (USCG) and the U.S. Maritime Administration (MARAD) will hold a public hearing to receive information relevant to the issuance or denial of the requisite federal license for the proposed Gulf Landing, LLC (Gulf Landing) Deepwater Port project. The proposed Gulf Landing Deepwater Port would be located in West Cameron Lease Block Number 213, approximately 38 miles south of Cameron, Louisiana. We encourage interested individuals and organizations to attend the public hearing and submit comments. We also seek comments from anyone unable to attend the public hearing. In conjunction with the public hearing, the USCG and MARAD will also hold an informational open house regarding the proposed Gulf Landing Deepwater Port project.
The public hearing will be held on Thursday, November 18, 2004, from 5 to 7 p.m., in New Orleans, Louisiana. The informational open house will be held on Thursday, November 18, 2004, from 3 to 4:30 p.m., at the same location in New Orleans, Louisiana. The public hearing will continue beyond 7 p.m. if necessary to ensure all individuals present at that time who wish to comment have an opportunity to do so.
Comments intended for inclusion in the public docket [USCG-2004-16860] must reach the Docket Management Facility on or before January 3, 2005.
The public hearing and informational open house will be held at the following location: Hyatt Regency New Orleans Hotel, Poydras at Loyola Avenue, New Orleans, Louisiana 70113, telephone 504-561-1234.
You may submit comments identified by Coast Guard docket number USCG-2004-16860 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:
(1)
(2)
(3)
(4)
(5) Federal eRulemaking Portal:
For further information concerning this notice, the Gulf Landing Deepwater Port license application, or the public hearing or informational open house, contact LCDR Derek Dostie, U.S. Coast Guard at (202) 267-0662 or
Whether or not you attend the public hearing or informational open house, we encourage you to submit written comments and related materials. All comments received will be posted, without change, to
The Coast Guard and the Maritime Administration will hold a public hearing on Thursday, November 18, 2004 from 5 to 7 p.m., at the Hyatt Regency New Orleans Hotel, Poydras at Loyola Avenue, New Orleans, Louisiana 70113, telephone 504-561-1234. The informational open house will be held on Thursday, November 18, 2004 from 3 p.m. to 4:30 p.m., at the same location in New Orleans, Louisiana. We invite the public and representatives of interested agencies to attend and provide comments on the proposed license application. If you plan to attend the public hearing or informational open house and need special assistance, such as sign language interpretation or other reasonable accommodations, contact the U.S. Coast Guard as indicated in
The application plan calls for construction of a deepwater port and associated anchorages in an area situated in the Gulf of Mexico, approximately 38 miles south of Cameron, Louisiana in West Cameron Lease Block Number 213, in water depth of approximately 55 feet, and adjacent to an existing shipping fairway servicing the Calcasieu River and area ports.
Gulf Landing's terminal would be capable of storing up to 200,000 cubic meters of LNG. On average, Gulf Landing expects the terminal would vaporize and deliver 1 billion cubic feet per day (Bcfd) of natural gas to the pipelines; with a peak daily send-out rate of 1.2 Bcfd. Gulf Landing proposes to construct, own, and operate up to 5 offshore pipelines, ranging from 16 to 36 inches in diameter that would traverse a combined 65.7 nautical miles. The pipelines would interconnect with existing natural gas pipelines located in the Gulf of Mexico. Gas would then be delivered to the onshore national pipeline grid for delivery to any consumption market east of the Rocky Mountains.
The project would consist of two concrete gravity base structures (GBSs) housing the LNG containment facilities, along with topside unloading and vaporization equipment, living quarters, and a ship berthing system.
The terminal would be able to receive LNG carriers with cargo capacities between 125,000 and 200,000 cubic meters and unload up to 135 LNG carriers per year. All marine systems, communication, navigation aids and equipment necessary to conduct safe LNG carrier operations and receiving of cargo during specified atmospheric and sea states would be provided at the port.
The regasification process would consist of lifting the LNG from storage tanks, pumping the cold liquid to pipeline pressure, subsequent vaporization of the LNG across heat exchanging equipment, and send-out through custody transfer metering to the gas pipeline network. No gas conditioning is required for the terminal since the incoming LNG would be pipeline quality.
The Gulf Landing Deepwater Port license application was submitted to the Secretary of Transportation on November 3, 2003. The license application calls for construction of the Gulf Landing Deepwater Port to be located in West Cameron Lease Block Number 213 approximately 38 miles south of Cameron, Louisiana. Additional information concerning the contents of the application can be found online at
The public meeting will be structured to provide interested members of the public with an opportunity to present comments regarding the license application. Speakers at the public meeting will be recognized in the following order: elected officials, public agencies, individuals or groups in the sign-up order, and anyone else who wishes to speak. Speakers may be asked to limit their oral comments to five (5) minutes in order to afford everyone an opportunity to speak. Any person who wishes may appear and speak or present evidence at this public hearing. Persons planning to speak at the hearing should contact the U.S. Coast Guard as indicated in
Fish and Wildlife Service, Interior.
Notice of document availability for review and comment.
The U.S. Fish and Wildlife Service (we) announces the availability of the Draft Revised Recovery Plan for the Laysan Duck (
Comments on the draft revised recovery plan must be received on or before January 3, 2005.
Copies of the draft revised recovery plan are available for inspection, by appointment, during normal business hours at the following location: U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, Honolulu, Hawaii 96850 (telephone: (808) 792-9400). Requests for copies of the draft revised recovery plan and written comments and materials regarding this plan should be addressed to the Field Supervisor, Ecological Services, at the above Honolulu address. An electronic copy of the draft revised recovery plan is also available at
Holly Freifeld, Fish and Wildlife Biologist, at the above Honolulu address.
Recovery of endangered or threatened animals and plants is a primary goal of the Endangered Species Act (Act) (16 U.S.C. 1531
The Act requires the development of recovery plans for endangered or threatened species unless such a plan would not promote the conservation of the species. Section 4(f) of the Act requires that public notice, and an opportunity for public review and comment, be provided during recovery plan development. We will consider all information presented during the public comment period on each new or revised recovery plan. Substantive technical comments may result in changes to a recovery plan. Substantive comments regarding recovery plan implementation may not necessarily result in changes to the recovery plans, but will be forwarded to appropriate Federal agency or other entities so that they can take these comments into account during the course of implementing recovery actions. Individual responses to comments will not be provided.
The Laysan duck is federally listed as endangered and is also listed as endangered by the State of Hawaii. This species currently is found only on the small island of Laysan in the Northwestern Hawaiian Islands, but it was also known historically from the island of Lisianski, and bones or fossils have been found in the Main Hawaiian Islands on Hawaii, Maui, Molokai, Oahu, and Kauai, indicating it previously had a much wider distribution. The Main Hawaiian Island populations of this species likely were extirpated by nonnative mammalian predators around the time of human settlement. The Laysan duck's current population is estimated to be 459 birds, but its numbers on Laysan have fluctuated from 7 to 688 adult birds during the past century. This species uses all available habitats on Laysan, including coastal areas, a hypersaline lagoon, mudflats, and densely vegetated upland areas. It eats a variety of arthropods, sometimes seeds, leaves, and algae, and at certain seasons consumes large quantities of aquatic midge larvae. The primary threats to this species are its small population size and restricted range, stochastic fluctuations in food availability that cause its numbers to vary, potential inbreeding depression and disease susceptibility, and storms that could cause direct mortality and destroy the duck's habitat on the single low-lying island to which it is currently restricted.
The recovery goals are to conserve and recover the Laysan duck to the point where it can be downlisted (reclassified from endangered to threatened status) and eventually to delist the species (remove it from the List of Endangered and Threatened Wildlife and Plants). The objectives by which these goals will be met are to protect the existing population on Laysan and reestablish additional viable populations of the duck in areas that are managed to be free of predators. To accomplish these objectives, this recovery plan outlines high priority tasks that fall generally into four categories. First, the duck population on Laysan must be monitored and its habitat restored and protected. Second, wild juvenile ducks must be translocated to appropriate predator-free Northwestern Hawaiian Islands and eventually to sites in the Main Hawaiian Islands where predators are effectively controlled. Translocated populations must be closely monitored and managed to enhance population growth. Third, a captive propagation program must be initiated, with the aim of producing Laysan ducks for release primarily at predator-controlled Main Hawaiian Island sites. Fourth, further research must be undertaken on the life history, demography, disease susceptibility, and genetics of the Laysan duck to refine the recovery criteria and management techniques for this species.
We solicit written comments on the draft revised recovery plan described. All comments received by the date specified above will be considered prior to approval of this plan.
The authority for this action is section 4(f) of the Endangered Species Act, 16 U.S.C. 1533(f).
Bureau of Land Management, Interior.
Notice.
Members of the public are hereby invited to participate with Western Energy Company in a program for the exploration of coal deposits owned by the United States of America in lands located in Treasure County, Montana, encompassing 320.00 acres.
Robert Giovanini, Mining Engineer, or Connie Schaff, Land Law Examiner, Branch of Solid Minerals (MT-921), Bureau of Land Management (BLM), Montana State Office, P.O. Box 36800, Billings, Montana 59107-6800, telephone (406) 896-5084 or (406) 896-5060, respectively.
The lands to be explored for coal deposits are described as follows: T. 2 N., R. 38 E., P.M.M., Sec. 14: E
Any party electing to participate in this exploration program shall notify,
The proposed exploration program is fully described, and will be conducted pursuant to an exploration plan to be approved by the Bureau of Land Management. The exploration plan, as submitted by Western Energy Company, is available for public inspection at the BLM, 5001 Southgate Drive, Billings, Montana, during regular business hours (9 a.m. to 4 p.m.), Monday through Friday.
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) is requesting public nominations to fill the unexpired term of two positions on the John Day-Snake-RAC. The RAC provides advice and recommendations to BLM on land use planning and management of the public lands in northeast Oregon, Southeast Washington, and that portion of Idaho within the Hells Canyon National Recreation Area. BLM will consider public nominations until December 20, 2004.
Send all nominations to the appropriate BLM State Office by no later than December 20, 2004.
Pam Robbins, U.S. Department of the Interior, Bureau of Land Management, Oregon State Office, 333 SW. First Avenue OR-912, Portland, OR 97204-3420; 503-808-6306.
The Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1730) directs the Secretary of the Interior to involve the public in planning and issues related to management of lands administered by BLM. Section 309 of FLPMA directs the Secretary to select 10 to 15 member citizen-based advisory councils that are consistent with the requirements of Federal Advisory Committee Act (FACA). Members serve without monetary compensation, but will be reimbursed for travel and per diem expenses at current rates for Government employees. As required by the FACA, RAC membership must be balanced and representative of the various interests concerned with the management of the public lands. The rules governing RACs are found at 43 CFR 1784.b. The unexpired terms to be filled are category three—Indian tribes within or adjacent to the RAC, and employee of a State agency responsible for management of natural resources. The current term expiration for the tribal representative is September 19, 2007; for the State employee, it is September 19, 2006. Individuals may nominate themselves or others to serve on the RAC. Nominees must be residents of Oregon, Washington, or Idaho, the states in which the RAC has jurisdiction. BLM will evaluate nominees based on their education, training, and experience and their knowledge of the geographical area of the RAC. Nominees should demonstrate a commitment to collaborative resource decision-making.
The following must accompany all nominations:
Nomination forms are available from Pam Robbins, P.O. Box 2965, 333 SW. First Avenue, Portland, OR 97208-2965. Completed applications should be sent to the same address. Internet users may download the form from:
Bureau of Land Management, Interior.
Notice of reinstatement of terminated oil and gas lease.
Under the provisions of Public Law 97-451, a petition for reinstatement of oil and gas lease NMNM 96135 for lands in San Juan County, New Mexico, was timely filed and was accompanied by all required rentals and royalties accruing from March 1, 2004, the date of termination.
Lourdes B. Ortiz, BLM, New Mexico State Office, (505) 438-7586.
No valid lease has been issued affecting the lands. The lessee has agreed to new lease terms for rentals and royalties at rates of $5.00 per acre or fraction thereof and 16
Bureau of Land Management, Interior.
Notice.
In accordance with Title IV of the Federal Oil and Gas Royalty Management Act (Pub. L. 97-451), a petition for reinstatement of oil and gas leases UTU76457, UTU76458, UTU76459, UTU76460, UTU76462, UTU76703, UTU76704, UTU77110 and UTU77500 for lands in Juab County, Utah, was timely filed and required rentals accruing from the date of termination, have been paid.
Teresa Catlin, Acting Chief, Branch of Fluid Minerals at (801) 539-4122.
The lessee has agreed to new lease terms for rentals and royalties at rates of $10 per acre and 16
Having met all the requirements for reinstatement of the lease as set out in Section 31(d) and (e) of the Mineral Leasing Act of 1920 (30 U.S.C. 188), the Bureau of Land Management is proposing to reinstate lease UTU77110, effective April 1, 2003, leases UTU76457, UTU76458, UTU76459, UTU76460 and UTU76462, effective July 1, 2003, leases UTU76703, UTU76704, and UTU77500, effective October 1, 2003, subject to the original terms and conditions of the leases and the increased rental and royalty rates cited above.
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease WYW144596 for lands in Fremont County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Pamela J. Lewis, Chief, Fluid Minerals Adjudication, at (307) 775-6176.
The lessees have agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease WYW130117 for lands in Johnson County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Pamela J. Lewis, Chief, Fluid Chief Minerals Adjudication, at (307) 775-6176.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease WYW130110 for lands in Johnson County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Pamela J. Lewis, Chief, Fluid Chief Minerals Adjudication, at (307) 775-6176.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease WYW144595 for lands in Fremont County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Pamela J. Lewis, Chief, Fluid Minerals Adjudication, at (307) 775-6176.
The lessees have agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease WYW130635 for lands in Johnson County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Pamela J. Lewis, Chief, Fluid Chief Minerals Adjudication, at (307) 775-6176.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16
Notice is hereby given in accordance with the Federal Advisory Committee Act, Pub. L. 92-463, that a meeting of the Selma to Montgomery National Historic Trail Advisory Council will be held Wednesday, December 8, 2004 at 9 a.m. until 3:30 p.m., at the Alabama Department of Transportation, 1409 Coliseum Boulevard in Montgomery Alabama.
The Selma to Montgomery National Historic Trail Advisory Council was established pursuant to Pub. L. 100-192 establishing the Selma to Montgomery National Historic Trail. This Council was established to advise the National Park Service on such issues as preservation of trail routes and features, public use, standards for posting and maintaining trail markers, and administrative matters.
The matters to be discussed include:
(A) Review of last meeting Minutes
(B) Subcommittee Review & Nominations
(C) 40th Anniversary Update
The meeting will be open to the public. However, facilities and space for accommodating members of the public are limited and persons will be accommodated on first come, first serve basis. Anyone may file a written statement with Catherine F. Light, Trail Superintendent concerning the matters to be discussed.
Person wishing further information concerning this meeting may contact Catherine F. Light, Trail Superintendent, Selma to Montgomery National Historic Trail, at 334.727.6390 (phone), 334.727.4597 (fax) or mail 1212 Old Montgomery Road, Tuskegee Institute, Alabama 36088.
30-Day notice of information collection under review: Exhibit A to Registration Statement (Foreign Agents).
The Department of Justice (DOJ), Criminal Division has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the procedures of the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until December 6, 2004. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, Washington, DC 20530. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: The estimated total number of respondents is 164 who will complete a response within 29 minutes.
(6)
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed consent decree in
The proposed Consent Decree requires the defendants to: (1) pay a civil penalty, (2) remove and re-route a 500′ sewer line that was illegally placed through a wetland, and (3) restore the impacted wetland. The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this notice. Please address comments to Kurt Lindland, Assistant United States Attorney, United States Attorney's Office, 5th Floor, 219 S. Dearborn Street, Chicago, Illinois 60604 and refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Northern District of Illinois, 219 S. Dearborn Street, Chicago, Illinois. In addition, the proposed Consent Decree may be viewed on the World Wide Web at
Under the policy set out at 28 CFR 50.7, notice is hereby given that on October 15, 2004, the United States lodged with the United States District Court for the Northern District of Iowa a proposed consent decree (“Consent Decree”) in the case of
The Consent Decree would resolve claims in a Complaint filed, simultaneously with the lodging of the Consent Decree, by the United States and the State of Iowa (“State”) against the City for violations at its POTW of sections 301, 307 and 402 of the Clean Water Act (“CWA”), 33 U.S.C. 1311, 1317 and 1342, and the City's NPDES Permit. The Consent Decree would also resolve claims by the United States and the State for natural resource damages under Section 311(f) of the CWA, 33 U.S.C. 1321(f); section 107 of CERCLA, 42 U.S.C. 9607; and PSRPA, 16 U.S.C. 19jj. In addition, the Consent Decree would resolve CWA claims filed in a separate Complaint by an Iowa citizens' group, the Northeast Iowa Citizens for Clean Water (“NICCWA”).
The Consent Decree requires the City to perform injunctive relief including continuous monitoring and reporting of discharges into a nearby river, to pay civil penalties for CWA violations and monies for natural resource damages to the Unites States and the State, and to pay attorneys' fees and costs to NICCWA.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined at the offices of the United States Attorney, Northern District of Iowa, 401 First Street, SE., Room 400, Cedar Rapids, IA 52401, and at the offices of U.S. EPA Region 7, 901 North 5th Street, Kansas City, KS 66101.
During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
60-Day notice of information collection under review: Import/Export Declaration: Precursor and Essential Chemicals—DEA Form 486.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until January 3, 2005. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Patricia M. Good, Chief, Liaison and Policy Section Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
60-day notice of information collection under review: Controlled Substances Import/Export Declaration—DEA Form 236.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until January 3, 2005. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Patricia M. Good, Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
Brenda E. Dyer, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street NW., Washington, DC 20530.
60-Day Notice of Information Collection Under Review: Records and Reports of Registrants.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until January 3, 2005. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Patricia M. Good, Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
30-day notice of information collection under review: Victims of Crime Act, Victim Compensation Grant Program, State Performance Report.
The Department of Justice (DOJ), Office of Justice Programs (OJP) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until December 6, 2004. This process is conducted in accordance with 5 CFR 1320.10. Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6) An estimate of the total public burden (in hours) associated with the collection: There are an estimated 106 total annual burden hours associated with this collection.
The Department of Labor (DOL) has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of each ICR, with applicable supporting documentation, may be obtained by contacting the Department of Labor (DOL). To obtain documentation, contact Ira Mills on (202) 693-4122 (this is not a toll-free number) or e-mail:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL, Office of Management and Budget, Room 10235, Washington, DC 20503 (202) 395-7316 (this is not a toll-free number), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Department of Labor (DOL) has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of this ICR, with applicable supporting documentation, may be obtained by contacting Darrin King on (202) 693-4129 (this is not a toll-free number) or e-mail:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Occupational Safety and Health Administration (OSHA), Office of Management and Budget, Room 10235, Washington, DC 20503, (202) 395-7316 (this is not a toll-free number), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The data also provides information to employers and employees of the kinds of injuries and illnesses occurring in the workplace and their related hazards. Increased employer awareness should result in the identification and voluntary correction of hazardous workplace conditions. Likewise, employees who are provided information on injuries and illnesses will be more likely to follow safe work practices and report workplace hazards. This would generally raise the overall level of safety and health in the workplace.
The Department of Labor (DOL) has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of this ICR, with applicable supporting documentation, may be obtained by contacting Darrin King on (202) 693-4129 (this is not a toll-free number) or e-mail:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Employee Benefits Security Administration (EBSA), Office of Management and Budget, Room 10235, Washington, DC 20503, (202) 395-7316 (this is not a toll-free number), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Group health plans use this information to obtain the benefits of the exemption from the requirement that they provide for parity between mental health benefits and medical/surgical benefits. Participants and beneficiaries use the information to be informed of the benefits available to them under their group health plans, and to verify or dispute the applicability of the exemption which may serve to limit benefits which would otherwise be available to them.
The Department of Labor (DOL) and the Pension Benefit Guaranty Corporation have submitted the following public information collection requests (ICRs) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35).
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Employee Benefits Security Administration (EBSA) and Pension Benefit Guaranty Corporation (PBGC), Office of Management and Budget, Room 10235, Washington, DC 20503, 202-395-7316 (this is not a toll-free number), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Veterans' Employment and Training Service, Labor.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on the proposed continued collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. The Paperwork Reduction Act helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, VETS is soliciting comments concerning the proposed extension of the information collection request for the Manager's Report and replacement of the VETS-300, Quarterly Financial Status Reports with the OMB approved Standard Form (SF) 269A Reports for cost information collection.
Comments are to be submitted by January 3, 2005.
Comments are to be submitted to Paul Robertson, Regulatory Specialist, Office of Agency Management and Budget, Veterans' Employment and Training Service, U.S. Department of Labor, Room S-1312, 200 Constitution Ave., NW., Washington, DC 20210. Electronic mail (e-mail) is the preferred method for submitting comments. Comments must be clearly identified as pertaining to this
Contact Pamela Langley, Interim Chief, Division of Employment and Training Programs, VETS, at the Department of Labor, Room S-1312, 200 Constitution Avenue, NW., Washington, DC 20210, or by e-mail at
Each State Workforce Agency Office has been required to submit the VETS 300 and Manager's Reports on a quarterly basis, with one additional VETS 300, Final Fiscal Year Report. With the passage of Public Law 107-288, the Jobs for Veterans Act of 2002, enacted November 7, 2002, the quarterly and final VETS-300 Cost Accounting Reports are no longer required to be submitted. The OMB approved SF 269A Quarterly Financial Report contains sufficient information to replace the VETS-300 Reports. The VETS-300 reports will, therefore, be eliminated when the current form expires in December of 2004.
Title 38 U.S.C. requires a report on employment and training services provided to veterans and eligible persons by the local employment service delivery system. This report is provided to the Director for Veterans' Employment and Training (DVET) each fiscal quarter. It addresses the service delivery point's performance and compliance with Federal law and regulations on the prioritization and provision of services to veterans and eligible persons. Section V. G. of the Special Grant Provisions and Veterans' Program Letter 09-03, require this report to include, as a minimum, an analysis of compliance with applicable measures of service or standards of performance and the quantity, quality and character of services provided to veterans and eligible persons, to include Vocational Rehabilitation and Employment activity.
Currently VETS is soliciting comments concerning the proposed three-year extension of the information collection request for the Manager's Report. The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
This notice requests extended approval from OMB for the quarterly collection of information, electronic or mechanical submission, and other paperwork requirements of the Manager's Report on Services to Veterans.
Comments submitted in response to this notice will be summarized and included in the agency's request for OMB approval of the information collection request. Comments will become a matter of public record.
National Aeronautics and Space Administration (NASA).
Notice of meeting.
The National Aeronautics and Space Administration announces a meeting of the NASA Space Science Advisory Committee (SScAC), Structure and Evolution of the Universe Subcommittee (SEUS).
Monday, November 8, 2004, 8:30 a.m. to 6 p.m., and Tuesday, November 9, 2004, 8 a.m. to 4 p.m.
Inn and Conference Center, University of Maryland, 3501 University Boulevard East, Adelphi, Maryland 20783.
Dr. Michael Salamon, Code SZ, National Aeronautics and Space Administration, Washington, DC 20546, 202/358-0441,
The meeting will be open to the public up to the seating capacity of the room. The agenda for the meeting is as follows:
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Visitors will be requested to sign a visitor's register.
National Aeronautics and Space Administration (NASA).
Notice of meeting.
The National Aeronautics and Space Administration announces a meeting of the NASA Space Science Advisory Committee (SScAC), Astronomical Search for Origins and Planetary Systems Subcommittee (OS).
Monday, November 8, 2004, 8:30 a.m. to 6 p.m., and Tuesday, November 9, 2004, 8 a.m. to 6 p.m.
Inn and Conference Center, University of Maryland, 3501 University Boulevard East, Adelphi, Maryland 20783.
Dr. Eric P. Smith, Science Mission Directorate, National Aeronautics and Space Administration, Washington, DC 20546, (202) 358-2439,
The meeting will be open to the public up to the seating capacity of the room. The agenda for the meeting is as follows:
• Universe Division News/Update.
• NASA Roadmapping Progress.
• James Webb Space Telescope Update.
• Deep Space Network Future Plans.
• Astronomy and Physics Working Group.
• Terrestrial Planet Finder Update.
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Visitors will be requested to sign a visitor's register.
Pension Benefit Guaranty Corporation.
Notice of intention to request extension of OMB approval.
The Pension Benefit Guaranty Corporation (PBGC) intends to request that the Office of Management and Budget (OMB) extend approval, under the Paperwork Reduction Act, of collections of information in the PBGC's regulations on multiemployer plans under the Employee Retirement Income Security Act of 1974 (ERISA). This notice informs the public of the PBGC's intent and solicits public comment on the collections of information.
Comments must be submitted by January 3, 2005.
Comments may be mailed to the Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026, or delivered to Suite 340 at that address during normal business hours. Comments also may be submitted electronically through the PBGC's Web site at
Copies of the collections of information may be obtained without charge by writing to the PBGC's Communications and Public Affairs Department at Suite 240 at the above address or by visiting that office or calling (202) 326-4040 during normal business hours. (TTY and TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to (202) 326-4040.) The regulations on multiemployer plans can be accessed on the PBGC's Web site at
Deborah C. Murphy, Attorney, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026, (202) 326-4024. (For TTY/TDD users, call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to (202) 326-4024.)
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved and issued control numbers for the collections of information, described below, in the PBGC's regulations relating to multiemployer plans. The PBGC intends to request that OMB extend its approval of these collections of information for three years.
The PBGC is soliciting public comments to—
• Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collections of information, including the validity of the methodologies and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collections of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments should identify the specific part number(s) of the regulation(s) they relate to.
The collections of information for which the PBGC intends to request extension of OMB approval are as follows:
Section 4041A(f)(2) of ERISA authorizes the PBGC to prescribe reporting requirements for and other “rules and standards for the administration of” terminated multiemployer plans. Section 4041A(c) and (f)(1) of ERISA prohibit the payment by a mass-withdrawal-terminated plan of lump sums greater than $1,750 or of nonvested plan benefits unless authorized by the PBGC.
The regulation requires the plan sponsor of a terminated plan to submit a notice of termination to the PBGC. It also requires the plan sponsor of a mass-withdrawal-terminated plan that is
The PBGC uses the information in a notice of termination to assess the likelihood that PBGC financial assistance will be needed. Plan participants and beneficiaries use the information on alternative forms of benefit to make personal financial decisions. The PBGC uses the information in an application for approval to pay lump sums greater than $1,750 or to pay nonvested plan benefits to determine whether such payments should be permitted.
The PBGC estimates that plan sponsors each year (1) submit notices of termination for 10 plans, (2) distribute election notices to participants in 5 of those plans, and (3) submit requests to pay benefits or benefit forms not otherwise permitted for 1 of those plans. The estimated annual burden of the collection of information is 19.2 hours and $12,873.
Sections 4203(f) and 4208(e)(3) of ERISA allow the PBGC to permit a multiemployer plan to adopt special rules for determining whether a withdrawal from the plan has occurred, subject to PBGC approval.
The regulation specifies the information that a plan that adopts special rules must submit to the PBGC about the rules, the plan, and the industry in which the plan operates. The PBGC uses the information to determine whether the rules are appropriate for the industry in which the plan functions and do not pose a significant risk to the insurance system.
The PBGC estimates that at most 1 plan sponsor submits a request each year under this regulation. The estimated annual burden of the collection of information is 1 hour and $4,400.
If an employer's covered operations or contribution obligation under a plan ceases, the employer must generally pay withdrawal liability to the plan. Section 4204 of ERISA provides an exception, under certain conditions, where the cessation results from a sale of assets. Among other things, the buyer must furnish a bond or escrow, and the sale contract must provide for secondary liability of the seller.
The regulation establishes general variances (rules for avoiding the bond/escrow and sale-contract requirements) and authorizes plans to determine whether the variances apply in particular cases. It also allows buyers and sellers to request individual variances from the PBGC. Plans and the PBGC use the information to determine whether employers qualify for variances.
The PBGC estimates that each year, 11 employers submit, and 11 plans respond to, variance requests under the regulation, and 2 employers submit variance requests to the PBGC. The estimated annual burden of the collection of information is 1 hour and $4,881.
Section 4207 of ERISA allows the PBGC to provide for abatement of an employer's complete withdrawal liability, and for plan adoption of alternative abatement rules, where appropriate.
Under the regulation, an employer applies to a plan for an abatement determination, providing information the plan needs to determine whether withdrawal liability should be abated, and the plan notifies the employer of its determination. The employer may, pending plan action, furnish a bond or escrow instead of making withdrawal liability payments, and must notify the plan if it does so. When the plan then makes its determination, it must so notify the bonding or escrow agent.
The regulation also permits plans to adopt their own abatement rules and request PBGC approval. The PBGC uses the information in such a request to determine whether the amendment should be approved.
The PBGC estimates that each year, 100 employers submit, and 100 plans respond to, applications for abatement of complete withdrawal liability, and 1 plan sponsor requests approval of plan abatement rules from the PBGC. The estimated annual burden of the collection of information is 25.5 hours and $27,500.
Section 4208 of ERISA provides for abatement, in certain circumstances, of an employer's partial withdrawal liability and authorizes the PBGC to issue additional partial withdrawal liability abatement rules.
Under the regulation, an employer applies to a plan for an abatement determination, providing information the plan needs to determine whether withdrawal liability should be abated, and the plan notifies the employer of its determination. The employer may, pending plan action, furnish a bond or escrow instead of making withdrawal liability payments, and must notify the plan if it does so. When the plan then makes its determination, it must so notify the bonding or escrow agent.
The regulation also permits plans to adopt their own abatement rules and request PBGC approval. The PBGC uses the information in such a request to determine whether the amendment should be approved.
The PBGC estimates that each year, 1,000 employers submit, and 1,000 plans respond to, applications for abatement of partial withdrawal liability and 1 plan sponsor requests approval of plan abatement rules from the PBGC. The estimated annual burden of the collection of information is 250.5 hours and $275,000.
Section 4211(c)(5)(A) of ERISA requires the PBGC to prescribe how plans can, with PBGC approval, change the way they allocate unfunded vested benefits to withdrawing employers for purposes of calculating withdrawal liability.
The regulation prescribes the information that must be submitted to the PBGC by a plan seeking such approval. The PBGC uses the information to determine how the amendment changes the way the plan allocates unfunded vested benefits and how it will affect the risk of loss to plan participants and the PBGC.
The PBGC estimates that 5 plan sponsors submit approval requests each year under this regulation. The estimated annual burden of the collection of information is 10 hours.
Section 4219(c)(1)(D) of ERISA requires that the PBGC prescribe regulations for the allocation of a plan's total unfunded vested benefits in the event of a “mass withdrawal.” ERISA section 4209(c) deals with an employer's liability for
The reporting requirements in the regulation give employers notice of a mass withdrawal or substantial withdrawal and advise them of their rights and liabilities. They also provide notice to the PBGC so that it can monitor the plan, and they help the PBGC assess the possible impact of a withdrawal event on participants and the multiemployer plan insurance program.
The PBGC estimates that there is at most 1 mass withdrawal and 1 substantial withdrawal per year. The plan sponsor of a plan subject to a withdrawal covered by the regulation provides notices of the withdrawal to the PBGC and to employers covered by the plan, liability assessments to the employers, and a certification to the PBGC that assessments have been made. (For a mass withdrawal, there are 2 assessments and 2 certifications that deal with 2 different types of liability. For a substantial withdrawal, there is 1 assessment and 1 certification (combined with the withdrawal notice to the PBGC).) The estimated annual burden of the collection of information is 4 hours and $7,148.
Under section 4220 of ERISA, a plan may within certain limits adopt special plan rules regarding when a withdrawal from the plan occurs and how the withdrawing employer's withdrawal liability is determined. Any such special rule is effective only if, within 90 days after receiving notice and a copy of the rule, the PBGC either approves or fails to disapprove the rule.
The regulation provides rules for requesting the PBGC's approval of an amendment. The PBGC needs the required information to identify the plan, evaluate the risk of loss, if any, posed by the plan amendment, and determine whether to approve or disapprove the amendment.
The PBGC estimates that 3 plan sponsors submit approval requests per year under this regulation. The estimated annual burden of the collection of information is 1.5 hours.
Section 4231(a) and (b) of ERISA requires plans that are involved in a merger or transfer to give the PBGC 120 days' notice of the transaction and provides that if the PBGC determines that specified requirements are satisfied, the transaction will be deemed not to be in violation of ERISA section 406(a) or (b)(2) (dealing with prohibited transactions).
This regulation sets forth the procedures for giving notice of a merger or transfer under section 4231 and for requesting a determination that a transaction complies with section 4231.
The PBGC uses information submitted by plan sponsors under the regulation to determine whether mergers and transfers conform to the requirements of ERISA section 4231 and the regulation.
The PBGC estimates that there are 35 transactions each year for which plan sponsors submit notices and approval requests under this regulation. The estimated annual burden of the collection of information is 8.75 hours and $7,657.
If the plan sponsor of a plan in reorganization under ERISA section 4241 determines that the plan may become insolvent, ERISA section 4245(e) requires the plan sponsor to give a “notice of insolvency” to the PBGC, contributing employers, and plan participants and their unions in accordance with PBGC rules.
For each insolvency year under ERISA section 4245(b)(4), ERISA section 4245(e) also requires the plan sponsor to give a “notice of insolvency benefit level” to the same parties.
This regulation establishes the procedure for giving these notices. The PBGC uses the information submitted to estimate cash needs for financial assistance to troubled plans. Employers and unions use the information to decide whether additional plan contributions will be made to avoid the insolvency and consequent benefit suspensions. Plan participants and beneficiaries use the information in personal financial decisions.
The PBGC estimates that 1 plan sponsor gives notices each year under this regulation. The estimated annual burden of the collection of information is 1 hour and $3,746.
Section 4281 of ERISA provides rules for plans that have terminated by mass withdrawal. Under section 4281, if nonforfeitable benefits exceed plan assets, the plan sponsor must amend the plan to reduce benefits. If the plan nevertheless becomes insolvent, the plan sponsor must suspend certain benefits that cannot be paid. If available resources are inadequate to pay guaranteed benefits, the plan sponsor must request financial assistance from the PBGC.
The regulation requires a plan sponsor to give notices of benefit reduction, notices of insolvency and annual updates, and notices of insolvency benefit level to the PBGC and to participants and beneficiaries and, if necessary, to apply to the PBGC for financial assistance.
The PBGC uses the information it receives to make determinations required by ERISA, to identify and estimate the cash needed for financial assistance to terminated plans, and to verify the appropriateness of financial assistance payments. Plan participants and beneficiaries use the information to make personal financial decisions.
The PBGC estimates that plan sponsors each year give benefit reduction notices for 2 plans and give notices of insolvency benefit level and annual updates, and submit requests for financial assistance, for 28 plans. Of those 28 plans, the PBGC estimates that plan sponsors each year give notices of insolvency for 4 plans. The estimated annual burden of the collection of information is 1 hour and $286,659.
On October 1, 2004, American Science and Engineering, Inc., a Massachusetts corporation (“Issuer”), filed an application with the Securities and Exchange Commission (“Commission”), pursuant to Section 12(d) of the Securities Exchange Act of 1934 (“Act”)
The Issuer represents that the Board of Directors (“Board”) of the Issuer approved a resolution on July 28, 2004 to withdraw the Issuer's Security from listing on the Amex and to list the Security on Nasdaq National Market (“Nasdaq”). The Issuer states it would be in the best interest of the Issuer to list the Security solely on Nasdaq because Nasdaq should offer increased visibility and liquidity in worldwide financial markets, is perceived by many investors as the premier market for technology companies like the Issuer, and should provide improved and enhanced investor services for the Issuer's stockholders. In addition, the Issuer believes it is advisable and desirable to remove the listing of its Security on the Amex and to list the Security on Nasdaq. The Issuer states that it was scheduled to list its Security on the Nasdaq on October 6, 2004.
The Issuer stated in its application that it has met the requirements of Amex Rule 18 by complying with all applicable laws in the State of Massachusetts, in which it is incorporated, and with the Amex's rules governing an issuer's voluntary withdrawal of a security from listing and registration.
The Issuer's application relates solely to the withdrawal of the Securities from listing on the Amex and from registration under Section 12(b) of the Act,
Any interested person may, on or before November 23, 2004, comment on the facts bearing upon whether the application has been made in accordance with the rules of the Amex, and what terms, if any, should be imposed by the Commission for the protection of investors. All comment letters may be submitted by either of the following methods:
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
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For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of October, 2004. A copy of each application may be obtained for a fee at the SEC's Public Reference Branch, 450 Fifth St., NW., Washington, DC 20549-0102 (tel. 202-942-8090). An order granting each application will be issued unless the SEC orders a hearing. Interested persons may request a hearing on any application by writing to the SEC's Secretary at the address below and serving the relevant applicant with a copy of the request, personally or by mail. Hearing requests should be received by the SEC by 5:30 p.m. on November 19, 2004, and should be accompanied by proof of service on the applicant, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549-0609.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Notice is hereby given that the following filing(s) has/have been made with the Commission pursuant to provisions of the Act and rules promulgated under the Act. All interested persons are referred to the application(s) and/or declaration(s) for complete statements of the proposed transaction(s) summarized below. The application(s) and/or declaration(s) and any amendment(s) is/are available for public inspection through the Commission's Branch of Public Reference.
Interested persons wishing to comment or request a hearing on the application(s) and/or declaration(s) should submit their views in writing by November 22, 2004, to the Secretary, Securities and Exchange Commission, Washington, DC 20549-0609, and serve a copy on the relevant applicant(s) and/or declarant(s) at the address(es) specified below. Proof of service (by affidavit or, in the case of an attorney at law, by certificate) should be filed with the request. Any request for hearing should identify specifically the issues of facts or law that are disputed. A person who so requests will be notified of any hearing, if ordered, and will receive a copy of any notice or order issued in the matter. After November 22, 2004, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
AGL Resources Inc. (“AGL Resources”), a registered public utility holding company, AGL Resources” subsidiary service company, AGL Services Company (“AGL Services”), both of Ten Peachtree Place Suite 1000, Atlanta, GA 30309, AGL Resources' gas utility subsidiaries, Atlanta Gas Light Company (“AGLC”), Ten Peachtree Place Suite 1000, Atlanta, GA 30309, Chattanooga Gas Company (“CGC”), 6125 Preservation Drive Chattanooga, Tennessee 37416 and Virginia Natural
AGL proposes to acquire all of the issued and outstanding common stock of NUI and indirectly acquire the NUI Subsidiaries. Applicants also propose that NUI and the NUI Subsidiaries engage in certain financings and other transactions.
Applicants state that AGL Resources is a corporation organized under the laws of Georgia, and is an Atlanta-based energy services holding company. AGL Resources owns three gas public utility subsidiary companies: AGLC, CGC, and VNG which serve more than 1.8 million customers in three states (collectively, “AGL Resources Utilities”).
Applicants state that AGL Resources' common stock has a five dollar par value and as of June 30, 2004, AGL Resources had 64,923,654 shares of common stock issued and outstanding. As of and for the six months ended June 30, 2004, AGL Resources had total assets of $4.01 billion, net utility plant assets of $2.26 billion, total operating revenues of $945 million, operating income of $186 million and net income of $87 million.
(1) AGLC.—Applicants state that AGLC is a natural gas local distribution utility with distribution systems and related facilities serving 237 cities throughout Georgia, including Atlanta, Athens, Augusta, Brunswick, Macon, Rome, Savannah and Valdosta. AGLC also has approximately 6.0 billion cubic feet, or Bcf, of liquefied natural gas (“LNG”) storage capacity in three LNG plants to supplement the supply of natural gas during peak usage periods. The Georgia Public Service Commission (“GPSC”) regulates AGLC with respect to rates, maintenance of accounting records and various other service and safety matters. Applicants state that as of and for the six months ended June 30, 2004, AGLC had total assets of $2.41 billion, total operating revenues of $308 million and net income of $76 million. AGLC owns all of the outstanding stock of AGL Rome Holdings, Inc. (“Rome Holdings”). AGL Rome Holdings, Inc. owned property associated with a former manufactured gas plant in Rome, Georgia, but sold that property in December 2003.
Applicants state that CGC is a natural gas local distribution utility with distribution systems and related facilities serving twelve cities and surrounding areas, including the Chattanooga and Cleveland areas of Tennessee. CGC also has approximately 1.2 Bcf of LNG storage capacity in its LNG plant. The Tennessee Regulatory Authority (“TRA”) regulates CGC with respect to rates, maintenance of accounting records and various other service and safety matters. As of and for the six months ended June 30, 2004, CGC had total assets of $147 million, total operating revenues of $55 million and net income of $7.0 million.
(1) VNG.—Applicants state that VNG is a natural gas local distribution utility with distribution systems and related facilities serving eight cities in the Hampton Roads region of southeastern Virginia. VNG owns and operates approximately 155 miles of a separate high-pressure pipeline that provides delivery of gas to customers under firm transportation agreements within the state of Virginia. VNG also has approximately 5.0 million gallons of propane storage capacity in its two propane facilities to supplement the supply of natural gas during peak usage periods. The Virginia State Corporation Commission (“VSCC”) regulates VNG with respect to rates, maintenance of accounting records and various other service and safety matters. Applicants state that as of and for the six months ended June 30, 2004, VNG had total assets of $736 million, total operating revenues of $210 million and net income of $21 million.
AGL Resources also holds direct and indirect interests in nonutility companies (“AGL Nonutilities” and together with the AGL Utilities, “AGL Subsidiaries”) whose retention has been authorized by order dated October 5, 2000 (HCAR No. 27243), (“AGL Merger Order”).
Applicants state that NUI has two public utility subsidiary companies, NUI Utilities and VGDC. Through its subsidiaries, NUI operates natural gas distribution systems and natural gas storage and pipeline businesses.
Applicants state that NUI Utilities distributes natural gas to approximately 371,000 customers in New Jersey, Florida and Maryland through its three regulated utility divisions, Elizabethtown Gas Company (“Elizabethtown Gas”), City Gas Company of Florida (“City Gas”) and Elkton Gas. Each division is subject to regulation by the public service commission in the states where it operates. Applicants state that, during fiscal year 2003, the operating revenues associated with the provision of distribution services by NUI Utilities' regulated utility divisions was approximately $484.8 million, representing 95% of the total operating revenues of NUI. Of this amount, 85% was generated by utility operations in New Jersey, where approximately 71% of NUI Utilities' customers are located. Total utility gas volumes sold or transported by such utility operations amounted to 63.7 Bcf, of which 87% was sold or transported in New Jersey.
Applicants state that NUI Utilities distributes gas through approximately 6,200 miles of steel, cast iron and plastic mains. The company has physical interconnections with five interstate pipelines in New Jersey and a single interstate pipeline in both Maryland and Florida. Common interstate pipelines along the company's operating system provide the company with the flexibility to manage pipeline capacity and supply, thereby optimizing system utilization.
Applicants state that, through its Elizabethtown Gas and City Gas divisions, NUI Utilities also has an appliance service, sales, leasing and financing businesses in New Jersey and Florida. The appliance group generated operating revenues of $11.4 million in fiscal year 2003 and had operating margins of $3.2 million in the same period.
VGDC is an indirect wholly owned public utility subsidiary of NUI and a direct subsidiary of VGC, a holding company for certain utility and nonutility businesses. VGDC distributes gas to approximately 275 customers in Virginia. During fiscal year 2003, VGDC sold approximately 200.785 Mcf of gas, of which 4% was sold to residential customers and 96% to commercial and industrial customers.
Applicants state that the NUI Nonutilities' businesses are carried out primarily by NUI Capital and its subsidiaries. NUI Capital's only remaining non-regulated subsidiary with substantial continuing operations is UBS, a billing and customer information systems and services subsidiary. Applicants state that NUI's other non-regulated subsidiaries are winding down their operations. These subsidiaries include: NUI Energy, an energy retailer; NUI Energy Brokers, NUI's wholesale energy trading and portfolio management subsidiary; OAS, the company's digital mapping operation; and TIC, a sales outsourcing subsidiary that sold wireless and network telephone services.
Applicants state that UBS is a wholly owned subsidiary of NUI Capital. UBS provides outsourced customer information systems and services to NUI Utilities as well as investor-owned and municipal water/wastewater utilities. UBS offers customer and utility operations information systems and services, including account management, reporting, bill printing and mailing, and payment processing services. UBS presently serves 13 clients. The majority of UBS' clients are municipally-owned and operated water utilities across the United States. UBS' top three clients in terms of revenue generation are United Water, NUI Utilities and Middlesex Water. Over the past nine months, NUI Utilities has provided approximately 36% of UBS' revenues. Applicants state that UBS has been profitable in every year since 1995.
Applicants state that UBS' operating revenues and operating margins were $6.1 million and $3.6 million, respectively, in fiscal year 2003. UBS provides customer information systems and services to investor-owned and municipal utilities, as well as third party providers in the water, wastewater and gas markets. A customer information system developed and maintained by UBS is presently serving 13 clients in support of more than 1.5 million customers. UBS provides billing and payment processing services to NUI Utilities under a service agreement approved by the NJBPU. In June 2003, NUI approved a plan to sell UBS. Applicants state, however, that the September 2003 decision to sell NUI reduced the probability that a sale of UBS would occur, given that there was no guarantee that UBS' largest customer, NUI Utilities, would maintain a long-term relationship with UBS after the sale. After the acquisition, Applicants expect that the activities of UBS would be folded into NUI Utilities or replaced.
VGC is a natural gas storage, pipeline and distribution company with principal operations in Southwestern Virginia. In addition to owning VGDC, a gas utility described above, VGC operates two storage facilities; one a high-deliverability salt cavern facility in Saltville, Virginia (“Saltville Storage Project”) and the other a depleted reservoir facility in Early Grove, Virginia. Combined, the facilities have approximately 2.6 Bcf of working gas capacity. VGC also owns and operates a 72-mile 8” intrastate pipeline and serves as the construction and operations manager for the Saltville Storage Project as discussed below. All of VGC's businesses are regulated by the VSCC, and the Saltville Storage Project is regulated by the Federal Energy Regulatory Commission (“FERC”). VGC, which was acquired by NUI in March 2001, had operating margins of $8.7 million in fiscal year 2003.
NUI's wholly owned subsidiary, NUISS, is a fifty-percent member of SSLLC. SSLLC is a joint venture between subsidiaries of NUI and Duke Energy Gas Transmission (“DEGT”) that is developing a natural gas storage facility in Saltville, Virginia. SSLLC plans to expand the present Saltville Storage Project from its current capacity of 1 Bcf to approximately 12 Bcf in several phases. The Saltville Storage Project connects to DEGT's East Tennessee Natural Gas interstate system and its Patriot pipeline. SSLLC is subject to regulation by FERC under the Natural Gas Act.
In conjunction with the development of the Saltville Storage Project, NUI Energy Brokers entered into a twenty-year agreement with DEGT for the firm transportation of natural gas in the Patriot pipeline and a twenty-year agreement with SSLLC for the firm storage of natural gas. NUI is not using the Patriot pipeline transportation capacity at this time since it has discontinued its trading operations.
NUI Storage is a wholly owned subsidiary of NUI. Through its wholly owned subsidiaries, NUI Storage has acquired options on the land and mineral rights for property located in Richton, Perry County, Mississippi that the company plans to develop into a natural gas storage facility to help serve the Southeast United States. Like its companion storage facility in Saltville, Applicants expect Richton to offer the high-deliverability capabilities of salt dome storage for natural gas and will have access to a number of major interstate pipelines, including Destin Pipeline and its connections to Gulf South, Gulfstream, Florida Gas Transmission, SONAT, Tennessee Natural Gas and Transco. Through its connection to Destin Pipeline, Richton will have direct access to the gas supplies in the Gulf of Mexico, as well as supplies from the interconnected interstate pipelines referenced above. Richton can also serve as a potential storage facility for the various proposed liquefied natural gas projects in the Gulf Coast. Applicants anticipate that Richton will be subject to FERC regulation.
The capital structures of NUI, VGDC and NUI Utilities as of June 30, 2004 are shown in the tables below.
NUI
Applicants state that, on September 26, 2003, the Board of Directors of NUI announced its intention to pursue the sale of the company. Applicants have entered into an Agreement and Plan of Merger by and among AGL Resources Inc., Cougar Corporation and NUI Corporation, dated as of July 14, 2004 (“Merger Agreement”), under which AGL Resources has agreed to acquire all the outstanding shares of NUI for $13.70 per share in cash, or $220 million in the aggregate based on approximately 16 million shares currently outstanding. AGL Resources will assume the outstanding indebtedness of NUI at closing. As of March 31, 2004, NUI had approximately $607 million in debt and $136 million of cash on its balance sheet, bringing the current net value of the acquisition to $691 million. AGL Resources anticipates that the amount of NUI debt and cash will change prior to the time of closing. Applicants state that NUI will register as a holding company under the Act by filing a Notification of Registration on Form U5A upon the consummation of the Merger.
By order dated April 1, 2004 (HCAR No. 27828) (“Financing Order”), the Commission authorized AGL Resources, the AGL Utilities and the AGL Nonutilities to engage in various financing transactions in an aggregate amount outstanding at any one time not to exceed $5 billion through March 31, 2007. AGL Resources is not requesting additional financing authorization to finance the purchase of NUI. AGL Resources may elect to finance the cash portion of the purchase price through the issuance of common stock at or prior to closing if market conditions are favorable. AGL Resources also must refinance a substantial portion of NUI and NUI Utilities' outstanding debt upon closing, due to “change in control” provisions included in these financings. AGL Resources expects to maintain its strong investment-grade rating and its current dividend policy post-acquisition. After the Merger, AGL Resources states that its' ratio of equity to total capitalization will remain well above 30%.
Applicants state that the Financing Order provides sufficient authority for AGL Resources to proceed in this fashion because, in the unlikely event that AGL Resources were to sell common stock and not close the NUI acquisition, the proceeds of the stock issuance would be used only for permitted corporate purposes.
The transaction is subject to the approval of NUI's shareholders, the Federal Communications Commission, and the state regulatory agencies of New Jersey, Maryland and Virginia. Applicants state that the consummation of the transaction is subject to the following conditions: (i) NUI shall have received orders approving the transaction from the above referenced state utility commissions that contain certain terms specified by AGL Resources, except as would not have a material adverse effect on NUI, NUI Utilities, or AGL Resources; (ii) neither NUI nor any of its subsidiaries shall have been indicted or criminally charged for a felony criminal offense by any governmental entity (with the express exception of NUI and NUI Energy Brokers with respect to the matters specified in a settlement (“NJAGO Settlement”) with the New Jersey Attorney General's Office (“NJAGO”)) relating to the matters that are the subject of the New Jersey Board
Applicants state that AGL Resources has the right to terminate the Merger Agreement if NUI does not have necessary interim financing in place by September 30, 2004. On September 29, 2004, NUI announced that it and NUI Utilities had obtained credit facilities aggregating $95 million. AGL Resources has reviewed the terms of the credit facilities and currently believes that the credit facilities conform with the terms and requirements of the Merger Agreement. AGL Resources may also terminate the agreement if NUI and NUI Utilities do not have certain other financing facilities in place or drawn, or there is a payment default or an acceleration of indebtedness. Lastly, Applicants state that the Merger Agreement may be terminated: (i) By NUI in order for NUI to pursue a superior acquisition proposal; (ii) by AGL Resources based upon the board of directors of NUI withdrawing its recommendation of the Merger Agreement or recommending a superior acquisition proposal to the shareholders of NUI; (iii) by either party due to the consummation of the merger not occurring by April 13, 2005 (which is subject to a 90 day extension to obtain regulatory approvals); (iv) by either party due to the shareholders of NUI failing to approve the Merger Agreement or (v) by AGL Resources based upon the existence of a material, uncured breach of the Merger Agreement by NUI, provided that in the cases of clauses (iii)-(v) above, a termination fee (as described below) is payable only if and when NUI enters into a definitive agreement with respect to an alternative acquisition proposal within 12 months of the termination. In the event of a termination of the Merger Agreement under the circumstances provided in (i) and (ii), NUI will have to pay AGL Resources a termination fee of $7.5 million. The Merger Agreement also contains other customary termination rights, which do not result in the payment of a termination fee.
Applicants state that under the Merger Agreement, AGL Resources has agreed to acquire NUI in a reverse triangular merger in which, at closing, a newly created subsidiary of AGL Resources will merge with and into NUI. Upon the consummation of the Merger, NUI will be a wholly owned direct subsidiary of AGL Resources. Applicants state that, upon closing NUI's current CEO, will leave the company. AGL Resources is evaluating the appropriate composition of NUI's senior management after closing as a part of the work of a combined AGL Resources and NUI transition team. The members of the NUI and NUI Utilities Boards of Directors will resign and new directors will be selected from the management of AGL Resources and its subsidiaries. The AGL Resources Board of Directors intends to add a New Jersey resident of significant professional stature and business qualification to the AGL Resources Board and AGL Resources has sought to have at least one Virginian business leader on its Board.
AGL Resources states that it is still evaluating personnel to fill key management positions and roles at NUI. AGL Resources intends to manage and govern NUI and NUI Utilities in the same manner in which it currently manages AGLC, CGC and VNG. At the corporate level, it is clear that there is some overlap among employees at AGL Resources, NUI and NUI Utilities, particularly in the “corporate services” area, including accounting, finance, legal, and public relations. AGL Resources and NUI have established an integration team that will identify redundancies that should be addressed as AGL Resources integrates NUI's corporate management into AGL Resources' existing management structure.
In the AGL Merger Order, the Commission approved the formation of AGL's system service company, AGL Services, and authorized certain intrasystem transactions. Applicants propose that NUI and the NUI Subsidiaries enter into a services agreement with AGL Services under the same form of services agreement in the AGL Merger Order.
Applicants state that AGL Services is a service company established in accordance with section 13(b) of the Act. AGL Services provides business services to AGL Resources and its subsidiaries including: rates and regulatory services, internal auditing, strategic planning, external affairs, gas supply and capacity management, legal services and risk management, marketing, financial services, information systems and technology, corporate services, investor relations, customer services, purchasing, employee services, engineering, business support, facilities management and other services, such as business development, that may be agreed upon by the subsidiaries and AGL Services. As compensation for services, the services agreement between the subsidiaries and AGL Services provides for client companies to pay to AGL Services the cost of these services, computed in accordance with the applicable rules and regulations under the Act and appropriate accounting standards.
Applicants propose that AGL Services provide business services to NUI and the NUI Subsidiaries under the same terms and conditions as AGL Services serves the companies currently within the AGL Resources registered holding company system, as approved by the Commission.
NUI Utilities also proposes to enter into a three year gas procurement and asset management arrangement with a subsidiary of AGL Resources, Sequent Energy Management (“Sequent”). Sequent provides gas procurement and transportation and storage capacity asset management services to AGLC, VNG and CGC under arrangements with the respective state commissions with jurisdiction over AGLC, VNG and CGC.
The asset management model that Sequent employs provides for revenue sharing between the asset manager and AGLC, VNG and CGC's ratepayers. Applicants state that under its current arrangements with AGLC, VNG and CGC, Sequent contributed approximately $9.9 million to customers in 2003.
NUI Utilities currently has an Agreement for Billing Services, dated February 18, 2004, with UBS under which UBS provides NUI Utilities with certain billing related services using NUI Utilities' customer information system and certain other data center services on UBS' mainframe computer, including operating systems related to NUI Utilities' work order management, leak management, meter management, time entry and field services. The agreement is effective until March 31, 2007, but may be terminated by NUI Utilities with 180 days prior written notice. This agreement has been approved by the NJBPU.
Applicants state that UBS charges NUI Utilities market rates for the provision of these services, however, after closing, AGL Resources proposes to cause UBS and NUI Utilities to amend the agreement to require the services to be provided to NUI Utilities at UBS' cost. Prior to implementing such amendment, however, AGL Resources must determine whether a change in the pricing standard to terms more favorable to NUI Utilities would trigger contractual obligations to provide cost-based pricing to UBS' unaffiliated customers. In addition, if NJBPU approval of the amended contract is required, AGL Resources must seek this authorization before restructuring the contract between UBS and NUI Utilities. As a result, AGL Resources requests a temporary exception to the “at cost” provisions of section 13(b) of the Act and the applicable rules for two years to provide adequate time to restructure this contract. Applicants state that it is possible that at the end of the two-year period AGL Resources will be able to restructure all of UBS' existing contracts so that it may consolidate UBS with NUI Utilities.
VGC provides construction and operations management services to SSLLC through its wholly owned subsidiary, Virginia Gas Pipeline Company (“VGPC”). Applicants state that VGPC serves as the construction and operations manager to SSLLC, under an agreement (“Operating Agreement”), dated August 15, 2001. Under the terms of the Operating Agreement, SSLLC reimburses VGPC for the costs it incurs to construct, maintain and operate SSLLC's facilities, including VGPC's administration and labor costs.
Applicants request that the Commission exempt these services from section 13(b) and the applicable rules in conjunction with Applicant's request that SSLLC be exempted under rule 16 (described below).
By order dated December 23, 2003 (HCAR No. 27781), the Commission authorized AGL Resources' tax allocation agreement. AGL Resources proposes to add NUI and the NUI Subsidiaries to the existing tax allocation arrangements for the AGL Resources system.
SSLLC, a 50% joint venture between NUI Saltville Storage and Duke Energy Gas Transmission, is developing a natural gas storage facility in Saltville, Virginia. SSLLC will not have more than 50% of its voting securities controlled by a registered holding company. Applicants assert that SSLLC is entitled to an exemption from the obligations, duties and liabilities imposed upon it under rule 16 under the Act as a subsidiary or affiliate of a registered holding company. Applicants request that the Commission authorize AGL Resources to acquire NUI's interest in SSLLC under sections 9(a)(1) and 10. The exemption under rule 16 will permit SSLLC to continue to operate in accordance with its usual practice without the need for additional authorization under the Act.
VGC provides construction and operations management services to SSLLC. Applicants request that the Commission exempt these services from section 13(b) and the rules thereunder because SSLLC will be exempt under rule 16, upon the issuance of the authorization requested herein, and, accordingly, will not be treated as a subsidiary of a registered holding company under the Act.
Applicants state that VGC and its only utility subsidiary, VGDC, carry on their utility operations exclusively within Virginia where each company is incorporated. Applicants state that after the Merger, VGC and VGDC, will remain predominantly intrastate in character and carry on their business substantially within Virginia. Applicants request that the Commission issue an order under section 3(a)(1) of the Act providing that VGC and each of its subsidiary companies, will be exempt from all provisions of the Act, except section 9(a)(2). VGC will remain jurisdictional as a subsidiary of a registered holding company. Applicants state that the VSCC will continue to have jurisdiction and authority over all of VGDC's rates, services and operations following the acquisition.
Applicants request authority for NUI and the NUI Subsidiaries, after the consummation of the Merger, to engage in the various financing transactions described below through March 31, 2007 (“Authorization Period”). Applicants state that financings by NUI and the NUI Subsidiaries will be subject to the following limitations (“Financing Limitations”):
Applicants state that the proceeds from the sale of securities in these financing transactions will be used for general corporate purposes, including the financing, in part, of the capital expenditures and working capital requirements of NUI and its subsidiaries, for the acquisition, retirement or redemption of securities previously issued by NUI or the NUI Subsidiaries, and for authorized investments in companies organized in accordance with rule 58 under the Act, and for other lawful purposes.
The effective cost of money on long-term debt borrowings in accordance with authorizations granted under the Application will not exceed the greater of (i) 500 basis points over the comparable-term U.S. Treasury securities or (ii) a gross spread over U.S. Treasuries that is consistent with similar securities of comparable credit quality and maturities issued by other companies. The effective cost of money on short-term debt borrowings in accordance with the authorizations granted in the Application will not exceed the greater of (i) 500 basis points over the comparable-term London Interbank Offered Rate (“LIBOR”) or (ii) a gross spread over LIBOR that is consistent with similar securities of comparable credit quality and maturities issued by other companies.
The maturity of long-term debt will be between one and 50 years. Short-term debt will mature within one year.
The underwriting fees, commissions or other similar remuneration paid in connection with the non-competitive issue, sale or distribution of securities issued in accordance with this Application will not exceed the greater of (i) 5% of the principal or total amount of the securities being issued or (ii) issuance expenses that are generally paid at the time of the pricing for sales of the particular issuance, having the same or reasonably similar terms and conditions issued by similar companies of reasonably comparable credit quality.
NUI Utilities and VGDC, on an individual basis, will maintain common stock equity of at least 30% of total capitalization as shown in its most recent quarterly balance sheet.
Except for securities issued for the purpose of funding Money Pool operations, no guarantees or other securities, other than common stock, may be issued in reliance upon the authorization granted by the Commission under this Application, unless (i) the security to be issued, if rated, is rated investment grade; (ii) all outstanding securities of the issuer that are rated, are rated investment grade; and (iii) all outstanding securities of AGL Resources that are rated, are rated investment grade. For purposes of this provision, a security will be deemed to be rated “investment grade” if it is rated investment grade by at least one nationally recognized statistical rating organization (“NRSRO”), as that term is used in paragraphs (c)(2)(vi)(E), (F) and (H) of Rule 15c3-1 under the Securities Exchange Act of 1934, as amended (“1934 Act”). Applicants request that the Commission reserve jurisdiction over the issuance of any such securities that are rated below investment grade. Applicants further request that the Commission reserve jurisdiction over the issuance of any guarantee or other securities in reliance upon the authorization granted by the Commission under this Application at any time that the conditions set forth in clauses (i) through (iii) above are not satisfied. A security issued prior to the consummation of the Merger, under the Act or in accordance with any applicable rule, regulation or order of the Commission under the Act, would remain validly issued notwithstanding a change, subsequent to the issuance, in the rating of that security or other securities issued by any company in the AGL Resources system.
NUI requests authorization to issue and sell debt and equity securities to AGL Resources and/or AGL Resources' financing subsidiaries as necessary to finance the authorized and permitted businesses of NUI and the NUI Subsidiaries. In particular, NUI requests authorization to issue Intercompany Notes to AGL Resources or AGL Resources' financing subsidiaries in connection with the refinancing of NUI's pre-Merger indebtedness. A form of Intercompany Note, containing the applicable terms and conditions is attached to the Application in Exhibit L-2. NUI states that Intercompany Notes would be issued by NUI in an amount at any one time outstanding of up to $285 million. NUI states that it would not issue debt or equity securities to third-party, unaffiliated entities post-Merger without seeking subsequent Commission authorization. NUI also requests authorization to acquire the securities of its direct and indirect subsidiaries and to extend credit thereto for purposes of financing these companies' authorized and permitted businesses in an aggregate amount outstanding during the Authorization Period not to exceed $300 million.
Applicants request authorization for NUI Utilities and VGDC to issue intercompany debt, commercial paper, secured or unsecured bank loans and borrowings under the Utility Money Pool (“Utility Short-Term Debt”), all with terms of less than a year, in an aggregate amount of up to $600 million and $250 million, respectively, during the Authorization Period. Applicants state that all Utility Short-Term Debt will be subject to the Financing Limitations. Applicants request authorization for NUI Utilities and VGDC to issue unsecured and secured short-term debt to meet the companies' working capital needs. Applicants state that NUI Utilities and VGDC would issue secured short-term debt only in circumstances when the issuer can expect a savings in costs over the issuance of unsecured short-term debt or when unsecured credit is unavailable, except at a higher cost than secured short-term debt. Applicants anticipate that the collateral offered as security would generally be limited to short-term assets such as the issuer's inventory and/or accounts receivable.
If NUI Utilities or VGDC elect to issue commercial paper, either under rule 52 of the Act or under an applicable Commission order, NUI Utilities and VGDC request authorization to be made a party to any AGL Resources' credit facility as back-up to the commercial paper.
NUI Utilities requests authorization to issue Intercompany Notes to AGL Resources or a financing subsidiary of AGL Resources in connection with the refinancing of NUI Utilities pre-Merger indebtedness. Applicants state that NUI Utilities would issue Intercompany Notes in an amount at any one time outstanding of up to $275 million. Applicants request that the Intercompany Notes issued by NUI Utilities be for terms longer than one year and accordingly the Intercompany Note would not count against the NUI Utilities' Short-Term Debt stated above.
Applicants request authorization for NUI Utilities and VGDC to participate in AGL Resources' Utility Money Pool and to make unsecured short-term borrowings from the Utility Money Pool, to contribute surplus funds to the Utility Money Pool, lend and extend credit to, and acquire promissory notes from, one another through the Utility Money Pool subject to the Financing Limiations.
Specifically, Applicants state that the Utility Money Pool funds are available for short-term loans to the Utility Money Pool participants from time to time through: (i) Surplus funds in the treasuries of participants and (ii) proceeds received by the Utility Money Pool participants from the sale of commercial paper and borrowings from banks (“External Funds”). Funds are made available from sources in the order that AGL Services, as the administrator under the Utility Money Pool Agreement, determines would result in a lower cost of borrowing compared to the cost that would be incurred by the borrowing participants individually in connection with external short-term borrowings, consistent with the individual borrowing needs and financial standing of Utility Money Pool participants that invest funds in the Utility Money Pool.
Each Utility Money Pool borrower (“Utility Borrower”) which borrows through the Utility Money Pool will
Funds not required by the Utility Money Pool to make loans (with the exception of funds required to satisfy the Utility Money Pool's liquidity requirements) are ordinarily invested in one or more short-term investments, including: (i) Obligations issued or guaranteed by the U.S. government and/or its agencies and instrumentalities; (ii) commercial paper; (iii) certificates of deposit; (iv) bankers' acceptances; (v) repurchase agreements; (vi) tax exempt notes; (vii) tax exempt bonds; (viii) tax exempt preferred stock and (ix) other investments that are permitted by section 9(c) of the Act and rule 40.
Each Utility Borrower receiving a loan through the Utility Money Pool is required to repay the principal amount of the loan, together with all interest accrued, on demand and in any event within one year after the date of the loan. All loans made through the Utility Money Pool may be prepaid by the borrower without premium or penalty and without prior notice.
In the Financing Order, AGL Resources and the AGL Nonutility Subsidiaries were granted authorization to operate a nonutility money pool (“Nonutility Money Pool”), and the AGL Nonutility Subsidiaries were authorized to make unsecured short-term borrowings from the Nonutility Money Pool, to contribute surplus funds to the Nonutility Money Pool, and to lend and extend credit to, and to acquire promissory notes from, one another through the Nonutility Money Pool subject to the terms and conditions set forth in the Financing Order. Applicants request that, following the Merger, the NUI Nonutilities be authorized to participate in the Nonutility Money Pool under the same terms and conditions as the AGL Nonutility Subsidiaries.
AGL Resources and NUI would continue to contribute surplus funds and to lend and extend credit to the Utility Money Pool and the Nonutility Money Pool. AGL Resources and NUI will not borrow from either the Utility Money Pool or the Nonutility Money Pool. AGL Services will continue to serve as administrator for both the Utility Money Pool and the Nonutility Money Pool and will provide the administrative services at cost.
Applicants request authorization for AGL Resources to guarantee the obligations of NUI and the NUI Subsidiaries. In addition, Applicants request authority for NUI, NUI Utilities, VGC and VGDC to enter into guarantees, obtain letters of credit, enter into expense agreements or provide credit support with respect to obligations of their subsidiaries (“Guarantees”) subject to the Financing Limitations in the amount of $150 million and $100 million, with respect to NUI Utilities and VGDC, and in the amount of $300 million and $75 million with respect to NUI and VGC. These Guarantees may take the form of, among others, direct guarantees, reimbursement undertakings under letters of credit, “keep well” undertakings, agreements to indemnify, expense reimbursement agreements, and credit support with respect to the obligations of the subsidiary companies as may be appropriate to enable the system companies to carry on their respective authorized or permitted businesses. Applicants state that any Guarantee that is outstanding at the end of the Authorization Period will remain in force until it expires or terminates in accordance with its terms. Certain Guarantees may be in support of obligations that are not capable of exact quantification. In these cases, for purposes of measuring compliance with the appropriate Guarantee limit the exposure under a Guarantee would be determined by appropriate means, including estimation of exposure based on potential payment amounts. Applicants request that NUI and the NUI Subsidiaries be charged a fee for any Guarantee provided on its behalf that is not greater than the cost, if any, incurred by the guarantor in obtaining the liquidity necessary to perform the Guarantee for the period of time the Guarantee remains outstanding.
Applicants request authorization for NUI, NUI Utilities, VGC and VGDC to enter into, perform, purchase and sell financial instruments intended to manage the volatility of interest rates, including but not limited to interest rate swaps, caps, floors, collars and forward agreements or any other similar agreements (“Hedging Instruments”). Hedging Instruments, in addition to the foregoing sentence, may also include the issuance of structured notes (
In addition, Applicants request authorization for NUI, NUI Utilities, VGC and VGDC to enter into Hedging Instruments with respect to anticipated debt offerings (“Anticipatory Hedges”), subject to certain limitations and restrictions. Anticipatory Hedges would only be entered into with Approved Counterparties, and would be used to fix and/or limit the interest rate risk associated with any new issuance through: (i) A forward sale of exchange-
Hedging Instruments may be executed on-exchange (“On-Exchange Trades”) with brokers through the opening of futures and/or options positions traded on the Chicago Board of Trade, the opening of over-the-counter positions with one or more counterparties (“Off-Exchange Trades”), or a combination of On-Exchange Trades and Off-Exchange Trades. The companies will determine the optimal structure of each Hedging Instrument transaction at the time of execution.
Applicants request authorization to change the terms of the authorized capital stock of NUI and any wholly owned subsidiary of NUI authorized capital stock by an amount deemed appropriate by AGL Resources or other intermediate parent company subject to the following conditions. A subsidiary will be able to change the par value, or change between par value and no-par stock, without additional Commission approval. Any action by NUI Utilities or VGDC would be subject to and would only be taken upon the receipt of any necessary approvals by the state commission in the state or states where the utility subsidiary is incorporated and doing business. In addition, NUI Utilities and VGDC will maintain, during the Authorization Period, a common equity capitalization of at least 30%.
Applicants request authorization for NUI and the NUI Nonutilities to pay dividends from time to time through the Authorization Period, out of capital and unearned surplus. Applicants state that NUI and the NUI Nonutilities will not declare or pay any dividend out of capital or unearned surplus unless it: (i) Has received excess cash as a result of the sale of some or all of its assets; (ii) has engaged in a restructuring or reorganization and/or (iii) is returning capital to an associate company. In addition, NUI or an NUI Nonutility would only declare or pay dividends to the extent permitted under applicable corporate law and state or national law applicable in the jurisdiction where each company is organized, and any applicable financing covenants.
Applicants request that the Commission reserve jurisdiction over NUI Utilities' payment of dividends out of capital and unearned surplus in an amount up to its pre-merger retained earnings and out of post-merger earnings without regard to any deductions attributable to the impairment of goodwill pending the completion of the record.
Applicants represent that NUI Utilities will not declare or pay any dividend out of capital or unearned surplus in contravention of any law restricting the payment of dividends. NUI Utilities also will comply with the terms of any credit agreements and indentures that restrict the amount and timing of distributions to shareholders. NUI Utilities would not pay dividends out of capital or unearned surplus if to do so would cause its equity to decline to less than 30% of total capitalization.
Applicants request authorization for NUI Utilities to organize new corporations, trusts, partnerships or other entities (“Financing Entities”), or to use existing AGL Resources’ Financing Entities that will facilitate financings by issuing short-term debt, long-term debt, preferred securities, equity securities or other securities to third parties and transfer the proceeds of these financings to their respective parents.
Applicants also request authorization for NUI Utilities to: (i) Issue debentures or other evidences of indebtedness to Financing Entities in return for the proceeds of the financing; (ii) acquire voting interests or equity securities issued by the Financing Entities to establish ownership of the Financing Entities (the equity portion of the entity generally being created through a capital contribution or the purchase of equity securities, ranging from one to three percent of the capitalization of the Financing Entities) and (iii) guarantee a Financing Entity's obligations in connection with a financing transaction. Any amounts issued by Financing Entities to a third party under this authorization will be included in the overall external financing limitation authorized herein for the immediate parent of the Financing Entity. However, the underlying intra-system mirror debt and parent guarantee shall not be so included. NUI Utilities also requests authorization to enter into support or expense agreements (“Expense Agreement”) with Financing Entities to pay the expenses of any Financing Entity. In cases where it is necessary or desirable to ensure legal separation for purposes of isolating a Financing Entity from its parent or another subsidiary for bankruptcy purposes, the ratings agencies require that any Expense Agreement whereby the parent or subsidiary provides services related to the financing to the Financing Entity be at a price, not to exceed a market price, consistent with similar services for parties with comparable credit quality and terms entered into by other companies so that a successor service provider could assume the duties of the parent or subsidiary, in the event of the bankruptcy of the parent or subsidiary, without interruption or an increase of fees. Applicants request authorization for NUI Utilities, under section 13(b) of the Act and rules 87 and 90, to provide such services at a charge not to exceed a market price but only for so long as the Expense Agreement established by the Financing Entity is in place.
Applicants request authorization for NUI to acquire, directly or indirectly, the securities of one or more entities (“Intermediate Subsidiaries”), which would be organized exclusively for the purpose of acquiring, holding and/or financing the acquisition of the securities of or other interest in one or more exempt wholesale generators, as that term is defined in section 32 of the Act (“EWGs”), foreign utility companies as that term is defined in section 33 of the Act (“FUCOs”), companies exempt under rule 58 (“Rule 58 Companies”), exempt telecommunications companies, as that term is defined under section 34 of the Act, (“ETCs”) or other non-exempt nonutility subsidiaries. These Intermediate Subsidiaries may also engage in certain administrative activities (“Administrative Activities”) and development activities (“Development Activities”).
Administrative Activities include ongoing personnel, accounting, engineering, legal, financial and other support activities necessary to manage investments in nonutility subsidiaries. Development Activities are limited to due diligence and design review; market studies; preliminary engineering; site inspection; preparation of bid proposals, including, in connection therewith, posting of bid bonds; application for required permits and/or regulatory approvals; acquisition of site options and options on other necessary rights;
An Intermediate Subsidiary may be organized, among other things: (i) To facilitate the making of bids or proposals to develop or acquire an interest in any EWG, FUCO, Rule 58 Company, ETC or other nonutility subsidiary; (ii) after the award of such a bid proposal, to facilitate closing on the purchase or financing of an acquired company; (iii) at any time subsequent to the consummation of an acquisition of an interest in any such company to, among other things, effect an adjustment in the respective ownership interests in such business held by NUI and non-affiliated investors; (iv) to facilitate the sale of ownership interests in one or more acquired non-utility companies; (v) to comply with applicable laws of foreign jurisdictions limiting or otherwise relating to the ownership of domestic companies by foreign nationals; (vi) as a part of tax planning in order to limit NUI's exposure to taxes; (vii) to further insulate NUI, NUI Utilities and VGDC from operational or other business risks that may be associated with investments in non-utility companies or (viii) for other lawful business purposes.
Investments in Intermediate Subsidiaries may take the form of any combination of the following: (i) Purchases of capital shares, partnership interests, member interests in limited liability companies, trust certificates or other forms of equity interests; (ii) capital contributions; (iii) open account advances with or without interest; (iv) loans and (v) guarantees issued, provided or arranged in respect of the securities or other obligations of any Intermediate Subsidiaries. Funds for any direct or indirect investment in any Intermediate Subsidiary will be derived from: (i) Financings authorized in this proceeding; (ii) any appropriate future debt or equity securities issuance authorization obtained by NUI from the Commission and (iii) other available cash resources, including proceeds of securities sales by the NUI Nonutilities under rule 52. To the extent that NUI provides funds or Guarantees directly or indirectly to an Intermediate Subsidiary that are used for the purpose of making an investment in any EWG, FUCO or Rule 58 Company, the amount of the funds or Guarantees are included in NUI's “aggregate investment” in these entities, as calculated in accordance with rule 53 or rule 58, as applicable.
AGL Resources requests that its authorization, in the Financing Order, to make expenditures on Development Activities, as defined above, in an aggregate amount of up to $600 million be extended to include the NUI Nonutilities.
Neither AGL Resources nor any of its subsidiaries presently has an interest in any EWG or FUCO.
AGL Resources and NUI request authorization to consolidate or otherwise reorganize all or any part of its direct and indirect ownership interests in the NUI Nonutilities, and the activities and functions related to these investments. To effect any consolidation or other reorganization, AGL Resources or NUI may wish to merge or contribute the equity securities of one NUI Nonutility to another NUI Nonutility (including a newly formed Intermediate Subsidiary) or sell (or cause a nonutility subsidiary to sell) the equity securities or all or part of the assets of one nonutility subsidiary to another one. To the extent that these transactions are not otherwise exempt under the Act or rules thereunder, AGL Resources and NUI request authorization to consolidate or otherwise reorganize under one or more direct or indirect Intermediate Subsidiaries, their ownership interests in existing and future NUI Nonutility. These transactions may take the form of a nonutility subsidiary selling, contributing, or transferring the equity securities of a subsidiary or all or part of a subsidiary's assets as a dividend to an Intermediate Subsidiary or to another nonutility subsidiary, and the acquisition, directly or indirectly, of the equity securities or assets of the subsidiary, either by purchase or by receipt of a dividend. The purchasing nonutility subsidiary in any transaction structured as an intrasystem sale of equity securities or assets may execute and deliver its promissory note evidencing all or a portion of the consideration given. Each transaction would be carried out in compliance with all applicable laws and accounting requirements.
Applicants state that Exhibit J-1 to the Application describes AGL Resources' current plans for retaining or divesting each of the NUI Nonutilities and discusses the legal basis for retention where applicable. Applicants state that numerous NUI Nonutilities referenced in Exhibit J-1 will be wound down, liquidated or dissolved. AGL Resources will endeavor to exit these investments as soon as is prudent, giving due regard for the need to insulate the rest of the AGL Resources group from any liabilities or obligations that may be associated with these companies.
In addition, AGL Resources seeks authorization to retain UBS and for UBS to continue to provide services to NUI Utilities under its current arrangement for no less than two years after the date of the order in this matter. During that time, AGL Resources will endeavor to either restructure the existing UBS services agreements with NUI Utilities so that these services may be provided at cost (provided that the modification is practicable given UBS' other contractual arrangements), or would otherwise endeavor to consolidate the applicable portions of UBS's current operations into NUI Utilities.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
FICC is seeking to amend the rules of its Government Securities Division (“GSD”) to broaden its trade submission requirements and to prohibit pre-netting activities of certain affiliates of its members.
In its filing with the Commission, FICC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FICC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
Through a recent survey of GSD members and through other means, FICC has learned that there is a great deal of Government securities activity that is currently being executed or cleared and guaranteed as to settlement by affiliates of FICC's netting members, some of which are active market participants, and is not being submitted to FICC. This currently does not represent a violation of the GSD's rules, which require that netting members submit their own eligible trading activity but do not address member affiliate trading activity.
FICC has also determined that its trade submission requirements have been ineffective in preventing the “pre-netting” of otherwise netting-eligible activity by netting members as well as their affiliates. In fact, FICC believes that certain members may be purposefully funneling eligible transactions through their non-member affiliates in order to avoid having to submit these transactions to the clearing corporation. Such pre-netting practices, which may take the form of “internalization,” “summarization,” or “compression,” prevent the submission to the clearing corporation of transactions on a trade-by-trade basis.
The submission to FICC of eligible activity of each GSD netting member and that of its affiliates that are active market participants is necessary to preserve the integrity of the netting process and the safety and soundness of the overall clearance and settlement process. The consequence of a gap in FICC's trade submission requirements is the introduction of significant risk issues for FICC and the Government securities marketplace as a whole.
The GSD employs several methods to reduce risk including collateral and mark-to-market requirements and various monitoring procedures. These methods have been highly successful in protecting the GSD and its members from loss. The most powerful risk management tool employed by the GSD is its multilateral netting by novation process, which eliminates the need to settle the large majority of receive and deliver obligations created by the trading activity of members. (For example, each business day during the first half of 2004, the netting process safely eliminated the settlement risk posed by an average of about 73,000 government securities transactions worth approximately $1.82 trillion.) The integrity of this netting process depends upon the submission to the GSD of all eligible activity on a trade-by-trade basis.
For this reason, FICC, similar to other registered clearing agencies, seeks to prohibit pre-netting activity on the part of members.
In addition, Rule 5, Comparison System, Section 4, Submission Size Alternatives, essentially provides that every non-GCF Repo trade must be submitted to FICC “in the full size and in the exact amount in which the trade was executed.”
Management of the risk of trades that are not submitted to the clearing corporation falls to each direct counterparty including ones that may have insufficient capital or financial strength and/or inadequate internal processes to mitigate such risk. Counterparty risk is not managed in a centralized, transparent manner, and the myriad of risk protections built into the FICC process that have been supported by the industry and have been approved by the Commission are not available.
Eligible trades that are not submitted to FICC introduce operational risk, including “9-11” type risk, to the extent such trades are not submitted to FICC for comparison and guaranteed settlement within minutes of execution through the Real-Time Trade Matching System. Should a catastrophic event occur after trade execution, submission of trade data could be significantly delayed or such data even lost. Trade guaranty would also not be obtained immediately, if at all, because the trade did not compare.
It is noteworthy that the GSD now receives approximately ninety-eight percent of its trade data on a real-time basis. That development alone has significantly improved the GSD's ability to timely manage the risk arising from the over two trillion dollars of daily activity in the Government securities marketplace.
Failure of eligible activity to be submitted to FICC increases systemic risk to the clearance and settlement system for Government securities to the extent that these practices reduce the number of trades and provide for clearly enforceable netting rights in the event of member insolvency. In an insolvency proceeding of a netting member of the GSD under U.S. law, the clearing organization netting provisions of the Federal Deposit Insurance Corporation Improvement Act of 1991 (“FDICIA”) afford clear netting rights to the GSD as a registered securities clearing agency. The United States Bankruptcy Code (“Code”) and the Federal Deposit Insurance Act (“FDIA”), to the extent applicable, also provide a number of protections to registered securities clearing agencies such as FICC. Although FDICIA, the Code, and the FDIA also provide similar safe harbors protecting netting rights with respect to certain securities contracts when not submitted to and novated through the GSD and other registered clearing agencies, their applicability is highly dependent upon the types of entities involved and the nature and adequacy of bilateral documentation.
Thus, pre-netting activity has the potential to increase risk absent the capacity for comprehensive monitoring to ensure that such documentation and entities are in fact used throughout the Government securities marketplace.
Furthermore, as a practical matter, to the extent that there are any ambiguities in the application of relevant netting or close-out rights, FICC would expect that in general a bankruptcy court or other insolvency tribunal would be more deferential to close-out and netting by a registered securities clearing agency such as FICC than it would be to close-out and netting by another market participant.
The failure of netting members to submit eligible trades to FICC decreases the ability of FICC to assist in the resolution of fail problems. The significant fail problem incurred by the industry over the past year with regard to the May 2013 10-Year Note, and similar situations that may occur in the future, likely could be mitigated by submission of eligible data on behalf of non-member affiliates of GSD members by allowing FICC to identify and resolve round robin fail scenarios involving these affiliates.
The failure of FICC to receive all eligible trading activity of an active market participant denigrates FICC's vital multilateral netting process and leads to systemic risk and to FICC not being in as good a position to prevent a market crisis. Given the enormous and growing amount of activity in the government securities marketplace and resultant huge settlement risks, the proposed trade submission requirements and pre-netting prohibitions are the logical next steps for enhancing FICC's netting and risk management processes and ensuring that FICC can continue to perform its vital risk management role for the Government securities marketplace.
As a result, FICC is proposing to broaden its trade submission standards by requiring the submission of data on trades executed or cleared and guaranteed as to their settlement by certain affiliates of members.
Specifically, the proposed rule change would apply to a GSD member's non-member affiliates that are registered broker-dealers, banks, or futures commission merchants organized in the United States (“covered affiliates”). The proposed rule change would require members to submit, on a trade-by-trade basis, eligible trades, both buy-sells and repos, executed by their covered affiliates with other netting members or the other members' covered affiliates. The proposed rule change would also require members to submit, on a trade-by-trade basis, eligible trades cleared and guaranteed as to their settlement by their covered affiliates. The proposed rule change is limited to covered affiliates because these are the types of entities that comprise the majority of GSD netting members, and the failure to submit trades executed by registered broker-dealers, banks, and futures commission merchants organized in the United States has given rise to the systemic risk concerns discussed above.
It is important to note that covered affiliates will not be required to join FICC as members. As such, FICC is affording members and their affiliates the flexibility of choosing to have their trades processed by FICC either through direct membership or through a correspondent clearing relationship with an affiliate or other entity. In addition, the proposed rule filing would exempt the following from its coverage, which FICC believes do not raise systemic risk concerns of the type described above: (1) An affiliate that engages in
The proposed rule filing would provide that failure to abide by the new trade submission requirements would trigger the disciplinary consequences currently in the GSD rules, which can ultimately result in termination of membership.
FICC believes that the proposed rule change is consistent with the requirements of Section 17A of the Act
FICC does not believe that the proposed rule change would have any impact or impose any burden on competition.
Written comments relating to the proposed rule change have not yet been
Within thirty five days of the date of publication of this notice in the
(a) By order approve the proposed rule change or
(b) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-FICC-2004-15. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The MSRB has filed with the SEC a proposal to create the Real-Time Transaction Price Service (“Real-Time Service” or “Service”) to disseminate municipal securities transaction prices in real-time. An annual fee of $5,000 is proposed for a subscription to the Service. The Service would be part of the MSRB's Real-Time Transaction Reporting System, which is planned for implementation in January 2005. The text of the proposal is set forth below.
In January 2005, the MSRB plans to begin operation of the Real-Time Transaction Price Service to disseminate municipal securities transaction prices in real-time. The Service will be available by subscription for an annual fee of $5,000 and will be a part of the MSRB's Real-Time Transaction Reporting System (“RTRS”). RTRS will bring real-time price transparency to the municipal securities market and will make other improvements in the transparency and market surveillance functions of the MSRB's current transaction reporting program.
The Service will be available by subscription and will provide a real-time stream of data representing municipal securities transaction reports made by brokers, dealers and municipal securities dealers (“dealers”) to RTRS.
Certain trade reports made by dealers, which are coded by the dealers to indicate that the trade is for a specific reason not done at a market price, will not be disseminated but will be available to regulators as part of the surveillance function offered by RTRS. Certain other types of “transactions” that are required to be reported exclusively for audit trail purposes (relating to clearing brokers and their correspondents in certain fully-disclosed clearing arrangements where the correspondent does not take a principal position) also will not be disseminated but will be available to regulators.
The real-time data stream will be in the form of messages and will be available either over the Internet or by leased line, at the subscriber's option.
Hours of Operation. The “RTRS Business Day,” during which time dealers are required by Rule G-14 to submit trade reports within 15 minutes of execution, begins at 7:30 a.m. and ends at 6:30 p.m.
Transaction Data Disseminated. The data contained in each transaction price report sent to subscribers is discussed in detail in the RTRS filing.
Type of message sent in the real-time broadcast (
Unique sequential number of the trade message. If more than one message has been published for a trade due to modification or cancellation, the trade is uniquely identified by the RTRS ID described below.
The RTRS ID for the transaction. This may be used to apply subsequent modifications and cancellations to an initial transaction.
Type of trade: An inter-dealer trade, a purchase from a customer by a dealer, or a sale to a customer by a dealer.
An indicator showing whether the message is a new transaction, or modifies or cancels a previously disseminated transaction.
The CUSIP number of the issue traded.
Text description of the security obtained from the CUSIP Service Bureau.
Dated date of the issue traded obtained from the CUSIP Service Bureau.
Interest rate of the issue traded (blank for zero-coupon bonds) obtained from the CUSIP Service Bureau.
Maturity date of the issue traded obtained from the CUSIP Service Bureau.
Indicates whether the issue traded on or before the issue's initial settlement date obtained from Standard and Poor's.
For new issues where the initial settlement date is not known at the time of execution, this field is a date 15 business days after trade date. If this field is populated there will be no data in the settlement date field.
The date the trade was executed as reported by the dealer.
The time of trade execution as reported by the dealer.
The settlement date of the trade if reported by the dealer will be shown. If this field is populated there will be no data in assumed settlement date field.
The par value of the trade as reported by the dealer will be shown. Trades with a par amount over $1 million will show par value as “1MM+” until five days after the stated trade date.
The dollar price of the trade will be shown, as reported by the dealer. In most inter-dealer trade reports, the dealer is not required to report a dollar price and the dollar price shown is calculated by the MSRB from the final monies, par value and accrued interest reported for the trade.
For customer trades, this field shows the yield of the trade as reported by the dealer. This normally is the same yield that would appear on a confirmation of the trade. For some customer trades (
An indicator used in inter-dealer transactions that were executed by a broker's broker, including whether it was a purchase or sale by the broker's broker.
An indicator that the transaction price was a “weighted average price” based on multiple transactions done at
An indicator showing that the transaction price was reported as a trade in a new issue by a syndicate manager or syndicate member at the list offering price on the first day of trading.
The date the message was published to subscribers.
The time the message was first disseminated to subscribers.
Version number of the message or file format used in the message or file.
The Real-Time Service will be available by subscription for an annual fee of $5,000.
In addition to offering the Real-Time Service, RTRS will continue to provide the primary transparency reports that have been developed within the current transaction reporting program. The data fields in these products will be modified for consistency with the real-time transaction data fields noted above and formatted to reflect that the data is being disseminated in files containing multiple transactions, rather than in real-time, “trade by trade,” messages.
The existing “Trade Detail Report” (also known as the “T+1 Report”) contains the trade reports for a specific trade date and is made available at approximately 6:00 a.m. on the business day following trade date (“T+1”). It is provided in the form of an electronic file and is made available over the Internet. After RTRS is operational, the Trade Detail Report will be reformatted and renamed the “T+1 Transaction Price Service.” Subscriptions will remain free to any interested person.
The existing “Daily Comprehensive Report” also is used to disseminate trade reports for a specific trade date, but is made available five business days after that trade date (“T+5”).
The MSRB also currently makes a “Monthly Comprehensive Report” available. Upon SEC approval of File No. SR-MSRB-2004-05 (September 15, 2004), transaction data provided by this service will continue to be made available through the MSRB's proposed Historical Data Product.
In its filing with the Commission, the MSRB included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposal. The text of these statements may be examined at the places specified in Item IV below. The MSRB has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On August 31, 2004, the SEC approved a proposed rule change relating to the MSRB's implementation of real-time transaction reporting and price dissemination—the Real-Time Transaction Reporting System or “RTRS.”
The text of the rule change can be found, along with a description of the RTRS facility, in the MSRB's notice announcing its filing with the SEC.
In its RTRS filing, the MSRB indicated that it would file with the SEC the specific implementation date in January 2005 for the beginning of RTRS operations. The MSRB expects to do this in November 2004 when more is known about the progress of dealer certification testing. The RTRS filing included rule amendments that require most dealers to schedule their certification testing prior to October 1, 2004.
The MSRB proposes to charge $5,000 for an annual subscription to the Service. The MSRB encourages the redistribution of the data obtained through RTRS and believes that achieving the widest possible dissemination of transaction information will help ensure the fairest and most accurate pricing of municipal securities transactions. Toward this end, the MSRB will not impose a charge on subscribers for such redistribution. The MSRB anticipates that information vendors and other entities that make securities data available to the securities industry and the public will subscribe and re-disseminate the data, either in an unmodified form, or with enhancements, for a relatively low cost or for free. After its first year of operation, the MSRB will review the usage of the real-time data feed to ensure that the data is being made available in a cost-effective manner to municipal market participants and others who need the data.
Subscribers will be able to choose one of two telecommunications methods: leased telephone line or Internet. Subscribers will also be permitted to choose one of two means of receiving real-time messages: via a proprietary application program for electronic message transmission called “MQ,” or a non-proprietary “TCP Socket” connection. Subscribers will be responsible for the cost of their telecommunication choice and for establishing and maintaining “firewalls” to keep computer systems secure.
The MSRB currently makes several kinds of transaction reports available to the public through its Transaction Report System:
After RTRS becomes operational in January 2005, the MSRB will continue producing these data products and modify them as necessary to reflect new data elements in RTRS trade reports. However, approximately six months thereafter, the MSRB intends to retire the inter-dealer and combined reports, and combine the monthly and daily comprehensive reports into one service.
The MSRB believes that the proposed rule change is consistent with section 15B(b)(2)(C) of the Act,
The MSRB does not believe that the proposed rule change will result in any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-MSRB-2004-06. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq is filing the proposed rule change to modify in four ways the opening process for Nasdaq securities to: (1) Open the trading of Nasdaq stocks that have been the subject of a trading halt using the same process by which it will open trading at 9:30 a.m. for Nasdaq stocks that are not designated to participate in the Opening Cross; (2) amend the last tie-breaker that will be used to determine the price at which the Nasdaq Opening Cross will occur; (3)
(a) Definitions. For the purposes of this rule the term:
(1) No Change.
(2) The Order Imbalance Indicator shall disseminate three prices, defined as follows:
([a]
(i) No Change.
(ii) No Change.
(iii) If more than one price exists under subparagraph (ii), the Inside Match Price shall mean the price that minimizes the distance from the
([b]
([c]
(3)-(7) No Change.
(8) “Regular Hours Orders” shall mean any order that may be entered into the system and designated with a time-in-force of IOC, DAY, or GTC. Regular Hours Orders shall be available for execution only during the opening and then during normal trading hours. Regular Hours Orders shall be designated as “Early Regular Hours Orders” if entered into the system prior to 9:28 a.m. and designated as “Late Regular Hours Orders” if entered into the system at 9:28 a.m. or after.
(b) No Change.
(c) Nasdaq-listed securities that are not designated by Nasdaq to participate in the Nasdaq Opening Cross shall begin trading at 9:30 a.m.
(1) At 9:30
(2)-(4) No Change.
(d) Processing of Nasdaq Opening Cross. For certain Nasdaq-listed securities designated by Nasdaq, the Nasdaq Opening Cross shall occur at 9:30, and regular hours trading shall commence when the Nasdaq Opening Cross concludes.
(1) No Change.
(2)
(A) No Change.
(B) No Change.
(C) If more than one price exists under subparagraph (B), the Nasdaq Opening Cross shall occur at the price that minimizes the distance from the
(D) No Change.
(3) No Change.
(4) No Change.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq has previously proposed to create two new voluntary opening processes—the Modified Opening Process and the Nasdaq Opening Cross—that together constitute the beginning of the trading day for all Nasdaq-listed securities. The Commission approved that proposal on September 16, 2004.
First, Nasdaq proposes to open the trading of Nasdaq stocks that have been the subject of a trading halt using the same process by which it will open trading at 9:30 a.m. for Nasdaq stocks that are not designated to participate in the Opening Cross. NASD Rule 4704(c) specifies that the opening process for stocks that are not included in the Opening Cross will begin at 9:30 a.m. Nasdaq inadvertently failed explicitly to permit stocks to open after 9:30 a.m., as can occur when trading has been halted due, for example, to material news or the release of an initial public offering.
Nasdaq believes that the Modified Opening Process (“MOP”), which the Commission has already found to be consistent with the Act should be employed equally for all non-crossing stocks, and that Nasdaq's rules should explicitly so state. Nasdaq believes that the MOP would improve the opening of trading following a trading halt under NASD Rule 4120. The MOP is designed to create an unlocked and uncrossed bid and offer for the opening of trading, and to execute quotes and orders that would lock or cross the market in a fair and orderly manner. The MOP would work identically and equally well at the open after a trading halt, regardless of whether the halt is initiated under NASD Rule 4120(a)(1), (4), (5), (6), or (7).
Second, Nasdaq proposes to amend the last tie-breaker that will be used to determine the price at which the Nasdaq Opening Cross will occur. In its recently-approved proposal, Nasdaq specified that the Nasdaq Opening Cross would occur at the price that maximizes the number of Market on Open (“MOO”), Limit on Open (“LOO”), Opening Imbalance Only (“OIO”), Early Regular Hours orders, and executable quotes and orders in the Nasdaq Market Center to be executed or, if a tie occurs, the price that minimizes any Imbalance or, if another tie occurs, the price that
Nasdaq has determined that referring to the previous official closing price in this manner could produce an unpredictable Opening Cross Price if there is substantial price fluctuation after the previous day's close. Nasdaq has determined that the last Opening Cross tie-breaker should instead be the price that minimizes the distance from the bid-ask midpoint of the inside quotation prevailing at 9:30 a.m. This would minimize price fluctuations and leverage the additional transparency into the opening process that has been created by the Nasdaq Order Imbalance Indicator. Nasdaq believes that this outcome would be consistent with the Act and would serve investors better than the current rule.
Third, Nasdaq proposes to suspend at 9:28 a.m. the cancellation or modification of Regular Hours Orders that are entered into the Nasdaq Market Center. Currently, NASD Rule 4704 defines Regular Hours Orders either as “Early Regular Hours Orders” if entered into the system prior to 9:28 a.m. or as “Late Regular Hours Orders” if entered into the system at 9:28 a.m. or after. The current rule does not address the cancellation or modification of Regular Hours Orders as it does with MOO, LOO, and OIO orders.
In order to preserve the stability and predictability of the Nasdaq Opening Cross, Nasdaq proposes to suspend, as opposed to prohibit, the cancellation or modification of all Regular Hours Orders beginning at 9:28 a.m. As with MOO, LOO, and OIO Orders, the late cancellation or modification of a large Regular Hours Order that would otherwise participate in the Opening Cross could substantially impact the Opening Cross Price, surprising market participants, diminishing market quality and potentially harming investors.
Nasdaq would not prohibit the cancellation or modification of Regular Hours Orders, but rather would suspend the effectiveness of such cancellation and modification requests until after the completion of the Nasdaq Opening Cross. If a Regular Hours Order is not executed in the Nasdaq Opening Cross, the cancellation or modification request would immediately be processed in accordance with its terms and the order modified or returned to the entering party.
Fourth, Nasdaq proposes to modify the process for calculating the Nasdaq Official Opening Price (“NOOP”). Currently, the NOOP is equal to the reported price of the first trade executed by the execution functionality of the Nasdaq Market Center based upon orders that are in queue when Nasdaq begins trading at 9:30 a.m. (“Opening Match”). If there is no Opening Match within five seconds after the system opens at 9:30 a.m., the NOOP is based upon the first, last sale eligible trade that is submitted to the trade reporting functionality of the Nasdaq Market Center.
Nasdaq proposes to change from five to fifteen seconds the length of time Nasdaq would wait for an Opening Match within Nasdaq's execution functionality before looking for a last sale eligible trade submitted to Nasdaq's trade reporting functionality. Nasdaq believes that this additional ten seconds is needed due to the added time that may elapse while Nasdaq's execution functionality is processing the Nasdaq Opening Cross. In other words, if Nasdaq were to apply the current five-second standard and the Nasdaq's Opening Cross were to take more than five seconds to process, the Opening Cross price would not qualify as the NOOP. If the Opening Cross were to be processed sooner than fifteen seconds or, in the case of non-crossing stocks, the system were to execute a trade sooner than fifteen seconds, the NOOP would be calculated at that time rather than waiting the full fifteen seconds.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A of the Act,
Nasdaq does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Nasdaq neither solicited nor received written comments with respect to the proposed rule change.
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors or the public interest;
(ii) Impose any significant burden on competition; and
(iii) Become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest,
Nasdaq has requested that the Commission waive the 30-day operative delay. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because it will allow Nasdaq to conduct its planned testing and roll-out schedule for the modified opening without delay. For this reason, the Commission designates the proposal to be effective and operative upon filing with the Commission.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-NASD-2004-152. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Selective Service System.
Notice.
In accordance with the Privacy Act of 1974 (5 U.S.C. 522a), as amended by the Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), and the Office of Management and Budget (OMB) Guidelines on the Conduct of Matching Programs (54 FR 25818 (June 19, 1989)), and OMB Bulletin 89-22, the following information is provided:
1.
2.
3.
Section 484(n) of the HEA [20 U.S.C. 1091(n)], requires the Secretary to conduct data base matches with SSS, using common demographic data elements, to enforce the Selective Service registration provisions of the Military Selective Service Act [50 U.S.C. App. 462(f)], and further states that appropriate confirmation of a person's shall fulfill the requirement to file a separate statement of compliance.
4.
1. Federal Student Aid Application File (18-11-01). Individuals covered are men born after December 31, 1959, but at least 18 years old by June 30 of the applicable award year.
2. Selective Service Registration Records (SSS 10).
5.
6.
Funding Opportunity Numbers:
(1) Study of the U.S. Institute on Religious Pluralism—ECA/A/E/USS-05-03-RP.
(2) Study of the U.S. Institute on U.S. Foreign Policy—ECA/A/E/USS-05-03-FP.
(3) Study of the U.S Institute on Contemporary American Literature—ECA/A/E/USS-05-03-AML.
(4) Study of the U.S. Institute on American Politics and Political Thought—ECA/A/E/USS-05-03-AP.
The programs, which should be six weeks in length, will be conducted during the summer of 2005 and must include an academic residency segment of at least four weeks duration at a U.S. college or university campus (or other appropriate location) and a study tour segment of not more than two weeks that should complement the learning gained during the academic residency segment.
Overall grant making authority for this program is contained in the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87-256, as amended, also known as the Fulbright-Hays Act. The purpose of the Act is “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries * * *; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations * * * and thus to assist in the development of friendly, sympathetic and peaceful relations between the United States and the other countries of the world.” The funding authority for the program above is provided through legislation.
These Study of the U.S. Institutes should provide a multinational group of up to 18 experienced foreign university faculty with a deeper understanding of U.S. society and culture, past and present. Each institute should be organized around a central theme or themes in U.S. civilization and should have a strong contemporary component. Through a combination of traditional, multi-disciplinary and interdisciplinary approaches, program content should be imaginatively integrated in order to elucidate the history and evolution of U.S. institutions and values, broadly defined. The program should also serve to illuminate contemporary political, social, and economic debates in American society.
Institutes are intended to offer foreign scholars whose professional work focuses in whole or in substantial part on the United States the opportunity to deepen their understanding of American society, culture and institutions. Their ultimate goal is to strengthen curricula and to improve the quality of teaching about the U.S. in institutions of higher learning abroad.
Programs should be six weeks in length and must include an academic residency segment of at least four weeks duration at a U.S. college or university campus (or other appropriate location). A study tour segment of not more than two weeks should also be planned and should not only directly complement but should also extend the learning gained during the academic residency segment; the study tour should include visits to one or two additional regions of the United States.
The project director or one of the key program staff responsible for the academic program must have an advanced degree in one of the following fields: political science, international relations, law, history, sociology, literature, American studies, and/or other disciplines or sub-disciplines related to the program themes. Staff escorts traveling under the cooperative agreement must have demonstrated qualifications for this service. Programs must conform with Bureau requirements and guidelines outlined in the Solicitation Package. Bureau programs are subject to the availability of funds.
All institutes should be designed as intensive, academically rigorous seminars intended for an experienced group of fellow scholars from outside the United States. The institutes should be organized through an integrated series of lectures, readings, seminar discussions, regional travel and site visits, and they should also include some opportunity for limited but well-directed independent research. Applicants are encouraged to design thematically coherent programs in ways that draw upon the particular strengths, faculty and resources of their institutions as well as upon the nationally recognized expertise of scholars and other experts throughout the United States. All Study of the United States Institute programs, regardless of their particular thematic focus, should seek to:
1. Provide participants with a survey of contemporary scholarship within the institutes governing academic discipline(s), delineating the current scholarly debate within the field. In this regard the seminar should indicate how prevailing academic practice in the discipline represents both a continuation of and a departure from past scholarly trends and practices. It is expected that presenters from other institutions will be brought in, as appropriate. Please note that the ways these alternative schools of thought will be presented should be clearly described in the proposal;
2. Bring an interdisciplinary or multi-disciplinary focus to bear on the program content;
3. Give participants a multi-dimensional examination of U.S. society and institutions that reflects a broad and balanced range of perspectives and responsible views. Programs should include the views not only of scholars, cultural critics and public intellectuals, but also those of other professionals such as government officials, journalists and others who can substantively contribute to the topics at issue; and,
4. Ensure access to library and material resources that will enable grantees to continue their research, study and curriculum development upon returning to their home institutions.
This Institute should provide a multinational group of 18 experienced foreign university faculty with an opportunity to increase their understanding of American civilization and institutions through an examination of the American religious experience and its intersection with democracy. Employing a multi-disciplinary approach, drawing on fields such as history, political science, sociology, anthropology, law and others where appropriate, the program should explore both the historical and contemporary relationship between church and state in the United States; examine the ways in which religious thought and practice have influenced and been influenced by the development of American democracy; examine the intersections of religion and politics in the United States in such areas as elections, public policy, and foreign policy; and explore the sociology and demography of religion in the United States today, including a survey of the varieties of contemporary religious belief and their impact on American politics.
The “Study of the United States Institute on American Foreign Policy” should provide a multinational group of 18 experienced foreign university faculty with a deeper understanding of how U.S. foreign policy is conceptualized and enacted with emphasis on the post cold war era. This institute should examine the intersection of ideas and structures in the development of U.S. foreign policy. While the program should review the domestic institutional foundations for U.S. foreign policy, the primary focus should be on the main philosophical traditions that have girded U.S. foreign policy; the grand strategies and frameworks that have been developed out of these philosophical trends; and, what actors—both governmental and non-governmental—shape U.S. foreign policy at various stages from its conceptualization to its enactment. An overarching goal of the program is to illuminate the relationship between U.S. policies and the political, social and economic forces in the United States that constitute the domestic context in which such policies are debated, formulated and executed. A thematic approach that examines how U.S. foreign policy has dealt with specific areas of concern over time, for example nuclear proliferation and weapons of mass destruction, democratization and humanitarian crises would be one way for an applicant to illuminate the continuities and changes in U.S. foreign policy. Ideally, the program should be structured in such a way as to give attention to U.S. policy both globally and in particular geographic areas and to examine the role of U.S. foreign policy within the context of international relations and international institutions.
This program, designed for a multinational group of 18 experienced foreign university faculty, should focus on recent American literature and criticism. Its purpose is twofold: First, to explore contemporary American writers and writing in a variety of genres; second, to suggest how the themes explored in those works reflect larger currents within contemporary American society and culture. The program should explore the diversity of the American literary landscape, examining how major contemporary writers, schools and movements reflect the traditions of the American literary canon and, at the same time, represent a departure from that tradition, establishing new directions for American literature.
The “Study of the United States Institute on American Politics and Political Thought” should provide a multinational group of 18 experienced foreign university faculty with a deeper understanding of U.S. political institutions and major currents in American political thought by focusing on the interplay between ideas and institutions in shaping the contemporary American polity. The institute should provide an overview of the origins (constitutional foundations), development and current functioning of the American presidency, Congress and the federal judiciary, however examination of political institutions might be expanded to include for example the two-party system, the civil service system, interest groups, or the welfare/regulatory state. The institute should also and simultaneously survey important currents in the history of American political thought, including but not limited to the political thought of the Founding period. In this context, the Branch for the Study of the U.S. is particularly interested in providing the foreign participants insight into competing strains in modern American political thought/culture, such as liberalism, republicanism (with a small “r”), libertarianism, communitarianism, conservatism, neo-conservatism, etc. The institute should review the provenance and trajectory of these different intellectual strands or movements, and highlight how they have intersected with American political institutions to shape public discourse and public policy formulation in the contemporary United States.
Participants will be diverse in terms of age, professional position, and travel experience abroad. Participants can be expected to come from educational institutions where the study of the U.S. is relatively well-developed as well as from institutions that are just beginning to introduce courses and programs focusing on the United States. While participants may not have in-depth knowledge of the particular institute program theme, they will likely have had exposure to the relevant discipline and some experience teaching about the United States.
Participants will be drawn from all regions of the world and will be fluent in the English language.
Participants will be nominated by Fulbright Commissions and by U.S. Embassies abroad. A final list of participants will be sent to the host institution. Host institutions do not participate in the selection of participants.
In a cooperative agreement, ECA/A/E/USS is substantially involved in program activities above and beyond routine grant monitoring. ECA/A/E/USS activities and responsibilities for this program are as follows: ECA/A/E/USS will participate in the selection of participants, will exercise oversight with one or more site visits and will debrief participants. ECA/A/E/USS may also require changes in the content of the program as well as the activities proposed either before or after the grant is awarded.
Applications may be submitted by public and private non-profit organizations meeting the provisions described in Internal Revenue Code section 26 U.S.C. 501(c)(3).
There is no minimum or maximum percentage required for this competition. However, the Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs.
When cost sharing is offered, it is understood and agreed that the applicant must provide the amount of cost sharing as stipulated in its proposal and later included in an approved grant agreement. Cost sharing may be in the form of allowable direct or indirect costs. For accountability, you must maintain written records to support all costs which are claimed as your contribution, as well as costs to be paid by the Federal government. Such records are subject to audit. The basis for determining the value of cash and in-kind contributions must be in accordance with OMB Circular A-110, (Revised), Subpart C.23—Cost Sharing and Matching. In the event you do not provide the minimum amount of cost sharing as stipulated in the approved budget, ECA's contribution will be reduced in like proportion.
(a) Bureau grant guidelines require that organizations with less than four years experience in conducting international exchanges be limited to $60,000 in Bureau funding. ECA anticipates awarding one grant per institute, each in an amount up to approximately $260,000 to support program and administrative costs required to implement this exchange program. Therefore, organizations with less than four years experience in conducting international exchanges are ineligible to apply under this competition. The Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs.
(b)
Failure to meet this criteria will result in your proposal being declared technically ineligible and given no further consideration in the review process.
Please read the complete
Please contact the Branch for the Study of the U.S., ECA/A/E/USS, Room Number 252, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, telephone number (202) 619-4557 and fax number (202) 619-6790, e-mail either
The Solicitation Package contains the Proposal Submission Instruction (PSI) document which consists of required application forms, and standard guidelines for proposal preparation.
It also contains the Project Objectives, Goals and Implementation (POGI) document, which provides specific information, award criteria and budget instructions tailored to this competition.
Please specify Program Officer Nancy L. Meyers at
The entire Solicitation Package may be downloaded from the Bureau's Web site at
Applicants must follow all instructions in the Solicitation Package. The original and thirteen (13) copies of the application should be sent per the instructions under IV.3e. “Submission Dates and Times section” below.
You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the U.S. Government. This number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access
All proposals must contain an executive summary, proposal narrative and budget.
Please Refer to the Solicitation Package. It contains the mandatory Proposal Submission Instructions (PSI)
You must have nonprofit status with the IRS at the time of application. If your organization is a private nonprofit which has not received a grant or cooperative agreement from ECA in the past three years, or if your organization received nonprofit status from the IRS within the past four years, you must submit the necessary documentation to verify nonprofit status as directed in the PSI document. Failure to do so will cause your proposal to be declared technically ineligible.
Please take into consideration the following information when preparing your proposal narrative:
The Bureau of Educational and Cultural Affairs is placing renewed emphasis on the secure and proper administration of Exchange Visitor (J visa) Programs and adherence by grantees and sponsors to all regulations governing the J visa. Therefore, proposals should demonstrate the applicant's capacity to meet all requirements governing the administration of the Exchange Visitor Programs as set forth in 22 CFR part 62, including the oversight of Responsible Officers and Alternate Responsible Officers, screening and selection of program participants, provision of pre-arrival information and orientation to participants, monitoring of participants, proper maintenance and security of forms, record-keeping, reporting and other requirements. ECA will be responsible for issuing DS-2019 forms to participants in this program.
A copy of the complete regulations governing the administration of Exchange Visitor (J) programs is available at
Please refer to Solicitation Package for further information.
Pursuant to the Bureau's authorizing legislation, programs must maintain a non-political character and should be balanced and representative of the diversity of American political, social, and cultural life. “Diversity” should be interpreted in the broadest sense and encompass differences including, but not limited to ethnicity, race, gender, religion, geographic location, socio-economic status, and disabilities. Applicants are strongly encouraged to adhere to the advancement of this principle both in program administration and in program content. Please refer to the review criteria under the ‘Support for Diversity’ section for specific suggestions on incorporating diversity into your proposal. Public Law 104-319 provides that “in carrying out programs of educational and cultural exchange in countries whose people do not fully enjoy freedom and democracy,” the Bureau “shall take appropriate steps to provide opportunities for participation in such programs to human rights and democracy leaders of such countries.” Public Law 106-113 requires that the governments of the countries described above do not have inappropriate influence in the selection process. Proposals should reflect advancement of these goals in their program contents, to the full extent deemed feasible.
Proposals must include a plan to monitor and evaluate the project's success, both as the activities unfold and at the end of the program. The Bureau recommends that your proposal include a draft survey questionnaire or other technique plus a description of a methodology to use to link outcomes to original project objectives. The Bureau expects that the grantee will track participants or partners and be able to respond to key evaluation questions, including satisfaction with the program, learning as a result of the program, changes in behavior as a result of the program, and effects of the program on institutions (institutions in which participants work or partner institutions). The evaluation plan should include indicators that measure gains in mutual understanding as well as substantive knowledge.
Successful monitoring and evaluation depend heavily on setting clear goals and outcomes at the outset of a program. Your evaluation plan should include a description of your project's objectives, your anticipated project outcomes, and how and when you intend to measure these outcomes (performance indicators). The more that outcomes are “smart” (specific, measurable, attainable, results-oriented, and placed in a reasonable time frame), the easier it will be to conduct the evaluation. You should also show how your project objectives link to the goals of the program described in this RFGP.
Your monitoring and evaluation plan should clearly distinguish between program
We encourage you to assess the following four levels of outcomes, as they relate to the program goals set out in the RFGP (listed here in increasing order of importance):
1.
2.
3.
4.
Overall, the quality of your monitoring and evaluation plan will be judged on how well it (1) specifies intended outcomes; (2) gives clear descriptions of how each outcome will be measured; (3) identifies when particular outcomes will be measured; and (4) provides a clear description of the data collection strategies for each outcome (
Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request.
ECA/A/E/USS considers program management, staffing and coordination with the Department of State essential elements of your program. Please be sure to give sufficient attention to these elements in your proposal. Please refer to the Technical Eligibility Requirements and the POGI in the Solicitation package for specific guidelines.
Applicants must submit a comprehensive budget for the entire program. Awards should be up to approximately $260,000. There must be a summary budget as well as breakdowns reflecting both administrative and program budgets. Applicants may provide separate sub-budgets for each program component, phase, location, or activity to provide clarification.
Based on a group of 18 participants, the total Bureau-funded budget (program and administrative) for this program should be up to approximately $260,000, and Bureau-funded administrative costs as defined in the budget details section of the solicitation package may be up to approximately $110,000.
Justifications for any costs above these amounts must be clearly indicated in the proposal submission. Proposals should try to maximize cost-sharing in all facets of the program and to stimulate U.S. private sector, including foundation and corporate, support. The Bureau reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program, and availability of U.S. government funding.
Please refer to the “POGI” in the Solicitation Package for complete institute budget guidelines and formatting instructions.
(1) Institute staff salary and benefits.
(2) Honoraria for Guest speakers.
(3) Participant
Please refer to the Solicitation Package for complete budget guidelines and formatting instructions.
Applicants must follow all instructions in the Solicitation Package.
The original and thirteen (13) copies of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.: ECA/A/E/USS-05-03-[RP/FP/AML/AP], Program Management, ECA/EX/PM, Room 534, 301 4th Street, SW., Washington, DC 20547.
Along with the Project Title, all applicants must enter the above Reference Number in Box 11 on the SF-424 contained in the mandatory Proposal Submission Instructions (PSI) of the solicitation document.
Executive Order 12372 does not apply to this program.
Applicants are also requested to submit the “Executive Summary” and “Proposal Narrative” sections of the proposal in text (.txt) format on a PC-formatted disk.
The Bureau will review all proposals for technical eligibility. Proposals will be deemed ineligible if they do not fully adhere to the guidelines stated herein and in the Solicitation Package. All eligible proposals will be reviewed by the program office, as well as the Public Diplomacy section overseas, where appropriate. The Branch for the Study of the U.S. may also retain outside independent consultants to review proposals in their particular field(s) of expertise. The feedback or input of any such consultants will be advisory only. Eligible proposals will be subject to compliance with Federal and Bureau regulations and guidelines and forwarded to Bureau grant panels for advisory review. Proposals may also be reviewed by the Office of the Legal Adviser or by other Department elements. Final funding decisions are at the discretion of the Department of State's Assistant Secretary for Educational and Cultural Affairs. Final technical authority for assistance awards (cooperative agreements) resides with the Bureau's Grants Officer.
Technically eligible applications will be competitively reviewed according to the criteria stated below. These criteria are not rank ordered and all carry equal weight in the proposal evaluation:
1.
2.
3.
4.
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Final awards cannot be made until funds have been appropriated by Congress, allocated and committed through internal Bureau procedures. Successful applicants will receive an Assistance Award Document (AAD) from the Bureau's Grants Office. The AAD and the original grant proposal with subsequent modifications (if applicable) shall be the only binding authorizing document between the recipient and the U.S. Government. The AAD will be signed by an authorized Grants Officer, and mailed to the recipient's responsible officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review from the ECA program office coordinating this competition.
Terms and Conditions for the Administration of ECA agreements include the following:
Office of Management and Budget Circular A-122, “Cost Principles for Nonprofit Organizations.”
Office of Management and Budget Circular A-21, “Cost Principles for Educational Institutions.”
OMB Circular A-87, “Cost Principles for State, Local and Indian Governments.”
OMB Circular No. A-110 (Revised), Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and other Nonprofit Organizations.
OMB Circular No. A-102, Uniform Administrative Requirements for Grants-in-Aid to State and Local Governments.
OMB Circular No. A-133, Audits of States, Local Government, and Non-profit Organizations.
Please reference the following Web sites for additional information:
You must provide ECA with a hard copy original plus two copies of the following reports:
All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request.
All reports must be sent to the ECA Grants Officer and ECA Program Officer listed in the final assistance award document.
For questions about this announcement, contact: Branch for the Study of the U.S., ECA/A/E/USS, Room Number 252, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, telephone number (202) 619-4557 and fax number (202) 619-6790,
All correspondence with the Bureau concerning this RFGP should reference the appropriate Funding Opportunity Number given at the beginning of this RFGP and referenced again in section “IV.1 Contact Information to Request an Application Package” of this announcement.
Please read the complete
Department of State.
Notice of briefing.
The Department of State will host a briefing on Friday, November 19, 2004, to provide an update on current Universal Postal Union issues, including the results of the 23rd UPU Congress held in Bucharest, Romania from September 15 to October 5, 2004.
The briefing will be held from 1:30 p.m. until approximately 4:30 p.m., on November 19, in Room 1408 of the Department of State, 2201 C Street, NW., Washington, DC. The briefing will be open to the public up to the capacity of the meeting room of 50.
The briefing will provide information on the results of the UPU Congress and the upcoming January 2005 session of the UPU Postal Operations Council. Special attention will be paid to extra-territorial offices of exchange, terminal dues, and the creation of the Consultative Committee. Deputy Assistant Secretary of State Terry Miller will chair the briefing.
Entry to the Department of State building is controlled and will be facilitated by advance arrangements. In order to arrange admittance, persons desiring to attend the briefing should, no later than noon on November 19, 2004, notify the Office of Technical and Specialized Agencies, Bureau of International Organization Affairs, Department of State, preferably by fax, providing the name of the meeting and the individual's name, Social Security number, date of birth, professional affiliation, address and telephone number. The fax number to use is (202) 647-8902. Voice telephone is (202) 647-1044. This request applies to both government and non-government individuals.
All attendees must use the main entrance of the Department of State at 22nd and C Streets, NW. Please note that under current security restrictions, C Street is closed to vehicular traffic between 21st and 23rd Streets. Taxis may leave passengers at 21st and C Streets, 23rd and C Streets, or 22nd Street and Constitution Avenue. One of the following means of identification will be required for admittance: any U.S. driver's license with photo, a passport, or any U.S. Government agency identification card.
Questions concerning the briefing may be directed to Mr. Dennis Delehanty at (202) 647-4197 or via e-mail at
Federal Highway Administration (FHWA), DOT.
Notice of intent.
The FHWA is issuing this notice to advise the public that an environmental impact statement will be prepared for improved access to Sitka, Alaska. The project is located on Baranof Island within the Northern Panhandle Region of Southeast Alaska.
Edrie Vinson, Environmental Project Manager, Federal Highway Administration, Alaska Division, P.O. Box 21648, Juneau, Alaska 99802-1648, (907) 586-7418, fax: (907) 586-7420, e-mail:
The FHWA, in cooperation with ADOT&PF, will prepare an environmental impact statement (EIS) on a proposal to improve transportation access to the City and Borough of Sitka, Alaska. Sitka is on the west side of Baranof Island, and has unsheltered exposure to the Pacific Ocean. Currently, access to Sitka is limited to air service and service by Alaska Marine Highway System (AMHS) ferries and commercial freight. Strong tidal currents through Sergins Narrows in Peril Strait constrain AMHS ferry service and commercial marine freight service schedules. These scheduling issues affect Sitka and other Northern Panhandle communities that rely on marine transportation and freight services.
The Sitka Access EIS will evaluate alternatives to improve access to Sitka. The alternatives considered may allow for more convenient and frequent surface transportation at lower cost to the user and AMHS. The EIS will consider a range of alternatives
(1) Constructing a new road from Sitka north and east to Rodman Bay and constructing and operating a new ferry/marine terminal with ferry service links to other communities. This would allow marine transportation and freight services to avoid the restrictive Sergins Narrows.
(2) Constructing a road due east of Sitka to Warm Springs Bay and constructing and operating a new ferry/marine terminal with ferry service links to other communities. Included in this road would be an approximately two-mile-long tunnel through mountainous terrain. This alternative would allow marine transportation and freight services to completely avoid the Peril Straits.
(3) Constructing an AMHS transfer facility on Chatham Strait where passengers and freight would disembark and re-board a vessel that is not restricted by the tidal currents in Sergins Narrows such as a fast shuttle ferry. These fast shuttle ferries would then connect to the existing Sitka Terminal.
(4) Fast Vehicle Ferry service linking Sitka to Juneau, Petersburg or other surrounding communities.
During the scoping process, the FHWA and the ADOT&PF will solicit input from the public and interested agencies on the alternatives to be considered and the nature and extent of issues and impacts to be addressed in the EIS and the methods by which they will be evaluated.
Questionnaires, public notices and newsletters describing the proposed action alternatives and soliciting comments will be sent to appropriate Federal, State, and local agencies, tribes, private organizations, and citizens who have previously expressed or are known to have interest in this proposal.
Public scoping meetings will be held between December 2004 and January 2005 at each of the following communities: Angoon, Baranof Warm Springs, Elfin Cove, Gustavus, Hoonah, Kake, Pelican, Port Alexander, Sitka, Tenakee Springs, Juneau and Petersburg. As the meeting dates approach, a public notice announcing the exact date, time and location of the meetings will be published in the
Contact information for people with special needs will be included in the public notice announcements.
Two agency scoping meetings, one in Juneau and one in Sitka, will be held in December 2004. Agency staff will be given an opportunity to express their concerns, ask questions, and provide written comment. The ADOT&PF will contact the agencies by mail with the exact date, time, and location of the meetings. The agency comment period will be provided.
To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA or the ADOT&PF at the addresses provided above.
Under the authority granted to me as General Counsel of the Department of the Treasury, including the authority conferred by 31 U.S.C. 301 and Treasury Department Order No. 101-5 (revised), and pursuant to the Civil Service Reform Act, I hereby appoint the following individuals to the General Counsel Panel of the Legal Division Performance Review Board for Fiscal Year 2004:
James W. Carroll, Jr., who shall serve as Chairperson;
Thomas M. McGivern, Assistant to the General Counsel (Legislation, Litigation, and Disclosure);
Russell L. Munk, Assistant General Counsel (International Affairs);
Kenneth R. Schmalzbach, Assistant General Counsel (General Law and Ethics);
Roberta K. McInerney, Assistant General Counsel (Banking and Finance);
Marilyn L. Muench, Deputy Assistant General Counsel (International Affairs);
Peter A. Bieger, Deputy Assistant General Counsel (Banking and Finance);
Daniel P. Shaver, Chief Counsel, United States Mint;
Robert M. Tobiassen, Chief Counsel, Alcohol and Tobacco Tax and Trade Bureau;
Barbara C. Hammerle, Chief Counsel, Office of Foreign Assets Control;
Judith R. Starr, Chief Counsel, Financial Crimes Enforcement Network; and
Brian L. Ferrell, Chief Counsel, Bureau of the Public Debt.
Office of the Secretary (OST), U.S. Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The Department proposes to revise its rule requiring nondiscrimination on the basis of disability in air travel to update, reorganize, and clarify the rule and to implement a statutory requirement to cover foreign air carriers under the Air Carrier Access Act.
Please include the docket number of this document in all comments submitted to the docket. Written comments should be sent to Docket Clerk, Department of Transportation, 400 7th Street, SW., Room PL-401, Washington, DC 20590. For confirmation of the receipt of written comments, commenters may include a stamped, self-addressed postcard. The Docket Clerk will date-stamp the postcard and mail it back to the commenter. Comments will be available for inspection at this address from 10 a.m. to 5:30 p.m., Monday through Friday. Comments can also be reviewed through the Dockets Management System (DMS) pages of the Department's Web site (
Robert C. Ashby, Deputy Assistant General Counsel for Regulation and Enforcement, 400 7th Street, SW., Room 10424, Washington DC, 20590. Phone 202-366-9310; TTY: 202-755-7687; Fax: 202-366-9313. E-mail:
Congress enacted the Air Carrier Access Act (ACAA) in 1986. The statute prohibits discrimination in airline service on the basis of disability. Following a lengthy rulemaking process that included a regulatory negotiation involving representatives of the airline industry and disability community, the Department issued a final ACAA rule in March 1990. Since that time, the Department has amended the rule ten times.
The Department has also frequently issued guidance in a number of forms that interprets or explains further the text of the rule. These interpretations have been disseminated in a variety of ways: preambles to regulatory amendments, industry letters, correspondence with individual carriers or complainants, enforcement actions, web site postings, informal conversations between DOT staff and interested members of the public, etc. This guidance, on a wide variety of subjects, has never been collected in one place. Some of this guidance would be more accessible to the public and more readily understandable if it were incorporated into regulatory text. There have also been changes in the ways airlines operate since the original publication of Part 382. For example, airlines now make extensive use of web sites for information and booking purposes. Many carriers now use regional jets with a capacity of around 50 passengers for flights that formerly would have been served by larger aircraft. Preboarding announcements are not as universal a practice as they once were. Security screening has become a responsibility of the Transportation Security Administration (TSA), rather than that of the airlines. The Department has decided to update Part 382 to take changes in airline operations into account.
On April 5, 2000, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21) amended the ACAA specifically to include foreign carriers. The ACAA now reads in relevant part:
* * * In providing air transportation, an air carrier, including (subject to section 40105(b)) any foreign air carrier, may not discriminate against an otherwise qualified individual on the following grounds:
(1) The individual has a physical or mental impairment that substantially limits one or more major life activities.
(2) The individual has a record of such an impairment.
(3) The individual is regarded as having such an impairment.
The over 14-year history of amendments and interpretations of Part 382 have made the rule something of a patchwork, which does not flow as clearly and understandably as it might. Restructuring the rule for greater clarity, including using “plain language” to the extent feasible, is an important objective. To this end, Part 382 has been restructured in this NPRM, to organize it by subject matter area. Compared to the present rule, the text is divided into more subparts and sections, with fewer paragraphs and less text in each on average, to make it easier to find regulatory provisions. The proposal uses a question-answer format, with language specifically directing particular parties to take particular actions (e.g., “As a carrier, you must * * *”). We have also tried to express the (admittedly sometimes technical) requirements of the rule in plain language.
The Department recognizes that some users, who have become familiar and comfortable with the existing organization and numbering scheme of Part 382, might have to make some adjustments as they work with the restructured rule. However, the structure of this proposed revision is consistent with a Federal government-wide effort to improve the clarity of regulations, which the Department has employed with great success and public acceptance in the case of other
Many of the provisions of the current Part 382 are retained in this rule with little or no substantive change. To assist readers in finding where current provisions are located in the proposed regulatory text, we have provided a reference table at the end of this preamble. Preamble language and other guidance issued by the Department concerning provisions of the existing rule text that have not been substantively changed may remain useful as guidance to carriers and passengers, and the Department can continue to rely on this information.
For U.S. carriers, many compliance dates (
This portion of the preamble discusses each section of the proposed rule, highlighting where the Department proposes to make substantive changes from current Part 382.
This section makes a brief statement of the basic purposes of the ACAA and mentions that the ACAA's nondiscrimination and accessibility requirements apply to foreign as well as to U.S. carriers.
The definition of “air carrier” would change to include foreign as well as U.S. carriers. We would add a definition of the Air Carrier Access Act (ACAA) for clarity. The definition of “air transportation” would be changed to include the citation for the statutory definition of the term. We would add a definition of “assistive device,” consistent with concepts used in connection with the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973. We have also added a definition of “direct threat,” also drawn from the ADA and Department of Justice (DOJ) regulations implementing it. This concept is used in determining when it is appropriate to place restrictions on or deny service to individuals with disabilities. Here, as elsewhere in Part 382, we believe it is useful to harmonize ACAA practice with the ADA and other disability nondiscrimination authorities to the extent feasible.
The definition of “facility” would include a carrier's aircraft and any portion of an airport that the carrier owns, leases, or controls. “Controls,” for this purpose, is understood to include control of the selection, design, construction, or alteration of the facility, as well as actual operational control.
In the definition of “qualified individual with a disability,” the Department is introducing a new term, “passenger with a disability,” which the proposed rule will use in all situations in which a qualified individual with a disability is or is trying to be a passenger. “Qualified individual with a disability” would continue to apply to non-passengers as well. Given that this rule concerns travel, we seek comment on whether “traveling” should be added to the standard list of “major life activities” that is part of the definition of “individual with a disability.” Because of the important role that the Transportation Security Administration (TSA) now plays in air transportation, we are adding that agency to the definitions section.
This section contains some of the most important proposed changes in this NPRM, concerning how the Department will implement the AIR 21 amendment applying ACAA requirements to foreign air carriers. Paragraph (a) of the section, however, restates the existing application of the rule to U.S. carriers, regardless of where their operations takes place. As under the existing rule, a U.S. carrier's operations are subject to ACAA requirements whether they occur at a U.S. or foreign airport, or inside or outside of U.S. airspace (although certain airport accessibility obligations of air carriers apply only to their facilities at U.S. airports).
The Department believes that the intended scope of the statutory coverage of foreign air carriers, consistent with international law, focuses on traffic to or from the United States. In our view, it would exceed the scope of the Department's authority to attempt to apply ACAA requirements to all the operations of a foreign air carrier. Consequently, in paragraph (b) we propose to cover only those flights operated by a foreign air carrier that begin or end at a U.S. airport. Aircraft accessibility requirements would apply only to those aircraft that are used for these flights.
What is such a flight? We propose that it would be a continuous journey beginning or ending at a U.S. airport, using the same aircraft and/or flight number. For example, suppose a foreign carrier operates a nonstop flight between Paris and Chicago. This flight, and all the services connected with it, would be required to meet ACAA requirements. The aircraft would have to meet ACAA accessibility requirements.
In another example, suppose a foreign carrier operates service between New York and Cairo. The plane is refueled and gets a new crew in London, and continues on its way. Even though this is not a nonstop flight, it is a continuous journey on the same aircraft. Consequently, both segments of the flight would be covered under the ACAA. This would still be true even if there were a change of aircraft in London (sometimes called “change of gauge”), as long as the flight number remained the same.
However, if there is a change of both aircraft and flight numbers, the picture would change. Suppose, for example, that a foreign carrier operates a nonstop flight from Washington, DC, to Frankfurt. A passenger then changes to a German domestic flight from Frankfurt to Berlin, with a different aircraft and flight number. The Washington-Frankfurt leg would be covered by ACAA requirements; the Frankfurt-Berlin leg would not. The aircraft used for the former would be subject to ACAA aircraft accessibility requirements; the aircraft used for the latter would not.
One of the situations this section addresses is “code-sharing” between a U.S. and foreign air carrier. A flight that, through a code-sharing agreement, is listed as the flight of a U.S. carrier is covered under the ACAA under the requirements that apply to U.S. carriers, even if the flight is operated with a foreign carrier's aircraft and crew. If a flight is advertised as the flight of a U.S. carrier, and the U.S. carrier or another party sells tickets to passengers on that basis, then it is reasonable for all the ACAA requirements applicable to other flights held out to the public as flights
Under this proposed section, if a foreign carrier operates an aircraft solely between foreign points, even if that aircraft is part of a code-shared flight or another covered flight (
The Department believes that these provisions would implement AIR-21 requirements without unduly burdening foreign carriers. The Department seeks comment on both the basic principle of this provision and on specific applications. In particular, given the variety of carriers, aircraft, destinations, airports, and relationships between U.S. and foreign carriers, the Department requests suggestions for any more specific provisions that might be necessary to apply this principle to the range of flights that this rule would cover, including any unusual situations in which its application could cause problems.
The Department recognizes that foreign air carriers operate under a variety of laws and regulations. If an applicable foreign law or regulation precludes a foreign carrier from complying with a provision of the Department's ACAA rule, this section would allow the foreign carrier to petition the Department for a waiver of compliance with the ACAA provision.
As proposed, this waiver authority would apply only to a direct conflict between the ACAA and foreign law (
It is important to note that a grant of a waiver under this provision would be contingent on the carrier providing an alternative means to effectively achieve the objective of the waived ACAA provision, consistent with the foreign law involved, or to demonstrate that no alternative means of achieving the objective was legally permitted. Also, a carrier's obligation to comply with the rule would not be stayed while a waiver request was pending. The carrier's authority to implement an alternative means to achieve the objective of an ACAA provision begins only when the Department approves the waiver.
We believe that this waiver provision may be very useful in addressing issues raised by legally binding aviation regulations of foreign nations. We are aware that, in many situations, foreign aviation regulations, rather than FAA or TSA rules, govern the actions of foreign carriers. In many cases, these foreign regulations are likely to be compatible with implementing Part 382. However, there may be instances in which a carrier believes that foreign regulations preclude it from implementing a provision of Part 382. In such cases, this waiver mechanism permits the Department to examine the basis for the asserted conflict between Part 382 and the foreign regulation. We believe having the Department make case-by-case decisions on waiver requests is an important safeguard of the rights of passengers with disabilities under Part 382.
We also note that, as an Office of the Secretary rule, Part 382 is subject to the exemption procedure of 49 CFR 5.11-5.13. Under these procedures, anyone may request an exemption from (or an amendment to) an Office of the Secretary rule. Long-standing DOT standards provide that a party requesting an exemption must demonstrate that unique or special circumstances, not contemplated in the rulemaking and not likely to be generalizable, make it impracticable for the party to comply with the rule as written. As with the waiver provision described above, the applicant would need to present alternative means of achieving the objective of the provision from which the exemption is sought.
This provision states that, as a general matter, carriers to which the rule applies must comply with its provisions beginning on the effective date of the rule. There is an important exception. Various individual provisions of the rule have delayed effective dates, especially for foreign carriers, to permit a reasonable phase-in period for requirements that are new to these carriers. We have designed these delayed effective dates to give foreign carriers phase-in periods equivalent to those that U.S. carriers had when the Department first issued its ACAA rule in 1990.
These sections carry forward the provisions of current § 382.7. While the language is modified for greater clarity, the Department is not proposing substantive changes in the present rule.
This section carries forward the provisions of current § 382.9. In addition to modifying the language for greater clarity, the proposed language also contains statements codifying the Department's interpretations of this provision: that contractors (including airports) must meet the same requirements that would apply to the carrier itself in providing the services in question, that a contractor's noncompliance with its assurance of compliance is a material breach of its contract with the carrier, that the assurance must commit the contractor to complying with all applicable provisions of the rule with respect to all activities performed for the carrier, that the carrier remains responsible for the contractor's compliance, and that carriers cannot defend against DOT enforcement actions by saying that their noncompliance was the contractor's fault.
Paragraph (c) continues language concerning carriers' contracts or agreements of appointment with travel agents. As drafted, this language would apply only to U.S. carriers with respect to U.S. travel agents. The reason for not proposing to cover foreign airlines or foreign travel agents under this provision is that rules concerning relationships between U.S. carriers and foreign travel agents, or foreign carriers and their travel agents, could prove very difficult to monitor and enforce. The Department seeks comment on this aspect of the section. In addition, the Department also seeks comment on whether there should be additional or specific requirements added to this section concerning on-line travel agencies (
This language carries forward, without substantive change, the prohibition on number limits that is found in current § 382.31(c). We have added a cross reference to proposed § 382.27(a)(7), which incorporates the provision of current § 382.33(a)(7) allowing carriers to require advance notice in situations where 10 or more passengers with a disability make reservations to travel as a group.
For the most part, this section carries forward the prohibition of refusal to provide transportation found in current § 382.31, without substantive change. However, the proposed language would clarify the basis on which an air carrier may deny transportation to a passenger. In addition to updating the citations to statutory and regulatory provisions that provide a basis for excluding passengers from a flight and including a reference to TSA as well as FAA regulations, the NPRM uses the concept of “direct threat” as the standard for when a carrier may conclude that there is a safety basis for excluding a passenger from a flight. The use of this concept is consistent with current law and practice under section 504 of the Rehabilitation Act of 1973 and the ADA, and it includes the point that if mitigating measures short of exclusion are available to deal with the direct threat to safety of others, then exclusion is not appropriate. In a situation where a foreign carrier believed that foreign law (including a foreign air safety regulation) precluded it from complying with this provision (
As under the current Part 382, this section is not intended to preclude pilots-in-command from exercising their authority over the operation of a flight. However, if the action of a pilot-in-command is inconsistent with these rules, the airline may be subject to subsequent enforcement action by the Department.
We have added clarifying language that relates refusals to provide transportation to the passenger’s “originally scheduled flight.” The purpose of this language is to make sure that everyone understands that if a carrier improperly refuses to allow a passenger to fly as originally scheduled on the basis of disability, the action is still a “refusal” even if the carrier places the individual on a subsequent flight. Of course, the prohibition of refusals applies to subsequent flights as well (
These provisions carry forward the substance of current §§ 382.51-382.53, which prohibit carriers from requiring a passenger with a disability to provide a medical certificate or a doctor's note except as specifically permitted by this rule. The placement and wording have been changed for greater clarity. In Appendix A, the Department's guidance states that carriers may ask for documentation with respect to emotional support animals. We seek comment on whether it would be helpful to refer to this documentation in § 382.23.
These sections carry forward the substance of current § 382.33. Proposed § 382.25 is separated from the rest of the text to emphasize the basic principle that no passenger with a disability is required to provide advance notice of the fact that he or she is a passenger with a disability traveling on a flight. The only situations in which carriers are authorized (never required) to insist that passengers provide advance notice is when the passengers want certain services or accommodations specified in this section. When a carrier is permitted to insist on advance notice, the advance notice cannot exceed 48 hours. The carrier may also require the passenger to check in an hour before the scheduled departure time for the flight.
There are some services an air carrier is not required to provide at all, but if an air carrier does provide them, the carrier may require advance notice. The most notable of these is medical oxygen for use of passengers. The Department has been aware, for many years, of the extensive difficulties faced by passengers who use oxygen. The problem results from DOT hazardous materials safety regulations that prohibit passengers from bringing their own personal oxygen supplies into the cabin and that provide that only oxygen supplied by carriers may be used on aircraft. Not all carriers provide medical oxygen, and those that do often charge high prices. This can make travel for persons who use oxygen very costly, in some cases prohibitively so.
This NPRM does not propose provisions to address this problem. However, over the last two years, the Department has been actively working on solutions to this problem with parties including the airline industry, medical organizations, disability groups, and oxygen equipment manufacturers and oxygen suppliers, to examine whether state-of-the-art technology for oxygen delivery systems could be accommodated within the existing regulatory structure. Because these efforts have not yet resolved difficulties encountered in air travel by users of medical oxygen, the Department has begun work to develop proposals to make travel for oxygen users much easier in the future. These proposals
This section uses the term “safety assistant” rather than the current term “attendant” because the new term more accurately describes the role of such an individual. The section is otherwise substantively the same as current § 382.35.
A safety assistant is someone who accompanies a passenger with a disability in order to provide assistance in the event of an emergency, such as an evacuation of the aircraft. This term should help everyone keep in mind the distinction between the quite different roles of the safety assistant and a personal care attendant (PCA) or other person accompanying a passenger with a disability. Under this proposed section, as well as current § 382.35, it is never appropriate for an air carrier to insist that a passenger with a disability travel with a PCA or other person to help the passenger with personal functions or activities.
This section is based on current § 382.57. It makes two clarifications. First, if a carrier provides a service that is not required by this rule, the carrier may charge for it (
This section is based in part on current § 382.55(b) and (c) and on long-standing interpretations of the Department's rule. This section stresses that the enumerated practices that are prohibited are not an exhaustive list. As a general matter, except where otherwise authorized by Part 382 or required by an FAA or TSA rule, carriers may never impose restrictions or requirements on passengers with disabilities that they do not impose on similarly situated passengers who do not have disabilities. We are proposing adding one specific prohibition to the list, namely the practice of requiring ambulatory blind passengers or other persons who can walk to use a wheelchair in order to be provided assistance. This practice is unnecessary and offensive to many passengers. As noted above, if a foreign carrier believes it is required by foreign law to impose restrictions on passengers with disabilities that Part 382 does not permit, the carrier may apply for a waiver under § 382.7
This section concerns a specific type of restriction or requirement that carriers are not allowed to impose on passengers with disabilities. Carriers would be prohibited under this section from making passengers with a disability sign a waiver of liability or release as a condition of being allowed to travel or to receive required accommodations for a disability. This prohibition specifically includes waivers or releases pertaining to the loss of or damage to wheelchairs and other assistive devices. This latter requirement is currently found in § 382.43(c). Carriers could, if they wish, make notes of pre-existing damage to wheelchairs and other assistive devices.
This provision is based on current § 382.45(a), and adds a few clarifications. Information about seat locations must be made available by specific row and seat number, and any limitations on storage capacity must include information concerning storage of a passenger's assistive devices.
The portion of this section concerning telephonic communications with persons who are deaf or hard-of-hearing is derived from current § 382.47(a), and it provides that a carrier who makes telephone information or reservation service available to the public must make that service available to deaf or hard-of-hearing persons through use of a TTY. U.S. carriers are already required to meet this requirement under the current rule. Foreign carriers would have a year from the effective date of the final rule to ensure that their phone information and reservation services were accessible to deaf and hard-of-hearing persons. The Department seeks comment on whether there are countries the communications infrastructures of which do not readily permit the use of TTYs, such that another means of making information and reservations available to these persons would be necessary. If so, what alternative means should be authorized, and under what circumstances?
There are other issues concerning provision of services to deaf and hard-of-hearing individuals that this NPRM does not address, such as requirements for visual information displays or assistive listening devices in airport terminals or on aircraft, and the captioning of movies and other entertainment videos on aircraft. The Department has held a public meeting on this subject, and we are working through a memorandum of understanding (MOU) with the National Council on Disability (NCD) to develop recommendations in this area. The Department anticipates that, after receiving recommendations through this process, we will be in a position to undertake further rulemaking on this subject.
Proposed paragraph (b) is new, and concerns the accessibility of web sites, which have become an increasingly important means through which the public obtains information from and makes reservations with air carriers. Not only is using an airline web site often the fastest and most convenient way for consumers to learn about and book flights, but these web sites are also often the only places where passengers have access to certain fares or specials. At the time the Department originally issued Part 382, the internet was not yet an important means of interaction between airlines and their customers. It is important to update this rule to take this important change into account, and to ensure that passengers with vision impairments have nondiscriminatory access to airline web sites.
Consequently, the Department proposes that airlines must make their web sites accessible to all members of the public, including those who are blind or visually impaired. We propose that standards for accessibility be those in 36 CFR Part 1194, which implements section 508 of the Rehabilitation Act of 1973, as amended. Section 508 applies to activities of the Federal government, and does not on its own terms cover airlines. However, we believe that the standards developed under section 508 are generally the appropriate standards for web site accessibility. Use of these
In
New web sites going on-line after the effective date of this rule would have to be accessible from the outset. Existing web sites would have two years to comply. It should be pointed out that under this proposal, web sites that act as affiliates, agents, or contractors for a number of carriers (
If a carrier provides written information to the public (
One of the services that carrier web sites may provide is the ability to select seat assignments or various special services (
U.S. carriers would have to meet all the requirements of this section with respect to all their systems and activities. Consistent with the coverage of foreign carriers outlined in § 382.5, foreign carriers' obligations could be somewhat more limited. They would have to comply only with respect to flights and related activities covered under § 382.5. For example, only portions of a web site pertaining to flights beginning or ending at a U.S. airport would have to meet the internet accessibility requirement of proposed paragraph (b). It would be up to the foreign carrier to decide whether it made sense to segregate its U.S.-related operations from its other operations in this way.
This section, based on current § 382.45(d), clarifies that the carrier must have a current, up-to-date, copy of Part 382 available for review not only by individuals with disabilities but by any member of the public who requests it. It must be available at each airport the carrier serves. In the case of a foreign carrier, this means it must be available at any airport serving flights that begin or end at a U.S. airport. It would be sufficient if the carrier has one copy that passengers can review. It is not necessary for them to have multiple copies to hand out. The effective communication requirement of § 382.43 would apply to the provision of the rule to a requesting passenger, except that translations of the rule into foreign languages would not be required. As noted in the discussion of § 382.43 above, this effective communication requirement could be met in a variety of ways, including but not limited to the provision of materials in alternative formats (
Paragraph (a) concerns accessibility requirements for terminal facilities at U.S. airports. It applies equally to foreign or U.S. carriers with respect to the terminal facilities they own, lease, or control at a U.S. airport. The substantive requirements of the proposed paragraph are based on current § 382.23, with some additional elaboration (
Paragraph (b) states requirements pertaining to foreign airports. It would apply to both U.S. and foreign carriers for facilities they lease, own, or operate at foreign airports. Consistent with the proposed requirements for foreign carriers generally, this requirement applies to foreign carriers only with respect to terminal facilities serving flights that begin or end at a U.S. airport. It is obvious that, for air travel to points outside the U.S. to be accessible to passengers with disabilities, accessible airport facilities are essential at both the U.S. and foreign airports involved in a flight. If a carrier's airport facilities at the U.S. end of a flight are accessible, but the carrier's facilities at the foreign end of the flight are inaccessible, a passenger with a disability will be unable to complete the journey. Such a denial of access to the air travel system is incompatible with the purposes of the ACAA. The Department is aware that there may be
For both U.S. and foreign carriers, the NPRM proposes a performance requirement, rather than a facilities accessibility requirement, as such: passengers must be able to move through the airport readily and get to and from the gate they will be using. Carriers meet this obligation through any combination of facility accessibility, auxiliary aids, equipment, the assistance of personnel, or other appropriate means consistent with the safety and dignity of passengers with a disability. The Department proposes to adopt this performance standard, rather than requiring compliance with the ADAAGs or other U.S. accessibility standards, because it is questionable whether it would be legally and practically sound to impose these standards on facilities located on foreign soil. The Department does not consider physically hand-carrying a passenger (
Paragraph (c) establishes compliance dates for the requirements of this section. Foreign carriers would have a year to comply, both at U.S. and foreign airports. U.S. carriers are already required to comply with these requirements at U.S. airports, and would have a year to comply at foreign airports. The Department seeks comment on whether this time frame is feasible.
One feature now found at airports that was not present when the original ACAA rule was issued in 1990 is the electronic ticketing kiosk. Particularly for passengers who are traveling without checked luggage, these kiosks can save considerable time by avoiding the need to wait in long lines at the ticket counter. The Department seeks comment on the accessibility of these devices. In terms of approachability, height of screens and controls, location of slots for credit cards and dispensing of boarding passes, are kiosks sufficiently accessible to passengers with mobility impairments? Is use of the devices accessible to persons with mobility or vision impairments? Should the final ACAA rule contain specific accessibility requirements for them and, if so, what should the requirements be? In this context, we note 36 CFR 1194.25, part of the Access Board's section 508 standards for “self-contained closed products.” This provision requires independent access for persons with hearing or vision impairments and that machines be within specified reach ranges. The Department seeks comment on whether the final rule should adopt these standards by reference for electronic kiosks.
This provision is derived from current § 382.45(c), as it pertains to airport facilities. Foreign carriers would have a year to comply, both at U.S. and foreign airports. U.S. carriers are already required to comply with these requirements at U.S. airports, and would have a year to comply at foreign airports. Again, the Department seeks comment on whether this time frame is feasible. As mentioned above, the Department is working on a follow-on NPRM specifically concerning accommodations for deaf and hard-of-hearing passengers. The future NPRM will consider such accommodations in greater detail. Meanwhile, the current NPRM proposes to retain the existing requirements for such accommodations and would apply them to foreign air carriers.
At the time of the publication of the original ACAA rule, security screening procedures were controlled by air carriers and consequently subject to regulation under Part 382. However, the Transportation Security Administration now controls security screening at U.S. airports. As a Federal agency, it is not subject to regulation under the ACAA. Likewise, there may be foreign legal requirements for security screening at foreign airports that are not subject to ACAA regulation.
Proposed § 382.55 recognizes the role of these authorities. However, it is possible that some air carriers may choose to conduct security screening procedures that go beyond those carried out under TSA or foreign legal requirements. The Department wants to ensure that additional air carrier security screening procedures do not discriminate against passengers with a disability. Consequently, for such additional carrier-imposed procedures, we propose to carry forward the substance of current § 382.49. The Department seeks comment on whether this is necessary and, if so, whether the provisions should be modified to reflect the kind of additional security screening procedures that carriers impose. For example, if a carrier interviews passengers as part of its security screening process, how should it ensure effective communication in the interview with a passenger having a hearing or vision impairment?
This section is based on current § 382.21(a)(1). It would make a number of clarifications to the existing language. The basic requirement of movable aisle armrests on half the aisle seats on the aircraft remains the same. The rule would specify that the base number of passenger aisle seats from which the 50 percent requirement is calculated would not include seats in exit rows or any other place where an FAA safety rule precludes a passenger with a mobility impairment from sitting.
Paragraph (c) would state explicitly that movable aisle armrests must be provided proportionately in all classes of service in the entire passenger cabin. For example, if 80 percent of the aisle seats on the aircraft in which passengers with mobility impairments may sit are in coach, and 20 percent are in first class, then 80 percent of the movable aisle armrests must be in coach, with 20 percent in first class. The proposed rule would provide a phase-in period for U.S. as well as foreign air carriers, to prevent undue hardship in cases where carriers had not previously installed movable armrests in all classes of service.
Paragraph (d) carries forward an existing requirement from § 382.21(a)(1)(iii). We would note that, consistent with § 382.41, this information must be provided specifically by seat and row number.
The current rule includes an exception for types of seats in which incorporating movable aisle armrests would not be feasible. The Department is proposing to delete this exception. The Department has not seen evidence showing that any particular sort of seat truly makes the use of movable aisle armrests infeasible. Moreover, the Department believes that this exception has led to a lack of movable armrests in some classes of service for some carriers. The Department seeks comment on this issue.
U.S. carriers are already subject to most of the requirements of this section. We propose to require foreign carriers to
This section carries forward the requirements of current § 382.21(a)(3). It would make explicit that carriers may, but are not required to, install accessible lavatories in single-aisle aircraft. It also points out that while retrofit is not required, if a lavatory unit is replaced on an existing aircraft with more than one aisle, it must be replaced with an accessible unit. The same would hold true for the replacement of a lavatory component, even if the entire unit is not replaced. As with movable aisle armrests, foreign carriers must comply with the requirement for new aircraft ordered after the effective date of the final rule or delivered beginning two years after that date. U.S. carriers are already required to comply with respect to all aircraft ordered or delivered after the dates specified in the original Part 382.
The Department is aware that the absence of accessible lavatories on single-aisle aircraft can create inconvenience and difficulty for some passengers with disabilities. The Department has refrained from proposing to require accessible lavatories in single-aisle aircraft primarily out of concern that the cost of installing these lavatories could impose an undue financial burden on air carriers. This potential burden relates not only to the cost of the lavatory units themselves but also, and more importantly, to the continuing revenue losses that airlines would encounter because they would probably have to reduce the seating capacity of the aircraft to accommodate the larger lavatory unit. Nevertheless, we ask for comment on whether it would be desirable and feasible, practically and economically, to require accessible lavatories on at least some new single-aisle aircraft (
For some years, the Department has had available guidance on the design of accessible lavatories both for use in single-aisle and double-aisle aircraft. This guidance is posted on the Department's Web site (
This section carries forward the requirements of current § 382.21(a)(4), which requires carriers to have a full-time on-board wheelchair in the cabin of some aircraft, and to provide an on-board wheelchair on
U.S. carriers are already required to comply with this requirement with respect to aircraft with more than 60 seats. We would provide a year phase-in period with respect to aircraft having 50-60 seats. We would also give foreign carriers two years from the effective date of the rule to come into compliance.
This section carries forward the requirements of current § 382.21(a)(2), which requires newer aircraft with 100 or more seats to have priority space in the cabin for stowage of at least one passenger's folding wheelchair. This refers to a different wheelchair and a different space than the carrier-supplied on-board wheelchair and space described in current § 382.21(a)(4) and proposed § 382.65 above. In some situations, a carrier must accommodate
The Department has always intended, and the rule has always meant, that the storage space for the passenger's wheelchair must be sufficient for a typical adult-size folding wheelchair that belongs to a passenger. Recently, however, some carriers appear to have misunderstood the current rule, suggesting that the rule could be interpreted to mean that a carrier could comply by providing space only for a child-size wheelchair, the carrier's own on-board wheelchair, or a multi-piece break-down wheelchair, the components of which could be stored in the overhead compartments and under-seat spaces normally used for carry-on luggage. We have revised the regulatory text to make sure that such misunderstandings will not arise in the future. We seek comment on whether any additional language is needed. We also propose specific dimensions for a passenger wheelchair that would fit into the designated space. These dimensions have been used in DOT enforcement actions. We seek comment on whether the dimensions provide sufficient space for typical passenger folding wheelchairs and are otherwise appropriate.
Current DOT enforcement policy permits carriers to comply with the requirements for passenger wheelchair stowage space across two or three seats using a strap kit approved by the FAA, rather than to retrofit an aircraft, possibly involving the removal of seats, to provide the designated wheelchair space. If it is necessary to bump passengers to accommodate a passenger wheelchair carried in this fashion, the bumped passengers receive compensation equivalent to denied boarding compensation. This approach is not mentioned in the current or proposed rule text. We seek comment on whether the rule text should codify this policy or whether the rule should require a closet in each aircraft (or, at least, each new aircraft) that is capable of accommodating a passenger's folding wheelchair.
If a carrier wishes to use this or another alternative means to meet the passenger wheelchair stowage requirement, it should request approval from the Assistant General Counsel for Aviation Enforcement and Proceedings, U.S. Department of Transportation, 400 7th Street, SW., Washington DC 20590. Approval would be contingent on FAA concurrence, where applicable. The Department proposes to continue to make this compliance option available under the proposed rule.
This section carries forward administrative requirements now found in § 382.21(d)-(f).
These sections carry forward the requirements of current § 382.38, restructured for greater clarity. The existing language that § 382.81(d) incorporates provides that the seating accommodation for a person with a fused or immobilized leg would be “on the side of an aisle that better accommodates the individual's disability.” The Department seeks comment on whether there have been any problems under this provision concerning passengers extending a leg into the aisle and interfering with service carts or pedestrians using the aisle. If there have been such problems, we seek comment on how to avoid them while still accommodating passengers in this situation. In addition, we note that by an “immobilized” leg, we mean one in which there is a severely limited range of motion in the knee, such that the passenger cannot flex the joint readily to any significant degree. We also seek comment on whether other seating accommodations should be added to fill gaps, if any, in the existing provision.
This provision carries forward the provisions of current § 382.37(a) and (b). Current § 382.37(c), concerning seating for persons traveling with a service animal, has been moved to the service animal section of the rule (proposed § 382.117(c)).
Proposed § 382.87(c) concerns one of the grounds for excluding a passenger from a flight. If the passenger's involuntary active behavior would create a direct threat in one seat location, but the passenger could be transported if seated safely in another location (
Paragraphs (d)-(f) codify existing interpretations and the requirements of current § 382.38 (h) and (i). With one exception, passengers with a disability are not required to give up a seating accommodation they already have to accommodate another passenger with a disability, and no one is ever denied transportation on a flight to provide accommodations required by this subpart (except in the “strapping” policy situation discussed in connection with § 382.67). Carriers are not required to furnish more than one seat per ticket (see discussion of § 382.31 above) and carriers would not be required to provide a seat in a class of service other than the one the passenger has purchased in order to provide an accommodation required by this part. The Department seeks comment on whether there should be any exceptions to this principle (
Paragraph (a) of this section prohibits carriers from excluding a passenger with a disability from a seat, except to comply with FAA regulations. If a foreign carrier believes that a foreign legal requirement precludes it from complying with this section, the carrier could apply for a waiver under § 382.7.
These requirements already apply to U.S. carriers. The proposal would give foreign carriers six months to come into compliance. We suggest six months, rather than a longer period, since compliance does not require physical alterations to aircraft or other facilities.
This provision would require carriers to provide assistance to passengers with disabilities in moving around the terminal. It includes assistance with connections between flights; as under the current rule, the carrier that operates the arriving flight is responsible for the assistance, even if the connecting flight is with another carrier, and even if the passenger is traveling on two separate tickets and with separate reservations.
The proposed rule would also propose requirements concerning assistance in moving through the terminal other than in connecting flight situations. The carrier on whose flight the passenger is departing (at the beginning of a journey) or arriving (at the end of a journey) would be responsible for assisting the passenger between terminal entrance and gate, as well as with accessing ticket and baggage locations, rest rooms, or food service concessions. As in all aspects of carrier assistance to passengers, carrier personnel or their contractors are not expected to provide personal care attendant services, such as assistance with eating or using a bathroom. The Department seeks comment on whether, in the situation where a passenger is arriving at an airport to begin a journey, it is reasonable for the carrier to be able to require advance notice for meeting the passenger to provide the assistance required in this section.
Paragraph (c) proposes a new requirement, related to the requirement to assist passengers in moving through the terminal. It would obligate carrier and contractor personnel to assist passengers with disabilities with carry-on and gate-checked luggage as they go between connecting flights or between terminal entrance and gate. We believe that this obligation is implicit in the responsibility to assist passengers with disabilities in moving through terminals, but we believe it is useful to state the obligation explicitly to avoid any misunderstanding. We also seek comment on whether it would be reasonable to place limits on this obligation (
When the Department published the original ACAA rules in 1990, it was an almost invariable carrier practice to offer preboarding to passengers with disabilities, as well as to families with small children and other persons needing a little more time to get settled into their seats. Some provisions of the rule (
In recent years, however, some carriers, at least for some flights, have abandoned or partially abandoned the practice of offering preboarding. The ACAA does not concern itself with families with small children or other situations in which non-disabled passengers might need additional time for seating. However, the Department believes that providing a preboarding option for passengers is an essential accommodation for seating, stowage, and other activities that are more difficult for passengers with disabilities than other people. For this reason, the Department is proposing to require a preboarding opportunity for passengers with disabilities of which all passengers would be notified.
Paragraph (a) of this section carries forward the requirement of current § 382.39(a) and (a)(1). It specifies that the requirement for assistance, consistent with proposed § 382.91, includes responsibility for connecting flights. This paragraph speaks of carriers providing this assistance “promptly.” The Department seeks comment on whether this requirement should be more specific (
Paragraph (b) rewords the requirement of current § 382.39(a)(2) to be consistent with the present state of requirements for providing boarding assistance at U.S. airports.
These sections combine and condense the requirements of current §§ 382.40 and 382.40a on the use of mechanical lifts or ramps, without making substantive changes in the requirements. By this time, compliance dates for all requirements to have agreements and lifts in place under current §§ 382.40 and 382.40a have passed for U.S. carriers and U.S. airports. The NPRM proposes time frames for foreign carrier compliance approximately similar to that which U.S. carriers had. The training-related provisions of the current regulations on boarding via lifts or ramps have been moved to proposed § 382.141(a)(1).
One of the most important changes in airline service since the publication of the original ACAA regulation concerns the increasing use of regional jets (RJs) by carriers for relatively short flights. These aircraft typically carry from 40-70 passengers and often are boarded from the tarmac, rather than via loading bridges. At many airport terminals, passengers must descend a level from the gate area to the tarmac in order to board. Under these circumstances, for passengers with mobility impairments to board these aircraft successfully, airlines and airports need to ensure that lifts are in place and made available to passengers and that there is an accessible path from the gate area to the tarmac. The Department's Aviation Consumer Protection Division has received few complaints about tarmac boardings of RJs. Nevertheless, the Department seeks information from airports, airlines, and passengers about whether these conditions are being met. Are there accessible paths from gate areas to the tarmac, and is lift service successful? We also seek comment on whether there are any additional regulatory provisions that would facilitate use of RJs by passengers with disabilities.
This provision lists the circumstances in which use of lifts for boarding and deplaning is not required, even in the absence of other means of level-entry boarding. These include foreign airports, a specified category of smaller U.S. airports, situations involving exempt aircraft, situations prior to the compliance deadline for foreign carriers, and other situations beyond the control of the carrier that prevent use of the lifts. In all these situations, the obligation to provide boarding and deplaning assistance continues. Carriers must find other means of accomplishing the objective. No one method is prescribed; only physically hand-carrying a passenger, as described in § 382.101, is prohibited.
This section carries forward the requirement of current § 382.39(a)(3).
This section carries forward the provisions of current § 382.39(b), and adds an “effective communication” requirement similar to the on-aircraft portions of present § 382.45(c), with some current exceptions eliminated. The effective communication would have to be with respect to such information as weather at the destination, connecting gates at the arrival airport, and on-board services.
This section carries forward the provisions of current § 382.39 (c).
This section carries forward the provisions of current §§ 382.45(b) and 382.47(b). Foreign carriers may comply with the requirement for video safety briefing materials incrementally, as they replace old videos with new ones. As is currently the case, carriers are prohibited from taking any action adverse to a passenger on the basis that the passenger has not “accepted” the briefing. For example, it would be improper for a carrier to take any action against a passenger because carrier personnel felt that the passenger was not paying sufficient attention to the briefing (
This section carries forward the provisions of current § 382.55(a). While the substance of this provision has not
This section incorporates the substance of current § 382.41(a)-(d). It adds a reference to TSA as well as FAA regulations that may affect the carriage of passengers' items in the cabin. As in other situations in which there could be a conflict with foreign law, foreign carriers could apply for a waiver under § 382.7.
This section carries forward the substance of current § 382.41(e). It emphasizes the applicability of FAA, TSA, and hazardous materials rules to the carriage of items in the cabin. As in other situations in which there could be a conflict with foreign law, foreign carriers could apply for a waiver under § 382.7.
One problem that has sometimes occurred concerns competing claims to stowage space between passengers' wheelchairs and crew luggage. On some occasions, crew members have argued that their own luggage takes precedence over a passenger's folding wheelchair. A related problem has arisen in some cases where crew members have asserted that a passenger's folding wheelchair need not be stowed in the cabin because an on-board wheelchair is already stowed there. The language of this section is intended to address both problems. Under this provision, if a closet or other stowage space is made available for passengers' items at any time, then it must be made available for the stowage of passengers' wheelchairs. This use of the space is not trumped by crew luggage. Nor is the presence of an on-board wheelchair a valid reason for denying stowage space to a passenger's wheelchair. The Department's Aviation Enforcement and Proceedings Office has made these positions clear to carriers under the existing regulation, and we maintain these positions under the proposed rule.
This section carries forward the provisions of current § 382.41(f). It again makes reference to the potential applicability of TSA as well as FAA regulations. As in other situations in which there could be a conflict with foreign law, foreign carriers could apply for a waiver under § 382.7.
This section carries forward the provisions of current § 382.41(g). It again makes reference to the potential applicability of TSA as well as FAA regulations. As in other situations in which there could be a conflict with foreign law, foreign carriers could apply for a waiver under § 382.7.
This section carries forward the provisions of current §§ 382.41(h) and 382.43 (a). It includes language incorporating an existing provision (see current § 382.41(h)) that carriers must permit a passenger to provide written directions concerning the disassembly and reassembly of wheelchairs and other devices. The carrier would have to follow these instructions to the greatest extent feasible, consistent with applicable FAA and TSA rules. As in other situations in which there could be a conflict with foreign law, foreign carriers could apply for a waiver under § 382.7.
The purpose of this requirement is to reduce the chance for damage to wheelchairs and other devices resulting from unfamiliarity by carrier personnel with the best way of working with the devices. The passenger is often the best source of information on how to handle his or her valuable property.
This section carries forward the provisions of current § 382.43(b). Because the rule now would apply to foreign carriers, the Department believes it is useful to spell out that the domestic baggage liability limits of 14 CFR part 254, as well as the exception to these limits that this section in effect creates, do not apply to international transportation to which Warsaw or Montreal Convention liability limits apply. The Department seeks comment on how liability for loss of or damage to wheelchairs and other assistive devices should be handled in the case of international transportation.
This section is based principally on current § 382.61 (a)(1)-(3), (5)-(7), and (b). The NPRM would add provisions concerning training on equipment operation and consultation with disability community organizations. The Department seeks comment on the application of this proposed requirement to foreign carriers. For example, if a foreign carrier can demonstrate it made good faith efforts to contact disability community organizations in its home country, but was unable to do so, should the requirement be waived? In addition, training would cover contractor employees who deal with the traveling public generally, not only at airports as under the current § 382.61(a)(6). For example, contract reservationists who deal with customers over the phone need to know how to apply certain provisions of this regulation no less than ticket agents located at an airport.
This section would establish the schedule on which carriers must complete the training of their personnel. Training of contractor personnel would be required to follow the same schedule, as if the contractor personnel worked directly for the air carrier. Current personnel of U.S. carriers are supposed to have received ACAA training already. However, the final rule will probably change some requirements of the rule. Consequently, the Department proposes that existing U.S. carrier personnel
For foreign carriers, training requirements would be limited to carrier and contractor personnel who deal with the traveling public in connection with flights that begin or end at a U.S. airport. Because foreign carriers probably would not have experience in developing and implementing disability-related training programs comparable to that of U.S. carriers, foreign carriers would not be required to complete training for any of their personnel until a year from the effective date of the rule. Otherwise, the U.S. and foreign carrier training requirements would be parallel.
Current § 382.63 requires carriers to establish ACAA compliance programs, which major or national U.S. carriers must submit to DOT for review. The NPRM proposes to delete this requirement, which we believe is no longer necessary. Rather, this section would require all carriers to incorporate their procedures for complying with ACAA requirements in their manuals, training materials, and guidance for their personnel. Carriers would not be required to submit these materials to DOT as a routine matter. However, carriers would have to make them available to DOT for review on DOT's request. DOT could require a carrier to change these materials to comply with Part 382. We also seek comment on whether it would be beneficial for carriers to be required to submit certifications of compliance with this requirement to the Department.
This section is based on current § 382.65 (a)(1)-(4). We propose an important addition to the current language. In any situation in which a person raises a disability-related issue, and a carrier's personnel do not resolve the issue immediately to the customer's satisfaction, the carrier's personnel must immediately inform the customer of the right to contact a Complaints Resolution Official (CRO). Frequently, passengers do not know that CROs exist and that they can be a resource to solve discrimination or accessibility problems. We believe it should be the airline's responsibility to make passengers aware of this resource when a passenger's disability-related concern has not been addressed to the customer's satisfaction by the carrier's staff. A web site, phone reservation system, or contractor must also provide this same information when such a problem arises. To ensure that passengers have the necessary tools at their disposal to resolve issues, the airlines in this situation would also have to provide the Department's toll-free airline accessibility hot line number. This number is available only for calls made from the U.S.
The current and proposed regulations require carriers to make CRO service available at all times when the carrier is operating at the airport. In some cases, a carrier may have only a few flights a week to a given airport. The carrier may staff its station at that airport only around the times that these flights are arriving or departing. In such a case, CRO service would only be required during those periods.
This section is based on current § 382.65(a)(5). It concerns situations when a complaint is made directly to a CRO, typically by such “real time” means as a personal conversation, phone or TTY call, or electronic instant message. (Communications to the carrier's organization are discussed below in connection with § 382.155.)
This section is unchanged from the current § 382.65(b), except that it eliminates the 45-day complaint filing deadline with respect to complaints forwarded to carriers by DOT.
The Department has issued a final rule creating a new § 382.70, concerning recordkeeping and reporting requirements to comply with AIR-21 mandates. We are not reprinting this material here, because we are not seeking additional comment on it. When the final rule based on this NPRM is issued, we will insert the contents of the current § 382.70 at this point in the revised rule. The Department will also incorporate the Appendix created by the recordkeeping and reporting requirements rulemaking into the Part 382 final rule as Appendix B.
This section carries forward the provisions of current § 382.65(c).
This appendix incorporates into the ACAA rule the guidance on service animal issues that the Department recently issued and placed on its web site. The guidance is intended to give both air carriers and passengers the benefit of the thinking of the Department, the airline industry, and the disability community on how to carry out the rule's requirements for accommodating passengers' service animals. This proposed appendix would add three elements to the previously published version of the guidance: training for emotional support animals, a prohibition on requiring documentation for most service animals, and certain conditions on the use of service animals. As noted above, the Department is seeking comments on whether this guidance should be modified in any way.
One issue of which the Department has become aware concerns transportation of service animals on long-duration flights (
The purpose of this table is to aid readers in finding the location, in the new proposed rule text, of material corresponding to or derived from provisions in the current rule text. The current and proposed language often is not identical, though the subject matters covered are similar. The citations from the current regulatory text are in the left-hand column; the corresponding portions of the new proposed regulatory text are in the right-hand column.
This proposed rule is a significant rule under Executive Order 12886 and the Department's Regulatory Policies and Procedures. It is of considerable interest to the disability community and the aviation industry. It does not, however, meet the criteria under the Executive Order for an economically significant rule.
The extension of current provisions to foreign air carriers will be of significant interest to them and the public. The Department has attempted to propose this extension in as even-handed a manner as possible, applying not only the same regulatory provisions but the same compliance time frames that applied to U.S. carriers. As noted above, the provisions of the proposed rule apply only to foreign aircraft and operations involved with flights beginning or ending at U.S. airports.
Other than extending coverage of ACAA provisions to foreign carriers, the most important new element is the requirement for web site accessibility, which is an extension of existing communications accessibility requirements to a medium that did not play an important role in the industry when the original ACAA rule was issued. This new requirement would apply to U.S. and foreign carriers alike (though, with respect to foreign carriers, only with respect to flights to and from U.S. airports).
This rule results from a statutory change applying the requirements of the ACAA to foreign as well as U.S. air carriers. We believe that amending Part 382 to cover foreign air carriers is the most direct and transparent way of carrying out this statutory mandate. There are alternative approaches the Department could consider, though the Department does not at this time believe they are as feasible. Nevertheless, the Department seeks comment on these and any other alternatives that commenters may want to suggest.
Since the statute now applies to foreign air carriers, the Department could simply rely on the efforts of our Aviation Enforcement and Proceedings office to respond to complaints of discrimination by passengers against foreign air carriers. While enforcement is an important task of the Department under the ACAA, using enforcement alone to implement the statute has disadvantages. The statute does not provide to foreign air carriers detailed advance notice of what the Department's expectations for compliance are, leading to considerable uncertainty. This approach would also result in case-by-case adjudications being the only way of determining what detailed requirements were, which would serve passengers less well than an articulated set of generally applicable standards. This approach would also create a disparity between the way U.S. carriers and foreign carriers would be expected to comply with the same underlying statutory requirement, contrary to the apparent intent of Congress that all carriers serving U.S. airports be treated similarly.
The Department could also wait for international action (
Because the rule will impose compliance requirements on U.S. and foreign carriers, the Department has produced a regulatory evaluation for this proposal, which we have placed into the docket. The evaluation estimates that incremental compliance costs will be approximately $16-21 million per year, plus an additional one-time cost of about $300,000 for web site accessibility. Twenty-year present value costs for compliance are estimated to range between $166 and $205 million.
As foreign air carrier service becomes more accessible, there will be obvious, though nonquantifiable, benefits to passengers with disabilities and persons traveling with them. The analysis also estimates that there will be tangible economic benefits to foreign air carriers themselves, in terms of increased revenue from the additional passengers that will be able to travel as barriers to travel are reduced. The range of these benefits is estimated to be approximately $326 to $615 million in 20-year present value terms, with the most probable benefit being $443 million.
Given the scale of the projected economic benefits of the rule, and the likelihood that foreign carriers do not face legal or regulatory barriers preventing them from providing accommodations that would produce these benefits, the question of why carriers have not voluntarily adopted such accommodations may arise. That is, since airlines presumably are no less interested than the next economic actor in maximizing profits, why have they not recognized these potential benefits and voluntarily taken the opportunity of increasing their income and profits by providing accommodations to passengers with disabilities, even in the absence of regulation?
The Department does not have information in its record concerning the thought processes of airline managements on this question. One possibility is that the notion that providing improved accommodations to passengers with disabilities can be a
The Department seeks information and comments on this matter, as well as on the regulatory assessment's approach to, and the accuracy of, its estimates of costs and benefits.
There are a number of other points of interest in the regulatory assessment to which the Department would call attention. One is the fact that much of the benefits analysis is based on Canadian data. The analysis then extrapolates from these data to the situation of foreign air carriers. As the regulatory assessment points out, this extrapolation involves a good deal of uncertainty, since the situations of other nations' air carriers and passenger populations may not replicate Canadian data and trends. This uncertainty is the primary reason for conducting the sensitivity analysis in Chapter 5 of the assessment. Nevertheless, the Canadian data is the most complete the Department has been able to find at this time. We seek comment and additional data from carriers, international organizations, and other sources that will augment the information available to the Department for purposes of the final rule.
There are also some classes of potential beneficiaries besides passengers with disabilities that the assessment mentions. These include friends and relatives of passengers with disabilities and some airline employees. The former would benefit by being able to travel more readily with a passenger with a disability (indeed, a family member of a disabled passenger might well forego the opportunity to travel if his or her spouse or child could not readily travel because of barriers that this proposed regulation tries to address). The latter would benefit because lift boarding requirements of the rule would reduce the chances of injury and time lost from work as the result of having to hand-carry passengers with disabilities onto and off of aircraft. The Department seeks comments on these and other potential classes of beneficiaries as well as any additional data that would help us more precisely analyze the effects of the proposed regulation on beneficiaries.
The Department certifies that, if adopted, this proposed rule would not have a significant economic effect on a substantial number of small entities. The vast majority of passenger air traffic on international routes to and from U.S. airports is carried on airlines that are not small entities; the economic effects of the proposal on small carriers that fly international routes into and out of the U.S. (
There are a number of other statutes and Executive Orders that apply to the rulemaking process that the Department considers in all rulemakings. However, none of them are relevant to this NPRM. These include the Unfunded Mandates Reform Act (which does not apply to nondiscrimination/civil rights requirements), the National Environmental Policy Act, E.O. 12630 (concerning property rights), E.O. 12988 (concerning civil justice reform), and E.O. 13045 (protection of children from environmental risks).
Air carriers, Civil rights, Individuals with disabilities, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Department proposes to amend 14 CFR Part 382 as follows:
1. Revise Part 382 to read as follows:
49 U.S.C. 41702, 41310, 47105, and 41712.
The purpose of this part is to carry out the Air Carrier Access Act of 1986, as amended. This rule prohibits both U.S. and foreign air carriers from discriminating against passengers on the basis of disability; requires carriers to make aircraft, other facilities, and services accessible; and requires carriers to take steps to accommodate passengers with a disability.
In this part, the terms listed in this section have the following meanings:
(a)
(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory including speech organs, cardio-vascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term
(b)
(c)
(d)
(1) Has a physical or mental impairment that does not substantially limit major life activities but that is treated by an air carrier as constituting such a limitation;
(2) Has a physical or mental impairment that substantially limits a major life activity only as a result of the attitudes of others toward such an impairment; or
(3) Has none of the impairments set forth in this definition but is treated by an air carrier as having such an impairment.
(a) Who, as a passenger (referred to as a “passenger with a disability”), (1) With respect to obtaining a ticket for air transportation on an air carrier, offers, or makes a good faith attempt to offer, to purchase or otherwise validly to obtain such a ticket;
(2) With respect to obtaining air transportation, or other services or accommodations required by this part, (i) Buys or otherwise validly obtains, or makes a good faith effort to obtain, a ticket for air transportation on a carrier and presents himself or herself at the airport for the purpose of traveling on the flight to which the ticket pertains; and
(ii) Meets reasonable, nondiscriminatory contract of carriage requirements applicable to all passengers; or
(b) Who, with respect to accompanying or meeting a traveler, using ground transportation, using terminal facilities, or obtaining information about schedules, fares, reservations, or policies, takes those actions necessary to use facilities or services offered by an air carrier to the general public, with reasonable accommodations, as needed, provided by the carrier;
(a) If you are a U.S. air carrier, this part applies to you with respect to all your operations and aircraft, regardless of where your operations take place.
(b) Except as provided in paragraph (c) of this section, if you are a foreign air carrier, this part applies to you only with respect to flights that begin or end at a U.S. airport and to aircraft used for these flights. For purposes of this part, a “flight” means a continuous journey in the same aircraft or with one flight number that begins or ends at a U.S. airport. The following are some examples of the application of this term:
A passenger books a nonstop flight from Paris to Chicago. This is a “flight” for purposes of this part.
A passenger books a journey on a foreign carrier from Washington, DC, to Berlin. The foreign carrier flies nonstop to Frankfurt. The passenger gets off the plane in Frankfurt and boards a connecting flight, on the same or a different foreign carrier, that goes to Berlin. The Washington-Frankfurt leg of the journey is a “flight” for purposes of this part; the Frankfurt-Berlin leg is not (unless it is a code-shared flight with a U.S. carrier; see paragraph (c) of this section).
A passenger books a journey on a foreign carrier from New York to Cairo. The plane stops for refueling and a crew change in London. The passengers reboard the aircraft (or a different aircraft, assuming the flight number remains the same) and continue to Cairo. Both legs are parts of a covered “flight” for purposes of this part, with respect to passengers who board the flight in New York.
In Example 3, the carrier is not required to provide services under this part to a passenger who boards the aircraft in London and goes to Cairo. Likewise, on the return trip, the foreign carrier is not required to provide services under this part to a passenger who boards the aircraft in Cairo and whose journey ends in London.
If you are a foreign carrier that actually operates a flight that is also listed as a flight of a U.S. carrier through a code-sharing arrangement, the provisions of this part covering U.S. carriers apply to the flight.
(c) Notwithstanding any other provision of this section, if you are a foreign carrier that uses a particular aircraft in flights only between foreign airports, and you do not use the aircraft for any flights that begin or end at a U.S. airport, you are not required to comply with the aircraft accessibility requirements of Subpart E of this part with respect to that aircraft. However, you must comply with the service-related requirements of this part for any flight that is covered by this part (
(d) Unless a provision of this part specifies application to a U.S. carrier or a foreign carrier, the provision applies to both U.S. and foreign carriers.
(e) If you are an indirect air carrier, §§ 382.17 through 382.157 of this part do not apply to you.
(f) Notwithstanding any provisions of this part, you must comply with all FAA safety regulations and TSA security regulations that apply to you.
(a) If you are a foreign carrier, and you believe that an applicable provision of the law of a foreign nation precludes you from complying with a provision of this part, you may request a waiver of the provision of this part.
(b) You must send such a waiver request to the following address:
Assistant General Counsel for Aviation Enforcement and Proceedings, U.S. Department of Transportation, 400 7th Street, SW., Room 4116, Washington, DC 20590.
(c) Your waiver request must include the following elements:
(1) A copy, in the English language, of the foreign law involved;
(2) A description of how the foreign law applies and how it precludes compliance with a provision of this part;
(3) A description of the alternative means the carrier will use, if the waiver is granted, to effectively achieve the objective of the provision of this part subject to the waiver or, if applicable, a justification of why it would be impossible to achieve this objective in any way.
(d) The Assistant General Counsel for Aviation Enforcement and Proceedings may grant the waiver request if he or she determines that the foreign law applies, that it does preclude compliance with a provision of this part, and that the carrier has provided an effective alternative means of achieving the objective of the provision of this part subject to the waiver or clear and convincing evidence that it would be impossible to achieve this objective in any way.
(e) Until and unless the Assistant General Counsel for Aviation Enforcement and Proceedings grants a waiver request, the carrier requesting the waiver remains subject to the provision of this part for which the waiver is sought.
As a foreign air carrier, you are required to comply with the requirements of this part beginning [effective date of this part], except as otherwise provided in individual sections of this part.
(a) As a carrier, you must not do any of the following things, either directly or through a contractual, licensing, or other arrangement:
(1) You must not discriminate against any qualified individual with a disability, by reason of such disability, in the provision of air transportation;
(2) You must not require a qualified individual with a disability to accept special services (including, but not limited to, preboarding) that the individual does not request. However, you may require preboarding as a condition of receiving certain seating or in-cabin stowage accommodations, as specified in §§ 382.83(b), 382.85(b), and 382.123(b).
(3) You must not exclude a qualified individual with a disability from or deny the person the benefit of any air transportation or related services that are available to other persons. This is true even if there are separate or different services available for individuals with a disability, except when specifically permitted by another section of this part; and
(4) You must not take any action against an individual (
(b) If, as an indirect air carrier, you provide facilities or services for passengers that are covered for other carriers by sections §§ 382.17-382.157, you must do so in a manner consistent with those sections.
(a) As a carrier, you must modify your policies and practices as needed to ensure nondiscrimination, consistent with the standards of section 504 of the Rehabilitation Act, as amended.
(b) As a carrier, you must modify your facilities as needed to ensure nondiscrimination, consistent with the standards of the Americans with Disabilities Act Accessibility Guidelines (ADAAGs), as adopted by the Department of Transportation in 49 CFR part 37, appendix A.
(b) This requirement is part of your general nondiscrimination obligation, and is in addition to your duty to make the specific accommodations required by this part.
(c) However, you are not required to make modifications that would constitute an undue burden or would fundamentally alter your program.
(a) As a carrier, you must make sure that your contractors who provide services to the public (including airports where applicable) meet the requirements of this part that would apply to you if you provided the services yourself.
(b) As a carrier, you must include an assurance of compliance with this part in your contracts with any contractors who provide to the public services that are subject to the requirements of this part. Noncompliance with this assurance is a material breach of the contract on the contractor's part.
(1) This assurance must commit the contractor to compliance with all applicable provisions of this part in activities performed on behalf of the carrier.
(2) The assurance must also commit the contractor to implementing directives issued by your Complaints Resolution Officials (CROs) under §§ 382.151 through 382.153.
(c) As a U.S. carrier, you must also include such an assurance of compliance in your contracts or agreements of appointment with U.S. travel agents. You are not required to include such an assurance in contracts with foreign travel agents.
(d) You remain responsible for your contractors' compliance with this part and with the assurances in your contracts with them.
(e) It is not a defense to an enforcement action by the Department under this part that your noncompliance resulted from action or inaction by a contractor.
As a carrier, you must not limit the number of passengers with a disability who travel on a flight. (See also § 382.27(b)(7).)
(a) As a carrier, you must not refuse to provide transportation to a passenger with a disability on the basis of his or her disability, except as specifically permitted by this part.
(b) You must not refuse to provide transportation to a passenger with a disability because the person's disability results in appearance or involuntary behavior that may offend, annoy, or inconvenience crewmembers or other passengers.
(c) You may refuse to provide transportation to any passenger on the basis of safety, as provided in 49 U.S.C. 44902 or 14 CFR 121.533, or to any passenger whose carriage would violate FAA or TSA requirements.
(1) You can determine that there is a disability-related safety basis for refusing to provide transportation to a passenger with a disability if you are able to demonstrate that the passenger poses a direct threat (see definition in § 382.3). In determining whether an individual poses a direct threat, you must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain:
(i) The nature, duration, and severity of the risk;
(ii) The probability that the potential harm to the health and safety of others will actually occur; and
(iii) Whether reasonable modifications of policies, practices, or procedures will mitigate the risk.
(2) If you determine that the passenger does pose a direct threat, you must select the least restrictive response from the point of view of the passenger, consistent with protecting the health and safety of others. For example, you must not refuse transportation to the passenger if you can protect the health and safety of others by means short of a refusal.
(3) In exercising this authority, you must not act inconsistently with the provisions of this part.
(4) If your actions are inconsistent with any of the provisions of this part, you are subject to enforcement action under Subpart K of this part.
(d) If you refuse to provide transportation to a passenger on his or her originally-scheduled flight on a basis relating to the individual's disability, you must provide to the person a written statement of the reason for the refusal. This statement must include the specific basis for the carrier's opinion that the refusal meets the standards of paragraph (c) of this section or is otherwise specifically permitted by this part. You must provide this written statement to the person within 10 calendar days of the refusal of transportation.
(a) You must not do any of the following things on the basis that a passenger has a communicable disease or infection, unless you determine that the passenger's condition poses a direct threat:
(1) Refuse to provide transportation to the passenger;
(2) Delay the passenger's transportation (
(3) Impose on the passenger any condition, restriction, or requirement not imposed on other passengers; or
(4) Require the passenger to provide a medical certificate.
(b) In assessing whether the passenger's condition poses a direct threat and determining the least restrictive means of dealing with such a threat, you must apply the provisions of § 382.19(c)(1) through (2). For example, suppose a passenger with a communicable disease gives you a medical certificate of the kind described in § 382.23(c)(2) that describes measures for preventing transmission of the disease during the normal course of the flight. You must provide transportation to the passenger, unless you are unable to carry out the measures.
(c) If your action under this section results in the postponement of a passenger's travel, you must permit the passenger to travel at a later time (up to 90 days from the date of the postponed travel) at the fare that would have applied to the passenger's originally scheduled trip without penalty or, at the passenger's discretion, provide a refund for any unused flights, including return flights.
(d) If you take any action under this section that restricts a passenger's travel, you must, on the passenger's request, provide a written explanation within 10 days of the request.
(a) Except as provided in this section, you must not require a passenger with a disability to have a medical certificate as a condition for being provided transportation.
(b)(1) You may require a medical certificate for a passenger with a disability—
(i) Who is traveling in a stretcher or incubator;
(ii) Who needs medical oxygen during a flight; or
(iii) Whose medical condition is such that there is reasonable doubt that the individual can complete the flight safely, without requiring extraordinary medical assistance during the flight.
(2) For purposes of this paragraph, a medical certificate is a written statement from the passenger's physician saying that the passenger is capable of completing the flight safely, without requiring extraordinary medical assistance during the flight.
(c)(1) You may also require a medical certificate for a passenger if he or she has a communicable disease or condition that poses a direct threat to the health or safety of others.
(2) For purposes of this paragraph, a medical certificate is a written statement from the passenger's physician saying that the disease or infection would not, under the present conditions in the particular passenger's case, be communicable to other persons during the normal course of a flight. The medical certificate must state any conditions or precautions that would have to be observed to prevent the transmission of the disease or infection to other persons in the normal course of a flight. It must be dated within ten days of the date of the flight for which it is presented.
As a carrier, you must not require a passenger with a disability to provide advance notice of the fact that he or she is traveling on a flight.
(a) Except as provided in paragraph (b) of this section, as a carrier you must not require a passenger with a disability to provide advance notice in order to obtain services or accommodations required by this part.
(b) You may require a passenger with a disability to provide up to 48 hours' advance notice and one-hour advance check-in to receive the following services and accommodations. The services listed in paragraphs (b)(1) through (4) of this paragraph are optional; you are not required to provide them, but you may choose to do so.
(1) Medical oxygen for use on board the aircraft;
(2) Carriage of an incubator;
(3) Hook-up for a respirator to the aircraft electrical power supply;
(4) Accommodation for a passenger who must travel in a stretcher;
(5) Transportation for an electric wheelchair on a flight scheduled to be made with an aircraft with fewer than 60 seats;
(6) Provision by the carrier of hazardous materials packaging for a battery for a wheelchair or other assistive device;
(7) Accommodation for a group of ten or more qualified individuals with a disability, who make reservations and travel as a group; and
(8) Provision of an on-board wheelchair on an aircraft with more than 50 seats that does not have an accessible lavatory.
(c) If the passenger with a disability provides the advance notice you require, consistent this section, for a service that you must provide (see paragraphs (b)(5) through (8) of this section) or choose to provide (see paragraphs (b)(1) through (4) of this section), you must provide the requested service or accommodation.
(d) Your reservation and other administrative systems must ensure that when passengers provide the advance notice that you require, consistent with this section, for services and accommodations, the notice is communicated, clearly and on time, to the people responsible for providing the requested service or accommodation.
(e) If a passenger with a disability provides the advance notice you require, consistent with this section, and the passenger is forced to change to another flight (
(f) If a passenger does not meet advance notice or check-in requirements you establish consistent with this section, you must still provide the service or accommodation if you can do so by making reasonable efforts, without delaying the flight.
(a) Except as provided in paragraph (b) of this section, you must not require that a passenger with a disability travel with another person as a condition of being provided air transportation.
(b) You may require a passenger with a disability in one of the following categories to travel with a safety assistant as a condition of being provided air transportation, if you determine that a safety assistant is essential for safety:
(1) A passenger traveling in a stretcher or incubator. The safety assistant for such a person must be capable of attending to the passenger's in-flight medical needs;
(2) A passenger who, because of a mental disability, is unable to comprehend or respond appropriately to safety instructions from carrier personnel, including the safety briefing required by 14 CFR 121.571(a)(3) and (a)(4) or 14 CFR 135.117(b) or ICAO Standards and Recommended Practices, as applicable;
(3) A passenger with a mobility impairment so severe that the person is unable to assist in his or her own evacuation of the aircraft;
(4) A passenger who has both severe hearing and severe vision impairments, if the person cannot establish some means of communication with carrier personnel, adequate to permit transmission of the safety briefing required by 14 CFR 121.571(a)(3) and (a)(4), 14 CFR 135.117(b), or ICAO Standards and Recommended Practices, as applicable.
(c) If you determine that a person meeting the criteria of paragraph (b)(2), (b)(3) or (b)(4) of this section must travel with a safety assistant, contrary to the individual's self-assessment that he or she is capable of traveling independently, you must not charge for the transportation of the safety assistant. However, if a passenger voluntarily chooses to travel with a personal care attendant or a safety assistant that you do not require, you may charge for the transportation of that person.
(d) If, because there is not a seat available on a flight for a safety assistant whom the carrier has determined to be necessary, a passenger with a disability holding a confirmed reservation is unable to travel on the flight, the passenger is eligible for denied boarding compensation under 14 CFR Part 250, if Part 250 applies to the flight.
(e) For purposes of determining whether a seat is available for a safety assistant, you must deem the safety assistant to have checked in at the same time as the passenger with a disability.
(f) Concern that a passenger with a disability may need personal care services (
(a) As a carrier, you must not impose charges for providing facilities, equipment, or services that this rule requires to be provided to passengers with a disability. You may charge for services that this part does not require (
(b) You may charge a passenger for the use of more than one seat if the passenger's size or condition (
(a) As a carrier, you must not subject passengers with a disability to restrictions that do not apply to other passengers, except as otherwise permitted in this part (
(b) Restrictions you must not impose on passengers with a disability include, but are not limited to, the following:
(1) Restricting passengers' movement within the terminal;
(2) Requiring passengers to remain in a holding area or other location in order to receive transportation, services, or accommodations;
(3) Making passengers sit on blankets on the aircraft;
(4) Making passengers wear badges or other special identification (
(5) Requiring ambulatory passengers, including but not limited to blind or visually impaired passengers, to use a wheelchair in order to receive assistance required by this part (
(6) Otherwise mandating separate treatment for passengers with a disability, unless permitted or required by this part or other applicable Federal requirements.
(a) As a carrier, you must not require passengers with a disability to sign a release or waiver of liability in order to receive transportation or to receive services or accommodations for a disability.
(b) You must not require passengers with a disability to sign waivers of liability for damage to or loss of wheelchairs or other assistive devices.
As a carrier, you must provide the following information, on request, to qualified individuals with a disability or persons making inquiries on their behalf. The information you provide must be specific to the type of aircraft and, where feasible, the specific aircraft you expect to use for a flight:
(a) The specific location of seats, if any, with movable armrests (
(b) The specific location of seats (
(c) Any limitations on the ability of the aircraft to accommodate passengers with a disability, including limitations on the availability of boarding assistance to the aircraft at any airport involved with the flight. You must provide this information to any passenger who states that he or she uses a wheelchair for boarding, even if the passenger does not explicitly request the information.
(d) Any limitations on the availability of storage facilities, in the cabin or in the cargo bay, for mobility aids or other assistive devices commonly used by passengers with a disability, including storage in the cabin of a passenger's wheelchair as provided in §§ 382.67 and 382.123; and
(e) Whether the aircraft has an accessible lavatory.
(a) If, as a carrier, you provide telephone reservation or information service to the public, you must make this service available to individuals who are deaf or hard-of-hearing through use of a text telephone (TTY).
(1) You must make TTY service available during the same hours as telephone service for the general public.
(2) Your response time to TTY calls must be equivalent to your response time for your telephone service to the general public.
(3) If you are a foreign carrier, you must meet this requirement by [date one year from the effective date of this part].
(b) If you provide information or reservation services to the public through an internet web site (including a web site maintained by a contractor or agent for you or for you and other air
(1) In making web sites accessible, you must use as your standards the provisions of 36 CFR Part 1194.
(2) New Web sites placed on line after [effective date of this part] must meet these accessibility standards from the time they are placed on line.
(3) Web sites that were placed on line before [effective date of this part] must meet these accessibility standards by [date two years from the effective date of this part].
(c) If, as a carrier, you provide written (
(d) If you are a U.S. carrier, the requirements of this section apply with respect to all your information and reservation services. If you are a foreign air carrier, the requirements of this section apply only with respect to your information and reservations services concerning flights covered by § 382.5.
As a carrier, you must keep a current copy of this part at each airport you serve. As a foreign carrier, this means that you must keep the copy at any airport serving a flight that begins or ends at a U.S. airport. You must make the copy available for review by any member of the public on request.
(a) As a carrier, you must comply with the following requirements with respect to all terminal facilities you own, lease, or control at a U.S. airport:
(1) You must ensure that terminal facilities are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. You are deemed to comply with this obligation if the facilities meet requirements applying to places of public accommodation under Department of Justice (DOJ) regulations implementing Title III of the Americans with Disabilities Act (ADA).
(2) With respect to any situation in which boarding and deplaning by level-entry loading bridges or accessible passenger lounges to and from an aircraft is not available, you must ensure that there is an accessible route between the gate and the area from which aircraft are boarded (
(3) You must ensure that systems of intra- and inter-terminal transportation, including, but not limited to, moving sidewalks, shuttle vehicles and people movers, comply with applicable requirements of the Department of Transportation's ADA rules (49 CFR Parts 37 and 38).
(4) Your contracts or leases with airport operators concerning the use of airport facilities must set forth your airport accessibility responsibility under this part and that of the airport operator under applicable section 504 and ADA rules of the Department of Transportation and Department of Justice.
(b) As a carrier, you must ensure that passengers with a disability can readily use all terminal facilities you own, lease, or control at a foreign airport. In the case of foreign carriers, this requirement applies only to terminal facilities that serve flights that begin or end in the U.S.
(1) This means that passengers with a disability must be able to move readily through such terminal facilities to get to or from the gate and any other area from which passengers board the aircraft you use for such flights (
(2) You may meet this obligation through any combination of facility accessibility, auxiliary aids, equipment, the assistance of personnel, or other appropriate means consistent with the safety and dignity of passengers with a disability.
(c) As a foreign air carrier, you must meet the requirements of this section by [date one year from the effective date of this part]. As a U.S. carrier, you must meet the requirements of paragraph (b) of this section by [date one year from the effective date of this part].
(a ) As a carrier, you must ensure that individuals with impaired vision and deaf and hard-of-hearing individuals have access to the information you provide to the general public at airports. To the extent that this information is not available to these individuals through signage and verbal public address announcements, your personnel must promptly provide the information to such individuals on their request, in languages in which the information is provided to the general public.
(1)(i) As a U.S. carrier, you must make this information available at each gate, baggage claim area, ticketing area, or other terminal facility that you own, lease, or control at any U.S. or foreign airport.
(ii) As a foreign carrier, you must make this information available at each gate, baggage claim area, ticketing area, or other terminal facility that you own, lease, or control at any U.S. airport. At foreign airports, you must make this information available only at terminal facilities that serve flights that begin or end in the U.S.
(2) The types of information you must make available include, but are not limited to, information concerning ticketing, flight delays, schedule changes, changes to the aircraft being used for a flight, connections, flight check-in, gate assignments and changes, and the checking and claiming of luggage.
(b) As a foreign air carrier at a U.S. airport, or a U.S. or foreign air carrier at a foreign airport, you must meet the requirements of this section by [date one year from effective date of this rule].
(a) All passengers, including those with disabilities, are subject to TSA security screening requirements at U.S. airports. In addition, passengers at foreign airports, including those with disabilities, may be subject to security screening measures required by law of the country in which the airport is located.
(b) If, as an air carrier, you impose security screening procedures for passengers with disabilities that go beyond those mandated by TSA (or, at a foreign airport, by legal requirements of the country in which the airport is located), you must ensure that they meet the following requirements:
(1) You must apply security screening procedures to passengers with disabilities in the same manner as to other passengers.
(2) You must not subject a passenger with a disability to special screening procedures because the person is traveling with a mobility aid or other assistive device if the person using the
(i) However, your security personnel may examine a mobility aid or assistive device which, in their judgment, may conceal a weapon or other prohibited item.
(ii) You may conduct security searches of qualified individuals with a disability whose aids activate the security system in the same manner as for other passengers.
(3) You must not require private security screenings of passengers with a disability to a greater extent, or for any different reason, than for other passengers.
(c) Except as provided in paragraph (c) of this section, if a passenger with a disability requests a private screening in a timely manner, you must provide it in time for the passenger to enplane.
(d) If you use technology that can conduct an appropriate screening of a passenger with a disability without necessitating a physical search of the person, you are not required to provide a private screening.
(a) As a carrier, you must ensure that aircraft with 30 or more passenger seats on which passenger aisle seats have armrests are equipped with movable aisle armrests on at least one-half of the aisle seats in which passengers with mobility impairments are permitted to sit under FAA safety rules.
(b) You are not required to provide movable armrests on aisle seats which a passenger with a mobility impairment is precluded from using by an FAA safety rule.
(c) You must ensure that these movable aisle armrests are provided proportionately in all classes of service in the cabin. For example, if 80 percent of the aisle seats in which passengers with mobility impairments may sit are in coach, and 20 percent are in first class, then 80 percent of the movable aisle armrests must be in coach, with 20 percent in first class.
(d) For aircraft equipped with movable aisle armrests, you must configure cabins, or establish administrative systems, to ensure that individuals with mobility impairments or other passengers with a disability can readily identify and obtain seating in rows with movable aisle armrests. You must provide this information by specific seat and row number.
(e) You are not required to retrofit cabin interiors of existing aircraft to comply with the requirements of this section. However, if you replace an aircraft's seats with newly manufactured seats, you must provide movable aisle armrests as required by this section.
(f) As a foreign carrier, you must comply with the requirements of paragraphs (a) through (d) of this section with respect to new aircraft you operate that were initially ordered after [effective date of this part] or which are delivered to you after [date two years from the effective date of this part]. As a U.S. carrier, this requirement applies to you with respect to new aircraft you operate that are initially ordered after April 5, 1990, or which are delivered to you after April 5, 1992.
(g) As a U.S. carrier, you must comply with paragraph (c) of this section with respect to new aircraft that are ordered after [effective date of this part] or that are delivered after [date two years from the effective date of this part].
(h) As a foreign carrier, you must comply with the requirements of paragraph (e) of this section with respect to seats ordered on or after [effective date of this part].
(a) As a carrier, you must ensure that aircraft with more than one aisle in which lavatories are provided shall include at least one accessible lavatory.
(1) The accessible lavatory must permit a qualified individual with a disability to enter, maneuver within as necessary to use all lavatory facilities, and leave, by means of the aircraft's on-board wheelchair.
(2) The accessible lavatory must afford privacy to persons using the on-board wheelchair equivalent to that afforded ambulatory users.
(3) The lavatory shall provide door locks, accessible call buttons, grab bars, faucets and other controls, and dispensers usable by qualified individuals with a disability, including wheelchair users and persons with manual impairments.
(b) With respect to aircraft with only one aisle in which lavatories are provided, you may, but are not required to, provide an accessible lavatory.
(c) You are not required to retrofit cabin interiors of existing aircraft to comply with the requirements of this section. However, if you replace a lavatory on an aircraft with more than one aisle, you must replace it with an accessible lavatory. If you replace a component of an inaccessible lavatory (
(d ) As a foreign carrier, you must comply with the requirements of paragraph (a) of this section with respect to new aircraft you operate that were initially ordered after [effective date of this part] or which are delivered to you after [date two years from the effective date of this part]. As a U.S. carrier, this requirement applies to you with respect to new aircraft you operate that were initially ordered after April 5, 1990, or which are delivered to you on or after April 5, 1992.
(e) As a foreign carrier, you must comply with the requirements of paragraph (c) of this section beginning [effective date of this part].
(a) As a carrier, you must equip aircraft that have 50 or more passenger seats, and that have an accessible lavatory (whether or not having such a lavatory is required by § 382.63) with an on-board wheelchair.
(b) If a passenger asks you to provide an on-board wheelchair on a particular flight, you must provide it if the aircraft being used for the flight has 50 or more passenger seats, even if the aircraft does not have an accessible lavatory.
(1) The basis of the passenger's request must be that he or she can use an inaccessible lavatory but cannot reach it from a seat without using an on-board wheelchair.
(2) You may require the passenger to provide the advance notice specified in § 382.27 to receive this service.
(c) You must ensure that on-board wheelchairs meet the following standards:
(1) On-board wheelchairs must include footrests, armrests which are movable or removable, adequate occupant restraint systems, a backrest height that permits assistance to passengers in transferring, structurally sound handles for maneuvering the occupied chair, and wheel locks or another adequate means to prevent chair movement during transfer or turbulence.
(2) The chair must be designed to be compatible with the maneuvering space, aisle width, and seat height of the aircraft on which it is to be used, and to be easily pushed, pulled, and turned in the cabin environment by carrier personnel.
(d) As a foreign carrier, you must meet this requirement as of [date two years from the effective date of this part]. As a U.S. carrier, you must meet this requirement by [date two years from the effective date of this part] with respect to aircraft with 50-60 passenger seats.
(a) As a carrier, you must designate, in each aircraft with 100 or more passenger seats, a priority space in the cabin of sufficient size to stow at least one folding, collapsible, or break-down passenger wheelchair the dimensions of which are within a space of 13 inches by 36 inches by 42 inches without having to remove the wheels or otherwise disassemble it. If a wheelchair exceeds this space while fully assembled but will fit if wheels or other components can be removed without the use of tools, you must remove the applicable components and stow the wheelchair in the designated space. In this case, stow the removed components in areas provided for stowage of carry-on luggage.
(b) As a foreign carrier, you must meet the requirement of paragraph (a) of this section by [date two years from the effective date of this part]. As a U.S. carrier, this requirement applies to you with respect to new aircraft you operate that were initially ordered after April 5, 1990, or which are delivered to you on or after April 5, 1992.
(a) As a carrier, you must maintain all aircraft accessibility features in proper working order.
(b) You must ensure that any replacement or refurbishing of the aircraft cabin or its elements does not reduce accessibility to a level below that specified in this part.
As a carrier, you must provide the following seating accommodations to the following passengers on request, if the passenger self-identifies to you as having a disability specified in this section:
(a) For a passenger who uses an aisle chair to access the aircraft and who cannot readily transfer over a fixed aisle armrest, you must provide a seat in a row with a movable aisle armrest, if the aircraft is required to be equipped with such armrests. You must ensure that your personnel are trained in the location and proper use of movable aisle armrests, including appropriate transfer techniques.
(b) You must provide an adjoining seat for a person assisting a passenger with a disability in the following circumstances:
(1) When a passenger with a disability is traveling with a personal care attendant who will be performing a function for the individual during the flight that airline personnel are not required to perform (
(2) When a passenger with a vision impairment is traveling with a reader/assistant who will be performing functions for the individual during the flight;
(3) When a passenger with a hearing impairment is traveling with an interpreter who will be performing functions for the individual during the flight; or
(4) When you require a passenger to travel with a safety assistant (see § 382.29).
(c) For a passenger with a disability traveling with a service animal, you must provide, as the passenger requests, either a bulkhead seat or a seat other than a bulkhead seat.
(d) For a passenger with a fused or immobilized leg, you must provide a bulkhead seat or other seat that provides greater legroom than other seats, on the side of an aisle that better accommodates the individual's disability.
(a) If you are a carrier that provides advance seat assignments to passengers (
(1) You may “block” an adequate number of the seats used to provide the seating accommodations required by § 382.81.
(i) You must not assign these seats to passengers who do not meet the criteria of § 382.81 until 24 hours before the scheduled departure of the flight.
(ii) At any time up until 24 hours before the scheduled departure of the flight, you must assign a seat meeting the requirements of this section to a passenger with a disability meeting one or more of the requirements of § 382.81 who requests it, at the time the passenger initially makes the request.
(iii) If a passenger with a disability specified in § 382.81 does not make a request at least 24 hours before the scheduled departure of the flight, you must meet the passenger's request to the extent practicable, but you are not required to reassign a seat assigned to another passenger in order to do so.
(2) You may designate an adequate number of the seats used to provide seating accommodations required by § 382.81 as “priority seats” for passengers with a disability.
(i) You must provide notice that all passengers assigned these seats (other than passengers with a disability listed in § 382.81) are subject to being reassigned to another seat if necessary to provide a seating accommodation required by this section.
(ii) You may provide this notice through your computer reservation system, verbal information provided by reservation personnel, ticket notices, gate announcements, counter signs, seat cards or notices, frequent-flier literature, or other appropriate means.
(iii) You must assign a seat meeting the requirements of this section to a passenger with a disability listed in § 382.81 who requests the accommodation at the time the passenger makes the request. You may require such a passenger to check in at least one hour before the scheduled departure of the flight. If all designated priority seats that would accommodate the passenger have been assigned to other passengers, you must reassign the seats of the other passengers as needed to provide the requested accommodation.
(iv) If a passenger with a disability listed in § 382.81 does not check in at least an hour before the scheduled departure of the flight, you must meet the individual's request to the extent practicable, but you are not required to reassign a seat assigned to another passenger in order to do so.
(b) If you assign seats to passengers, but not until the date of the flight, you must use the “priority seating” approach of paragraph (a)(2) of this section.
(c) If you do not assign seats to passengers , you must allow passengers specified in § 382.81 to board the aircraft before other passengers, including other “preboarded” passengers, so that the passengers needing seating accommodations can select seats that best meet their needs.
(d) As a carrier, if you wish to use a different method of providing seating assignment accommodations to passengers with disabilities from those specified in this subpart, you must obtain the written concurrence of the Department of Transportation. Contact the Department at the address cited in § 382.159.
As a carrier, you must provide the following seating accommodations to a passenger who self-identifies as having
(a) As a carrier that assigns seats in advance, you must provide accommodations in the following ways:
(1) If you use the “seat-blocking” mechanism of § 382.83(a)(1) c, you must implement the requirements of this section as follows:
(i) When a passenger with a disability not described in § 382.81(a) through (d) makes a reservation more than 24 hours before the scheduled departure time of the flight, you are not required to offer the passenger one of the seats blocked for the use of passengers with a disability listed under § 382.81.
(ii) However, you must assign to the passenger any seat, not already assigned to another passenger, that accommodates the passenger's needs, even if that seat is not available for assignment to the general passenger population at the time of the request.
(2) If you use the “designated priority seats” mechanism of § 382.83(a)(2), you must implement the requirements of this section as follows:
(i) When a passenger with a disability not described in § 382.81 makes a reservation, you must assign to the passenger any seat, not already assigned to another passenger, that accommodates the passenger's needs, even if that seat is not available for assignment to the general passenger population at the time of the request. You may require a passenger making such a request to check in one hour before the departure time of the flight.
(ii) If such a passenger is assigned to a designated priority seat, he or she is subject to being reassigned to another seat as provided in § 382.83(a)(2)(i).
(b) On flights where advance seat assignments are not offered, you must provide seating accommodations under this section by allowing passengers to board the aircraft before other passengers, including other “preboarded” passengers, so that the individuals needing seating accommodations can select seats that best meet their needs.
(a) As a carrier, you must not exclude any passenger with a disability from any seat or require that a passenger with a disability sit in any particular seat, on the basis of disability, except to comply with FAA safety requirements.
(b) In responding to requests from individuals for accommodations under this subpart, you must comply with FAA safety requirements, including those pertaining to exit seating (see 14 CFR 121.585 and 135.129).
(c) If a passenger's disability results in involuntary active behavior that would result in the person properly being refused transportation under § 382.19, and the passenger could be transported safely if seated in another location, you must offer to let the passenger sit in that location as an alternative to being refused transportation.
(d) If you have already provided a seat to a passenger with a disability to furnish an accommodation required by this subpart, you must not (except in the circumstance described in § 382.85(a)(2)(ii)) reassign that passenger to another seat in response to a subsequent request from another passenger with a disability, without the first passenger's consent.
(e) You must never deny transportation to any passenger in order to provide accommodations required by this subpart.
(f) You are not required to furnish more than one seat per ticket or to provide a seat in a class of service other than the one the passenger has purchased in order to provide an accommodation required by this part.
As a foreign carrier, the obligations of this subpart apply to you on [date 6 months from the effective date of this part].
(a) As an air carrier, you must provide assistance requested by or on behalf of a passenger with a disability in transportation between gates to make a connection to another flight. If the arriving flight and the departing connecting flight are operated by different carriers, the carrier that operated the arriving flight is responsible for providing this assistance, even if the passenger holds a separate ticket and/or reservation for the departing flight.
(b) You must also provide assistance requested by or on behalf of a passenger with a disability in moving from the terminal entrance (or a vehicle drop-off point adjacent to the entrance) through the airport to the gate for a departing flight, or from the gate to the terminal entrance (or a vehicle pick-up point adjacent to the entrance) after an arriving flight. This requirement includes assistance in accessing key functional areas of the terminal, such as ticket counters and baggage claim. It also includes a brief stop upon request at an accessible rest room or nearby takeout food vendor.
(c) As part of your obligation to provide assistance to passengers with disabilities in moving around the terminal (
As a carrier, you must offer preboarding to passengers with a disability who self-identify as needing additional time or assistance to board, stow accessibility equipment, or be seated. You must make the availability of this service known (
(a) As a carrier, you must promptly provide assistance requested by or on behalf of passengers with a disability, or offered by air carrier personnel and accepted by passengers with a disability, in enplaning, deplaning, and connecting to other flights. This assistance must include, as needed, the services of personnel and the use of ground wheelchairs, accessible motorized carts, boarding wheelchairs, and/or on-board wheelchairs where provided in accordance with this part, and ramps or mechanical lifts.
(b) As a carrier, you must, except as otherwise provided in this subpart, provide boarding and deplaning assistance through the use of lifts or ramps at any U.S. commercial service airport with 10,000 or more annual enplanements where boarding and deplaning by level-entry loading bridges or accessible passenger lounges is not available.
The requirement to provide boarding and deplaning assistance through the use of lifts applies with respect to all aircraft with a passenger capacity of 19 or more, with the following exceptions:
(a) Float planes;
(b) The following aircraft models: the Fairchild Metro, the Jetstream 31 and 32, the Beech 1900 (C and D models), and the Embraer EMB-120;
(c) Any other aircraft model determined by the Department of Transportation to be unsuitable for boarding and deplaning assistance by lift, ramp, or other suitable device. The Department will make such a determination if it concludes that—
(1) No existing boarding and deplaning assistance device on the market will provide access to the aircraft without a significant risk of serious damage to the aircraft or injury to passengers or employees, or
(2) Internal barriers are present in the aircraft that would preclude passengers who use a boarding or aisle chair from reaching a non-exit row seat.
(a) As a carrier, you must negotiate in good faith with the airport operator of each airport described in § 382.95(b) to ensure the provision of lifts for boarding and deplaning.
(b) You must have a written, signed agreement with the airport operator allocating responsibility for meeting the boarding and deplaning assistance requirements of this subpart between or among the parties. For foreign carriers, with respect to all covered aircraft, this requirement becomes effective [date one year from the effective date of this part].
(c) For foreign carriers, the agreement must provide that all actions necessary to ensure accessible boarding and deplaning for passengers with a disability are completed as soon as practicable, but no later than [date 24 months from the effective date of this part], with respect to all covered aircraft serving an airport described in § 382.95(b).
(d) Under the agreement, you may, as a carrier, require that passengers wishing to receive boarding and deplaning assistance requiring the use of a lift for a flight check in for the flight one hour before the scheduled departure time for the flight. If the passenger checks in after this time, you must nonetheless provide the boarding and deplaning assistance by lift if you can do so by making a reasonable effort, without delaying the flight.
(e) The agreement must ensure that all lifts and other accessibility equipment are maintained in proper working condition, and that inoperable lifts and equipment must be repaired or replaced expeditiously.
(f) All air carriers and airport operators involved are jointly and severally responsible for the timely and complete implementation of the agreement.
(g) You must make this agreement available, on request, to representatives of the Department of Transportation.
When level-entry boarding and deplaning assistance is not required to be provided under this subpart, you must, as a carrier, provide boarding and deplaning assistance by any available means to which the passenger consents. However, you must never use hand-carrying (
(a) The boarding or deplaning process occurs at a U.S. airport that is not a commercial service airport that has 10,000 or more enplanements per year;
(b) The boarding or deplaning process occurs at a foreign airport;
(c) You are using an aircraft subject to an exception from lift boarding and deplaning assistance requirements under § 382.97 (a) through (c);
(d) The deadlines established in § 382.99(c)(2) through (3) have not yet passed; or
(e) Circumstances beyond your control (
As a carrier, you must not leave a passenger who has requested assistance unattended by your personnel in a ground wheelchair, boarding wheelchair, or other device, in which the passenger is not independently mobile, for more than 30 minutes. This requirement applies even if another person (
As a carrier, you must provide services within the aircraft cabin as requested by or on behalf of passengers with a disability, or when offered by air carrier personnel and accepted by passengers with a disability, as follows:
(a) Assistance in moving to and from seats, as part of the enplaning and deplaning processes;
(b) Assistance in preparation for eating, such as opening packages and identifying food;
(c) If there is an on-board wheelchair on the aircraft, assistance with the use of the on-board wheelchair to enable the person to move to and from a lavatory;
(d) Assistance to a semiambulatory person in moving to and from the lavatory, not involving lifting or carrying the person; or
(e) Assistance in stowing and retrieving carry-on items, including mobility aids and other assistive devices stowed in the cabin.
(f) Effective communication with passengers who have vision impairments or who are deaf or hard-of-hearing, so that these passengers have timely access to information the carrier provides to other passengers (
As a carrier, you are not required to provide extensive special assistance to qualified individuals with a disability. For purposes of this section, extensive special assistance includes the following activities:
(a) Assistance in actual eating;
(b) Assistance within the restroom or assistance at the passenger's seat with elimination functions; and
(c) Provision of medical equipment or services, except as required by this part or FAA rules.
As a carrier, you must comply with the following requirements with respect to on-board safety briefings:
(a) You must conduct an individual safety briefing for any passenger where required by 14 CFR 121.571 (a)(3) and (a)(4), 14 CFR 135.117(b), or other FAA requirements.
(b) You may offer an individual briefing to any other passenger, but you may not require an individual to have such a briefing except as provided in paragraph (a) of this section.
(c) You must not require any passenger with a disability to demonstrate that he or she has listened to, read, or understood the information presented, except to the extent that carrier personnel impose such a requirement on all passengers with
(d) When you conduct an individual safety briefing for a passenger with a disability, you must do so as inconspicuously and discreetly as possible.
(e) As a carrier, if you present on-board safety briefings to passengers on video screens, you must ensure that the safety-video presentation is accessible to passengers with impaired hearing (
(1) You may use an equivalent non-video alternative to this requirement only if neither open captioning nor a sign language interpreter inset can be placed in the video presentation without so interfering with it as to render it ineffective or it would not be large enough to be readable.
(2) If you are a foreign carrier, you may implement the requirements of this section by substituting captioned or interpreted video materials for uncaptioned/uninterpreted video materials as the uncaptioned/uninterpreted materials are replaced in the normal course of the carrier's operations.
(a) As a carrier, you must permit a service animal to accompany a passenger with a disability.
(b) You must permit the service animal to accompany the passenger with a disability in any seat in which the passenger sits, unless the animal obstructs an aisle or other area that must remain unobstructed to facilitate an emergency evacuation.
(c) If a service animal cannot be accommodated at the seat location of the passenger with a disability who is using the animal, you must offer the passenger the opportunity to move with the animal to a seat location, if present on the aircraft, where the animal can be accommodated, as an alternative to requiring that the animal travel in the cargo hold.
(d) You must accept as evidence that an animal is a service animal identification cards, other written documentation, presence of harnesses, tags, or the credible verbal assurances of a qualified individual with a disability using the animal.
(e) Whenever you decide not to accept an animal as a service animal, you must explain the reason for your decision to the passenger and document it in writing. A copy of the explanation must be provided to the passenger either at the airport, or within ten calendar days of the incident.
(f) Guidance concerning the carriage of service animals is found in appendix A to this part.
(a) As a carrier, you must permit passengers with a disability to bring the following kinds of items into the aircraft cabin, provided that they can be stowed in designated priority storage areas or in overhead compartments or under seats, consistent with FAA and TSA requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items.
(1) Wheelchairs, including manual wheelchairs and break-down or collapsible battery-powered wheelchairs;
(2) Other mobility aids, such as canes (including those used by persons with impaired vision), crutches, and walkers; and
(3) Other assistive devices for stowage or use within the cabin (
(b) In implementing your carry-on baggage policies, you must not count assistive devices (including the kinds of items listed in paragraph (a) of this section) toward a limit on carry-on baggage.
(a) In an aircraft in which a closet or other approved stowage area is provided in the cabin for passengers' carry-on items, of a size that will accommodate a passenger's typical adult-sized, folding, collapsible, or break-down wheelchair (including such battery-powered wheelchairs), you must, as a carrier, designate priority stowage space, as described below, for at least one such folding, collapsible, or break-down passenger wheelchair. This space must be other than the overhead compartments and under-seat spaces routinely used for passengers' carry-on items.
(b) If you are a passenger with a disability who uses a wheelchair and takes advantage of a carrier's offer of the opportunity to preboard the aircraft, you may stow your wheelchair in this area, with priority over other items brought onto the aircraft by other passengers enplaning at the same airport, consistent with FAA and TSA requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items.
(c) If you are a passenger with a disability who does not take advantage of a carrier offer of the opportunity to preboard, you may use the area to stow your wheelchair on a first-come, first-served basis along with all other passengers seeking to stow carry-on items in the area.
(a) As a carrier, you must stow wheelchairs, other mobility aids, or other assistive devices in the baggage compartment if an approved stowage area is not available in the cabin or the items cannot be transported in the cabin consistent with FAA and TSA requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items.
(b) You must give wheelchairs, other mobility aids, and other assistive devices priority for stowage in the baggage compartment over other cargo and baggage. Where this priority results in other passengers' baggage being unable to be carried on the flight, you must make your best efforts to ensure that the other baggage reaches the passengers' destination within four hours of the scheduled arrival time of the flight.
(c) You must provide for the checking and timely return of passengers' wheelchairs, other mobility aids, and other assistive devices as close as possible to the door of the aircraft, so that passengers may use their own equipment to the extent possible, except:
(1) Where this practice would be inconsistent with Federal regulations governing transportation security or the transportation of hazardous materials; or
(2) When the passenger requests the return of the items at the baggage claim area instead of at the door of the aircraft.
(d) In order to achieve the timely return of wheelchairs, you must ensure that passengers' wheelchairs, other mobility aids, and other assistive devices are among the first items retrieved from the baggage compartment.
(a) Whenever baggage compartment size and aircraft airworthiness
(b) You may require that passengers with a disability wishing to have battery-powered wheelchairs transported on a flight (including in the cabin) check in one hour before the scheduled departure time of the flight. If the passenger checks in after this time, you must nonetheless carry the wheelchair if you can do so by making a reasonable effort, without delaying the flight.
(c) If the battery on the passenger's wheelchair has been labeled by the manufacturer as non-spillable as provided in 49 CFR 173.159(d)(2), or if a battery-powered wheelchair with a spillable battery can be loaded, stored, secured and unloaded in an upright position, you must not require the battery to be removed and separately packaged. Notwithstanding this requirement, you may remove and package separately any battery that appears to be damaged or leaking (or even deny transportation to the battery if the potential safety hazard is serious enough).
(d) When it is necessary to detach the battery from the wheelchair, you must, upon request, provide packaging for the battery meeting the requirements of 49 CFR 175.10(a)(19) and (20) and package the battery. You may refuse to use packaging materials or devices other than those you normally use for this purpose.
(e) You must not drain batteries.
(f) At the request of a passenger, you must stow a folding, break-down or collapsible battery-powered wheelchair in the passenger cabin stowage area as provided in § 382.123, consistent with FAA and TSA requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items. If the wheelchair can be stowed in the cabin without removing the battery, you must not remove the battery. If the wheelchair cannot be stowed in the cabin without removing the battery, you must remove the battery and stow it in the baggage compartment as provided in paragraphs (c) and (d) of this section. In this case, you must permit the wheelchair, with battery removed, to be stowed in the cabin.
(a) As a carrier, you must permit passengers with a disability to provide written directions concerning the disassembly and reassembly of their wheelchairs, other mobility aids, and other assistive devices. You must carry out these instructions to the greatest extent feasible, consistent with FAA and TSA requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items.
(b) When wheelchairs, other mobility aids, or other assistive devices are disassembled by the carrier for stowage, you must reassemble them and ensure their prompt return to the passenger. You must return wheelchairs, other mobility aids, and other assistive devices to the passenger in the condition in which you received them.
With respect to domestic transportation (i.e., transportation to which Warsaw or Montreal Convention liability limits do not apply), the baggage liability limits of 14 CFR part 254 do not apply to liability for loss, damage, or delay concerning wheelchairs or other assistive devices. The criterion for calculating the compensation for a lost, damaged, or destroyed wheelchair or other assistive device shall be the original purchase price of the device.
(a) As a carrier that operates aircraft with 19 or more passenger seats, you must provide training, meeting the requirements of this paragraph, for all personnel who deal with the traveling public, as appropriate to the duties of each employee.
(1) You must ensure training to proficiency concerning:
(i) The requirements of this part and other applicable Federal regulations affecting the provision of air travel to passengers with a disability;
(ii) Your procedures, consistent with this part, concerning the provision of air travel to passengers with a disability, including the proper and safe operation of any equipment used to accommodate passengers with a disability; and
(iii) For those personnel involved in providing boarding and deplaning assistance, the use of the boarding and deplaning assistance equipment used by the carrier and appropriate boarding and deplaning assistance procedures that safeguard the safety and dignity of passengers.
(2) You must also train such employees with respect to awareness and appropriate responses to passengers with a disability, including persons with physical, sensory, mental, and emotional disabilities, including how to distinguish among the differing abilities of individuals with a disability.
(3) You must consult with organizations representing persons with disabilities in developing your training program and your policies and procedures.
(4) You must ensure that all personnel who are required to receive training receive refresher training on the matters covered by this section, as appropriate to the duties of each employee, as needed to maintain proficiency.
(5) You must provide, or require your contractors to provide, training to the contractors' employees concerning travel by passengers with a disability. This training is required only for those contractor employees who deal directly with the traveling public, and it must be tailored to the employees' functions. Training for contractor employees must meet the requirements of paragraphs (a)(1) through (a)(5) of this section.
(6) The employees you designate as Complaints Resolution Officials (CROs), for purposes of § 382.151, must receive training concerning the requirements of this part and the duties of a CRO by [date 60 days from the effective date of this part]. For employees who have already received CRO training, this training may be limited to changes from the previous version of Part 382. Employees subsequently designated as Complaints Resolution Officials shall receive this training before assuming their duties under § 382.151. You must ensure that all employees performing the Complaints Resolution Official function receive annual refresher training concerning their duties and the provisions of this part.
(b) If you are a carrier that operates only aircraft with fewer than 19 passenger seats, you must provide training for flight crewmembers and appropriate personnel to ensure that they are familiar with the matters listed in paragraphs (a)(1) and (a)(2) of this section and that they comply with the requirements of this part.
(a) As a U.S. carrier, you must meet the training requirements of § 382.141 by the following times:
(1) For crewmembers and other personnel subject to training required under 14 CFR part 121 or 135, who are employed on [effective date of this rule], within one year of that date or as part of their next scheduled recurrent training, whichever comes first.
(2) For crewmembers subject to training requirements under 14 CFR part 121 or 135 whose employment in any given position commences after [effective date of this rule], before they assume their duties; and
(3) For other personnel whose employment in any given position commences after [effective date of this rule], within 60 days after the date on which they assume their duties.
(b) As a foreign carrier that operates aircraft with 19 or more passenger seats, you must provide training meeting the requirements of paragraph (a) of this section for all personnel who deal with the traveling public in connection with flights that begin or end at a U.S. airport, as appropriate to the duties of each employee. You must ensure that personnel required to receive training complete the training by the following times:
(1) For crewmembers or other personnel who are employed on [effective date of this rule], within one year of that date;
(2) For crewmembers whose employment commences after [date one year from the effective date of this rule], before they assume their duties;
(3) For other personnel whose employment in any given position commences after [date one year from the effective date of this rule], within 60 days after the date on which they assume their duties; and
(4) For crewmembers and other personnel who become employed after [effective date of this rule] but before [date one year from the effective date of this rule], by [date one year from the effective date of this rule] or a date 60 days from the date of their employment, whichever is later.
(a) As a carrier that operates aircraft with 19 or more seats, you must incorporate procedures implementing the requirements of this part in the manuals or other guidance or instructional materials provided for the personnel who provide services to passengers, including, but not limited to, pilots, flight attendants, reservation and ticket counter personnel, gate agents, ramp and baggage handling personnel, and passenger service office personnel.
(b) You must make your manuals and other materials implementing this part available for review by the Department on the Department's request. If, upon such review, the Department determines that any portion of these materials must be changed in order to comply with this part, DOT will direct you to make appropriate changes. You must incorporate and implement these changes.
(a ) As a carrier, you must designate one or more complaints resolution officials (CROs).
(b) You must make a CRO available at each airport you serve, during all times you are operating at that airport. You must make CRO service available in the language(s) in which you make your other services available to the general public.
(c) You may make the CRO available in person at the airport or via telephone, at no cost to the passenger. If a telephone link to the CRO is used, TTY service must be available so that persons with hearing impairments may readily communicate with the CRO.
(d) You must make passengers with a disability aware of the availability of a CRO and how to contact the CRO in the following circumstances:
(1) In any situation in which any person complains or raises a concern with your personnel about discrimination, accommodations, or services with respect to passengers with a disability, and your personnel do not immediately resolve the issue to the customer's satisfaction or provide a requested accommodation, your personnel must immediately inform the passenger of the right to contact a CRO and the location and/or phone number of the CRO available at the airport. Your personnel must provide this information to the passenger in a format he or she can use.
(2) Your reservation agents, contractors, and web sites must provide information equivalent to that required by paragraph (d)(1) of this section to passengers with a disability using those services.
(3) In the situations covered by paragraphs (1) and (2) of this paragraph, the passenger must also be given the Department of Transportation's airline accessibility toll-free hot line phone number (800-778-4838 (voice); 800-455-9880 (TTY)).
(e) Each CRO must be thoroughly familiar with the requirements of this part and the carrier's procedures with respect to passengers with a disability. The CRO is intended to be the carrier's “expert” in compliance with the requirements of this part.
(f) You must ensure that each of your CROs has the authority to make dispositive resolution of complaints on behalf of the carrier. This means that the CRO must have the power to overrule the decision of any other personnel, except that the CRO is not required to be given authority to countermand a decision of the pilot-in-command of an aircraft based on safety.
When a complaint is made directly to a CRO (
(a) If the complaint is made to a CRO before the action or proposed action of carrier personnel has resulted in a violation of a provision of this part, the CRO must take, or direct other carrier personnel to take, whatever action is necessary to ensure compliance with this part.
(b) If an alleged violation of a provision of this part has already occurred, and the CRO agrees that a violation has occurred, the CRO must provide to the complainant a written statement setting forth a summary of the facts and what steps, if any, the carrier proposes to take in response to the violation.
(c) If the CRO determines that the carrier's action does not violate a provision of this part, the CRO must provide to the complainant a written statement including a summary of the facts and the reasons, under this part, for the determination.
(d) The statements required to be provided under this section must inform the complainant of his or her right to pursue DOT enforcement action under this part. The CRO must provide the statement in person to the complainant at the airport if possible; otherwise, it must be forwarded to the complainant within 10 calendar days of the complaint.
(a) As a carrier, you must respond to written complaints received by any means (e.g., letter, fax, e-mail, electronic instant message) concerning matters covered by this part.
(b) As a passenger making a written complaint, you must state whether you had contacted a CRO in the matter, provide the name of the CRO and the date of the contact, if available, and
(c) As a carrier, you are not required to respond to a complaint postmarked or transmitted more than 45 days after the date of the incident, except for complaints referred to you by the Department of Transportation.
(d) As a carrier, you must make a dispositive written response to a written disability complaint within 30 days of its receipt. The response must specifically admit or deny that a violation of this part has occurred.
(1) If you admit that a violation has occurred, you must provide to the complainant a written statement setting forth a summary of the facts and the steps, if any, you will take in response to the violation.
(2) If you deny that a violation has occurred, your response must include a summary of the facts and your reasons, under this part, for the determination.
(3) Your response must also inform the complainant of his or her right to pursue DOT enforcement action under this part.
(a) Any person believing that a carrier has violated any provision of this part may contact the following office for assistance: U.S. Department of Transportation, Aviation Consumer Protection Division, 400 7th Street, SW., Washington, DC, 20590. The Web site for this office is
(b) Any person believing that a carrier has violated any provision of this part may also file a formal complaint under the applicable procedures of 14 CFR Part 302.
(c) Requests for assistance and complaints must be filed no later than 18 months after the incident to ensure that they can be investigated.
In 1990, the U.S. Department of Transportation (DOT) promulgated the official regulations implementing the Air Carrier Access Act (ACAA). Those rules are entitled
(1) Whether an animal is a service animal and its user a qualified individual with a disability;
(2) How to accommodate a qualified person with a disability with a service animal in the aircraft cabin; and
(3) When a service animal legally can be refused carriage in the cabin. This guidance will also be used by Department of Transportation staff in reviewing the implementation of § 382.117 by air carriers.
The 1996 DOT guidance document defines a service animal as “any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. If the animal meets this definition, it is considered a service animal regardless of whether it has been licensed or certified by a state or local government.” This document refines DOT's previous definition of service animal
Today, both the public and people with disabilities use many different terms to identify animals that can meet the legal definition of “service animal.” These range from umbrella terms such as “assistance animal” to specific labels such as “hearing,” “signal,” “seizure alert,” “psychiatric service,” “emotional support” animal, etc. that describe how the animal assists a person with a disability.
When Part 382 was promulgated, most service animals were guide or hearing dogs. Since then, a wider variety of animals (
Since airlines also are obliged to provide all accommodations in accordance with FAA safety regulations, educated consumers help assure that airlines provide accommodations consistent with the carriers' safety duties and responsibilities. Educated consumers also assist the airline in providing them the services they want, including accommodations, as quickly and efficiently as possible.
In a nutshell, the main requirements of Part 382 regarding service animals are:
• Carriers shall permit dogs and other service animals used by persons with disabilities to accompany the persons on a flight. See § 382.117(a).
▸ Carriers shall accept as evidence that an animal is a service animal identifiers such as identification cards, other written documentation, presence of harnesses, tags or the credible verbal assurances of a qualified individual with a disability using the animal.
▸ Carriers shall permit a service animal to accompany a qualified individual with a disability in any seat in which the person sits, unless the animal obstructs an aisle or other area that must remain unobstructed in order to facilitate an emergency evacuation or to comply with FAA regulations.
• If a service animal cannot be accommodated at the seat location of the qualified individual with a disability whom the animal is accompanying, the carrier shall offer the passenger the opportunity to move with the animal to a seat location in the same class of service, if present on the aircraft, where the animal can be accommodated, as an alternative to requiring that the animal travel in the cargo hold (see § 382.117(c)).
• Carriers shall not impose charges for providing facilities, equipment, or services that are required by this part to be provided to qualified individuals with a disability (see § 382.31).
To determine whether an animal is a service animal and should be allowed to accompany its user in the cabin, airline personnel should:
1. Establish whether the animal is a pet or a service animal, and whether the passenger is a qualified individual with a disability; and then
2. Determine if the service animal presents either
• A “direct threat to the health or safety of others,” or
• A significant threat of disruption to the airline service in the cabin (
Remember: In most situations
These five steps can help one determine whether an animal is a service animal or a pet:
1.
▸ “What tasks or functions does your animal perform for you?” or
▸ “What has it been trained to do for you?''
▸ “Would you describe how the animal performs this task (or function) for you?''
• As noted earlier, functions include, but are not limited to:
A. Helping blind or visually impaired people to safely negotiate their surroundings;
B. Alerting deaf and hard-of-hearing persons to sounds;
C. Helping people with mobility impairments to open and close doors, retrieve objects, transfer from one seat to another, maintain balance; or
D. Alert or respond to a disability-related need or emergency (
• Note that to be a service animal that can properly travel in the cabin, the animal need not necessarily perform a function for the passenger during the flight. For example, some dogs are trained to help pull a passenger's wheelchair or carry items that the passenger cannot readily carry while using his or her wheelchair. It would not be appropriate to deny transportation in the cabin to such a dog.
• If a passenger cannot provide credible assurances that an animal has been individually trained or is able to perform some task or function to assist the passenger with his or her disability, the animal might not be a service animal. In this case, the airline personnel may require documentation (see Documentation below).
• There may be cases in which a passenger with a disability has personally trained an animal to perform a specific function (
2.
3.
4.
5.
Part 382 requires airlines to allow service animals to accompany their handlers
When a service animal is not accompanying a passenger with a disability, the airline's general policies on the carriage of animals usually apply. Airline personnel should know their company's policies on pets, service animals in training, and the carriage of animals generally. Individuals planning to travel with a service animal other than their own should inquire about the applicable policies in advance.
• Ask the passenger about his or her disability as it relates to the need for a service animal. Once the passenger identifies the animal as a service animal, you may ask, “How does your animal assist you with your disability?” Avoid the question “What is your disability?” as this implies you are asking for a medical label or the cause of the disability, which is intrusive and inconsistent with the intent of the ACAA. Remember, Part 382 is intended to facilitate travel by people with disabilities by requiring airlines to accommodate them on an individual basis.
• Ask the passenger whether he or she has documentation as a means of verifying the medical necessity of the passenger traveling with the animal. Keep in mind that you can ask but cannot require documentation as proof of service animal status UNLESS (1) a passenger's verbal assurance is not credible and the airline personnel cannot in good faith determine whether the animal is a service animal without documentation, or (2) a passenger indicates that the animal is to be used as an emotional support animal.
• Using the questions and other factors above, you must decide whether it is
Part 382 requires airlines to permit qualified individuals with a disability to be accompanied by their service animals in the cabin, as long as the animals do not (1) pose a direct threat to the health or safety of others (
• Ask if the passenger has documentation that satisfies the requirements for determining that the animal is a service animal (see discussion of “Documentation” above).
• If the passenger has no documents, then explain to the passenger that the animal cannot be carried in the cabin, because it does not meet the criteria for service animals. Explain your airline's policy on pets (
• If the passenger does not accept your explanation, avoid getting into an argument. Ask the passenger to wait while you contact your airline's
• Consult with the CRO immediately, if possible. The CRO normally has the authority to make the final decision regarding carriage of service animals. In the rare instance that a service animal would raise a concern regarding flight safety, the CRO may consult with the pilot-in-command. If the pilot-in-command makes a decision to restrict the animal from the cabin or the flight for safety reasons, the CRO cannot countermand the pilot's decision. This does not preclude the Department from taking subsequent enforcement action, however, if it is determined that the pilot's decision was inconsistent with part 382.
• If a CRO makes the final decision not to accept an animal as a service animal, then the CRO must provide a written statement to the passenger within 10 days explaining the reason(s) for that determination. If carrier personnel other than the CRO make the final decision, a written explanation is not required; however, because denying carriage of a legitimate service animal is a potential civil rights violation, it is recommended that carrier personnel explain to the passenger the reason the animal will not be accepted as a service animal. A recommended practice may include sending passengers whose animals are not accepted as service animals a letter within ten business days explaining the basis for such a decision.
In considering whether a service animal should be excluded from the cabin, keep these things in mind:
• Certain unusual service animals (
• In all other circumstances, each situation must be considered individually. Do not make assumptions about how a particular unusual animal is likely to behave based on past experience with other animals. You may inquire, however, about whether a particular animal has been trained to behave properly in a public setting.
• Before deciding to exclude the animal, you should consider and try available means of mitigating the problem (
If it is determined that the animal should not accompany the disabled passenger in the cabin at this time, offer the passenger alternative accommodations in accordance with Part 382 and company policy (
• As indicated above, certain unusual service animals,
• Other unusual animals such as miniature horses, pigs and monkeys should be evaluated on a case-by-case basis. Factors to consider are the animal's size, weight, state and foreign country restrictions, and whether or not the animal would pose a direct threat to the health or safety of others, or cause a fundamental alteration (significant disruption) in the cabin service. If none of these factors apply, the animal may accompany the passenger in the cabin. In most other situations, the animal should be carried in the cargo hold in accordance with company policy.
• A single passenger legitimately may have two or more service animals. In these circumstances, you should make every reasonable effort to accommodate them in the cabin in accordance with part 382 and company policies on seating. This might include permitting the passenger to purchase a second seat so that the animals can be accommodated in accordance with FAA safety regulations. You may offer the passenger a seat on a later flight if the passenger and animals cannot be accommodated together at a single passenger seat. Airlines may not charge passengers for accommodations that are required by part 382, including transporting service animals in the cargo compartment. If carriage in the cargo compartment is unavoidable, notify the destination station to return the service animal(s) to the passenger at the gate as soon as possible, or to assist the passenger as necessary to retrieve them in the appropriate location.
• If the service animal does not fit in the assigned location, you should relocate the passenger and the service animal to some other place in the cabin in the same class of service where the animal will fit under the seat in front of the passenger and not create an obstruction, such as the bulkhead. If no single seat in the cabin will accommodate the animal and passenger without causing an obstruction, you may offer the option of purchasing a second seat, traveling on a later flight or having the service animal travel in the cargo hold. As indicated above, airlines may not charge passengers with disabilities for services required by part 382, including transporting their oversized service animals in the cargo compartment.
Should passengers provide advance notice to the airline concerning multiple or large service animals?
In most cases, airlines may not insist on advance notice or health certificates for service animals under the ACAA regulations. However, it is very useful for passengers to contact the airline well in advance if one or more of their service animals may need to be transported in the cargo compartment. The passenger will need to understand airline policies and should find out what type of documents the carrier would need to ensure the safe passage of the service animal in the cargo compartment and any restrictions for cargo travel that might apply (
Passengers who state they have allergies or other animal aversions should be located as far away from the service animal as practicable. Whether or not an individual's allergies or animal aversions are disabilities (an issue this Guidance does not address), each individual's needs should be addressed
• Let passengers know the airline's policy about seat assignments for people with disabilities. For instance: (1) Should the passenger request pre-boarding at the gate? or (2) should the passenger request an advance seat assignment (a priority seat such as a bulkhead seat or aisle seat) up to 24 hours before departure? or (3) should the passenger request an advance seat assignment at the gate on the day of departure? When assigning priority seats, ask the passenger what location best fits his/her needs.
• Passengers generally know what kinds of seats best suit their service animals. In certain circumstances, passengers with service animals must either be provided their pre-requested priority seats, or if their requested seat location cannot be made available, they must be assigned to other available priority seats of their choice in the same cabin class. Part 382.38 requires airlines to provide a bulkhead seat or a seat other than a bulkhead seat at the request of an individual traveling with a service animal.
• Passengers should comply with airline recommendations or requirements regarding when they should arrive at the gate before a flight. This may vary from airport to airport and airline to airline. Not all airlines announce pre-boarding for passengers with special needs, although it may be available. If you wish to request pre-boarding, tell the agent at the gate.
• Unless pre-boarding is not part of your carrier's business operation, a timely request for pre-boarding by a passenger with a disability should be honored (382.38(d)).
• Part 382 does not require carriers to make modifications that would constitute an undue burden or would fundamentally alter their programs (382.7(c)). Therefore, the following are
▸ Asking another passenger to give up the space in front of his or her seat to accommodate a service animal;
▸ Denying transportation to any individual on a flight in order to provide an accommodation to a passenger with a service animal;
▸ Furnishing more than one seat per ticket; and
▸ Providing a seat in a class of service other than the one the passenger has purchased.
Airline personnel are not required to provide care, food, or special facilities for service animals. The care and supervision of a service animal is solely the responsibility of the passenger with a disability whom the animal is accompanying.
Part 382 prohibits air carriers from imposing special charges for accommodations required by the regulation, such as carriage of a service animal. However, an air carrier may charge passengers with a disability if a service animal causes damage, as long as it is its regular practice to charge non-disabled passengers for similar kinds of damage. For example, it could charge a passenger with a disability for the cost of repairing or cleaning a seat damaged by a service animal, assuming that it is its policy to charge when a non-disabled passenger or his or her pet causes similar damage.
• Ask about the airline's policy on advance seat assignments for people with disabilities. For instance: (1) Should a passenger request pre-boarding at the gate? or (2) should a passenger request an advance seat assignment (a priority seat such as a (bulkhead seat or aisle seat)) up to 24 hours before departure? or (3) should a passenger request an advance seat assignment at the gate on the day of departure?
• Although airlines are not permitted to automatically require documentation for service animals other than emotional support animals, if you think it would help you explain the need for a service animal, you may want to carry documentation from your physician or other licensed professional confirming your need for the service animal. Passengers with unusual service animals also may want to carry documentation confirming that their animal has been trained to perform a function or task for them.
• If you need a specific seat assignment for yourself and your service animal, make your reservation as far in advance as you can, and identify your need at that time.
• You may have to be flexible if your assigned seat unexpectedly turns out to be in an emergency exit row. When an aircraft is changed at the last minute, seating may be reassigned automatically. Automatic systems generally do not recognize special needs, and may make inappropriate seat assignments. In that case, you may be required by FAA regulations to move to another seat.
• Arrive at the gate when instructed by the airline, typically at least one hour before departure, and ask the gate agent for pre-boarding—if that is your desire.
• Remember that your assigned seat may be reassigned if you fail to check in on time; airlines typically release seat assignments not claimed 30 minutes before scheduled departure. In addition, if you fail to check in on time you may not be able to take advantage of the airline's pre-board offer.
• If you have a very large service animal or multiple animals that might need to be transported in the cargo compartment, contact the airline well in advance of your travel date. In most cases, airlines cannot insist on advance notice or health certificates for service animals under the ACAA regulations. However, it is very useful for passengers to contact the airline well in advance if one or more of their service animals may need to be transported in the cargo compartment. The passenger will need to understand airline policies and should find out what type of documents the carrier would need to ensure the safe passage of the service animal in the cargo compartment and any restrictions for cargo travel that might apply (
• If you are having difficulty receiving an appropriate accommodation, ask the airline employee to contact the airline's
• Another resource for resolving issues related to disability accommodations is the U.S. Department of Transportation's aviation consumer disability hotline. The toll-free number is 1-800-778-4838 (voice) and 1-800-455-9880 (TTY).
A significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.
A modification that substantially alters the basic nature or purpose of a program, service, product or activity.
“Any individual who has a physical or mental impairment that, on a permanent or temporary basis, substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.” (Section 382.3).
Any individual with a disability who:
(1) “takes those actions necessary to avail himself or herself of facilities or services offered by an air carrier to the general public with respect to accompanying or meeting a traveler, use of ground transportation, using terminal facilities, or obtaining information about schedules, fares or policies”;
(2) “offers, or makes a good faith attempt to offer, to purchase or otherwise validly to obtain * * * a ticket” “for air transportation on an air carrier”; or
(3) “purchases or possesses a valid ticket for air transportation on an air carrier and presents himself or herself at the airport for the purpose of traveling on the flight for which the ticket has been purchased or obtained; and meets reasonable, nondiscriminatory contract of carriage requirements applicable to all passengers.” (Section 382.3).
Any animal that is individually trained or able to provide assistance to a qualified person with a disability; or any animal shown by documentation to be necessary for the emotional well-being of a passenger.
In addition to applicable provisions of part 382, the sources for this guidance include the following: “Guidance Concerning Service Animals in Air Transportation,” (61 FR 56420-56422, (November 1, 1996)), “Commonly Asked Questions About Service Animals in Places of Business” (Department of Justice, July, 1996), and “ADA Business Brief: Service Animals” (Department of Justice, April 2002).
Federal Maritime Commission.
Final rule.
The Federal Maritime Commission issued a Notice of Proposed Rulemaking on December 2, 2003, that set forth proposed changes in the Commission's regulations for Ocean Common Carrier and Marine Terminal Operator Agreements Subject to the Shipping Act of 1984. The proposal also included changes to the delegation of authority to the Commission's Bureau of Trade Analysis. The Commission requested that comments be filed by January 30, 2004. This notice of Final Rule summarizes the comments submitted and revises the proposed regulations based on those comments.
This rule is effective on January 3, 2005, except for §§ 535.702 and 535.703, which are effective February 2, 2005, and § 535.701(e), which is stayed until further notice.
The Notice of Proposed Rulemaking (“NPR”) (68 FR 67510, Dec. 2, 2003) sought to amend the Commission's regulations governing the filing of agreements pursuant to the Shipping Act of 1984, 46 U.S.C. 1701-1719 (“Shipping Act”). In particular, the NPR addressed the concerns that had been raised by regulated entities that are parties to agreements regarding regulatory certainty, flexibility, and confidentiality. These concerns were raised in comments submitted in response to a Notice of Inquiry published by the Commission on August 3, 1999. 64 FR 42057. Specifically, in the NPR the Commission proposed the following changes to 46 CFR parts 501 and 535: the addition of new delegations of authority to the Commission's Director, Bureau of Trade Analysis (“BTA”); revisions to the requirements for the content of filed agreements, including a new exemption for “low market share” agreements (proposed 46 CFR 535.311) and a new term “capacity rationalization” (proposed 46 CFR 535.104(e)); revisions to its current exemptions for “non-substantive” and “miscellaneous” modifications and transshipment agreements (proposed 46 CFR 535.302, 535.309, 535.104(jj) and 535.306(a)); a revision to 46 CFR 535.602(a) (to indicate that the Commission will submit a notice to the
Six comments on the NPR were received. These came from Maersk Sealand (“MSL”); American President Lines, Ltd. and APL Co. Pte., Ltd. (“APL”); P&O Nedlloyd Limited (“PONL”); FESCO Ocean Management Limited (“FOML”); Trans-Net, Inc. (“Trans-Net”); and the Ocean Common Carriers and Agreements (“OCCA”).
The individual carriers are: A.P. Moller-Maersk A/S; Allianca Navegacao e Logistica Ltda.; American President Lines, Ltd. and APL Co. PTE Ltd.; Arawak Line Ltd.; Atlantic Container Line AB; Australia-New Zealand Direct Line and Contship Containerlines, divisions of CP Ships (UK) Limited; Bahamas Ro Ro Service (Freeport), Inc.; Bernuth Lines, Ltd.; Caicos Cargo Ltd. d/b/a Turks Island Shipping Line; China Shipping Container Lines Co., Ltd.; CMA CGM, S.A.; Compagnie Maritime Marfret S.A.; Companhia Libra de Navegacao; Compania Chilena de Navigacion Interoceania, S.A.; Compania Sud Americana de Vapores, S.A.; COSCO Container Lines Company Limited; Crowley Liner Services, Inc.; Dole Ocean Cargo Express; Evergreen Marine Corporation (Taiwan) Limited; Farrell Lines, Inc.; FESCO Ocean Management Inc.; Frontier Liner Services, Inc.; G&G Marine, Inc.; Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft KG; Hanjin Shipping Co., Ltd.; Hapag-Lloyd Container Linie GmbH; Hyundai Merchant Marine Co., Ltd.; Interline Connection, N.V.; Kawasaki Kisen Kaisha, Ltd.; King Ocean Services Limited; King Ocean Services de Venezuela; LauritzenCool AB; Seatrade Group N.V.; Lykes Lines Limited, LLC; Mediterranean Shipping Co. S.A.; Mitsui O.S.K. Lines, Ltd.; Montemar Maritima S.A.; Nippon Yusen Kaisha; Orient Overseas Container Line Inc., Orient Overseas Container Line Limited, and Orient Overseas Container Line (Europe) Limited; P&O Nedlloyd B.V and P&O Nedlloyd Limited; Pioneer Shipping, Ltd.; Seafreight Line, Ltd.; Seaboard Marine, Ltd.; South Pacific Shipping Co., Ltd.; Tecmarine Lines, Inc.; Trinity Shipping Line, S.A.; Tropical Shipping & Construction, Ltd.; Turkon Container Transportation and Shipping, Inc.; Wallenius Wilhelmsen Lines AS; Yangming Marine Transport Corp.; and Zim Israel Navigation Co., Ltd.
APL notes that the operations of global alliances are extremely complex and fluid, and are affected by factors outside the U.S. trades. APL at 1. APL stresses: (1) the critical importance that alliances and vessel sharing agreements (“VSAs”) have flexibility to make operating decisions on a timely and efficient basis; and (2) that a major alliance is a continuous work in progress.
APL describes the operational matters of alliance agreements as often evolving via e-mail exchanges augmenting the original document, an “implementing agreement” and separate documents that may set forth particular aspects of cooperation.
OCCA and MSL support the elimination of the 45-day waiting period for space charters and other operational agreements, particularly in instances where the parties' combined market shares do not give rise to serious competitive concerns. OCCA at 9; MSL at 1. MSL also argues that eliminating the waiting period for space charters and similar agreements would not undermine the Commission's regulatory oversight, as the proposed exemption would not relieve the subject agreements from either the substantive requirements of the Shipping Act or its filing requirement. MSL at 2.
Nevertheless, OCCA and MSL believe that the market share threshold for a “low market share” agreement should be increased from 15 percent to 30 percent if operating within a pricing agreement, and from 20 percent to 35 percent if not. OCCA at 11; MSL at 2. OCCA argues that the market share considered for the low market share exemption should include the entire agreement scope because doing so would increase the relief provided by the exemption. OCCA at 10. OCCA submits that an agreement with low overall market share that includes one or more small sub-trades in which it has a large market share should not be disqualified from the exemption.
In addition to its other suggestions, OCCA urges the Commission to include specific activities in proposed section 535.408(b) exempting certain activities from amendment filing, namely: insurance; procedures for resolution of disputes relating to loss and/or damage of cargo; maintenance of books and records; force majeure clauses; procedures for allocating space and forecasting demand; and schedule adjustments.
Finally, OCCA requests that the Commission adopt a new exemption from the notice and waiting requirements to allow agreement amendments reflecting a change in party due to corporate acquisition to become effective upon filing.
The Commission is gratified that the comments generally recognize and agree with the NPR's stated purpose and approach in proposing an exemption from the statutory 45-day waiting period for agreements that contain neither capacity rationalization nor pricing authority. In response to the commenters' specific suggestions, the Commission has determined to revise the proposed rule as discussed below.
The NPR included a proposal to replace sections 535.103(g) and 535.407(a) with a new section 535.402 to serve as a single controlling rule reasserting and clarifying the Commission's interpretation of the Shipping Act's requirements for the content of a filed agreement. The Commission agrees with APL's comments that the approach it has taken, namely reaffirming its interpretation of the Shipping Act to require the filing of the true and complete agreement balanced by additional exemptions and reductions in the filing, waiting period, and reporting requirements of the Commission's rules, achieves the balance the Commission articulated in the NPR.
The Commission agrees with OCCA's suggestion that the term “classes” as it appears in proposed section 535.103(b), in light of the Commission's new approach to its information submission requirements, is no longer appropriate. The Final Rule changes the term, as suggested by OCCA, from “classes” to “types.” However, as to the Commission's use of the term “classes” in proposed section 535.103(d), describing the Commission's exemption authority for “classes of agreements” from requirements of the Shipping Act or these rules, the Commission has determined to retain the term as it mirrors the language of section 16 of the Shipping Act, 46 U.S.C. app. 1715.
We agree with OCCA's suggestion that “or a portion thereof” be included in 46 CFR 535.302(b)(1), which will therefore allow cancellation of an agreement, or a portion thereof, to become effective upon filing. Much like amendments that delete an agreement party (46 CFR 535.302(b)(2)), the Commission believes cancellation of a portion of an agreement that, for example, would reduce the geographic scope or authority of an agreement, appears unlikely to have any potentially detrimental effects and therefore may become effective upon filing. The Final Rule reflects these changes.
No comments were received opposing the proposed changes to this provision indicating the Commission will transmit notices of all filed agreements, and their amendments, to the
The Commission proposed a new exemption from the Shipping Act's standard 45-day waiting period for “low market share agreements.” The Final Rule reflects commenters” request that the market share level of such low market share agreements be raised, but the Commission declines to expand the definition of “market” for the exemption.
The commenters are correct to note that the Commission's proposed rule used the Antitrust Guidelines and
We have revised the provision to clarify that such low market share agreements do not include agreements containing any of the authorities listed at section 535.502(b). The provision is revised thus:
(a) Low market share agreement means an agreement among ocean common carriers which contains none of the authorities listed in 535.502(b) and for which the combined market share of the parties in any of the agreement's sub-trades is either:
(1) Less than 30 percent, if all parties are members of another agreement in the same trade or sub-trade containing any of the authorities listed in § 535.502(b); or
(2) Less than 35 percent, if all parties are not members of another agreement in the same trade or sub-trade containing any of the authorities listed in § 535.502(b).
We decline, however, to adopt the commenters' suggestion to make the exemption based upon the entire agreement trade, and find that basing the market share limit on sub-trades is a better measure for competitive concerns, as the geographic scope of an agreement may be extremely broad. We note that the definition of a sub-trade in section 535.104(hh) is revised by combining the U.S. East Coast and U.S. Gulf Coast segments of the trade and that this combination will provide regulatory relief to filers of agreements that are unlikely to have major implications on competition. Section 535.311 of the Final Rule is revised to reflect this change.
In response to the commenters' request for guidance on market shares for purposes of determining whether an agreement may be eligible for the low market share exemption, and in the interests of consistency, we have determined that the appropriate period should be the same as that found in the Commission's Information Form rules (appendix A to this part), namely the latest available calendar quarter. We encourage parties to seek the opinion of the Director, BTA, available under section 535.311(c), as to whether a proposed agreement may qualify for the exemption prior to filing. As with other exemptions, filers wishing to invoke this low market share exemption should note such a desire in the transmittal letter accompanying the filing. In the Final Rule, the Commission has added a cross-reference to the appropriate filing fee for low-market share agreements in new section 535.311(d).
We are confident that the exemptions reflected in this Final Rule provide the industry flexibility for the matters it has identified as requiring flexibility within the confines of the Shipping Act. As such, we have revised the proposed rule at section 535.408 to include all the matters OCCA's comments suggest, and to codify current Commission practice. The term “such as,” which appeared in proposed section 535.408(b)(5), is removed in the Final Rule in the interest of certainty. As proposed, section 535.408(a)reads,
(a) Agreements that arise from authority of an effective agreement but whose terms are not fully set forth in the effective agreement to the extent required by § 535.402 are permitted without further filing only if they:
(1) Are themselves exempt from the filing requirements of this part (pursuant to subpart C—Exemptions of this part); or
(2) Concern matters set forth in paragraph (b) of this section.
Proposed section 535.408(b)(2) is revised to codify the Commission's existing policy as to what may be acted upon without further amendment to a filed agreement. The NPR proposed, “The terms and conditions of space allocation and slot sales, the establishment of space charter rates, and terms and conditions of charter parties.” The Final Rule revises the section as follows:
(2) The terms and conditions of space allocations and slot sales, the procedures for allocating space, the establishment of space charter rates, and the terms and conditions of charter parties.
Similarly, section 535.408(b)(4) as proposed is revised to add two matters correctly identified by the commenters as reasonable to include in the exemption from further filing, namely, procedures for anticipating parties' space requirements and the maintenance of books and records. The Final Rule revises the proposed language:
(4) The following administrative matters:
(i) Scheduling of agreement meetings;
(ii) Collection, collation and circulation of data and reports from or to members;
(iii) Procurement, maintenance, or sharing of office facilities, furnishings, equipment and supplies, the allocation and assessment of costs thereof, or the provisions for the administration and management of such agreements by duly appointed individuals;
(iv) Procedures for anticipating parties' space requirements;
(v) Maintenance of books and records; and
(vi) Details as to the following matters as between parties to the agreement: insurance; procedures for resolutions of disputes relating to loss and/or damage of cargo; and force majeure clauses.
As noted in the NPR, the Commission finds it possible to exempt changes to the number of vessels or slots to be operated by an agreement if the originally-filed agreement contains an adequately described range of slots of vessels to be used under the agreement and if the changes fall within that range. 68 FR 67518, December 2, 2003. See also, infra, discussion of 46 CFR 535.704(d). Section 535.408(b)(5) is also revised to adopt the commenters' suggestion to allow changes in vessel substitution or replacement to become effective upon filing, and for clarity removes the phrase, “and there is no significant change in capacity” thus:
(5) the following operational matters:
(i) port rotations and schedule adjustments; and
(ii) changes in vessel size, number of vessels, or vessel substitution or replacement, if the resulting change is within a capacity range specified in the agreement.
The Commission declines to include in this Final Rule an exemption from the 45-day waiting period for a change in agreement parties due to corporate acquisition as there may be situations in which such a change significantly alters the competitive landscape in a trade. Filing parties are always free to request expedited review for such amendments.
The Commission received comments from APL and OCCA in response to its proposal to introduce a new term, “capacity rationalization,” to describe authority that may be contained in some agreements. Inclusion of such authority would prevent an agreement from being eligible for the low market share exemption at section 535.311 and would subject filing parties to certain periodic reporting requirements under the Commission's monitoring program.
(e)
OCCA objects not only to the proposed definition of the new term, but also to the removal of the existing definition of “capacity management.” OCCA at 4. OCCA argues that the proposed definition would include activities of certain “operational” agreements, such as alliance, cross slot charter, space charter or vessel sharing agreements, that preclude members, under certain expressed conditions, from initiating services independently in the agreement trade. Such restrictions, according to OCCA, have been recognized as legitimate commercial restrictions that are part of the quid pro quo to share space or vessels and serve a valid purpose. OCCA cites, for example, European Commission Regulation 823/2000, Article III(3)(a),
However, assuming arguendo that the Commission retains the proposed level of monitoring for agreements that contain certain types of restrictions on their members, OCCA proposes that it should nevertheless revise the proposed definition of “capacity rationalization.” OCCA argues that the proposed definition is too broad and goes beyond the Commission's expressed intent of focusing on restrictions imposed on capacity to be offered outside the terms of a filed agreement. OCCA suggests that the Commission may wish to rewrite the capacity rationalization definition to avoid inadvertently capturing legitimate activities that it believes the Commission should not subject to heightened reporting requirements, such as adjustments in capacity within a range specified in an agreement. OCCA also contends that the definition is unacceptably vague because it includes the term “stabilization,” which is not itself defined. Id. at 6. OCCA suggests that the Commission replace its definition of capacity rationalization with one that focuses on three specific restrictions. OCCA proposes the following definition:
We decline to adopt the definition suggested by OCCA, as it would omit some conference and discussion agreements that contain authority for members to discuss and agree upon rationalization of capacity by members in specific trades. In addition, the Commission continues to be of the view expressed in the NPR that the potential effects of such arrangements are heavily dependent on conditions particular to an agreement trade and how the agreement is related to other agreements.
APL notes, without further comment, the OCCA suggestion that the definition be “clarified” if the Commission elects to adopt the proposed use of the term. APL at 6. APL, however, recognizing the Commission's purpose in the NPR as increasing reporting requirements for agreements with such provisions rather than reducing the carriers' operating flexibility, suggests instead that the Commission refine the reporting requirements rather than the definition. Id. at 6.
In proposing this definition, the Commission's purpose was to identify arrangements that impose restrictions on capacity, and to distinguish those from simple operational exchanges of space. APL correctly assesses the purpose of the definition; the Commission intends to apply a level of monitoring to agreements that address members' participation in the market through manipulation or restriction of the potential supply of vessel capacity in a trade, similar to the level it applies to agreements covering members' pricing activities. It also intends to ensure that agreements containing such authority continue to be accompanied by sufficient information and receive the degree of scrutiny on initial filing that the Commission deems appropriate, without the waiver of the 45-day waiting period and Information Form that would apply based solely on the low market share of such agreements pursuant to section 535.311 and as discussed in this Supplemental Information. However, the Commission concurs with APL's assessment that not all of the heightened degree of ongoing reporting reflected in the proposed rule is necessary for agreements that contain authority that comes within the definition of capacity rationalization. The Final Rule will address that concern by revising the Monitoring Report regulations at section 535.703(c).
Finally, we note that the definition of capacity rationalization as published in the NPR inadvertently included language that was part of the Commission's existing definition of “capacity management.” The last sentence, which reads, “The term does not include sailing agreements or space charter agreements” should have been deleted. Consistent with the Commission's intention to apply its rules according to the authority contained in an agreement rather than by “type” or “class” of agreement, this language should not have been retained. Therefore, it is deleted from the definition of capacity rationalization in the Final Rule.
The Commission proposed a revision to the definition of a transshipment agreement and a corresponding change to the definition of a nonexclusive
(jj)
§ 535.306 Nonexclusive transshipment agreements'exemption.
(a) A nonexclusive transshipment agreement is a transshipment agreement by which one ocean common carrier * * *
Trans-Net, a licensed and bonded non-vessel-operating common carrier from Washington State, was the only commenter in favor of the proposed rule change. Trans-Net conveyed its views via written comments and meetings with individual Commissioners. Trans-Net argues that the change in the definition will provide greater transparency of carrier actions for both shippers and the Commission. Trans-Net at 3-4. At the same time, Trans-Net maintains that the filing of an agreement with the Commission would not be unduly burdensome to the carriers and that the proposed rule accommodates the carriers' desire for flexibility. Trans-Net at 5-7. PONL, FOML, and OCCA, however, disagree with Trans-Net and the Commission in that they do not consider the proposed rule changes either necessary or desirable.
In their comments, PONL and FOML challenge the Commission's “traditional view” of a transshipment agreement as stated in the supplemental information that accompanied the proposed rule. The Commission's “traditional view” of a transshipment agreement is an agreement “under which two ocean common carriers that both operate vessels provide a through service between the United States and a foreign port.” 68 FR 67520-21, December 2, 2003. However, PONL and FOML both challenge this view of a transshipment agreement as lacking legal and factual basis. PONL at 5, FOML at 3. The Commission's traditional view of a transshipment agreement is based mostly on experience in dealing with transshipment agreements filed prior to the current Shipping Act, when carriers participating in transshipment agreements typically operated one of the vessels involved in the transshipment. The optional provisions for nonexclusive transshipment agreements included in the Commission's regulations at section 535.306(d), based on the manner in which transshipments were conducted in 1984, tend to reinforce the Commission's traditional view.
PONL and FOML also assert that there is no basis to the Commission's contention that the definition needs clarification. PONL at 3, FOML at 1. In response, we note that the shipping industry has changed a great deal since 1984, with the increased use of vessel-sharing agreements and service contracts. We also note that Docket 99-10, Ocean Common Carriers Subject to the Shipping Act of 1984, has reduced dramatically the number of transshipment agreements that would now come under the Commission's jurisdiction. While the shipping industry has changed, the definition of a transshipment agreement has not changed, and we are taking this opportunity to update the definition accordingly.
OCCA claims that there is already sufficient transparency because the publishing carrier is required to state the name of the connecting carrier in its tariff (pursuant to the Commission's regulations for nonexclusive transshipment agreements). OCCA at 27. OCCA further maintains that most shippers would be aware of how their cargo is being transported because they have agreed to such service in their service contracts, and even if the shipper were unaware of how its cargo was being transported, the publishing carrier is responsible for the entire movement under its through bill of lading. OCCA at 28. Therefore, OCCA asserts that the rule changes are unnecessary. However, transparency is not the only issue with which the Commission is concerned. As stated earlier, we feel that the definition needs to be updated to reflect more accurately the manner in which transshipments are conducted at the present time.
With regard to the Commission's proposed rule, PONL, FOML, and OCCA are particularly concerned about the inclusion of the language “filed and effective agreement” in the Commission's proposed rule. They charge that this would create two different meanings for the term “by direct vessel call” in the definition for a nonexclusive transshipment agreement. OCCA at 28-29, PONL at 8-9, FOML at 5-7. According to PONL, FOML, and OCCA, the Commission's proposed rule would stipulate that a carrier taking space pursuant to a space charter agreement may be considered to make a “direct vessel call” in the portion of the transshipment between the U.S. port and the transshipment port, but not in the portion of the transshipment between the transshipment port and the foreign port because the publishing carrier would not have a filed and effective agreement to cover that portion of the transshipment.
By including the term “filed and effective agreement” in the definitions, PONL, FOML, and OCCA assert that the Commission appears to be dictating to carriers how they should structure their operations in the foreign-to-foreign portion of a transshipment, where, OCCA points out, the Commission has no jurisdiction. OCCA at 28-29. OCCA suggests that a publishing carrier that uses space chartered from another carrier in the foreign-to-foreign portion of a transshipment be considered as making a direct vessel call pursuant to the Commission's definition of a transshipment agreement. Id. at 29.
In consideration of those carriers that already participate in filed and effective alliance and vessel-sharing agreements, the Commission included the option of having a filed and effective agreement. It is not the Commission's intent to create a definition for the term “direct vessel call.” With regard to the concerns expressed by PONL, FOML, and OCCA, we note that a publishing carrier would only be required to have a filed and effective agreement or operate its own vessel on one leg of the transshipment. A publishing carrier that either operates its own vessel or takes space from another carrier pursuant to a filed and effective agreement in the U.S. portion of the transshipment may transport the cargo in the manner that is most advantageous to it commercially in the foreign-to-foreign portion of the transshipment.
OCCA also questions whether agreements that are otherwise exempt from filing, such as an agreement between a parent company and its wholly owned subsidiary, would be required to be filed. Id. Provided that the parent company is an ocean common carrier, it is the Commission's view that the proposed rule would not affect that exemption.
In addition to the arguments expressed above, PONL and FOML contend that the Commission is departing from its view that the publishing carrier may be the carrier serving the foreign-to-foreign portion of a transshipment. PONL at 9, FOML at 6. According to PONL and FOML, under the revised definition a publishing carrier that does not operate a vessel involved in the transshipment would have to be the origin carrier in the export trade of the United States and the destination carrier in the import trade of the United States because of the requirement that the publishing carrier have a filed and effective agreement. We disagree with this assessment on the grounds that pursuant to the Commission's regulations a publishing carrier is only the carrier offering the service. The Commission's regulations do not include the terms “origin carrier” and “destination carrier” or seek to dictate whether the publishing carrier should be the carrier serving the port of origin or the carrier serving the port of destination. The regulations refer to the “publishing carrier” and the “nonpublishing carrier” or “participating, connecting or feeder carrier.”
PONL and FOML further claim that they would be forced to discontinue many of their current transshipment arrangements because they would not be able to conduct them subject to transshipment agreements. PONL at 9-10, FOML at 7. In response to PONL's and FOML's complaint, we note that PONL and FOML may enter into vessel-sharing agreements that would enable them to continue those arrangements. Furthermore, under the changes outlined above for “low market share” agreements, those vessel-sharing agreements may become effective upon filing.
The NPR issued by the Commission replaced the current Information Form and Monitoring Report regulations with modified regulations that update the reporting requirements for carrier agreements. The modified regulations account for changes in carrier agreements that have occurred since the Ocean Shipping Reform Act of 1998, Public Law No. 105-258 (“OSRA”) became effective. As such, the Commission seeks to obtain the most relevant and accurate agreement information from carriers for its analysis of agreements under the Shipping Act, without placing an undue regulatory burden on carriers. In addition, the regulations were modified to reduce, where possible, the reporting burden on carriers.
The Information Form and Monitoring Report provide the Commission with essential information on an agreement from the parties to the agreement, and the Commission has consistently found that parties to an agreement are the most reliable source of information on the agreement.
Once an agreement goes into effect under the Shipping Act, the regulations in subpart G of part 535 require that certain agreements submit ongoing revenue and/or operational data on the parties' activities for as long as the agreement remains in effect. As such, the Monitoring Report enables the Commission to track and analyze the ongoing competitive effects of an agreement after it becomes effective and, accordingly, determine whether any action under the Shipping Act may be necessary. Monitoring Reports also help the Commission to stay informed of agreement activity in the U.S. trades, and to address agreement issues that might arise in connection with investigations, complaints, inquiries, or petitions for Commission action on an agreement.
The NPR revised the Information Form regulations by requiring all carrier agreements to submit an Information Form upon filing with the Commission. Specifically, proposed section 535.502(a) requires that all carrier agreements identified in section 535.201(a), except low market share agreements identified in section 535.311, submit an Information Form when the agreement is filed with the Commission. Proposed section 535.502(b) requires an Information Form when a modification to an existing agreement is filed that adds the authority to discuss, or agree on, capacity rationalization, or adds pricing or pooling authority.
The Commission's proposed rule replaced the format of the Information Form in current sections 535.503 and 535.504 with one form under section 535.503(a) divided into sections I through V, as set forth in appendix A of part 535. Proposed section 535.503(b) requires that agreement parties complete each section of the Information Form applicable to the agreement and the authority contained in the agreement. Sections I and V apply to all carrier agreements subject to the Information Form requirements. Sections II, III and IV apply based on the authority contained in the agreement.
Section I of the Information Form applies to all carrier agreements subject to the Information Form requirements as identified in section 535.502(a) of the proposed rule. Parties to such agreements must complete parts 1 through 4 of section I with information on the following topics: the name of the agreement, narrative statements on the
Section II of the Information Form applies to carrier agreements that contain simple operational authority including vessel space charter, and sailing or service rationalization arrangements. This authority does not include the establishment of a joint service as defined in section 535.104(o), or capacity rationalization as defined in section 535.104(e), of the proposed rule. Parties to such agreements must complete all items in part 1 of section II with information on their vessel calls at ports along with a narrative statement on any changes in port service that are anticipated or planned to occur when the agreement goes into effect.
Section III of the Information Form applies to carrier agreements with the authority to discuss, or agree on, capacity rationalization as defined in section 535.104(e) of the proposed rule. Parties to such agreements must complete parts 1 through 3 of section III with information on their vessel capacity and capacity utilization, their vessel calls at ports, and a narrative statement on any anticipated or planned changes in their vessel capacity and/or liner services (including ports) that would be implemented under the agreement when it goes into effect.
Section IV of the Information Form applies to carrier agreements with pricing or pooling authority. Section 535.503(b)(4) of the proposed rule specifically identifies these authorities as: (a) The discussion of, or agreement upon, whether on a binding basis under a common tariff or a non-binding basis, any kind of rate or charge; (b) the establishment of a joint service; (c) the pooling or division of cargo traffic, earnings, or revenues and/or losses; (d) the discussion or exchange of data on vessel-operating costs; or (e) the discussion of, or agreement on, any service contract matter.
Parties to agreements with any of these authorities must complete parts 1 through 5 of section IV with information on the following topics: market share, total average revenue, cargo volume and revenue results for the top 10 agreement-wide commodities, vessel capacity and capacity utilization, and port service. The agreement parties must also provide narrative statements on any changes in their vessel capacity or port service that are anticipated or planned to occur when the agreement goes into effect. Changes in vessel capacity are qualified to mean “significant changes in the amounts of vessel capacity,” as defined in part 4(C) of section IV.
Section V requires that parties to all subject agreements identify contact persons for the Information Form and the agreement, and that the Information Form be certified and signed by a representative of the parties.
The proposed rule modified the Monitoring Report regulations to require reporting only from parties to agreements with certain authority. For agreements that contain pricing or pooling authority,
[w]here the merging firms have a combined market share of at least thirty-five percent, merged firms may find it profitable to raise price and reduce joint output below the sum of their premerger outputs because the lost markups on the foregone sales may be outweighed by the resulting price increase on the merged base of sales.
57 FR 41561, Sept. 10, 1992.
For exceptional agreements, proposed section 535.702(c) provides that the Commission may, as necessary, require Monitoring Reports from an agreement with pricing or pooling authority with a market share below the 35 percent threshold.
The proposed rule replaced the format of the Monitoring Report in current sections 535.703, 535.704, and 535.705 with one form in proposed section 535.703(a) divided into sections I through III, as set forth in appendix B of part 535. Section 535.703(b) of the proposed rule requires that parties to an agreement complete each section of the Monitoring Report applicable to the agreement and the authority contained in the agreement. Sections I and II apply based on the authority contained in the agreement, and section III applies to all agreements required to submit
Section I of the Monitoring Report applies to all agreements with the authority to discuss, or agree on, capacity rationalization, as defined in section 535.104(e) of the proposed rule. Parties to such agreements must complete parts 1 through 3 of section I with quarterly information on their vessel capacity and capacity utilization. In addition, proposed section 535.703(c), as set forth in part 3 of section I, requires that a narrative statement of any changes in vessel capacity and/or liner services (including ports) that the parties plan to implement under the agreement be submitted to the Commission's Director of BTA no later than 15 days after a change has been agreed upon by the parties but prior to the implementation of the change.
As proposed, section II of the Monitoring Report applies to agreements in which the parties hold a combined market share, based on cargo volume, of 35 percent or more in the entire U.S. inbound or outbound geographic scope of the agreement and the agreement contains any of the following authorities: (a) The discussion of, or agreement upon, whether on a binding basis under a common tariff or a non-binding basis, any kind of rate or charge; (b) the establishment of a joint service; (c) the pooling or division of cargo traffic, earnings, or revenues and/or losses; (d) the discussion or exchange of data on vessel-operating costs; or (e) the discussion of, or agreement on, any service contract matter.
Parties to such agreements must complete parts 1 through 6 of section II with the following quarterly information: Market share, total average revenue, cargo volume and revenue results on the top 10 agreement-wide commodities, vessel capacity and capacity utilization, and narrative statements on any significant changes that occurred in vessel capacity and service at ports. The meaning of significant changes for these items is qualified in parts 5(C) and 6 of section II. The proposed rule substantially reduced the reporting burden for major agreement commodities by requiring parties to report their data on an agreement-wide basis, instead of a sub-trade basis.
Section III requires that parties to all subject agreements identify a contact person for the Monitoring Report, and that the Monitoring Report be certified and signed by a representative for the parties.
Comments directly addressing the Information Form and Monitoring Report regulations of the proposed rule were submitted by OCCA and APL. As noted above, OCCA represents most of the conference and rate discussion agreements and their members in the U.S. trades. As a member of OCCA, APL endorses OCCA's comments on the proposed rule. APL at 1. However, APL also submitted separate comments as a supplement to OCCA's comments to elaborate on particular aspects of the proposed rule. Id. Summaries of the issues raised by the commenters as they pertain to the Information Form and Monitoring Report regulations proposed in the NPR are provided below with the Commission's discussion on each issue.
OCCA expressed its view that since OSRA became effective, the current Information Form and Monitoring Report regulations for carrier agreements are unduly burdensome and unnecessary given: (1) The extensive use of individual service contracts in the shipment of cargo, (2) the confidentiality of service contract terms, and (3) the reduction in the number of conference agreements in the U.S. trades. OCCA at 16-17. Overall, OCCA recognizes the Commission's efforts to reduce the current reporting burden on carriers and supports most of the proposed changes pertaining to the Information Form and Monitoring Report regulations. Id. at 17. Nonetheless, OCCA raises the following issues and recommendations that would in its view further improve the rule. Id.
OCCA objects to the heightened reporting requirements on agreements that authorize capacity rationalization, as the term is defined in section 535.104(e) of the proposed rule. Id. at 5. OCCA interprets the meaning of capacity rationalization to include certain types of agreements, based upon its reading of the supplementary information of the NPR. Id. at 4. These are: (1) An agreement that prohibits or restricts the introduction of vessels into the agreement trade in a service other than that operated under the agreement; (2) an agreement that prohibits or restricts the use of space on non-agreement vessels in the agreement trade by an agreement party; and (3) an agreement that results in an artificial withholding of vessel capacity. Id. OCCA argues that operational agreements with restrictive provisions on its members' activities within the agreement trade are legitimate, understandable, and serve a valid purpose. Id. at 5. OCCA's objections to the new term “capacity rationalization” and its suggestions for changes to the definition, as well as our response to OCCA's suggestions, are addressed earlier, in Part II(B) of the Supplemental Information.
On a related issue, OCCA recommends that the Commission delete the term “discussion of” when identifying agreement modifications that add capacity rationalization authority in section 535.502(b)(2).
OCCA also opposes proposed section 535.703(c), as set forth in part 3 of section I of the Monitoring Report, that requires parties to an agreement authorizing capacity rationalization to report to the Commission their planned vessel capacity and/or liner service
OCCA further believes the advance notice requirement to be unnecessary and duplicative because the rule requires vessel capacity data from many agreements in their quarterly Monitoring Reports. Id. Moreover, it argues that advance notice of capacity changes serves no legitimate regulatory purpose because carriers may lawfully act in concert to reduce capacity under the authority of a filed agreement,
In its supplemental comments, APL endorses OCCA's position to delete the advance notice requirement in section 535.703(c) of the proposed rule, and part 3 of section I of the Monitoring Report, for agreements authorizing capacity rationalization. APL at 6. As an alternative, however, APL suggests that the Commission limit the advance notice requirement to cover only concerted actions that reduce the total vessel capacity of such agreements. Id. at 6-7. It notes that increases in vessel capacity could be adequately reported on a quarterly basis in the regular Monitoring Report. Id. at 7. Further, APL suggests that the Commission qualify the meaning of vessel capacity and/or liner service changes to exclude temporary or minor changes that have little or no impact, regardless of whether reported in advance or on a historical quarterly basis. Id. APL finds the prospect of reporting such temporary or minor changes to be unduly burdensome and of no useful regulatory purpose. Id.
For the reasons discussed above in Part II of the Supplementary Information, we are not adopting OCCA's suggested definition of capacity rationalization. We are retaining the definition in proposed section 535.104(e), with the last sentence deleted in the Final Rule. This section addresses the reporting requirements for agreements that authorize capacity rationalization.
Based on its reading of the Supplementary Information in the NPR, OCCA interprets the intention of the reporting requirements for agreements authorizing capacity rationalization as primarily limited to certain types of operational agreements with restrictive provisions on their members' activities in the agreement trade. OCCA's interpretation is not entirely accurate. We addressed operational agreements in the Supplementary Information of the NPR to distinguish and illustrate some of the agreements that are included in the definition of capacity rationalization. Specifically, we determined that operational agreements included in the definition of capacity rationalization are those that affect the supply of vessel capacity in a trade or market and prohibit or place conditions on its members' independent agreement participation with other carriers and/or competing liner services outside of the agreement within the agreement trade. We discussed these agreements to distinguish them from simple operational agreements, which do not place such restrictions on their members, so that the agreement filing and reporting regulations would be understood and applied correctly. In focusing our discussion on operational agreements, it was not our intention to imply that the reporting requirements for agreements authorizing capacity rationalization are limited to certain types of agreements.
The proposed rule explicitly eliminated the identification of agreements by type or class in the Information Form and Monitoring Report regulations. The current regulations, which identify carrier agreements by type or class for the purpose of assigning reporting requirements, have become outdated and inadequate in relation to the changes that have occurred in carrier agreements and their increasingly complex authorities, as was explained in the Supplementary Information to the NPR:
The current agreement classification regulations in section 535.502 provide procedures for assigning specific reporting requirements to specific types of agreements. Agreements filed at the Commission, however, have evolved since the current classification regulations were implemented, especially under OSRA. Now, multiple or complex forms of authority may be contained in a single agreement that might not neatly fall under one specific agreement type or class. Further, the reporting requirements assigned to a particular type or class of agreement may not adequately address the full authority of the agreement. For instance, the current reporting requirements for Class C agreements do not distinguish between simple operational agreements, such as vessel space charter arrangements, and the more complex and anticompetitive operational agreements with capacity rationalization authority that include global alliance arrangements.
To address these concerns, the proposed rule modified the regulations to assign reporting requirements to specific authorities contained in agreements. In this regard, we stated that:
While no rule can cover all circumstances, the Commission believes that this approach would more directly address the elements of concern within the agreement,
The Information Form and Monitoring Report regulations in the proposed rule provide that any agreement authorizing the discussion of, or agreement on, capacity rationalization is subject to the reporting requirements. The regulations include all carrier agreements with such authority, regardless of agreement type. In addition to operational agreements with capacity rationalization authority, there are a number of conference and rate discussion agreements with authority to discuss, or agree on, capacity rationalization. Such agreements will be subject to the reporting requirements for capacity rationalization authority in addition to all other reporting requirements applicable to their pricing or pooling authority under this Final Rule.
In assigning reporting requirements to capacity rationalization authority, the Commission is intentionally increasing the level of its analysis and monitoring of the concerted actions that are planned or implemented by carriers under this authority of their agreements. We believe this increase in reporting is reasonable, judicious, and proportional to the increasing prevalence and use of capacity rationalization authority occurring in agreements between or among carriers in the U.S. trades. The Commission views these reporting requirements as a necessary measure within its authority under section 5(a) and based on its statutory
By promulgating reporting requirements for capacity rationalization authority, the Commission does not dispute, as OCCA argues, the legitimacy of such authority in agreements. Further, we do not dispute the lawfulness of carriers to act in concert under such authority within the standards of the Shipping Act. In the Supplementary Information to the NPR, we acknowledged that operational agreements, even those with capacity rationalization authority, can achieve efficiencies in a trade or market by lowering operational costs and even enhancing ocean liner services to the benefit of the shipping public. Id. at 67524. The efficiencies associated with capacity rationalization authority in conference or rate discussion agreements, however, are less apparent and would seem to be aimed at achieving the rate objectives of the agreement. Further, in the NPR, we cautioned that a concerted reduction in vessel capacity and the restrictions imposed by capacity rationalization authority can result in a shortage of vessel space in a trade leading to an unreasonable decrease in service. Id. A concerted reduction in vessel capacity can also produce an artificially-induced upward pressure on rate levels, potentially leading to an unreasonable increase in rates in violation of section 6(g). Id.
The reporting requirements for agreements authorizing capacity rationalization should not be viewed in any way as a punitive measure against such agreements. Rather, the purpose of the reporting requirements is to provide the Commission with necessary information to gauge the reasonableness of the parties' actions under such authority in accordance with the standards of the Shipping Act, and within the prevailing market conditions of the agreement trade.
We do not believe that reporting vessel capacity information places any undue regulatory burden on carriers because carriers engaged in capacity rationalization have such information readily available. Moreover, the Final Rule provides regulations that allow carriers to request a waiver, with a showing of good cause, from any of the Information Form and Monitoring Report requirements. Accordingly, in conjunction with the definition in section 535.104(e) of the Final Rule, all agreements identified in sections 535.502 and 535.702(a) that authorize the discussion of, or agreement on, capacity rationalization are subject to the applicable reporting requirements in subparts E and G of the Final Rule, as modified below.
With respect to section 535.502(b)(2) of the proposed rule, the Commission rejects OCCA's recommendation to delete the term “discussion of” for agreement modifications that add capacity rationalization authority. The term accurately reflects the intention of the Commission's reporting requirements. We view the “discussion of” capacity rationalization as potentially anti-competitive, especially within conference and rate discussion agreements, similar to the anti-competitive authority to discuss pricing information.
Adding authority for the discussion of capacity rationalization, or the discussion of pricing information, to an existing agreement alters the competitive composition of the agreement, and the agreement must be re-examined with a new Information Form. Absent such a reporting requirement, the Commission would have to request vessel capacity information from parties to an agreement modification authorizing the discussion of capacity rationalization after the modification was filed, which could delay the effective date. Further, deleting the term “discussion of” for agreement modifications would conflict with the reporting requirements for newly filed agreements, which require information on the authority to discuss, or agree on, capacity rationalization. The Commission believes that authority to discuss capacity rationalization would not be any less anti-competitive based solely on it being filed as a modification to an existing agreement than it would be if filed in a new agreement.
On the issue of proposed section 535.703(c), and part 3 of section I of the Monitoring Report, the Commission does not agree with OCCA's recommendation to delete the reporting requirement for notice to the Commission of planned vessel capacity and/or liner service changes prior to implementation from parties to agreements authorizing capacity rationalization. OCCA incorrectly infers that the reporting requirement is an unnecessary imposition by the Commission that ignores or negates the legality of carriers to act within the authority of their agreements. As previously stressed, we do not dispute the lawfulness of carriers to act in concert under the authority of their agreements within the reasonable standards of the Shipping Act.
The reporting requirement is a judicious regulatory measure that enables the Commission to gauge the reasonableness of a pending action that the parties plan to implement under the authority of their agreement. With such reporting, the Commission can receive timely notice to take any necessary action under the Shipping Act to prevent a concerted action by carriers that would likely cause harm in the agreement trade prior to its implementation.
To make this determination, the Commission must first be informed in advance of the parties' pending action under the agreement. The Commission must also be able to weigh the severity of such action within the prevailing market conditions of the agreement trade. While an agreement may specify a range of vessel capacity within which the parties intend to operate, this range of vessel capacity may be broad spanning multiple trade lanes and liner services under the geographic scope of the agreement, especially in cases where the geographic scope covers all the U.S. trades. Moreover, market conditions in the agreement trade might have substantially changed from the time when the Commission initially analyzed the likely competitive impact of the agreement upon filing. Therefore, accurate and current information on the likely effects of a pending action under an agreement is required directly from the parties to the agreement. In accordance with the jurisdictional authority of the Commission governing agreements in effect under the Shipping Act, we find it both prudent and necessary to retain section 535.703(c) in the Final Rule for notice prior to implementation of pending actions planned by parties to agreements authorizing capacity rationalization.
We do not believe that this reporting requirement places any undue regulatory burden on carriers. As OCCA noted, parties to agreements often publish this information. Therefore, we believe that they can easily and readily submit the required information to the Commission. We do, however, concur with the alternative modifications suggested by APL for this reporting requirement.
APL correctly discerns that the underlying intention of the Commission for this reporting requirement focuses on receiving advance notice of concertedly planned reductions in vessel capacity that might potentially violate the standards of reasonableness under the Shipping Act. Further, as APL surmises, it is our intention that such reporting be limited to reductions in vessel capacity that would be
Therefore, section 535.703(c) has been modified in the Final Rule to require notice prior to implementation of any significant reductions in vessel capacity under the agreement. Part 3 of section I of the Monitoring Report in the proposed rule has been modified and parts 2(C) and 2(D) of section I have been added in the Final Rule. Part 2(C) of section I sets forth instructions on reporting significant reductions in vessel capacity prior to implementation. Part 2(D) of section I sets forth instructions on reporting other significant changes in vessel capacity for the preceding calendar quarter. Part 3 of section I of the Monitoring Report in the Final Rule has been modified and now sets forth instructions on reporting significant changes in vessel calls at ports for the preceding calendar quarter. In a similar manner, all other reporting requirements in appendices A and B of part 535 in the Final Rule have been modified and qualified for reporting purposes to mean significant changes in vessel capacity, or vessel calls at ports.
OCCA objects to the heightened reporting requirements on agreements that contain the authority to discuss or exchange data on vessel-operating costs. OCCA at 7. OCCA notes that reporting on such authority was first adopted by the Commission in its rulemaking in
Specifically, OCCA refers to the Commission's application of Supreme Court cases,
From a practical perspective, OCCA argues that the authority to discuss or exchange vessel-operating cost data has no meaningful impact on pricing because carriers price based on total costs, in addition to market conditions, and vessel-operating costs are only a portion of total costs. Id. Moreover, OCCA points out that most vessel-operating cost data is publicly available information and can be readily obtained or discerned regardless of whether carriers are authorized to share such data. Id. at 8-9. Further, OCCA believes that heightened reporting requirements on such authority creates an excessive burden for carriers that obstructs efficiency because carriers generally discuss or exchange such data within their vessel-sharing agreements, which promote cost-effective services. Id. at 9. For these reasons, it recommends that the Commission delete all references to such authority from the rule, including the Information Form and Monitoring Report.
The Commission disagrees that its legal or economic rationale in FMC Docket No. 94-31 was misguided, as OCCA argues. The Commission considers the “sharing of pricing information” between parties to an agreement, which affects price competition in a market, to include the authority to discuss or exchange cost information. In the case of the ocean shipping industry, such information includes vessel-operating cost data.
We recognize, however, that it is unnecessarily redundant to subject such authority to reporting requirements where vessel-operating cost data is shared by carriers for pricing purposes in agreements. Agreements that contain authority to discuss, or agree upon, pricing are already subject to the reporting requirements. Further, we agree that the authority to share vessel-operating cost data in agreements that do not contain pricing authority, such as a vessel-sharing agreement, is for operational purposes.
It is not our intention in this rule to subject such an agreement to a level of reporting on par with agreements containing potentially highly anti-competitive authorities when such reporting is not necessary or required. Therefore, the reference to the authority to discuss or exchange data on vessel-operating costs has been deleted from sections 535.502, 535.503, 535.702, and appendices A and B of part 535 of the Final Rule. The definition of vessel-operating costs, however, has been retained in section 535.104(kk) in the Final Rule for any future reference that may be necessary in 46 CFR part 535.
OCCA recommends that the Commission delete parts 2, 4(D), and 4(J) of section I of the Information Form in the proposed appendix A.
The Commission declines to adopt OCCA's recommendation to delete parts 2(A) and 2(B) of section I of the Information Form that require narrative statements elaborating on the purpose and commercial aspects of an agreement between or among carriers filed at the Commission. We disagree with OCCA's arguments that such information has no regulatory purpose nor advances the
Section I [of the Information Form] requires carriers to supply relevant agreement information to the Commission at the start of the review process. This information would be used in the initial review and analysis of an agreement, and would help to avoid formal requests for additional information which delay the effective date of the agreement.
With respect to part 2 of section I, we further explained that this specific information provides the Commission with a clearer understanding of the parties' collective objectives under the agreement in relation to their services within the agreement trade. Id. at 67526. We noted that such information would be relevant to the Commission's review of the agreement, but might not be readily apparent by the terms of the agreement without seeking additional information from the parties. Id.
The statutes and regulations governing the filing of agreements under the Shipping Act only require that conference agreements contain a statement of purpose. For other agreements, it is at the discretion of the parties as to whether a statement of purpose is contained in the filed agreement. As such, the Commission cannot always rely on the content of agreements to disclose such information. The Commission has a vast amount of experience in reviewing and analyzing agreement filings under the Shipping Act. Accordingly, we have found that agreements filed at the Commission are generally crafted to meet the legal requirements of the Shipping Act, and very little additional information elaborating on the purpose or commercial aspects of an agreement accompanies the agreement filing. As previously noted, the authority of the Commission to promulgate rules on the form and manner of filed agreements and any additional information and documents that need to accompany the agreement filings is set forth in section 5(a) of the Shipping Act.
In some instances, parties to an agreement publish relevant information on the purpose and/or commercial circumstances pertaining to the agreement. The Commission uses any published information that is available to gain a clearer understanding of an agreement for its analysis. However, we find it wholly inadequate and inefficient that the receipt of relevant information useful to the Commission's review and analysis of an agreement may be dependent upon whether the parties choose to publish information, and limited to whatever sort of information they may choose to publish about the agreement. Instead, we believe that the relevant and straightforward agreement information required in part 2 of section I of the Information Form can be easily and readily submitted by the parties at the time that the agreement is first filed at the Commission.
When questions arise about an agreement that cannot be addressed by the content of the agreement or any published information, the Commission can request additional information from the parties, which could delay the effective date of the agreement. Part 2 of section I provides carriers with the opportunity to avoid requests for additional information on their agreements, and it is in their best interest to respond accordingly with meaningful agreement information that fully addresses this reporting requirement.
We do, however, see a need to modify this part of the Information Form. We believe that the purpose and commercial aspects of an agreement are interrelated and may more easily be addressed in a single narrative statement. Therefore, parts 2(A) and 2(B) have been consolidated into a requirement for one narrative statement in part 2 of section I of the Information Form in appendix A of part 535 of the Final Rule.
Regarding OCCA's issues with the other parts of section I of the Information Form, part 4(D) on the authority to discuss or exchange data on vessel-operating costs has been deleted from the Final Rule for the reasons previously stated. Further, we agree that agreements filed under the Shipping Act must comply with 46 CFR 535.402, and thus, part 4(J) of section I of the Information Form is unnecessary and has been deleted from the Final Rule because the complete and specific authorities between the parties can be obtained from the content of the agreement.
OCCA strongly urges the Commission to eliminate all reporting requirements for cargo volume and revenue data on agreement commodities.
In the Supplementary Information of the NPR, the Commission acknowledged that since OSRA became effective, collective pricing under conference agreements has declined in favor of voluntary rate authority under discussion agreements. 68 FR 67524, December 2, 2003. Nevertheless, we stated that although coordination is voluntary, discussion agreements contain considerable and broad authority to influence tariff rates, service contract rates, and other service matters spanning large geographic areas in the U.S. trades. Id. We explained that:
OSRA prohibited any mandatory restrictions on individual service contracts, but it allowed agreements to adopt voluntary service contract guidelines on their parties' individual contracts. On a voluntary basis, carriers may collectively set and adhere to rates and terms for their individual service contracts. Thus, while agreement carriers are pricing more independently under OSRA, they still have the power to exert their collective influence over contract rates and terms.
For this reason, the Commission declines to adopt OCCA's recommendation to eliminate part 3 of section IV of the Information Form (appendix A of part 535) and part 4 of section II of the Monitoring Report
A review of the voluntary service contract guidelines filed with the Commission indicates that parties to most major agreements with pricing authority, whether a conference or a discussion agreement, collectively set guidelines on rate levels and/or rate increases for specific commodities. Parties to such agreements may use and adhere to the commodity rate guidelines in their individual service contracts. As such, agreements with authority to affect pricing, even with the changes that have occurred under OSRA, can and do affect commodity-specific freight rates in the ocean transportation of cargo moving under the individual service contracts of their members.
As stressed throughout this rule, the Commission is assigned the responsibility of overseeing and regulating the concerted behavior of ocean common carriers that, but for the Shipping Act, would otherwise be subject to the antitrust laws. 49 U.S.C. app. 1706. To carry out its statutory duty, the Commission must assess the competitive effects of the concerted behavior of agreement parties on the ocean carriage of cargo in the foreign commerce of the United States. Where parties to an agreement have authority to affect cargo freight rates and charges collectively, reporting requirements for specific information pertaining to such potentially anti-competitive authority is necessary for the Commission to gauge the reasonableness of the parties' behavior in accordance with the standards of the Shipping Act.
It is our view that in most major agreements with pricing authority the parties set freight rates for specific commodities, whether in tariffs or in service contracts, and adopt voluntary service contract guidelines that can affect the cargo freight rates of specific commodities. To regulate this behavior properly, it remains necessary for the Commission to receive some commodity-specific information directly from parties to agreements with authority that may affect pricing.
As such, we disagree with OCCA's arguments regarding the value and usefulness of the commodity specific data collected under the Commission's reporting requirements. This information provides the Commission with meaningful insight on the trends in, and the direction of, pricing under agreements for major commodity movements in the U.S. trades. By examining these data trends for an agreement, the Commission can more accurately gauge the competitive effects of the concerted pricing behavior of the parties in the agreement trade. The ability of the Commission to analyze pricing under an agreement is especially important in cases where the combined market share of the parties is inordinately high, which gives them considerable market power to affect pricing.
The commodity information from the reporting requirements is also used by the Commission for guidance in addressing inquiries, complaints, and petitions for Commission action on an agreement in cases where such issues involve specific commodities. Issues on the pricing behavior of agreement parties continue to be brought before the Commission under OSRA.
We recognize the problems and burden for carriers associated with the former reporting requirements for agreement commodity data. Consequently, we modified these requirements by adding definitions and qualifications with better instructions in the proposed rule to assist carriers in preparing their data, and to improve the consistency and accuracy of the data reported to the Commission. We further substantially reduced the amount of required commodity data to ease the reporting burden on carriers.
We believe that the modified reporting requirements for the commodity data in the proposed rule represent a fair and reasonable compromise for carriers, and are compatible with the changes that have occurred in agreements under ORSA. Further, we believe that most major carriers maintain records of some form on their cargo volume and revenue results by commodity in the agreement trades that they serve. Accordingly, we do not believe that the modified reporting requirements for agreement commodity data in the proposed rule place an undue regulatory burden on carriers. Therefore, these requirements have been retained in this Final Rule. In cases where unique compliance problems or issues arise, a carrier may request relief, with a showing of good cause, from any of the Information Form and Monitoring Report requirements under the waiver procedures provided in the Final Rule.
In the Supplementary Information of the NPR, the Commission indicated that the new Information Form regulations shall become effective 30 days after publication of a Final Rule in the
In the NPR, the Commission proposed to replace its current regulations in sections 535.706 through 535.708 on the filing requirements for minutes of meetings between parties to certain agreements with modified regulations in proposed section 535.704. The Commission found that modifications to the regulations were necessary to address problems it had encountered in the quality of information being reported in agreement minutes. As such, the proposed rule updated the regulations to require more descriptive reporting on relevant matters discussed at meetings between parties at levels that are pertinent to the decision-making process of the agreement. The proposed rule also sought to accommodate the changes in agreements that have occurred since OSRA.
Specifically, the NPR proposed to modify the current regulations to: (1) Require minutes from agreements based on the authority contained in the agreement; (2) eliminate the filing requirement that limits reporting to meetings at which the parties are authorized to take “final action;” (3) clarify the level of detail required to describe matters discussed or considered at agreement meetings; (4) establish a new requirement that each document distributed, discussed, or exchanged at meetings be submitted with the minutes; (5) clarify the
Comments on the minutes requirements of the NPR were submitted by OCCA, APL, and PONL. Commenters acknowledged the need for the Commission to receive meaningful minutes of agreement meetings in a timely fashion. OCCA at 20. In general, however, they believe that the proposed minutes requirements are overly broad and unduly burdensome. OCCA at 21-22, APL at 8. In their view, if promulgated as proposed, the minutes regulations would overwhelm both the carriers and the Commission's staff with unnecessary paperwork and information. Id. They raise the following specific issues with respect to the proposed minutes regulations.
OCCA and APL take issue with section 535.704(a)(1) of the proposed rule, which assigned minutes requirements to agreements based on the authority contained in the agreement, as opposed to the former regulations, which assigned minutes requirements based on defined types of agreements.
[t]his section applies to agreements authorized to engage in any of the following activities: discussion or establishment of any type of rates, whether in tariffs or service contracts; pooling or apportionment of cargo; discussion of revenues, losses, or earnings; discussion or exchange of vessel-operating costs; discussion or agreement on service contract matters, including the establishment of voluntary service contract guidelines.”
68 FR 67545, December 2, 2003.
[t]o the extent a space charter, sailing or capacity rationalization agreement contains one or more types of the authority set forth in § 535.704(a), the minutes of meetings of the agreement need only reflect discussions held and agreements reached pursuant to such authority, and need not reflect discussion of or agreement upon routine operational matters such as those identified in §§ 535.508(b)(2), (b)(3), (b)(4) and (b)(5).
OCCA at 22.
APL concurs with OCCA's comments, and also recommends that the Commission delete the discussion or exchange of vessel-operating costs as an authority subject to the minutes requirements in section 535.704(a)(1). APL at 9. Among its comments, APL argues that parties to operational agreements, such as alliance arrangements, must, by the very nature of their agreements, discuss vessel-operating costs. Id. at 7. It asserts that the discussion of such costs is inherently relevant to making vessel deployment and operational decisions, which achieve efficiencies and cost savings. Id. Moreover, as mentioned above, APL questions the validity of the Commission's decision in FMC Docket No. 94-31, which originally assigned reporting requirements to agreements with such authority. Id. at 8.
It is not the intention of the Commission to elicit unnecessary information or impose an unjust reporting burden on agreement members under the minutes requirements. As such, we advise carriers to examine the authorities contained in their agreements, and where appropriate, eliminate any unnecessary or underutilized authority identified in section 535.704(a)(1) in the Final Rule, as modified below. While the Commission recognizes that revisions to the proposed rule would provide greater clarity and reduce any unnecessary reporting burden, particularly with respect to minor administrative and operational matters, the Commission disagrees with OCCA's recommendation on the exemption provisions in section 535.704(d).
To exempt types of agreements and to tie minutes reporting to discussions solely relating to the authorities in section 535.704(a)(1), as OCCA recommends, would undermine the clear intent of this rule. As previously discussed, the proposed rule updates the regulations to identify agreements by their authorities instead of narrowly defined agreement types. Similarly, the Commission believes that limiting minutes reporting to the authorities in section 535.704(a)(1) might also be interpreted too narrowly and relevant information might be omitted from the minutes.
The authorities in an agreement are interrelated, and the decisions reached pursuant to one authority may have a bearing on the decisions reached under the other authorities of the agreement. Without clear reporting in the minutes, the cause and effect relationship between the authorities in an agreement might not be apparent to the Commission. For instance, the discussion by parties of substantive operational matters that would affect the supply of vessel capacity under an agreement that also has rate authority would be relevant because supply can have a direct impact on the level of pricing in the marketplace. Consequently, such discussions must be fully addressed in minutes filed with the Commission.
Instead of specifically identifying which relevant issues need to be addressed in the minutes, the Commission believes that the correct approach to add clarity and reduce the reporting burden is to identify those matters that can be exempted from the minutes for all agreements subject to this section. Therefore, section 535.704(d) has been revised to include the following exemptions in the Final Rule:
(d)
(1) Minutes of meetings between parties are not required to reflect discussions of matters set forth in §§ 535.408(b)(2), (b)(3), (b)(4)(iii), (b)(4)(iv), (b)(4)(v) and (b)(4)(vi);
(2) Minutes of meetings between parties are not required to reflect discussions of matters set forth in § 535.408(b)(5) to the extent that such discussions involve minor operational matters that have little or no impact on the frequency of vessel calls at ports or the amount of vessel capacity offered by the parties in the geographic scope of the agreement; and
(3) Minutes of meetings between parties are not required to reflect discussions of or actions taken with regard to rates that, if adopted, would be required to be published in an appropriate tariff. This exemption does not apply to discussions concerning general rate policy, general rate changes, the opening or closing of rates, service contracts, or time/volume rates.
It should be noted that section 535.408(b)(4)(ii) regarding the collection, collation, and circulation of data and reports from or to members of an agreement is omitted from the exemptions in section 535.704(d) in the Final Rule. The collection and circulation of commercial information in an agreement can directly impact competition between the agreement parties and in the agreement trade. To analyze the competitive impact of an agreement properly, it is important for the Commission to remain aware of how and what commercial information is being shared and used under the agreement. Consequently, a full account of the discussions in meetings between parties on administrative matters for sharing information within the agreement must be addressed in the minutes. For agreement filing purposes, however, the Commission recognizes that the regulations must provide parties with enough flexibility to perform their daily administrative functions pursuant to the express enabling authority of their agreements without requiring the filing of continuous agreement modifications on such matters. The Commission can remain informed of the information sharing activities of the parties through filed minutes.
With respect to the discussion or exchange of vessel-operating cost data, the Commission finds it unnecessarily redundant to include such authority in section 535.704(a)(1), as was similarly the Commission's finding for the Information Form and Monitoring Report regulations. We are primarily concerned with the sharing of pricing information, which includes costs, as such information sharing affects price competition. Where vessel-operating cost data is shared for pricing purposes, the agreement would already be subject to the minutes requirements because it contains pricing authority. Agreements authorizing the exchange of vessel-operating cost data without any of the other authorities in section 535.704(a)(1), such as a simple vessel-sharing arrangement, are operational in nature, and, therefore, not subject to the minutes requirements. Accordingly, the requirement to file minutes based on agreement authority to discuss or exchange vessel-operating cost data has been deleted from section 535.704(a)(1) in the Final Rule.
The Commission believes that these revisions in the Final Rule provide carriers with a sufficient degree of reporting relief sought under the minutes requirements. It should also be noted that parties to an agreement subject to this section may request a waiver for good cause from any of the minutes requirements in accordance with the procedures provided in section 535.705. The Commission would consider granting a waiver of some or all of the minutes requirements in cases where the parties could specifically demonstrate that the agreement raises little or no anti-competitive concern under the Shipping Act, or where the parties could demonstrate that such reporting would be irrelevant or would create an undue burden.
OCCA contends that the definition of the term “meeting” proposed in section 535.704(b) would increase the number of minutes filings and impose a significant burden on carriers by eliminating “authority to take final action” as a precondition to the minutes requirements and by including discussions among as few as two parties within the meaning of the term. OCCA at 21. PONL raises a number of questions on what constitutes a meeting under the Commission's proposed definition. PONL at 2. As such, PONL recommends that the Commission clarify the definition of a meeting for it to be meaningful, enforceable, and one to which carriers can adhere. Id. Specifically, PONL suggests that the Commission make clear that informal discussions outside the context of an agreement, especially when the representatives do not have responsibilities relating to the agreement, should not be included in the minutes requirements. Id.
The Commission believes that the definition in proposed section 535.704(b) clearly conveys the meaning and intent of the term “meeting,” and has adopted this definition in the Final Rule without any further revision.
[T]he current definition of “meeting” is ambiguous and causes confusion over which meetings or discussions held under an agreement are subject to the requirement to file minutes with the Commission. Further, differing interpretations of the regulations have resulted in minutes of meetings not being filed when such meetings covered substantive issues. Questions have arisen over whether the minutes filing requirement is based on the level of authority of the participants at a given meeting (
Accordingly, the Commission finds the current “final action” concept for meetings to be unworkable because of the persistently inadequate information we have received in agreement minutes. The definition in the Final Rule corrects this deficiency to ensure that the Commission receives sufficient information on the substantive issues discussed among parties to agreements subject to the minutes requirements, as such discussions relate to the business of the agreement. Where informal discussions occur among three or more parties pertaining to the business of the agreement, this constitutes a meeting as defined in section 535.704(b) of the Final Rule, and minutes of such discussions must be filed with the Commission. The business of the agreement includes all of the authorities provided for in the filed agreement. If the discussion in a meeting is of a nature that implicates an authority contained in the filed agreement, minutes of the discussion must be filed with the Commission unless specifically exempted under section 535.704(d).
With respect to electronic communication, we noted in the NPR that “it is not the intent of the Commission to require the filing of minutes for such discussions as two-party electronic communication.” Id. For further clarity, we add that a meeting subject to this section would take place where electronic communication is used by three or more parties to discuss the business of the agreement, or where an agreement is reached between any number of parties via electronic communication. More
OCCA objects to section 535.704(c)(3) of the proposed rule in that it omits language in the current regulations which provides that the content of minutes need not disclose the identity of parties that participate in discussions or the votes taken. OCCA at 23. OCCA argues that if the proposed minutes requirements intend for participants in discussions to be identified, agreement parties would be reluctant to make proposals and state their positions clearly, which would have a “chilling effect” on agreement meetings. Id. at 23-24. To remedy this concern, OCCA recommends that the Commission revise section 535.704(c)(3) to include similar language as formerly provided.
[a] description of discussions detailed enough so that a non-participant reading the minutes could reasonably gain a clear understanding of the nature [and extent]of the discussions and, where applicable, any decisions reached. Such description need not disclose the identity of the parties that participated in the discussion or the votes taken.
OCCA at 24.
OCCA further objects to section 535.704(c)(4) of the proposed rule that requires the submission of documents distributed, discussed, or exchanged at meetings between agreement parties. Id. OCCA argues that the proposed requirement is so expansive that it would disclose documents reflecting individual positions or proposals circulated at meetings whether or not such matters were adopted by the agreement. Id. OCCA also claims that disclosing the identity of the individual positions or proposals of parties under the proposed minutes requirements would have a “chilling effect” on agreement meetings, and that the submission of documents, as proposed, would create a huge burden for the carriers and the Commission. Id. at 23-25. OCCA recommends that the Commission revise section 535.704(c)(4) to limit the submission of documents to only those relating to the subject matter for which minutes would be filed.
[a]ny report, statistical compilation, analytical study, or other similar work in written or electronic format which is distributed, exchanged or discussed at the meeting. Memoranda or proposals prepared by one or more member lines or the agreement secretariat (other than reports, statistical compilations, analytical studies or similar works) need not be provided if the minutes reflect discussion of the subject of the memorandum or proposal.
OCCA at 25.
The Commission agrees with OCCA to the extent that the proposed minutes requirements were not intended to disclose the identity of parties to individual proposals, positions, or votes that transpired at agreement meetings. Accordingly, section 535.704(c)(3) has been revised to include OCCA's recommended language in the Final Rule.
With respect to the submission of documents, the Commission believes that OCCA's recommendation to provide minutes reporting in lieu of submitting certain types of documents would undermine the intent of this requirement. Specifically, this requirement is aimed at uncovering and obtaining copies of all relevant documents circulated at agreement meetings.
In the NPR, we explained that:
[I]n instances where a document is identified in the minutes, Commission staff must then determine its importance and attempt to obtain a copy of the document. We believe it is more likely that many documents, collectively prepared or used by agreement members, remain unknown to the Commission.
On the issue of burden, we further noted in the NPR that:
The Commission considered, as an alternative, requiring agreements to submit a summary of all documents discussed at minuted meetings in lieu of the actual document. However, we rejected this proposal, believing that requiring agreements to create a summary, simply for filing purposes, would be more burdensome than requiring submission of the documents themselves. In addition, this approach would be less burdensome on the Commission's staff as it would reduce the utilization of scarce resources in tracking down documents, and instead allow us to focus on review and analysis of concerted activities.
The above notwithstanding, the Commission understands OCCA's concerns for protecting the anonymity of the individual parties with respect to the submission of documents. The Commission is not overly concerned with who circulated a proposal at a meeting, but rather what proposals were circulated and the discussions or decisions that took place. Consistent with the revised language added to section 535.704(c)(3), section 535.704(c)(4) in the Final Rule has been revised to add the following statement:
[a]ny documents submitted to the Commission pursuant to this section need not disclose the identity of the party or parties that circulated the document at the meeting.
OCCA objects to the shorter filing time for minutes as proposed in the NPR, which was reduced from 30 days to 15 days after a meeting. OCCA at 26. It argues that under the new minutes requirements, and the resulting increase in the number of minutes filings, agreements will need more time, not less, to file minutes in compliance with the regulations. Id. OCCA recommends that if a shorter period is necessary, the Commission revise the rule by adjusting the filing time to 21 days after a meeting. Id. PONL concurs with OCCA's recommendation and further recommends that minutes of meetings between two or three agreement parties be permitted to file within 30 days because an administrator for the agreement might not necessarily be present at such a meeting. PONL at 3.
OCCA requests that the Commission stay the implementation of the shorter filing time for six months after the Final Rule becomes effective, whereby agreement parties may acclimate to the new regulations. OCCA at 26-27. OCCA also seeks clarification to ensure that the new regulations will only apply to meetings after the Final Rule becomes effective. Id. at 27.
In consideration of these concerns, we have revised the Final Rule by adjusting the time for filing minutes to 21 days after a meeting. The revised filing time, however, shall apply to all meetings subject to the minutes requirements of the Final Rule regardless of the number
OCCA's request for a stay on the implementation of the shorter filing time is denied.
In response to the proposed minutes requirements, PONL raises questions regarding who has the obligation to file minutes and who is liable for any violation of the filing requirements. PONL at 2. PONL believes that the failure of two or three agreement parties to file minutes of their meetings should not extend liability to the other agreement parties that did not participate in the meetings. Id. at 3.
The Commission disagrees with PONL's view regarding the liability of agreement parties to file minutes of their meetings. It is our policy that the obligation and liability for complying with filing requirements pertaining to an agreement, whether minutes, Information Forms, Monitoring Reports, or other documentation, are shared equally by all parties to the agreement.
In terms of the filing practices of agreements, we note that agreements often choose to divide the various filing requirements among themselves or through a third party, such as an agreement secretariat or a filing counsel. Even though some agreements file portions of their data individually, such as Monitoring Report information, all parties of an agreement are jointly liable for the failure of the agreement to comply with the regulations.
The reporting, recordkeeping, and disclosure requirements contained in this Final Rule have been submitted to the Office of Management and Budget (OMB). Public burden for this collection of information is estimated to average 37 hours per response for agreement filings (including Information Forms); 250 hours per quarterly response for Monitoring Reports from major pricing agreements; 170 hours per quarterly response for Monitoring Reports from less anti-competitive pricing agreements; 40 hours per quarterly response for Monitoring Reports from capacity rationalization agreements; and two hours per response for minutes filing. The overall estimated burden is 35,770 hours per annum, a reduction of 59.8 percent from the current estimated burden of 88,970 hours per annum. These estimates include, as applicable, the time needed to review instructions, develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to respond to a collection of information, search existing data sources, gather and maintain the data needed, and complete and review the collection of information; and transmit or otherwise disclose the information.
The Chairman of the Federal Maritime Commission certifies, pursuant to section 605 of the Regulatory Flexibility Act, 5 U.S.C. 605, that this Final Rule will not have a significant impact on a substantial number of small entities. The affected universe of parties is limited to ocean common carriers, passenger vessel operators, and marine terminal operators. The Commission has determined that these entities do not come under the program and policies mandated by the Small Business Regulatory Enforcement Fairness Act as they typically exceed the threshold figures for number of employees or annual receipts or both to qualify as a small entity under the Small Business Administration Guidelines.
Authority delegations, Organization and functions, Seals and insignia.
Freight, Maritime carriers, Reporting and recordkeeping requirements.
5 U.S.C. 551-557, 701-706, 2903, and 6304; 31 U.S.C. 3721; 41 U.S.C. 414 and 418; 44 U.S.C. 501-520 and 3501-3520; 46 U.S.C. app. 876, 1111, and 1701-1720; Reorganization Plan No. 7 of 1961, 26 FR 7315, August 12, 1961; Pub. L. 89-56, 79 Stat. 195; 5 CFR part 2638; Pub. L. 89-777, 80 Stat. 1356; Pub. L. 104-320, 110 Stat. 3870.
(c) Authority to grant or deny applications filed under § 535.504 of this chapter for waiver of the Information Form requirements in subpart E of part 535.
(d) Authority to grant or deny applications filed under § 535.705 of this chapter for waiver of the reporting requirements in subpart G of part 535 of this chapter.
(o) Authority to require Monitoring Reports from, or prescribe alternative periodic reporting requirements for, parties to agreements under § 535.702(c) and (d) of this chapter.
(p) Authority to require parties to agreements subject to the Monitoring Report requirements in § 535.702(a)(2) of this chapter to report their agreement commodity data on a sub-trade basis pursuant to § 535.703(d) of this chapter.
5 U.S.C. 553; 46 U.S.C. 1701-1707, 1709-1710, 1712 and 1714-1718; Pub. L. 105-258, 112 Stat. 1902 (46 U.S.C. 1701 note); Sec. 424, Pub. L. 105-383, 112 Stat. 3440.
The rules in this part are issued pursuant to the authority of section 4 of the Administrative Procedure Act (5 U.S.C. 553), sections 2, 3, 4, 5, 6, 7, 8, 10, 11, 13, 15, 16, 17, and 19 of the Shipping Act of 1984 (“the Act”), and the Ocean Shipping Reform Act of 1998, Pub. L. 105-258, 112 Stat. 1902.
This part implements those provisions of the Act that govern agreements by or among ocean common carriers and agreements among marine terminal operators and among one or more marine terminal operators and one or more ocean common carriers. This part also sets forth more specifically certain procedures provided for in the Act.
(a) The Act requires that agreements be processed and reviewed, upon their initial filing, according to strict statutory deadlines. This part is intended to establish procedures for the orderly and expeditious review of filed agreements in accordance with the statutory requirements.
(b) The Act requires that agreements be reviewed, upon their initial filing, to ensure compliance with all applicable provisions of the Act and empowers the Commission to obtain information to conduct that review. This part identifies those types of agreements that must be accompanied by information submissions when they are first filed, and sets forth the kind of information for certain agreements that the Commission believes relevant to that review. Only information that is relevant to such a review is requested. It is the policy of the Commission to keep the costs of regulation to a minimum and at the same time obtain information needed to fulfill its statutory responsibility.
(c) To further the goal of expedited processing and review of agreements upon their initial filing, agreements are required to meet certain minimum requirements as to form. These requirements are intended to ensure expedited review and should assist parties in preparing agreements. These requirements as to form do not affect the substance of an agreement and are intended to allow parties the freedom to develop innovative commercial relationships and provide efficient and economic transportation systems.
(d) The Act itself excludes certain agreements from the filing requirements and authorizes the Commission to exempt other classes of agreements from any requirement of the Act or this part. To minimize delay in the implementation of routine agreements and to avoid the private and public cost of unnecessary regulation, certain classes of agreements are exempt from the filing requirements of this part.
(e) Under the regulatory framework established by the Act, the role of the Commission as a monitoring agency has been enhanced. The Act favors greater freedom in allowing parties to form their commercial arrangements. This, however, requires greater monitoring of agreements after they have become effective to assure their continued compliance with all applicable provisions of the Act. The Act empowers the Commission to impose certain recordkeeping and reporting requirements. This part identifies those agreements that require specific record retention and reporting to the Commission and prescribes the applicable period of record retention, the form and content of such reporting, and the applicable time periods for filing with the Commission. Only information that is necessary to assure that the Commission's monitoring responsibilities will be fulfilled is requested.
(f) The Act requires that conference agreements contain certain mandatory provisions. Each conference agreement must:
(1) State its purpose;
(2) Provide reasonable and equal terms and conditions for admission and readmission to membership;
(3) Allow for withdrawal from membership upon reasonable notice without penalty;
(4) Require an independent neutral body to police the conference, if requested by a member;
(5) Prohibit conduct specified in sections 10(c)(1) or 10(c)(3) of the Act;
(6) Provide for a consultation process;
(7) Establish procedures for considering shippers' requests and complaints; and
(8) Provide for independent action.
(g) To promote competitive and efficient transportation and a greater reliance on the marketplace, the Act places limits on carriers' agreements regarding service contracts. Carriers may not enter into an agreement to prohibit or restrict members from engaging in contract negotiations, may not require members to disclose service contract negotiations or terms and conditions (other than those required to be published), and may not adopt mandatory rules or requirements affecting the right of an agreement member or agreement members to negotiate and enter into contracts. However, agreement members may adopt voluntary guidelines covering the terms and procedures of members' contracts.
When used in this part:
(a)
(b)
(c)
(d)
(e)
(f)
(1) Assumes responsibility for the transportation from the port or point of receipt to the port or point of destination; and
(2) Utilizes, for all or part of that transportation, a vessel operating on the high seas or the Great Lakes between a port in the United States and a port in a foreign country, except that the term does not include a common carrier engaged in ocean transportation by ferry boat, ocean tramp, or chemical parcel tanker, or by a vessel when primarily engaged in the carriage of perishable agricultural commodities:
(i) If the common carrier and the owner of those commodities are wholly owned, directly or indirectly, by a person primarily engaged in the marketing and distribution of those commodities; and
(ii) Only with respect to those commodities.
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o) (1)
(i) Holds itself out in its own distinct operating name;
(ii) Independently fixes its own rates, charges, practices, and conditions of service or chooses to participate under its operating name in another agreement that is duly authorized to determine and implement such activities;
(iii) Independently publishes its own tariff or chooses to participate under its operating name in an otherwise established tariff;
(iv) Issues its own bills of lading; and
(v) Acts generally as a single carrier.
(2) The common use of facilities in a joint service may occur, and there is no competition between members for cargo in the agreement trade; but they otherwise maintain their separate identities.
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(aa)
(bb)
(cc)
(dd)
(1) A cargo owner;
(2) The person for whose account the ocean transportation is provided;
(3) The person to whom delivery is to be made;
(4) A shippers' association; or
(5) A non-vessel-operating common carrier (
(ee)
(ff)
(gg)
(hh)
(1) Atlantic and Gulf shall encompass ports along the eastern seaboard and the Gulf of Mexico from the northern boundary of Maine to Brownsville, Texas. It also includes all ports bordering on the Great Lakes and their connecting waterways, all ports in the State of New York on the St. Lawrence River, and all ports in Puerto Rico and the U.S. Virgin Islands; and
(2) Pacific shall encompass all ports in the States of Alaska, Hawaii, California, Oregon, and Washington. It also includes all ports in Guam, American Samoa, Northern Marianas, Johnston Island, Midway Island, and Wake Island.
(ii)
(jj)
(kk)
(a)
(1) Discuss, fix, or regulate transportation rates, including through rates, cargo space accommodations, and other conditions of service;
(2) Pool or apportion traffic, revenues, earnings, or losses;
(3) Allot ports or restrict or otherwise regulate the number and character of sailings between ports;
(4) Limit or regulate the volume or character of cargo or passenger traffic to be carried;
(5) Engage in exclusive, preferential, or cooperative working arrangements among themselves or with one or more marine terminal operators;
(6) Control, regulate, or prevent competition in international ocean transportation; or
(7) Discuss and agree on any matter related to service contracts.
(b)
(1) Discuss, fix, or regulate rates or other conditions of service; or
(2) Engage in exclusive, preferential, or cooperative working arrangements, to the extent that such agreements involve ocean transportation in the foreign commerce of the United States.
This part does not apply to the following agreements:
(a) Any acquisition by any person, directly or indirectly, of any voting security or assets of any other person;
(b) Any maritime labor agreement;
(c) Any agreement related to transportation to be performed within or between foreign countries;
(d) Any agreement among common carriers to establish, operate, or maintain a marine terminal in the United States; and
(e) Any agreement among marine terminal operators that exclusively and solely involves transportation in the interstate commerce of the United States.
(a)
(b)
(c)
(d)
(a) Non-substantive modifications to effective agreements. A non-substantive modification to an effective agreement between ocean common carriers and/or marine terminal operators, acting individually or through approved agreements, is one which:
(1) Reflects changes in the name of any geographic locality stated therein, the name of the agreement or the name of a party to the agreement, the names and/or numbers of any other section 4 agreement or designated provisions thereof referred to in an agreement;
(2) Corrects typographical and grammatical errors in the text of the agreement or renumbers or reletters articles or sub-articles of agreements and references thereto in the text; or
(3) Reflects changes in the titles of persons or committees designated therein or transfers the functions of such persons or committees to other designated persons or committees or which merely establishes a committee.
(b) Other Miscellaneous Modifications to effective agreements. A miscellaneous modification to an effective agreement is one that:
(1) Cancels the agreement or a portion thereof;
(2) Deletes an agreement party;
(3) Changes the parties to a conference agreement or a discussion agreement among passenger vessel operating common carriers that is open to all ocean common carriers operating passenger vessels of a class defined in the agreements and that does not contain ratemaking, pooling, joint service, sailing or space chartering authority; or
(4) Changes the officials of the agreement and delegations of authority.
(c) A copy of a modification described in (a) or (b) of this section shall be submitted to the Commission but is otherwise exempt from the waiting period requirement of the Act and this part.
(d) Parties to agreements may seek a determination from the Director of the Bureau of Trade Analysis as to whether a particular modification is a non-
(e) The filing fee for non-substantive or other miscellaneous modifications is provided in § 535.401(g).
(a) A husbanding agreement is an agreement between an ocean common carrier and another ocean common carrier or marine terminal operator, acting as the former's agent, under which the agent handles routine vessel operating activities in port, such as notifying port officials of vessel arrivals and departures; ordering pilots, tugs, and linehandlers; delivering mail; transmitting reports and requests from the Master to the owner/operator; dealing with passenger and crew matters; and providing similar services related to the above activities. The term does not include an agreement that provides for the solicitation or booking of cargoes, signing contracts or bills of lading and other related matters, nor does it include an agreement that prohibits the agent from entering into similar agreements with other carriers.
(b) A husbanding agreement is exempt from the filing requirements of the Act and of this part.
(c) The filing fee for optional filing of husbanding agreements is provided in § 535.401(g).
(a) An agency agreement is an agreement between an ocean common carrier and another ocean common carrier or marine terminal operator, acting as the former's agent, under which the agent solicits and books cargoes and signs contracts of affreightment and bills of lading on behalf of the ocean common carrier. Such an agreement may or may not also include husbanding service functions and other functions incidental to the performance of duties by agents, including processing of claims, maintenance of a container equipment inventory control system, collection and remittance of freight and reporting functions.
(b) An agency agreement as defined above is exempt from the filing requirements of the Act and of this part, except those:
(1) Where a common carrier is to be the agent for a competing ocean common carrier in the same trade; or
(2) That permit an agent to enter into similar agreements with more than one ocean common carrier in a trade.
(c) The filing fee for optional filing of agency agreements is provided in § 535.401(g).
(a) An equipment interchange agreement is an agreement between two or more ocean common carriers for:
(1) The exchange of empty containers, chassis, empty LASH/SEABEE barges, and related equipment; and
(2) The transportation of the equipment as required, payment therefor, management of the logistics of transferring, handling and positioning equipment, its use by the receiving carrier, its repair and maintenance, damages thereto, and liability incidental to the interchange of equipment.
(b) An equipment interchange agreement is exempt from the filing requirements of the Act and of this part.
(c) The filing fee for optional filing of equipment interchange agreements is provided in § 535.401(g).
(a) A nonexclusive transshipment agreement is a transshipment agreement by which one ocean common carrier serving a port of origin by direct vessel call and another such carrier serving a port of destination by direct vessel call provide transportation between such ports via an intermediate port served by direct vessel call of both such carriers and at which cargo will be transferred from one to the other and which agreement does not:
(1) Prohibit either carrier from entering into similar agreements with other carriers;
(2) Guarantee any particular volume of traffic or available capacity; or
(3) Provide for the discussion or fixing of rates for the account of the cargo interests, conditions of service or other tariff matters other than the tariff description of the service offered as being by means of transshipment, the port of transshipment and the participation of the nonpublishing carrier.
(b) A nonexclusive transshipment agreement is exempt from the filing requirements of the Act and of this part, provided that the tariff provisions set forth in paragraph (c) of this section and the content requirements of paragraph (d) of this section are met.
(c) The applicable tariff or tariffs shall provide:
(1) The through rate;
(2) The routings (origin, transshipment and destination ports); additional charges, if any (
(3) A tariff provision substantially as follows:
The rules, regulations, and rates in this tariff apply to all transshipment arrangements between the publishing carrier or carriers and the participating, connecting or feeder carrier. Every participating connecting or feeder carrier which is a party to transshipment arrangements has agreed to observe the rules, regulations, rates, and routings established herein as evidenced by a connecting carrier agreement between the parties.
(d) Nonexclusive transshipment agreements must contain the entire arrangement between the parties, must contain a declaration of the nonexclusive character of the arrangement and may provide for:
(1) The identification of the parties and the specification of their respective roles in the arrangement;
(2) A specification of the governed cargo;
(3) The specification of responsibility for the issuance of bills of lading (and the assumption of common carriage-associated liabilities) to the cargo interests;
(4) The specification of the origin, transshipment and destination ports;
(5) The specification of the governing tariff(s) and provision for their succession;
(6) The specification of the particulars of the nonpublishing carrier's concurrence/participation in the tariff of the publishing carrier;
(7) The division of revenues earned as a consequence of the described carriage;
(8) The division of expenses incurred as a consequence of the described carriage;
(9) Termination and/or duration of the agreement;
(10) Intercarrier indemnification or provision for intercarrier liabilities consequential to the contemplated carriage and such documentation as may be necessary to evidence the involved obligations;
(11) The care, handling and liabilities for the interchange of such carrier equipment as may be consequential to the involved carriage;
(12) Such rationalization of services as may be necessary to ensure the cost effective performance of the contemplated carriage; and
(13) Such agency relationships as may be necessary to provide for the pickup and/or delivery of the cargo.
(e) No subject other than as listed in paragraph (d) of this section may be included in exempted nonexclusive transshipment agreements.
(f) The filing fee for optional filing of nonexclusive transshipment agreements is provided in § 535.401(g).
(a) An agreement between or among wholly-owned subsidiaries and/or their parent means an agreement under section 4 of the Act between or among an ocean common carrier or marine terminal operator subject to the Act and any one or more ocean common carriers or marine terminal operators which are ultimately owned 100 percent by that ocean common carrier or marine terminal operator, or an agreement between or among such wholly-owned carriers or terminal operators.
(b) All agreements between or among wholly-owned subsidiaries and/or their parent are exempt from the filing requirements of the Act and this part.
(c) Ocean common carriers are exempt from section 10(c) of the Act to the extent that the concerted activities proscribed by that section result solely from agreements between or among wholly-owned subsidiaries and/or their parent.
(d) The filing fee for optional filing of these agreements is provided in § 535.401(g).
(a)
(b)
(c)
(d)
(e) All marine terminal agreements, as defined in § 535.308(a), with the exception of marine terminal conference, marine terminal interconference, and marine terminal discussion agreements as defined in § 535.308(b), (c), and (d), are exempt from the waiting period requirements of the Act and this part and will, accordingly, be effective on filing with the Commission.
(f) The filing fee for marine terminal agreements is provided in § 535.401(g).
(a)
(b) All marine terminal services agreements as defined in § 535.309(a) are exempt from the filing and waiting period requirements of the Act and this part on condition that:
(1) They do not include rates, charges, rules, and regulations that are determined through a marine terminal conference agreement, as defined in § 535.308(b); and
(2) No antitrust immunity is conferred under the Act with regard to terminal services provided to an ocean common carrier under a marine terminal services agreement that is not filed with the Commission.
(c) The filing fee for optional filing of terminal services agreements is provided in § 535.401(g).
(a)
(b) All marine terminal facilities agreements as defined in § 535.310(a) are exempt from the filing and waiting period requirements of the Act and this part.
(c) Parties to marine terminal facilities agreements currently in effect shall provide copies to any requesting party for a reasonable copying and mailing fee.
(d) The filing fee for optional filing of terminal facilities agreements is provided in § 535.401(g).
(a) Low market share agreement means any agreement among ocean common carriers which contains none of the authorities listed in 535.502(b) and for which the combined market share of the parties in any of the agreement's sub-trade is either:
(1) Less than 30 percent, if all parties are members of another agreement in the same trade or sub-trade containing any of the authorities listed in § 535.502(b); or
(2) Less than 35 percent, if all parties are not members of another agreement in the same trade or sub-trade containing any of the authorities listed in § 535.502(b).
(b) Low market share agreements are exempt from the waiting period requirement of the Act and this part, and are effective on filing.
(c) Parties to agreements may seek a determination from the Director, Bureau of Trade Analysis, as to whether a proposed agreement meets the general definition of a low market share agreement.
(d) The filing fee for low market share agreements is provided in § 535.401(g).
(a) For purposes of this section, vessel charter party shall mean a contractual agreement between two ocean common carriers for the charter of the full reach of a vessel, which agreement sets forth the entire terms and conditions (including duration, charter hire, and geographical or operational limitations, if any) under which the vessel will be employed.
(b) Vessel charter parties, as defined in paragraph (a) of this section, are exempt from the filing requirements of the Act and this part.
(c) The filing fee for optional filing of vessel charter parties is provided in § 535.401(g).
(a) All agreements (including oral agreements reduced to writing in accordance with the Act) subject to this part and filed with the Commission for review and disposition pursuant to section 6 of the Act, shall be submitted during regular business hours to the Secretary, Federal Maritime Commission, Washington, DC 20573. Such filing shall consist of:
(1) A true copy and seven additional copies of the executed agreement;
(2) Where required by this part, an original and five copies of the completed Information Form referenced at subpart E of this part; and
(3) A letter of transmittal as described in paragraph (b) of this section.
(b) The letter of transmittal shall:
(1) Identify all of the documents being transmitted including, in the instance of a modification to an effective agreement, the full name of the effective agreement, the Commission-assigned agreement number of the effective agreement and the revision, page and/or appendix number of the modification being filed;
(2) Provide a concise, succinct summary of the filed agreement or modification separate and apart from any narrative intended to provide support for the acceptability of the agreement or modification;
(3) Clearly provide the typewritten or otherwise imprinted name, position, business address, and telephone number of the filing party; and
(4) Be signed in the original by the filing party or on the filing party's behalf by an authorized employee or agent of the filing party.
(c) To facilitate the timely and accurate publication of the
(d) Any agreement that does not meet the filing requirements of this section, including any applicable Information Form requirements, shall be rejected in accordance with § 535.601(b).
(e) Assessment agreements shall be filed and shall be effective upon filing.
(f) Parties to agreements with expiration dates shall file any modification seeking renewal for a specific term or elimination of a termination date in sufficient time to accommodate the 45-day waiting period required under the Act.
(g)
(h) The fee for a copy of the Commission's agreement database report is $32.
An agreement filed under the Act must be clear and definite in its terms, must embody the complete, present understanding of the parties, and must set forth the specific authorities and conditions under which the parties to the agreement will conduct their operations and regulate the relationships among the agreement members, unless those details are matters specifically enumerated as exempt from the filing requirements of this part.
The requirements of this section apply to all agreements except marine terminal agreements and assessment agreements.
(a) Agreements shall be clearly and legibly written. Agreements in a language other than English shall be accompanied by an English translation.
(b) Every agreement shall include a Title Page indicating:
(1) The full name of the agreement;
(2) Once assigned, the Commission-assigned agreement number;
(3) If applicable, the expiration date of the agreement; and
(4) The original effective date of the agreement whenever the Title Page is revised.
(c) Each agreement page (including modifications and appendices) shall be identified by printing the agreement name (as shown on the agreement title page) and, once assigned, the applicable Commission-assigned agreement number at the top of each page. For agreement modifications, the appropriate amendment number for each modification should also appear on the page along with the basic agreement number.
(d) Each agreement and/or modification filed will be signed in the original by an official or authorized representative of each of the parties and shall indicate the typewritten full name of the signing party and his or her position, including organizational affiliation. Faxed or photocopied signatures will be accepted if replaced with an original signature as soon as practicable before the effective date.
(e) Every agreement shall include a Table of Contents indicating the location of all agreement provisions.
Generally, each agreement should:
(a) Indicate the full legal name of each party, including any FMC-assigned agreement number associated with that name, and the address of its principal office (not the address of any agent or representative not an employee of the participating party);
(b) State the ports or port ranges to which the agreement applies as well as any inland points or areas to which it also applies; and
(c) Specify, by organizational title, the administrative and executive officials determined by the agreement parties to be responsible for designated affairs of the agreement and the respective duties and authorities delegated to those officials. At a minimum, the agreement should specify:
(1) The official(s) with authority to file the agreement and any modification thereto and to submit associated supporting materials; and
(2) A statement as to any designated U.S. representative of the agreement required by this chapter.
Each conference agreement shall:
(a) State that, at the request of any member, the conference shall engage the services of an independent neutral body to fully police the obligations of the conference and its members. The agreement must include a description of any such neutral body authority and procedures related thereto.
(b) State affirmatively that the conference parties shall not engage in conduct prohibited by sections 10(c)(1) or 10(c)(3) of the Act.
(c) Specify the procedures for consultation with shippers and for handling shippers' requests and complaints.
(d) Include provisions for independent action in accordance with § 535.801 of this part.
The requirements of this section apply to all agreements except marine terminal agreements and assessment agreements.
(a) Agreement modifications shall be filed in accordance with the provisions of §§ 535.401, 535.402, and 535.403.
(b) Agreement modifications shall be made by reprinting the entire page on which the matter being changed is published (“revised page”). The revised page shall indicate the consecutive denomination of the revision (
(c) Each revised page shall be accompanied by a duplicate page, submitted for illustrative purposes only, indicating the language being modified in the following manner:
(1) Language being deleted or superseded shall be struck through; and,
(2) New and initial or replacement language shall immediately follow the language being superseded and be underlined.
(d) If a modification requires the relocation of the provisions of the agreement, such modification shall be accompanied by a revised Table of Contents page that shall indicate the new location of the provisions.
(a) Upon a showing of good cause, the Commission may waive the requirements of §§ 535.401, 535.403, 535.404, 535.405, and 535.406.
(b) Requests for such a waiver shall be submitted in advance of the filing of the agreement to which the requested waiver would apply and shall state:
(1) The specific provisions from which relief is sought;
(2) The special circumstances requiring the requested relief; and
(3) Why granting the requested waiver will not substantially impair effective review of the agreement.
(a) Agreements that arise from authority of an effective agreement but whose terms are not fully set forth in the effective agreement to the extent required by § 535.402 are permitted without further filing only if they:
(1) Are themselves exempt from the filing requirements of this part (pursuant to subpart C—Exemptions of this part); or
(2) Are listed in paragraph (b) of this section.
(b) Unless otherwise exempt in subpart C of this part, only the following technical or operational matters of an agreement's affairs established pursuant to express enabling authority in an agreement are considered part of the effective agreement and do not require further filing under section 5 of the Act:
(1) Establishment of tariff rates, rules and regulations and their joint publication;
(2) The terms and conditions of space allocation and slot sales, the procedures for allocating space, the establishment of space charter rates, and the terms and conditions of charter parties;
(3) Stevedoring, terminal, and related services including the operation of tonnage centers or other joint container marshaling facilities;
(4) The following administrative matters:
(i) Scheduling of agreement meetings;
(ii) Collection, collation and circulation of data and reports from or to members;
(iii) Procurement, maintenance, or sharing of office facilities, furnishings, equipment and supplies, the allocation and assessment of costs thereof, or the provisions for the administration and management of such agreements by duly appointed individuals;
(iv) Procedures for anticipating parties' space requirements;
(v) Maintenance of books and records; and
(vi) Details as to the following matters as between parties to the agreement: insurance, procedures for resolutions of disputes relating to loss and/or damage of cargo, and force majeure clauses;
(5) The following operational matters:
(i) Port rotations and schedule adjustments; and
(ii) Changes in vessel size, number of vessels, or vessel substitution or replacement, if the resulting change is within a capacity range specified in the agreement; and
(6) Neutral body policing (limited to the description of neutral body authority and procedures related thereto).
(a) Agreements and modifications to agreements identified in § 535.502 shall be accompanied by an Information Form containing information and data on the agreement and the parties' authority under the agreement.
(b) Parties to an agreement subject to this subpart shall complete and submit an original and five copies of the Information Form at the time the agreement is filed. A copy of the Form in
(c) A complete response in accordance with the instructions on the Information Form shall be supplied to each item. If a party to the agreement is unable to supply a complete response, that party shall provide either estimated data (with an explanation of why precise data are not available) or a detailed statement of reasons for noncompliance and the efforts made to obtain the required information.
(d) Agreement parties may supplement the Information Form with any additional information or material to assist the Commission's review of an agreement.
(e) The Information Form and any additional information submitted in conjunction with the filing of an agreement shall not be disclosed by the Commission except as provided in § 535.608.
Agreements and modifications to agreements between or among ocean common carriers subject to this subpart are:
(a) All agreements identified in § 535.201(a), except for low market share agreements identified in § 535.311;
(b) Modifications to an agreement that add any of the following authorities:
(1) The discussion of, or agreement upon, whether on a binding basis under a common tariff or a non-binding basis, any kind of rate or charge;
(2) The discussion of, or agreement on, capacity rationalization;
(3) The establishment of a joint service;
(4) The pooling or division of cargo traffic, earnings, or revenues and/or losses; or
(5) The discussion of, or agreement on, any service contract matter; and
(c) Modifications that expand the geographic scope of an agreement containing any authority identified in § 535.502(b).
(a) The Information Form, with instructions, for agreements and modifications to agreements subject to this subpart, are set forth in sections I through V of appendix A of this part. The instructions should be read in conjunction with the Act and this part.
(b) The Information Form shall apply as follows:
(1) Sections I and V shall be completed by parties to all agreements identified in § 535.502;
(2) Section II shall be completed by parties to agreements identified in § 535.502(a) that contain any of the following authorities: the charter or use of vessel space in exchange for compensation or services; or the rationalization of sailings or services relating to a schedule of ports, the frequency of vessel calls at ports, or the size and capacity of vessels for deployment. Such authorities do not include the establishment of a joint service, nor capacity rationalization;
(3) Section III shall be completed by parties to agreements identified in § 535.502 that contain the authority to discuss or agree on capacity rationalization; and
(4) Section IV shall be completed by parties to agreements identified in § 535.502 that contain any of the following authorities:
(i) The discussion of, or agreement upon, whether on a binding basis under a common tariff or a non-binding basis, any kind of rate or charge;
(ii) The establishment of a joint service;
(iii) The pooling or division of cargo traffic, earnings, or revenues and/or losses; or
(iv) The discussion of, or agreement on, any service contract matter.
(a) Upon a showing of good cause, the Commission may waive any part of the Information Form requirements in this subpart.
(b) A request for such a waiver must be submitted and approved by the Commission in advance of the filing of the Information Form to which the requested waiver would apply. Requests for a waiver shall be submitted in writing to the Director, Bureau of Trade Analysis, Federal Maritime Commission, Washington, DC 20573-0001, and shall state:
(1) The specific requirements from which relief is sought;
(2) The special circumstances requiring the requested relief;
(3) Relevant trade and industry data and information to substantiate and support the special circumstances requiring the requested relief;
(4) Why granting the requested waiver will not substantially impair effective review of the agreement; and
(5) A description of the full membership, geographic scope, and authority of the agreement or the agreement modification that is to be filed with the Commission.
(c) The Commission may take into account the presence or absence of shipper complaints as well as the past compliance of the agreement parties with any reporting requirement under this part in considering an application for a waiver.
(a) The Commission shall make a preliminary review of each filed agreement to determine whether the agreement is in compliance with the requirements of the Act and this part and, where applicable, whether the accompanying Information Form is complete or, where not complete, whether the deficiency is adequately explained or is excused by a waiver granted by the Commission under § 535.504.
(b)(1) The Commission shall reject any agreement that fails to comply substantially with the filing and Information Form of the Act and this part. The Commission shall notify the filing party in writing of the reason for rejection of the agreement. The original filing, along with any supplemental information or documents submitted, shall be returned to the filing party.
(2) Should a rejected agreement be refiled, the full 45-day waiting period will apply to the refiled agreement.
(a) A notice of any filed agreement will be transmitted to the
(b) The notice will include:
(1) A short title for the agreement;
(2) The identity of the parties to the agreement and the filing party;
(3) The Federal Maritime Commission agreement number;
(4) A concise summary of the agreement's contents;
(5) A statement that the agreement is available for inspection at the Commission's offices; and
(6) The final date for filing comments regarding the agreement.
(a) Persons may file with the Secretary written comments regarding a filed agreement. Such comments will be submitted in an original and ten (10) copies and are not subject to any limitations except the time limits provided in the
(b) The filing of a comment does not entitle a person to:
(1) A reply to the comment by the Commission;
(2) The institution of any Commission or court proceeding;
(3) Discussion of the comment in any Commission or court proceeding concerning the filed agreement; or
(4) Participation in any proceeding that may be instituted.
(a) The waiting period before an agreement becomes effective shall commence on the date that an agreement is filed with the Commission.
(b) Unless suspended by a request for additional information or extended by court order, the waiting period terminates and an agreement becomes effective on the latter of the 45th day after the filing of the agreement with the Commission or on the 30th day after publication of notice of the filing in the
(c) The waiting period is suspended on the date when the Commission, either orally or in writing, requests additional information or documentary materials pursuant to section 6(d) of the Act. A new 45-day waiting period begins on the date of receipt of all the additional material requested or of a statement of the reasons for noncompliance, and the agreement becomes effective in 45 days unless the waiting period is further extended by court order or the Commission grants expedited review.
(a) Upon written request of the filing party, the Commission may shorten the waiting period. In support of a request, the filing party should provide a full explanation, with reference to specific facts and circumstances, of the necessity for a shortened waiting period. In
(b) A request for expedited review will be considered for an agreement whose 45-day waiting period has begun anew after being stopped by a request for additional information.
(a) The Commission may request from the filing party any additional information and documents necessary to complete the statutory review required by the Act. The request shall be made prior to the expiration of the 45-day waiting period. All responses to a request for additional information shall be submitted to the Director, Bureau of Trade Analysis, Federal Maritime Commission, Washington, DC 20573.
(b) Where the Commission has made a request for additional information, the agreement's effective date will be 45 days after receipt of the complete response to the request for additional information. If all questions are not fully answered or requested documents are not supplied, the parties must include a statement of reasons why questions were not fully answered or documents supplied. In the event all material is not submitted, the agreement's effective date will be 45 days after receipt of both the documents and information which are submitted, if any, and the statement indicating the reasons for noncompliance. The Commission may, upon notice to the Attorney General, and pursuant to sections 6(i) and 6(k) of the Act, request the United States District Court for the District of Columbia to further extend the agreement's effective date until there has been substantial compliance.
(c) A request for additional information may be made orally or in writing. In the case of an oral request, a written confirmation of the request shall be mailed to the filing party within seven days of the oral request.
(d) The Commission will publish a notice in the
(a) A failure to comply with a request for additional information results when a person filing an agreement, or an officer, director, partner, agent, or employee thereof fails to substantially respond to the request or does not file a satisfactory statement of reasons for noncompliance. An adequate response is one which directly addresses the Commission's request. When a response is not received by the Commission within a specified time, failure to comply will have occurred.
(b) The Commission may, pursuant to section 6(i) of the Act, request relief from the United States District Court for the District of Columbia when it considers that there has been a failure to substantially comply with a request for additional information. The Commission may request that the court:
(1) Order compliance with the request;
(2) Extend the review period until there has been substantial compliance; or
(3) Grant other equitable relief that under the circumstances seems necessary or appropriate.
(c) Where there has been a failure to substantially comply, section 6(i)(2) of the Act provides that the court shall extend the review period until there has been substantial compliance.
(a) Except for an agreement filed under section 5 of the Act, all information submitted to the Commission by the filing party will be exempt from disclosure under 5 U.S.C. 552. Included in this disclosure exemption is information provided in the Information Form, voluntary submission of additional information, reasons for noncompliance, and replies to requests for additional information.
(b) Information that is confidential pursuant to paragraph (a) of this section may be disclosed, however, to the extent:
(1) It is relevant to an administrative or judicial action or proceeding; or
(2) It is disclosed to either body of Congress or to a duly authorized committee or subcommittee of Congress.
(c) Parties may voluntarily disclose or make information publicly available. If parties elect to disclose information they shall promptly inform the Commission.
At any time after the filing of an agreement and prior to the conclusion of judicial injunctive proceedings, the filing party or an authorized representative may submit additional factual or legal support for an agreement or may propose modifications of an agreement. Such negotiations between Commission personnel and filing parties may continue during the pendency of injunctive proceedings. Shippers, other government departments or agencies, and other third parties may not participate in these negotiations.
(a) Parties to agreements identified in § 535.702(a) shall submit quarterly Monitoring Reports on an ongoing basis for as long as the agreement remains in effect, containing information and data on the agreement and the parties' authority under the agreement.
(b) Parties to agreements identified in § 535.704 are required to submit minutes of their meetings for as long as their agreements remain in effect.
(c) If a joint service is a party to an agreement that is subject to the requirements of this subpart, the joint service shall be treated as one member of that agreement for purposes of that agreement's Monitoring Reports.
(d) Monitoring Reports and minutes required to be filed by this subpart should be submitted to: Director, Bureau of Trade Analysis, Federal Maritime Commission, Washington, DC 20573-0001. A copy of the Monitoring Report form in Microsoft Word and Excel format may be downloaded from the Commission's home page at
(e)(1) The regulations in this paragraph (e) are stayed until further notice.
(2) Reports and minutes required to be filed by this subpart may be filed by direct electronic transmission in lieu of hard copy. Detailed information on electronic transmission is available from
(f)
(g) A complete response in accordance with the instructions on the Monitoring Report shall be supplied to each item. If a party to an agreement is unable to supply a complete response, that party shall provide either estimated data (with an explanation of why precise data are not available) or a detailed statement of reasons for noncompliance and the efforts made to obtain the required information.
(h) A Monitoring Report for a particular agreement may be supplemented with any other relevant information or documentary material.
(i)
(i) It is relevant to an administrative or judicial action or proceeding; or
(ii) It is disclosed to either body of Congress or to a duly authorized committee or subcommittee of Congress.
(2) Parties may voluntarily disclose or make Monitoring Reports, minutes or any other additional information publicly available. The Commission must be promptly informed of any such voluntary disclosure.
(j) Monitoring Report or alternative periodic reporting requirements in this subpart shall not be construed to authorize the exchange or use by or among agreement members of information required to be submitted.
(a) Agreements subject to the Monitoring Report requirements of this subpart are:
(1) An agreement that contains the authority to discuss or agree on capacity rationalization; or
(2) Where the parties to an agreement hold a combined market share, based on cargo volume, of 35 percent or more in the entire U.S. inbound or outbound geographic scope of the agreement and the agreement contains any of the following authorities:
(i) The discussion of, or agreement upon, whether on a binding basis under a common tariff or a non-binding basis, any kind of rate or charge;
(ii) The establishment of a joint service;
(iii) The pooling or division of cargo traffic, earnings, or revenues and/or losses; or
(iv) The discussion of, or agreement on, any service contract matter.
(b) The determination of an agreement's reporting obligation under § 535.702(a)(2) in the first instance shall be based on the market share data reported on the agreement's Information Form pursuant to § 535.503. Thereafter, at the beginning of each calendar year, the Bureau of Trade Analysis will notify the agreement parties of any changes in its reporting requirements based on market share data reported on the agreement's quarterly Monitoring Report for the previous second quarter (April-June).
(c) The Commission may require, as necessary, that the parties to an agreement with market share below the 35 percent threshold, as identified and defined in § 535.702(a)(2), submit Monitoring Reports pursuant to § 535.703.
(d) In addition to or instead of the Monitoring Report in § 535.703, the Commission may prescribe, as necessary, alternative periodic reporting requirements for parties to any agreement identified in § 535.201.
(a) For agreements subject to the Monitoring Report requirements in § 535.702(a), the Monitoring Report form, with instructions, is set forth in sections I through III of appendix B of this part. The instructions should be read in conjunction with the Act and this part.
(b) The Monitoring Report shall apply as follows:
(1) Section I shall be completed by parties to agreements identified in § 535.702(a)(1);
(2) Section II shall be completed by parties to agreements identified in § 535.702(a)(2); and
(3) Section III shall be completed by parties to all agreements identified in § 535.702(a).
(c) In accordance with the requirements and instructions in appendix B of this part, parties to an agreement subject to part 2(C) of section I of the Monitoring Report shall submit a narrative statement on any significant reductions in vessel capacity that the parties will implement under the agreement. The term “a significant reduction” is defined in appendix B. The narrative statement shall be submitted to the Director, Bureau of Trade Analysis, no later than 15 days after a significant reduction in vessel capacity has been agreed upon by the parties but prior to the implementation of the actual reduction under the agreement.
(d)(1) The Commission may require, in its discretion, that the information on the top agreement commodities in part 4 of section II of the Monitoring Report be reported on a sub-trade basis, as defined in appendix B of this part, rather than on an agreement-wide basis. When commodity sub-trade information is required under this section, the Commission shall notify the parties to the agreement.
(2) For purposes of § 535.703(d)(1), the top agreement commodities shall mean the top 10 liner commodities (including commodities not subject to tariff publication) carried by all the agreement parties in each sub-trade within the geographic scope of the agreement during the calendar quarter. Where the agreement covers both U.S. inbound and outbound liner movements, inbound and outbound sub-trades shall be stated separately. All other instructions, definitions, and terms shall apply as specified and required in appendix B of this part.
(a)
(1) This section applies to agreements authorized to engage in any of the following activities: discussion or establishment of any type of rates or charges, whether in tariffs or service contracts; pooling or apportionment of cargo traffic; discussion of revenues, losses, or earnings; or discussion or
(2) Each agreement to which this section applies shall file with the Commission, through a designated official, minutes of all meetings defined in paragraph (b) of this section, except as provided in paragraph (d) of this section.
(b)
(c)
(1) The date, time, and place of the meeting;
(2) A list of participants and companies represented;
(3) A description of discussions detailed enough so that a non-participant reading the minutes could reasonably gain a clear understanding of the nature and extent of the discussions and, where applicable, any decisions reached. Such description need not disclose the identity of the parties that participated in the discussion or the votes taken; and
(4) Any report, circular, notice, statistical compilation, analytical study, survey, or other work distributed, discussed, or exchanged at the meeting, whether presented by oral, written, electronic, or other means. Where the aforementioned materials are reasonably available to the public, a citation to the work or relevant part thereof is acceptable in lieu of the actual work. Any documents submitted to the Commission pursuant to this section need not disclose the identity of the party or parties that circulated the document at the meeting.
(d)
(1) Minutes of meetings between parties are not required to reflect discussions of matters set forth in § 535.408(b)(2), (b)(3), (b)(4)(iii), (b)(4)(v), and (b)(4)(vi);
(2) Minutes of meetings between parties are not required to reflect discussion of matters set forth in § 535.408(b)(5) to the extent that such discussions involve minor operational matters that have little or no impact on the frequency of vessel calls at ports or the amount of vessel capacity offered by the parties in the geographic scope of the agreement; and
(3) Minutes of meetings between parties are not required to reflect discussions of or actions taken with regard to rates that, if adopted, would be required to be published in an appropriate tariff. This exemption does not apply to discussions concerning general rate policy, general rate changes, the opening or closing of rates, service contracts, or time/volume rates.
(e)
(a) Upon a showing of good cause, the Commission may waive any requirement of this subpart.
(b) A request for such a waiver must be submitted and approved by the Commission in advance of the filing of the Monitoring Report or minutes to which the requested waiver would apply. Requests for a waiver shall be submitted in writing to the Director, Bureau of Trade Analysis, Federal Maritime Commission, Washington, DC 20573-0001, and shall state and provide the following:
(1) The specific requirements from which relief is sought;
(2) The special circumstances requiring the requested relief;
(3) Relevant trade and industry data and information to substantiate and support the special circumstances requiring the requested relief; and
(4) Why granting the requested waiver will not substantially impair effective monitoring of the agreement.
(c) The Commission may take into account the presence or absence of shipper complaints as well as the past compliance of the agreement parties with any reporting requirement under this part in considering an application for a waiver.
(a) Each conference agreement shall specify the independent action (“IA”) procedures of the conference, which shall provide that any conference member may take independent action on any rate or service item upon not more than 5 calendar days' notice to the conference and shall otherwise be in conformance with section 5(b)(8) of the Act.
(b)(1) Each conference agreement that provides for a period of notice for independent action shall establish a fixed or maximum period of notice to the conference. A conference agreement shall not require or permit a conference member to give more than 5 calendar days' notice to the conference, except that in the case of a new or increased rate the notice period shall conform to the tariff publication requirements of this chapter.
(2) A conference agreement shall not prescribe notice periods for adopting, withdrawing, postponing, canceling, or taking other similar actions on independent actions.
(c) Each conference agreement shall indicate the conference official, single designated representative, or conference office to which notice of independent action is to be provided. A conference agreement shall not require notice of independent action to be given by the proposing member to the other parties to the agreement.
(d) A conference agreement shall not require a member who proposes independent action to attend a conference meeting, to submit any further information other than that necessary to accomplish the publication of the independent tariff item, or to comply with any other procedure for the purpose of explaining, justifying, or compromising the proposed independent action.
(e) A conference agreement shall specify that any new rate or service item proposed by a member under independent action (except for exempt commodities not published in the conference tariff) shall be included by the conference in its tariff for use by that member effective no later than 5 calendar days after receipt of the notice and by any other member that notifies the conference that it elects to adopt the independent rate or service item on or after its effective date.
(f)(1) As it pertains to this part, “adopt” means the assumption in identical form of an originating member's independent action rate or service item, or a particular portion of such a rate or service item. If a carrier adopts an IA at a lower rate than the conference rate when there is less than 30 days remaining on the original IA, the adopted IA should be made to expire 30 days after its effectiveness to comply with the statutory 30-day notice
(2) An IA TVR published by a member of a ratemaking agreement may be adopted by another member of the agreement, provided that the adopting member takes on the original IA TVR in its entirety without change to any aspect of the original rate offering (except beginning and ending dates in the time period) (
(g) A conference agreement shall not require or permit individual member lines to be assessed on a per carrier usage basis the costs and/or administrative expenses incurred by the agreement in processing independent action filings.
(h) A conference agreement may not permit the conference to unilaterally designate an expiration date for an independent action taken by a member line. The right to determine the duration of an IA remains with the member line, and a member line must be given the opportunity to designate whatever duration it chooses for its IA, regardless if the duration is for a specified period or open ended. Only in instances where a member line gives its consent to the conference, or where a member line freely elects not to provide for the duration of its IA after having been given the opportunity, can the conference designate an expiration date for the member line's IA.
(i) Any new conference agreement or any modification to an existing conference agreement that does not comply with the requirements of this section shall be rejected pursuant to § 535.601 of this part.
(j) If ratemaking is by sections within a conference, then any notice to the conference required by § 535.801 may be made to the particular ratemaking section.
(a) Ocean common carrier agreements may not prohibit or restrict a member or members of the agreement from engaging in negotiations for service contracts with one or more shippers.
(b) Ocean common carrier agreements may not require a member or members of the agreement to disclose a negotiation on a service contract, or the terms and conditions of a service contract, other than those terms or conditions required by section 8(c)(3) of the Act.
(c) Ocean common carrier agreements may not adopt mandatory rules or requirements affecting the right of an agreement member or agreement members to negotiate or enter into service contracts.
(d) An agreement may provide authority to adopt voluntary guidelines relating to the terms and procedures of an agreement member's or agreement members' service contracts if the guidelines explicitly state the right of the members of the agreement not to follow these guidelines.
(e) Voluntary guidelines shall be submitted to the Director, Bureau of Trade Analysis, Federal Maritime Commission, Washington, DC 20573-0001. Voluntary guidelines shall be kept confidential in accordance with § 535.608 of this part. Use of voluntary guidelines prior to their submission is prohibited.
No conference or group of two or more ocean common carriers may:
(a) Deny to any member of such conference or group the right, upon notice of not more than 5 calendar days, to take independent action on any level of compensation paid to an ocean freight forwarder; or
(b) Agree to limit the payment of compensation to an ocean freight forwarder to less than 1.25 percent of the aggregate of all rates and charges applicable under the tariff assessed against the cargo on which the forwarding services are provided.
Any person operating under an agreement, involving activities subject to the Act pursuant to sections 4 and 5(a) of the Act and this part and not exempted pursuant to section 16 of the Act or excluded from filing by the Act, that has not been filed and that has not become effective pursuant to the Act and this part is in violation of the Act and this part and is subject to the civil penalties set forth in section 13(a) of the Act.
Knowing falsification of any report required by the Act or this part, including knowing falsification of any item in any applicable agreement information and/or reporting requirements pursuant to subparts E and G of this part, is a violation of the rules of this part and is subject to the civil penalties set forth in section 13(a) of the Act and may be subject to the criminal penalties provided for in 18 U.S.C. 1001.
This section displays the control number assigned to information collection requirements of the Commission in this part by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, Pub. L. 104-13. The Commission intends that this section comply with the requirements of section 3507(a)(3) of the Paperwork Reduction Act, which requires that agencies display a current control number assigned by the Director of the Office of Management and Budget (OMB) for each agency information collection requirement in the following table:
1. All agreements and modifications to agreements between or among ocean common carriers identified in 46 CFR 535.502 must be accompanied by a completed Information Form to the full extent required in sections I through V of this Form. Sections I and V must be completed by all such agreements. In addition, sections II, III and IV must be completed, as applicable, in accordance with the authority contained in each agreement. Where an
2. For clarification of the agreement terminology used in this Form, the parties may refer to the definitions provided in 46 CFR 535.104. In addition, the following definitions shall apply for purposes of this Form:
Section I applies to all agreements identified in 46 CFR 535.502. Parties to such agreements must complete parts 1 through 4 of this section. The authorities listed in part 4 of this section do not necessarily include all of the authorities that must be set forth in an agreement filed under the Act. The specific authorities between the parties to an agreement, however, must be set forth, clearly and completely, in a filed agreement in accordance with 46 CFR 535.402.
State the full name of the agreement.
Provide a narrative statement describing the specific purpose(s) of the agreement pertaining to the parties' business activities as ocean common carriers in the foreign commerce of the United States, and the commercial or other relevant circumstances within the geographic scope of the agreement that led the parties to enter into the agreement.
List all effective agreements that cover all or part of the geographic scope of this agreement, and whose parties include one or more of the parties to this agreement.
Identify whether the agreement authorizes the parties to discuss, or agree upon, whether on a binding basis under a common tariff or a non-binding basis, any kind of rate or charge.
Identify whether the agreement authorizes the parties to establish a joint service.
Identify whether the agreement authorizes the parties to pool cargo traffic or revenues.
Identify whether the agreement authorizes the parties to discuss, or agree on, any service contract matter.
Identify whether the agreement authorizes the parties to discuss or agree on capacity rationalization as defined in 46 CFR 535.104(e).
Identify whether the agreement contains provisions that place conditions or restrictions on the parties' agreement participation, and/or use or offering of competing services within the geographic scope of the agreement.
Identify whether the agreement authorizes the parties to charter or use vessel space in exchange for compensation or services. This authority does not include capacity rationalization as referred to in part 4(E) of this section.
Identify whether the agreement authorizes the parties to rationalize sailings or services relating to a schedule of ports, the frequency of vessel calls at ports, or the size and capacity of vessels for deployment. This authority does not include the establishment of a joint service or capacity rationalization as referred to in parts 4(B) and 4(E) of this section.
Section II applies to agreements identified in 46 CFR 535.502(a) that contain any of the following authorities: a) the charter or use of vessel space in exchange for compensation or services; or b) the rationalization of sailings or services relating to a schedule of ports, the frequency of vessel calls at ports, or the size and capacity of vessels for deployment. Such authorities do not include the establishment of a “joint service,” nor “capacity rationalization” as these terms are defined in 46 CFR 535.104 (o) and (e). Parties to agreements identified in this section must complete all items in part 1.
For the most recent 12-month period for which complete data are available, provide the number of vessel calls each party made at each port for its liner services that would be covered by the agreement within the entire geographic scope of the agreement.
Provide a narrative statement on any significant changes, anticipated or planned to be implemented when the agreement goes into effect, in the number of vessel calls at a port for the parties' liner services that would be covered by the agreement within the entire geographic scope of the agreement. Specifically, explain the nature of the significant change and its effect on the frequency of vessel calls at the port for the liner service that would be subject to the change. For purposes of this part, a significant change refers to an increase or a decrease in the number of vessel calls at a port for a fixed, seasonally planned, or indefinite period of time. A significant change excludes an incidental or temporary alteration in the number of vessel calls at a port, or an operational change in vessel calls that would have little or no impact on the number of vessel calls at a port. If no significant change is anticipated or planned, it shall be noted with the term “none” in response to part 1(B) of this section.
Section III applies to agreements identified in 46 CFR 535.502 that contain the authority to discuss or agree on capacity rationalization as defined in 46 CFR 535.104(e). Parties to such agreements must complete parts 1 and 2 of this section.
1. For the most recent calendar quarter for which complete data are available, provide the amount of vessel capacity for each party for each of its liner services that would be covered by the agreement within the entire geographic scope of the agreement, stated separately for the U.S. inbound and outbound trades as applicable to the geographic scope of the agreement. For purposes of this Form, vessel capacity means a party's total commercial liner space on line-haul vessels, whether operated by it or other parties from whom space is obtained, sailing to and/or from the continent of North America for each of its liner services that would be covered by the agreement.
2. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the calendar quarter was containerized, the amount(s) of vessel capacity for each party shall be reported in TEUs. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the calendar quarter was non-containerized, the amount(s) of vessel capacity for each party shall be reported in non-containerized units of measurement. The unit of measurement used in calculating the amounts of non-containerized vessel capacity must be specified clearly and consistently applied.
Provide the percentage of vessel capacity utilization for each party for each of its liner services that would be covered by the agreement within the entire geographic scope of the agreement, corresponding to the figures and time period used in part 1(A) of this section, stated separately for the U.S. inbound and outbound trades as applicable to the geographic scope of the agreement. For purposes of this Form, the percentage of vessel capacity utilization means a party's total volume of liner cargo, for each of its liner services that would be covered by the agreement, carried on any vessel space counted under part 1(A) of this section, divided by its total vessel capacity as defined and derived in part 1(A) of this section, which quotient is multiplied by 100.
Provide a narrative statement on any significant changes, anticipated or planned to be implemented when the agreement goes into effect, in the amounts of vessel capacity for the parties' liner services that would be covered by the agreement within the entire geographic scope of the agreement. Specifically, explain the nature of and the reasons for the significant change and its effects on the liner service and the total amount of vessel capacity for such service that would be subject to the change. For purposes of this part, a significant change refers to the removal from or addition to a liner service of vessels or vessel space for a fixed, seasonally planned, or indefinite period of time. A significant change excludes instances when vessels may be temporarily repositioned or shifted from one service to another, or when vessel space may be temporarily altered, or when vessels are removed from a liner service and vessels of similar capacity are substituted. It also excludes operational changes in vessels or vessel space that would have little or no impact on the amount of vessel capacity offered in a liner service or a trade. If no significant change is anticipated or planned, it shall be noted with the term “none” in response to part 1(C) of this section.
For the most recent 12-month period for which complete data are available, provide the number of vessel calls each party made at each port for its liner services that would be covered by the agreement within the entire geographic scope of the agreement.
Provide a narrative statement on any significant changes, anticipated or planned to be implemented when the agreement goes into effect, in the number of vessel calls at a port for the parties' liner services that would be covered by the agreement within the entire geographic scope of the agreement. Specifically, explain the nature of the significant change and its effect on the frequency of vessel calls at the port for the liner service that would be subject to the change. For purposes of this part, a significant change refers to an increase or a decrease in the number of vessel calls at a port for a fixed, seasonally planned, or indefinite period of time. A significant change excludes an incidental or temporary alteration in the number of vessel calls at a port, or an operational change in vessel calls that would have little or no impact on the number of vessel calls at a port. If no significant change is anticipated or planned, it shall be noted with the term “none” in response to part 2(B) of this section.
Section IV applies to agreements identified in 46 CFR 535.502 that contain any of the following authorities: a) the discussion of, or agreement upon, whether on a binding basis under a common tariff or a non-binding basis, any kind of rate or charge; b) the establishment of a joint service; c) the pooling or division of cargo traffic, earnings, or revenues and/or losses; or d) the discussion of, or agreement on, any service contract matter. Parties to such agreements must complete parts 1 through 5 of this section.
1. For the most recent calendar quarter for which complete data are available, provide the market shares of all liner operators for the entire geographic scope of the agreement and in each sub-trade within the scope of the agreement. A joint service shall be treated as a single liner operator, whether it is an agreement line or a non-agreement line. Sub-trade is defined as the scope of all liner movements between each U.S. port range within the scope of the agreement and each foreign country within the scope of the agreement. Where the agreement covers both U.S. inbound and outbound liner movements, inbound and outbound market shares shall be shown separately.
2. U.S. port ranges are defined as follows:
a. Atlantic and Gulf—Includes ports along the eastern seaboard and the Gulf of Mexico from the northern boundary of Maine to Brownsville, Texas. Also includes all ports bordering upon the Great Lakes and their connecting waterways, all ports in the State of New York on the St. Lawrence River, and all ports in Puerto Rico and the U.S. Virgin Islands.
b. Pacific—Includes all ports in the States of Alaska, Hawaii, California, Oregon, and Washington. Also includes all ports in Guam, American Samoa, Northern Marianas, Johnston Island, Midway Island, and Wake Island.
3. An application may be filed for a waiver of the definition of “sub-trade” under the procedures described in 46 CFR 535.504. In any such application, the burden shall be on the parties to show that their marketing and pricing practices have been done by ascertainable multi-country regions rather than by individual countries or, in the case of the United States, by broader areas than the port ranges defined herein. The parties must further show that, though operating individually, they were nevertheless applying essentially similar regional practices.
4. The formula for calculating market share in the entire agreement scope or in a sub-trade is as follows: The total amount of liner cargo carried on each liner operator's liner vessels in the entire agreement scope or in the sub-trade during the most recent calendar quarter for which complete data are available, divided by the total liner movements in the entire agreement scope or in the sub-trade during the same calendar quarter, which quotient is multiplied by 100. The calendar quarter used must be clearly identified. The market shares held by non-agreement lines as well as by agreement lines must be provided, stated separately in the format indicated.
5. If 50 percent or more of the total liner cargo carried by the parties in the entire agreement scope during the calendar quarter was containerized, only containerized liner movements (measured in TEUs) must be used for determining market share. If 50 percent or more of the total liner cargo carried by the parties was non-containerized, only non-containerized liner movements must be used for determining market share. The unit of measurement used in calculating amounts of non-containerized cargo must be specified clearly and applied consistently.
1. For each party that served all or any part of the geographic scope of the agreement during all or any part of the most recent 12-month period for which complete data are available, provide each party's total liner revenues within the geographic scope, total liner cargo carried within the geographic scope, and average revenue. For purposes of this Form, total liner revenues means the total revenues, in U.S. dollars, of each party corresponding to its total cargo carried for its liner services that would fall under the agreement, inclusive of all ocean freight charges, whether assessed on a port-to-port basis or a through intermodal basis; accessorial charges; surcharges; and charges for inland cargo carriage. Average revenue shall be calculated as the quotient of each party's total liner revenues within the geographic scope divided by its total cargo carried within the geographic scope.
2. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the 12-month period was containerized, each party shall report only its total carryings of containerized liner cargo (measured in TEUs) within the geographic scope, total revenues generated by its carriage of containerized liner cargo, and average revenue per TEU. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the 12-month period was non-containerized, each party shall report only its total carryings of non-containerized liner cargo (specifying the unit of measurement used), total revenues generated by its carriage of non-containerized liner cargo, and average revenue per unit of measurement. When the agreement covers both U.S. inbound and outbound liner movements, inbound and outbound data shall be stated separately.
For the same 12-month period used in part 2 of this section, provide a list, for the entire geographic scope of the agreement, of the top 10 liner commodities (including
Provide the cargo volume and revenue results for each party for each of the major commodities listed in part 3(A) of this section, corresponding to the same 12-month period and unit of measurement used. For purposes of this Form, revenue results means the revenues, in U.S. dollars, earned by each party on the cargo volume of each major commodity listed in part 3(A) of this section, inclusive of all ocean freight charges, whether assessed on a port-to-port basis or a through intermodal basis; accessorial charges; surcharges; and charges for inland cargo carriage. If a party has no cargo volume and revenue results for a commodity listed in part 3(A) of this section, it shall be noted by using a zero for that party in response to part 3(B) of this section.
For the same calendar quarter used in part 1 of this section, provide the amount of vessel capacity for each party for each of its liner services that would fall under the agreement within the entire geographic scope of the agreement, stated separately for the U.S. inbound and outbound trades as applicable to the geographic scope of the agreement. For purposes of this Form, vessel capacity means a party's total commercial liner space on line-haul vessels, whether operated by it or other parties from whom space is obtained, sailing to and/or from the continent of North America for each of its liner services that would fall under the agreement. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the calendar quarter was containerized, the amount(s) of vessel capacity for each party shall be reported in TEUs. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the calendar quarter was non-containerized, the amount(s) of vessel capacity for each party shall be reported in non-containerized units of measurement. The unit of measurement used in calculating the amounts of non-containerized vessel capacity must be specified clearly and consistently applied.
Provide the percentage of vessel capacity utilization for each party for each of its liner services that would fall under the agreement within the entire geographic scope of the agreement, corresponding to the figures and time period used in part 4(A) of this section, stated separately for the U.S. inbound and outbound trades as applicable to the geographic scope of the agreement. For purposes of this Form, the percentage of vessel capacity utilization means a party's total volume of liner cargo, for each of its liner services that would fall under the agreement, carried on any vessel space counted under part 4(A) of this section, divided by its total vessel capacity as defined and derived in part 4(A) of this section, which quotient is multiplied by 100.
Provide a narrative statement on any significant changes, anticipated or planned for when the agreement goes into effect, in the amounts of vessel capacity for the parties' liner services that would fall under the agreement within the entire geographic scope of the agreement. Specifically, explain the nature of and reasons for the significant change and its effects on the liner service and the total amount of vessel capacity for such service that would be subject to the change. For purposes of this part, a significant change refers to the removal from or addition to a liner service of vessels or vessel space for a fixed, seasonally planned, or indefinite period of time. A significant change excludes instances when vessels may be temporarily repositioned or shifted from one service to another, or when vessel space may be temporarily altered, or when vessels are removed from a liner service and vessels of similar capacity are substituted. It also excludes operational changes in vessels or vessel space that would have little or no impact on the amount of vessel capacity offered in a liner service or a trade. If no significant change is anticipated or planned, it shall be noted with the term “none” in response to part 4(C) of this section.
For the same 12-month period used in parts 2 and 3 of this section, provide the number of vessel calls each party made at each port for its liner services that would fall under the agreement within the entire geographic scope of the agreement.
Provide a narrative statement on any significant changes, anticipated or planned for when the agreement goes into effect, in the number of vessel calls at a port for the parties' liner services that would fall under the agreement within the entire geographic scope of the agreement. Specifically, explain the nature of the significant change and its effect on the frequency of vessel calls at the port for the liner service that would be subject to the change. For purposes of this part, a significant change refers to an increase or decrease in the number of vessel calls at a port for a fixed, seasonally planned, or indefinite period of time. A significant change excludes an incidental or temporary alteration in vessel calls at a port, or an operational change in vessel calls that would have little or no impact on the number of vessel calls at a port. If no significant change is anticipated or planned, it shall be noted with the term “none” in response to part 5(B) of this section.
Section V applies to all agreements identified in 46 CFR 535.502. Parties to such agreements must complete all items in part 1 of this section.
State the name, title, address, telephone and fax numbers, and electronic mail address of a person the Commission may contact regarding the Information Form and any information provided therein.
State the name, title, address, telephone and fax numbers, and electronic mail address of a person the Commission may contact regarding a request for additional information or documents.
A representative of the parties shall sign the Information Form and certify that the information in the Form and all attachments and appendices are, to the best of his or her knowledge, true, correct and complete. The representative also shall indicate his or her relationship with the parties to the agreement.
1. The collection of this information is authorized generally by section 15 of the Shipping Act of 1984, 46 U.S.C. app. § 1714. The submission of this form is mandatory for parties to agreements that contain certain authorities.
2. You are not required to provide information requested on a form that is subject to the Paperwork Reduction Act unless the form displays a valid OMB control number. The valid control number for this information collection is 3072-0045.
3. The time needed to complete and submit this form will vary depending on individual circumstances. The total estimated average time to complete this form is about 30 hours. This estimate includes reading the instructions, collecting necessary data, and compiling that data.
4. If you have any comments concerning the accuracy of the above estimate or have any suggestions for simplifying the form, please contact Secretary, Federal Maritime Commission, 800 North Capitol Street, NW., Washington, DC 20573-0001; or by e-mail
List all effective agreements covering all or part of the geographic scope of this agreement, whose parties include one or more of the parties to this agreement.
1. All agreements between or among ocean common carriers identified in 46 CFR 535.702(a) must submit completed Monitoring Reports to the full extent required in sections I through III of this Report. Sections I and II must be completed, as applicable, in accordance with the authority contained in each agreement. Section III must be completed by all agreements subject to Monitoring Report requirements.
2. Where an agreement containing multiple authorities is subject to duplicate reporting requirements in the various sections of this Report, the parties may provide only one response so long as the reporting requirements within each section are fully addressed. The Monitoring Report specifies the data and information which must be reported for each section and the format in which it must be provided. If a party to an agreement is unable to supply a complete response to any item of this Report, that party shall provide either estimated data (with an explanation of why precise data are not available) or a detailed statement of reasons for noncompliance and the efforts made to obtain the required information. For purposes of this Report, if one of the agreement signatories is a joint service operating under an effective agreement, that signatory shall respond to the Report as a single agreement party.
3. For clarification of the agreement terminology used in this Report, the parties may refer to the definitions provided in 46 CFR 535.104. In addition, the following definitions shall apply for purposes of this Report:
Section I applies to agreements, identified in 46 CFR 535.702(a)(1), that contain the authority to discuss or agree on capacity rationalization as defined in 46 CFR 535.104(e). Parties to such agreements must complete parts 1 through 3 of this section.
State the full name of the agreement and the agreement number assigned by the FMC.
1. For the preceding calendar quarter, provide the amount of vessel capacity for each party for each of its liner services that is covered by the agreement within the entire geographic scope of the agreement, stated separately for the U.S. inbound and outbound trades as applicable to the geographic scope of the agreement. For purposes of this Report, vessel capacity means a party's total commercial liner space on line-haul vessels, whether operated by it or other parties from whom space is obtained, sailing to and/or from the continent of North America for each of its liner services that is covered by the agreement.
2. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the calendar quarter was containerized, the amount(s) of vessel capacity for each party shall be reported in TEUs. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the calendar quarter was non-containerized, the amount(s) of vessel capacity for each party shall be reported in non-containerized units of measurement. The unit of measurement used in calculating the amounts of non-containerized vessel capacity must be specified clearly and consistently applied.
For the preceding calendar quarter, provide the percentage of vessel capacity utilization for each party for each of its liner services that is covered by the agreement within the entire geographic scope of the agreement, corresponding to the figures used in part 2(A) of this section, stated separately for the U.S. inbound and outbound trades as applicable to the geographic scope of the agreement. For purposes of this Report, the percentage of vessel capacity utilization means a party's total volume of liner cargo, for each of its liner services that is covered by the agreement, carried on any vessel space counted under part 2(A) of this section, divided by its total vessel capacity as defined and derived in part 2(A) of this section, which quotient is multiplied by 100.
Provide a narrative statement on any significant reductions, to be implemented under the agreement, in the amounts of vessel capacity for the parties' liner services that are covered by the agreement within the entire geographic scope of the agreement. Specifically, explain the nature of and the reasons for the significant reduction and its effects on the liner service and the total amount of vessel capacity for such service that would be subject to the reduction. The narrative statement for part 2(C) of this section shall be submitted to the Director, Bureau of Trade Analysis, no later than 15 days after a significant reduction in the amount of vessel capacity has been agreed upon by the parties but prior to the implementation of the actual reduction under the agreement. For purposes of this part, a significant reduction refers to the removal from a liner service of vessels or vessel space for a fixed, seasonally planned, or indefinite period of time. A significant reduction excludes instances when vessels may be temporarily repositioned or shifted from one service to another, or when vessel space may be temporarily altered, or when vessels are removed from a liner service and vessels of similar or greater capacity are substituted. It also excludes operational changes in vessels or vessel space that would have little or no impact on the amount of vessel capacity offered in a liner service or a trade.
Excluding those changes already reported in part 2(C) of this section, provide a narrative statement on any other significant changes, implemented under the agreement during the preceding calendar quarter, in the amounts of vessel capacity for the parties' liner services that are covered by the agreement within the entire geographic scope of the agreement. Specifically, explain the nature of and the reasons for the significant change and its effects on the liner service and the total amount of vessel capacity for such service that was subject to the change. For purposes of this part, a significant change refers to the addition to a liner service of vessels or vessel space for a fixed, seasonally planned, or indefinite period of time. A significant change excludes instances when vessels were temporarily repositioned or shifted from one service to another, or when vessel space was temporarily altered, or when vessels were removed from a liner service and vessels of similar capacity were substituted. It also excludes operational changes in vessels or vessel space that had little or no impact on the amount of vessel capacity offered in a liner service or a trade. If no significant change was implemented, it shall be noted with the term “none” in response to part 2(D) of this section.
Provide a narrative statement on any significant changes, implemented under the agreement during the calendar quarter, in the number of vessel calls at a port for the parties' liner services that are covered by the agreement within the entire geographic scope of the agreement. Specifically, explain the nature of the significant change and its effect on the frequency of vessel calls at the port for the liner service that was subject to the change. For purposes of this part, a significant change refers to an increase or a decrease in the number of vessel calls at a port for a fixed, seasonally planned, or indefinite period of time. A significant change excludes an incidental or temporary alteration in the number of vessel calls at a port, or an operational change in vessel calls that had little or no impact on the number of vessel calls at a port. If no significant change was implemented, it shall be noted with the term “none” in response to part 3 of this section.
Section II applies to agreements, identified in 46 CFR 535.702(a)(2), where the parties to the agreement hold a combined market share, based on cargo volume, of 35 percent or more in the entire U.S. inbound or outbound geographic scope of the agreement and the agreement contains any of the following authorities: a) the discussion of, or agreement upon, whether on a binding basis under a common tariff or a non-binding basis, any kind of rate or charge; b) the establishment of a joint service; c) the pooling or division of cargo traffic, earnings, or revenues and/or losses; or d) the discussion of, or agreement on, any service contract matter. Parties to such agreements must complete parts 1 through 6 of this section.
State the full name of the agreement and the agreement number assigned by the FMC.
1. For the preceding calendar quarter, provide the market shares of all liner operators for the entire geographic scope of the agreement and in each sub-trade within the scope of the agreement. A joint service shall be treated as a single liner operator, whether it is an agreement line or a non-agreement line. Sub-trade is defined as the scope of all liner movements between each U.S. port range within the scope of the agreement and each foreign country within the scope of the agreement. Where the agreement covers both U.S. inbound and outbound liner movements, inbound and outbound market shares shall be shown separately.
2. U.S. port ranges are defined as follows:
a. Atlantic and Gulf—Includes ports along the eastern seaboard and the Gulf of Mexico from the northern boundary of Maine to Brownsville, Texas. Also includes all ports bordering upon the Great Lakes and their connecting waterways, all ports in the State of New York on the St. Lawrence River, and all ports in Puerto Rico and the U.S. Virgin Islands.
b. Pacific—Includes all ports in the States of Alaska, Hawaii, California, Oregon, and Washington. Also includes all ports in Guam, American Samoa, Northern Marianas, Johnston Island, Midway Island, and Wake Island.
3. An application may be filed for a waiver of the definition of “sub-trade” under the procedures described in 46 CFR 535.705. In any such application, the burden shall be on the parties to show that their marketing and pricing practices have been done by ascertainable multi-country regions rather than by individual countries or, in the case of the United States, by broader areas than
4. The formula for calculating market share in the entire agreement scope or in a sub-trade is as follows: The total amount of liner cargo carried on each liner operator's liner vessels in the entire agreement scope or in the sub-trade during the most recent calendar quarter for which complete data are available, divided by the total liner movements in the entire agreement scope or in the sub-trade during the same calendar quarter, which quotient is multiplied by 100. The market shares held by non-agreement lines as well as by agreement lines must be provided, stated separately in the format indicated.
5. If 50 percent or more of the total liner cargo carried by the parties in the entire agreement scope during the calendar quarter was containerized, only containerized liner movements (measured in TEUs) must be used for determining market share. If 50 percent or more of the total liner cargo carried by the parties was non-containerized, only non-containerized liner movements must be used for determining market share. The unit of measurement used in calculating amounts of non-containerized cargo must be specified clearly and applied consistently.
1. For the preceding calendar quarter, provide each party's total liner revenues in the entire geographic scope of the agreement, total liner cargo carried in the entire geographic scope of the agreement, and average revenue. For purposes of this Report, total liner revenues means the total revenues, in U.S. dollars, of each party corresponding to its total cargo carried for its liner services that fall under the agreement, inclusive of all ocean freight charges, whether assessed on a port-to-port basis or a through intermodal basis; accessorial charges; surcharges; and charges for inland cargo carriage. Average revenue shall be calculated as the quotient of each party's total liner revenues in the entire geographic scope divided by its total cargo carried in the entire geographic scope.
2. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the calendar quarter was containerized, each party shall report only its total carryings of containerized liner cargo (measured in TEUs) during the calendar quarter, total revenues generated by its carriage of containerized liner cargo, and average revenue per TEU. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the calendar quarter was non-containerized, each party shall report only its total carryings of non-containerized liner cargo during the calendar quarter (specifying the unit of measurement used), total revenues generated by its carriage of non-containerized liner cargo, and average revenue per unit of measurement. When the agreement covers both U.S. inbound and outbound liner movements, inbound and outbound data shall be stated separately.
For the preceding calendar quarter, provide a list, for the entire geographic scope of the agreement, of the top 10 liner commodities (including commodities not subject to tariff publication) carried by all the parties for their liner services that fall under the agreement. For purposes of this Report, commodities shall be identified at the 4-digit level of customarily used commodity coding schedules. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the calendar quarter was containerized, this list shall include only containerized commodities. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the calendar quarter was non-containerized, this list shall include only non-containerized commodities. When the agreement covers both U.S. inbound and outbound liner movements, inbound and outbound data shall be stated separately.
For the preceding calendar quarter, provide the cargo volume and revenue results for each party for each of the major commodities listed in part 4(A) of this section, corresponding to the same unit of measurement used. For purposes of this Report, revenue results means the revenues, in U.S. dollars, earned by each party on the cargo volume of each major commodity listed in part 4(A) of this section, inclusive of all ocean freight charges, whether assessed on a port-to-port basis or a through intermodal basis; accessorial charges; surcharges; and charges for inland cargo carriage. If a party has no cargo volume and revenue results for a commodity listed in part 4(A) of this section, it shall be noted by using a zero for that party in response to part 4(B) of this section.
For the preceding calendar quarter, provide the amount of vessel capacity for each party for each of its liner services that falls under the agreement within the entire geographic scope of the agreement, stated separately for the U.S. inbound and outbound trades as applicable to the geographic scope of the agreement. For purposes of this Report, vessel capacity means a party's total commercial liner space on line-haul vessels, whether operated by it or other parties from whom space is obtained, sailing to and/or from the continent of North America for each of its liner services that falls under the agreement. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the calendar quarter was containerized, the amount(s) of vessel capacity for each party shall be reported in TEUs. When 50 percent or more of the total liner cargo carried by all the parties in the geographic scope of the agreement during the calendar quarter was non-containerized, the amount(s) of vessel capacity for each party shall be reported in non-containerized units of measurement. The unit of measurement used in calculating the amounts of non-containerized vessel capacity must be specified clearly and consistently applied.
For the preceding calendar quarter, provide the percentage of vessel capacity utilization for each party for each of its liner services that falls under the agreement within the entire geographic scope of the agreement, corresponding to the figures used in part 5(A) of this section, stated separately for the U.S. inbound and outbound trades as applicable to the geographic scope of the agreement. For purposes of this Report, the percentage of vessel capacity utilization means a party's total volume of liner cargo, for each of its liner services that falls under the agreement, carried on any vessel space counted under part 5(A) of this section, divided by its total vessel capacity as defined and derived in part 5(A) of this section, which quotient is multiplied by 100.
Provide a narrative statement on any significant changes in the amount of vessel capacity that occurred during the preceding calendar quarter for the parties' liner services that fall under the agreement within the entire geographic scope of the agreement. Specifically, explain the nature of and the reasons for the significant change and its effects on the liner service and the total amount of vessel capacity for such service that was subject to the change. For purposes of this part, a significant change refers to the removal from or addition to a liner service of vessels or vessel space for a fixed, seasonally planned, or indefinite period of time. A significant change would exclude instances when vessels were temporarily repositioned or shifted from one service to another, or when vessel space was temporarily altered, or when vessels were removed from a liner service and vessels of similar capacity were substituted. It also excludes operational changes in vessels and vessel space that had little or no impact on the amount of vessel capacity offered in a liner service or a trade. If no significant change occurred during the calendar quarter, it shall be noted with the term “none” in response to part 5(C) of this section.
Provide a narrative statement on any significant changes in the number of vessel calls at a port that occurred during the preceding calendar quarter for the parties' liner services that fall under the agreement within the entire geographic scope of the agreement. Specifically, explain the nature of the significant change and its effect on the frequency of vessel calls at the port for the liner service that was subject to the change. For purposes of this part, a significant change refers to an increase or a decrease in the number of vessel calls at a port for a fixed, seasonally planned, or indefinite period of time. A significant change excludes an incidental or temporary alteration in the number of vessel calls at a port, or an operational change in vessel calls that had little or no impact on the number of vessel calls at a port. If no significant change occurred during the calendar quarter, it shall
Section III applies to all agreements identified in 46 CFR 535.702(a). Parties to such agreements must complete all items in part 1 of this section.
State the name, title, address, telephone and fax numbers, and electronic mail address of a person the Commission may contact regarding the Monitoring Report and any information provided therein.
A representative of the parties shall sign the Monitoring Report and certify that the information in the Report and all attachments and appendices are, to the best of his or her knowledge, true, correct and complete. The representative also shall indicate his or her relationship with the parties to the agreement.
1. The collection of this information is authorized generally by section 15 of the Shipping Act of 1984, 46 U.S.C. app. § 1714. The submission of this form is mandatory for parties to agreements that contain certain authorities.
2. You are not required to provide information requested on a form that is subject to the Paperwork Reduction Act unless the form displays a valid OMB control number. The valid control number for this information collection is 3072-0045.
3. The time needed to complete and submit this form will vary depending on individual circumstances. The total estimated average time to complete this form is about 63.5 hours. This estimate includes reading the instructions, collecting necessary data, and compiling that data.
4. If you have any comments concerning the accuracy of the above estimate or have any suggestions for simplifying the form, please contact Secretary, Federal Maritime Commission, 800 North Capitol Street, NW., Washington, DC 20573-0001; or by e-mail
By Order of the Commission.
Office of the General Counsel, HUD.
Notice.
Section 106 of the Department of Housing and Urban Development Reform Act of 1989 (the HUD Reform Act) requires HUD to publish quarterly
For general information about this notice, contact Aaron Santa Anna, Assistant General Counsel for Regulations, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-0500, telephone (202) 708-3055 (this is not a toll-free number). Persons with hearing-or speech-impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at 800-877-8339.
For information concerning a particular waiver that was granted and for which public notice is provided in this document, contact the person whose name and address follow the description of the waiver granted in the accompanying list of waivers that have been granted in the second quarter of calendar year 2004.
Section 106 of the HUD Reform Act added a new section 7(q) to the Department of Housing and Urban Development Act (42 U.S.C. 3535(q)), which provides that:
1. Any waiver of a regulation must be in writing and must specify the grounds for approving the waiver;
2. Authority to approve a waiver of a regulation may be delegated by the Secretary only to an individual of Assistant Secretary or equivalent rank, and the person to whom authority to waive is delegated must also have authority to issue the particular regulation to be waived;
3. Not less than quarterly, the Secretary must notify the public of all waivers of regulations that HUD has approved, by publishing a notice in the
a. Identify the project, activity, or undertaking involved;
b. Describe the nature of the provision waived and the designation of the provision;
c. Indicate the name and title of the person who granted the waiver request;
d. Describe briefly the grounds for approval of the request; and
e. State how additional information about a particular waiver may be obtained.
Section 106 of the HUD Reform Act also contains requirements applicable to waivers of HUD handbook provisions that are not relevant to the purpose of this notice.
This notice follows procedures provided in HUD's Statement of Policy on Waiver of Regulations and Directives issued on April 22, 1991 (56 FR 16337). This notice covers waivers of regulations granted by HUD from April 1, 2004, through June 30, 2004. For ease of reference, the waivers granted by HUD are listed by HUD program office (for example, the Office of Community Planning and Development, the Office of Fair Housing and Equal Opportunity, the Office of Housing, and the Office of Public and Indian Housing, etc.). Within each program office grouping, the waivers are listed sequentially by the regulatory section of title 24 of the Code of Federal Regulations (CFR) that is being waived. For example, a waiver of a provision in 24 CFR part 58 would be listed before a waiver of a provision in 24 CFR part 570.
Where more than one regulatory provision is involved in the grant of a particular waiver request, the action is listed under the section number of the first regulatory requirement that appears in 24 CFR and that is being waived. For example, a waiver of both §§ 58.73 and 58.74 would appear sequentially in the listing under § 58.73.
Waiver of regulations that involve the same initial regulatory citation are in time sequence beginning with the earliest-dated regulatory waiver.
Should HUD receive additional information about waivers granted during the period covered by this report before the next report is published, the next updated report (which will be for the period July 1, 2004 through September 30, 2004) will include these earlier waivers that were granted, as well as those that occurred during April 1, 2004, through June 30, 2004.
Accordingly, information about approved waiver requests pertaining to HUD regulations is provided in the Appendix that follows this notice.
More information about the granting of these waivers, including a copy of the waiver request and approval, may be obtained by contacting the person whose name is listed as the contact person directly after each set of regulatory waivers granted.
The regulatory waivers granted appear in the following order:
I. Regulatory waivers granted by the Office of Community Planning and Development.
II. Regulatory waivers granted by the Office of Fair Housing and Equal Opportunity.
III. Regulatory waivers granted by the Office of Housing.
IV. Regulatory waivers granted by the Office of Public and Indian Housing.
For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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The city of New Haven has begun over a dozen urban development projects that will create jobs in the area in which the proposed project-based units will be located. Specifically, the city, acting through its Development Commission, is involved in a comprehensive revitalization program for the neighborhood. The plan proposes the redevelopment of significant vacant land and building spaces for new light industrial and manufacturing uses, and the development of a waterfront park.
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Research and Special Programs Administration (RSPA), DOT.
Final rule.
This final rule amends the Hazardous Materials Regulations (HMR) to improve hazard communication for hazardous materials transported in commerce. Revisions adopted in this final rule include: permitting the use of the Pantone Formula, an industry guide for colors, for hazard warning labels and placards; expanding the use of labels specified in the Compressed Gas Association Pamphlet C-7 on cylinders used to transport Division 2.1, 2.2, or 2.3 gases to all modes of transportation; requiring a NON-ODORIZED marking on certain cylinders, portable tanks, cargo tanks, and tank cars and multi unit tank car tanks containing unodorized liquefied petroleum gas; and allowing a FUMIGANT marking to be removed from a transport vehicle or freight container before the lading is unloaded if the vehicle has undergone sufficient aeration. Taken together, the revisions in this final rule will enhance hazard communication for the safe handling of hazardous materials in transportation and the prompt identification of hazardous materials involved in transportation incidents.
Helen L. Engrum, Office of Hazardous Materials Standards, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001, (202) 366-8553.
The Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) include a wide variety of hazard identification and communication requirements for hazardous materials transportation. Generally, the HMR require packages of hazardous materials to be marked with the shipping name and identification number of the material contained in the package, and to display hazard warning labels. Placards and other markings must be affixed to a transport vehicle or bulk packaging containing hazardous materials. Hazardous materials must be described on a shipping paper that accompanies the shipment. The shipping paper or an associated document must contain emergency response information and the shipping paper must include an emergency response telephone number that is monitored at all times the material is in transportation. This telephone number is used by emergency responders to obtain detailed, product-specific information that includes guidance for the initial actions to be taken in the event of an incident. These requirements are designed, in part, to provide fire and emergency response personnel, transport workers, and the public with information in the event of a transportation incident involving the hazardous materials. The hazard communication and emergency response information requirements are set forth in subparts C through G of part 172 of the HMR. The hazard communication system in the HMR is generally consistent with international standards for hazardous materials transportation.
On June 11, 2003, the Research and Special Programs Administration (RSPA, we) published a notice of proposed rulemaking (NPRM; 68 FR 34880) proposing a number of changes to enhance the identification of hazardous materials in transportation and improve the availability of emergency response information. The NPRM was based on several petitions for rulemaking, requests for clarification, and RSPA initiatives, and included clarifications and improvements to the shipping paper, identification number and other marking, labeling and placarding, and emergency response telephone number requirements.
Emergency responders must know how to react appropriately in emergency situations in order to coordinate response actions that will protect human life and property. The changes to the hazard communication requirements adopted in this final rule will result in better response by, and protection of, emergency response personnel, fire or police personnel, and the general public. In addition, some of the changes adopted in this final rule will provide the regulated industry with additional flexibility to meet hazard communication requirements, thus reducing compliance burdens. Taken together, the amendments adopted in this final rule will help shippers and carriers to ensure that hazardous materials are transported with minimum risks to persons, property, and the environment.
In this final rule, we are adopting the following revisions to the HMR:
• Permitting the use of Pantone® Formula, an industry guide for colors, for hazard warning labels and placards.
• Expanding the use of labels specified in the Compressed Gas Association Pamphlet C-7 on cylinders used to transport Division 2.1, 2.2, or 2.3 gases to all modes of transportation.
• Requiring a NON-ODORIZED marking on certain packages containing unodorized liquefied petroleum gas.
• Allowing a FUMIGANT marking to be removed from a transport vehicle or freight container before the lading is unloaded provided the vehicle or freight container has undergone sufficient aeration.
• Clarifying that beeper or other types of call-back systems do not meet the requirements in § 172.604 for emergency response telephone numbers.
• Clarifying that international shipments of Class 9 materials may utilize the placarding exception for Class 9 materials while the shipment is being transported in the United States.
• Clarifying that a return shipment of a package that contains less than a reportable quantity of a Class 9 hazardous substance may be offered for transportation and transported with markings and placards in place.
• Clarifying emergency response information and training requirements for combustible liquids.
We are not adopting provisions proposed in the NPRM concerning the design of poison-by-inhalation labels and placards, the use of retro reflective materials for certain placards, marking requirement for shipments of temperature-controlled Type B organic peroxides, and the organic peroxide subsidiary FLAMMABLE LIQUID label.
RSPA received approximately 19 written comments to the NPRM from trade associations, including the American Chemistry Council, Compressed Gas Association, National Propane Gas Association, National Pest Management Association, American Society of Safety Engineers, American Petroleum Institute, Association of American Railroads, American Trucking Associations, The Conference on Safe Transportation of Hazardous Articles, Inc., Commercial Vehicle Safety Alliance, and the International Vessel Operators Hazardous Materials Association, Inc.; chemical manufacturers; shippers and carriers of hazardous materials; and The Georgia Department of Motor Vehicle Safety. Overall the commenters support the regulatory amendments, clarifications, and transitional provisions in the NPRM because the actions will clarify several confusing regulations, assist shippers and carriers with hazardous materials compliance, and enhance hazard communication and emergency response. Several commenters raised concerns about certain provisions in the proposals. Relevant portions of these comments are discussed in detail in the following sections of this preamble.
Liquefied petroleum gases include butane, isobutane, propane, propylene (propene) butylenes (butenes), and any mixtures of these hydrocarbons. These gases are flammable, colorless, noncorrosive, and nontoxic. They are easily liquefied under pressure at ambient temperature, and are shipped and stored as liquids. They are largely used in gaseous and liquid form as fuels in many diverse applications. The gases are also denoted by the terms LP-Gas or LPG.
In the NPRM, we proposed to require a NON-ODORIZED marking on certain cylinders, portable tanks, cargo tanks, and tank cars and multi unit tank car tanks containing Liquefied petroleum gas (LPG). There is a requirement in § 173.315(b)(1) for LPG to be odorized in portable tanks and cargo tanks, unless odorization would be harmful to any further processing of the LPG. However, there are no odorization requirements in the HMR for LPG in cylinders or tank cars, nor in communicating the lack of odorization of LPG during transportation. Between 1978 and 1980, we received several petitions requesting updating of the LPG odorization requirements contained in the HMR; these petitioners requested that the HMR require LPG to be odorized in transportation or the lack of odorization to be visually communicated. In a July 1978 Report to Congress on Liquefied Energy Gases, the General Accounting Office of the Comptroller General of the United States (GAO) recommended that vehicles transporting LPG display a sign indicating whether or not the LPG being transported was odorized.
There currently is no requirement in the HMR for shippers to provide an indication as to whether the LPG being transported is odorized. The proposal stemmed from our concern that the lack of a warning that the material contained in the package was not odorized could cause emergency responders to make inappropriate decisions in mitigating an accident, potentially jeopardizing their safety or the public safety. Of the nine comments received on this issue, only one commenter opposes the NON-ODORIZED marking provisions.
The Association of American Railroads (AAR), the American Society of Safety Engineers (ASSE), the Conference on Safe Transportation of Hazardous Articles, Inc. (COSTHA), the International Vessel Operators Hazardous Materials Association, Inc. (VOHMA), Compressed Gas Association (CGA), Diversified CPC International (Diversified), Matheson Tri Gas (Matheson), and Praxair support RSPA taking action to require shippers to indicate when they are shipping non-odorized propane. The AAR agrees that the concern that emergency response personnel may overlook the possibility of a leak of non-odorized propane because of an expectation that any leak would have a detectable odor is well founded, since most shipments of propane contain an odorant. The ASSE states that the current lack of this additional hazard warning information could trigger inappropriate decisions by emergency responders, threatening their safety and that of the public community during incident control. In addition, VOHMA, CGA, and COSTHA state that shipping paper entries should also include the entry “Non-Odorized” so that carriers as well as emergency responders will be aware of and benefit from this additional information if an incident occurs involving unodorized LPG. AAR notes that, because markings may be obscured or damaged in a derailment or accident, adding a notation to shipping papers will help ensure that emergency responders will be informed if a shipment of unodorized propane is involved in an accident.
We agree with commenters that a shipping paper entry would provide additional information for carriers and emergency responders about the nature of the material being transported. However, such a revision to the HMR would impose additional costs on shippers and transporters; moreover, this revision was not proposed in the NPRM. Therefore, we are not making this change in the final rule. Shippers may include on shipping papers the information that a shipment is not odorized if they so choose.
Matheson Tri Gas asks for clarification as to whether the requirement for marking LPG as odorized pertains to LP-Gas mixtures. In addition, Matheson and Diversified CPC International, Inc. (Diversified) request that the marking “NOT ODORIZED” be permitted in place of or in addition to the proposed NON-ODORIZED marking. Diversified states that many of its cargo tanks are already marked as NOT ODORIZED in accordance with NFPA 58 LPG standard which requires all ASME storage containers (National Fire Protection Association's NFPA 58 Liquefied Petroleum Gas Code, Section 2.2.6.5)
The American Petroleum Institute (API) opposes the NON-ODORIZED marking provision on tank cars transporting LPG. API expresses concern with the logistics of tracking the tank cars and scheduling the stenciling, inspecting the cars to make sure they are properly stenciled, and the potential for creating errors and inconsistencies between the bills of lading, the markings, and the placards. API also states that remarking the cars may be dangerous to the personnel who are climbing up and down ladders to re-stencil the cars every year. One API member estimates that stenciling changes would occur approximately 5,800 times per year at a cost of approximately $80 per car ($30.00 per car for stenciling + $47 per car to affix = $80) for a total of $464,000 annually to comply with the proposed requirement. API suggests that the NON-ODORIZED marking should not be applicable to tank cars.
We do not agree with the API comment. We agree with petitioners and with GAO that, because transport workers and emergency response personnel rely on an odor to indicate the presence of LPG, emergency response and transport workers could make inappropriate decisions during an incident unless information concerning odorization is available, potentially jeopardizing their safety or the public safety. We note concerning the comments on stenciling that neither the NPRM nor this final rule specify the type of marking that must be used to comply with the requirement. Shippers may use non-permanent marks, such as pressure-sensitive vinyl or adhesive-backed labels, that would obviate the need to re-stencil railcars to indicate the presence of a non-odorized shipment. The annual cost of this marking, using pressure-sensitive vinyl labels that have a 5- to 7-year life expectancy, is minimal.
To address the concerns expressed by API, in this final rule, we are adopting a provision to permit the NON-ODORIZED marking to be used on rail tank cars that transport both unodorized and odorized LPG. The NON-ODORIZED marking will alert emergency responders that the tank may contain unodorized LPG; in the event the LPG in the tank is, in fact, odorized, emergency responders will know to take appropriate actions even though the tank car indicates that the contents may not be odorized. Accordingly, we are amending §§ 172.203, 172.301, 172.326, 172.328, and 172.330 to require the NON-ODORIZED or NOT ODORIZED marking on a vehicle or, unless excepted, a container containing LPG that does not contain an odorant. In this final rule, the compliance date for the new marking requirement is October 1, 2006.
A Division 5.2 placard is required for (1) any quantity of an organic peroxide, Type B, liquid or solid, temperature controlled material, and (2) for other organic peroxides when 1,001 pounds or more are on a transport vehicle. In the NPRM, we proposed to require an identification number to be displayed on each bulk packaging, unit load device, freight container, transport vehicle, or rail car containing any quantity of an organic peroxide when the material transported is a temperature-controlled organic peroxide subject to placarding under Table 1 of § 172.504(e).
Of the four comments received on this issue, only one commenter supports the proposal. The American Society of Safety Engineers (ASSE) agrees that it would be beneficial to require display of the identification number on bulk packages, freight containers, vehicles and rail cars to indicate that the organic peroxide is temperature controlled. ASSE says that including an identification number will increase the likelihood that appropriate actions will be taken to ensure safety, even if shipping papers for the cargo are not readily available in an emergency situation.
The commenters opposed to this provision believe that the current requirement to placard any amount of “5.2, Organic peroxide, Type B, liquid or solid, temperature-controlled” material conveys the warning to emergency personnel that the material must be temperature controlled, and clearly identifies the organic peroxides requiring special response needs based on temperature controls. The Conference on Safe Transportation of Hazardous Articles, Inc. (COSTHA) suggests that an emergency responder responding to an incident involving a Class 5.2 placard should always assume that the cargo should be protected from a rise in temperature since virtually all organic peroxides may undergo exothermal release of oxygen or instability and many are flammable. COSTHA further states that such an identification number display will cause confusion, particularly in international commerce. COSTHA notes that under international codes the display of an identification number for a Class 5.2 material is required only for a bulk packaging or a shipment of 4000 kg or more loaded at one location with no other hazardous materials in the container or transport unit. COSTHA asserts that seeing the identification number displayed as proposed might lead to an erroneous conclusion and improper response. The American Trucking Associations (ATA) opposes this provision because temperature-controlled organic peroxides represent a small percentage of the cargo transported by motor carriers. Drivers are thus not likely to see this material with any regularity. In ATA's view, this lack of familiarity will make the proposed requirement difficult to comply with; moreover, according to ATA, motor carriers may choose not to accept these materials for transportation. ATA is further concerned that it will be difficult to train drivers to distinguish between organic peroxides that do not require the identification marking and those that do.
We have reconsidered this proposal in light of the comments we received. We agree that the placard currently required for Type B, organic peroxide shipments and the required shipping paper entry that indicates that the material is temperature-controlled and provides the emergency temperature should be sufficient in most situations to alert emergency responders to the hazard associated with the material in the event of an incident that results in loss of temperature control. We also agree that the requirement as proposed could cause confusion for international shipments. We note, in addition, that there are other types of hazardous materials that require temperature controls during transportation; we may need to consider a more general marking requirement for all such materials than was proposed in the NPRM. Therefore, we are not adopting the proposal in this
A rail car, freight container, truck body, or trailer in which the lading has been fumigated or treated with any material, or is undergoing fumigation, is a “package” containing a hazardous material, unless the transport vehicle or freight container has been sufficiently aerated so that it does not pose an unreasonable risk to health and safety. If the contents of a transport vehicle or freight container have been treated with any material or are undergoing fumigation, the transport vehicle and freight container must be marked in accordance with § 173.9(c). The requirements apply to fumigation with any material, including unlisted fumigants, and in all modes of transportation. This marking provides warning to shippers, carriers, law enforcement agencies, and, in particular, transport workers that they may be exposed to a fumigating agent when they open a transport unit. The NPRM proposed to revise the requirements in paragraph (e) of § 173.9 to specify that the FUMIGANT marking must remain on the vehicle or container until the fumigated load is unloaded or has undergone sufficient aeration to remove the hazard posed by the fumigant. The proposed revision permits aeration or ventilation of the vehicle or container without unloading.
Three comments were received to the NPRM regarding the fumigation proposals. All three commenters support the proposal. Two commenters suggest that, in order to clarify when a fumigated transport vehicle or freight container is no longer deemed to present a hazard to those entering the vehicle or container, we adopt language that reflects the text of the current UN Model Regulations and the IMDG Code. We agree; therefore, in this final rule, the word “or” replaces the word “and” in the current paragraph (e)(1), and paragraph (e)(2) is revised for consistency with the text of the current UN Model Regulations and the IMDG Code. This revision will allow removal of the FUMIGANT marking following aeration or ventilation of the vehicle or container sufficient to eliminate the fumigant hazard, and also makes the requirements consistent with international standards.
The National Pest Management Association (NPMA) expresses concern about application of the FUMIGANT marking requirement to ready-to-use liquid formulations or “foggers,” such as ant and roach repellants. NPMA said RSPA is encouraging fumigators to improperly mark packages, an action that may unnecessarily delay emergency workers' response to an accident. This comment is beyond the scope of this rulemaking.
In a final rule published January 8, 1997 (62 FR 1217), we adopted new labels and placards for both liquids (Division 6.1) and gases (Division 2.3) that are materials poisonous by inhalation (PIH) to enhance their identification when transported in commerce. The dark background for the skull-and-crossbones of the symbol depicted on the PIH label and placard graphically conveys the appropriate information to alert responders to the hazards of PIH materials. The PIH label and placard also improved hazard communication by creating an instantly recognizable difference between PIH materials and other poisons.
However, as published in the
Because of the enlarged upper black diamond above the horizontal center line and, proportionally, the skull-and-crossbones symbol at the top of the PIH placards, identification number markings displayed on the new PIH placards may cause overlapping of the lower point of the upper black diamond and impinge on space used for identification number display on such placards. To allow space for the identification number, we proposed allowing the lower point of the upper black diamond to impinge on space used to display an identification number marking on a PIH placard. An extensive transition period was also proposed to allow those persons who had begun, prior to October 1, 1999 and October 1, 2001, respectively, to use and maintain a supply of the PIH labels and placards with smaller size symbols to continue to use them in transportation.
We received approximately 10 comments on these proposals. Most commenters supported the proposed changes, but questioned the timing of the proposals in light of security concerns and non-uniformity with the international standards. The following comment from PRAXAIR is typical:
While supportive of the need to communicate the special hazards posed by materials classified as Poison Inhalation Hazard materials, PRAXAIR questions the necessity for the proposed increases in the size of PIH labels. Since October 1, 2001, RSPA has required and Praxair complied with the requirements to use a PIH label and placard for both liquids (Division 6.1) and gases (Division 2.3) that are PIH materials. DOT has gone to considerable length to create unique labels and placards. The pictograms for PIH materials are unique and their size does not, in our judgment, need to be increased in order to improve their ability to communicate hazards. Furthermore, these labels and placards are unique to the transportation system in the USA and have not been adopted by the international transportation community. These labels and placards have become recognized by the emergency response community in the USA. PRAXAIR believes that the current labels and placards are distinctive and that an increase in the size of the upper quadrant of labels and placards is unnecessary because these labels are unique. The need to change a system for international shipment of PIH materials seems premature.
We agree. Therefore, we are not adopting the NPRM proposals concerning the PIH labels and placards in this final rule.
We note concerning the transportation of PIH materials that RSPA and the Transportation Security Administration are examining the need for enhanced security requirements for the rail transportation of hazardous materials that pose a toxic inhalation hazard. In a notice published August 16, 2004 (69 FR 50987), the two agencies are seeking comments on the feasibility of initiating specific security enhancements and the potential costs and benefits of doing so. Security measures being considered include improvements to security plans, modification of methods used to identify shipments and communicate hazards, enhanced requirements for temporary storage, strengthened tank car integrity, and implementation of tracking and communication systems.
In the HM-206 final rule (62 FR 1217; January 8, 1997), certain materials that meet the definition of a PIH material, such as hydrogen fluoride, anhydrous, were not specifically addressed in the provisions for labeling and placarding PIH materials in Division 6.1. To correct this oversight, in the NPRM we proposed to revise §§ 172.400 and 172.504 to require an inhalation hazard label or placard for materials that meet the definition of a PIH material in § 171.8. We received one comment supporting the action to correct this oversight. The proposal in the NPRM is adopted without change in this final rule.
In accordance with § 173.29(c), a non-bulk packaging containing only a residue of a hazardous material covered by placarding Table 2 of § 172.504 of the HMR need not be included in determining the applicability of the placarding requirements in subpart F of part 172 and is not subject to shipping paper requirements when collected and transported by a contract or private carrier for reconditioning, remanufacture or reuse. However, the exception in § 173.29(c) was not intended to apply to the residue of a material shipped in non-bulk packagings that has a subsidiary PIH hazard that would require the transport vehicle to be placarded in accordance with the subsidiary placarding requirements in § 172.505(a). Therefore, in the NPRM, we proposed to revise paragraph (c) of § 173.29 to clarify that the exception to placarding and shipping papers do not apply to a non-bulk packaging containing the residue of a material poisonous by inhalation. Two comments were received supporting this clarification. The proposal is adopted without change in this final rule.
The NPRM contained a proposal for use of Pantone® Matching System (PMS) colors as an alternative to the specifications for colors in the Tables in Appendix A of part 172 of the HMR. The proposed alternative color standards for labels and placards conform generally to the same standards prescribed in the TDG Regulations, which are colors conforming to the Pantone® Color Formula Guide published by Pantone Incorporated (Pantone®). The colors that make up the PMS are derived from 14 base colors. Ink manufacturers license the formulation from Pantone® and printers mix of the 14 ink colors make up the entire spectrum of PMS. This provision is primarily intended to voluntarily permit the use of certain Pantone® Color Formula Guide colors for identification number and other markings and hazard warning labels and placards as an alternative to the Munsell notations, by referencing certain Pantone® Color Formula Guide numbers as a convenience to users, not as a requirement.
We received two comments, both in support of this provision. Monsanto Company (Monsanto) supports RSPA's efforts since Pantone® is the printing color standard. Monsanto recommends that a delta “E” value be added to color deviation from the Pantone® standard color, and that most color definitions include an “error” tolerance value, especially when they refer to using color measuring instruments or a spectrophotometer because Pantone® books vary based upon age and environmental conditions. Further, Monsanto recommends that the DOT colors be defined within the “Cyan-Magneta-Yellow-Black (CMYK)” color space or tolerance set to include colors reproduced using the process colors. CMYK is a color model in which all colors are described as a mixture of these four process colors. CMYK is the standard color model used in offset printing for full-color documents, and because such printing uses inks of these four basic colors, it is often called four-color printing.
In this final rule, the Pantone® Matching System is a voluntary alternative to the Munsell Notations, and the Pantone® Formula Guide colors are specified and do not allow for deviations or tolerances (ranges of color). It is our understanding that the specified DOT colors do not render well when emulated using CMYK color space. A spectrophotometer or other instrumentation would be required to ensure a proper match with the DOT color standards. The use of CMYK colors for hazard warning labels and placards and other markings was not proposed in the NPRM, and is beyond the scope of this rulemaking. At this time, we have not determined whether or not CMYK colors would be an acceptable alternative to the use of the Munsell Notations. The commenter may wish to submit a petition for rulemaking requesting a change to the regulations in accordance with §§ 106.95 and 106.100. In this final rule, we are revising §§ 172.407 and 172.519, specifications for labels and placards, to provide an alternative means of achieving reasonable conformance to color standards for hazard warning labels and placards, and identification number and other markings.
In accordance with the provisions in § 172.519(a)(3), reflective materials may be used on a placard if the prescribed colors, strengths, and durability are maintained. In the NPRM, we proposed to adopt an alternate color standard for labels and placards constructed of retro reflective materials. We focused on retro reflective red and white reflective colors that conform to Type V sheeting in ASTM D 4956, Standard Specification for Retroretroflective Sheeting for Traffic Control. We did not propose other colors in ASTM D 4956 because we believed they poorly match the current and proposed color standards for labels and placards. This standard is referenced in the conspicuity systems prescribed under the Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and Associated Equipment specified in 49 CFR 571.108.
We received two comments on our proposal. 3-M Traffic Control Division (3-M) supports the proposal, stating that the use of retro reflective materials can greatly increase the visibility of placards when viewed by a first responder in the dark, and Type V materials are most often used as white and red conspicuity treatments to improve the visibility of trucks at night. Further, the color of retro reflective signing governed by the Federal Highway Administration is based on the same Munsell System and Color Tolerance Charts currently referenced by RSPA. However, 3-M notes that Type V materials are intended only for nighttime use. Because placards are viewed under both daytime and nighttime conditions, 3-M suggests language that would allow placards to be made from durable materials used for rigid highway signs. 3-M also recommends that placards made from Type VII, VIII, or IX sheeting would be comparable in nighttime brightness to Type V and provide daytime luminance sufficient for signing purposes in the daytime.
Based in part on the 3-M comment and on our own evaluation of the standards for retro reflective materials, we have decided not to adopt the NPRM proposal in this final rule. We will continue to evaluate retro reflective materials to ascertain their suitability
Under the HMR, the additional labeling requirements in § 172.402 require each package containing a hazardous material to be labeled with both primary and subsidiary hazard warning labels. In accordance with § 172.402(a)(2), a package containing a Division 5.2 (organic peroxide) material that also meets the definition of a Class 3 (flammable liquid) material must be labeled ORGANIC PEROXIDE and FLAMMABLE LIQUID, except for Class 3 material in Packing Group III (see exception in § 172.402(a)(2)). Paragraph 5.2.2.1.10 of the UN Model Regulations specifies that a subsidiary FLAMMABLE LIQUID label is not required on such a package because the ORGANIC PEROXIDE label is understood to convey the inherently flammable nature of organic peroxides. In the NPRM, we proposed to grant an exception from subsidiary labeling for a Division 5.2 (organic peroxide) material that exhibits a Class 3 (flammable liquid) subsidiary hazard, for consistency with the UN Model Regulations.
We received two comments in support of the proposal. However, we are not adopting the proposed exception at this time. The UN is currently considering introduction of a new Division 5.2 label to better differentiate between the Division 5.1 and 5.2 labels. A proposal to this effect has been submitted to the UN Committee of Experts. We will address labeling issues related to Division 5.2 materials after the UN has finalized action on modified labeling requirements for organic peroxides, in order to maintain consistency and harmonization with the UN.
Currently, the HMR allow the use of “neckring” markings, instead of labels, on cylinders containing certain compressed gases (
We received five comments on this issue. All are generally supportive of the proposed revision, except that two of the commenters oppose expanding the exception to include Division 2.3 (poison gas) gases. These commenters state that any material with either a primary or subsidiary hazard of Division 2.3 should be required to bear the full-sized toxic or poison gas label, and note that neckring markings are often abraded, torn, and faded from frequent use and handling of the cylinders to which they are attached. We do not agree. Cylinder neckring markings are less subject to abrasions than cylinder body labels and are less likely to loosen and fall off. Further, the smaller neckring markings affixed to the shoulder of cylinders are more visible when cylinders are grouped together than when the information is on a hazard warning label affixed to the cylinder wall. Experience shows that this alternative marking, currently authorized for cylinders carried by private and contract carriers, clearly communicates the degree of hazard associated with Class 2 gases offered for transportation in commerce. The neckring marking will also not detract from a common carrier's ability to segregate and stow cylinders since cylinders shipped individually must be moved individually by employees who are close enough to read the smaller neckring marking and hazard warning label. In addition, the proper shipping name and identification number of the hazardous material are marked adjacent to the smaller neckring marking and hazard warning label, which makes identification of the products easier.
We believe such markings will be comparably effective in communicating the hazard of the material being shipped. Safety will not be reduced because shipping papers and placards on the transport vehicles provide hazard warning information that can be used in the event of an emergency. Paragraph 5.2.2.2.1.2 of the UN Model Regulations specifies that cylinders for Class 2 may, on account of their shape, orientation and securing mechanisms for transport, bear labels representative of those specified in this section, which have been reduced in size, according to ISO 7225 “Gas cylinders—Precautionary labels,” for display on the non-cylindrical part (shoulder) of such cylinders. Thus, this change will enhance international harmonization with the Canadian and European standards, which authorize labels that have been reduced in size (
Accordingly, in this final rule, § 172.400a(a)(1) is revised to allow labels authorized in CGA Pamphlet C-7, Appendix A, for Division 2.1, 2.2, or 2.3 gases. We are rewording the provisions to clarify that a Dewar flask is authorized only for atmospheric gases under the conditions prescribed in § 173.320. Because we are expanding use of the marking on cylinders and Dewars for poisonous materials and in all modes of transportation and cylinders of Division 2.3 gases, we are removing paragraphs (a)(1)(i) and (ii).
In the NPRM, we proposed to clarify that the Class 9 placarding exception in § 172.504(f)(9) applies to international shipments of Class 9 materials while moving in the United States. For those portions of transportation that occur within the borders of the United States, a shipment in international transportation is eligible for the same placarding exceptions that apply to transportation that is domestic only.
We received three comments on this issue: two opposed, and one in support of the clarification. Air Products, Inc. supports the proposal because the clarification will minimize misunderstanding. The Conference on Safe Transportation of Hazardous Articles, Inc. (COSTHA) and the International Vessel Operators Hazardous Materials Association, Inc. (VOHMA) oppose the clarification. COSTHA states that extending the exception to international shipments in cargo transport units will result in confusion and non-compliance. COSTHA is concerned that the amendment to § 172.504(f)(9) would not prevent an intermodal carrier from removing the CLASS 9 placards and thus place the container in non-compliance when it arrives at the port. COSTHA suggests that requiring the placard to be displayed throughout transportation in accordance with the IMDG Code will reinforce a shipper's responsibility for providing and affixing placards at the beginning of transportation and for intermodal carriers to maintain the placards until the shipment reaches the port. VOHMA states that in order to avoid inconsistency between §§ 171.12,
We do not agree. This action is being taken to clarify and incorporate into the HMR our longstanding determinations concerning the intent and use of the CLASS 9 placard when the shipment is passing through the United States and destined for a foreign country, such as Canada. For these purposes, we have previously defined “domestic transportation” to include not only transportation exclusively within the United States, but also that domestic portion of international transportation (such as Class 9 shipments to or from Canada by highway and rail), that occurs between places within the United States. We do not agree that application of the Class 9 placarding exception to shipments passing through the United States will cause confusion and non-compliance nor do we agree that the exception will cause intermodal carriers to remove Class 9 placards on international shipments prior to the shipment's arrival at the port. The exception permits the Class 9 placard to be displayed throughout transportation in accordance with the IMDG Code requirements. The proposal in the NPRM is adopted without change in this final rule.
A Class 9 hazardous substance is subject to the HMR only because of the presence of a reportable quantity (RQ) in one package. An empty packaging containing the residue of a Class 9 hazardous substance below its RQ is not subject to the HMR, including shipping paper requirements. In the NPRM, we proposed to revise § 172.514(b) to allow markings and placards, if any, to remain on a packaging, such as a returning rail car, that contains a residue of a hazardous substance that only meets the definition of a Class 9 material, and is not a hazardous waste or a marine pollutant.
We received three comments on this issue, all supporting the revision. Therefore, in this final rule, we are clarifying that a packaging, such as a tank car, containing less than a reportable quantity of a Class 9 hazardous substance may be offered for transportation as a regulated material if the residue of this material is offered for transportation with all applicable hazard warning marks, placards and shipping papers. Accordingly, § 172.514(b) is revised and § 173.29(h) is added to allow the markings and placards, if any, to remain on a returning rail car that contains a residue of a hazardous substance that only meets the definition of a Class 9 material, and is not a hazardous waste or a marine pollutant.
In this final rule, an editorial revision is made in § 172.504(e), Table 1, to correct citations in Footnote 1, pertaining to placarding for certain shipments of radioactive materials. The footnote is corrected to read as follows: “RADIOACTIVE placard also required for exclusive use shipments of low specific activity material and surface contaminated objects transported in accordance with § 173.427(b)(4) and (5) or (c) of this subchapter.” (
The HMR require a person offering a hazardous material for transportation to provide an emergency response telephone number (including the area code or international access code) on the shipping paper for use in the event of an emergency involving the material. The emergency response telephone number must be that of a person who has comprehensive knowledge of emergency response and incident mitigation information about the hazardous material being shipped. As an alternative, the number may be of a person who has “immediate access” to a person who possesses such information. The emergency response telephone number must be monitored at all times for as long as the hazardous material is being transported, including during storage incidental to the movement of the hazardous material. Storage that is incidental to movement generally is storage that occurs between the time a hazardous material is offered for transportation and the time it reaches its destination and is delivered to the consignee. In the NPRM, we proposed to clarify the emergency response telephone number requirements to specify that call-back systems (
We received five comments, four in support of the clarification in § 172.604, and one opposed. Typical of those supporting the proposal is the American Chemistry Council (ACC):
ACC has long understood DOT's intent that the number shown on the shipping papers should connect the caller directly to an individual with immediate access to information regarding the specific product(s) covered by the shipping papers on which the emergency number appears, or immediate access to a person who possesses such knowledge and information. First responders and those in the transport industry need accurate and immediate information in order to properly mitigate an incident while also protecting those responding to the incident. For this reason, ACC also agrees with DOT that direct landline telephone provides the most reliable destination connection.
Further, it is also understood that some first responders may or may not possess extensive hazardous materials incident emergency response training or experience and may need guidance in identifying what information is needed to take action. For that reason, ACC believes the person answering the emergency telephone should be properly trained and/or have immediate access to trained and hazardous materials qualified individuals that can assist the caller in obtaining the needed information.
The National Propane Gas Association (NPGA) opposes the clarification. NPGA says that retail marketers of propane often utilize devices such as answering services or beepers, and that the added provision would essentially require propane marketer employees to be considered first responders in order to comply with the
We disagree. The emergency response telephone number ensures that appropriate response and mitigation information is available to emergency response personnel in the event of an incident, without unnecessary or undue delay. The number must be of a person who has comprehensive emergency response and accident mitigation information or has immediate access to a person who possesses such knowledge. Some shippers have misinterpreted “immediate access” as authorizing them to use a “call-back” system that requires an emergency responder to wait for a return telephone call. This is not practical since a responder must make quick mitigation decisions at the scene of an incident involving hazardous materials, including propane. Moreover, in a number of letters of clarification issued since adoption of the emergency telephone number requirement, we have stated that “call-back” systems do not
Under the HMR, a combustible liquid that is in a bulk packaging or a combustible liquid that is a hazardous substance, hazardous waste, or a marine pollutant is not subject to the requirements of the HMR except those prescribed in § 173.150(f)(3). Emergency response information and training requirements prescribed in subparts G and H of part 172 of the HMR are currently not specified in the requirements in § 173.150(f)(3). It was never intended to exempt such shipments from these requirements. To correct this oversight, in the NPRM, we proposed to revise § 173.150(f)(3) to clarify that the emergency response information and training requirements apply to a shipment of a combustible liquid in a bulk packaging or to a combustible liquid that is a hazardous substance, hazardous waste, or a marine pollutant. No comments were received on this issue; therefore, the proposal is adopted without change in this final rule.
The NPRM proposed to add a new paragraph (p) to § 172.203 that would require each person who offers for transportation an infectious substance that is regulated as a select agent by the Centers for Disease Control and Prevention of the Department of Health and Human Services to include the words “select agent” in association with the basic shipping description on the shipping paper that accompanies the shipment. The proposal was intended to enable carriers to identify select agent shipments that are subject to the security plan requirements in subpart I of part 172 of the HMR.
Of the three comments received on this issue, the American Trucking Associations (ATA) and the American Society of Safety Engineers (ASSE) support the proposals. In ATA's words:
Following publication of RSPA's final rule requiring motor carriers that transport certain “select agents” to develop security plans, ATA raised the issue that motor carriers do not have the ability to determine whether a particular package contains a select agent unless that fact is communicated by the shipper. As such, we applaud RSPA for promptly addressing the issue and proposing to require each person who offers a select agent for transportation to include the words “Select Agent” in association with the basic shipping description on the shipping paper that accompanies the shipment.
FEDEX opposes this provision suggesting that identifying shipments as select agents on shipping papers could create a security risk by drawing attention to the shipment. We agree. Also, there are other ways for this information to be communicated, such as by contractual arrangement or prior notification by phone call. The shipper's security plan must address en route security (
The proposal in the NPRM is not adopted in this final rule. We continue to believe, however, that a shipper should communicate that a package contains a select agent to the carrier in order for the carrier to apply security plan measures to the shipment. We encourage shippers to provide this information to carriers. If a carrier is not sure whether a package contains a select agent, the carrier should request this information from the shipper. Although we are not adopting a new notification or paperwork requirement in this final rule, we may address this issue in a future rulemaking.
This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. The regulated industry may incur minimal costs to comply with the provision of this final rule, most notably the new marking requirements for non-odorized shipments of LPG. We note, however, that many shippers already mark LPG packages and containers “NOT ODORIZED” to conform with the NFPA Standard 58 for LPG and, further, that the new marking requirement may be met using an inexpensive pressure-sensitive vinyl or adhesive-backed marking.
The small costs that may be incurred, however, are more than offset by the benefits that will accrue because of the provisions in this final rule that provide the industry with increased flexibility in meeting hazard communication requirements. For example, this final rule expands the current exception for neckring marking of cylinders transported in all modes, permits marking and placards to remain on packagings containing a hazardous substance below its RQ, and provides increased flexibility for use of the FUMIGANT marking. In addition, the final rule will enhance the safe transport of hazardous materials by clarifying the requirements of the emergency response telephone number on shipping papers and the emergency response and training requirements for shipments of combustible liquids in bulk packagings. The compliance costs associated with requirements in this final rule are minimal. Moreover, this final rule should reduce compliance costs for most of the regulated industry by providing for increased flexibility and new exceptions from current regulatory requirements.
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This rule would preempt State, local, and Indian tribe requirements but does not contain any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
The Federal hazardous materials transportation law, 49 U.S.C. 5101-5127, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain subjects:
(1) The designation, description, and classification of hazardous materials;
(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;
(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or
(5) The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.
This final rule addresses subject items 1, 2, and 3 above and preempts State,
Federal hazardous materials transportation law provides at § 5125(b)(2) that, if DOT issues a regulation concerning any of the subjects, DOT must determine and publish in the
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.
The Regulatory Flexibility Act (5 U.S.C. 601
In addition, in this final rule, we are making several clarifications and editorial revisions to current hazard communication requirements.
This final rule was developed under the assumption that small businesses make up the overwhelming majority of entities that will be subject to its provisions. Thus, we considered how to minimize expected compliance costs as we developed this final rule. For example, to minimize the burden associated with the new ODORANT marking requirement, we are permitting rail cars in mixed service to be permanently marked and are providing an extended compliance period. Other changes provide clarification of certain provisions to eliminate confusion and enhance compliance. In addition, several exceptions from current requirements to decrease compliance burdens are included in this final rule.
Under the Paperwork Reduction Act of 1995, no person is required to respond to a collection of information unless it displays a valid OMB control number. This final rule does not propose any new information collection requirements.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading of this document to cross-reference this action with the Unified Agenda.
This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objectives of the rule.
The National Environmental Policy Act of 1969 (NEPA) requires Federal agencies to consider the consequences of major federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. The improvements to the hazard communication system in this final rule will have a net positive effect on the environment by improving response to and mitigation of incidents involving hazardous materials in transportation. We have determined that there would be no significant environmental impact associated with this final rule.
Exports, Hazardous materials transportation, Hazardous waste, Imports, Reporting and recordkeeping requirements.
Hazardous materials transportation, Hazardous waste, Labels, Markings, Packaging and containers, Reporting and record keeping requirements.
Shippers—General requirements for shipments and packagings.
49 U.S.C. 5101-5127, 44701; 49 1.45 and CFR 1.53; Pub L. 101-410 section 4 (28 U.S.C. 2461); Pub. L. 104-134, section 31001.
(b)
49 U.S.C. 5101-5127; 49 CFR 1.53.
(f)
(d)
(e)
(c) After September 30, 2006, no person may offer for transportation or transport a tank car or multi-unit tank car tank containing liquefied petroleum gas (LPG) that is unodorized unless it is legibly marked NON-ODORIZED or NOT ODORIZED on two opposing sides near the marked proper shipping name required by paragraphs (a)(1) and (a)(2) of this section, or near the placards. The NON-ODORIZED or NOT ODORIZED marking may appear on a tank car or multi-unit tank car tank used for both unodorized and odorized LPG.
(b) * * *
(a) * * *
(1) A Dewar flask meeting the requirements in § 173.320 of this subchapter or a cylinder containing a Division 2.1, 2.2, or 2.3 material that is—
(i) Not overpacked; and
(ii) Durably and legibly marked in accordance with CGA Pamphlet C-7, Appendix A (IBR; see § 171.7 of this subchapter).
(d) * * *
(5) The following color standards in the PANTONE
(i) For Red—Use PANTONE
(ii) For Orange—Use PANTONE
(iii) For Yellow—Use PANTONE
(iv) For Green—Use PANTONE
(v) For Blue—Use PANTONE
(vi) For Purple—Use PANTONE
(6) Where specific colors from the PANTONE MATCHING SYSTEM
(7) The specified label color must extend to the edge of the label in the area designated on each label, except for the CORROSIVE, RADIOACTIVE YELLOW-II, and RADIOACTIVE YELLOW-III labels on which the color must extend only to the inner border.
(e) * * *
(f) * * *
(9) For Class 9, a CLASS 9 placard is not required for domestic transportation, including that portion of international transportation, defined in § 171.8 of this subchapter, which occurs within the United States. However, a bulk packaging must be marked with the appropriate identification number on a CLASS 9 placard, an orange panel, or a white square-on-point display
(b) Each bulk packaging that is required to be placarded when it contains a hazardous material, must remain placarded when it is emptied, unless it—
(1) Is sufficiently cleaned of residue and purged of vapors to remove any potential hazard;
(2) Is refilled, with a material requiring different placards or no placards, to such an extent that any residue remaining in the packaging is no longer hazardous; or
(3) Contains the residue of a hazardous substance in Class 9 in a quantity less than the reportable quantity, and conforms to § 173.29(b)(1) of this subchapter.
(d) * * *
(3) Upon visual examination, a color on a placard must fall within the color tolerances displayed on the appropriate Hazardous Materials Label and Placard Color Tolerance Chart (see § 172.407(d)(4)). As an alternative, the PANTONE® formula guide coated/uncoated as specified for colors in § 172.407(d)(5) may be used.
(a) * * *
(2) The telephone number of a person who is either knowledgeable of the hazardous material being shipped and has comprehensive emergency response and incident mitigation information for that material, or has immediate access to a person who possesses such knowledge and information. A telephone number that requires a call back (such as an answering service, answering machine, or beeper device) does not meet the requirements of paragraph (a) of this section; and
49 U.S.C. 5101-5127; 44701; 49 CFR 1.45, 1.53.
(e) * * *
(1) The fumigated lading is unloaded; or
(2) A fumigated closed transport vehicle or freight container has been completely ventilated either by opening the doors of the transport vehicle or freight container or by mechanical ventilation to ensure no harmful concentration of gas remains after fumigation has been completed.
(c) A non-bulk packaging containing only the residue of a hazardous material covered by Table 2 of § 172.504 of this subchapter that is not a material poisonous by inhalation or its residue shipped under the subsidiary placarding provisions of § 172.505—
(h) A package that contains a residue of a hazardous substance, Class 9, listed in the § 172.101 Table, Appendix A, Table I, that does not meet the definition of another hazard class and is not a hazardous waste or marine pollutant, may remain marked, labeled and, if applicable, placarded in the same manner as when it contained a greater quantity of the material even though it no longer meets the definition in § 171.8 of this subchapter for a hazardous substance.
(f) * * *
(3) * * *
(vii) Packaging requirements of subpart B of this part and, in addition, non-bulk packagings must conform with requirements of § 173.203;
(viii) The requirements of §§ 173.1, 173.21, 173.24, 173.24a, 173.24b, 174.1, 177.804, 177.817, 177.834(j), and 177.837(d) of this subchapter;
(x) Emergency response information requirements of subpart G of part 172.