Forest Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Defense Acquisition Regulations System
Federal Energy Regulatory Commission
Fiscal Service
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Indian Affairs Bureau
National Park Service
Antitrust Division
Parole Commission
Employment and Training Administration
Pension and Welfare Benefits Administration
Fiscal Service
Federal Aviation Administration
Maritime Administration
Pipeline and Hazardous Materials Safety Administration
Fiscal Service
Foreign Assets Control 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.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Federal Labor Relations Authority.
Final rule; technical amendments.
The Federal Labor Relations Authority (Authority) is amending sections of part 2429 of its Regulations. The amendments, described below, make technical changes to the regulations regarding the address to which filings must be sent and the number of copies to be filed.
William R. Tobey, Acting Executive Director, (202) 218-7999.
The Federal Labor Relations Authority (Authority) is making two technical changes to part 2429 of the Authority's Regulations, 5 CFR part 2429. First, the filing address located in § 2429.24(a) is changed to reflect the new name of the office with which filings must be made. Second, § 2429.25 is amended to require five legible copies to be provided with the filing of the original, rather than the current requirement of four legible copies.
Publication of this document constitutes final agency action on these changes under the Administrative Procedure Act (5 U.S.C. 553). Notice and public procedures are unnecessary because the Authority is making only non-substantive technical changes.
The Authority for good cause finds that prior notice and opportunity for comment on these changes are unnecessary pursuant to 5 U.S.C. 553(b)(3)(B) because the amendments to the affected sections are merely technical in nature and propose no substantive changes regarding which public comment could be solicited.
This Final Rule is made effective upon publication in the
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), I have determined that this regulation, as amended, will not have a significant impact on a substantial number of small entities, because this rule only applies to federal employees, federal agencies, and labor organizations representing federal employees.
This rule change will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
The amended regulations contain no additional information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501,
Administrative practice and procedure, Government employees, Labor management relations.
1. The authority cited for part 2429 continues to read as follows:
5 U.S.C. 7134; 2429.18 also issued under 28 U.S.C. 2112(a).
(a) All documents filed or required to be filed with the Authority pursuant to this subchapter shall be filed with the Chief, Case Intake and Publication, Office of Case Adjudication, Federal Labor Relations Authority, Docket Room, Suite 200, 1400 K Street, NW., Washington, DC 20424-0001 (telephone: (202) 218-7740) between 9 a.m. and 5 p.m., Monday through Friday (except Federal holidays). Documents hand-delivered for filing must be presented in the Docket Room not later than 5 p.m. to be accepted for filing on that day.
Unless otherwise provided by the Authority or the General Counsel, or their designated representatives, as appropriate, or under this subchapter, and with the exception of any prescribed forms, any document or paper filed with the Authority, General Counsel, Administrative Law Judge, Regional Director, or Hearing Officer, as appropriate, under this subchapter, together with any enclosure filed therewith, shall be submitted on 8
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the regulation for Regattas and Marine Parades found at 33 CFR 100.101 for the annual Harvard-Yale Regatta, Thames River, New London, CT from 2 p.m. to 5 p.m. on June 14, 2008. This action is necessary to control the anticipated heavy recreational vessel traffic of both event participants and observers, and other waterways users within the immediate vicinity of the event, thus providing for the safety of life and property of the maritime community on the affected navigable waters. During the enforcement period, no person or vessel may enter, transit, or remain in the regulated area within the Thames River, as detailed in 33 CFR 100.101, unless participating in the event or unless authorized by the Coast Guard patrol commander.
The regulations in 33 CFR 100.101 will be effective from 2 p.m. to 5 p.m. on June 14, 2008.
Lieutenant D. Miller, Chief, Waterways Management Division, Coast Guard Sector Long Island Sound at (203) 468-4596.
The Coast Guard will enforce the permanent special local regulation found in 33 CFR 100.101 concerning the Harvard-Yale Regatta, Thames River, New London, CT from 2 p.m. to 5 p.m. on June 14, 2008. Under the provisions of 33 CFR 100.101, a portion of the navigable waters of the Thames River will be closed during the effective period to all persons and vessel traffic, except for vessels participating in the event and local, state or Coast Guard patrol craft. Further, 33 CFR 100.101 provides regulations for mooring, anchoring and transiting near the event race course. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
This notice is issued under the authority of 33 CFR 100.101 and 5 U.S.C. 552(a). In addition to this notice in the
Coast Guard, DHS.
Temporary final rule; request for comments.
The Coast Guard is establishing a temporary safety zone upon specified waters of the Anacostia River. This action is necessary to provide for the safety of life on navigable waters during scheduled fireworks displays launched along the shoreline near the newly-constructed Washington Nationals Ballpark, in Washington, DC. This action will restrict vessel traffic in a portion of the Anacostia River.
This rule is effective from April 25, 2008 through September 19, 2008.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0338 and are available online at
If you have questions on this temporary rule, call Mr. Ronald L. Houck, Coast Guard Sector Baltimore, at (410) 576-2674 or (410) 576-2693. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) and (d)(3), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this regulation effective less than 30 days after publication in the
Although we did not publish a notice of proposed rulemaking, we encourage you to participate in this rulemaking by submitting comments and related materials. If you do so, please include your name and address, identify the docket number for this rulemaking (USCG-2008-0338), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
Fireworks displays are frequently held from locations on or near the navigable waters of the United States. The accidental discharge of fireworks and falling hot embers or other debris are a safety concern during such events. The Coast Guard has the authority to impose appropriate controls on marine events that may pose a threat to persons, vessels and facilities under its jurisdiction. The purpose of this rule is to promote maritime safety, and to protect mariners transiting the area from the potential hazards associated with a fireworks display. The rule is needed to
During the 2008 Major League Baseball season, the Washington Nationals will sponsor a series of scheduled fireworks displays launched from the shoreline along the Anacostia River near the Washington Nationals Ballpark, in southeast Washington, DC. The planned events include a test launch of the aerial fireworks display during the “seventh inning stretch” and a five-minute aerial fireworks display launched at the conclusion of the baseball game. Due to the need for vessel control during the fireworks display, vessel traffic will be restricted to provide for the safety of spectators and transiting vessels.
The Captain of the Port Baltimore, Maryland is establishing a safety zone that will be enforced during scheduled fireworks displays held over the Anacostia River, near the Washington Nationals Ballpark, in Washington, DC. This rule establishes a safety zone on the waters of the Anacostia River, within a radius of 350 feet around a fireworks discharge site, located at position latitude 38°52′18″ N, longitude 077°00′20″ W. The rule will impact the movement of all vessels operating in a specified area of the Anacostia River, from 7:30 p.m. through 11:30 p.m. on the following dates: April 25, 2008; May 2, 2008; May 9, 2008; May 23, 2008; June 6, 2008; June 20, 2008; June 27, 2008; July 11, 2008; August 1, 2008; August 15, 2008; August 29, 2008; and September 19, 2008.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. There is little commercial vessel traffic during the enforcement periods. Because the safety zone lies entirely outside the federal navigation channel, vessel operators may transit safely around the zone.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to operate, remain or anchor within certain waters of the Anacostia River, in Washington, DC, from 7:30 p.m. through 11:30 p.m. on April 25, 2008; May 2, 2008; May 9, 2008; May 23, 2008; June 6, 2008; June 20, 2008; June 27, 2008; July 11, 2008; August 1, 2008; August 15, 2008; August 29, 2008; and September 19, 2008. Because the zone is of limited size and duration, it is expected that there will be minimal disruption to the maritime community. Before the effective period, the Coast Guard will issue maritime advisories widely available to users of the river to allow mariners to make alternative plans for transiting the affected area. In addition, smaller vessels not constrained by their draft, which are more likely to be small entities, may transit around the safety zone.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g.), of the Instruction, from further environmental documentation. The rule establishes a temporary safety zone.
A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a) Definitions. For the purposes of this section,
(b) Location. The following area is a safety zone: all waters of the Anacostia River, surface to bottom, within a radius of 350 feet around a fireworks discharge site which will be located at position latitude 38°52′18″ N, longitude 077° 00′20″ W. All coordinates reference North American Datum 1983.
(c) Regulations:
(1) The general regulations governing safety zones, found in Sec. 165.23, apply to the safety zone described in paragraph (b) of this section.
(2) Entry into or remaining in this zone is prohibited, unless authorized by the Captain of the Port, Baltimore, Maryland.
(3) Persons or vessels requiring entry into or passage through the moving safety zone must first request authorization from the Captain of the Port, Baltimore, Maryland to seek permission to transit the area. The Captain of the Port, Baltimore, Maryland can be contacted at telephone number (410) 576-2693. The Coast Guard vessels enforcing this section can be contacted on Marine Band Radio VHF Channel 16 (156.8 MHz). Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light, or other means, the person or vessel shall proceed as directed. If permission is granted, all persons or vessels must comply with the instructions of the Captain of the Port, Baltimore, Maryland, and proceed at the minimum speed necessary to maintain a safe course while within the zone.
(d) Enforcement. The U.S. Coast Guard may be assisted in the patrol and enforcement of the zone by Federal, State and local agencies.
(e) Enforcement periods. This section will be enforced from 7:30 p.m. through 11:30 p.m. on April 25, 2008; May 2, 2008; May 9, 2008; May 23, 2008; June 6, 2008; June 20, 2008; June 27, 2008; July 11, 2008; August 1, 2008; August 15, 2008; August 29, 2008; and September 19, 2008.
Department of Veterans Affairs.
Final rule.
The Department of Veterans Affairs (VA) is amending its regulations regarding the authority to provide a Government-furnished headstone or marker for placement on already marked graves of eligible veterans in private cemeteries. Pursuant to section 203 of the Dr. James Allen Veteran Vision Equity Act of 2007, Congress has authorized VA to make this provision permanent and retroactive to November 1, 1990. This final rule is necessary to incorporate a statutory amendment into VA regulations.
Lindee Lenox (41A1), Director of Memorial Programs Service (MPS), National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Telephone: (202) 501-3060 (this is not a toll-free number).
VA's National Cemetery Administration (NCA) is responsible for administering VA's headstone and marker program. Since the transfer of the program to VA from the Department of the Army in 1973, VA has furnished more than 9.8 million headstones and markers. In fiscal year 2007, NCA furnished 361,115 markers for eligible veterans' graves located around the world. The original purpose of the program, which began during the Civil War, was based on the principle that no veteran should lie in an unmarked grave. From October 18,
Prior to passage of the Veterans Education and Benefits Expansion Act of 2001, Public Law 107-103, VA was restricted by statute from furnishing a marker for an already marked grave. Section 502 of the Act established a 5-year pilot program that directed VA to furnish an appropriate headstone or marker for the graves of eligible veterans buried in private cemeteries, regardless of whether the grave was already-marked with a privately purchased marker. Public Law 107-103 granted this authority for graves of veterans who died on or after the date of the law's enactment, December 27, 2001. Public Law 107-330, the Veterans Benefits Act of 2002, expanded VA authority to issue a second marker for privately marked graves of eligible veterans interred in private cemeteries whose death occurred on or after September 11, 2001.
The second marker authority under Public Law 107-103 expired on December 31, 2006; however, Public Law 109-461 extended this authority through December 31, 2007. Public Law 110-157, the Dr. James Allen Veteran Vision Equity Act of 2007, rescinds the expiration date of December 31, 2007, and makes the authority permanent. It also makes the second marker benefit retroactive to November 1, 1990, and allows VA to provide a headstone or marker for the graves of individuals dying on or after that date, regardless of whether the grave is marked with a privately-purchased headstone or marker.
VA does not pay the cost to install a Government headstone or marker in a private cemetery, nor does VA have jurisdiction over policies established by private cemeteries. Therefore, the applicant must obtain certification on VA Form 40-1330 from a cemetery representative that the type and placement of the Government-furnished headstone or marker requested adheres to the policies and guidelines of the private cemetery where the grave is located.
This final rule amends 38 CFR 38.631 to make it consistent with the amended statute.
Because this amendment merely reflects a statutory change, this rule-making is exempt from the prior notice-and-comment and delayed-effective-date requirements of 5 U.S.C. 553.
This document contains no new provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). The Office of Management and Budget (OMB) previously approved all collections of information referenced in this final rule under control number 2900-0222. We cannot estimate at this time the additional number of claims that would be generated by the retroactive applicability date, but we will consider this based on experience when the control number comes up for renewal on October 31, 2010.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined not to be a significant regulatory action under the Executive Order because it is unlikely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The initial and final regulatory flexibility analysis requirements of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 601-612, are not applicable to this rule because a notice of proposed rulemaking is not required for this rule. Even so, the Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act. This final rule would not affect any small entities. Only individual VA beneficiaries would be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is also exempt from the regulatory flexibility analysis requirements of sections 603 and 604.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule would have no such effect on State, local, or tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance program number and title for this final rule is 64.202, Procurement of Headstones and Markers and/or Presidential Memorial Certificates.
Administrative practice and procedure, Cemeteries, Veterans.
38 U.S.C. 107, 501, 512, chapter 24, 7105, and as noted in specific sections.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement (DFARS) to update an Internet address and a cross-reference.
Ms. Michele Peterson, Defense Acquisition Regulations System, OUSD(AT&L)DPAP(DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone 703-602-0311; facsimile 703-602-7887.
This final rule amends DFARS text as follows:
○
○
Government procurement.
41 U.S.C. 421 and 48 CFR Chapter 1.
(d) Order code assignments can be found at
252.211-7003 [AMENDED]
Defense Acquisition Regulations System, Department of Defense (DoD).
Interim rule with request for comments.
DoD has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 852 of the National Defense Authorization Act for Fiscal Year 2007. Section 852 requires DoD to prescribe regulations to ensure that pass-through charges on contracts or subcontracts that are entered into for or on behalf of DoD are not excessive in relation to the cost of work performed by the relevant contractor or subcontractor.
You may submit comments, identified by DFARS Case 2006-D057, using any of the following methods:
○ Federal eRulemaking Portal:
○ E-mail:
○ Fax: 703-602-7887.
○ Mail: Defense Acquisition Regulations System, Attn: Ms. Sandra Morris, OUSD (AT&L) DPAP (CPF), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062.
○ Hand Delivery/Courier: Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402.
Comments received generally will be posted without change to
Ms. Sandra Morris, 703-602-0296.
DoD published an interim rule at 72 FR 20758 on April 26, 2007, to implement Section 852 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364). Section 852 requires DoD to prescribe regulations to ensure that pass-through charges on contracts or subcontracts (or task or delivery orders) that are entered into for or on behalf of DoD are not excessive in relation to the cost of work performed by the relevant contractor or subcontractor. To enable DoD to ensure that pass-through charges are not excessive, the interim rule included a solicitation provision and a contract clause requiring offerors and contractors to identify the percentage of work that will be subcontracted and, when subcontract costs will exceed 70 percent of the total cost of work to be performed, to provide information on indirect costs and profit and value added with regard to the subcontract work.
DoD points out that the statute requires that DoD not pay excessive pass-through charges, and DoD believes that the rule represents appropriate implementation of the statute. The rule is intended to protect the Government from those situations where there appears to be an agreement with a contractor to perform the contract scope of work, including “managing” subcontractors, then after award, the contractor subcontracts substantially all the effort without providing the required value-added subcontract management functions that were expected. There is no intent in this rule to disrupt the subcontracting process or other arrangements for firms that furnish supplies and services.
The rule is to be applied consistent with existing Cost Accounting Standard (CAS) and Federal Acquisition Regulation (FAR) rules related to subcontract management, indirect cost allocation, and profit analysis.
Adding value to the contract includes contractor performance of subcontract management functions that are consistent with the contractor's subcontract management policies and procedures (these functions are normally described in the contractor's CAS disclosure statement and/or accounting policies). When subcontract management is part of the contractor's proposal and scope of work, indirect costs must be applied consistent with existing CAS and FAR allocation rules. This rule does not discourage other business practices (e.g., distributors, vendors) when the contracting officer determines that these arrangements add value, which will be determined on a case-by-case basis using business judgment (FAR 1.602-2).
To ensure that the Government can make a determination as to whether or not excessive pass-through charges exist, the rule incorporates a reporting threshold that affords the contracting officer the ability to understand what functions the contractor will be performing (e.g., consistent with the contractor's disclosed practice) and will be providing “added value,” whether it be before award, or if the contractor subsequently decides to subcontract substantially all of the effort. The rule provides a recovery mechanism for those situations where a contractor subcontracts all or substantially all the performance of the contract and does not perform the subcontract management functions, or other value-added functions, that were charged to the Government through indirect costs and related profit.
The intent of the reporting threshold is for the contracting officer to make a determination that excessive pass-through charges do not exist at the time of award when at least 70 percent of the work will be subcontracted, based on contractor demonstrated functions, and to not re-address this determination during contract performance. To that end, this interim rule includes an Alternate I to the clause at 252.215-7004 to address those instances in which the contracting officer has made a determination prior to contract award. It also incorporates a requirement for the contractor to notify the contracting officer in writing if the contractor decides after award to subcontract more than 70 percent of the total cost of the work to be performed, and to verify in that document that the contractor will add value consistent with the definition in the contract clause. If the contractor does not perform the demonstrated functions or does not add value, the rule makes the excessive pass-through charges unallowable and provides for recoupment of the excessive pass-through charges consistent with the legislation.
DoD recognizes that there are acquisition strategies where substantial subcontracting will exist, and this rule provides for early notification so that the parties have an understanding of the value that will be added by the contractor. DoD also recognizes that there will be business arrangements, such as buying from a distributor, where the contracting activity has determined there is “added value” by the distributor or there is no other method for obtaining the parts. The 70 percent threshold is a reporting mechanism so that the parties have an opportunity to address potential excessive pass-through charges either before award, or before subcontract award if a decision (e.g., make/buy) to subcontract more than 70 percent was made by the contractor after award. Once the contracting officer determines there are no excessive pass-through charges (e.g., the contractor is performing acceptable subcontract management functions or otherwise adds value), there is no subsequent review for excessive pass-through charges unless the contractor did not perform subcontract management functions.
The 70 percent reporting threshold is meant to capture those contracting situations where there is a higher risk that substantially all of the effort could be subcontracted without providing the required subcontract management or other value-added functions. Excessive pass-through charges are unallowable on any subcontracting effort when the contractor or subcontractor does not provide subcontract management consistent with its policies and procedures or does not otherwise provide value to the contract or subcontract.
The following is a discussion of the specific comments received in response to the interim rule published at 72 FR 20758 on April 26, 2007:
a.
b.
c.
d.
a.
However, a post-award notification is required when a contractor changes its decision to subcontract (e.g., make/buy) after award from subcontracting less than 70 percent to a subsequent decision to subcontract more than 70 percent. Upon written notification, the contracting officer will rely on the contractor's written notice that the contractor will provide “added value” consistent with the definition in the clause.
Implementation of the statute requires that DoD “not pay” excessive pass-through charges. Post-award adjustments are required in the clause should a contractor decide after contract award to subcontract all the effort without providing “added value” to the contract or subcontract.
b.
c.
d.
a.
b.
c.
d.
e.
f.
g.
h.
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b.
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d.
e.
f.
g.
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(i) No value.
(ii) Negligible value. The definition of this term should be expanded to link it to the specific work to be performed, based on the facts and circumstances of each such contract or subcontract. Thus, the definition would state: “No or negligible value” means the Contractor or subcontractor cannot demonstrate to the Contracting Officer that its effort will add substantive value to accomplishing the work to be performed under the specific contract or subcontract, based on the facts and circumstances of each contract or subcontract (
(iii) Costs of managing subcontracts.
(iv) Applicable indirect costs or profit.
(v) Demonstrate.
(vi) Substantive value.
(vii) “Value” in “value added.”
(viii) Excessive. “Excessive pass-through charge” needs to be more clearly defined, and specific examples
b.
c.
d.
e.
f.
g.
(i) Inter-organizational transfers, while considered a subcontract with regard to pricing, should not be considered a subcontract for the purpose of pass-through charges, as they are not considered subcontracts within a company.
(ii) Many firms employ contract labor to supplement their own staff. These subcontract laborers are integrated into the contractor's work staff and report directly to and are supervised by company managers in much the same manner as its own employees. Accordingly, it is our belief that these categories of employees should be excluded from the subcontracting base.
(iii) Will the analysis of subcontract labor hours be made on the basis of the number of labor hours involved or the cost of those labor hours? In general, there is a tendency to subcontract work which involves routine labor categories while retaining more highly skilled and highly paid labor categories in-house. There are different types of material and supply purchases. Formerly Government-furnished property has been shifted to contractor-acquired; the rule may result in contractors being unwilling to continue this process.
h.
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DoD Response: DoD has added a definition of “added value” to clarify misunderstandings of the rule. The rule in no way prohibits or inhibits contracting officers from considering contractor risks when negotiating profit under existing regulations. Profit would only be eliminated (or possibly an award not made) if the scope of work was being subcontracted and the contractor or subcontractor did not perform any “added value” functions.
This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
This interim rule contains an information collection requirement. The Office of Management and Budget (OMB) has approved the information collection requirement for use through October 31, 2008, under OMB Control Number 0704-0443. DoD proposes that OMB extend its approval for use for three additional years and invites comments on the following: (a) Whether the collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. The following is a summary of the information collection requirement:
Written comments and recommendations on the information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503, with a copy to the Defense Acquisition Regulations System, Attn: Ms. Sandra Morris, OUSD (AT&L) DPAP (CPF), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Comments can be received from 30 to 60 days after the date of this notice, but comments to OMB will be most useful if received by OMB within 30 days after the date of this notice.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Acquisition Regulations System, Attn: Ms. Sandra Morris, OUSD (AT&L) DPAP (CPF), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062.
A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements Section 852 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364). Section 852 requires DoD to prescribe regulations to ensure that pass-through charges on contracts or subcontracts (or task or delivery orders) that are entered into for or on behalf of DoD are not excessive in relation to the cost of work performed by the relevant contractor or subcontractor. Public comments received on the previous interim rule indicate that there is an immediate need to amend DFARS policy on this subject, to eliminate significant misunderstandings that could cause serious contracting problems. Comments received in response to this interim rule will be considered in the formation of the final rule.
Government procurement.
41 U.S.C. 421 and 48 CFR Chapter 1.
(3) Use the provision at 252.215-7003, Excessive Pass-Through Charges—Identification of Subcontract Effort, in solicitations (including task or delivery orders)—
(i) With a total value that exceeds the threshold for obtaining cost or pricing data in accordance with FAR 15.403-4, except when the resulting contract is expected to be—
(A) A firm-fixed-price contract awarded on the basis of adequate price competition;
(B) A fixed-price contract with economic price adjustment, awarded on the basis of adequate price competition;
(C) A firm-fixed-price contract for the acquisition of a commercial item; or
(D) A fixed-price contract with economic price adjustment, for the acquisition of a commercial item; or
(ii) With a total value at or below the threshold for obtaining cost or pricing data in accordance with FAR 15.403-4, when the contracting officer determines that inclusion of the provision is appropriate.
(4)(i) Use the clause at 252.215-7004, Excessive Pass-Through Charges, in solicitations and contracts (including task or delivery orders)—
(A) With a total value that exceeds the threshold for obtaining cost or pricing data in accordance with FAR 15.403-4, except for—
(B) With a total value at or below the threshold for obtaining cost or pricing data in accordance with FAR 15.403-4, when the contracting officer determines that inclusion of the clause is appropriate.
(ii) Use the clause with its Alternate I when the contracting officer determines that the prospective contractor has demonstrated that its functions provide added value to the contracting effort and there are no excessive pass-through charges.
(d) Indirect costs related to excessive pass-through charges, as defined in the clause at 252.215-7004, are unallowable.
As prescribed in 215.408(3), use the following provision:
(a)
(b)
(c)
(1) The offeror shall identify in its proposal the total cost of the work to be performed by the offeror, and the total cost of the work to be performed by each subcontractor, under the contract, task order, or delivery order.
(2) If the offeror intends to subcontract more than 70 percent of the total cost of work
(i) The amount of the offeror's indirect costs and profit applicable to the work to be performed by the subcontractor(s); and
(ii) A description of the added value provided by the offeror as related to the work to be performed by the subcontractor(s).
(3) If any subcontractor proposed under the contract, task order, or delivery order intends to subcontract to a lower-tier subcontractor more than 70 percent of the total cost of work to be performed under its subcontract, the offeror shall identify in its proposal—
(i) The amount of the subcontractor's indirect costs and profit applicable to the work to be performed by the lower-tier subcontractor(s); and
(ii) A description of the added value provided by the subcontractor as related to the work to be performed by the lower-tier subcontractor(s).
As prescribed in 215.408(4), use the following clause:
(a)
(b)
(c)
(1) The Contractor changes the amount of subcontract effort after award such that it exceeds 70 percent of the total cost of work to be performed under the contract, task order, or delivery order. The notification shall identify the revised cost of the subcontract effort and shall include verification that the Contractor will provide added value; or
(2) Any subcontractor changes the amount of lower-tier subcontractor effort after award such that it exceeds 70 percent of the total cost of the work to be performed under its subcontract. The notification shall identify the revised cost of the subcontract effort and shall include verification that the subcontractor will provide added value as related to the work to be performed by the lower-tier subcontractor(s).
(d)
(1) For fixed-price contracts, the Government shall be entitled to a price reduction for the amount of excessive pass-through charges included in the contract price; and
(2) For other than fixed-price contracts, the excessive pass-through charges are unallowable in accordance with the provisions in Subpart 31.2 of the Federal Acquisition Regulation (FAR) and Subpart 231.2 of the Defense FAR Supplement.
(e)
(2) For those subcontracts to which paragraph (f) of this clause applies, the Contracting Officer, or authorized representative, shall have the right to examine and audit all the subcontractor's records (as defined at FAR 52.215-2(a)) necessary to determine whether the subcontractor proposed, billed, or claimed excessive pass-through charges.
(f)
(1) Firm-fixed-price subcontracts awarded on the basis of adequate price competition;
(2) Fixed-price subcontracts with economic price adjustment, awarded on the basis of adequate price competition;
(3) Firm-fixed-price subcontracts for the acquisition of a commercial item; or
(4) Fixed-price subcontracts with economic price adjustment, for the acquisition of a commercial item.
(b)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific ocean perch for vessels participating in the Bering Sea and Aleutian Islands (BSAI) trawl limited access fishery in the Central Aleutian District of the BSAI. This action is necessary to prevent exceeding the 2008 Pacific ocean perch total allowable catch (TAC) specified for vessels participating in the BSAI trawl limited access fishery in the Central Aleutian District of the BSAI.
Effective 1200 hrs, Alaska local time (A.l.t.), May 8, 2008, through 1200 hrs, A.l.t., September 1, 2008.
Jennifer Hogan, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2008 Pacific ocean perch TAC allocated as a directed fishing allowance to vessels participating in the BSAI trawl limited access fishery in the Central Aleutian District of the BSAI is
In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2008 Pacific ocean perch TAC allocated to vessels participating in the BSAI trawl limited access fishery in the Central Aleutian District of the BSAI will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch by vessels participating in the BSAI trawl limited access fishery in the Central Aleutian District of the BSAI.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific ocean perch by vessels participating in the BSAI trawl limited access fishery in the Central Aleutian District of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of May 7, 2008.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and § 679.91 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
Bombardier Aerospace has completed a system safety review of the CL-600-2C10/CL-600-2D24 aircraft fuel system against new fuel tank safety standards, introduced in Chapter 525 of the Airworthiness Manual through Notice of Proposed Amendment (NPA) 2002-043. The identified non-compliances were assessed using Transport Canada Policy Letter No. 525-001 to determine if mandatory corrective action is required.
This assessment showed that rupture of the fuel tank climb vent loop pipe or leakage from pipe couplings could result in fuel coming in contact with hot anti-ice ducts, creating potential fire on top of the centre fuel tank.
We must receive comments on this proposed AD by June 12, 2008.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Richard Fiesel, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228-7304; fax (516) 794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2008-01, dated January 3, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Bombardier Aerospace has completed a system safety review of the CL-600-2C10/CL-600-2D24 aircraft fuel system against new fuel tank safety standards, introduced in Chapter 525 of the Airworthiness Manual through Notice of Proposed Amendment (NPA) 2002-043. The identified non-compliances were assessed using Transport Canada Policy Letter No. 525-001 to determine if mandatory corrective action is required.
This assessment showed that rupture of the fuel tank climb vent loop pipe or leakage from pipe couplings could result in fuel coming in contact with hot anti-ice ducts, creating potential fire on top of the centre fuel tank. To correct the unsafe condition, this directive mandates the modification of the fuel tank climb vent loop by installing shrouding boots that direct leaked fuel safely overboard.
The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).
Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered
In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.
We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
Bombardier has issued Service Bulletin 670BA-28-011, Revision B, dated July 4, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 297 products of U.S. registry. We also estimate that it would take about 22 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $13,768 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $4,611,816, or $15,528 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We 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 this 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 and placed it in the AD docket.
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 AD:
(a) We must receive comments by June 12, 2008.
(b) None.
(c) This AD applies to Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, serial numbers 10003 through 10169; and Model CL-600-2D24 (Regional Jet Series 900) airplanes, serial numbers 15001 though 15025; certificated in any category.
(d) Air Transport Association (ATA) of America Code 28: Fuel.
(e) The mandatory continuing airworthiness information (MCAI) states:
Bombardier Aerospace has completed a system safety review of the CL-600-2C10/CL-600-2D24 aircraft fuel system against new fuel tank safety standards, introduced in Chapter 525 of the Airworthiness Manual through Notice of Proposed Amendment (NPA) 2002-043. The identified non-
This assessment showed that rupture of the fuel tank climb vent loop pipe or leakage from pipe couplings could result in fuel coming in contact with hot anti-ice ducts, creating potential fire on top of the centre fuel tank.
To correct the unsafe condition, this directive mandates the modification of the fuel tank climb vent loop by installing shrouding boots that direct leaked fuel safely overboard.
(f) Unless already done, do the following actions.
(1) Within 4,500 flight hours after the effective date of this AD, modify the fuel tank climb vent loop pipes by installing shrouding boots according to the Accomplishment Instructions of Bombardier Service Bulletin 670BA-28-011, Revision B, dated July 4, 2007.
(2) Modification of the climb vent pipe prior to the effective date of this AD according to Bombardier Service Bulletin 670BA-28-011, dated November 7, 2005; or Revision A, dated January 22, 2007; is acceptable for compliance with the corresponding requirements of this AD.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI Canadian Airworthiness Directive CF-2008-01, dated January 3, 2008, and Bombardier Service Bulletin 670BA-28-011, Revision B, dated July 4, 2007, for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
Resulting from the assessment of fuel tank wiring installations required by SFAR 88 (Special Federal Aviation Regulation 88) and equivalent JAA/EASA (Joint Aviation Authorities/European Aviation Safety Agency) policy, BAE Systems identified two features in the Jetstream 4100 where the need for design changes was apparent. * * *
Insufficient or defective bonding in the fuel tank area, if not corrected, could lead to ignition of fuel vapours and subsequent fuel tank explosion.
We must receive comments on this proposed AD by June 12, 2008.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1175; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2008-0040, dated February 27, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Resulting from the assessment of fuel tank wiring installations required by SFAR 88 (Special Federal Aviation Regulation 88) and equivalent JAA/EASA (Joint Aviation Authorities/European Aviation Safety Agency) policy, BAE Systems identified two features in the Jetstream 4100 where the need for design changes was apparent. One of these is addressed by Service Bulletin (SB) J41-28-013 which introduces additional bonding leads between pipes, structure and various components to improve the electrical bond paths within the fuel tank areas. This design change is identified by modification number JM41659. Additionally, SB J41-28-013 provides instructions to inspect the existing bonding leads, to replace any defective leads and to examine all fuel system pipe runs in the wings to ensure appropriate clearances are maintained.
Insufficient or defective bonding in the fuel tank area, if not corrected, could lead to ignition of fuel vapours and subsequent fuel tank explosion.
For the reason stated above, this EASA Airworthiness Directive (AD) requires the installation of additional bonding leads, inspection [for defects] of existing bonding leads and [for clearance of] all fuel system pipe runs in the wings and follow-on corrective actions, as necessary.
The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).
Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.
In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.
The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.
We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
BAE Systems (Operations) Limited has issued Service Bulletin J41-28-013, Revision 1, dated January 10, 2008. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 7 products of U.S. registry. We also estimate that it would take about 80 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $1,700 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $56,700, or $8,100 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We 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 this 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 and placed it in the AD docket.
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 AD:
(a) We must receive comments by June 12, 2008.
(b) None.
(c) This AD applies to all BAE Systems (Operations) Limited Model Jetstream 4101 airplanes, certificated in any category, all serial numbers.
(d) Air Transport Association (ATA) of America Code 28: Fuel.
(e) The mandatory continuing airworthiness information (MCAI) states:
Resulting from the assessment of fuel tank wiring installations required by SFAR 88 (Special Federal Aviation Regulation 88) and equivalent JAA/EASA (Joint Aviation Authorities/European Aviation Safety Agency) policy, BAE Systems identified two features in the Jetstream 4100 where the need for design changes was apparent. One of these is addressed by Service Bulletin (SB) J41-28-013 which introduces additional bonding leads between pipes, structures and various components to improve the electrical bond paths within the fuel tank areas. This design change is identified by modification number JM41659. Additionally, SB J41-28-013 provides instructions to inspect the existing bonding leads, to replace any defective leads and to examine all fuel system pipe runs in the wings to ensure appropriate clearances are maintained.
Insufficient or defective bonding in the fuel tank area, if not corrected, could lead to ignition of fuel vapours and subsequent fuel tank explosion.
For the reason stated above, this EASA Airworthiness Directive (AD) requires the installation of additional bonding leads, inspection [for defects] of existing bonding leads and [for clearance of] all fuel system pipe runs in the wings and follow-on corrective actions, as necessary.
(f) Within 24 months after the effective date of this AD, unless already done, do the following actions.
(1) Inspect the bonding leads between ribs 1 and 9, and between ribs 16 and 19, in the left-hand (LH) and right-hand (RH) wings in accordance with paragraph 2.B.(2) of the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-28-013, Revision 1, dated January 10, 2008; and, before next flight, replace all defective bonding leads with airworthy parts in accordance with the service bulletin.
(2) Inspect all fuel system pipe runs inside the LH and RH wings in accordance with paragraph 2.B.(3) of the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-28-013, Revision 1, dated January 10, 2008; and, if incorrect clearances are found, before next flight, adjust clearances in accordance with the service bulletin.
(3) Install additional electrical bonding of components within the LH and RH wings in accordance with paragraphs 2.B.(4) to 2.B.(15) of the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-28-013, Revision 1, dated January 10, 2008.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI EASA Airworthiness Directive 2008-0040, dated February 27, 2008, and BAE Systems (Operations) Limited Service Bulletin J41-28-013, Revision 1, dated January 10, 2008, for related information.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
To prevent the possible in-flight failure of the vertical fin, leading to loss of control of the aircraft * * *
The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by June 12, 2008.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Karl Schletzbaum, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4146; fax: (816) 329-4090.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The Civil Aviation Authority of New Zealand, which is the aviation authority for New Zealand, has issued AD DCA/FU24/176C, dated September 27, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
To prevent the possible in-flight failure of the vertical fin, leading to loss of control of the aircraft * * *
The MCAI requires inspections of the vertical fin for cracking, corrosion, scratches, dents, creases or buckling and the repair of any damaged area. You may obtain further information by examining the MCAI in the AD docket.
The Civil Aviation Authority of New Zealand, which is the aviation authority for New Zealand, makes reference to Pacific Aerospace Limited Chapter 05, page 25 of the FU-24-950 Series Maintenance Manual, issued December 1978. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
We estimate that this proposed AD will affect 2 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $160, or $80 per product.
In addition, we estimate that any necessary follow-on actions would take about 24 work-hours and require parts costing $1,000, for a cost of $2,920 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We 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 this 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 and placed it in the AD docket.
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 AD:
(a) We must receive comments by June 12, 2008.
(b) None.
(c) This AD applies to FU-24 airplanes, all serial numbers, certificated in any category.
(d) Air Transport Association of America (ATA) Code 53: Fuselage.
(e) The mandatory continuing airworthiness information (MCAI) states:
To prevent the possible in-flight failure of the vertical fin, leading to loss of control of the aircraft * * *
The MCAI requires inspections of the vertical fin for cracking, corrosion, scratches, dents, creases or buckling, and the repair of any damaged area.
(f) Unless already done, after the effective date of this AD, do the following actions following Chapter 05, page 25 of the FU-24-950 Series Maintenance Manual:
(1) Before the first flight of the day, visually inspect the vertical stabilizer leading edge skin and fin for any cracking, corrosion, scratches, dents, creases or buckling, and repair as necessary. All non-transparent protective coatings and their adhesive must be removed for this inspection.
(2) Within 100 hours time-in-service (TIS) after the effective date of this AD and repetitively thereafter at intervals not to exceed 100 hours TIS, perform a detailed inspection of the vertical stabilizer leading edge skin, leading edge, fin skin, and the fin forward attachment point for any cracking, corrosion, scratches, dents, creases, or buckling to include:
(i) Inspection of the entire leading edge down to the forward attach fitting; and removal of dorsal fin extensions if installed in order to inspect the obscured areas of the fin.
(ii) Inspection of the fin skin for corrosion and cracks, paying particular attention to the center rib rivet holes and the skin joint at the fin base.
(iii) Inspection of the fin forward attachment point for corrosion, removal of the fin tip, and inspection of the top rib for cracks at the skin stiffener cut outs.
(3) If any damage is found during any inspection required in paragraph (f)(1) or (f)(2) of this AD, before further flight, obtain an FAA-approved repair scheme from the manufacturer and incorporate that repair.
(4) The following transparent polyurethane protective tapes have been assessed as suitable for use to re-protect the leading edge and may remain in situ for subsequent inspections, provided they are sound and in a condition to permit visual inspection of the skin beneath them:
You may apply for an alternative method of compliance (AMOC) for an alternative to the transparent polyurethane protective tapes listed above.
This AD differs from the MCAI and/or service information as follows:
(1) The inspections required in this AD must be performed by a person authorized under 14 CFR part 43 to perform inspections, as opposed to the MCAI, which allows the holder of a pilot license to perform the inspections.
(2) The 50-hour inspection required in the MCAI goes away because the “before each flight” inspection captures the intent.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI Civil Aviation Authority of New Zealand AD DCA/FU24/176C, dated September 27, 2007, for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking.
This action proposes to modify Class E Airspace at Roanoke, VA. Additional airspace is necessary to allow for a lower vectoring altitude known as the Minimum Vectoring Altitude (MVA) for vectoring of both Visual Flight Rule (VFR) and Instrument Flight Rule (IFR) aircraft for spacing within 20 miles of Roanoke, VA. This action would enhance the safety and airspace management around the Roanoke Regional/Woodrum Field Airport area.
Comments must be received on or before June 27, 2008.
Send comments on this rule to: U. S. Department of Transportation,
You may review the public docket containing the rule, any comments received, and any final disposition in person in the Dockets Office (see
An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Avenue, College Park, Georgia 30337.
Daryl Daniels, Airspace Specialist, System Support Group, Eastern Service Center, Air Traffic Organization, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5610.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Those wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2008-0417; Airspace Docket No. 08-AEA-20.” The postcard will be date/time stamped and returned to the commenter. All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
The FAA is considering an amendment to Part 71 of the Code of Federal Regulations (14 CFR Part 71) to modify Class E airspace at Roanoke, VA. Analysis of operations has determined that there is a need for additional Class E5 airspace extending upward from 700 feet above the surface of the Earth to enhance the management, safety, and efficiency of air traffic services in the area. Higher Minimum Vectoring Altitudes (MVAs) were established due to a change in FAA Order 8260.64, Criteria and Guidance for Radar Operations. That change recommends the FAA “provide a 300 foot buffer above the floor of controlled airspace”. This Class E airspace modification would allow the FAA at Roanoke to satisfy that requirement and lower the MVA to a point to facilitate a better operation for intercepting the glide slopes and enhance the visual approach operation at the Roanoke Airport. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface of the Earth are published in Paragraph 6005 of FAA Order 7400.9R, signed August 15, 2007, and effective September 15, 2007, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (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) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it proposes to modify Class E airspace at Roanoke, VA.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 will continue to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9R, Airspace Designations and Reporting Points, signed August 15, 2007, effective September 15, 2007, is proposed to be amended as follows:
Roanoke Regional/Woodrum Field Airport, Roanoke, VA
That airspace extending upward from 700 feet above the surface of the Earth within a 15-mile radius of Roanoke Regional/Woodrum Field Airport beginning at the 036 bearing from the airport, thence clockwise until the 128 bearing thence, within a 20-mile radius from the 128 bearing clockwise until the 273 bearing, thence direct to the point of beginning.
Legal Services Corporation.
Notice of Rulemaking Workshop and Request for Expressions of Interest in Participation in Workshop.
LSC is conducting a Rulemaking Workshop in connection with its rulemaking to consider revisions to its regulations on termination and suspension. LSC hereby solicits expressions of interest in participation in the Workshop from the regulated community, its clients, advocates, the organized bar and other interested parties.
Expressions of interest must be received by May 23, 2008.
Victor M. Fortuno, Vice President & General Counsel, Legal Services Corporation, 3333 K St., NW., Washington, DC 20007; (202) 295-1620 (phone); 202-337-6831 (fax) or
The Legal Services Corporation (“LSC”) has initiated a rulemaking to consider revisions to 45 CFR Part 1606, Termination and Debarment Procedures; Recompetition, and 45 CFR Part 1623, Suspension. As part of this rulemaking proceeding, LSC is convening a Rulemaking Workshop on June 17, 2008 from 9 a.m.-5 p.m, EDT. The Rulemaking Workshop will be held in LSC's Conference Center, on the 3rd floor of 3333 K St., NW., Washington, DC 20007.
Rulemaking Workshops [enable LSC staff to meet with stakeholders] to discuss, but not negotiate, LSC rules and regulations. * * * The Workshop will be a meeting at which the participants hold open discussions designed to elicit information about problems or concerns with the regulation (or certain aspects thereof) and provide an opportunity for sharing ideas regarding how to address those issues. The Workshop is not intended [to] develop detailed alternatives or to obtain consensus on regulatory proposals.
With this notice, LSC is inviting expressions of interest from the interested stakeholder community to participate in the Rulemaking Workshop. Expressions of interest should be forwarded in writing to Victor M. Fortuno, Vice President & General Counsel, Legal Services Corporation, via e-mail to
The Workshops will be open to public observation but only persons selected will be allowed to participate. Participants are expected to cover their own expenses (travel, lodging, etc.). LSC may consider providing financial assistance to participants for whom travel costs would represent a significant hardship and barrier to participation. Any such person should so note in his/her expression of interest for LSC's consideration.
Fish and Wildlife Service, Interior.
Proposed rule; reopening of public comment period and revisions to proposed critical habitat boundaries.
We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the proposed designation of critical habitat for
We will consider comments and information received or postmarked on or before June 12, 2008.
You may submit comments by one of the following methods:
•
•
We will not accept e-mail or faxes. We will post all comments on
Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-5901. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
We will accept written comments and information during this reopened
(1) The reasons why we should or should not designate habitat as critical habitat under section 4 of the Act (16 U.S.C. 1531
(2) Specific information on:
• The amount and distribution of
• What areas within the geographical area occupied at the time of listing that contain features essential for the conservation of the species we should include in the designation and why, and
• What areas not occupied at the time of listing are essential to the conservation of the species and why.
(3) Any proposed critical habitat areas covered by conservation or management plans that we should consider for exclusion from the designation under section 4(b)(2) of the Act. We specifically request information on any operative or draft habitat conservation plans that include
(4) Land use designations and current or planned activities in the proposed critical habitat areas and their possible impacts on proposed critical habitat for the species.
(5) Specific information concerning whether the benefits of excluding areas proposed for critical habitat within the City of San Diego subarea plan and the County of San Diego subarea plan under the San Diego Multiple Species Conservation Program (MSCP), the Carlsbad and Encinitas subarea plans under the San Diego Multiple Habitat Conservation Program (MHCP), and the Manchester Avenue Mitigation Bank under section 4(b)(2) of the Act outweigh the benefits of their inclusion in designated critical habitat.
(6) Additional scientific or commercial information that will help us to better delineate areas that contain the primary constituent elements laid out in the appropriate quantity and spatial arrangement essential for the conservation of the species, specifically, information pertaining to the amount and distribution of the primary constituent elements in Subunit 1A.
(7) Information about potential impacts that the designation of critical habitat in Subunit 1A may have on the operation of McClellan-Palomar Airport, specifically, whether the benefits of excluding this area would outweigh the benefits of including this area under section 4(b)(2) of the Act.
(8) Any foreseeable economic, national security, or other relevant impacts resulting from the proposed designation and, in particular, any impacts on small entities.
(9) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
Comments and information submitted on the proposed rule (72 FR 11945) during the initial comment period from March 14, 2007, to May 14, 2007, or the second comment period (72 FR 66122) from November 27, 2007, to December 27, 2007, do not need to be resubmitted as they have already been incorporated into the public record. Our final determination concerning the designation of critical habitat will take into consideration all written comments and any additional information we receive during all comment periods. On the basis of information provided during the public comment periods on the critical habitat proposal and the associated draft economic analysis (DEA), we may, during the development of our final determination, find that areas proposed do not meet the definition of “critical habitat” under section 3(5)(A) of the Act, or are appropriate for exclusion under section 4(b)(2) of the Act.
You may submit your comments and materials concerning our proposed rule by one of the methods listed in the
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing this notice, will be available for public inspection on
You may obtain copies of the proposed rule and DEA by mail from the Carlsbad Fish and Wildlife Office (see
It is our intent to discuss only those topics directly relevant to the designation of critical habitat in this notice. For more information on the taxonomy and biology of
On August 10, 2004, the Center for Biological Diversity and California Native Plant Society challenged our failure to designate critical habitat for
Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.
On March 14, 2007, we proposed to designate critical habitat in four units comprising a total of 1,936 ac (783 ha) (72 FR 11945). At that time we proposed to exclude 1,302 ac (527 ha) under section 4(b)(2) of the Act (72 FR 11945, March 14, 2007). In the notice of availability for the draft economic analysis (DEA) published on November 27, 2007 (72 FR 66122), we announced corrections to the proposed designation that reduced the size of several subunits. As a result of those corrections, the total identified proposed critical habitat area was reduced from 1,936 ac (783 ha) to 1,867 ac (756 ha). Of the total amount of land proposed as critical habitat, the total area proposed for exclusion from the final designation was reduced from 1,302 ac (527 ha) to 1,134 ac (459 ha). Following publication of the November 27, 2007, document, we received new information for Subunit 1A that leads us to reduce the proposed critical habitat by an additional 17 ac (7 ha). Therefore, at this time we are proposing a total of 1,850 ac (749 ha) as critical habitat for
We received two comments indicating some areas in Subunit 1A are developed as agricultural land and some areas are actively used for maintenance and navigation purposes for McClellan-Palomar Airport. Further, the Federal Aviation Administration (FAA) requested the Service to consider impacts associated with the designation of critical habitat in Subunit 1A (Palomar Airport) on the operation of McClellan-Palomar Airport. Specifically, the FAA requested that we not designate critical habitat in areas of Subunit 1A that encompass a series of navigational devices (i.e., Medium Intensity Approach Lighting System with Runway Alignment Indicator Lights (MALSRs)) and an associated dirt maintenance road. We met with the County of San Diego and the FAA at Subunit 1A on January 9, 2008, and we mapped agricultural fields and areas that are actively used for maintenance and navigation purposes at McClellan-Palomar Airport. We found that portions of the agricultural fields immediately adjacent to known occurrences of
In the March 14, 2007, proposed rule (72 FR 11945), we proposed the exclusion of and requested public comment on lands in Subunits 1A and 1B covered by the Carlsbad Habitat Management Plan (HMP; i.e., the Carlsbad Subarea Plan) under the MHCP from the designation of critical habitat under section 4(b)(2) of the Act. Upon further analysis of the Carlsbad HMP, we found that coverage of
In the March 14, 2007, proposed rule (72 FR 11945), we proposed the exclusion of, and requested public
We hereby notify the public that the final designation of critical habitat may differ from the proposed rule published on March 14, 2007 (72 FR 11945), as corrected on November 27, 2007 (72 FR 66122). We intend to use the best available scientific and commercial data available to delineate the specific geographic areas that contain the physical and biological features essential to the conservation of
Table 1 contains the corrected area values based on revisions to proposed critical habitat Subunits 1A and 1C. The revisions to Subunit 1A change the boundary description published in the March 14, 2007, proposed rule. This document publishes the boundary description for Subunit 1A, incorporating the revisions described in this document, along with a map depicting the revised location of proposed critical habitat for
Below, we present brief descriptions of the revised proposed subunits and reasons why they meet the definition of critical habitat for
Subunit 1A was occupied by
Subunit 1C was occupied by
The majority of the land that meets the definition of critical habitat in this area (72 ac (29 ha)) is in the Manchester Avenue Mitigation Bank. The Manchester Avenue Mitigation Bank is owned and managed by the Center for Natural Lands Management (CNLM). There is long-term management in place on this site to conserve several sensitive species, including
A complete list of all references we cite in the proposed rule and this document is available on
The primary author of this notice is the staff of the Carlsbad Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended at 72 FR 11945, March 14, 2007, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Critical habitat for
(a)
Family Lamiaceae:
(6) * * *
(i) Subunit 1A. Land bounded by the following UTM NAD27 coordinates (E,N): 475760, 3666013; 475747, 3665994; 475724, 3665985; 475692, 3665974; 475699, 3665944; 475697, 3665944; 475678, 3665937; 475677, 3665937; 475667, 3665934; 475657, 3665931; 475655, 3665931; 475629, 3665949; 475547, 3665912; 475552, 3665862; 475586, 3665824; 475639, 3665823; 475697, 3665853; 475706, 3665850; 475706, 3665850; 475707, 3665847; 475709, 3665845; 475710, 3665842; 475711, 3665840; 475713, 3665837; 475714, 3665834; 475715, 3665832; 475716, 3665829; 475717, 3665826; 475718, 3665823; 475719, 3665821; 475720, 3665818; 475721, 3665815; 475721, 3665812; 475722, 3665809; 475723, 3665807; 475723, 3665804; 475724, 3665801; 475724, 3665798; 475725, 3665795; 475725, 3665792; 475726, 3665789; 475726, 3665787; 475726, 3665784; 475726, 3665781; 475726, 3665778; 475726, 3665775; 475726, 3665772; 475726, 3665769; 475726, 3665766; 475726, 3665763; 475726, 3665760; 475726, 3665758; 475725, 3665755; 475725, 3665752; 475725, 3665751; 475690, 3665758; 475660, 3665748; 475563, 3665702; 475501, 3665704; 475399, 3665720; 475354, 3665731; 475352, 3665670; 475356, 3665635; 475364, 3665617; 475351, 3665612; 475329, 3665607; 475298, 3665608; 475276, 3665597; 475267, 3665596; 475257, 3665597; 475244, 3665599; 475234, 3665595; 475221, 3665587; 475164, 3665590; 475133, 3665640; 475096, 3665684; 475097, 3665687; 475098, 3665697; 475100, 3665707; 475103, 3665716; 475107, 3665725; 475111, 3665735; 475114, 3665741; 475123, 3665756; 475124, 3665759; 475129, 3665767; 475135, 3665775; 475142, 3665783; 475148, 3665790; 475156, 3665797; 475161, 3665801; 475175, 3665813; 475178, 3665815; 475186, 3665821; 475195, 3665826; 475203, 3665831; 475212, 3665835; 475215, 3665836; 475216, 3665844; 475216, 3665854; 475218, 3665864; 475220, 3665873; 475223, 3665883; 475227, 3665892; 475231, 3665901; 475236, 3665910; 475241, 3665919; 475247, 3665927; 475253, 3665934; 475260, 3665942; 475267, 3665948; 475286, 3665965; 475286, 3665965; 475294, 3665972; 475302, 3665977; 475310, 3665983; 475319, 3665987; 475328, 3665991; 475337, 3665995; 475338, 3665995; 475372, 3666006; 475381, 3666009; 475390, 3666011; 475400, 3666013; 475410, 3666014; 475420, 3666014; 475430, 3666014; 475440, 3666013; 475450, 3666011; 475452, 3666011; 475478, 3666005; 475474, 3666011; 475472, 3666014; 475466, 3666022; 475461, 3666030; 475456, 3666039; 475452, 3666048; 475448, 3666057; 475445, 3666067; 475443, 3666077; 475441, 3666087; 475440, 3666096; 475440, 3666106; 475440, 3666116; 475441, 3666126; 475443, 3666134; 475446, 3666150; 475446, 3666152; 475448, 3666162; 475451, 3666171; 475455, 3666181; 475459, 3666190; 475464, 3666199; 475468, 3666205; 475479, 3666223; 475480, 3666225; 475486, 3666233; 475492, 3666241; 475496, 3666245; 475511, 3666260; 475514, 3666263; 475518, 3666267; 475517, 3666269; 475517, 3666272; 475517, 3666275; 475516, 3666278; 475516, 3666281; 475516, 3666284; 475516, 3666287; 475516, 3666289; 475516, 3666292; 475516, 3666295; 475516, 3666298; 475517, 3666301; 475517, 3666304; 475517, 3666307; 475518, 3666310; 475518, 3666313; 475519, 3666315; 475519, 3666318; 475520, 3666321; 475520, 3666324; 475521, 3666327; 475522, 3666330; 475523, 3666332; 475524, 3666335; 475524, 3666338; 475525, 3666341; 475526, 3666343; 475528, 3666346; 475529, 3666349; 475530, 3666351; 475531, 3666354; 475532, 3666357; 475534, 3666359; 475535, 3666362; 475536, 3666364; 475538, 3666367; 475539, 3666369; 475541, 3666372; 475543, 3666374; 475544, 3666376; 475546, 3666379; 475548, 3666381; 475550, 3666383; 475551, 3666386; 475553, 3666388; 475555, 3666390; 475557, 3666392; 475559, 3666394; 475561, 3666396; 475563, 3666398; 475565, 3666400; 475568, 3666402; 475570, 3666404; 475572, 3666406; 475574, 3666408; 475577, 3666410; 475579, 3666411; 475581, 3666413; 475584, 3666415; 475586, 3666416; 475589, 3666418; 475591, 3666419; 475594, 3666421; 475596, 3666422; 475599, 3666424; 475601, 3666425; 475604, 3666426; 475607, 3666427; 475609, 3666428; 475612, 3666430; 475615, 3666431; 475617, 3666432; 475620, 3666433; 475623, 3666433; 475626, 3666434; 475628, 3666435; 475631, 3666436; 475634, 3666437; 475637, 3666437; 475640, 3666438; 475643, 3666438; 475645, 3666439; 475648, 3666439; 475651, 3666439; 475654, 3666440; 475657, 3666440; 475660, 3666440; 475663, 3666440; 475666, 3666440; 475669, 3666440; 475671, 3666440; 475674, 3666440; 475677, 3666440; 475680, 3666440; 475683, 3666440; 475686, 3666439; 475689, 3666439; 475692, 3666439; 475695, 3666438; 475697, 3666438; 475700, 3666437; 475703, 3666437; 475706, 3666436; 475709, 3666435; 475712, 3666434; 475714, 3666433; 475717, 3666433; 475717, 3666433; 475720, 3666432; 475723, 3666431; 475725, 3666430; 475728, 3666428; 475731, 3666427; 475733, 3666426; 475736, 3666425; 475738, 3666424; 475741, 3666422; 475744, 3666421; 475746, 3666419; 475749, 3666418; 475751, 3666416; 475753, 3666415; 475756, 3666413; 475758, 3666411; 475761, 3666410; 475763, 3666408; 475765, 3666406; 475767, 3666404; 475770, 3666402; 475772, 3666400; 475774, 3666398; 475776, 3666396; 475778, 3666394; 475780, 3666392; 475782, 3666390; 475784, 3666388; 475786, 3666386; 475788, 3666383; 475789, 3666381; 475791, 3666379; 475793, 3666376; 475794, 3666374; 475796, 3666372; 475798, 3666369; 475799, 3666367; 475801, 3666364; 475802, 3666362; 475803, 3666359; 475805, 3666357; 475806, 3666354; 475807, 3666351; 475808, 3666349; 475810, 3666346; 475811, 3666343; 475812, 3666341; 475813, 3666338; 475814, 3666335; 475814, 3666332; 475815, 3666330; 475816, 3666327; 475817, 3666324; 475817, 3666321; 475818, 3666318; 475819, 3666315; 475819, 3666313; 475820, 3666310; 475820, 3666307; 475820, 3666304; 475820, 3666301; 475821, 3666298; 475821, 3666295; 475821, 3666292; 475821, 3666289; 475821, 3666287; 475821, 3666284; 475821, 3666281; 475821, 3666278; 475820, 3666275; 475820, 3666272; 475820, 3666269; 475820, 3666266; 475819, 3666263; 475819, 3666261; 475818, 3666258; 475817, 3666255; 475817, 3666252; 475816, 3666249; 475815, 3666246; 475814, 3666244; 475814, 3666241; 475813, 3666238; 475812, 3666235; 475811, 3666233; 475810, 3666230; 475808, 3666227; 475807, 3666225; 475806, 3666222; 475806, 3666222; 475810, 3666213; 475814, 3666204; 475818, 3666195; 475821, 3666185; 475823, 3666176; 475825, 3666166; 475825, 3666166; 475828, 3666141; 475829, 3666132; 475829, 3666122; 475829, 3666118; 475791, 3666114; 475770, 3666086; 475762, 3666044.
(iv) Note: Map of Unit 1, subunits 1A, 1B, and 1C (Map 2), follows:
Forest Service, USDA.
Notice of intent to prepare a supplemental environmental impact statement to amend land and resource management plans for the Idaho Panhandle, Kootenai and Lolo National Forests.
The Forest Service will prepare a Supplemental Environmental Impact Statement (SETS) for Motorized Access Management within the Selkirk and Cabinet-Yaak Grizzly Bear Recovery Zones to present additional information on grizzly bear mortality and population trends and account for uncertainty in relevant grizzly bear research. The SEIS will include a detailed analysis of Alternative D Modified and Alternative E that reflect the current condition of habitat security for grizzly bears. The Notice of Availability of the Draft EIS was published in the
Alternative E was selected for implementation, with the incorporation of terms and conditions of the U.S. Fish and Wildlife Service's (USFWS) Biological Opinion.
On December 13, 2006, U.S. District Court Judge Donald Molloy ruled against the U.S. Forest Service and the U.S. Fish and Wildlife Service in a lawsuit brought by the Cabinet Resource Group, Great Bear Foundation, Idaho Conservation League, Natural Resources Defense Council, and Selkirk Conservation Alliance. Judge Molloy ordered that the 2002 Final Environmental Impact Statement and 2004 Record of Decision be set aside as contrary to law and that the matter be remanded to the Forest Service for preparation of a new environmental analysis that complies with 40 CFR 1502.22 (a) and (b). As a result of an action considered no longer valid, on May 17, 2007, the USFWS withdrew its Biological Opinion for the Forest Service's proposed action.
Scoping is not required for supplements to environmental impact statements (40 CFR 1 502.9(c)(4)). There was extensive public involvement in the development of the proposed action, the 2001 Draft ETS and the 2002 Final EIS, and the Forest Service is not inviting comments at this time. The agency expects to file a Draft SETS with the Environmental Protection Agency (EPA) and make it available for public, agency and tribal government comment in July 2008. A Final SETS is expected to be filed in April 2009.
Send written comments to Paul Bradford, Forest Supervisor, Kootenai National Forest, 31374 U.S. Hwy 2 West, Libby, MT 59923-3022.
Kirsten Kaiser, Grizzly Bear Access Amendment Interdisciplinary Team Leader (406) 283-7659.
The Forest Service will supplement the Final EIS for Motorized Access Management within the Selkirk and Cabinet-Yaak Grizzly Bear Recovery Zones to respond to the December 2006 court order. The SEIS will incorporate best and current scientific information available on grizzly bear mortality and population trends and account for the Wakkinen study's authors' uncertainty for bears' studied habitat. The SEIS will include a detailed analysis of Alternative D Modified and Alternative E that reflect the current condition of habitat security for grizzly bears. The analysis will result in a new decision that amends the Forest Plans of the Kootenai, Lolo and Idaho Panhandle National Forests; and the values that address grizzly bear management within the Selkirk and Cabinet-Yaak Recovery Zones.
The SEIS and the supporting environmental documents will be programmatic and will examine the effects of setting predetermined levels of human (motorized) access within grizzly bear recovery zones. Site-specific decisions on individual roads or trails will be addressed in project-level planning.
The purpose and need for action is to amend the three Forest Plans to include a set of motorized access and security guidelines that meet the agency's responsibilities under the Endangered Species Act to conserve and contribute to recovery of grizzly bears.
More specifically, there were needs to comply with: (1) The 1994 Interagency Grizzly Bear Committee (IGBC) Task Force Report; (2) the 1995 Amended Biological Opinion and Incidental Take Statements on the Kootenai and Lob National Forest Land and Resource Management Plans; (3) the 1995 decision by the Chief of the Forest Service on the Appeal of the Kootenai Forest Plan; and (4) the Stipulations of a 2001 Settlement Agreement in a Lawsuit Challenging Implementation of the Interim Rule Set developed by the Selkirk/Cabinet-Yaak Grizzly Bear Subcommittee of the IGBC.
The Forest Supervisors are proposing to amend their respective Forest Plans regarding Forest Plan standards and monitoring requirements that respond to the recommendations of the Interim Access Management Strategy and Interim Access Management Rule Set developed by the Selkirk/Cabinet-Yaak Subcommittee of the IGBC. The decision to be made is whether to adopt the preferred alternative as designed and identified as Alterative E in the 2004 Record of Decision (ROD), or with different requirements, or to select another alternative.
This amendment would result in a new appendix to the Idaho Panhandle and Lolo National Forest Land and
Copies of the environmental documents and 2004 ROD are available on the Kootenai National Forest internet Web site at:
Issues raised during the comment period on the DEIS centered around three main topics: (1) grizzly bear and best available science, specifically the science that was used in the environmental analysis and by the IGBC including the biological defensibility of the 55 percent Core, 33 percent OMRD and 26 percent TMRD standards; (2) reductions in motorized public access; and (3) impacts to employment and income.
The Forest Supervisors are giving notice that the Idaho Panhandle, Kootenai, and Lolo National Forests are supplementing an existing environmental analysis for this proposed action so that interested or affected people can participate in the analysis and contribute to the final decision. The Forest Service is seeking comments from individuals, organizations, tribal governments, and Federal, State, and local agencies that are interested or may be affected by the proposed action. The draft SETS is intended to provide additional evaluation of current information on grizzly bears, and provide that information to the public. The public is invited to help identify issues and concerns related to the preferred alternative and the supplemental analysis documented in the draft SEIS.
The draft SEIS is expected to be filed with the EPA and to be available for public review in July 2008. The comment period on the draft SEIS will be 45 days from the date the EPA publishes the Notice of Availability in the
The final SEIS is scheduled to be completed by April 2009. In the final SEIS, the Forest Service is required to respond to comments received during the comment period that pertain to the environmental consequences discussed in the draft SEIS and applicable laws, regulations, and policies considered in making a decision regarding the proposal.
The Forest Service believes it is important to give reviewers notice at this early stage of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions [
To assist the Forest Service in identifying and considering issues and concerns on the preferred alternative and the supplemental analysis, comments on the draft SEIS should be as specific as possible. It is also helpful if comments refer to specific pages or sections of the draft SEIS. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
An application has been submitted to the Foreign-Trade Zones Board (the Board) by Gregg County, Texas, grantee of Foreign-Trade Zone 234, requesting authority to expand its zone to include a site in Kilgore, Texas, adjacent to the Shreveport-Bossier Customs and Border Protection 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 May 5, 2008.
FTZ 234 was approved on November 4, 1998 (Board Order 1003, 63 FR 63671, 11/16/98). On December 15, 2006, a minor boundary modification was approved to include an additional site in Longview, Gregg County, Texas. The zone project currently consists of two sites:
The applicant is now requesting authority to expand the general-
No specific manufacturing requests are being made at this time. Such requests would be made to the Board on a case-by-case basis.
In accordance with the Board's regulations, Claudia Hausler of the FTZ Staff is designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is July 14, 2008. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to July 28, 2008.
A copy of the application and accompanying exhibits will be available for public inspection at each of the following locations:
Gregg County Courthouse, 101 East Methvin Street, Suite 300, Longview, Texas 75601
Office of the Executive Secretary), Foreign-Trade Zones Board, U.S. Department of Commerce, Room 2111, 1401 Constitution Avenue, NW, Washington, DC 20230
For further information contact Claudia Hausler at
An application has been submitted to the Executive Secretary of the Foreign-Trade Zones Board (the Board) by the Georgia Foreign-Trade Zone, Inc., grantee of FTZ 26, requesting temporary/interim manufacturing (T/IM) authority within FTZ 26 at the Kia Motors Manufacturing Georgia, Inc. (KMMG) facility in West Point, Georgia. The application was filed on May 7, 2008.
The KMMG facility (about 2,500 employees) is located at 700 Kia Parkway in West Point (Troup County), Georgia (Site 1 T1). Under T/IM procedures, KMMG would produce up to 350,000 light-duty passenger vehicles (sedans, sport utility vehicles, minivans) (HTSUS 8703.23, 8703.24) annually for the U.S. market and export. Foreign components that would be used in production (representing about 25% of total material inputs) include: oils (HTSUS 2710.11), paints (3208.10, 3209.90), plastic tubes/pipes/hoses (3917.31, 3917.40), plastic sheets/strips/plates (3919.90, 3921.90), rubber tubes/hoses (4009.11, 4009.31), rubber belts (4010.31, 4010.33), tires (4011.20), gaskets/washers/o-rings (4016.93, 4016.99), carpet sets (5703.20), safety glass (7007.11, 7007.21), mirrors (7009.10), tube fittings (7307.22, 7307.99), fasteners (7318.14), locks/keys (8301.20, 8301.40), engines (8407.34), engine parts (8409.91), pumps (8413.30), valves (8481.80), and bumpers (8708.10) (duty rates: free - 8.6%).
FTZ procedures could exempt KMMG from customs duty payments on foreign components used in export production (estimated to be 10% of plant shipments). On its domestic sales, KMMG would be able to choose the duty rate that applies to finished passenger vehicles (2.5%) for the foreign inputs noted above that have higher rates. Customs duties also could possibly be deferred or reduced on foreign status production equipment.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the following address: Office of the Executive Secretary, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230-0002. For further information, contact Pierre Duy at
A copy of the application will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at the address listed above.
Import Administration, International Trade Administration, Department of Commerce.
Terre Keaton Stefanova (Canada) or Hallie Zink (People's Republic of China), AD/CVD Operations, Office 2 and China/NME Group, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-1280 or (202) 482-6907, respectively.
On April 14, 2008, the Department of Commerce (the Department) received petitions concerning imports of citric acid and certain citrate salts from Canada (Canada petition) and the People's Republic of China (PRC) (PRC petition) filed in proper form by Archer Daniels Midland Company, Cargill, Incorporated, and Tate & Lyle Americas, Inc. (collectively, the petitioners).
In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), the petitioners allege that imports of citric acid and certain citrate salts from Canada and the PRC are being, or
The Department finds that the petitioners filed these petitions on behalf of the domestic industry because the petitioners are interested parties as defined in section 771(9)(C) of the Act, and they have demonstrated sufficient industry support with respect to the investigations that they are requesting the Department to initiate (
The scope of these investigations includes all grades and granulation sizes of citric acid, sodium citrate, and potassium citrate in their unblended forms, whether dry or in solution, and regardless of packaging type. The scope also includes blends of citric acid, sodium citrate, and potassium citrate; as well as blends with other ingredients, such as sugar, where the unblended form(s) of citric acid, sodium citrate, and potassium citrate constitute 40 percent or more, by weight, of the blend. The scope of these investigations also includes all forms of unrefined calcium citrate, including dicalcium citrate monohydrate, and tricalcium citrate tetrahydrate, which are intermediate products in the production of citric acid, sodium citrate, and potassium citrate. The scope of these investigations includes the hydrous and anhydrous forms of citric acid, the dihydrate and anhydrous forms of sodium citrate, otherwise known as citric acid sodium salt, and the monohydrate and monopotassium forms of potassium citrate. Sodium citrate also includes both trisodium citrate and monosodium citrate, which are also known as citric acid trisodium salt and citric acid monosodium salt, respectively. Citric acid and sodium citrate are classifiable under 2918.14.0000 and 2918.15.1000 of the Harmonized Tariff Schedule of the United States (HTSUS), respectively. Potassium citrate and calcium citrate are classifiable under 2918.15.5000 of the HTSUS. Blends that include citric acid, sodium citrate, and potassium citrate are classifiable under 3824.90.9290 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
During our review of the petitions, we discussed the scope with the petitioners to ensure that it is an accurate reflection of the products for which the domestic industry is seeking relief. Moreover, as discussed in the preamble to the regulations (
We are requesting comments from interested parties regarding the appropriate physical characteristics of citric acid and certain citrate salts to be reported in response to the Department's antidumping questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to more accurately report the relevant factors and costs of production, as well as to develop appropriate product comparison criteria.
Interested parties may provide any information or comments that they feel are relevant to the development of an accurate listing of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as (1) general product characteristics and (2) the product comparison criteria. We note that it is not always appropriate to use all product characteristics as product comparison criteria. We base product comparison criteria on meaningful commercial differences among products. In other words, while there may be some physical product characteristics utilized by manufacturers to describe citric acid and certain citrate salts, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in product matching. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.
In order to consider the suggestions of interested parties in developing and issuing the antidumping duty questionnaires, we must receive comments at the above-referenced address by May 27, 2008. Additionally, rebuttal comments must be received by June 3, 2008.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A), or (ii) determine industry support using a statistically valid sampling method.
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (section 771(10) of the Act), they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this subtitle.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,” (
With regard to the domestic like product, the petitioners do not offer a definition of domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that citric acid and certain citrate salts (unrefined calcium citrate, sodium citrate, and potassium citrate) constitute a single domestic like product and we have analyzed industry support in terms of that domestic like product. For a discussion of the domestic like product analysis in this case,
Our review of the data provided in the petitions, supplemental submissions, and other information readily available to the Department indicates that the petitioners have established industry support. First, the petitions established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (
The Department finds that the petitioners filed the petitions on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to the antidumping investigations that they are requesting the Department initiate.
The petitioners allege that the U.S. industry producing the domestic like product is being materially injured by reason of the imports of the subject merchandise sold at less than normal value (NV). The petitioners contend that the industry's injured condition is illustrated by the reduced market share, reduced production and capacity utilization, reduced employment, underselling and price depressing and suppressing effects, lost revenue and sales, a decline in financial performance, and an increase in import penetration. The Department has assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and the Department determines that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.
In accordance with 19 CFR 351.204(b), because these petitions were filed on April 14, 2008, the anticipated period of investigation (POI) is April 1, 2007, through March 31, 2008, for Canada, and October 1, 2007, through March 31, 2008, for the PRC.
The following is a description of the allegations of sales at less than fair value upon which the Department has based its decision to initiate investigations with respect to Canada and the PRC. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the Canada Initiation Checklist and the PRC Initiation Checklist. Should the need arise to use any of this information as facts available under section 776 of the Act, we may reexamine the information and revise the margin calculations, if appropriate.
The petitioners calculated export price (EP) based on a POI price quote for subject merchandise produced by Jungbunzlauer Canada Inc. (JBL Canada), a potential Canadian respondent. The petitioners made adjustments for U.S. inland freight and brokerage and handling expenses. To calculate the transportation charges, the petitioners obtained freight estimates for transporting the subject merchandise by truck from the location of JBL Canada to the location of JBL Canada's U.S. customer. The petitioners obtained an estimate for brokerage fees related to crossing the border, by truck, from Canada to the United States. See Petition, Volume II at pages 10 through 13, and Exhibits II-6 and II-7; and Supplement to the Petition.
The petitioners calculated NV based on: (1) A published POI list price for citric acid in eastern Canada from a Canadian chemical industry publication; and (2) a POI price quote from a Canadian purchaser of subject merchandise, adjusted for a distributor mark-up amount. The petitioners adjusted both starting prices for freight expenses, calculated using a rate obtained from a trucking company that operates in Canada. The petitioners made a circumstance-of-sale (COS) adjustment to the home market prices for differences in imputed credit expenses between the Canadian and U.S. markets. The petitioners' calculated home market and U.S. imputed credit expenses using prime rates from the Bank of Canada and the U.S. Federal Reserve, respectively. We revised the petitioners' margin calculations to correct certain errors in the application of the COS adjustment for credit expenses. See Petition, Volume II, Supplement to the Petition, Volume II and Canada Initiation Checklist and Checklist Attachment V: Revised Margin Calculations.
The petitioners provided information demonstrating reasonable grounds to believe or suspect that sales of citric acid in the Canadian market were made at prices below the fully absorbed cost
Pursuant to section 773(b)(3) of the Act, COP consists of the cost of manufacturing (COM), selling, general and administrative (SG&A) expenses, and packing. The petitioners calculated COM and packing based on a U.S. producer's cost experience, adjusted for known differences to manufacture citric acid in Canada using publicly available data since actual Canadian cost information was not reasonably available to the petitioners. To calculate an SG&A rate, including financial expenses, the petitioners relied on cost data for a U.S. producer of citric acid. We recalculated SG&A and interest expenses using the 2007 financial statements for Corn Products International (CPI), a company with substantial operations in Canada and in the same general industry as JBL Canada. Based upon a comparison of the prices of the foreign like product in the home market to the calculated COP of the product, we find reasonable grounds to believe or suspect that sales of the foreign like product were made below the COP, within the meaning of section 773(b)(2)(A)(i) of the Act. Accordingly, the Department is initiating a country-wide cost investigation.
Pursuant to section 773(e) of the Act, CV consists of the COM, SG&A expenses, financial expenses, packing expenses and profit.
Consistent with their calculation of COP above, the petitioners calculated COM and packing based on a U.S. producer's cost experience, adjusted for known differences to manufacture citric acid in Canada using publicly available data. See Canada Initiation Checklist for details of the calculation of COM. To calculate an SG&A rate, including financial expenses, the petitioners relied on cost data for a U.S. producer of citric acid. To calculate profit, the petitioners relied on the financial statements of CPI because it has substantial operations in Canada and is in the same general industry as JBL Canada. See Volume II of the Petition at pages 9 and 10, and Exhibit II-18, dated April 14, 2008. To be consistent with the calculation of CV profit, we recalculated SG&A and financial expenses using CPI's financial statements. See Canada Initiation Checklist.
The petitioners calculated the EP based on official U.S. import unit values for citric acid from the PRC during October 2007-February 2008, imported under the HTS subheading 2918.14.0000 (citric acid).
The petitioners calculated foreign brokerage and handling using Indian data because Indonesian data was not readily available. See Petition, Volume III, at page 14, and Supplement to the Petition, at Revised Exhibit III-18, and PRC Initiation Checklist. The petitioners inflated their calculated foreign brokerage and handling rate to the POI using the Wholesale Price Index (WPI) for India from the International Financial Statistics (IFS) of the International Monetary Fund (IMF) and converted imports valued in Rupees/kilogram (Rs/Kg) to U.S. Dollars/kilogram (US$/Kg) using the exchange rates on the Department's Web site at:
The petitioners note that the Department's long-standing treatment of the PRC as a non-market economy (NME) country remains in effect until revoked by the Department, and notes that no such revocation determination has been made to date.
In accordance with section 771(18)(C)(i) of the Tariff Act of 1930, as amended (Act), the presumption of NME status remains in effect until revoked by the Department. The presumption of NME status for the PRC has not been revoked by the Department and, therefore, remains in effect for purposes of the initiation of this investigation. Accordingly, the NV of the product is appropriately based on factors of production valued in a surrogate market economy country, in accordance with section 773(c) of the Act. In the course of this investigation, all parties will have the opportunity to provide relevant information related to the issues of the PRC's NME status and
The petitioners assert that of the five countries normally considered as alternative surrogate market economies for the PRC,
According to the petitioners, however, Indonesia is a significant producer of subject merchandise. Further, a significant producer of subject merchandise in Indonesia, Budi Acid Jaya PT (Budi Jaya), employs similar manufacturing techniques, equipment and economics to that of a large Chinese producer of subject merchandise.
The petitioners provided dumping margin calculations using the Department's NME methodology as required by 19 CFR 351.202(b)(7)(i)(C) and 19 CFR 351.408.
The petitioners valued the factors of production based on reasonably available, public surrogate country data, including Indonesian government import statistics.
The petitioners also relied on Global Trade Atlas data to value packing inputs.
The petitioners valued labor using US$ 0.83/hour labor rate for the PRC currently available for 2004 on the Department's Web site.
Where the petitioners were unable to find input prices contemporaneous with the POI, they adjusted for inflation using the WPI for Indonesia, as published in IFS by the IMF.
Based on the data provided by the petitioners, there is reason to believe that imports of citric acid and certain citrate salts from Canada and the PRC are being, or are likely to be, sold in the United States at less than fair value. Based on comparisons of EP to NV that we revised as discussed above, the estimated dumping margins for Canada are 22.91 percent (EP-to-NV comparison where NV is based on a home market price quote), 111.83 percent (EP-to-NV comparison where NV is based on a published list price), and 57.06 percent (EP-to-CV comparison). Based on a comparison of EP to NV, the estimated
Based upon the examination of the petitions on citric acid and certain citrate salts from Canada and the PRC and other information reasonably available to the Department, the Department finds that these petitions meet the requirements of section 732 of the Act. Therefore, we are initiating antidumping duty investigations to determine whether imports of citric acid and certain citrate salts from Canada and the PRC are being, or are likely to be, sold in the United States at less than fair value. In accordance with section 733(b)(1)(A) of the Act, unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation.
For Canada, the Department intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. import during the POI. We intend to release the CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO within five days of publication of this
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. Instructions for filing such applications may be found on the Department's Web site at
For the PRC, the Department will request quantity and value information from all known exporters and producers identified, with complete contact information, in the petition. The quantity and value data received from NME exporters/producers will be used as the basis to select the mandatory respondents.
The Department requires that the respondents submit a response to both the quantity and value questionnaire and the separate-rate application by the respective deadlines in order to receive consideration for separate-rate status.
In order to obtain separate-rate status in NME investigations, exporters and producers must submit a separate-rate status application.
The Department will calculate combination rates for certain respondents that are eligible for a separate rate in this investigation. The Separate Rates/Combination Rates Bulletin states:
[w]hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME investigations will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of combination rates because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question
In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the petitions have been provided to the representatives of the Governments of Canada and the PRC. Because of the particularly large number of producers/exporters identified in the petitions, the Department considers the service of the public version of the petitions to the foreign producers/exporters satisfied by the delivery of the public version to the Governments of Canada and the PRC, consistent with 19 CFR 351.203(c)(2).
We have notified the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, no later than May 27, 2008, whether there is a reasonable indication that imports of citric acid and certain citrate salts from Canada and the PRC materially injure, or threaten material injury to, a U.S. industry. A negative ITC determination covering all classes or kinds of merchandise covered by the petitions would result in the investigations being terminated. Otherwise, these investigations will proceed according to statutory and regulatory time limits.
This notice is issued and published pursuant to section 777(i) of the Act.
Where it is not practicable to examine all known exporters/producers of subject merchandise, section 777A(c)(2) of the Tariff Act of 1930, as amended, permits us to investigate (1) a sample of exporters, producers, or types of products that is statistically valid based on the information available at the time of selection, or (2) exporters and producers accounting for the largest volume and value of the subject
In the chart below, please provide the total quantity and total value of all your sales of merchandise covered by the scope of this investigation (see “Scope of Investigation” section of this notice), produced in the PRC, and exported/shipped to the United States during the period October 1, 2007, through March 31, 2007.
Total Quantity:
• Please report quantity on a metric ton basis. If any conversions were used, please provide the conversion formula and source.
Terms of Sales:
• Please report all sales on the same terms (e.g., free on board at port of export).
Total Value:
• All sales values should be reported in U.S. dollars. Please indicate any exchange rates used and their respective dates and sources.
Export Price Sales:
• Generally, a U.S. sale is classified as an export price sale when the first sale to an unaffiliated customer occurs before importation into the United States.
• Please include any sales exported by your company directly to the United States.
• Please include any sales exported by your company to a third-country market economy reseller where you had knowledge that the merchandise was destined to be resold to the United States.
• If you are a producer of subject merchandise, please include any sales manufactured by your company that were subsequently exported by an affiliated exporter to the United States.
• Please do not include any sales of subject merchandise manufactured in Hong Kong in your figures.
Constructed Export Price Sales:
• Generally, a U.S. sale is classified as a constructed export price sale when the first sale to an unaffiliated customer occurs after importation. However, if the first sale to the unaffiliated customer is made by a person in the United States affiliated with the foreign exporter, constructed export price applies even if the sale occurs prior to importation.
• Please include any sales exported by your company directly to the United States;
• Please include any sales exported by your company to a third-country market economy reseller where you had knowledge that the merchandise was destined to be resold to the United States.
• If you are a producer of subject merchandise, please include any sales manufactured by your company that were subsequently exported by an affiliated exporter to the United States.
• Please do not include any sales of subject merchandise manufactured in Hong Kong in your figures.
Further Manufactured:
• Sales of further manufactured or assembled (including re-packaged) merchandise is merchandise that undergoes further manufacture or assembly in the United States before being sold to the first unaffiliated customer.
• Further manufacture or assembly costs include amounts incurred for direct materials, labor and overhead, plus amounts for general and administrative expense, interest expense, and additional packing expense incurred in the country of further manufacture, as well as all costs involved in moving the product from the U.S. port of entry to the further manufacturer.
Import Administration, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (the Department) preliminarily determines that lightweight thermal paper (LWTP) from Germany is being, or is likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act). The estimated margins of sales at LTFV are listed in the “Suspension of Liquidation” section of this notice. Interested parties are invited to comment on this preliminary determination. Pursuant to requests from interested parties, we are postponing for 60 days the final determination and extending the provisional measures from a four-month period to not more than six months. Accordingly, we will make our final determination not later than 135 days after publication of the preliminary determination.
May 13, 2008.
Cindy Robinson or George McMahon, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-3797 or (202) 482-1167, respectively.
On October 29, 2007, the Department initiated the antidumping duty investigations of LWTP from Germany, the Republic of Korea, and the People's Republic of China (PRC).
The Department set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of the
On November 14, 2007, the petitioner submitted comments on the proposed model-matching criteria. The Department requested comments on model-matching criteria in its letter to the interested parties, dated November 16, 2007. In response, the Department received several comments on model-matching criteria from certain interested parties. See Model Match section, below.
Section 777A(c)(1) of the Act directs the Department to calculate individual dumping margins for each known exporter and producer of the subject merchandise. The Department identified a large number of producers and exporters of LWTP in Germany and determined that it was not practicable to examine each known exporter/producer of the subject merchandise, as provided in section 777A(c)(1) of the Act. Thus, we selected for examination Papierfabrik August Koehler AG and Koehler America, Inc. (collectively, Koehler). This particular exporter/producer accounts for the largest volume of subject merchandise exported to the United States from Germany during the period of investigation (POI).
On November 16, 2007, the United States International Trade Commission (ITC) preliminarily determined that there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury by reason of imports of certain lightweight thermal paper from Germany and the PRC that are alleged to be sold in the United States at LTFV. The ITC also determined that imports of LTWP from the Republic of Korea were negligible, and therefore, terminated the investigation with regard to the Republic of Korea.
In the petition filed on September 19, 2007, the petitioner provided information demonstrating reasonable grounds to believe or suspect that sales of LWTP in the home market were made at prices below the fully absorbed COP, within the meaning of section 773(b) of the Act, and requested that the Department conduct a sales-below-cost investigation.
On January 14, 2008, the Department received the Section A questionnaire response from Koehler. On January 30, 2008, the Department received the Sections B, C and D responses from Koehler. On February 11, 2008, the Department received comments from the petitioner on the Sections A through D responses for Koehler. After reviewing the Sections A through D responses from Koehler, the Department issued supplemental questionnaires to Koehler. On March 27, 2008, the petitioner submitted additional comments on Koehler's questionnaire and supplemental questionnaire responses. The Department issued additional supplemental questions, after reviewing Koehler's supplemental questionnaire response.
On February 6, 2008, the petitioner requested that the Department postpone the preliminary determination by 50 days and requested that the Department extend the deadline for filing a targeted dumping allegation for Germany. On February 25, 2008, the Department advised the petitioner that the deadline to file a targeted dumping allegation would be 30 days from any revised deadline for the preliminary determination.
The petitioner submitted an allegation of targeted dumping with respect to Koehler on March 27, 2008.
On April 16, 2008, the Department received comments from Koehler objecting to the targeted dumping allegation on the basis that it does not meet the statutory standard for targeted dumping. Specifically, Koehler argues that the petitioner failed to: 1) explain any statistical tests that should be applied, 2) demonstrate a pattern exists within the context of market conditions, 3) explain why a two-percent threshold is significant for all three types of alleged targeting, 4) explain why differences cannot be taken into account using the average-to-average analysis, 5) explain why the Department should ignore the statutory application of the term “or” (instead filing allegations based on purchasers, regions,
The statute allows the Department to employ the average-to-transaction methodology in its margin calculations if: 1) there is a pattern of EPs that differ significantly among purchasers, regions, or periods of time; and 2) the Department explains why such differences cannot be taken into account using the average-to-average or transaction-to-transaction methodology.
For purposes of this preliminary determination on targeted dumping, we have applied the above test to the U.S. sales data reported by the respondent, Koehler. In applying the Steel Nails test, we clarified various aspects of the test, applied the Steel Nails methodology to multiple allegations in this investigation (customer, region, and time period), and made certain corrections to the underlying programming applied in Steel Nails. We clarified the price gap test described in Steel Nails as involving only average prices to non-targets that are
As outlined in the separate memorandum, we did not find a pattern of EPs for comparable merchandise that differ significantly among customers, regions or by time period. As a result, we applied the average-to-average methodology to the EPs of all of Koehler's sales to the United States during the POI.
Although the Department has not yet established explicit criteria or standards for defining “region” in the targeted dumping context, we have accepted the petitioner's use of U.S. Census-based regions for purposes of our targeted dumping analysis for the preliminary determination in this investigation. As we did in the investigations covering Steel Nails, the Department invites comments on standards and criteria for definitions of “region” that are reflective of the industry and commercial market in the United States.
Parties may also comment on the Department's overall preliminary determination application of the new targeted dumping test in this proceeding. Consistent with 19 CFR 351.309(c)(2), all comments should be filed in the context of the case and rebuttal briefs.
The POI is July 1, 2006, to June 30, 2007. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition.
The merchandise covered by this investigation includes certain lightweight thermal paper, which is thermal paper with a basis weight of 70 grams per square meter (g/m
In our
On November 19, 2007, the petitioner submitted scope comments in which it requested that the Department add the following additional HTSUS subheadings to the scope of the investigations: HTSUS subheading 3703.10.60, 4811.59, 4820.10, and 4823.40 based on the claim that subject merchandise may also enter under these HTSUS subheadings. On December 18, 2007, the Department requested comments from interested parties regarding the petitioner's proposed scope modification. However, no reply comments were received in this, or any of the aforementioned simultaneous investigations. On April 11, 2008, and April 16, 2008, the Department received letters from the National Import Specialists at U.S. Customs and Border Protection (CBP) requesting that HTSUS subheadings 3703.10.60, 4811.59.20, 4820.10.20, and 4823.40.00 be added to the scope of the antidumping duty investigations of LWTP from Germany and the PRC, and the countervailing duty investigation of LWTP from the PRC on the basis that entries of subject merchandise could be classified therein.
In accordance with section 771(16) of the Act, all products produced by the respondent covered by the description in the
On November 14, 2007, and November 21, 2007, the petitioner filed proposed model-matching criteria to use in the Department's questionnaire. On November 23, 2007, and November 28, 2007, Koehler submitted comments on the proposed model-matching criteria. On November 26, 2007, and November 28, 2007, Mitsubishi also submitted comments on the proposed model-matching criteria. On December 3, 2007, the petitioner filed comments in response to the model-matching criteria comments submitted by Koehler and Mitsubishi. On December 4, 2007, Koehler submitted additional comments challenging the petitioner's proposed ranges of the dynamic sensitivity model-match criterion as overly broad. On December 7, 2007, the Department issued the questionnaire containing the criteria identified above.
Section 351.401(i) of the Department's regulations states that the Department normally will use the date of invoice, as recorded in the producer's or exporter's records kept in the ordinary course of business, as the date of sale. The regulations further provide that the Department may use a date other than the date of invoice if the Secretary is satisfied that a different date better reflects the date on which the material terms of sale are established. The Department has a long-standing practice of finding that, where shipment date precedes invoice date, shipment date better reflects the date on which the material terms of sale are established.
To determine whether sales of LWTP from Germany were made in the United States at less than normal value (NV), we compared the EP or CEP to the NV, as described in the
For the price to the United States, we used, as appropriate, EP or CEP, in accordance with sections 772(a) and (b) of the Act. Pursuant to section 772(a) of the Act, we used the EP methodology when the merchandise was first sold by the producer or exporter outside the United States directly to the unaffiliated purchaser in the United States prior to importation and when CEP was not otherwise warranted based on the facts on the record. We calculated CEP for those sales where a person in the United States, affiliated with the foreign exporter or acting for the account of the exporter, made the first sale to the unaffiliated purchaser in the United States of the subject merchandise.
In accordance with section 772(c)(2) of the Act, we made deductions, where appropriate, for movement expenses including U.S. warehouse expense, inland freight, inland insurance, brokerage & handling, international freight, marine insurance, and U.S. customs duties.
For CEP, in accordance with section 772(d)(1) of the Act, when appropriate, we deducted from the starting price those selling expenses that were incurred in selling the subject merchandise in the United States, including direct selling expenses (cost of credit, warranty, and other direct selling expenses). These expenses include certain indirect selling expenses incurred by affiliated U.S. distributors.
To determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the respondents' volume of home market sales of the foreign like product to the volume of its U.S. sales of the subject merchandise. Pursuant to section 773(a)(1)(B)(i) of the Act, because Koehler had an aggregate volume of home market sales of the foreign like product that was greater than five percent of its aggregate volume of U.S. sales of the subject merchandise, we determined that the home market was viable.
Koehler reported that its sales of the foreign like product were made to unaffiliated customers. Therefore, the arm's-length test is not applicable to Koehler's sales of the foreign like product.
Based on our analysis of the petitioner's allegation stated in the petition, we initiated a sales-below-cost investigation to determine whether Koehler had sales that were made at prices below their COP pursuant to section 773(b) of the Act.
In accordance with section 773(b)(3) of the Act, we calculated Koehler's COP based on the sum of its costs of materials and conversion for the foreign like product, plus amounts for general and administrative (G&A) expenses and interest expenses (
The Department relied on the COP data submitted by Koehler and its supplemental section D questionnaire responses for the COP calculation, except for the following instances where the information was not appropriately quantified or valued:
a. We adjusted the denominator of Koehler's reported G&A expense ratio to reflect Koehler's 2006 cost of goods sold.
b. We adjusted Koehler's reported financial expense ratio to include the total foreign exchange gains and losses reported in Koehler Holding's 2006 consolidated financial statements. We adjusted the denominator of the financial expense ratio to reflect Koehler Holding's 2006 consolidated cost of goods sold.
Our revisions to Koehler's COP data are discussed in the Memorandum from Robert Greger, Senior Accountant, to Neal Halper, Director, Office of Accounting, entitled “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Determination - Koehler,” dated May 6, 2008.
On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sales prices were below the COP. For purposes of this comparison, we used the COP exclusive of selling and packing expenses. The prices were exclusive of any applicable movement charges, direct and indirect selling expenses, and packing expenses. In addition, we included an amount for freight rebate revenue and other transportation revenue.
Pursuant to section 773(b)(2)(C)(i) of the Act, where less than 20 percent of the respondent's sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of the respondent's sales of a given product during the POI were at prices less than COP, we determined that such sales have been made in “substantial quantities.”
Our preliminary findings show that we did not find that more than 20 percent of Koehler's sales were at prices less than the COP. The Department excluded certain sales transactions reported as samples by Koehler. However, we did not exclude any additional sales as a result of the COP test. Therefore, we used all of Koehler's home market sales as the basis for determining NV.
We based home market prices on packed prices to unaffiliated purchasers in Germany. We adjusted the starting price for billing adjustments, early payment discounts, rebates, warehouse expense, and inland freight where appropriate, pursuant to section 773(a)(6)(B)(ii) of the Act. In addition, for comparisons made to EP sales, we made adjustments for differences in circumstances of sale (COS) pursuant to section 773(a)(6)(C)(iii) of the Act. We made COS adjustments by deducting direct selling expenses incurred for home market sales (credit expense, warranty directly linked to sales transactions, and other direct selling expenses) and adding U.S. direct selling expenses (credit, commissions, warranty directly linked to sales transactions, and other direct selling expenses), where appropriate.
When comparing U.S. sales with comparison market sales of similar, but not identical, merchandise, we also made adjustments for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We based this adjustment on the difference in the variable cost of manufacturing for the foreign like product and subject merchandise.
In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (LOT) as the EP or CEP transaction. In identifying LOTs for EP and comparison market sales (
To determine whether NV sales are at a different LOT than EP or CEP transactions, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison
Koehler reported its sales in the home market and the U.S. market at the same single LOT. In the home market, Koehler reported that its sales were made through two channels of distribution: (1) direct sales and (2) consignment sales. In the U.S. market, Koehler reported that its sales were made through four channels of distribution: (1) direct sales through its U.S. affiliate (
For a detailed description of our LOT methodology and a summary of company-specific LOT findings for these preliminary results, see our analysis contained in the “Calculation Memorandum for the Preliminary Determination - Koehler.”
We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank.
Pursuant to section 735(c)(5)(A) of the Act, the all-others rate is equal to the weighted average of the estimated weighted-average dumping margins of all respondents investigated, excluding zero or
As provided in section 782(i) of the Act, we intend to verify all information upon which we will rely in making our final determination.
In accordance with section 733(d)(2) of the Act, we are directing CBP to suspend liquidation of all entries of LWTP from Germany that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
The weighted-average dumping margins are as follows:
We will disclose the calculations used in our analysis to parties in this proceeding in accordance with 19 CFR 351.224(b).
In accordance with section 733(f) of the Act, we have notified the ITC of the Department's preliminary affirmative determination. If the Department's final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether imports of LWTP from Germany are materially injuring, or threaten material injury to, a U.S. industry. Because we have postponed the deadline for our final determination to 135 days from the date of the publication of this preliminary determination, the ITC will make its final determination within 45 days of our final determination.
Interested parties are invited to comment on the preliminary determination. Interested parties may submit case briefs to the Department no later than seven days after the date of the issuance of the final verification report in this proceeding.
Interested parties who wish to request a hearing, or to participate in a hearing if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. See 19 CFR 351.310(c). At the hearing, oral presentations will be limited to issues raised in the briefs.
Pursuant to section 735(a)(2) of the Act, on February 19, 2008, Koehler, which accounts for a significant proportion of exports of LWTP from Germany, requested that in the event of an affirmative preliminary determination in this investigation, the Department fully extend the final determination (
This determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce
We preliminarily determine that lightweight thermal paper (“LWTP”) from the People's Republic of China (“PRC”) is being, or is likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733 of the Tariff Act of 1930, as amended (“the Act”). The estimated margins of sales at LTFV are shown in the “Preliminary Determination” section of this notice. Pursuant to requests from interested parties, we are postponing the final determination and extending the provisional measures from a four-month period to not more than six months. Accordingly, we will make our final determination not later than 135 days after publication of the preliminary determination.
Frances Veith or Marin Weaver, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4295 or (202) 482-2336, respectively.
On September 19, 2007, Appleton Papers, Inc. (“petitioner” or “Appleton”), filed an antidumping petition in proper form on behalf of the domestic industry and workers producing LWTP, concerning imports of LWTP from Germany, the Republic of Korea (“Korea”), and the PRC, in addition to a countervailing duty petition on LWTP from the PRC. See Antidumping Duty Petition on Lightweight Thermal Paper from Germany, the Republic of Korea, and the People's Republic of China and Countervailing Duty Petition on Lightweight Thermal Paper from the People's Republic of China, dated September 19, 2007 (the “
On October 16, 2007, the Department of Commerce (“the Department”), pursuant to section 732(c)(1)(B) of the Act, extended the deadline for the initiation determination in order to determine the adequacy of the petition.
The Department initiated this investigation on October 29, 2007.
On December 5, 2007, the International Trade Commission (“ITC”) determined that there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury by reason of imports of LWTP from the PRC.
The period of investigation (“POI”) is January 1, 2007, through June 30, 2007. This period corresponds to the two most recent fiscal quarters prior to the month of the filing of the petition, which was September 2007.
On February 6, 2008, petitioner made a timely request pursuant to section 733(c)(1)(A) of the Act and 19 CFR 351.205(b)(2) and (e) for a 50-day postponement of the preliminary determination. On February 25, 2008, the Department published a postponement of the preliminary antidumping duty determination on LWTP from the PRC.
On April 14, 2008, and May 2, 2008, Hanhong International Limited, Shanghai Hanhong Paper Co., Ltd., and Hong Kong Hanhong Ltd. (collectively (“Hanhong”)) and Guangdong Guanhao High-Tech Co., Ltd. (“Guanhao”), respectively, made a timely request pursuant to section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii) that the Department extend the final determination by the full amount of time allowed by law. On May 6, 2008, Hanhong and Guanhao supplemented their requests to extend the final determination to include requests to extend provisional measures pursuant to section 735(a)(2)(A) of the Act and 19 CFR 351.210(e)(2).
The merchandise covered by this investigation includes certain lightweight thermal paper, which is thermal paper with a basis weight of 70 grams per square meter (g/m
We set aside a period for interested parties to raise issues regarding product coverage.
In the
For purposes of initiation, petitioner submitted an LTFV analysis for the PRC as an NME.
In accordance with section 777A(c)(2) of the Act, the Department selected the two largest exporters of LWTP (
The Department issued its antidumping questionnaire to Hanhong and Kosoku on December 3, 2007.
Because our
On January 2, 2008, Ampress submitted a response to the Department stating that it did not have any shipments of LWTP during the POI.
Section 782(a) of the Act states that the Department shall examine voluntary respondents: (1) if they submit information within the deadlines established by the Department, and (2) if the number of voluntary respondents is not so large as to be unduly burdensome and inhibit the Department's timely completion of the review.
In the
On December 4, 2007, Guanhao reported that it had shipped merchandise under consideration during the POI, and requested that it be treated as a voluntary respondent in this investigation. Further, Guanhao submitted sections A, C, and D questionnaire responses on December 21, 2007, January 9, 2008, and January 16, 2008, respectively, within the Department's deadlines established in this investigation. Therefore, on January 18, 2008, we determined to accept the voluntary respondent (
We noted, however, that as explained in our
Surrogate factor valuation comments and surrogate value information with which to value the factors of production (“FOPs”) in this proceeding were filed on February 28, 2008, by Guanhao and on February 29, 2008, by petitioner and Hanhong. On March 12, 2008, petitioner and Hanhong filed rebuttal comments on surrogate factor valuation comments and surrogate value information. For a detailed discussion of the surrogate values used in this LTFV proceeding,
Section 773(c)(1) of the Act directs the Department to base normal value (“NV”) on the NME producer's FOPs, valued in a surrogate market economy (“ME”) country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall use, to the extent possible, the prices or costs of the FOPs in one or more ME countries that are: (1) At a level of economic development comparable to that of the NME country; and (2) significant producers of comparable merchandise. The sources of the surrogate factor values are discussed under the “Factor Valuations” section below.
On December 20, 2007, the Department determined that India, Indonesia, Thailand, the Philippines, and Colombia are countries comparable to the PRC in terms of economic development.
Customarily, we select an appropriate surrogate country from the
In accordance with 19 CFR 351.301(c)(3)(i), for the final determination in antidumping investigations, interested parties may submit publicly available information to value FOPs under 19 CFR 351.408(c) within 40 days after the date of publication of this preliminary determination.
In the
In proceedings involving NME countries, the Department has a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate. It is the Department's policy to assign all exporters of merchandise subject to this investigation in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate. Exporters can demonstrate this independence through the absence of both
No company reported that it is wholly owned by individuals or companies located in a market economy or that it is located outside the PRC in this investigation. Therefore, we are not addressing these ownership structures in this preliminary determination.
In this investigation no company reported that its ownership structure is a joint venture between Chinese and Foreign companies. However, both respondents examined (
The Department considers the following
The evidence provided by Hanhong and Guanhao supports a preliminary finding of
Typically the Department considers four factors in evaluating whether each respondent is subject to
In this case petitioner alleged that Guanhao should not receive a separate rate because there is
The evidence placed on the record of this investigation by Hanhong and Guanhao demonstrate an absence of
The Department has determined that all parties applying for a separate rate in this segment of the proceeding have demonstrated an absence of government control both in law and in fact (see discussion above), and is, therefore, not denying separate-rate status to any respondent (
Sections 776(a)(1) and (2) of the Act provide that the Department shall apply “facts otherwise available” if,
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits, subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Pursuant to section 782(e) of the Act, the Department shall not decline to consider submitted information if all of the following requirements are met: (1) The information is submitted by the established deadline; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability; and (5) the information can be used without undue difficulties.
On December 17, 2007, and December 28, 2007, the Department sent Anne Paper and Yalong a questionnaire asking each whether the company exported merchandise under investigation that entered the United States during the POI.
Because Anne Paper and Yalong did not provide any information, we determine that sections 782(d) and (e) of the Act are not relevant to our analysis. We further find that the Anne Paper and Yalong failed to respond to the Department's requests for information and, therefore, failed to demonstrate that they operate free of government control and that they are entitled to a separate rate. Based on the above facts, the Department preliminarily determines that there were exports of the merchandise subject to this investigation from PRC exporters/producers that did not respond to the Department's shipment questionnaire, and we are treating these PRC exporters/producers as part of the PRC-wide entity. Moreover, because the PRC-wide entity did not cooperate to the best of its ability when it did not respond to our questionnaire asking whether it exported merchandise under investigation that entered the United States during the POI, use of facts available pursuant to section 776(a)(2)(A) and (B) of the Act is warranted for the PRC entity, which includes Anne Paper and Yalong.
Section 776(b) of the Act provides that if an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information, the Department may employ adverse inferences.
In deciding which facts to use as adverse facts available (“AFA”), section 776(b) of the Act and 19 CFR 351.308(c)(1) provide that the Department may rely on information derived from (1) The petition, (2) a final determination in the investigation, (3) any previous review or determination, or (4) any information placed on the record. In selecting a rate for AFA, the Department selects a rate that is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
Generally, the Department finds selecting the highest rate in any segment of the proceeding as AFA to be appropriate.
The Department will consider all margins on the record at the time of the final determination for the purpose of determining the most appropriate AFA rate for the PRC-wide entity including Anne Paper and Yalong.
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation as facts available, it must, to the extent practicable, corroborate that information from independent sources reasonably at its disposal. Secondary information is described as “information derived from the petition that gave rise to the investigation or review, the final determination concerning merchandise subject to this investigation, or any previous review under section 751 concerning the merchandise subject to this investigation.”
As we did not rely upon secondary information, no corroboration was required under section 776(c) of the Act; rather we used the highest margin rate calculated for any respondent in this investigation as the AFA rate for this investigation.
Consequently, we are applying a single antidumping rate—the PRC-wide rate—to producers/exporters that failed to respond to the Department's antidumping questionnaires, or requests for shipment information, or did not apply for a separate rate, as applicable. The PRC-wide rate applies to all entries of the merchandise under investigation except for entries from respondents, Hanhong and Guanhao. These companies and their corresponding antidumping duty cash deposit rates are listed below in the “Preliminary Determination” section of this notice.
To determine whether sales of LWTP to the United States by the respondents were made at LTFV, we compared export price (“EP”) to NV, as described in the “Export Price” and “Normal Value” sections of this notice.
In accordance with section 772(a) of the Act, EP is the price at which the merchandise subject to this investigation is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the merchandise subject to this investigation outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under section 772(c) of the Act. In accordance with section 772(a) of the Act, we used EP for Hanhong's and Guanhao's U.S. sales because the merchandise subject to this investigation was sold directly to the unaffiliated customers in the United States prior to importation and because constructed export price (“CEP”) was not otherwise indicated.
In response to questions raised by the Petitioner, we reviewed Hanhong's relationship with its U.S. customer and find that Hanhong and its U.S. customer were not affiliated during the POI under the meaning of section 771(33) of the Act. Our determination in this regard is based on Hanhong's response that: (1) Its U.S. customer controls the price at which it resells the merchandise under consideration to its U.S. customers; (2) Hanhong's U.S. customer takes title to the merchandise and thus bears the risk of loss; and (3) the written agreement between Hanhong and its U.S. customer allows Hanhong to sell to other U.S. customers and does not restrict its U.S. customer from purchasing thermal paper from other U.S. domestic or foreign suppliers. Accordingly, we treated Hanhong's reported sales to the
We calculated EP based on the packed FOB delivered prices to unaffiliated purchasers in, or for exportation to, the United States. We made deductions, as appropriate, for any movement expenses (
In determining the most appropriate surrogate values to use in a given case, the Department's stated practice is to use period-wide price averages, prices specific to the input in question, prices that are net of taxes and import duties, prices that are contemporaneous with the POI, and publicly available data.
Section 773(c)(1) of the Act provides that the Department shall determine the NV using an FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The Department bases NV on the FOPs because the presence of government controls on various aspects of NMEs renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies.
Guanhao has not provided a complete cost reconciliation to the Department nor has it shown that Guanhao's reported FOPs tie to its accounting system. However, the Department is using Guanhao's reported FOPs to calculate its margin for the preliminary determination and is providing Guanhao with a final opportunity to provide a complete cost reconciliation as requested by the Department in the original questionnaire issued on December 3, 2008, and in the two supplemental questionnaires, issued to Guanhao on February 5, 2008, and March 25, 2008.
A complete cost reconciliation, including all requested support documentation, is hereby due to the Department no later than 14 days after its receipt of our supplemental questionnaire requesting Guanhao to provide its complete cost reconciliation, which we soon intend to issue to Guanhao. Given the fact that Guanhao was first instructed to provide this cost reconciliation on December 3, 2008, the fact that the Department has granted numerous extensions to Guanhao in which to provide its complete cost reconciliation, and in light of the impending verification, which is currently scheduled for early June 2008, and statutorily prescribed deadlines, it is unlikely that the Department will be able to grant Guanhao any additional time to provide a complete cost reconciliation in accordance with the Department's instructions and questions. If Guanhao does not provide a complete cost reconciliation in accordance with the Department's instructions, we may not conduct verification or consider this company's data usable for the final determination and may resort to the use of facts available or AFA for all of Guanhao's data pursuant to sections 776(a) and (b) of the Act. We may revisit this issue for the final determination pending receipt of the data.
In accordance with section 773(c) of the Act, we calculated NV based on FOPs reported by respondents for the POI. To calculate NV, we multiplied the reported per-unit factor-consumption rates by publicly available Indian surrogate values. In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. Specifically, we added to Indian import surrogate values a surrogate freight cost using the shorter of the reported distance from the domestic supplier to the factory of production or the distance from the nearest seaport to the factory of production, where appropriate. This adjustment is in accordance with the U.S. Court of Appeals for the Federal Circuit decision in
Guanhao reported that certain of its reported raw material inputs were sourced from a ME country and paid for in ME currencies. Pursuant to 19 CFR 351.408(c)(1), when a respondent sources inputs from an ME supplier in meaningful quantities (
For this preliminary determination, in accordance with past practice, we used import values from the World Trade Atlas online (“Indian Import Statistics”), published by the Directorate General of Commercial Intelligence and Statistics, Ministry of Commerce of India, which were reported in rupees and are contemporaneous with the POI to calculate surrogate values for the respondents' reported material inputs.
Where we could not obtain publicly available information contemporaneous with the POI with which to value FOPs, we adjusted the surrogate values using, where appropriate, the Indian WPI as published in the IMF's.
Furthermore, with regard to the Indian import-based surrogate values, we have disregarded import prices that we have reason to believe or suspect may be subsidized. We have reason to believe or suspect that prices of inputs from Indonesia, South Korea, and Thailand may have been subsidized. We have found in other proceedings that these countries maintain broadly available, non-industry-specific export subsidies and, therefore, it is reasonable to infer that all exports to all markets from these countries may be subsidized.
In this case, parties have debated which surrogate value is the best available information for valuing coated jumbo rolls of thermal paper (“CJRs”). Hanhong argues in favor of using the average of three Indonesian HTS categories contending that these data account for much larger import quantities than Indian imports of CJRs and represent average unit prices that are more comparative to the “normal value” German benchmark which it calculated from publicly available data from the companion German investigation. Hanhong also asserts that Indian import values for CJRs during the POI are aberrational because of small quantities and specialized imports.
Petitioner argues that the single Indian HTS category is more appropriate as a surrogate value because it is the only value that is specific to CJRs. Additionally, petitioner asserts that these Indian data are not aberrational as evidenced by the pattern of the WTA yearly data for the category showing average prices remaining constant over a three-year period. Petitioner claims that two of the three Indonesian HTS categories submitted by Hanhong do not exist, and the third is incorrect.
All the HTS data, including the Indian and Indonesian values that parties have proposed that the Department use to value the CJRs in this preliminary determination are contemporaneous with the POI and are tax-exclusive values. However, the Indonesian HTS categories submitted by Hanhong are broad basket categories. Where a category is more specific to an input it is the Department's preference to use that category rather than a basket category.
We used Indian transport information to value the inland truck, rail, and waterway freight cost of the raw materials. The Department valued truck freight using Indian freight rates published by Indian Freight Exchange available at
For direct, indirect, and packing labor, consistent with 19 CFR 351.408(c)(3), we used the PRC regression-based wage rate as reported on Import Administration's web page, Import Library, Expected Wages of Selected NME Countries, revised in January 2007, available at
To value electricity, we used data from the International Energy Agency Key World Energy Statistics (2003 edition). Because the value was not contemporaneous with the POI, we adjusted the value for inflation.
The Department valued water using data from the Maharashtra Industrial Development Corporation
To value factory overhead, selling, general, and administrative expenses, and profit, we used audited financial statements for the year ending March 31, 2006, of two Indian producers of identical and comparable merchandise, Parag Copigraph Pvt. Ltd. (“Parag”) and Alpha Carbonless Paper Ltd. (“Alpha”).
We made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
As provided in section 782(i)(1) of the Act, we intend to verify the information from Hanhong and Guanhao upon which we will rely in making our final determination. However, as noted in the “Normal Value” section above, should Guanhao fail to provide a complete cost reconciliation, the Department may determine that there is insufficient cost reconciliation information to warrant verification of any of Guanhao's information on the record.
In the Initiation Notice, the Department stated that it would calculate combination rates for certain respondents that are eligible for a separate rate in this investigation.
The weighted-average dumping margin percentages are as follows:
We will disclose the calculations performed to parties in this proceeding within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with section 733(d) of the Act, we will instruct CBP to suspend liquidation of all entries of merchandise subject to this investigation, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
For the remaining exporter/producer combinations listed in the chart above, the following cash deposit requirements will be effective upon publication of the preliminary determination for all shipments of merchandise under consideration entered or withdrawn from warehouse, for consumption on or after publication date: (1) The rate for the exporter/producer combinations listed in the chart above will be the rate we have determined in this preliminary determination, except as noted above for Guanhao; (2) for all PRC exporters of merchandise subject to this investigation that have not received their own rate, the cash-deposit rate will be the PRC-wide rate; (3) for all non-PRC exporters of merchandise subject to this investigation that have not received their own rate, the cash-deposit rate will be the rate applicable to the PRC exporter/producer combination that supplied that non-PRC exporter. These suspension-of-liquidation instructions will remain in effect until further notice. We will instruct CBP to require a cash deposit or the posting of a bond equal to the weighted-average amount by which the NV exceeds U.S. price, as indicated above. The suspension of liquidation will remain in effect until further notice.
In accordance with section 733(f) of the Act, we have notified the ITC of our preliminary affirmative determination of sales at LTFV. Section 735(b)(2) of the Act requires the ITC to make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of LWTP, or sales (or the likelihood of sales) for importation, of the merchandise under consideration within 45 days of our final determination.
Case briefs or other written comments may be submitted to the Assistant Secretary for Import Administration no later than seven days after the date on which the final verification report is issued in this proceeding and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
In accordance with section 774 of the Act, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs. Interested parties, who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days after the date of publication of this notice.
We will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice and request for comments regarding a proposed extension of an approved information collection requirement.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), DoD announces the proposed extension of a public information collection requirement and seeks public comment on the provisions thereof. DoD invites comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. The Office of Management and Budget (OMB) has approved this information collection requirement for use through May 31, 2008. DoD proposes that OMB extend its approval for use for three additional years.
DoD will consider all comments received by July 14, 2008.
You may submit comments, identified by OMB Control Number 0704-0255, using any of the following methods:
○ Federal eRulemaking Portal:
○ E-mail:
○ Fax: 703-602-7887.
○ Mail: Defense Acquisition Regulations System, Attn: Ms. Amy Williams, OUSD(AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062.
○ Hand Delivery/Courier: Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402.
Comments received generally will be posted without change to
Ms. Amy Williams, 703-602-0328. The information collection requirements addressed in this notice are available on the World Wide Web at:
DFARS 236.570(a) prescribes use of the clause at DFARS 252.236-7000, Modification Proposals—Price Breakdown, in all fixed-price construction contracts. The clause requires the contractor to submit a price breakdown with any proposal for a contract modification.
DFARS 236.570(b) prescribes use of the following clauses in fixed-price construction contracts as applicable:
(1) The clause at DFARS 252.236-7002, Obstruction of Navigable Waterways, requires the contractor to notify the contracting officer of obstructions in navigable waterways.
(2) The clause at DFARS 252.236-7003, Payment for Mobilization and Preparatory Work, requires the contractor to provide supporting documentation when submitting requests for payment for mobilization and preparatory work.
(3) The clause at DFARS 252.236-7004, Payment for Mobilization and Demobilization, permits the contracting officer to require the contractor to furnish cost data justifying the percentage of the cost split between mobilization and demobilization, if the contracting officer believes that the proposed percentages do not bear a reasonable relation to the cost of the work.
DFARS 236.570(c) prescribes use of the following provisions in solicitations for military construction contracts that are funded with military construction appropriations and are estimated to exceed $1,000,000:
(1) The provision at DFARS 252.236-7010, Overseas Military Construction—Preference for United States Firms, requires an offeror to specify whether or not it is a United States firm.
(2) The provision at DFARS 252.236-7012, Military Construction on Kwajalein Atoll—Evaluation Preference, requires an offeror to specify whether it is a United States firm, a Marshallese firm, or other firm.
Department of Education.
Notice of Proposed Information Collection Requests.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
An emergency review has been requested in accordance with the Act (44 U.S.C. Chapter 3507 (j)), since public harm is reasonably likely to result if normal clearance procedures are followed. Approval by the Office of Management and Budget (OMB) has been requested by May 14, 2008.
Written comments regarding the emergency review should be addressed to the Office of Information and Regulatory Affairs, Attention: Bridget Dooling, Desk Officer, Department of Education, Office of Management and Budget; 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503 or faxed to (202) 395-6974.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Director of OMB provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The Office of Management and Budget (OMB) may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g., new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. ED invites public comment.
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected, and (5) how might the Department minimize the burden of this collection on respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements, should be electronically mailed to
20 U.S.C. 1153.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2009 from the list of unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
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If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities can obtain a copy of the application package in an alternative format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides. Page numbers and an identifier may be outside of the 1″ margin.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures and graphs.
• Use a font that is either 12-point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
• The page limit does not apply to Part I, the Application for Federal Assistance Form (SF-424); Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the Table of Contents, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section.
We will reject your application if you exceed the page limit.
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Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
We will not consider an application that does not comply with the deadline requirements.
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Applications for grants under the Underground Railroad Educational and Cultural Program, CFDA Number 84.345A, must be submitted electronically using the Government wide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for The Underground Railroad Educational and Cultural Program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the application requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days; or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Claire D. Cornell, U.S. Department of Education, 1990 K Street, NW., room 6145, Washington, DC 20006-8544. FAX: (202) 502-7877.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
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If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.345A), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
In making grant awards for this program, the Department will consider information concerning the applicant's performance and use of funds from a prior grant in this program or in any other Department program and will consider the applicant's failure to submit an acceptable performance report for a grant in this program or in any other Department program. 34 CFR 75.217(d)(3).
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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For each fiscal year for which an organization receives funding under this program, those organizations must submit to the Department a report that contains: (a) A description and evaluation of the programs and activities supported by the funding; (b) the audited financial statement of the organization for the preceding fiscal year; and (c) a plan for the programs and activities to be supported by the funding. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to:
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• The extent to which funded projects have been institutionalized and continued after URR funding ends.
If you use a TDD, call the FRS, toll free, at 1-800-877-8339.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
These priorities are:
In accordance with Section 499A(b)(2)(B)(i) of the HEA, Individual Development or Cooperative Arrangement Development Grants that propose to increase the number of Hispanic and other low income students attaining degrees in the fields of science, technology, engineering, or mathematics; and
In accordance with Section 499A(b)(2)(B)(ii) of the HEA, Individual Development or Cooperative Arrangement Development Grants that propose to develop model transfer and articulation agreements between two-year HSIs and four-year institutions in such fields.
The Department is not bound by any estimates in this notice. Applicants should periodically check the CCRAA-HSI Program Web site for further information. The address is:
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(1) Be accredited or preaccredited by a nationally recognized accrediting agency or association that the Secretary has determined to be a reliable authority as to the quality of education or training offered;
(2) Be legally authorized by the State in which it is located to be a junior college or community college or to provide an educational program for which it awards a bachelor's degree;
(3) Be designated as an “eligible institution” by demonstrating that it: (a) Has an enrollment of needy students as described in 34 CFR 606.3; and (b) has low average educational and general expenditures per full-time equivalent (FTE) undergraduate student as described in 34 CFR 606.4;
(4) Have an enrollment of undergraduate FTE students that is at least 25 percent Hispanic students at the end of the award year immediately preceding the date of application.
The Third Higher Education Extension Act of 2006 amended section 502(a) of the HEA (20 U.S.C. 1101a(a)(5)(B)) to require that institutions have an enrollment of undergraduate FTE students that is at least 25 percent Hispanic students at the end of the award year immediately preceding the date of application. Funds for the CCRAA-HSI Program are awarded each fiscal year, thus, for this program, the end of the award year refers to the end of the fiscal year prior to the application due date. The end of the fiscal year occurs on September 30 for any given year. Therefore, for purposes of making the determination described in paragraph (4) IHEs must report their undergraduate Hispanic FTE percent based on the student enrollment count closest to, but not after, September 30, 2007.
The Third Higher Education Extension Act of 2006 also amended section 502(a) of the HEA to eliminate the previous statutory requirement in the HSI Program that an IHE applying for a grant provide an assurance that not less than 50 percent of the institution's Hispanic students are low-income individuals.
The Notice Inviting Applications for Designation as Eligible Institutions for FY 2008 was published in the
An eligible HSI that submits more than one application may be awarded both an Individual Development Grant and a Cooperative Arrangement Development Grant, for the CCRAA-HSI Program only, as long as the proposed activities are different for each grant application and are different from the activities funded by the institution's current Title V, HSI grant.
In considering applications for grants under this program, the Department will verify data reported by the institution on its application with the information reported by the institution to the Department's Integrated Postsecondary Education Data System (IPEDS), the IHE's State-reported enrollment data, and the institutional annual report. If there are any differences in the percentages reported in the IPEDS and the percentages reported in the CCRAA-HSI grant application, the IHE should explain the differences as a part of its eligibility documentation.
If you are a four-year HSI institution planning to submit a CCRAA-HSI application supporting the competitive preference priorities, the two-year HSI will be required to submit its assurance of 25 percent enrollment of undergraduate FTE Hispanic students.
2.
1.
If you use a telecommunications device for the deaf (TDD), call the
Individuals with disabilities can obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the program contact person listed in this section.
2.
Page Limit: The application narrative (Part III) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. We have established mandatory page limits for both the Individual Development Grant and the Cooperative Arrangement Development Grant applications. You must limit the section of the narrative that addresses the selection criteria to no more than 35 pages for the Individual Development Grant application and 55 pages for the Cooperative Arrangement Development Grant application, using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman and Arial Narrow) will not be accepted.
The page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications, or the one-page abstract.
We will reject your application if you exceed the page limit.
3.
Applications Available: May 13, 2008.
Deadline for Transmittal of Applications: June 27, 2008.
Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Deadline for Intergovernmental Review: August 26, 2008.
4.
5.
Applicants that apply for construction funds under the CCRAA-HSI Program must comply with Executive Order 13202 signed by President Bush on February 17, 2001, and amended on April 6, 2001. This Executive order provides that recipients of Federal construction funds may not “require or prohibit bidders, offerors, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations, on the same or other construction project(s)” or “otherwise discriminate against bidders, offerors, contractors, or subcontractors for becoming or refusing to become or remain signatories or otherwise adhere to agreements with one or more labor organizations, on the same or other construction project(s).” However, the Executive order does not prohibit contractors or subcontractors from voluntarily entering into these agreements. Projects funded under this program that include construction activity will be provided a copy of this Executive order and will be asked to certify that they will adhere to it.
6.
a.
Applications for grants under the CCRAA-HSI Program, CFDA Number 84.031C, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for the CCRAA-HSI Program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424 —have replaced the ED 424 (Application for Federal Education Assistance).
• You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Carnisia M. Proctor, U.S. Department of Education, 1990 K Street, NW., 6th Floor, Washington, DC 20006-8513. FAX: (202) 502-7861. Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.031C), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
Additional information regarding these criteria is in the application package for this competition.
2.
The 25 percent requirement applies only to undergraduate Hispanic students and is calculated based upon FTE students. Instructions for formatting and submitting the verification documentation to Grants.gov are in the application package for this competition.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
5.
If you use a TDD, call the FRS, toll free, at 1-800-877-8339.
To use PDF, you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
The Department is not bound by any estimates in this notice.
1.
(A) Has an enrollment of needy students as defined by the CCRAA of 2007. The term
(a) In the second fiscal year preceding the fiscal year for which the determination is made, were Federal Pell Grant recipients for such year;
(b) Come from families that receive benefits under a means-tested Federal benefit program (as defined in paragraph (5));
(c) Attended a public or nonprofit private secondary school—
(i) That is in the school district of a local educational agency that was eligible for assistance under part A of title I of the Elementary and Secondary Education Act of 1965 for any year during which the student attended such secondary school; and
(ii) Which for the purpose of this paragraph and for that year was determined by the Secretary (pursuant to regulations and after consultation with the State educational agency of the State in which the school is located) to be a school in which the enrollment of children counted under a measure of poverty described in section 1113(a)(5) of such Act exceeds 30 percent of the total enrollment of such school; or
(d) Are first-generation college students (as that term is defined in section 402A(g)), and a majority of such first-generation college students are low-income individuals. The term low-income individual has the meaning given such term in section 402A(g).
(B) Has an average educational and general expenditure which is low, per full-time equivalent undergraduate student in comparison with the average educational and general expenditure per full-time equivalent undergraduate student of institutions of higher education that offer similar instruction. The Secretary may waive this requirement, in accordance with section 392(b) of the HEA in the same manner as the Secretary applies the waiver requirements to grant applicants under section 312(b)(1)(B) of the HEA;
(C) Has an enrollment of undergraduate students—
i. That is at least 40 percent Black American students;
ii. That is at least 1,000 undergraduate students;
iii. Of which not less than 50 percent of the undergraduate students enrolled at the institution are low-income individuals or first-generation college students (as that term is defined in section 402A(g); The term
iv. Of which not less than 50 percent of the undergraduate students are enrolled in an educational program leading to a bachelor's or associate's degree that the institution is licensed to award by the State in which the institution is located;
(D) Is legally authorized to provide, and provides within the State, an educational program for which the institution of higher education awards bachelor's degree, or in the case of a junior or community college, an associate's degree;
(E) Is accredited by a nationally recognized accrediting agency or association determined by the Secretary to be a reliable authority as to the quality of training offered, or is, according to such an agency or association, making reasonable progress toward accreditation; and
(F) Is not receiving assistance under Part B of Title III of the HEA, as amended by the CCRAA of 2007.
2.
1.
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities can obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the program contact person listed in this section.
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides. Page numbers and an identifier may be outside of the 1″ margin.
• Double space (no more than three lines per vertical inch) all text in the application narrative, except titles, headings, footnotes, quotations, references, and captions. Charts, tables, figures, and graphs in the application narrative may be single spaced and will count toward the page limit.
• Use a font that is either 12-point or larger or no smaller than 10 pitch (characters per inch). However, you may use a 10-point font in charts, tables, figures, and graphs.
• Use one of the following fonts: Times New Roman, Courier, Courier New or Arial. Applications submitted in any other font (including Times Roman and Arial Narrow) will be rejected.
• The page limit does not apply to Part I, the Department of Education Supplemental Information for SF-424 form (SF-424); Part II, the Budget Information Non-Construction Programs form (ED 524); and Part IV, the Assurances and Certifications. The page limit also does not apply to a table of contents. If you include any attachments or appendices not specifically requested, these items will be counted as part of the program narrative (Part III) for purposes of the page limit requirement. You must include your complete response to the selection criteria in the program narrative.
We will reject your application if you exceed the page limit or if you apply other standards and exceed the equivalent of the page limit.
3.
Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Deadline for Intergovernmental Review: August 26, 2008.
4.
5.
6.
a.
Applications for grants under the Predominantly Black Institutions Program, CFDA Number 84.382A, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for the Predominantly Black Institutions program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF-424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an Ed-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice. If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact either of the persons listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Karen W. Johnson, U.S. Department of Education, 1990 K Street, NW., room 6032, Washington, DC 20006-8515, FAX: (202) 502-7861.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.382A), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
Additional information regarding these criteria is in the application package for this competition.
2.
The 40 percent requirement applies only to
1.
If your application is not evaluated or not selected for funding, we will notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(1) The number of full-time degree-seeking undergraduates enrolling at Predominantly Black Institutions (PBI).
(2) The increase in the persistence rate for students enrolled at PBIs.
If you use a TDD, call the FRS, toll free, at 1-800-877-8339.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.
The official version of this document is the document published in the
Federal Energy Regulatory Commission.
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 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 June 9, 2008.
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 the acceptable filing format and in compliance with the Federal Energy Regulatory Commission's submission guidelines. Complete filing instructions and acceptable filing formats are available at (
All comments may be viewed, printed or downloaded remotely via the Internet through FERC's homepage using the eLibrary link. For user assistance, contact
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.
When the Commission completes a study of a river basin, it determines headwater benefits charges that will be apportioned among the various downstream beneficiaries. A headwater benefits charge, and the cost incurred by the Commission to complete an evaluation are paid by downstream hydropower project owners. In essence, the owners of non-federal hydropower power projects that directly benefit from a headwater(s) improvement must pay an equitable portion of the annual charges for interest, maintenance, and depreciation of the headwater project to the U.S. Treasury. The regulations provide for the apportionment of these costs between the headwater project and downstream projects based on a downstream energy gains and propose equitable apportionment methodology that can be applied to all river basins in which headwater improvements are built. The data the Commission requires owners of non-federal hydropower projects to file for determining annual charges is specified in 18 Code of Federal Regulations (CFR) Part 11.
5.
6.
7.
Section 10(f) of the Federal Power Act, 16 U.S.C. 803.
Take notice that on March 31, 2008, Columbia Gas Transmission Corporation (Columbia) and Somerset Gas Gathering of Pennsylvania, LLC (Somerset), filed in Docket Nos. CP06-466-001 and CP06-467-001, to amend the pending applications filed in Docket Nos. CP06-466-000 and CP06-467-000 to modify Somerset's plan for future operations of the facilities to be acquired and to provide additional technical and factual details regarding the 1818/1862 System. Specifically, Somerset clarifies that it plans to cut and cap certain portions of 1818/1862 System in order to better facilitate the functionalization of the facilities as gathering lines while ensuring the limited nature of the
Any questions regarding this application should be directed to Gregory D. Russell, Vorys, Sater, Seymour and Pease, LLP, 52 East Gay Street, P.O. Box 1008, Columbus, Ohio 43216-1008; telephone (614) 464-5468, fax (614) 719-4935, and/or Fredric J. George, Lead Counsel, Columbia Gas Transmission Corporation, P.O. Box 1273, Charleston, West Virginia 25325-1273; telephone (304) 357-2359, fax (304) 357-3206.
Pursuant to Section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on April 29, 2008, Transcontinental Gas Pipe Line Corporation (Transco), Post Office Box 1396, Houston, Texas 77251, filed in Docket No. CP08-207-000, an application, pursuant to sections 7(b) and 7(c) of the Natural Gas Act (NGA), for an order authorizing Transco to: (1) Abandon its Hester Storage Field and a portion of the connecting pipeline (Hester Lateral), located in St. James Parish, Louisiana; and (2) install temporary compression to facilitate the withdrawal of recoverable injected base gas from the Hester Storage Field, all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing is accessible on-line at
Transco states that the abandonment of the Hester Storage Field is necessary because of continuing gas losses from the reservoir. Transco estimates that the complete abandonment of the storage field will take approximately three years (2009-2011) with the first two years devoted to withdrawing the recoverable
Any questions regarding this application should be directed to Ingrid Germany, Transcontinental Gas Pipe Line Corporation, Post Office Box 1396, Houston, Texas 77251 at (713) 215-4015.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the following hydroelectric applications have been filed with the Commission and are available for public inspection:
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All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13112-000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
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Take notice that the following hydroelectric applications have been filed with the Commission and are available for public inspection:
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All documents (original and eight copies) should be filed with: Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
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Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following open access transmission tariff filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and § 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric corporate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
On February 1, 2008, a notice was issued designating the staff of the Office of Enforcement as non-decisional in deliberations by the Commission in this docket, with certain limited exceptions. Exceptions to this designation are the Director of the Office of Enforcement and the Directors of the Divisions of Investigations, Energy Market Oversight, Audits, and Financial Regulation in the Office of Enforcement. This supplemental notice designates Shauna Coleman, an attorney in the Division of Investigations, Office of Enforcement, as an exception to the designation of the staff of the Office of Enforcement as non-decisional. Ms. Coleman joined the Commission after the February 1, 2008 notice was issued and did not participate in the investigation at issue in this proceeding.
On March 25, 2008, the Commission issued a “Notice of Intent to File License Application, Filing of Pre-Application Document, Commencement of Licensing Proceeding, Scoping, Solicitation of Comments on the PAD and Scoping Document, and Identification of Issues and Associated Study Requests” in the above-referenced proceeding. Paragraph (o) of the notice stated an incorrect due date and should read as follows:
o. With this notice, we are soliciting comments on the PAD and Scoping Document 1 (SD1), as well as study requests. All comments on the PAD and SD1, and study requests should be sent to the address above in paragraph (h). In addition, all comments on the PAD and SD1, study requests, requests for cooperating agency status, and all communications to and from Commission staff related to the merits of the potential application (an original and eight copies) must be filed with the Commission at the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. All filings with the Commission must include on the first page, the project name (French Meadows Transmission Line Project) and number (P-2479-010), and bear the heading “Comments on Pre-Application Document,” “Study Requests,” “Comments on Scoping Document 1,” “Request for Cooperating Agency Status,” or “Communications to and from Commission Staff.” Any individual or entity interested in submitting study requests, commenting on the PAD or SD1, and any agency requesting cooperating status must do so by May 27, 2008.
Raider Dog, LLC (Raider Dog) filed an application for market-based rate authority, with an accompanying rate schedule. The proposed market-based rate schedule provides for the sale of energy and capacity at market-based rates. Raider Dog also requested waivers of various Commission regulations. In particular, Raider Dog requested that the Commission grant blanket approval under 18 CFR Part 34 of all future issuances of securities and assumptions of liability by Raider Dog.
On May 6, 2008, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-West, granted the requests for blanket approval under Part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing protests is June 5, 2008.
Absent a request to be heard in opposition to such blanket approvals by the deadline above, Raider Dog is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Raider Dog, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of Raider Dog's issuance of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Safe Harbor Water Power Corporation (Safe Harbor) filed an application for market-based rate authority, with an accompanying rate schedule. The proposed market-based rate schedule provides for the sale of energy and capacity at market-based rates. Safe Harbor also requested waivers of various Commission regulations. In particular, Safe Harbor requested that the Commission grant blanket approval under 18 CFR Part 34 of all future issuances of securities and assumptions of liability by Safe Harbor.
On May 6, 2008, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-West, granted the requests for blanket approval under Part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing protests is June 5, 2008. Absent a request to be heard in opposition to such blanket approvals by the deadline above, Safe Harbor is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Safe Harbor, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of Safe Harbor's issuance of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on April 29, 2008, Regency Intrastate Gas LLC filed a petition for rate approval for NGPA section 311 maximum interruptible transportation rate equal to $0.2000 per MMBtu, a monthly firm demand charge of $4.5625 per MMBtu ($0.1500 per MMBtu daily), and a firm usage rate of $0.0500 per MMBtu pursuant to section 284.123(b)(2) of the Commission's regulations, with a proposed effective date of May 1, 2008.
Any person desiring to participate in this rate proceeding must file a motion to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Environmental Protection Agency (EPA).
Notice.
This document announces the Office of Management and Budget's (OMB) responses to Agency Clearance requests, in compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Rick Westlund (202) 566-1682, or e-mail at
EPA ICR Number 2156.02; Populations, Usage and Emissions of Diesel Nonroad Equipment (Renewal); was approved 04/08/2008; OMB Number 2060-0553; expires 04/30/2010.
EPA ICR Number 0661.09; NSPS for Asphalt Processing and Roofing Manufacturing (Renewal); in 40 CFR part 60, subpart UU; was approved 04/08/2008; OMB Number 2060-0002; expires 04/30/2011.
EPA ICR Number 1741.05; Correction of Misreported Chemical Substances on the Toxic Substances Control Act (TSCA) Chemical Substances Inventory; was approved 04/09/2008; OMB Number 2070-0145; expires 04/30/2011.
EPA ICR Number 2268.02; NESHAP for Paint Stripping and Miscellaneous Surface Coating at Area Sources (Final Rule); in 40 CFR part 63, subpart HHHHHH; was approved 04/10/2008; OMB Number 2060-0607; expires 04/30/2011.
EPA ICR Number 1767.05; NESHAP for Primary Aluminum Reduction Plants (Renewal); in 40 CFR part 63, subpart LL; was approved 04/14/2008; OMB Number 2060-0360; expires 04/30/2011.
EPA ICR Number 1626.10; National Recycling and Emissions Reduction Program (Renewal); in 40 CFR part 82, subpart F; was approved 04/25/2008; OMB Number 2060-0256; expires 04/30/2011.
EPA ICR Number 1975.05; NESHAP for Stationary Reciprocating Internal Combustion Engines (Final Rule); in 40 CFR part 63, subpart ZZZZ; was approved 05/01/2008; OMB Number 2060-0548; expires 04/30/2011.
EPA ICR Number 2047.02; Participation by Disadvantaged Business Enterprises in Procurement under Environmental Protection Agency (EPA) Financial Assistance Agreements (Final Rule); was approved 05/01/2008; OMB Number 2090-0030; expires 01/31/2011.
Environmental Protection Agency (EPA).
Notice.
Pursuant to the Federal Advisory Committee Act, EPA gives notice of a public meeting of the Pesticide Program Dialogue Committee (PPDC) on May 21 and 22, 2008. A draft agenda has been developed that includes web-based labeling; toxicity testing; harmonization and global registration activities; endangered species; pesticide program resources; updates on spray drift, cause marketing, volatilization, endocrine disruptors, and inerts; and reports from the PPDC PRIA Process Improvements Work Group.
The PPDC meeting will be held on Wednesday, May 21, 2008, from 9 a.m. to 5:15 p.m., and Thursday, May 22, 2008, from 9 a.m. to noon.
To request accommodation of a disability, please contact the person listed under
The meeting will be held in the Conference Center on the lobby level at the U.S. Environmental Protection Agency's location at One Potomac Yard South, 2777 Crystal Drive, Arlington, VA. This location is approximately a half mile from the Crystal City Metro Station.
Margie Fehrenbach, Office of Pesticide Programs (7501P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-4775; fax number: (703) 308-4776; e-mail address:
This action is directed to the public in general, and may be of particular interest to persons who work in agricultural settings or persons who are concerned about implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Federal Food, Drug, and Cosmetic Act (FFDCA) and the amendments to both of these major pesticide laws by the Food Quality Protection Act (FQPA) of 1996; and the Pesticide Registration Improvement Act. Potentially affected entities may include, but are not limited to: Agricultural workers and farmers; pesticide industry and trade associations; environmental, consumer, and farmworker groups; pesticide users and growers; pest consultants; State, local and Tribal governments; academia; public health organizations; food processors; and the public. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
A draft agenda has been developed and is posted on EPA's web site at:
OPP is entrusted with the responsibility to help ensure the safety of the American food supply, the education and protection from unreasonable risk of those who apply or are exposed to pesticides occupationally or through use of products, and general protection of the environment and special ecosystems from potential risks posed by pesticides.
The Charter for the Environmental Protection Agency's Pesticide Program Dialogue Committee (PPDC) was established under the Federal Advisory Committee Act (FACA), Public Law 92-463, in September 1995, and has been renewed every 2 years since that time. PPDC's Charter was renewed November 2, 2007, for another 2-year period. The purpose of PPDC is to provide advice and recommendations to the EPA Administrator on issues associated with pesticide regulatory development and reform initiatives, evolving public policy and program implementation issues, and science issues associated with evaluating and reducing risks from use of pesticides. It is determined that PPDC is in the public interest in connection with the performance of duties imposed on the Agency by law. The following sectors are represented on the PPDC: Pesticide industry and trade associations; environmental/public interest, consumer, and animal rights groups; farm worker organizations; pesticide user, grower, and commodity groups; Federal and State/local/Tribal governments; the general public; academia; and public health organizations.
Copies of the PPDC Charter are filed with appropriate committees of Congress and the Library of Congress and are available upon request.
PPDC meetings are open to the public and seating is available on a first-come basis. Persons interested in attending do not need to register in advance of the meeting.
Environmental protection, Agricultural workers, Agriculture, Chemicals, Foods, Pesticides and pests, Public health.
The open meeting of the Board of Directors is scheduled to begin at 10 a.m. on Wednesday, May 14, 2008. The closed portion of the meeting will follow immediately the open portion of the meeting.
Board Room, First Floor, Federal Housing Finance Board, 1625 Eye Street, NW., Washington, DC 20006.
The first portion of the meeting will be open to the public. The final portion of the meeting will be closed to the public.
Shelia Willis, Paralegal Specialist, Office of General Counsel, at 202-408-2876 or
By the Federal Housing Finance Board.
Federal Maritime Commission.
Notice and request for comments.
As part of our continuing effort to reduce paperwork and respondent burden, and as required by the Paperwork Reduction Act of 1995, the Federal Maritime Commission invites comments on the continuing information collections (extensions with no changes) listed below in this notice.
Comments must be submitted on or before July 14, 2008.
You may send comments to: Anthony Haywood, Chief Information Officer, Office of Administration, Federal Maritime Commission, 800 North Capitol Street, NW., Washington, DC 20573, (Telephone: (202) 523-5800),
To obtain additional information, copies of the information collections and their instructions, or copies of any comments received, contact Jane Gregory, Management Analyst, Office of Administration, Federal Maritime Commission, 800 North Capitol Street, NW., Washington, DC 20573, (Telephone: (202) 523-5800),
The Federal Maritime Commission, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the continuing information collections listed in this notice, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments submitted in response to this notice will be included or summarized in our request for Office of Management and Budget (OMB) approval of the relevant information collection. All comments are part of the public record and subject to disclosure. Please do not include any confidential or inappropriate material in your comments. We invite comments on: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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 indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than May 28, 2008.
Board of Governors of the Federal Reserve System, May 8, 2008.
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 applications 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
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 June 6, 2008.
Board of Governors of the Federal Reserve System, May 8, 2008.
Office of Governmentwide Policy, General Services Administration (GSA).
Notice of a bulletin.
The attached bulletin provides updated information to Federal agencies regarding the initiative to convert to commercial payment processes for postage. GSA Bulletin FMR G-01 may also be found at
This bulletin announced is effective from April 11, 2008 until April 13, 2009.
For clarification of content, contact Derrick Miliner, Program Director, Mail Management Policy, Office of Governmentwide Policy, General Services Administration, Washington, DC 20405, at (202) 273-3564 or
Section 102-192.50(c) of the Federal Management Regulation (FMR) (41 CFR 102-192.50(c)) states that “beginning December 31, 2003, all payments to the United States Postal Service must be made using commercial payment processes, not OMAS” (Official Mail Accounting System). If agencies did not convert by that date, they were required to submit a deviation request for an extension. If granted, the deviations could last for no longer than a two-year period, at which time agencies had to request another deviation.
TO: Heads of Federal agencies
SUBJECT: Conversion to Commercial Payment Processes for Postage
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While many agencies have successfully converted to commercial payment, several have not yet done so, or have only partially done so.
Some agencies state that they can show accountability for postage using OMAS and have asked the General Services Administration (GSA) to review the goals of the commercial payment initiative. GSA has agreed to do so.
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Agencies that have outstanding deviation requests, or that need to submit a deviation request soon, do not need to submit a formal updated deviation request during the time period covered by this bulletin. GSA is granting these agencies an automatic 12-month deviation. Agencies that have current unexpired deviations on file that last beyond the 12-month period do not need to take any additional action.
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Before the 12-month period is complete, GSA will issue additional guidance if in fact there are new options for showing accountability for postage costs besides converting to commercial payment. If, after review, GSA determines there are no additional options, agencies will be expected to proceed toward conversion.
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National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
The inventors have developed a series of immortalized cell lines, selected to represent the different cell types found in angiogenesis
Patent Status: U.S. Patent Application No. 12/060,752 filed 01 Apr 2008 (HHS Reference No. E-281-2007/0-US-02)
SCGB3A2 administration
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the meeting of the President's Cancer Panel.
The meeting will be closed to the public in accordance with the provisions set forth in section 552b(c)(9)(B), Title 5 U.S.C., as amended, because the premature disclosure of information and the discussions would be likely to significantly frustrate implementation of recommendations.
Any interested person may file written comments with the committee by forwarding the comments to the Contact Person listed on this notice. The comments should include the name, address, telephone number and, when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Time: 1 p.m. to 4 p.m.
Agenda: To review and evaluate grant applications.
Federal Emergency Management Agency, DHS.
Notice; 30-day notice and request for comments; Extension of a currently approved collection; OMB Number 1660-0103, FEMA Form 81-112.
The Federal Emergency Management Agency (FEMA) has submitted the following information collection to the Office of Management and Budget (OMB) for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission describes the nature of the information collection, the categories of respondents, the estimated burden (
Requests for additional information or copies of the information collection should be made to Director, Records
Federal Emergency Management Agency, DHS.
Notice; 30-day notice and request for comments; Revision of a currently approved collection, OMB 1600-0062, No Forms.
The Federal Emergency Management Agency (FEMA) has submitted the following information collection to the Office of Management and Budget (OMB) for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission describes the nature of the information collection, the categories of respondents, the estimated burden (
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 500 C Street, SW., Washington, DC 20472, Mail Drop Room 301, 1800 S. Bell Street, Arlington, VA 22202, facsimile number (202) 646-3347, or e-mail address
Federal Emergency Management Agency, DHS.
Notice; 30-day notice and request for comments; Extension of a currently approved collection 1660-0025, Standard Forms: SF-LLL, SF-424, SF-270, FEMA Forms: 20-10, 20-15, 20-16A, 20-16B, 20-16C, 20-17, 20-18, 20-19, 20-20, and 76-10A.
The Federal Emergency Management Agency (FEMA) has submitted the following information collection to the Office of Management and Budget (OMB) for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission describes the nature of the information collection, the categories of respondents, the estimated burden (
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 500 C Street, SW., Washington, DC 20472, Mail Drop Room 301, 1800 S. Bell Street, Arlington, VA 22202, facsimile number (202) 646-3347, or e-mail address
Federal Emergency Management Agency, DHS.
Notice; 60-day notice and request for comments; Extension, without change, of a currently approved collection, OMB Number 1660-0020; No Forms.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork
Under the Write Your Own (WYO) Program, FEMA regulation 44 CFR 62.3 authorizes the Federal Insurance Administrator to enter into arrangements with individual private sector insurance companies that are licensed to engage in the business of property insurance. To insure that any policyholder money is accounted for and appropriately expended, the Federal Insurance and Mitigation Administration (FIMA) and WYO companies implemented a Financial Control Plan under FEMA regulation 44 CFR Part 62, Appendix B. This plan requires that each WYO company submit financial data on a monthly basis.
Interested persons should submit written comments to Office of Management, Records Management Division, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, Mail Drop Room 301, 1800 S. Bell Street, Arlington, VA 22202.
Contact Kevin Montgomery, Financial Management Specialist, Federal Insurance and Mitigation Administration, (301) 918-1453 for additional information. You may contact the Records Management Section for copies of the proposed collection of information at facsimile number (202) 646-3347 or e-mail address:
Federal Emergency Management Agency, DHS.
Notice; 60-day notice and request for comments; Extension, without change, of a currently approved collection, OMB Number 1660-0017, FEMA Form 90-49; FEMA Form 90-91; FEMA Form 90-91A; FEMA Form 90-91B; FEMA Form 90-91C; FEMA Form 90-91D; FEMA Form 90-120; FEMA Form 90-121; FEMA Form 90-123; FEMA Form 90-124; FEMA Form 90-125; FEMA Form 90-126; FEMA Form 90-127; FEMA Form 90-128.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a continuing information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the Public Assistance progress report and related forms used to administer the Public Assistance Program.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 93-288, as amended, authorizes the President to provide assistance to state and local government to help them to respond to and recover from a disaster.
Interested persons should submit written comments to Office of Management, Records Management Division, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, Mail Drop Room 301, 1800 S. Bell Street, Arlington, VA 22202.
Contact Clifford Brown, Program Specialist, Public Assistance Grant Program at (202) 646-4136 for additional information. You may contact the Records Management Division for copies of the proposed collection of information at facsimile number (202) 646-3347 or email address:
Federal Emergency Management Agency, DHS.
Notice; 30-day notice and request for comments; Extension of a currently approved collection; OMB Number 1660-0104, No Forms.
The Federal Emergency Management Agency (FEMA) has submitted the following information collection to the Office of Management and Budget (OMB) for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission describes the nature of the information collection, the categories of respondents, the estimated burden (
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 500 C Street, SW., Washington, DC 20472, Mail Drop Room 301, 1800 S. Bell Street, Arlington, VA 22202, facsimile number (202) 646-3347, or e-mail address
60-Day Notice of Information Collection Under Review: Form I-602; Application by Refugee for Waiver of Grounds of Excludability; OMB No. 1615-0069.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until July 14, 2008.
Written comments and suggestions regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, NW., 3rd Floor, Suite 3008, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352, or via e-mail at
During this 60-day period USCIS will be evaluating whether to revise the Form I-602. Should USCIS decide to revise the Form I-602 it will advise the public when it publishes the 30-day notice in the
Written comments and suggestions from the public and affected agencies concerning the collection of information should address one or more of the following four points:
(1) Evaluate 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;
(2) Evaluate the accuracy of the agencies estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the information collection instrument, please visit:
We may also be contacted at: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529, telephone number 202-272-8377.
60-Day Notice of Information Collection Under Review; Form I-817, Application for Family Unity Benefits; OMB Control No. 1615-0005.
The Department of Homeland Security, U.S. Citizenship and Immigration Services has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until July 14, 2008.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Management Division, Clearance Officer, 111 Massachusetts Avenue, 3rd Floor, Suite 3008, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
During this 60-day period USCIS will be evaluating whether to revise the Form I-817. Should USCIS decide to revise the Form I-817 it will advise the public when it publishes the 30-day notice in the
Written comments and suggestions from the public and affected agencies concerning the collection of information should address one or more of the following four points:
(1) 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;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) 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, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the information collection instrument, please visit:
We may also be contacted at: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529, telephone number 202-272-8377.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
This information in the 92013 form is necessary (a) to determine the viability of a hospital applicant's proposal for mortgage insurance: basic eligibility criteria; underwriting standards; feasibility study; and adequacy of state and/or local certifications, approvals, or waivers and (b) to regulate and monitor hospitals with insured mortgage loans. The 93305 form is needed to insure proper recordation of project costs, identify and monitor identify of interests between the Mortgagor and General Contractor, subcontractors, suppliers, or equipment lessors and agree upon procedures when such identity of interests arise, and to insure conformity with the National Housing Act and its Regulations.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2502-0518) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Lillian Deitzer, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Lillian Deitzer at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of
This notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
This notice advises of the cause and effect of termination of Origination Approval Agreements taken by HUD's Federal Housing Administration (FHA) against HUD-approved mortgagees through the FHA Credit Watch Termination Initiative. This notice includes a list of mortgagees which have had their Origination Approval Agreements terminated.
The Quality Assurance Division, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street, SW., Room B133-P3214, Washington, DC 20410-8000; telephone (202) 708-2830 (this is not a toll free number). Persons with hearing or speech impairments may access that number through TTY by calling the Federal Information Relay Service at (800) 877-8339.
HUD has the authority to address deficiencies in the performance of lenders' loans as provided in HUD's mortgagee approval regulations at 24 CFR 202.3. On May 17, 1999 HUD published a notice (64 FR 26769), on its procedures for terminating Origination Approval Agreements with FHA lenders and placement of FHA lenders on Credit Watch status (an evaluation period). In the May 17, 1999 notice, HUD advised that it would publish in the
Loans that closed or were approved before the termination became effective may be submitted for insurance endorsement. Approved loans are (1) those already underwritten and approved by a Direct Endorsement (DE) underwriter employed by an unconditionally approved DE lender and (2) cases covered by a firm commitment issued by HUD. Cases at earlier stages of processing cannot be submitted for insurance by the terminated branch; however, they may be transferred for completion of processing and underwriting to another mortgagee or branch authorized to originate FHA insured mortgages in that area. Mortgagees are obligated to continue to pay existing insurance premiums and meet all other obligations associated with insured mortgages.
A terminated mortgagee may apply for a new Origination Approval Agreement if the mortgagee continues to be an approved mortgagee meeting the requirements of 24 CFR 202.5, 202.6, 202.7, 202.8 or 202.10 and 202.12, if
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
SHOP provides for funds to purchase home sites and develop/improve infrastructure to support sweat equity and volunteer-based homeownership programs for low-income persons and families. This information collection is to measure performance goals and demonstrate the success of the program.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2506-0157) should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Lillian Deitzer, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Lillian Deitzer at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) 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; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. This notice also lists the following information:
SHOP provides for funds to purchase home sites and develop/improve infrastructure to support sweat equity and volunteer-based homeownership programs for low-income persons and families. This information collection is to measure performance goals and demonstrate the success of the program.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Bureau of Indian Affairs, Interior.
Nomination of Tribal Representatives to a Department of the Interior Advisory Committee on Tribal Energy Policy.
The Department of the Interior's Assistant Secretary—Indian Affairs (AS-IA) is forming a Tribal Energy Policy Advisory Committee (Committee) of tribal officials and Federal representatives to provide advice on implementing regulations promulgated under the Indian Tribal Energy Development and Self-Determination Act of 2005 (Act) and other Indian energy resource development matters. The AS-IA is requesting nominations to the Committee for tribal representatives of federally recognized Indian tribes from all of the Bureau of Indian Affairs regions except Alaska (the Act does not include Alaska).
Submit nominations by June 27, 2008. We will not consider nominations received after this date.
You must submit the nominations for the Tribal Energy Policy Advisory Committee by mail or hand-carry to the Department of the Interior, Office of Indian Energy and Economic Development, Attention: Nominations—Tribal Energy Policy Advisory Committee, Room 20, South Interior Building, 1951 Constitution Avenue, NW., Washington, DC 20245.
Darryl Francois, Office of Indian Energy and Economic Development, Division of Indian Energy Policy, Room 20, South Interior Building, 1951 Constitution Avenue, NW., Washington, DC 20245, Telephone (202) 219-0740 or Fax (202) 208-4564.
On March 10, 2008, the Secretary published final regulations at 25 CFR part 224, which provide that Indian tribes may enter into Tribal Energy Resource Agreements (TERAs) with the Secretary. Under approved TERAs, at their discretion, tribes may enter into leases, business agreements, and rights-of-way for energy resource development without Secretarial review or approval. The purpose of the Committee is to advise the Secretary and the Assistant Secretary—Indian Affairs on Indian energy policy matters.
The Committee will meet twice yearly. All Committee representatives are expected to attend each meeting. If selected for Committee membership, tribal representatives must agree that they are able and will inform other interested tribes in their regions of advisory committee activities and bring to the attention of the advisory committee energy resource development concerns of other tribes in their regions.
Tribal representative nominees must be elected officials of tribal governments or designated employees of elected tribal officials with authority to act on their behalf. Nominees must have demonstrable background and experience in energy resource development including, but not limited to, technical, administrative, managerial, or financial, aspects of energy resource development. Energy resource development includes resources identified in 25 CFR 224.103.
Nominations must be made by tribal leaders on official letterhead. Nominations for each tribal representative must state the nominee's official status with the tribal government (elected official or designated employee with authority to act on an elected official's behalf). Nominations must include relevant background and experience in energy resource development and must include a current resume. Nominations must be accompanied by a tribal resolution that recommends that the nominee be appointed to the Tribal Energy Policy Advisory Committee.
The AS-IA will name up to 11 tribal representatives who will be notified in writing of their selection. Tribal representatives' travel expenses to the Committee meetings will be paid in accordance with current General Services Administration regulations.
Department of the Interior, National Park Service.
Notice and request for comments.
Under provisions of the Paperwork Reduction Act of 1995 and 5 CFR Part 1320. Reporting and Recordkeeping Requirements, the National Park Service (NPS) invites public comments on a proposed new collection of information (OMB # 1024-XXXX).
Public comments on this Information Collection Request (ICR) will be accepted on or before June 12, 2008.
You may submit comments directly to the Desk Officer for the Department of the Interior (OMB #1024-XXXX), Office of Information and Regulatory Affairs, OMB, by fax at 202/395-6566, or by electronic mail at
Dr. James Gramann, NPS Social Science Program, 1201 “Eye” St., Washington, DC 20005; or via phone at 202/513-7189; or via e-mail at
The NPS published a 60-Day Notice to solicit public comments on this ICR entitled “Appalachian Trail Management Partner Survey” in the
One public comment was received on the proposed Appalachian Trail Management Partner Survey (ATMPS). The comment expressed concern over tax dollars being spent on this study. A response was sent to the individual, explaining the necessity of the survey for the NPS to work with its partners to better manage the Appalachian Trail lands. No further comment has been received.
The purpose of the ATMPS is to track the satisfaction of federal, state, and not-for-profit partner organizations and agencies receiving support from the Appalachian Trail Park Office (ATPO) to protect trail resources and provide for the public enjoyment and visitor experience of the Appalachian National Scenic Trail. The ATPO provides support to state and federal agencies, and not-for-profit organizations to assist them in fulfilling shared and delegated management activities in the management of the Appalachian National Scenic Trail. Achievement of on-the-ground results depends on the actions of these partner agencies and organizations. Progress towards management goals is measured by a satisfaction survey where key partners evaluate quality of support provided by ATPO. This effort is required by GPRA and other NPS and DOT strategic planning efforts. Data from the proposed survey is needed to assess performance regarding NPS GPRA goal IIbO. NPS performance on all goals measured in this study will contribute to DOI Department-wide performance reports.
Comments are invited on: (1) The practical utility of the information being gathered; (2) the accuracy of the burden hour estimate; (3) ways to enhance the quality, utility, and clarity of the information being gathered; and (4) ways to minimize the burden to respondents, including use of automated information collection techniques or other forms of information. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Department of the Interior, National Park Service.
Notice and request for comments.
Under the provisions of the Paperwork Reduction Act of 1995 and 5 CFR part 1320, Reporting and Record Keeping Requirements, the National Park Service (NPS) invites public comments on a reinstatement, with change, of a previously approved collection for which approval has expired (OMB# 1024-0216).
Public comments on this Information Collection Request (ICR) will be accepted on or before July 14, 2008.
Send Comments To: Jennifer Hoger Russell, Park Studies Unit, College of Natural Resources, University of Idaho, P.O. Box 44139, Moscow, ID 83844-1139; Phone: (208) 885-4806; Fax (208) 885-4261, e-mail:
Dr. James Gramann, NPS Social Science Program, 1201 “Eye” St., Washington, D.C. 20005; or via phone 202/513-7189; or via e-mail at
The NPS has used the VSC to conduct surveys at approximately 330 National Park System units annually since 1998. The purpose of the VSC is to measure visitors' opinions about park facilities, services, and recreational opportunities in each park unit and Systemwide. This effort is required by GPRA and other NPS and DOT strategic planning efforts. Data from the proposed survey is needed to assess performance regarding NPS GPRA goals IIa1 and IIb1. The relevant NPS GPRA goals state:
II. Provide for the public enjoyment and visitor experience of parks; IIa1. 95% of park visitors are satisfied with appropriate park facilities, services, and recreational opportunities; IIb1. 86% of park visitors understand and appreciate the significance of the park they are visiting.
In addition, the survey collects data to support the DOI Strategic Plan goal on visitor satisfaction with the value for entrance fees paid to access public lands managed by the DOI. NPS performance on all goals measured in this study will contribute to DOI Department-wide performance reports. Results of the VSC will also be used by park managers to improve visitor services at the approximately 330 units of the National Park System where the survey is administered.
The VSC is a component of the Visitors Services Project, which is funded by the NPS through a cooperative agreement with the Park Studies Unit at the University of Idaho. In 1998, the NPS received clearance for the Visitor Survey Card (OMB# 1024-0216). When that three-year clearance expired on May 31, 2001, a new clearance was acquired under the Programmatic Approval for NPS-Sponsored Public Surveys (1024-0224, NPS #01-003). Clearance was again acquired in 2005 under the Programmatic Approval for NPS-Sponsored Public Surveys (10240224, NPS #05-004). This request is another extension of the on-going study.
Comments are invited on: (1) The practical utility of the information being gathered; (2) the accuracy of the burden hour estimate; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden to respondents, including use of automated information collection techniques or other forms of information technology. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service; Interior.
Notice of public meeting.
This notice announces a public meeting of the Delaware Water Gap National Recreation Area Citizen Advisory Commission. Notice of this meeting is required under the Federal Advisory Committee Act, as amended (5 U.S.C. App. 2).
Saturday, June 14, 2008, 10 a.m.
Bushkill Meeting Center, 209 Road (just south of the blinking light at Bushkill Falls Rd.), Bushkill, PA 18324.
The agenda will include reports from Citizen Advisory Commission members including committees such as Cultural and Historical Resources, and Natural Resources. Superintendent John J. Donahue will give a report on various park issues, including cultural resources, natural resources, construction projects, and partnership ventures. The agenda is set up to invite the public to bring issues of interest before the Commission.
Superintendent John J. Donahue, 570-426-2418.
The Delaware Water Gap National Recreation Area Citizen Advisory Commission was established by Public Law 100-573 to advise the Secretary of the Interior and the United States Congress on matters pertaining to the management and operation of the Delaware Water Gap National Recreation Area, as well as on other matters affecting the recreation area and its surrounding communities.
United States International Trade Commission.
May 28, 2008 at 11 a.m.
Room 101, 500 E Street, SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1.
2. Minutes.
3. Ratification list.
4. Inv. Nos. 701-TA-456 and 731-TA-1151 and 1152 (Preliminary) (Citric Acid and Certain Citric Salts from Canada and China)—briefing and vote. (The Commission is currently scheduled to transmit its determinations to the Secretary of Commerce on or before May 29, 2008; Commissioners' opinions are currently scheduled to be transmitted to the Secretary of Commerce on or before June 5, 2008.)
5.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
United States International Trade Commission.
May 29, 2008 at 11 a.m.
Room 101, 500 E Street, SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1.
2. Minutes.
3. Ratification List.
4. Inv. No. 731-TA-744 (Second Review) (Brake Rotors from China)—briefing and vote. (The Commission is currently scheduled to transmit its determination and Commissioners' opinions to the Secretary of Commerce on or before June 11, 2008).
5.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
United States International Trade Commission.
June 3, 2008 at 2 p.m.
Room 101, 500 E Street, SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1.
2. Minutes.
3. Ratification List.
4. Inv. Nos. 701-TA-417 and 731-TA-953, 954, 957-959, 961, and 962 (Review) (Carbon and Certain Alloy Steel Wire Rod from Brazil, Canada, Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine)—briefing and vote. (The Commission is currently scheduled to transmit its determination and Commissioners' opinions to the Secretary of Commerce on or before June 16, 2008) .
5.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
Notice is hereby given of a proposed Agreement Regarding Alleged Non-Compliance with Consent Decree (“Agreement”) in the case of
The Agreement resolves a matter involving Mack's alleged failure to comply with a 1999 Consent Decree settling claims under Title II of the Clean Air Act, 42 U.S.C. 7521
This violation is addressed through Mack's payment of an agreed penalty in the amount of $300,000, to be shared between the United States and the California Air Resources Board. Mack will also conduct a campaign to install 1200 additional Low NO
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Agreement. 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, or e-mailed to
During the public comment period, the Agreement may be examined on the following Department of Justice Web site,
A copy of the Agreement may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611 or by faxing or e-mailing a request to Tonia Fleetwood (
Notice is hereby given that on April 29, 2008, a proposed Consent Decree in
Under the Consent Decree, the Defendant will certify that it is complying with residential lead paint notification requirements. The Defendant will submit an on-going operations and maintenance plan and will complete abating lead-based paint hazards identified in all residential properties owned by A & M Properties, Inc. that are not certified lead-based paint free. In addition, Defendant will pay an administrative penalty of $42,500.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Proposed Consent Decree may be examined at the Department of Housing and Urban Development, Office of General Counsel, 451 7th St., NW., Room 9262, Washington, DC 20410; at the office of the United States Attorney for the Eastern District of Michigan, 211 Fort Street, Suite 2001, Detroit, Michigan, 48226 (Attn. Assistant United States Attorney Carolyn Bell-Harbin); and at U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site, to
Notice is hereby given that on May 7, 2008, a proposed Third Partial Consent Decree (“Consent Decree”) in
In this action, the United States sought reimbursement of response costs incurred and to be incurred in connection with the Valley Wood Preserving, Inc. Superfund Site in Turlock, California, pursuant to Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9607. Under the Consent Decree, Valley Wood Preserving, Inc. and Joyce Logsdon will pay twenty thousand three hundred dollars of response ($20,300) costs that have been incurred by the United States.
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, and either e-mailed to
During the public comment period, the Consent Decree may be examined on the following Department of Justice Web site:
Notice is hereby given that True Temper Sports, Inc. (“True Temper”), successor in interest to defendant True Temper Corporation, has filed a motion to terminate the Final Judgment entered in
On June 30, 1958 the United States filed a complaint against sole defendant True Temper alleging that True Temper and several co-conspirators conspired to restrain and monopolize the manufacture and sale of steel golf club shafts. Prior to trial True Temper settled the charges by accepting entry of the 1959 Final Judgment on August 20, 1959.
Also on June 30, 1958 the United States filed a complaint against True Temper and four golf club manufacturers alleging that they conspired to restrain and monopolize markets for golfclubs and steel shafts. Prior to trial the defendants settled the charges by accepting entry of the 1961 Final Judgment on August 1, 1961.
The Department has filed with the Court a memorandum setting forth the reasons why the United States believes that the termination of the 1959 Final Judgment and the 1961 Final Judgment would serve the public interest. Copies of the motion to terminate, the stipulation containing the United States' tentative consent, the United States' memorandum, and all further papers filed with the Court in connection with the motion to terminate will be available for inspection at the Antitrust Documents Group, Antitrust Division, Suite 1010, 450 Fifth Street, NW., Washington, DC 20530, on the Web site at
Interested persons may submit comments regarding the proposed termination of the 1959 Final Judgment and the 1961 Final Judgment to the United States. Such comments must be received by the Antitrust Division within sixty (60) days and will be filed with the Court by the United States. Comments should be addressed to Marvin N. Price, Chief, Chicago Field Office, Antitrust Division, U.S. Department of Justice, 209 South LaSalle Street, Chicago, Illinois, 312/353-7530.
Pursuant to the Government in the Sunshine Act (Pub. L. 94-409) [5 U.S.C. Section 552b].
Department of Justice, United States Parole Commission.
10 a.m., Tuesday, May 13, 2008.
5550 Friendship Boulevard, Fourth Floor, Chevy Chase, Maryland 20815.
Open.
The following matters have been placed on the agenda for the open Parole Commission meeting:
1. Approval of Minutes of January, February and March 2008 Quarterly Business Meeting.
2. Reports from the Chairman, Commissioners, Chief of Staff, and Section Administrators.
3. YRA Misdemeanor Offenders—Use of Misconduct Reports to Issue Set Aside Certificates.
Thomas W. Hutchison, Chief of Staff, United States Parole Commission, (301) 492-5990.
Pursuant To The Government In the Sunshine Act (Pub. L. 94-409) [5 U.S.C. Section 552b].
Department of Justice, United States Parole Commission.
12 p.m., Tuesday, May 13, 2008.
U.S. Parole Commission, 5550 Friendship Boulevard, 4th Floor, Chevy Chase, Maryland 20815.
Closed.
The following matter will be considered during the closed portion of the Commission's Business Meeting:
Petition for reconsideration involving four original jurisdiction cases pursuant to 28 CFR 2.27.
Thomas W. Hutchison, Chief of Staff, United States Parole Commission, (301) 492-5990.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on September 20, 2007, applicable to workers of Delphi Corporation, Automotive Holding Group, Chassis Business Support Functions, Kettering, Ohio. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers provide a variety of business services for an automotive brake parts manufacturing facility.
New information shows that leased workers of Kforce Staffing were employed on-site at the Kettering, Ohio location of Delphi Corporation, Automotive Holding Group, Chassis Business Support Functions. The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers.
Based on these findings, the Department is amending this certification to include leased workers of Kforce Staffing working on-site at the Kettering, Ohio location of the subject firm.
The intent of the Department's certification is to include all workers
The amended notice applicable to TA-W-61,945 is hereby issued as follows:
“All workers of Delphi Corporation, Automotive Holdings Group, Chassis Business Support Functions, including on-site leased workers from Kforce Staffing, Kettering, Ohio, (excluding workers of Delphi at other Kettering, Ohio Locations: Delphi Corporation, Automotive Holdings Group, Formerly Delphi Energy Chassis Systems Division, Kettering, Ohio (TA-W-57,754) and Delphi Corporation, Automotive Holdings Group, Chassis Division, Kettering, Ohio (TA-W-61,950)), who became totally or partially separated from employment on or after August 3, 2006, through September 20, 2009, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on March 16, 2007, applicable to workers of Delphi Corporation, Automotive Holdings Group, including on-site leased workers from Bartech, MSX, Inc., Production Design Services and Troy Design, Moraine, Ohio. The notice was published in the
At the request of the petitioners, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of automotive compressors and pistons.
New information shows that leased workers of Setech, Inc. were employed on-site at the Moraine, Ohio location of Delphi Corporation, Automotive Holdings Group. The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers.
Based on these findings, the Department is amending this certification to include leased workers of Setech, Inc. working on-site at the Moraine, Ohio location of the subject firm.
The intent of the Department's certification is to include all workers employed at Delphi Corporation, Automotive Holdings Group, Moraine, Ohio, who were adversely affected by a shift in production of automotive compressors and pistons to Mexico.
The amended notice applicable to TA-W-61,038 is hereby issued as follows:
“All workers of Delphi Corporation, Automotive Holdings Group, including on-site leased workers of Bartech, MSX, Inc., Production Design Services, Troy Design and Setech, Inc., Moraine, Ohio, who became totally or partially separated from employment on or after February 26, 2006 through March 16, 2009, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than May 23, 2008.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than May 23, 2008.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) number and alternative trade adjustment assistance (ATAA) by (TA-W) number issued during the period of April 21 through April 25, 2008.
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I.
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. The sales or production, or both, of such firm or subdivision have decreased absolutely; and
C. Increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or
II.
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. There has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and
C.
1. The country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States;
2. The country to which the workers' firm has shifted production of the articles to a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or
3. There has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.
Also, in order for an affirmative determination to be made for secondarily affected workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) Significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm (or subdivision) is a supplier or downstream producer to a firm (or subdivision) that employed a group of workers who received a certification of eligibility to apply for trade adjustment assistance benefits and such supply or production is related to the article that was the basis for such certification; and
(3) Either—
(A) the workers' firm is a supplier and the component parts it supplied for the firm (or subdivision) described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss of business by the workers' firm with the firm (or subdivision) described in paragraph (2) Contributed importantly to the workers' separation or threat of separation.
In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance (ATAA) for older workers, the group eligibility requirements of Section 246(a)(3)(A)(ii) of the Trade Act must be met.
1. Whether a significant number of workers in the workers' firm are 50 years of age or older.
2. Whether the workers in the workers' firm possess skills that are not easily transferable.
3. The competitive conditions within the workers' industry (
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) of the Trade Act have been met.
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
In the following cases, it has been determined that the requirements of 246(a)(3)(A)(ii) have not been met for the reasons specified.
The Department has determined that criterion (1) of Section 246 has not been met. The firm does not have a significant number of workers 50 years of age or older.
The Department has determined that criterion (2) of Section 246 has not been met. Workers at the firm possess skills that are easily transferable.
The Department has determined that criterion (3) of Section 246 has not been met. Competition conditions within the workers' industry are not adverse.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
Because the workers of the firm are not eligible to apply for TAA, the workers cannot be certified eligible for ATAA.
The investigation revealed that criteria (a)(2)(A)(I.B.) (Sales or production, or both, did not decline) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The workers' firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
The investigation revealed that criteria of Section 222(b)(2) has not been met. The workers' firm (or subdivision) is not a supplier to or a downstream producer for a firm whose workers were certified eligible to apply for TAA.
I hereby certify that the aforementioned determinations were issued during the period of April 21 through April 25, 2008. Copies of these determinations are available for inspection in Room C-5311, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 during normal business hours or will be mailed to persons who write to the above address.
By application dated April 3, 2008, petitioners requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA). The denial notice was signed on March 11, 2008 and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake
(3) If in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The TAA petition, which was filed on behalf of workers at Ameridrives International, LLC, Erie, Pennsylvania engaged in the production of industrial couplings, was denied based on the findings that during the relevant time period, sales and production of industrial couplings at the subject firm did not decrease and no shift in production to a foreign country occurred.
In the request for reconsideration, the petitioners provided the same reasons, as in the initial petition, why workers of the subject firm should be eligible for TAA. In particular, the petitioners alleged that a 202.5 Spacer (Part# 079507-001) “at one time was machined complete at Ameridrives and is now being manufactured at Great Taiwan Gear in Taiwan.”
The company official was contacted to address this allegation. The official indicated that production of 202.5 Spacer (Part# 079507-001) ceased at the subject firm in 2005.
When assessing eligibility for TAA, the Department exclusively considers production during the relevant time period (one year prior to the date of the petition). Therefore, events occurring in 2005 are outside of the relevant time period and are not relevant in this investigation.
The petitioners also stated that “large universal joint components such as yokes, crosses and roller bearings are now all purchased from China”.
The company official stated that yokes, crosses and roller bearings are “raw state materials” used in the production of industrial couplings. The official also stated that since 1999 manufacturing of these parts have been outsourced to other companies as they were no longer produced at the subject firm.
The petitioners attached two documents showing Ameridrives foreign sister facilities, where “products formerly made in Erie could be possibly now be manufactured.”
According to the company official, none of the Ameridrives foreign facilities manufacture like or directly competitive products with industrial couplings manufactured by the subject facility in Erie, Pennsylvania.
The petitioner did not supply facts not previously considered; nor provide additional documentation indicating that there was either (1) a mistake in the determination of facts not previously considered or (2) a misinterpretation of facts or of the law justifying reconsideration of the initial determination.
After careful review of the request for reconsideration, the Department determines that 29 CFR 90.18(c) has not been met.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
On April 17, 2008, the Department issued an Affirmative Determination Regarding Application on Reconsideration applicable to workers and former workers of the subject firm. The notice was published in the
The previous investigation was initiated on January 11, 2008 and resulted in a negative determination issued on March 13, 2008. The finding revealed that the worker separations at the subject firm were attributed to a shift in production of automated X-ray inspection system prototypes (including software code and hardware design functions) to Malaysia, a country that is not a party to a free trade agreement nor a beneficiary country with the United States. The subject firm did not import automated X-ray inspection system prototypes (including software code and hardware design functions) following the shift in production to a foreign source. The denial notice was published in the
The request for reconsideration alleges that Agilent Technologies may be in fact an importer of X-ray inspection systems and software.
Upon further contact with company official, it was revealed that the subject firm manufactured only software products during the relevant period. Based on new information it has been determined that the subject firm workers were impacted by a shift in production of software to Malaysia during the relevant period. The investigation also revealed that the firm recently increased their imports of software from Malaysia.
In accordance with Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor herein presents the results of its investigation regarding certification of eligibility to apply for alternative trade adjustment assistance (ATAA) for older workers.
In order for the Department to issue a certification of eligibility to apply for ATAA, the group eligibility requirements of Section 246 of the Trade Act must be met. The Department has determined in this case that the requirements of Section 246 have been met.
A significant number of workers at the firm are age 50 or over and possess skills that are not easily transferable. Competitive conditions within the industry are adverse.
After careful review of the facts obtained in the investigation, I determine that there was a shift in production from the workers' firm or subdivision to Malaysia of articles that are like or directly competitive with those produced by the subject firm or subdivision, and there has been or is likely to be an increase in imports of like or directly competitive articles. In accordance with the provisions of the Act, I make the following certification:
“All workers of Agilent Technologies, Measurement Systems Division, Loveland, Colorado, who became totally or partially separated from employment on or after January 10, 2007, through two years from the date of this certification, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
On March 31, 2008, the Department of Labor (Department) received a request for administrative reconsideration of the Department's notice of determination regarding workers' eligibility to apply for Trade Adjustment Assistance (TAA) and Alternative Adjustment Assistance (ATAA) applicable to workers and former workers of Jacquart Fabric Products Incorporated, Ironwood, Michigan (the subject firm). The Department's Notice of negative determination was published in the
The determination was based on the Department's findings that subject firm sales and production increased in 2007 as compared to 2006; the subject firm did not import motorcycle seats; and the subject firm did not shift production abroad. The determination did not indicate whether the subject firm supplied component parts for articles produced by a firm with a currently TAA-certified worker group or assembled or finished articles provided by a firm with a currently TAA-certified worker group.
In the request for reconsideration, a representative of the State of Michigan Department of Labor and Economic Growth asserted that the subject firm produces motorcycle seats for a TAA-certified company (primary firm) and that the subject workers are eligible to apply for TAA as secondarily-affected workers.
In order to receive a secondary certification, a significant number or proportion of workers in the subject firm have been, or are threatened to become, totally or partially separated and that the subject firm is a supplier or downstream producer (finisher or assembler) to a firm that employed a group of workers who received a TAA certification, and such supply or production is related to the article that was the basis for such certification.
In addition, if the subject firm is a supplier to a TAA-certified company, either the component parts supplied to that company must account for at least 20 percent of the subject firm's sales or production, or a loss of business by the subject firm with the TAA-certified firm contributed importantly to the petitioning workers' separations or threat of separation; and, if the subject firm is a downstream producer, the TAA certification of the primary firm must be based on a shift of production to Canada or Mexico or import impact from Canada or Mexico and a loss of business by the subject firm with the TAA-certified firm contributed importantly to the petitioning workers' separations or threat of separation.
On reconsideration, the Department confirmed that a significant number or proportion of the workers in the subject firm has become totally separated or partially separated.
Based on new and additional information provided by the subject firm and the primary firm during the reconsideration investigation, the Department determines that the subject workers produced upholstered seat cushions; that the subject firm supplied these articles to MILSCO Manufacturing Company, A Unit of Jason Incorporation, Milwaukee, Wisconsin (TAA certified on November 27, 2007; TA-W-62,382); that the supply of upholstered seat cushions is related to the motorcycle seats that are the basis for the primary firm workers' certification; and the component part it supplied to the firm (or subdivision) accpunted for at least 20 percent of the production or sales of the workers firm.
Based on the afore-mentioned information, the Department determines that the petitioning worker group has satisfied the requirements for secondary TAA certification.
In accordance with Section 246 the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department herein presents the results of its investigation regarding certification of eligibility to apply for ATAA. The Department has determined in this case that the group eligibility requirements of Section 246 have been met.
A significant number of workers at the firm are age 50 or over and possess skills that are not easily transferable. Competitive conditions within the industry are adverse.
After careful review of the information obtained in the reconsideration investigation, I determine that workers and former workers of Jacquart Fabric Products Incorporated, Ironwood, Michigan, qualify as adversely affected secondary workers under Section 222 of the Trade Act of 1974, as amended.
In accordance with the provisions of the Act, I make the following certification:
“All workers of Jacquart Fabric Products Incorporated, Ironwood, Michigan, who became totally or partially separated from employment on or after January 31, 2007, through two years from the date of this certification, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on April 24, 2008 in response to a worker petition filed by a company official on behalf of workers at Bartlett Corporation, Muncie, Indiana.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on May 2, 2008 in response to a petition filed by a company official on behalf of workers of Fisher and Company, Fisher Dynamics Division, and Fisher and Company, Corporate Offices, St. Claire Shores, Michigan.
The workers are covered by active certifications (TA-W-59,597 and TA-
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on April 4, 2008 in response to a worker petition filed by a company official on behalf of workers at Netra Systems USA, Inc., Fayetteville, Georgia.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on April 14, 2008 in response to a petition filed by a company official on behalf of workers at Parat Automotive USA, Duncan, South Carolina.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Employee Benefits Security Administration, Labor.
Grant of Individual Exemption.
This document contains an exemption issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (the Act) and/or the Internal Revenue Code of 1986 (the Code).
A notice was published in the
The notice of proposed exemption was issued and the exemption is being granted solely by the Department because, effective December 31, 1978, Section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type proposed to the Secretary of Labor.
In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990) and based upon the entire record, the Department makes the following findings:
(a) The exemption is administratively feasible;
(b) The exemption is in the interests of the plan and its participants and beneficiaries; and
(c) The exemption is protective of the rights of the participants and beneficiaries of the plan.
The restrictions of sections 406(a)(1)(A), 406(b)(1) and (b)(2) of the Act and the sanctions resulting from the application of Section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply effective April 14, 2005, to two contributions in-kind (the Contribution(s)) to the Plan of securities (the Securities) made on April 14th and 15th 2005 by Swedish Health Services (the Applicant), the Plan sponsor, a party in interest with respect to the Plan, provided that the following conditions were satisfied:
(a) The Securities were valued at their fair market value at the time of each Contribution;
(b) The Contributions represented no more than 20% of the total assets of the Plan;
(c) The Plan has not paid any commissions, costs or other expenses in connection with the Contributions;
(d) The Contributions represented a contribution in lieu of cash to the Plan to meet ERISA filing requirements;
(e) The Contributions were based on publicly traded closing prices of the Securities on the date of the transfer; and
(f) The terms of the Contributions between the Plan and the Applicant were no less favorable to the Plan than terms negotiated at arm's length under similar circumstances between unrelated third parties.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the Notice of Proposed Exemption (the Notice) published on June 1, 2007, at 72 FR 30634.
Stoel Rives LLP (Stoel Rives), the law firm that represents the Plan and the Applicant in this matter, hired AON Consulting (AON) in order to assist in gathering responses from the investment managers to the foregoing questions. Pursuant to the direction of Stoel Rives, AON sent a report to the Department dated October 24, 2007, which contained responses from the investment managers to the aforementioned questions. Based upon the responses to the questions, the Department has determined to finalize the exemption as proposed.
The Department also received numerous telephone calls and a number of written comments from interested persons concerning the Notice. All of the telephone calls and comments requested additional information regarding the possible effect the Contributions would have on benefits payable to the appropriate Plan participants. The Department responded to each inquiry by telephone and attempted to answer all questions directly relating to the transaction at issue. None of the commenters offered any information regarding the substance of the subject transactions.
Based on the entire record the Department has determined to grant the exemption as proposed.
Brian Buyniski of the Department, telephone (202) 693-8545 (this is not a toll-free number).
The restrictions of section 406 of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (F) of the Code, shall not apply to the purchase of certain securities (the Securities), as defined, below in Section III(h), by an asset management affiliate of CS, as “affiliate” is defined, below, in Section III(c), from any person other than such asset management affiliate of CS or any affiliate thereof, during the existence of an underwriting or selling syndicate with respect to such Securities, where a broker-dealer affiliated with CS (the Affiliated Broker-Dealer), as defined, below, in Section III(b), is a manager or member of such syndicate and the asset management affiliate of CS purchases such Securities, as a fiduciary:
(a) On behalf of an employee benefit plan or employee benefit plans (Client Plan(s)), as defined, below, in Section III(e); or
(b) On behalf of Client Plans, and/or In-House Plans, as defined, below, in Section III(l), which are invested in a pooled fund or in pooled funds (Pooled Fund(s)), as defined, below, in Section III(f); provided that the conditions as set forth, below, in Section II, are satisfied (an affiliated underwriter transaction (AUT)).
The exemption is conditioned upon adherence to the material facts and representations described herein and upon satisfaction of the following requirements:
(a)(1) The Securities to be purchased are either—
(i) Part of an issue registered under the Securities Act of 1933 (the 1933 Act) (15 U.S.C. 77a
(A) Are issued or guaranteed by the United States or by any person controlled or supervised by and acting as an instrumentality of the United States pursuant to authority granted by the Congress of the United States,
(B) Are issued by a bank,
(C) Are exempt from such registration requirement pursuant to a federal statute other than the 1933 Act, or
(D) Are the subject of a distribution and are of a class which is required to be registered under section 12 of the Securities Exchange Act of 1934 (the 1934 Act) (15 U.S.C. 781), and are issued by an issuer that has been subject to the reporting requirements of section 13 of the 1934 Act (15 U.S.C. 78m) for a period of at least ninety (90) days immediately preceding the sale of such Securities and that has filed all reports required to be filed thereunder with the Securities and Exchange Commission (SEC) during the preceding twelve (12) months; or
(ii) Part of an issue that is an Eligible Rule 144A Offering, as defined in SEC Rule 10f-3 (17 CFR 270.10f-3(a)(4)). Where the Eligible Rule 144A Offering of the Securities is of equity securities, the offering syndicate shall obtain a legal opinion regarding the adequacy of the disclosure in the offering memorandum;
(2) The Securities to be purchased are purchased prior to the end of the first day on which any sales are made, pursuant to that offering, at a price that is not more than the price paid by each other purchaser of the Securities in that offering or in any concurrent offering of the Securities, except that—
(i) If such Securities are offered for subscription upon exercise of rights, they may be purchased on or before the fourth day preceding the day on which the rights offering terminates; or
(ii) If such Securities are debt securities, they may be purchased at a
(3) The Securities to be purchased are offered pursuant to an underwriting or selling agreement under which the members of the syndicate are committed to purchase all of the Securities being offered, except if—
(i) Such Securities are purchased by others pursuant to a rights offering; or
(ii) Such Securities are offered pursuant to an over-allotment option.
(b) The issuer of the Securities to be purchased pursuant to this exemption must have been in continuous operation for not less than three years, including the operation of any predecessors, unless the Securities to be purchased are—
(1) Non-convertible debt securities rated in one of the four highest rating categories by Standard & Poor's Rating Services, Moody's Investors Service, Inc., FitchRatings, Inc., Dominion Bond Rating Service Limited, Dominion Bond Rating Service, Inc., or any successors thereto (collectively, the Rating Organizations), provided that none of the Rating Organizations rates such Securities in a category lower than the fourth highest rating category; or
(2) Debt securities issued or fully guaranteed by the United States or by any person controlled or supervised by and acting as an instrumentality of the United States pursuant to authority granted by the Congress of the United States; or
(3) Debt securities which are fully guaranteed by a person (the Guarantor) that has been in continuous operation for not less than three years, including the operation of any predecessors, provided that such Guarantor has issued other securities registered under the 1933 Act; or if such Guarantor has issued other securities which are exempt from such registration requirement, such Guarantor has been in continuous operation for not less than three years, including the operation of any predecessors, and such Guarantor is:
(a) A bank; or
(b) An issuer of securities which are exempt from such registration requirement, pursuant to a Federal statute other than the 1933 Act; or
(c) An issuer of securities that are the subject of a distribution and are of a class which is required to be registered under section 12 of the 1934 Act (15 U.S.C. 781), and are issued by an issuer that has been subject to the reporting requirements of section 13 of the 1934 Act (15 U.S.C. 78m) for a period of at least ninety (90) days immediately preceding the sale of such securities and that has filed all reports required to be filed thereunder with the SEC during the preceding twelve (12) months.
(c) The aggregate amount of Securities of an issue purchased, pursuant to this exemption, by the asset management affiliate of CS with: (i) The assets of all Client Plans; and (ii) The assets, calculated on a
(1) Ten percent (10%) of the total amount of the Securities being offered in an issue, if such Securities are equity securities;
(2) Thirty-five percent (35%) of the total amount of the Securities being offered in an issue, if such Securities are debt securities rated in one of the four highest rating categories by at least one of the Rating Organizations, provided that none of the Rating Organizations rates such Securities in a category lower than the fourth highest rating category; or
(3) Twenty-five percent (25%) of the total amount of the Securities being offered in an issue, if such Securities are debt securities rated in the fifth or sixth highest rating categories by at least one of the Rating Organizations; provided that none of the Rating Organizations rates such Securities in a category lower than the sixth highest rating category; and
(4) The assets of any single Client Plan (and the assets of any Client Plans and any In-House Plans investing in Pooled Funds) may not be used to purchase any Securities being offered, if such Securities are debt securities rated lower than the sixth highest rating category by any of the Rating Organizations;
(5) Notwithstanding the percentage of Securities of an issue permitted to be acquired, as set forth in Section II(c) (1), (2), and (3), above, of this exemption, the amount of Securities in any issue (whether equity or debt securities) purchased, pursuant to this exemption, by the asset management affiliate of CS on behalf of any single Client Plan, either individually or through investment, calculated on a
(6) If purchased in an Eligible Rule 144A Offering, the total amount of the Securities being offered for purposes of determining the percentages, described, above, in Section II(c)(1)-(3) and (5), is the total of:
(i) The principal amount of the offering of such class of Securities sold by underwriters or members of the selling syndicate to “qualified institutional buyers” (QIBs), as defined in SEC Rule 144A (17 CFR 230.144A(a)(1)); plus
(ii) The principal amount of the offering of such class of Securities in any concurrent public offering.
(d) The aggregate amount to be paid by any single Client Plan in purchasing any Securities which are the subject of this exemption, including any amounts paid by any Client Plan or In-House Plan in purchasing such Securities through a Pooled Fund, calculated on a
(e) The covered transactions are not part of an agreement, arrangement, or understanding designed to benefit the asset management affiliate of CS or an affiliate.
(f) The Affiliated Broker-Dealer does not receive, either directly, indirectly, or through designation, any selling concession, or other compensation or consideration that is based upon the amount of Securities purchased by any single Client Plan, or that is based on the amount of Securities purchased by Client Plans or In-House Plans through Pooled Funds, pursuant to this exemption. In this regard, the Affiliated Broker-Dealer may not receive, either directly or indirectly, any compensation or consideration that is attributable to the fixed designations generated by purchases of the Securities by the asset management affiliate of CS on behalf of any single Client Plan or any Client Plan or In-House Plan in Pooled Funds.
(g)(1) The amount the Affiliated Broker-Dealer receives in management, underwriting, or other compensation or consideration is not increased through an agreement, arrangement, or understanding for the purpose of compensating the Affiliated Broker-Dealer for foregoing any selling
(2) The Affiliated Broker-Dealer shall provide to the asset management affiliate of CS a written certification, dated and signed by an officer of the Affiliated Broker-Dealer, stating the amount that the Affiliated Broker-Dealer received in compensation or consideration during the past quarter, in connection with any offerings covered by this exemption, was not adjusted in a manner inconsistent with Section II (e), (f), or (g) of this exemption.
(h) The covered transactions are performed under a written authorization executed in advance by an independent fiduciary of each single Client Plan (the Independent Fiduciary), as defined, below, in Section III(g).
(i) Prior to the execution by an Independent Fiduciary of a single Client Plan of the written authorization described, above, in Section II(h), the following information and materials (which may be provided electronically) must be provided by the asset management affiliate of CS to such Independent Fiduciary:
(1) A copy of the Notice of Proposed Exemption (the Notice) and a copy of the final exemption (the Grant) as published in the
(2) Any other reasonably available information regarding the covered transactions that such Independent Fiduciary requests the asset management affiliate of CS to provide.
(j) Subsequent to the initial authorization by an Independent Fiduciary of a single Client Plan permitting the asset management affiliate of CS to engage in the covered transactions on behalf of such single Client Plan, the asset management affiliate of CS will continue to be subject to the requirement to provide within a reasonable period of time any reasonably available information regarding the covered transactions that the Independent Fiduciary requests the asset management affiliate of CS to provide.
(k)(1) In the case of an existing employee benefit plan investor (or existing In-House Plan investor, as the case may be) in a Pooled Fund, such Pooled Fund may not engage in any covered transactions pursuant to this exemption, unless the asset management affiliate of CS provides the written information, as described, below, and within the time period described, below, in this Section II(k)(2), to the Independent Fiduciary of each such plan participating in such Pooled Fund (and to the fiduciary of each such In-House Plan participating in such Pooled Fund).
(2) The following information and materials (which may be provided electronically) shall be provided by the asset management affiliate of CS not less than 45 days prior to such asset management affiliate of CS engaging in the covered transactions on behalf of a Pooled Fund, pursuant to this exemption, and provided further that the information described below, in this Section II(k)(2)(i) and (iii) is supplied simultaneously:
(i) A notice of the intent of such Pooled Fund to purchase Securities pursuant to this exemption, a copy of the Notice, and a copy of the Grant, as published in the
(ii) Any other reasonably available information regarding the covered transactions that the Independent Fiduciary of a plan (or fiduciary of an In-House Plan) participating in a Pooled Fund requests the asset management affiliate of CS to provide; and
(iii) A termination form expressly providing an election for the Independent Fiduciary of a plan (or fiduciary of an In-House Plan) participating in a Pooled Fund to terminate such plan's (or In-House Plan's) investment in such Pooled Fund without penalty to such plan (or In-House Plan). Such form shall include instructions specifying how to use the form. Specifically, the instructions will explain that such plan (or such In-House Plan) has an opportunity to withdraw its assets from a Pooled Fund for a period of no more than 30 days after such plan's (or such In-House Plan's) receipt of the initial notice of intent, described, above, in Section II(k)(2)(i), and that the failure of the Independent Fiduciary of such plan (or fiduciary of such In-House Plan) to return the termination form to the asset management affiliate of CS in the case of a plan (or In-House Plan) participating in a Pooled Fund by the specified date shall be deemed to be an approval by such plan (or such In-House Plan) of its participation in the covered transactions as an investor in such Pooled Fund.
Further, the instructions will identify CS, the asset management affiliate of CS, and the Affiliated Broker-Dealer and will provide the address of the asset management affiliate of CS. The instructions will state that this exemption may be unavailable, unless the fiduciary of each plan participating in the covered transactions as an investor in a Pooled Fund is, in fact, independent of CS, the asset management affiliate of CS, and the Affiliated Broker-Dealer. The instructions will also state that the fiduciary of each such plan must advise the asset management affiliate of CS, in writing, if it is not an “Independent Fiduciary,” as that term is defined, below, in Section III(g).
For purposes of this Section II(k), the requirement that the fiduciary responsible for the decision to authorize the transactions described, above, in Section I of this exemption for each plan be independent of the asset management affiliate of CS shall not apply in the case of an In-House Plan.
(l)(1) In the case of each plan (and in the case of each In-House Plan) whose assets are proposed to be invested in a Pooled Fund after such Pooled Fund has satisfied the conditions set forth in this exemption to engage in the covered transactions, the investment by such plan (or by such In-House Plan) in the Pooled Fund is subject to the prior written authorization of an Independent Fiduciary representing such plan (or the prior written authorization by the fiduciary of such In-House Plan, as the case may be), following the receipt by such Independent Fiduciary of such plan (or by the fiduciary of such In-House Plan, as the case may be) of the written information described, above, in Section II(k)(2)(i) and (ii); provided that the Notice and the Grant, described above in Section II(k)(2)(i), are provided simultaneously.
(2) For purposes of this Section II(l), the requirement that the fiduciary responsible for the decision to authorize the transactions described, above, in Section I of this exemption for each plan proposing to invest in a Pooled Fund be independent of CS and its affiliates shall not apply in the case of an In-House Plan.
(m) Subsequent to the initial authorization by an Independent Fiduciary of a plan (or by a fiduciary of an In-House Plan) to invest in a Pooled Fund that engages in the covered transactions, the asset management affiliate of CS will continue to be subject to the requirement to provide within a
(n) At least once every three months, and not later than 45 days following the period to which such information relates, the asset management affiliate of CS shall furnish:
(1) In the case of each single Client Plan that engages in the covered transactions, the information described, below, in this Section II(n)(3)-(7), to the Independent Fiduciary of each such single Client Plan.
(2) In the case of each Pooled Fund in which a Client Plan (or in which an In-House Plan) invests, the information described, below, in this Section II(n)(3)-(6) and (8), to the Independent Fiduciary of each such Client Plan (and to the fiduciary of each such In-House Plan) invested in such Pooled Fund.
(3) A quarterly report (the Quarterly Report) (which may be provided electronically) which discloses all the Securities purchased pursuant to this exemption during the period to which such report relates on behalf of the Client Plan, In-House Plan, or Pooled Fund to which such report relates, and which discloses the terms of each of the transactions described in such report, including:
(i) The type of Securities (including the rating of any Securities which are debt securities) involved in each transaction;
(ii) The price at which the Securities were purchased in each transaction;
(iii) The first day on which any sale was made during the offering of the Securities;
(iv) The size of the issue of the Securities involved in each transaction;
(v) The number of Securities purchased by the asset management affiliate of CS for the Client Plan, In-House Plan, or Pooled Fund to which the transaction relates;
(vi) The identity of the underwriter from whom the Securities were purchased for each transaction;
(vii) The underwriting spread in each transaction (
(viii) The price at which any of the Securities purchased during the period to which such report relates were sold; and
(ix) The market value at the end of the period to which such report relates of the Securities purchased during such period and not sold;
(4) The Quarterly Report contains:
(i) A representation that the asset management affiliate of CS has received a written certification signed by an officer of the Affiliated Broker-Dealer, as described, above, in Section II(g)(2), affirming that, as to each AUT covered by this exemption during the past quarter, the Affiliated Broker-Dealer acted in compliance with Section II(e), (f), and (g) of this exemption, and
(ii) A representation that copies of such certifications will be provided upon request;
(5) A disclosure in the Quarterly Report that states that any other reasonably available information regarding a covered transaction that an Independent Fiduciary (or fiduciary of an In-House Plan) requests will be provided, including, but not limited to:
(i) The date on which the Securities were purchased on behalf of the Client Plan (or the In-House Plan) to which the disclosure relates (including Securities purchased by Pooled Funds in which such Client Plan (or such In-House Plan) invests);
(ii) The percentage of the offering purchased on behalf of all Client Plans (and the
(iii) The identity of all members of the underwriting syndicate;
(6) The Quarterly Report discloses any instance during the past quarter where the asset management affiliate of CS was precluded for any period of time from selling Securities purchased under this exemption in that quarter because of its status as an affiliate of an Affiliated Broker-Dealer and the reason for this restriction;
(7) Explicit notification, prominently displayed in each Quarterly Report sent to the Independent Fiduciary of each single Client Plan that engages in the covered transactions that the authorization to engage in such covered transactions may be terminated, without penalty to such single Client Plan, within five (5) days after the date that the Independent Fiduciary of such single Client Plan informs the person identified in such notification that the authorization to engage in the covered transactions is terminated; and
(8) Explicit notification, prominently displayed in each Quarterly Report sent to the Independent Fiduciary of each Client Plan (and to the fiduciary of each In-House Plan) that engages in the covered transactions through a Pooled Fund that the investment in such Pooled Fund may be terminated, without penalty to such Client Plan (or such In-House Plan), within such time as may be necessary to effect the withdrawal in an orderly manner that is equitable to all withdrawing plans and to the non-withdrawing plans, after the date that the Independent Fiduciary of such Client Plan (or the fiduciary of such In-House Plan, as the case may be) informs the person identified in such notification that the investment in such Pooled Fund is terminated.
(o) For purposes of engaging in covered transactions, each Client Plan (and each In-House Plan) shall have total net assets with a value of at least $50 million (the $50 Million Net Asset Requirement). For purposes of engaging in covered transactions involving an Eligible Rule 144A Offering,
(i) The securities are offered or sold in transactions exempt from registration under section 4(2) of the Securities Act of 1933 [15 U.S.C. 77d(d)], rule 144A thereunder [§ 230.144A of this chapter], or rules 501-508 thereunder [§§ 230.501-230.508 if this chapter];
(ii) The securities are sold to persons that the seller and any person acting on behalf of the seller reasonably believe to include qualified institutional buyers, as defined in § 230.144A(a)(1) of this chapter; and
(iii) The seller and any person acting on behalf of the seller reasonably believe that the securities are eligible for resale to other qualified institutional buyers pursuant to § 230.144A of this chapter.
For purposes of a Pooled Fund engaging in covered transactions, each Client Plan (and each In-House Plan) in such Pooled Fund shall have total net assets with a value of at least $50 million. Notwithstanding the foregoing, if each such Client Plan (and each such In-House Plan) in such Pooled Fund does not have total net assets with a value of at least $50 million, the $50 Million Net Asset Requirement will be met if 50 percent (50%) or more of the units of beneficial interest in such Pooled Fund are held by Client Plans (or by In-House Plans) each of which has total net assets with a value of at least $50 million. For purposes of a Pooled Fund engaging in covered transactions involving an Eligible Rule 144A Offering, each Client Plan (and each In-House Plan) in such Pooled Fund shall have total net assets of at least $100 million in securities of issuers that are not affiliated with such Client Plan (or such In-House Plan, as the case may be). Notwithstanding the foregoing, if each
For purposes of the net asset requirements described above, in this Section II(o), where a group of Client Plans is maintained by a single employer or controlled group of employers, as defined in section 407(d)(7) of the Act, the $50 Million Net Asset Requirement (or in the case of an Eligible Rule 144A Offering, the $100 Million Net Asset Requirement) may be met by aggregating the assets of such Client Plans, if the assets of such Client Plans are pooled for investment purposes in a single master trust.
(p) The asset management affiliate of CS qualifies as a “qualified professional asset manager” (QPAM), as that term is defined under Section V(a) of PTE 84-14. In addition to satisfying the requirements for a QPAM under Section V(a) of PTE 84-14, the asset management affiliate of CS must also have total client assets under its management and control in excess of $5 billion, as of the last day of its most recent fiscal year and shareholders' or partners' equity in excess of $1 million.
(q) No more than 20 percent of the assets of a Pooled Fund at the time of a covered transaction, are comprised of assets of In-House Plans for which CS, the asset management affiliate of CS, the Affiliated Broker-Dealer, or an affiliate exercises investment discretion.
(r) The asset management affiliate of CS, and the Affiliated Broker-Dealer, as applicable, maintain, or cause to be maintained, for a period of six (6) years from the date of any covered transaction such records as are necessary to enable the persons, described, below, in Section II(s), to determine whether the conditions of this exemption have been met, except that—
(1) No party in interest with respect to a plan which engages in the covered transactions, other than CS, the asset management affiliate of CS, and the Affiliated Broker-Dealer, as applicable, shall be subject to a civil penalty under section 502(i) of the Act or the taxes imposed by section 4975(a) and (b) of the Code, if such records are not maintained, or not available for examination, as required, below, by Section II(s); and
(2) A separate prohibited transaction shall not be considered to have occurred solely because, due to circumstances beyond the control of the asset management affiliate of CS, or the Affiliated Broker-Dealer, as applicable, such records are lost or destroyed prior to the end of the six-year period.
(s)(1) Except as provided, below, in Section II(s)(2), and notwithstanding any provisions of subsections (a)(2) and (b) of section 504 of the Act, the records referred to above, in Section II(r), are unconditionally available at their customary location for examination during normal business hours by—
(i) Any duly authorized employee or representative of the Department, the Internal Revenue Service, or the SEC; or
(ii) Any fiduciary of any plan that engages in the covered transactions, or any duly authorized employee or representative of such fiduciary; or
(iii) Any employer of participants and beneficiaries and any employee organization whose members are covered by a plan that engages in the covered transactions, or any authorized employee or representative of these entities; or
(iv) Any participant or beneficiary of a plan that engages in the covered transactions, or duly authorized employee or representative of such participant or beneficiary;
(2) None of the persons described above, in Section II(s)(1)(ii)—(iv), shall be authorized to examine trade secrets of the asset management affiliate of CS, or the Affiliated Broker-Dealer, or commercial or financial information which is privileged or confidential; and
(3) Should the asset management affiliate of CS, or the Affiliated Broker-Dealer refuse to disclose information on the basis that such information is exempt from disclosure, pursuant to Section II(s)(2) above, the asset management affiliate of CS shall, by the close of the thirtieth (30th) day following the request, provide a written notice advising that person of the reasons for the refusal and that the Department may request such information.
(a) The term, “the Applicant,” means CS and its current and future affiliates.
(b) The term, “Affiliated Broker-Dealer,” means any broker-dealer affiliate, as “affiliate” is defined, below, in Section III(c), of the Applicant, as “Applicant” is defined, above, in Section III(a), that meets the requirements of this exemption. Such Affiliated Broker-Dealer may participate in an underwriting or selling syndicate as a manager or member. The term, “manager,” means any member of an underwriting or selling syndicate who, either alone or together with other members of the syndicate, is authorized to act on behalf of the members of the syndicate in connection with the sale and distribution of the Securities, as defined below, in Section III(h), being offered or who receives compensation from the members of the syndicate for its services as a manager of the syndicate.
(c) The term “affiliate” of a person includes:
(1) Any person directly or indirectly through one or more intermediaries, controlling, controlled by, or under common control with such person;
(2) Any officer, director, partner, employee, or relative, as defined in section 3(15) of the Act, of such person; and
(3) Any corporation or partnership of which such person is an officer, director, partner, or employee.
(d) The term, “control,” means the power to exercise a controlling influence over the management or policies of a person other than an individual.
(e) The term, “Client Plan(s),” means an employee benefit plan(s) that is subject to the Act and/or the Code, and for which plan(s) an asset management affiliate of CS exercises discretionary authority or discretionary control respecting management or disposition of some or all of the assets of such plan(s), but excludes In-House Plans, as defined, below, in Section III(l).
(f) The term, “Pooled Fund(s),” means a common or collective trust fund(s) or a pooled investment fund(s):
(1) In which employee benefit plan(s) subject to the Act and/or Code invest,
(2) Which is maintained by an asset management affiliate of CS, (as the term, “affiliate” is defined, above, in Section III(c)), and
(3) For which such asset management affiliate of CS exercises discretionary authority or discretionary control respecting the management or disposition of the assets of such fund(s).
(g)(1) The term, “Independent Fiduciary,” means a fiduciary of a plan who is unrelated to, and independent of CS, the asset management affiliate of CS, and the Affiliated Broker-Dealer. For purposes of this exemption, a fiduciary of a plan will be deemed to be unrelated to, and independent of CS, the asset management affiliate of CS, and the Affiliated Broker-Dealer, if such
(2) Notwithstanding anything to the contrary in this Section III(g), a fiduciary of a plan is not independent:
(i) If such fiduciary directly or indirectly controls, is controlled by, or is under common control with CS, the asset management affiliate of CS, or the Affiliated Broker-Dealer;
(ii) If such fiduciary directly or indirectly receives any compensation or other consideration from CS, the asset management affiliate of CS, or the Affiliated Broker-Dealer for his or her own personal account in connection with any transaction described in this exemption;
(iii) If any officer, director, or highly compensated employee (within the meaning of section 4975(e)(2)(H) of the Code) of the asset management affiliate of CS responsible for the transactions described above, in Section I of this exemption, is an officer, director, or highly compensated employee (within the meaning of section 4975(e)(2)(H) of the Code) of the sponsor of the plan or of the fiduciary responsible for the decision to authorize or terminate authorization for the transactions described above, in Section I. However, if such individual is a director of the sponsor of the plan or of the responsible fiduciary, and if he or she abstains from participation in: (A) The choice of the plan's investment manager/adviser; and (B) the decision to authorize or terminate authorization for transactions described above, in Section I, then this Section III(g)(2)(iii) shall not apply.
(3) The term, “officer,” means a president, any vice president in charge of a principal business unit, division, or function (such as sales, administration, or finance), or any other officer who performs a policy-making function for CS or any affiliate thereof.
(h) The term, “Securities,” shall have the same meaning as defined in section 2(36) of the Investment Company Act of 1940 (the 1940 Act), as amended (15 U.S.C. 80a-2(36)(2000)). For purposes of this exemption, mortgage-backed or other asset-backed securities rated by one of the Rating Organizations, as defined, below, in Section III(k), will be treated as debt securities.
(i) The term, “Eligible Rule 144A Offering,” shall have the same meaning as defined in SEC Rule 10f-3(a)(4) (17 CFR 270.10f-3(a)(4)) under the 1940 Act).
(j) The term, “qualified institutional buyer,” or the term, “QIB,” shall have the same meaning as defined in SEC Rule 144A (17 CFR 230.144A(a)(1)) under the 1933 Act.
(k) The term, “Rating Organizations,” means Standard & Poor's Rating Services, Moody's Investors Service, Inc., FitchRatings, Inc., Dominion Bond Rating Service Limited, and Dominion Bond Rating Service, Inc., or any successors thereto.
(l) The term, “In-House Plan(s),” means an employee benefit plan(s) that is subject to the Act and/or the Code, and that is sponsored by the Applicant, as defined, above, in Section III(a) for its own employees.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the Notice published on January 17, 2008 at 73 FR 3282.
Mr. Gary H. Lefkowitz of the Department, telephone (202) 693-8546. (This is not a toll-free number.)
In accordance with section 408(a) of the Act and section 4975(c)(2) of the Code and the procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, August 10, 1990) and based upon the entire record, the Department amends Prohibited Transaction Exemption (PTE) 93-31, 58 FR 28620 (May 5, 1993); as subsequently amended by PTE 97-34, 62 FR 39021 (July 21, 1997), PTE 2000-58, 65 FR 67765 (November 13, 2000), PTE 2002-41, 67 FR 54487 (August 22, 2002) and PTE 2007-05, 72 FR 13130 (March 20, 2007), Technical Correction at 72 FR 16385 (April 4, 2007) (PTE 93-31).
A. Effective October 1, 2007, the restrictions of sections 406(a) and 407(a) of the Act, and the taxes imposed by sections 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(A) through (D) of the Code shall not apply to the following transactions involving Issuers and Securities evidencing interests therein:
(1) The direct or indirect sale, exchange or transfer of Securities in the initial issuance of Securities between the Sponsor or Underwriter and an employee benefit plan when the Sponsor, Servicer, Trustee or Insurer of an Issuer, the Underwriter of the Securities representing an interest in the Issuer, or an Obligor is a party in interest with respect to such plan;
(2) The direct or indirect acquisition or disposition of Securities by a plan in the secondary market for such Securities; and
(3) The continued holding of Securities acquired by a plan pursuant to subsection I.A.(1) or (2).
Notwithstanding the foregoing, section I.A. does not provide an exemption from the restrictions of sections 406(a)(1)(E), 406(a)(2) and 407 of the Act for the acquisition or holding of a Security on behalf of an Excluded Plan by any person who has discretionary authority or renders investment advice with respect to the assets of that Excluded Plan.
B. Effective October 1, 2007, the restrictions of sections 406(b)(1) and 406(b)(2) of the Act and the taxes imposed by sections 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(E) of the Code, shall not apply to:
(1) The direct or indirect sale, exchange or transfer of Securities in the initial issuance of Securities between the Sponsor or Underwriter and a plan when the person who has discretionary authority or renders investment advice with respect to the investment of plan assets in the Securities is (a) an Obligor with respect to 5 percent or less of the fair market value of obligations or receivables contained in the Issuer, or (b) an Affiliate of a person described in (a); if:
(i) The plan is not an Excluded Plan;
(ii) Solely in the case of an acquisition of Securities in connection with the initial issuance of the Securities, at least 50 percent of each class of Securities in which plans have invested is acquired
(iii) A plan's investment in each class of Securities does not exceed 25 percent of all of the Securities of that class outstanding at the time of the acquisition; and
(iv) Immediately after the acquisition of the Securities, no more than 25 percent of the assets of a plan with respect to which the person has discretionary authority or renders investment advice are invested in Securities representing an interest in an Issuer containing assets sold or serviced by the same entity.
(2) The direct or indirect acquisition or disposition of Securities by a plan in the secondary market for such Securities, provided that the conditions set forth in paragraphs (i), (iii) and (iv) of subsection I.B.(1) are met; and
(3) The continued holding of Securities acquired by a plan pursuant to subsection I.B.(1) or (2).
C. Effective October 1, 2007, the restrictions of sections 406(a), 406(b) and 407(a) of the Act, and the taxes imposed by section 4975(a) and (b) of the Code by reason of section 4975(c) of the Code, shall not apply to transactions in connection with the servicing, management and operation of an Issuer, including the use of any Eligible Swap transaction; or the defeasance of a mortgage obligation held as an asset of the Issuer through the substitution of a new mortgage obligation in a commercial mortgage-backed Designated Transaction, provided:
(1) Such transactions are carried out in accordance with the terms of a binding Pooling and Servicing Agreement;
(2) The Pooling and Servicing Agreement is provided to, or described in all material respects in the prospectus or private placement memorandum provided to, investing plans before they purchase Securities issued by the Issuer;
(3) The defeasance of a mortgage obligation and the substitution of a new mortgage obligation in a commercial mortgage-backed Designated Transaction meet the terms and conditions for such defeasance and substitution as are described in the prospectus or private placement memorandum for such Securities, which terms and conditions have been approved by a Rating Agency and does not result in the Securities receiving a lower credit rating from the Rating Agency than the current rating of the Securities.
Notwithstanding the foregoing, section I.C. does not provide an exemption from the restrictions of section 406(b) of the Act or from the taxes imposed by reason of section 4975(c) of the Code for the receipt of a fee by a Servicer of the Issuer from a person other than the Trustee or Sponsor, unless such fee constitutes a Qualified Administrative Fee.
D. Effective October 1, 2007, the restrictions of sections 406(a) and 407(a) of the Act, and the taxes imposed by section 4975(a) and (b) of the Code by reason of section 4975(c)(1)(A) through (D) of the Code, shall not apply to any transactions to which those restrictions or taxes would otherwise apply merely because a person is deemed to be a party in interest or disqualified person (including a fiduciary) with respect to a plan by virtue of providing services to the plan (or by virtue of having a relationship to such service provider described in section 3(14)(F), (G), (H) or (I) of the Act or section 4975(e)(2)(F), (G), (H) or (I) of the Code), solely because of the plan's ownership of Securities.
A. The relief provided under section I. is available only if the following conditions are met:
(1) The acquisition of Securities by a plan is on terms (including the Security price) that are at least as favorable to the plan as they would be in an arm's-length transaction with an unrelated party;
(2) The rights and interests evidenced by the Securities are not subordinated to the rights and interests evidenced by other Securities of the same Issuer, unless the Securities are issued in a Designated Transaction;
(3) The Securities acquired by the plan have received a rating from a Rating Agency at the time of such acquisition that is in one of the three (or in the case of Designated Transactions, four) highest generic rating categories;
(4) The Trustee is not an Affiliate of any member of the Restricted Group, other than an Underwriter. For purposes of this requirement:
(a) The Trustee shall not be considered to be an Affiliate of a Servicer solely because the Trustee has succeeded to the rights and responsibilities of the Servicer pursuant to the terms of a Pooling and Servicing Agreement providing for such succession upon the occurrence of one or more events of default by the Servicer; and
(b) Subsection II.A.(4) will be deemed satisfied notwithstanding a Servicer becoming an Affiliate of the Trustee as the result of a merger or acquisition involving the Trustee, such Servicer and/or their Affiliates which occurs after the initial issuance of the Securities, provided that:
(i) Such Servicer ceases to be an Affiliate of the Trustee no later than six months after the date such Servicer became an Affiliate of the Trustee; and
(ii) Such Servicer did not breach any of its obligations under the Pooling and Servicing Agreement, unless such breach was immaterial and timely cured in accordance with the terms of such agreement, during the period from the closing date of such merger or acquisition transaction through the date the Servicer ceased to be an Affiliate of the Trustee;
(c) Effective October 1, 2007 through April 1, 2008, LaSalle Bank, N.A., the Trustee, shall not be considered to be an Affiliate of any member of the Restricted Group solely as the result of the acquisition of ABN Amro North America Holding Company, the holding company of LaSalle Bank Corporation and its subsidiary, LaSalle Bank, N.A. (LaSalle) by Bank of America Corporation and its subsidiaries (Bank of America) (the Acquisition), which occurred after the initial issuance of the Securities, provided that:
(i) The Trustee, LaSalle, ceases to be an Affiliate of any member of the Restricted Group no later than April 1, 2008;
(ii) Any member of the Restricted Group that is an Affiliate of the Trustee, LaSalle, did not breach any of its obligations under the Pooling and Servicing Agreement, unless such breach was immaterial and timely cured in accordance with the terms of such
(iii) In accordance with each Pooling and Servicing Agreement, the Trustee, LaSalle, appoints a co-trustee, which is not an Affiliate of Bank of America, no later than the earlier of (A) January 2, 2008 or (B) five business days after LaSalle becomes aware of a conflict between the Trustee and any member of the Restricted Group that is an Affiliate of the Trustee. The co-trustee will be responsible for resolving any conflict between the Trustee and any member of the Restricted Group that has become an Affiliate of the Trustee as a result of the Acquisition; provided that if the Trustee has resigned on or prior to January 2, 2008 and no event described in clause (B) has occurred, no co-trustee shall be required.
(iv) For purposes of this subsection II.A.(4)(c), a conflict arises whenever (A) Bank of America, as a member of the Restricted Group, fails to perform in accordance with the timeframes contained in the relevant Pooling and Servicing Agreement following a request for performance from LaSalle, as Trustee, or (B) LaSalle, as Trustee, fails to perform in accordance with the timeframes contained in the relevant Pooling and Servicing Agreement following a request for performance from Bank of America, a member of the Restricted Group.
The time as of which a conflict occurs is the earlier of: The day immediately following the last day on which compliance is required under the relevant Pooling and Servicing Agreement; or the day on which a party affirmatively responds that it will not comply with a request for performance.
For purposes of this subsection II.A.(4)(c), the term “conflict” includes but is not limited to, the following: (1) Bank of America's failure, as Sponsor, to repurchase a loan for breach of representation within the time period prescribed in the relevant Pooling and Servicing Agreement, following LaSalle's request, as Trustee, for performance; (2) Bank of America, as Sponsor, notifies LaSalle, as Trustee, that it will not repurchase a loan for breach of representation, following LaSalle's request that Bank of America repurchase such loan within the time period prescribed in the relevant Pooling and Servicing Agreement (the notification occurs prior to the expiration of the prescribed time period for the repurchase); and (3) Bank of America, as Swap Counterparty, makes or requests a payment based on a value of the London Interbank Offered Rate (LIBOR) that LaSalle, as Trustee, considers erroneous.
(5) The sum of all payments made to and retained by the Underwriters in connection with the distribution or placement of Securities represents not more than Reasonable Compensation for underwriting or placing the Securities; the sum of all payments made to and retained by the Sponsor pursuant to the assignment of obligations (or interests therein) to the Issuer represents not more than the fair market value of such obligations (or interests); and the sum of all payments made to and retained by the Servicer represents not more than Reasonable Compensation for the Servicer's services under the Pooling and Servicing Agreement and reimbursement of the Servicer's reasonable expenses in connection therewith;
(6) The plan investing in such Securities is an “accredited investor” as defined in Rule 501(a)(1) of Regulation D of the Securities and Exchange Commission under the Securities Act of 1933; and
(7) In the event that the obligations used to fund a Issuer have not all been transferred to the Issuer on the Closing Date, additional obligations of the types specified in subsection III.B.(1) may be transferred to the Issuer during the Pre-Funding Period in exchange for amounts credited to the Pre-Funding Account, provided that:
(a) The Pre-Funding Limit is not exceeded;
(b) All such additional obligations meet the same terms and conditions for determining the eligibility of the original obligations used to create the Issuer (as described in the prospectus or private placement memorandum and/or Pooling and Servicing Agreement for such Securities), which terms and conditions have been approved by a Rating Agency.
Notwithstanding the foregoing, the terms and conditions for determining the eligibility of an obligation may be changed if such changes receive prior approval either by a majority vote of the outstanding securityholders or by a Rating Agency;
(c) The transfer of such additional obligations to the Issuer during the Pre-Funding Period does not result in the Securities receiving a lower credit rating from a Rating Agency upon termination of the Pre-Funding Period than the rating that was obtained at the time of the initial issuance of the Securities by the Issuer;
(d) The weighted average annual percentage interest rate (the average interest rate) for all of the obligations held by the Issuer at the end of the Pre-Funding Period will not be more than 100 basis points lower than the average interest rate for the obligations which were transferred to the Issuer on the Closing Date;
(e) In order to ensure that the characteristics of the receivables actually acquired during the Pre-Funding Period are substantially similar to those which were acquired as of the Closing Date, the characteristics of the additional obligations will either be monitored by a credit support provider or other insurance provider which is independent of the Sponsor or an independent accountant retained by the Sponsor will provide the Sponsor with a letter (with copies provided to the Rating Agency, the Underwriter and the Trustee) stating whether or not the characteristics of the additional obligations conform to the characteristics of such obligations described in the prospectus, private placement memorandum and/or Pooling and Servicing Agreement. In preparing such letter, the independent accountant will use the same type of procedures as were applicable to the obligations which were transferred as of the Closing Date;
(f) The Pre-Funding Period shall be described in the prospectus or private placement memorandum provided to investing plans; and
(g) The Trustee of the Trust (or any agent with which the Trustee contracts to provide Trust services) will be a substantial financial institution or trust company experienced in trust activities and familiar with its duties, responsibilities and liabilities as a fiduciary under the Act. The Trustee, as the legal owner of the obligations in the Trust or the holder of a security interest in the obligations held by the Issuer, will enforce all the rights created in favor of securityholders of the Issuer, including employee benefit plans subject to the Act;
(8) In order to insure that the assets of the Issuer may not be reached by creditors of the Sponsor in the event of bankruptcy or other insolvency of the Sponsor:
(a) The legal documents establishing the Issuer will contain:
(i) Restrictions on the Issuer's ability to borrow money or issue debt other than in connection with the securitization;
(ii) Restrictions on the Issuer merging with another entity, reorganizing, liquidating or selling assets (other than in connection with the securitization);
(iii) Restrictions limiting the authorized activities of the Issuer to activities relating to the securitization;
(iv) If the Issuer is not a Trust, provisions for the election of at least one independent director/partner/member whose affirmative consent is required before a voluntary bankruptcy petition can be filed by the Issuer; and
(v) If the Issuer is not a Trust, requirements that each independent director/partner/member must be an individual that does not have a significant interest in, or other relationships with, the Sponsor or any of its Affiliates; and
(b) The Pooling and Servicing Agreement and/or other agreements establishing the contractual relationships between the parties to the securitization transaction will contain covenants prohibiting all parties thereto from filing an involuntary bankruptcy petition against the Issuer or initiating any other form of insolvency proceeding until after the Securities have been paid; and
(c) Prior to the issuance by the Issuer of any Securities, a legal opinion is received which states that either:
(i) A “true sale” of the assets being transferred to the Issuer by the Sponsor has occurred and that such transfer is not being made pursuant to a financing of the assets by the Sponsor; or
(ii) In the event of insolvency or receivership of the Sponsor, the assets transferred to the Issuer will not be part of the estate of the Sponsor;
(9) If a particular class of Securities held by any plan involves a Ratings Dependent or Non-Ratings Dependent Swap entered into by the Issuer, then each particular swap transaction relating to such Securities:
(a) Shall be an Eligible Swap;
(b) Shall be with an Eligible Swap Counterparty;
(c) In the case of a Ratings Dependent Swap, shall provide that if the credit rating of the counterparty is withdrawn or reduced by any Rating Agency below a level specified by the Rating Agency, the Servicer (as agent for the Trustee) shall, within the period specified under the Pooling and Servicing Agreement:
(i) Obtain a replacement swap agreement with an Eligible Swap Counterparty which is acceptable to the Rating Agency and the terms of which are substantially the same as the current swap agreement (at which time the earlier swap agreement shall terminate); or
(ii) Cause the swap counterparty to establish any collateralization or other arrangement satisfactory to the Rating Agency such that the then current rating by the Rating Agency of the particular class of Securities will not be withdrawn or reduced.
In the event that the Servicer fails to meet its obligations under this subsection II.A.(9)(c), plan securityholders will be notified in the immediately following Trustee's periodic report which is provided to securityholders, and sixty days after the receipt of such report, the exemptive relief provided under section I.C. will prospectively cease to be applicable to any class of Securities held by a plan which involves such Ratings Dependent Swap; provided that in no event will such plan securityholders be notified any later than the end of the second month that begins after the date on which such failure occurs.
(d) In the case of a Non-Ratings Dependent Swap, shall provide that, if the credit rating of the counterparty is withdrawn or reduced below the lowest level specified in section III.GG., the Servicer (as agent for the Trustee) shall within a specified period after such rating withdrawal or reduction:
(i) Obtain a replacement swap agreement with an Eligible Swap Counterparty, the terms of which are substantially the same as the current swap agreement (at which time the earlier swap agreement shall terminate); or
(ii) Cause the swap counterparty to post collateral with the Trustee in an amount equal to all payments owed by the counterparty if the swap transaction were terminated; or
(iii) Terminate the swap agreement in accordance with its terms; and
(e) Shall not require the Issuer to make any termination payments to the counterparty (other than a currently scheduled payment under the swap agreement) except from Excess Spread or other amounts that would otherwise be payable to the Servicer or the Sponsor;
(10) Any class of Securities, to which one or more swap agreements entered into by the Issuer applies, may be acquired or held in reliance upon this Underwriter Exemption only by Qualified Plan Investors; and
(11) Prior to the issuance of any debt securities, a legal opinion is received which states that the debt holders have a perfected security interest in the Issuer's assets.
B. Neither any Underwriter, Sponsor, Trustee, Servicer, Insurer or any Obligor, unless it or any of its Affiliates has discretionary authority or renders investment advice with respect to the plan assets used by a plan to acquire Securities, shall be denied the relief provided under section I., if the provision of subsection II.A.(6) is not satisfied with respect to acquisition or holding by a plan of such Securities, provided that (1) such condition is disclosed in the prospectus or private placement memorandum; and (2) in the case of a private placement of Securities, the Trustee obtains a representation from each initial purchaser which is a plan that it is in compliance with such condition, and obtains a covenant from each initial purchaser to the effect that, so long as such initial purchaser (or any transferee of such initial purchaser's Securities) is required to obtain from its transferee a representation regarding compliance with the Securities Act of 1933, any such transferees will be required to make a written representation regarding compliance with the condition set forth in subsection II.A.(6).
For purposes of this exemption:
A. “Security” means:
(1) A pass-through certificate or trust certificate that represents a beneficial ownership interest in the assets of an Issuer which is a Trust and which entitles the holder to payments of principal, interest and/or other payments made with respect to the assets of such Trust; or
(2) A security which is denominated as a debt instrument that is issued by, and is an obligation of, an Issuer; with respect to which the Underwriter is either (i) the sole underwriter or the manager or co-manager of the underwriting syndicate, or (ii) a selling or placement agent.
B. “Issuer” means an investment pool, the corpus or assets of which are held in trust (including a grantor or owner Trust) or whose assets are held by a partnership, special purpose corporation or limited liability company (which Issuer may be a Real Estate Mortgage Investment Conduit (REMIC) or a Financial Asset Securitization Investment Trust (FASIT) within the meaning of section 860D(a) or section 860L, respectively, of the Code); and the corpus or assets of which consist solely of:
(1) (a) Secured consumer receivables that bear interest or are purchased at a discount (including, but not limited to, home equity loans and obligations secured by shares issued by a cooperative housing association); and/or
(b) Secured credit instruments that bear interest or are purchased at a discount in transactions by or between business entities (including, but not limited to, Qualified Equipment Notes Secured by Leases); and/or
(c) Obligations that bear interest or are purchased at a discount and which are secured by single-family residential, multi-family residential and/or
(d) Obligations that bear interest or are purchased at a discount and which are secured by motor vehicles or equipment, or Qualified Motor Vehicle Leases; and/or
(e) Guaranteed governmental mortgage pool certificates, as defined in 29 CFR 2510.3-101(i)(2);
(f) Fractional undivided interests in any of the obligations described in clauses (a)-(e) of this subsection B.(1).
Notwithstanding the foregoing, residential and home equity loan receivables issued in Designated Transactions may be less than fully secured, provided that: (i) The rights and interests evidenced by the Securities issued in such Designated Transactions (as defined in section III.DD.) are not subordinated to the rights and interests evidenced by Securities of the same Issuer; (ii) such Securities acquired by the plan have received a rating from a Rating Agency at the time of such acquisition that is in one of the two highest generic rating categories; and (iii) any obligation included in the corpus or assets of the Issuer must be secured by collateral whose fair market value on the Closing Date of the Designated Transaction is at least equal to 80% of the sum of: (I) The outstanding principal balance due under the obligation which is held by the Issuer and (II) the outstanding principal balance(s) of any other obligation(s) of higher priority (whether or not held by the Issuer) which are secured by the same collateral.
(2) Property which had secured any of the obligations described in subsection III.B.(1);
(3) (a) Undistributed cash or temporary investments made therewith maturing no later than the next date on which distributions are made to securityholders; and/or
(b) Cash or investments made therewith which are credited to an account to provide payments to securityholders pursuant to any Eligible Swap Agreement meeting the conditions of subsection II.A.(9) or pursuant to any Eligible Yield Supplement Agreement; and/or
(c) Cash transferred to the Issuer on the Closing Date and permitted investments made therewith which:
(i) Are credited to a Pre-Funding Account established to purchase additional obligations with respect to which the conditions set forth in paragraphs (a)-(g) of subsection II.A.(7) are met; and/or
(ii) Are credited to a Capitalized Interest Account; and
(iii) Are held by the Issuer for a period ending no later than the first distribution date to securityholders occurring after the end of the Pre-Funding Period.
For purposes of this paragraph (c) of subsection III.B.(3), the term “permitted investments” means investments which: (i) Are either: (x) Direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, the United States or any agency or instrumentality thereof, provided that such obligations are backed by the full faith and credit of the United States or (y) have been rated (or the Obligor has been rated) in one of the three highest generic rating categories by a Rating Agency; (ii) are described in the Pooling and Servicing Agreement; and (iii) are permitted by the Rating Agency.
(4) Rights of the Trustee under the Pooling and Servicing Agreement, and rights under any insurance policies, third-party guarantees, contracts of suretyship, Eligible Yield Supplement Agreements, Eligible Swap Agreements meeting the conditions of subsection II.A.(9) or other credit support arrangements with respect to any obligations described in subsection III.B.(1).
Notwithstanding the foregoing, the term “Issuer” does not include any investment pool unless: (i) The assets of the type described in paragraphs (a)-(f) of subsection III.B.(1) which are contained in the investment pool have been included in other investment pools, (ii) Securities evidencing interests in such other investment pools have been rated in one of the three (or in the case of Designated Transactions, four) highest generic rating categories by a Rating Agency for at least one year prior to the plan's acquisition of Securities pursuant to this Underwriter Exemption, and (iii) Securities evidencing interests in such other investment pools have been purchased by investors other than plans for at least one year prior to the plan's acquisition of Securities pursuant to this Underwriter Exemption.
C. “Underwriter” means:
(1) An entity defined as an Underwriter in subsection III.C.(1) of each of the Underwriter Exemptions that are being amended by this exemption. In addition, the term Underwriter includes Deutsche Bank AG, New York Branch and Deutsche Morgan Grenfell/C.J. Lawrence Inc, Credit Lyonnais Securities (USA) Inc., ABN AMRO Inc., Ironwood Capital Partners Ltd., William J. Mayer Securities LLC, Raymond James & Associates Inc. & Raymond James Financial Inc., WAMU Capital Corporation, and Terwin Capital LLC (which received the approval of the Department to engage in transactions substantially similar to the transactions described in the Underwriter Exemptions pursuant to PTE 96-62);
(2) Any person directly or indirectly, through one or more intermediaries, controlling, controlled by or under common control with such entity; or
(3) Any member of an underwriting syndicate or selling group of which a person described in subsections III.C.(1) or (2) is a manager or co-manager with respect to the Securities.
Effective October 1, 2007 through April 1, 2008, “Underwriter” means:
(1) Banc of America Securities LLC, or an entity identified as an underwriter on the Securitization List at section III.KK. (
(2) Any person directly or indirectly, through one or more intermediaries, controlling, controlled by or under common control with such entities; or
(3) Any member of an underwriting syndicate or selling group of which such firm or person described in subsections III.C.(1) or (2) is a manager or co-manager with respect to the Securities.
D. “Sponsor” means:
(1) The entity that organizes an Issuer by depositing obligations therein in exchange for Securities; or
(2) Effective October 1, 2007 through April 1, 2008, for those transactions listed on the Securitization List at section III.KK., Bank of America.
E. “Master Servicer” means the entity that is a party to the Pooling and Servicing Agreement relating to assets of the Issuer and is fully responsible for servicing, directly or through Subservicers, the assets of the Issuer.
F. “Subservicer” means an entity which, under the supervision of and on
G. “Servicer” means any entity which services loans contained in the Issuer, including the Master Servicer and any Subservicer.
H. “Trust” means an Issuer which is a trust (including an owner trust, grantor trust or a REMIC or FASIT which is organized as a Trust).
I. “Trustee” means the Trustee of any Trust which issues Securities and also includes an Indenture Trustee. “Indenture Trustee” means the Trustee appointed under the indenture pursuant to which the subject Securities are issued, the rights of holders of the Securities are set forth and a security interest in the Trust assets in favor of the holders of the Securities is created. The Trustee or the Indenture Trustee is also a party to or beneficiary of all the documents and instruments transferred to the Issuer, and as such, has both the authority to, and the responsibility for, enforcing all the rights created thereby in favor of holders of the Securities, including those rights arising in the event of default by the Servicer.
J. “Insurer” means the insurer or guarantor of, or provider of other credit support for, an Issuer. Notwithstanding the foregoing, a person is not an insurer solely because it holds Securities representing an interest in an Issuer which are of a class subordinated to Securities representing an interest in the same Issuer.
K. “Obligor” means any person, other than the Insurer, that is obligated to make payments with respect to any obligation or receivable included in the Issuer. Where an Issuer contains Qualified Motor Vehicle Leases or Qualified Equipment Notes Secured by Leases, “Obligor” shall also include any owner of property subject to any lease included in the Issuer, or subject to any lease securing an obligation included in the Issuer.
L. “Excluded Plan” means any plan with respect to which any member of the Restricted Group is a “plan sponsor” within the meaning of section 3(16)(B) of the Act.
M. “Restricted Group” with respect to a class of Securities means:
(1) Each Underwriter;
(2) Each Insurer;
(3) The Sponsor;
(4) The Trustee;
(5) Each Servicer;
(6) Any Obligor with respect to obligations or receivables included in the Issuer constituting more than 5 percent of the aggregate unamortized principal balance of the assets in the Issuer, determined on the date of the initial issuance of Securities by the Issuer;
(7) Each counterparty in an Eligible Swap Agreement; or
(8) Any Affiliate of a person described in subsections III.M.(1)-(7).
N. “Affiliate” of another person includes:
(1) Any person directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with such other person;
(2) Any officer, director, partner, employee, relative (as defined in section 3(15) of the Act), a brother, a sister, or a spouse of a brother or sister of such other person; and
(3) Any corporation or partnership of which such other person is an officer, director or partner.
O. “Control” means the power to exercise a controlling influence over the management or policies of a person other than an individual.
P. A person will be “independent” of another person only if:
(1) Such person is not an Affiliate of that other person; and
(2) The other person, or an Affiliate thereof, is not a fiduciary who has investment management authority or renders investment advice with respect to any assets of such person.
Q. “Sale” includes the entrance into a Forward Delivery Commitment, provided:
(1) The terms of the Forward Delivery Commitment (including any fee paid to the investing plan) are no less favorable to the plan than they would be in an arm's-length transaction with an unrelated party;
(2) The prospectus or private placement memorandum is provided to an investing plan prior to the time the plan enters into the Forward Delivery Commitment; and
(3) At the time of the delivery, all conditions of this Underwriter Exemption applicable to sales are met.
R. “Forward Delivery Commitment” means a contract for the purchase or sale of one or more Securities to be delivered at an agreed future settlement date. The term includes both mandatory contracts (which contemplate obligatory delivery and acceptance of the Securities) and optional contracts (which give one party the right but not the obligation to deliver Securities to, or demand delivery of Securities from, the other party).
S. “Reasonable Compensation” has the same meaning as that term is defined in 29 CFR 2550.408c-2.
T. “Qualified Administrative Fee” means a fee which meets the following criteria:
(1) The fee is triggered by an act or failure to act by the Obligor other than the normal timely payment of amounts owing in respect of the obligations;
(2) The Servicer may not charge the fee absent the act or failure to act referred to in subsection III.T.(1);
(3) The ability to charge the fee, the circumstances in which the fee may be charged, and an explanation of how the fee is calculated are set forth in the Pooling and Servicing Agreement; and
(4) The amount paid to investors in the Issuer will not be reduced by the amount of any such fee waived by the Servicer.
U. “Qualified Equipment Note Secured By A Lease” means an equipment note:
(1) Which is secured by equipment which is leased;
(2) Which is secured by the obligation of the lessee to pay rent under the equipment lease; and
(3) With respect to which the Issuer's security interest in the equipment is at least as protective of the rights of the Issuer as the Issuer would have if the equipment note were secured only by the equipment and not the lease.
V. “Qualified Motor Vehicle Lease” means a lease of a motor vehicle where:
(1) The Issuer owns or holds a security interest in the lease;
(2) The Issuer owns or holds a security interest in the leased motor vehicle; and
(3) The Issuer's security interest in the leased motor vehicle is at least as protective of the Issuer's rights as the Issuer would receive under a motor vehicle installment loan contract.
W. “Pooling and Servicing Agreement” means the agreement or agreements among a Sponsor, a Servicer and the Trustee establishing a Trust. “Pooling and Servicing Agreement” also includes the indenture entered into by the Issuer and the Indenture Trustee.
X. “Rating Agency” means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc.; Moody's Investors Service, Inc.; FitchRatings, Inc.; DBRS Limited, or DBRS, Inc.; or any successors thereto.
Y. “Capitalized Interest Account” means an Issuer account: (i) Which is established to compensate securityholders for shortfalls, if any, between investment earnings on the Pre-Funding Account and the interest rate payable under the Securities; and (ii) which meets the requirements of paragraph (c) of subsection III.B.(3).
Z. “Closing Date” means the date the Issuer is formed, the Securities are first issued and the Issuer's assets (other than those additional obligations which are to be funded from the Pre-Funding
AA. “Pre-Funding Account” means an Issuer account: (i) Which is established to purchase additional obligations, which obligations meet the conditions set forth in paragraphs (a)-(g) of subsection II.A.(7); and (ii) which meets the requirements of paragraph (c) of subsection III.B.(3).
BB. “Pre-Funding Limit” means a percentage or ratio of the amount allocated to the Pre-Funding Account, as compared to the total principal amount of the Securities being offered, which is less than or equal to 25 percent.
CC. “Pre-Funding Period” means the period commencing on the Closing Date and ending no later than the earliest to occur of: (i) The date the amount on deposit in the Pre-Funding Account is less than the minimum dollar amount specified in the Pooling and Servicing Agreement; (ii) the date on which an event of default occurs under the Pooling and Servicing Agreement; or (iii) the date which is the later of three months or ninety days after the Closing Date.
DD. “Designated Transaction” means a securitization transaction in which the assets of the Issuer consist of secured consumer receivables, secured credit instruments or secured obligations that bear interest or are purchased at a discount and are: (i) Motor vehicle, home equity and/or manufactured housing consumer receivables; and/or (ii) motor vehicle credit instruments in transactions by or between business entities; and/or (iii) single-family residential, multi-family residential, home equity, manufactured housing and/or commercial mortgage obligations that are secured by single-family residential, multi-family residential, commercial real property or leasehold interests therein. For purposes of this section III.DD., the collateral securing motor vehicle consumer receivables or motor vehicle credit instruments may include motor vehicles and/or Qualified Motor Vehicle Leases.
EE. “Ratings Dependent Swap” means an interest rate swap, or (if purchased by or on behalf of the Issuer) an interest rate cap contract, that is part of the structure of a class of Securities where the rating assigned by the Rating Agency to any class of Securities held by any plan is dependent on the terms and conditions of the swap and the rating of the counterparty, and if such Security rating is not dependent on the existence of the swap and rating of the counterparty, such swap or cap shall be referred to as a “Non-Ratings Dependent Swap”. With respect to a Non-Ratings Dependent Swap, each Rating Agency rating the Securities must confirm, as of the date of issuance of the Securities by the Issuer, that entering into an Eligible Swap with such counterparty will not affect the rating of the Securities.
FF. “Eligible Swap” means a Ratings Dependent or Non-Ratings Dependent Swap:
(1) Which is denominated in U.S. dollars;
(2) Pursuant to which the Issuer pays or receives, on or immediately prior to the respective payment or distribution date for the class of Securities to which the swap relates, a fixed rate of interest, or a floating rate of interest based on a publicly available index (e.g., LIBOR or the U.S. Federal Reserve's Cost of Funds Index (COFI)), with the Issuer receiving such payments on at least a quarterly basis and obligated to make separate payments no more frequently than the counterparty, with all simultaneous payments being netted;
(3) Which has a notional amount that does not exceed either: (i) The principal balance of the class of Securities to which the swap relates, or (ii) the portion of the principal balance of such class represented solely by those types of corpus or assets of the Issuer referred to in subsections III.B.(1), (2) and (3);
(4) Which is not leveraged (i.e., payments are based on the applicable notional amount, the day count fractions, the fixed or floating rates designated in subsection III.FF.(2), and the difference between the products thereof, calculated on a one to one ratio and not on a multiplier of such difference);
(5) Which has a final termination date that is either the earlier of the date on which the Issuer terminates or the related class of Securities is fully repaid; and
(6) Which does not incorporate any provision which could cause a unilateral alteration in any provision described in subsections III.FF.(1) through (4) without the consent of the Trustee.
GG. “Eligible Swap Counterparty” means a bank or other financial institution which has a rating, at the date of issuance of the Securities by the Issuer, which is in one of the three highest long-term credit rating categories, or one of the two highest short-term credit rating categories, utilized by at least one of the Rating Agencies rating the Securities; provided that, if a swap counterparty is relying on its short-term rating to establish eligibility under the Underwriter Exemption, such swap counterparty must either have a long-term rating in one of the three highest long-term rating categories or not have a long-term rating from the applicable Rating Agency, and provided further that if the class of Securities with which the swap is associated has a final maturity date of more than one year from the date of issuance of the Securities, and such swap is a Ratings Dependent Swap, the swap counterparty is required by the terms of the swap agreement to establish any collateralization or other arrangement satisfactory to the Rating Agencies in the event of a ratings downgrade of the swap counterparty.
HH. “Qualified Plan Investor” means a plan investor or group of plan investors on whose behalf the decision to purchase Securities is made by an appropriate independent fiduciary that is qualified to analyze and understand the terms and conditions of any swap transaction used by the Issuer and the effect such swap would have upon the credit ratings of the Securities. For purposes of the Underwriter Exemption, such a fiduciary is either:
(1) A “qualified professional asset manager” (QPAM),
(2) An “in-house asset manager” (INHAM),
(3) A plan fiduciary with total assets under management of at least $100 million at the time of the acquisition of such Securities.
II. “Excess Spread” means, as of any day funds are distributed from the Issuer, the amount by which the interest allocated to Securities exceeds the amount necessary to pay interest to securityholders, servicing fees and expenses.
JJ. “Eligible Yield Supplement Agreement” means any yield supplement agreement, similar yield maintenance arrangement or, if purchased by or on behalf of the Issuer,
(1) It is denominated in U.S. dollars;
(2) The Issuer receives on, or immediately prior to the respective payment date for the Securities covered by such agreement or arrangement, a fixed rate of interest or a floating rate of interest based on a publicly available index (e.g., LIBOR or COFI), with the Issuer receiving such payments on at least a quarterly basis;
(3) It is not “leveraged” as described in subsection III.FF.(4);
(4) It does not incorporate any provision which would cause a unilateral alteration in any provision described in subsections III.JJ.(1)-(3) without the consent of the Trustee;
(5) It is entered into by the Issuer with an Eligible Swap Counterparty; and
(6) It has a notional amount that does not exceed either: (i) The principal balance of the class of Securities to which such agreement or arrangement relates, or (ii) the portion of the principal balance of such class represented solely by those types of corpus or assets of the Issuer referred to in subsections III.B.(1), (2) and (3).
KK. Effective October 1, 2007 through April 1, 2008, “Securitization List” means:
For a more complete statement of the facts and representations supporting the Department's decision to amend PTE 93-31, refer to the notice of proposed exemption that was published on March 13, 2008 in the
Wendy M. McColough of the Department, telephone (202) 693-8540. (This is not a toll-free number.)
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under Section 408(a) of the Act and/or Section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions to which the exemption does not apply and the general fiduciary responsibility provisions of Section 404 of the Act, which among other things require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with Section 404(a)(1)(B) of the Act; nor does it affect the requirement of Section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) This exemption is supplemental to and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transactional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(3) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describes all material terms of the transaction which is the subject of the exemption.
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before June 12, 2008. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
You may request a copy of any records schedule identified in this notice by contacting the Life Cycle Management Division (NWML) using one of the following means:
Requesters must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and must provide a mailing address. Those who desire appraisal reports should so indicate in their request.
Laurence Brewer, Director, Life Cycle Management Division (NWML), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Telephone: 301-837-1539. E-mail:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form (SF) 115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
The schedules listed in this notice are media neutral unless specified otherwise. An item in a schedule is media neutral when the disposition instructions may be applied to records regardless of the medium in which the records are created and maintained. Items included in schedules submitted to NARA on or after December 17, 2007, are media neutral unless the item is limited to a specific medium. (See 36 CFR 1228.24(b)(3).)
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of Agriculture, Agricultural Marketing Service (N1-136-06-6, 9 items, 7 temporary items). Databases and case files associated with the Plant Variety Protection Office (PVPO). Scheduled for temporary retention are accounting and tracking databases; reference databases; individual plant examiner files; name files; financial files; and case files for which PVPO certificates were not issued. Proposed for permanent retention are crop species databases and case files for which PVPO certificates were issued.
2. Department of Agriculture, Agricultural Research Service (N1-310-08-1, 9 items, 9 temporary items). Inputs and master files relating to an electronic information system that manages, tracks, documents, provides access to, and reports on research conducted primarily within the USDA/state agricultural research system. All significant information about the research itself as well as project outcomes is captured in the Current Research Information System, which has been scheduled as permanent. The proposed disposition instructions for master files are limited to electronic records.
3. Department of Defense, Defense Commissary Agency (N1-506-07-13, 2 items, 2 temporary items). Records relating to presentations by the agency head and business unit reports of activities. Reports and presentations having historical value were previously approved for permanent retention.
4. Department of Defense, Defense Commissary Agency (N1-506-08-1, 5 items, 5 temporary items). Records relating to ordering and pricing produce. Included are such records as pricing and availability information from suppliers, orders, shipping lists, stock levels, reports, pricing changes and inventories.
5. Department of Defense, Defense Logistics Agency (N1-361-06-1, 3 items, 3 temporary items). Master data file and outputs associated with an electronic information system used to supply clothing for military recruits and other military related personnel.
6. Department of Health and Human Services, Food and Drug Administration (N1-88-07-1, 44 items, 41 temporary items). Records of the National Center for Toxicological Research, including research project management records, research data, experiment protocols, and employee and materials safety records regarding radioactive and biological hazards. Proposed for permanent retention are program planning and policy records, annual research accomplishments and plans, and technical reports and manuscripts on research findings. The proposed disposition instructions are limited to paper records for technical reports and manuscripts on research findings.
7. Department of Homeland Security, Federal Emergency Management Agency (N1-311-08-1, 2 items, 2 temporary items). Recordings of telephone calls received from individuals seeking disaster assistance and associated records used to evaluate employee performance during the calls.
8. Department of Homeland Security, Federal Emergency Management Agency (N1-311-08-2, 1 item, 1 temporary item). National Emergency Training Center admission applications and course completion records, including competency scores and transcripts.
9. Department of Homeland Security, Management Directorate (N1-563-08-15, 1 item, 1 temporary item). Master file for an electronic information system used to track and evaluate performance of mail processing operations.
10. Department of Homeland Security, U.S. Citizenship and Immigration Services (N1-566-08-10, 1 item, 1 temporary item). Master file associated with an electronic information system containing biometric and biographical data on individuals applying for immigration benefits and used to produce identification cards. More complete information on an individual can be found in the Alien Files and will be scheduled for permanent retention.
11. Department of the Interior, National Business Center (N1-48-08-3, 6 items, 6 temporary items). Records relating to the Federal Personnel and Payroll System that include the master data files, software application requests, retirement records, and predict files. The proposed disposition instructions for the master data files and predict documentation are limited to electronic records.
12. Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives (N1-436-07-5, 2 items, 2 temporary items). Master file of a financial information system that captures work flow data and images of financial records.
13. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (N1-436-08-7, 2 items, 2 temporary items). Inputs and master file of the Giglio data system which stores potential witness impeachment data for employees.
14. Department of Justice, Executive Office for U.S. Attorneys (N1-60-08-5, 4 items, 4 temporary items). Inputs, outputs, and master file for the Victim Notification System, which tracks and provides notification of significant case events and activity to victims of federal crimes.
15. Department of the Navy, Agency-wide (N1-NU-08-2, 1 item, 1 temporary item). Unsolicited communications of information related to security of agency personnel or property determined to warrant no further investigation.
16. Department of the Navy, United States Marine Corps (N1-NU-07-12, 1 item, 1 temporary item). Master file associated with an electronic information system that tracks progression of military justice cases to ensure a speedy trial. The proposed disposition instructions are limited to electronic records.
17. Environmental Protection Agency, Office of the Chief Financial Officer (N1-412-07-69, 8 items, 6 temporary items). This schedule authorizes the agency to apply existing disposition instructions to records regardless of the recordkeeping medium. The records include time and attendance records used for payroll processing, payroll support and payroll control records, pay folders, external accounting reports required by Government-wide regulations, and administrative documentation relating to audit resolution. Paper recordkeeping copies of these files, with the exception of administrative documentation relating to audit resolution, were previously authorized for disposal. Also included are audit resolution board case files, for which paper recordkeeping copies previously were approved as permanent.
18. Environmental Protection Agency, Office of Water (N1-412-08-1, 4 items, 4 temporary items). Input, electronic data, system documentation, and implementation files for the Safe Drinking Water Accession and Review System, which supports the management of laboratory data collected under the unregulated contaminant monitoring rule.
19. Environmental Protection Agency, Office of Water (N1-412-08-2, 2 items, 2 temporary items). Input and electronic data for the National Contaminant Occurrence database, which contains occurrence data from public water systems and other sources on physical, chemical, microbial and radiological contaminants for both detections and non-detects.
20. Federal Maritime Commission, Bureau of Trade Analysis (N1-358-08-05, 2 items, 2 temporary items). Master file and outputs supporting an automated tariff registration system that provides tariff publication locations for shippers and the public.
21. National Archives and Records Administration, Office of Administration (N1-64-08-8, 4 items, 4 temporary items). Master file and related records for a legacy automated property management system used to track agency accountable personal property.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
• Budget process and status.
• Human and Social Dynamics—COV discussion and plans for the future.
• SBE participation in NSF initiatives for FY 2009.
• Sustainability workshop report.
• SBE infrastructure.
• Linkages with DOD.
• International activities.
• Questions from the National Science Board: Limitations on proposal submission; cost sharing.
• Broadening participation.
• Human capital and succession planning in SBE.
Discussion with the NSF Director.
Planning for FY 2010 and Beyond.
Nuclear Regulatory Commission.
Weeks of May 12, 19, 26, June 2, 9, 16, 2008.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
11 a.m. Discussion of Security Issues (Closed—Ex. 1).
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of May 19, 2008.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of June 9, 2008.
There are no meetings scheduled for the Week of June 16, 2008.
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415-1292. Contact person for more information: Michelle Schroll, (301) 415-1662.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify the NRC's Disability Program Coordinator, Rohn Brown, at 301-492-2279, TDD: 301-415-2100, or by e-mail at
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 17(d) (15 U.S.C. 80a-17(d)) of the Investment Company Act of 1940 (15 U.S.C. 80a
Rule 17d-1 also contains a number of exceptions to the requirement that a fund must obtain Commission approval prior to entering into joint transactions or arrangements with affiliates. For example, funds do not have to obtain Commission approval for certain employee compensation plans, certain tax-deferred employee benefit plans, certain transactions involving small business investment companies, the receipt of securities or cash by certain affiliates pursuant to a plan of reorganization, and arrangements regarding liability insurance policies. The Commission amended rule 17d-1 most recently in 2003 to expand the current exemptions from the Commission approval process to permit funds to engage in transactions with “portfolio affiliates”—companies that are affiliated with the fund solely as a result of the fund (or an affiliated fund) controlling them or owning more than five percent of their voting securities. This amendment was designed to permit funds' transactions with portfolio affiliates without seeking Commission approval, as long as certain other affiliated persons of the fund (
Thus, the rule contains two filing and recordkeeping requirements that constitute collections of information. First, rule 17d-1 requires funds that wish to engage in a joint transaction or arrangement with affiliates to meet the procedural requirements for obtaining exemptive relief from the rule's prohibition on joint transactions or arrangements involving first-or second-tier affiliates. Second, rule 17d-1 permits a portfolio affiliate to enter into a joint transaction or arrangement with the fund if a prohibited participant has a financial interest that the fund's board determines is not material and records the basis for this finding in their meeting minutes. These requirements of rule 17d-1 are designed to prevent fund insiders from managing funds for their own benefit, rather than for the benefit of the funds' shareholders.
Based on an analysis of past filings, Commission staff estimates that 4 funds file applications under section 17(d) and rule 17d-1 per year. Based on a limited survey of persons in the mutual fund industry, the Commission staff estimates that each applicant will spend an average of 154 hours to comply with the Commission's applications process. The Commission staff therefore estimates the annual burden hours per year for all funds under rule 17d-1's application process to be 616 hours.
Based on analysis of past filings, the Commission's staff estimates that 148 funds are affiliated persons of 668 issuers as a result of the fund's ownership or control of the issuer's voting securities, and that there are approximately 1,000 such affiliate relationships. Staff discussions with mutual fund representatives have suggested that no funds are currently relying on rule 17d-1 exemptions. We do not know definitively the reasons for this transactional behavior, but differing market conditions from year to year may offer some explanation for the current lack of fund interest in the exemptions under rule 17d-1. Accordingly, we estimate that annually there will be no joint transactions under rule 17d-1 that will result in a collection of information. The Commission, therefore, requests authorization to maintain an inventory of total burden hours per year for all funds under rule 17d-1 of 616 hours.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act. The estimate is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Complying with these collections of information requirement is necessary to obtain the benefit of relying on rule 17d-1. 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 control number.
Please direct general comments regarding the above information to the following persons: (i) Desk Officer for the Securities and Exchange Commission, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 350l-3520), the Securities and Exchange Commission (“Commission”) has submitted to the Office of Management and Budget a request for extension of the previously approved collection of information discussed below.
Rule 18f-1 (17 CFR 270.18f-1) enables a registered open-end management investment company (“fund”) that may redeem its securities in-kind, by making a one-time election, to commit to make cash redemptions pursuant to certain requirements without violating section 18(f) of the Investment Company Act of 1940 (15 U.S.C. 80a-18(f)). A fund relying on the rule must file Form N-18F-1 (17 CFR 274.51) to notify the Commission of this election. The Commission staff estimates that approximately 39 funds file Form N-18F-1 annually, and that each response takes approximately one hour. Based on these estimates, the total annual burden hours associated with the rule is estimated to be 39 hours.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. The collection of information required by rule 18f-1 is necessary to obtain the benefits of the rule. Responses to the collection of information will not be kept confidential. 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 control number.
Please direct general comments regarding the above information to the following persons: (i) Desk Officer for the Securities and Exchange Commission, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or e-mail to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17f-2(e) requires members of national securities exchanges, brokers, dealers, registered transfer agents, and registered clearing agencies claiming exemption from the fingerprinting requirements of Rule 17f-2 to prepare and maintain a statement supporting their claim exemption. This requirement assists the Commission and other regulatory agencies with ensuring compliance with Rule 17f-2 (17 CFR 240.17f-2).
Notices prepared pursuant to Rule 17f-2(e) must be maintained for as long as the covered entity claims an exemption from the fingerprinting requirements of Rule 17f-2. The recordkeeping requirement under Rule 17f-2(e) is mandatory to assist the Commission and other regulatory agencies with ensuring compliance with Rule 17f-2. This rule does not involve the collection of confidential information.
It is estimated that approximately 75 respondents will incur an average burden of 30 minutes per year to comply with this rule, for a total approximate burden of 38 hours.
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 control number.
Comments should be directed to (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or by sending an e-mail to:
73 FR 21165, April 18, 2008 and 73 FR 22184, dated April 24, 2008.
Open Meeting.
100 F Street, NE., Washington, DC.
May 14, 2008 at 10 a.m.
Additional Item.
The following matter will also be considered during the 10 a.m. Open Meeting scheduled for Wednesday, May 14, 2008, at 10 a.m., in the Auditorium, Room L-002:
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
On March 27, 2008, the American Stock Exchange LLC (“Amex” or
The RSP was first put in place by the Exchange for ETF specialists and registered traders, effective July 1, 2007, and was to last through December 31, 2007 unless otherwise extended.
The Exchange now seeks to retroactively apply the RSP for the time period January 1, 2008 through March 17, 2008 (the “retroactive period”) in order to provide continuity in the RSP for all ETF quoting participants on the Exchange, who continued to quote aggressively during the retroactive period in the expectation of receiving RSP payments. RSP payments for the retroactive period will be made pursuant to the same terms established in the RSP Release.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
BSECC proposes to amend its Articles of Organization and its By-Laws to reflect the planned acquisition of BSECC by The NASDAQ OMX Group, Inc. (“NASDAQ OMX”) and to update the By-Laws in certain other respects.
In its filing with the Commission, the self-regulatory organization 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. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On October 2, 2007, Boston Stock Exchange, Inc. (“BSE”), announced that it had entered into an agreement with The Nasdaq Stock Market, Inc. (now NASDAQ OMX) pursuant to which NASDAQ OMX would acquire all of the outstanding membership interests in BSE and BSE would be merged with and into Yellow Merger Corporation, a Delaware corporation and wholly owned subsidiary of NASDAQ OMX, with BSE surviving the merger. As a result of the merger, BSE would become a Delaware stock corporation with 100% of its outstanding stock owned by NASDAQ OMX. BSECC is now and following the merger will continue to be a wholly owned subsidiary of BSE. BSECC proposes to adopt (1) Articles of Amendment to its Articles of Organization, and (2) amendments to its By-Laws for the purpose of reflecting its acquisition by NASDAQ OMX and of modernizing its governance documents.
1. Amend Article III to provide that the total number of shares of each class of stock that BSECC is authorized to issue is 150 shares of common stock. This amendment reflects a reduction in the total authorized share capital of BSECC from 1000 shares of common stock to the 150 shares of Common Stock currently held by BSE. Thus, following the amendment, all of the authorized shares of common stock of BSECC would be outstanding and would be owned by BSE;
2. Amend Article V to provide that BSE may not transfer or assign any shares of stock of BSECC unless such transfer or assignment has been filed with and approved by the Commission under Section 19 of the Act;
3. Adopt new Article VI to provide that in accordance with modern practice for Massachusetts corporations, directors of BSECC are not personally liable to it for breaches of fiduciary duty except for breaches involving (i) a breach of the duty of loyalty, (ii) acts or omissions not in good faith or that involve intentional misconduct or knowing violation of law, (iii) distributions of assets that would render BSECC insolvent, or (iv) any transaction from which the director derived an improper personal benefit.
BSECC proposes several changes to its By-Laws, which are primarily for the purpose of updating the By-Laws in accordance with modern corporate practice for Massachusetts corporations. The amendments proposed are:
1. Eliminate the offices of “clerk” and “vice-chairman” from BSECC and delete references to those offices from the By-Laws;
2. Clarify the time periods allowed or required for notice to stockholders of meetings, the permissible duration of stockholder proxies, and the setting of a record date in accordance with modern Massachusetts law and remove a provision allowing close of the transfer books of BSECC that is no longer consistent with Massachusetts law;
3. Provide that stockholders, as well as directors, may fill vacancies on the Board, in accordance with Massachusetts law;
4. Clarify that directors of BSECC who also serve on BSE's Board of Directors must tender resignations from BSECC's Board if they cease to be directors of BSE;
5. Clarify the requirements for action by the Board of Directors and the stockholders to be taken without a meeting;
6. Establish that the officers of BSECC are all appointed by and subject to removal by its Board of Directors;
7. Adopt modern provisions stipulating the conditions under which BSECC may indemnify its officers and directors and the scope of such indemnification;
8. Stipulate that the By-Laws may be amended only upon approval by the Commission and in accordance with the rules of BSECC;
9. Clarify the meaning of several provisions in accordance with modern Massachusetts law and correct several typographical errors.
BSECC believes that the proposed rule change is consistent with the provisions of Section 17A of the Act
BSECC does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
BSECC has neither solicited nor received comments on the proposed rule change.
Within thirty-five 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 Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission by the Division of Trading and Markets pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
CBOE proposes to adjust the monthly access fee for persons granted temporary CBOE membership status (“Temporary Members”) pursuant to Interpretation and Policy .02 under CBOE Rule 3.19 (“Rule 3.19.02”). The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, CBOE 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. CBOE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The current access fee for Temporary Members under Rule 3.19.02
The Exchange used the following process to set the proposed access fee: The Exchange polled each of the clearing firms that assists in facilitating at least 10% of the transferable CBOE membership leases and obtained the Clearing Firm Floating Monthly Rate
The Exchange used the same process to set the proposed access fee that it used to set the current access fee. The only difference is that the Exchange used Clearing Firm Floating Monthly Rate information for the month of May 2008 to set the proposed access fee (instead of Clearing Firm Floating Monthly Rate information for the month of April 2008 as was used to set the current access fee) in order to take into account changes in Clearing Firm Floating Monthly Rates for the month of May 2008.
The Exchange believes that the process used to set the proposed access fee and the proposed access fee itself are appropriate for the same reasons set forth in CBOE rule filing SR-CBOE-2008-12 in support of that process and the original access fee for Temporary Members under Rule 3.19.02.
The proposed access fee will remain in effect until such time either that the Exchange submits a further rule filing pursuant to Section 19(b)(3)(A)(ii) of the Act
The procedural provisions of the CBOE Fee Schedule related to the assessment of the proposed access fee are not proposed to be changed and will remain the same as the current procedural provisions regarding the assessment of the current access fee. However, the Exchange is proposing to delete the current reference in the Fee Schedule which notes that the first month for which an access fee will be assessed to Temporary Members under Rule 3.19.02 is February 2008 because the commencement of the assessment of this access fee is now past.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange, it has become effective pursuant to Section 19(b)(3)(A) of the Act
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 Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 21, 2007, Financial Industry Regulatory Authority, Inc. (“FINRA”), filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA proposes to amend NASD Rule 7001B (Securities Transaction Credit) to modify the percentage of market data revenue that is shared with FINRA members that report trades to the NASD/Nasdaq TRF for transactions on the New York Stock Exchange (“Tape A”), American Stock Exchange and regional exchanges (“Tape B”), and Nasdaq Exchange (“Tape C”). At present, FINRA members that report trades in Tape A, Tape B, and Tape C securities to the NASD/Nasdaq TRF receive a 50%
The proposed rule change establishes a tiered rebate schedule whereby a participant in the NASD/Nasdaq TRF will receive from 0% to 100% of attributable market data revenue, depending upon the tape and the participant's market share. For example, a participant will receive 100% of the attributable market data revenue for trades in Tape A-listed stocks if its trade reports for those stocks are greater than or equal to 0.25% of the total consolidated volume of those stocks. In contrast, a participant will receive 100% of the attributable market data revenue for trades in Tape C-listed stocks if its trade reports for those stocks are greater than or equal to 0.75% of the total consolidated volume of those stocks. Similarly, a participant will receive 80% of the attributable market data revenue for trades in Tape A-listed stocks if its trade reports for those stocks are less than 0.25%, but greater than or equal to 0.15%, of the total consolidated volume of those stocks. A participant will receive 80% of the attributable market data revenue for trades in Tape C-listed stocks if its trade reports for those stocks are less than 0.75%, but greater than or equal to 0.25% of the total consolidated volume of those stocks.
In its filing with the Commission, FINRA stated that according to Nasdaq, it based the percentage of revenue that
FINRA will calculate a participant's market share separately for each tape. To calculate a participant's market share, FINRA will divide the total number of shares represented by trades reported by members to the NASD/Nasdaq TRF during a calendar quarter by the total number of shares represented by all trades reported to the Consolidated Tape Association or Securities Information Processor during that quarter.
The Commission received one comment letter in response to the proposed rule change.
FINRA responded that the arguments made by the commenter were not germane to the proposed rule change. For example, FINRA stated that the issue of the reasonableness of market data fees and the purported lack of transparency regarding the cost of collecting market data are at issue in the NetCoalition Petition and need not be resolved in connection with this filing.
The Commission has carefully reviewed the proposed rule change, the comment letter, and FINRA's response to the comment letter, and finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association
The Commission believes that it is reasonable for FINRA to amend Rule 7001B to adjust the percentage of market data revenue shared with NASD/Nasdaq TRF participants, effective retroactively to January 1, 2008. FINRA seeks to modify the rebate of market data revenue to NASD/Nasdaq TRF participants. Neither the costs incurred in collecting that market data, nor the calculation of market data fees is directly at issue in this filing. The fact that Nasdaq, as the Business Member, has determined to adjust its rebate schedule such that participants may receive a greater percentage of market data revenue does not establish that the fees are excessive. The SIFMA letter does not raise any other issue that would preclude approval of the FINRA proposal.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and, in particular, Section 15A of the Act and the rules and regulations thereunder.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 21, 2007, Financial Industry Regulatory Authority, Inc. (“FINRA”) (f/k/a National Association of Securities Dealers, Inc. (“NASD”)), filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
This order approves the proposed rule change, as modified by Amendment Nos. 1 and 2.
FINRA is proposing to establish an exemption for certain Regulation NMS-compliant ISOs
In its filing with the Commission, FINRA stated that the proposed exemption is similar to an exemption adopted by the New York Stock Exchange LLC to its Rule 92 (Limitations on Members' Trading Because of Customers' Orders). The ISO exemption to Rule 92 was approved by the Commission on July 5, 2007.
The Commission received one comment letter in response to the proposed rule change.
FINRA responded to the comment letter on March 26, 2008.
The Commission has carefully reviewed the proposed rule change, the comment letter, and FINRA's response to the comment letter, and finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association
The Commission believes that it is reasonable for FINRA to amend IM-2110-2 and Rule 2111 to exempt members when routing certain Regulation NMS-compliant ISOs. The proposed rule change should enable members to comply with the ISO routing requirements of Rule 611 of Regulation NMS without violating IM-2110-2 and Rule 2111 and, given the ISO routing exemption that currently exists under NYSE Rule 92, will subject ISO routing to consistent standards.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
ISE proposes to amend Supplementary Material .07 to ISE Rule 716 to make it consistent with the definition of a Block Trade under the Exchange's Intermarket Option Linkage (“options linkage”) rules. The text of the proposed rule amendment is as follows, with deletions in [brackets] and additions
(a) through (e) no change.
.01 through .06 no change.
.07 Away Market Prices. Orders of 50 to 499 contracts
In its filing with the Commission, ISE included statements concerning the purpose of, and basis for, the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ISE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange's Block and Facilitation Mechanisms under ISE Rule 716 provide a way for members to execute block-sized orders, defined as orders of at least 50 contracts. The Solicited Order Mechanism also allows for the execution of block-sized solicited orders, but is limited to orders of at least 500 contracts. The Exchange's rule for the Block and Facilitation Mechanisms specify that orders under 500 contracts may not be executed at prices that would trade through the national best bid or offer (“NBBO”) and that orders of 500 contracts or more may be executed in the Block, Facilitation and Solicited Order Mechanisms without consideration of any prices that might be available on other exchanges trading the same options contract.
Under the options linkage rules, Block Trades, which may be executed at prices that are inferior to the NBBO,
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act.
ISE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received 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, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) under the Act normally may not become operative prior to 30 days after the date of filing.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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 Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to change the shareholder requirements for continued listing. Nasdaq will implement the proposed rule immediately upon approval.
The text of the proposed rule change is below. Proposed new language is
(a) For purposes of the Rule 4000 Series, unless the context requires otherwise:
(1)-(31) No change.
(32)
(33) “Round lot holder” means a holder of a normal unit of trading.
(34)-(37) No change.
(38)
(
[(39)] (
(b)-(c) No change.
To qualify for listing in Nasdaq, a security of a domestic or Canadian issuer shall satisfy all applicable requirements contained in paragraphs (a), (b), and (c) hereof. Issuers that meet these requirements, but that are not listed on the Nasdaq Global Market, are listed on the Nasdaq Capital Market.
(a)-(b) No change.
(c) In addition to the requirements contained in paragraph (a) and (b) above, and unless otherwise indicated, a security shall satisfy the following criteria for listing on Nasdaq:
(1)-(5) No change.
(6) (A) In the case of common stock, for initial [and continued] listing[,] there shall be at least 300 round lot holders of the security
(B) In the case of preferred stock and secondary classes of common stock, for initial [and continued] listing[,] there shall be at least 100 round lot holders of the security
(C) No change.
(7)-(30) No change.
(d) No change.
To qualify for listing on Nasdaq, a security of a non-Canadian foreign issuer, an American Depositary Receipt (ADR) or similar security issued in respect of a security of a foreign issuer shall satisfy the requirements of paragraphs (a), (b), and (e) of this Rule. Issuers that meet these requirements, but that are not listed on the Nasdaq Global Market, are listed on the Nasdaq Capital Market.
(a)-(d) No change.
(e) In addition to the requirements contained in paragraphs (a) and (b), the security shall satisfy the criteria set out in this subsection for listing on Nasdaq. In the case of ADRs, the underlying security will be considered when determining the ADR's qualification for initial or continued listing on Nasdaq.
(1)-(3) No change.
(4)(A) In the case of common stock, for initial [and continued] listing[,] there shall be at least 300 round lot holders of the security
(B) In the case of preferred stock and secondary classes of common stock, for initial [and continued] listing[,] there shall be at least 100 round lot holders of the security
(C) No change.
(5)-(26) No change.
(f) No change.
(a) No change.
(b) Liquidity Requirements
(1) The security must demonstrate either:
(A)(i) a minimum of 550 [beneficial]
(B) a minimum of 2,200 [beneficial]
(C) a minimum of 450 [beneficial] round lot shareholders
(2)-(3) No change.
(c)-(f) No change.
After listing as a Nasdaq Global Market security, a security must substantially meet the criteria set forth in paragraphs (a) or (b), and (c), (d), (e) (f), (g), (h) or (i) below to continue to remain listed on the Nasdaq Global Market. A security maintaining its listing under paragraph (b) need not also be in compliance with the quantitative maintenance criteria in the Rule 4300 series.
(a)
(1)-(3) No change.
(4) 400
(5)-(6) No change.
(b)
(1)-(4) No change.
(5) 400
(6) No change.
(c)-(g) No change.
(h) Quantitative Maintenance Criteria—Preferred Stock and Secondary Classes of Common Stock.
For continued listing, if the common stock or common stock equity equivalent security of the issuer is listed on Nasdaq or another national securities exchange, the issue shall have:
(1)-(3) No change.
(4) A minimum of 100 [round lot]
(5) No change.
Alternatively, in the event the issuer's common stock or common stock equivalent security is not listed on either Nasdaq or another national securities exchange, the preferred stock and/or secondary class of common stock may be listed on Nasdaq so long as the security satisfies the listing criteria for common stock.
(i) 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 rules require a company to maintain a certain minimum number of round lot holders for continued listing.
It also can be difficult to obtain the number of shares held by beneficial owners from record holders, such as broker-dealers.
In order to determine compliance with the round lot requirement, Nasdaq reviews a number of factors, including whether the company has a number of record holders well in excess of the round lot holder requirement and shareholder data provided by the company's transfer agent and Broadridge Financial Solutions, Inc. (formerly, Automatic Data Processing, Inc.). While this process is effective, it is very time-consuming for Nasdaq and can be frustrating to the company, which has to spend considerable time and may be charged a fee to obtain this information.
In contrast, the number of total holders is more easily determined. For example, the number of proxies that a company mails is a very good approximation of the number of its total holders. In fact, many companies disclose the number of beneficial holders in their public filings, either instead of, or in addition to, the number of record holders. Further, the number of public holders generally can be easily determined by subtracting from the total shareholders the number of executive officers, directors, and 10% shareholders that are disclosed in the company's proxy statement.
When the round lot holder requirement was originally adopted it was difficult and costly to trade in increments of less than 100 shares. Thus odd lot holders (that is, holders of fewer
In addition, in Nasdaq's experience, companies do not typically see a decrease in the number of round lot holders following their listing, absent a transaction such as a reverse stock split or major stock buy-back.
Given these difficulties and changed circumstances, Nasdaq proposes that the shareholder requirements for continued listing be changed so that it no longer considers only round lot holders. As revised, Nasdaq would generally require 300 public shareholders
Under this definition, Nasdaq would consider immediate family members of an executive officer, director, or 10% holder to not be public holders to the extent the shares held by such individuals are considered beneficially owned by the executive officer, director or 10% holder under Rule 16a-1 under the Act.
Nasdaq also proposes to modify the rules relating to the Nasdaq Global Select Market to use the newly defined term “total shareholders” in those rules; however, no substantive change is being made to the requirements for the Global Select Market. In addition, no change is proposed to the initial listing requirements because the majority of initial listings are initial public offerings, where the number of round lot shareholders can be easily determined by the underwriter when distributing the offering, and because SEC rules require that markets have a minimum of 300 round lot holders for initial listing to avoid having listed securities be subject to the penny stock rules.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
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 Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 24, 2007, the National Association of Securities Dealers, Inc. (“NASD”) (n/k/a Financial Industry Regulatory Authority, Inc.), filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA proposes to amend NASD Rule 7001E to increase the market data revenue that is shared with FINRA members that report trades in Tape A, Tape B, and Tape C stocks to the NASD/NYSE Trade Reporting Facility (the “NASD/NYSE TRF”).
The proposed rule change increases from 50% to 100% the percentage of gross market data revenue that is shared with members. FINRA members that report trades in Tape A, Tape B and Tape C stocks to the NASD/NYSE TRF will thus receive a 100%
The Commission received one comment letter in response to the proposed rule change.
FINRA responded that the arguments made by the commenter were not germane to the proposed rule change. For example, FINRA said that the issue of the reasonableness of market data fees and the purported lack of transparency regarding the cost of collecting market data are at issue in the NetCoalition Petition and need not be resolved in connection with this filing.
The Commission has carefully reviewed the proposed rule change, the comment letter, and FINRA's response to the comment letter, and finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association
The Commission believes that it is reasonable for FINRA to amend Rule 7001E to adjust the percentage of market data revenue shared with NASD/NYSE TRF participants, effective retroactively to April 18, 2007, the date the NASD/NYSE TRF began operation. FINRA seeks to increase the rebate of market data revenue to NASD/NYSE TRF participants. Neither the costs incurred in collecting that market data, nor the calculation of market data fees is directly at issue in this filing. The fact that NYSE, as the Business Member, has determined to rebate a greater percentage of market data revenue does not establish that the underlying fees are excessive. The SIFMA letter does not raise any other issue that would preclude approval of the FINRA proposal.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and, in particular, Section 15A of the Act and the rules and regulations thereunder.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 29, 2007, the National Association of Securities Dealers, Inc. (“NASD”) (n/k/a Financial Industry Regulatory Authority, Inc.), filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA proposes to amend NASD Rule 7001C to increase the percentage of market data revenue that is shared with FINRA members that report trades in New York Stock Exchange (“Tape A”), American Stock Exchange (“Tape B”), and Nasdaq Exchange (“Tape C”) stocks to the NASD/NSX Trade Reporting Facility (the “NASD/NSX TRF”).
The proposed rule change increases from 50% to 75% the percentage of market data revenue that is shared with members. FINRA members that report trades in Tape A, Tape B and Tape C stocks to the NASD/NSX TRF will thus receive a 75%
The Commission received one comment letter in response to the proposed rule change.
FINRA responded that none of the arguments made by the commenter was germane to the proposed rule change.
In its response, NSX stated that it generally agreed with the SIFMA letter.
The Commission has carefully reviewed the proposed rule change, the comment letter, and the responses of both FINRA and NSX to the comment letter, and finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association
The Commission believes that it is reasonable for FINRA to amend Rule 7001C to adjust the percentage of market data revenue shared with NASD/NSX TRF participants, effective retroactively to April 1, 2007. FINRA seeks to increase the rebate of market data revenue to NASD/NSX TRF participants. Neither the costs incurred in collecting that market data, nor the calculation of market data fees are directly at issue in this filing. The fact that NSX, as the Business Member, has determined to rebate a greater percentage of market data revenue does not establish that the underlying fees are excessive. The SIFMA letter does not raise any other issue that would preclude approval of the FINRA proposal.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 23, 2007, the National Association of Securities Dealers, Inc. (“NASD”) (n/k/a Financial Industry Regulatory Authority, Inc. (“FINRA”))
The proposed rule change seeks to amend the NASD Rule 9700 Series to streamline the existing procedural rules applicable to general grievances related to FINRA automated systems, to provide discretionary review by NAC, acting through the NAC's Review Subcommittee, and to delete certain text that is no longer necessary.
The NASD Rule 9700 Series, Procedures on Grievances Concerning the Automated Systems, provides redress, where justified, for persons aggrieved by the operations of any automated quotation, execution or communication system owned or operated by FINRA that is not otherwise provided for under the Code of Procedure (“Rule 9000 Series”) or the Uniform Practice Code (“Rule 11000 Series”). The Rule 9700 Series was established to ensure adequate procedural protections to users of FINRA systems.
Currently under the Rule 9700 Series, a party that is aggrieved by the operation of a FINRA automated system may request a review by a hearing panel. In accordance with the Rule 9700 Series, the aggrieved party may also request a review of the hearing panel's decision by a Committee designated by FINRA's Board of Governors (“Board”).
Given that these reviews focus on one narrow issue, FINRA proposes to amend the Rule 9700 Series to streamline the review process. Specifically, reviews of staff determinations under the Rule 9700 Series would be adjudicated by a Hearing Officer
After the review hearing, the Hearing Officer would prepare a written decision and provide it to the NAC's Review Subcommittee, which would have the ability to call the decision for review during certain specified timeframes.
If a decision is called for review by the NAC's Review Subcommittee, the NAC or NAC's Review Subcommittee would appoint a Subcommittee
An aggrieved party also would continue to have the right to appeal the Hearing Officer's decision, or the NAC decision, as the case may be, to the Commission.
FINRA also proposes to make conforming and non-substantive changes to Rules 6530 and 9120 to reflect the amended review process contained in the Rule 9700 Series. There are no proposed changes to other aspects of the review process relating to OTCBB eligibility determinations under Rule 6530 (
Also in accordance with Rule 6530, a request for review would stay the OTCBB security's removal until the Hearing Officer issues a decision. If the NAC's Review Subcommittee calls a matter for review, the OTCBB security's removal will be stayed until the NAC issues a decision.
In addition, FINRA proposes to make a technical change to the text of Rule 9710. to clarify that the scope of the Rule 9700 Series is to address general grievances not otherwise provided for by any other FINRA Rules.
Finally, FINRA proposes to delete language in Rule 6530(e), relating to an October 1, 2005 timeframe, that is no longer necessary.
FINRA will announce the effective date of the proposed rule change in a
After careful review, the Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to a national securities association.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 6, 2008, the New York Stock Exchange LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange has proposed to amend its Listed Company Manual (“Manual”) to adopt new initial and continued listing standards to list securities of SPACs. In its proposal, NYSE generally described the structure of SPACs.
The Exchange proposes to adopt new Section 102.06 of the Manual for the initial listing standards for securities of SPACs. NYSE's existing listing rules require all listed companies to have some operating history prior to listing. The proposed standards, as described below, would allow the listing of securities of SPACs with no prior operating history, a departure from NYSE's current listing requirements.
As proposed, SPACs would have to meet the same distribution criteria as all other IPOs-400 holders of round lots and 1,100,000 publicly held shares.
The proposal would also require that under the terms of the SPAC's constitutive documents or by contract, any SPAC deemed suitable for listing would be subject to the following minimum requirements.
• The Business Combination must be approved by a majority vote of the votes cast by public shareholders at a duly held shareholders meeting.
• Each public shareholder voting against the Business Combination will have the right (“Conversion Right”) to convert its shares of common stock into a pro rata share of the aggregate amount then on deposit in the trust account (net of taxes payable and amounts disbursed to management for working capital purposes), provided that the Business Combination is approved and consummated. SPACs may establish a limit (set no lower than 10% of the shares sold in the IPO) as to the maximum number of shares with respect to which any public shareholder, together with any affiliate of such shareholder or any person with whom such shareholder is acting as a “group” (as such term is used in Sections 13(d)
• The SPAC cannot consummate its Business Combination if public shareholders owning in excess of a threshold amount (to be set no higher than 40% by the SPAC) of the shares of common stock issued in the IPO exercise their Conversion Rights in connection with such Business Combination.
• The SPAC would be liquidated if a Business Combination has not been consummated within a specified time period, not to exceed three years. Under the proposal, NYSE must promptly commence delisting procedures with respect to the securities of any SPAC that fails to consummate a Business Combination within (i) the time period specified by its constitutive documents or by contract, or (ii) three years, whichever is shorter.
• The SPAC's founding shareholders must waive their rights to participate in any liquidation distribution with respect to all shares of common stock owned by each of them prior to the IPO or purchased in any private placement occurring in conjunction with the IPO, including the common stock underlying any founders' warrants. In addition, the
If the securities of the SPAC are listed as units, the components of the units (other than common stock) would be required to meet the applicable initial listing standards for the security types represented by the components.
• The experience and track record of management;
• the amount of time permitted for the completion of the Business Combination prior to the mandatory dissolution of the SPAC;
• the nature and extent of management compensation;
• the extent of management's equity ownership in the SPAC and any restrictions on management's ability to sell SPAC stock;
• the percentage of the contents of the trust account that must be represented by the fair market value of the Business Combination;
• the percentage of voting publicly held shares whose votes are needed to approve the Business Combination;
• the percentage of the proceeds of sales of the SPAC's securities that is placed in the trust account; and
• such other factors as the Exchange believes are consistent with the goals of investor protection and the public interest.
The Exchange also proposes to amend Section 802.01B of the Manual for the continued listing standards for securities of SPACs.
Prior to the consummation of a Business Combination, NYSE would promptly initiate suspension and delisting procedures if:
• The SPAC's average aggregate global market capitalization is below $125,000,000 or the average aggregate global market capitalization attributable to its publicly held shares is below $100,000,000, in each case over 30 consecutive trading days;
• the SPAC's securities initially listed (either common stock or units) fall below the following distribution criteria:
(1) The number of total stockholders
(2) the number of total stockholders
(3) the number of publicly held shares
• the SPAC fails to consummate a Business Combination within the time period specified by its constitutive documents or required by contract, or three years, whichever is shorter.
The continued listing standards set forth in Sections 801 (“Policy”), 802.01C (“Price Criteria for Capital or Common Stock”), 802.01D (“Other Criteria”) and 802.01E (“SEC Annual Report Timely Filing Criteria”) of the Manual would also apply to SPACs, in the same way those provisions apply to other equity securities.
After shareholders approve a Business Combination, but prior to its consummation, the Exchange would consider whether the continued listing of the securities of the SPAC, after the consummation of the Business Combination, would be in the best interests of the Exchange and the public interest. NYSE would have the discretion to delist securities of the SPAC prior to consummation of the Business Combination. A SPAC would not be eligible to follow the procedures to cure the deficiencies outlined in Sections 802.02 and 802.03 of the Manual, and would be subject to delisting procedures as set forth in Section 804 of the Manual.
After consummation of a Business Combination, the SPAC would be subject to Sections 801 and 802.01
When a SPAC consummates a Business Combination, the Exchange would consider whether the Business Combination gives rise to a “back door
The Exchange also proposes to adopt a requirement that any equity security listing on the Exchange must have a closing price or, if listing in connection with an IPO, an IPO price per share of at least $4 at the time of initial listing.
The Exchange also proposes to adopt a requirement that any convertible debt issuance listed on the Exchange must at the time of listing have an aggregate market value or principal amount of no less than $10,000,000.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act and the rules and regulations thereunder. Specifically, the Commission finds that the proposal is consistent with Section 6(b)(5) of the Act,
The development and enforcement of adequate standards governing the initial and continued listing of securities on an exchange is an activity of critical importance to financial markets and the investing public. Listing standards, among other things, serve as a means for an exchange to screen issuers and to provide listed status only to bona fide companies that have or, in the case of an IPO, will have sufficient public float, investor base, and trading interest to provide the depth and liquidity necessary to promote fair and orderly markets. Adequate standards are especially important given the expectations of investors regarding exchange trading and the imprimatur of listing on a particular market. Once a security has been approved for initial listing, maintenance criteria allow an exchange to monitor the status and trading characteristics of that issue to ensure that it continues to meet the exchange's standards for market depth and liquidity so that fair and orderly markets can be maintained.
As stated at the outset, SPACs are essentially shell companies that raise capital in IPOs, with the purpose of purchasing operating companies or assets within a certain time frame. The proceeds of the IPOs are placed in an escrow account during this period. SPACs usually require a majority of shareholders to approve any Business Combination. If shareholders do not approve a deal within the relevant time frame, shareholders have the option to demand their investment be returned from the escrow account. Management of the SPAC typically invests its own money in the SPAC—generally 2% to 4%—which generally is forfeited if a Business Combination is not consummated. If a Business Combination is consummated, management typically receives up to a 20% interest in the resulting company. The securities sold in the IPO generally consist of a unit made up of one share of common stock and a warrant (or fraction of a warrant) to purchase common stock. The common stock and warrants may be traded separately after the IPO.
As discussed in more detail below, the proposed standards would permit NYSE to list securities of SPACs that meet specified criteria, including market value, distribution, and price requirements, which should help to ensure that the securities have sufficient public float, investor base, and liquidity to promote fair and orderly markets. In addition, SPACs would have to meet other investor protection criteria, such as the escrow account requirement, public shareholder approval requirement, public shareholder redemption rights, and public shareholder liquidation preferences, which should further the ability of investors to protect and monitor their investment pending a Business Combination. Finally, SPACs that list securities on NYSE would have to comply with all NYSE corporate governance requirements and distribution criteria applicable to operating companies.
The Commission believes that the Exchange's proposed initial listing standards to list SPAC securities are consistent with the requirements of the Act, including the protection of investors and the promotion of fair and orderly markets. SPACs that list securities on the NYSE would need to deposit at least 90% of the IPO proceeds in a trust account controlled by an independent custodian. Under the listing standards, the proceeds would be under control of the independent custodian until consummation of a Business Combination with one or more operating companies that, among other things, have a fair market value equal to at least 80% of the net assets held in trust.
Further, the proposed initial listing standards require additional protections for public shareholders. The Commission believes that these protections, such as requiring a majority of public shareholders to approve a Business Combination, the right of public shareholders voting against a Business Combination to exercise Conversion Rights to redeem their investment, a prohibition on the consummation of a Business Combination if a certain percentage of public shares are voted against a Business Combination, and the right of shareholders to receive liquidation rights if no Business Combination is consummated within a specified period of time not to exceed three years, would help to ensure that public shareholders approve management's decision with respect to a Business Combination, and have remedies if they disagree.
Moreover, the proposed initial listing standards impose requirements on management of the SPAC. First, management of a SPAC would have to consummate a Business Combination within three years or less, or else investors would be entitled to liquidation rights, and NYSE would delist the securities of the SPAC. Second, the founding shareholders of the SPAC (including but not limited to management) must waive their liquidation rights. Third, NYSE will consider the management's experience, record, compensation, equity ownership, and restriction on sales, when considering whether to list the securities.
The Commission believes that these safeguards should help to ensure that SPACs that list securities on NYSE will have taken certain additional steps to address investor protection and other matters. In this regard, the Commission expects NYSE to thoroughly review potential listings of SPAC securities to ensure that its listing standards have been met. Based on the foregoing, the Commission finds the proposed initial listing standards are consistent with the requirements of the Act.
The Commission believes that the Exchange's proposed continued listing standards for SPACs are consistent with the requirements of the Act and the protection of investors. Due to its nature, a SPAC's financial condition will vary depending on where it is in the acquisition process. For example, immediately after listing, a SPAC would essentially be a shell company with funds to seek an acquisition of an operating business. Once the SPAC has announced a proposed acquisition, the SPAC would be in the midst of a potential Business Combination. Finally, if the Business Combination is consummated, the SPAC would begin operating a new business. NYSE is proposing continued listing standards for all three situations.
Prior to a Business Combination, a SPAC would need to maintain average aggregate global market capitalization of at least $125,000,000 or average aggregate global market capitalization of publicly held shares of at least $100,000,000, in each case over 30 consecutive trading days. NYSE would delist securities of SPACs that fall below such requirements immediately and the SPACs could not use the time period to cure deficiencies afforded to other operating companies.
Immediately prior to consummation of a Business Combination, NYSE would consider whether listing of the combined entity would be in the best interest of the Exchange and the public interest. Under this provision, NYSE would have broad discretion to delist the securities of the SPAC prior to the consummation of a Business Combination that would not be in the interest of investors or the public. In addition, NYSE would consider whether a Business Combination could result in a back door listing, and if so, would delist securities of the SPAC. The Commission believes that this requirement will help to ensure that companies that would not otherwise qualify for original listing could not list on NYSE through a backdoor listing in violation of Section 703.08 of the Manual.
After consummation of a Business Combination, NYSE would require the SPAC to meet the continued listing distribution criteria for common stock
Taken as a whole, the Commission believes that the proposed continued listing standards are consistent with the requirements of the Act. SPACs would be subject to different continued listing standards, depending on whether a Business Combination has been consummated, that are designed to, among other things, protect investors and promote fair and orderly markets. The Commission expects NYSE to actively monitor compliance by listed SPACs with these listing standards.
The Commission notes that the proposed change to require a company to have a closing price or an IPO price of at least $4 per share meets the criteria from the definition of penny stock contained in Rule 3a51-1 under the Act.
The Commission notes that the proposed change to require convertible debt issue to have an aggregate market value or principal amount of no less than $10,000,000 meets the criteria from the definition of penny stock contained
Based on the above, the Commission believes the proposed rule change is reasonable and should provide for the listing of SPACs with baseline investor protection and other standards.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is proposing to expand the Reserve Order pilot program currently operating in 100 securities traded on the NYSE
In its filing with the Commission, NYSE 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. NYSE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Through this proposed rule change, the Exchange seeks to expand the Reserve Order pilot program currently operating pursuant to Exchange Rule 13. On April 23, 2008, the Exchange implemented a new order type that allows off-Floor participants the ability to enter reserve interest into Exchange systems (“Reserve Order”).
The Reserve Order is a limit order for which a portion of the order is to be displayed and a portion of the order, at the same price, is not displayed (
To afford the Exchange and its customers the ability to gain systemic experience with the new Reserve Order type, the Exchange implemented the amendment to Exchange Rule 13 allowing off-Floor participants to enter Reserve Orders on a pilot basis. The pilot currently operates in 100 securities traded on the Floor of the Exchange.
The Exchange has determined that the technology modifications that were required to allow off-Floor participants the ability to enter Reserve Orders are operating successfully. The Exchange states that, to date, there have been no system problems associated with Reserve Orders.
In addition, entry of Reserve Orders in the securities approved to operate in the pilot program has been steadily increasing throughout the pilot period. Moreover, Exchange customers continue to request the ability to send Reserve Orders in all securities traded on the NYSE.
Given the customer demand and the fact that no technological impediments to the operation of Reserve Orders have arisen, the Exchange now proposes to expand the Reserve Order pilot program operating pursuant to Exchange Rule 13 to all Exchange-traded equity securities.
The Exchange believes that by providing all market participants with the ability to maintain non-displayed liquidity on the Display Book in all equity securities traded on the Exchange, market participants will be encouraged to post liquidity and thus offer Exchange customers additional opportunities for price improvement by expanding the interest available to execute against incoming orders at a single price.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative prior to 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because such waiver would immediately allow off-Floor participants to directly enter orders that use reserve functionality for all equity securities traded on the Exchange. The Exchange represents that, to date, there have been no system problems associated with the Reserve Orders pilot program, and that Exchange customers have requested the ability to send Reserve Orders in all securities traded on the Exchange. Finally, the proposed reserve functionality is currently available on other exchanges.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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 Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NYSE Arca proposes to list and trade shares (“Shares”) of the iShares MSCI Emerging Markets Eastern Europe Index Fund (“Fund”). The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the Exchange 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. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to list and trade the Shares under NYSE Arca Equities Rule 5.2(j)(3), the Exchange's listing standards for Investment Company Units (“ICUs”).
The Exchange is submitting this proposed rule change because the Underlying Index does not meet all of the “generic” listing requirements of Commentary .01(a)(B) to NYSE Arca Equities Rule 5.2(j)(3) applicable to listing of ICUs based on international or global indexes. The Underlying Index meets all such requirements except for those set forth in Commentary .01(a)(B)(3).
The Exchange represents that: (1) Except for the requirement under Commentary .01(a)(B)(3) to NYSE Arca Equities Rule 5.2(j)(3) relating to the most heavily weighted component stock, the Shares of the Fund currently satisfy all of the generic listing standards under NYSE Arca Equities Rule 5.2(j)(3);
Detailed descriptions of the Fund, the Underlying Index, procedures for creating and redeeming Shares, transaction fees and expenses, dividends, distributions, taxes, risks, and reports to be distributed to beneficial owners of the Shares can be found in the Registration Statement
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange states that written comments on the proposed rule change were neither solicited nor received.
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange requests that the Commission waive the 30-day operative delay so that the Exchange can list and trade the Shares immediately. The Exchange states that the proposed rule change does not significantly affect the protection of investors or the public interest and does not impose any significant burden on competition. The Exchange also believes that the proposal is non-controversial because, although the Underlying Index fails to meet the requirements set forth in Commentary .01(a)(B)(3) to NYSE Arca Equities Rule 5.2(j)(3) by a small amount (2.28%), the Shares currently satisfy all of the other applicable generic listing standards under NYSE Arca Equities Rule 5.2(j)(3), and will be subject to all of the continued listing standards under NYSE Arca Equities Rules 5.2(j)(3) and 5.5(g)(2) applicable to ICUs. Additionally, the Exchange represents that the Shares will comply with all other requirements applicable to ICUs.
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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 Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
Notice of Reporting Requirements Submitted for OMB Review.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before June 12, 2008. If you intend to comment but cannot prepare comments promptly, please advise the OMB Reviewer and the Agency Clearance Officer before the deadline.
Address all comments concerning this notice to:
Jacqueline White, Agency Clearance Officer, (202) 205-7044.
Social Security Administration (SSA).
Notice.
The Commissioner of Social Security gives notice that SSA intends to add a new calculator to its online Benefit Calculators suite. The Retirement Estimator will allow authenticated individuals to calculate estimates of potential retirement benefits in real-time, based in part on their SSA-maintained records and in part on user-entered information, such as the last year of Social Security earnings. In addition to quick estimates of retirement benefits at specific points such as full retirement age, users may also submit a number of “what if” scenarios based on information they provide regarding future earnings and retirement dates. The estimates can be printed and saved. The initial release of the Retirement Estimator will not reflect offset due to the Windfall Elimination Provision (WEP), or Government Pension Offset (GPO).
SSA currently has four benefit calculators on its Web site-the Quick, Online, WEP and Detailed calculators (
In accordance with OMB Circular A-130 and OMB Memo M-04-04,
The Retirement Estimator calculator will provide a safe, user-friendly and convenient tool that will: (1) Contribute to financial literacy by helping members of the public plan for retirement; (2) help to promote SSA's online benefit application; and, (3) save Agency resources.
The Retirement Estimator will be released to the public on July 19, 2008.
Gerard R. Hart, Operations, Office of Electronic Services, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, Phone 410-965-8707, e-mail
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Carol B. Epstein, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202/453-8048). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-453-8050). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
Pursuant to section 612 of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008 (Div. J, Pub. L. 110-161) (the Act), Executive Order 12163, as amended by Executive Order 13346, and Delegation of Authority 245, I hereby determine that assistance to the Democratic Republic of Congo, Liberia, and Somalia is in the national interest of the United States and thereby waive, with respect to these countries, the application of section 612 of the Act.
This determination shall be reported to Congress and published in the
Federal Aviation Administration (FAA), DOT.
Notice of intent of waiver with respect to land.
The FAA is publishing notice of proposed release of 0.02 acres of land at the Lynchburg Regional Airport, Campbell County, Virginia to the Virginia Department of Transportation for the Improvement of U.S. Route 29. There are no impacts to the Airport and the land is not needed for airport development as shown on the Airport Layout Plan. Fair Market Value of the land will be paid to the Airport Sponsor, and used for Airport purposes.
Comments must be received on or before June 12, 2008.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Terry J. Page, Manager, FAA Washington Airports District Office, 23723 Air Freight Lane, Suite 210, Dulles, VA 20166.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mark Courtney, Director, Lynchburg Regional Airport, at the following address: Mark Courtney, A.A.E., Airport Director, Lynchburg Regional Airport, 4308 Wards Road, Lynchburg, Virginia 24502.
Mr. Terry Page, Manager, Washington Airports District Office, 23723 Air Freight Lane, Suite 210, Dulles, VA 20166; telephone (703) 661-1354, fax (703) 661-1370, e-mail
On April 5, 2000, new authorizing legislation became effective. That bill, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Public Law 10-181 (Apr. 5, 2000; 114 Stat. 61) (AIR 21) requires that a 30 day public notice must be provided before the Secretary may waive any condition imposed on an interest in surplus property.
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 206 meeting.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 206: Aeronautical Information Services Data Link
The meeting will be held June 9-13, 2008 from 9 a.m. to 5 p.m.
The meeting will be held at St. Petersburg University of Aerospace Instrumentation (SUAI) 67, Bolshaya Morskaya, St. Petersburg, 190000 Russia,
Oksana Muhina, International co-operation Department; telephone (+7 812) 3 12-09-37; E-mail
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Special Committee 206 meeting/EUROCE WG 76. The agenda will include:
• Open Plenary (Chairman's Remarks and Introductions, Review and Approve Meeting Agenda and Minutes, Discussion)
• Coordination with WG78/SC214
• Action Item Review
• Schedule for this week
• Schedule for next meetings
• To be determined
• SPR and INTEROP
• AIS Subgroup meeting—Meteorology Subgroup meetings
• Meteorology Subgroup meeting
• Subgroup 1 and Subgroup 2 Meetings
• Subgroup 1 and Subgroup 2 Meetings
• Subgroup 1 and Subgroup 2 Meetings
• Plenary Session (Other Business, Meeting Plans and Dates, Closing Remarks, Adjourn)
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
National Advisory Council Public Meeting.
The Maritime Administration announces that the Marine Transportation System National Advisory Council (MTSNAC) will hold a meeting to review an expanded Marine Transportation System outreach and education program that addresses future workforce needs, environmental issues, and freight mobility; public and private sector data collection efforts; and an update and revision of the Council's Intermodal Report. A public comment period is scheduled for 9 a.m. to 9:30 a.m. on Wednesday, June 4, 2008. To provide time for as many people to speak as possible, speaking time for each individual will be limited to three minutes. Members of the public who would like to speak are asked to contact Richard J. Lolich by May 28, 2008. Commenters will be placed on the agenda in the order in which notifications are received. If time allows, additional comments will be permitted. Copies of oral comments must be submitted in writing at the meeting. Additional written comments are welcome and must be filed by June 13, 2008.
The meeting will be held on Tuesday, June 3, 2008, from 8:30 a.m. to 5 p.m. and Thursday, June 4, 2008, from 8:30 a.m. to 12:30 p.m.
The meeting will be held in the Sheraton St. Louis City Center Hotel, 400 South 14th Street, St. Louis, MO 63103. The hotel's phone number is 314-231-5007.
Richard Lolich, (202) 366-0704; Maritime Administration, MAR-540, Room W21-309, 1200 New Jersey Ave., SE., Washington, DC 20590-0001;
5 U.S.C. App 2, Sec. 9(a)(2); 41 CFR 101-6. 1005; DOT Order 1120.3B.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice; Issuance of Advisory Bulletin.
PHMSA advises gas transmission pipeline operators that the Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006
Cheryl Whetsel, (202) 366-4431, or by e-mail at
The Federal pipeline safety laws (49 U.S.C. 60101
As interstate gas pipeline facilities, direct sales pipelines are subject to the applicable Federal pipeline safety regulations and PHMSA is responsible for regulatory oversight and enforcement. Subjecting direct sales gas pipelines to the same requirements as other interstate gas pipelines should provide improved regulatory certainty and ensure consistency in regulatory requirements.
In cases where a State has both an annual certification for gas under 49 U.S.C. 60105 and an agreement under 49 U.S.C. 60106(b), inspections of these direct sales pipelines may continue to be conducted by a State pipeline safety agency acting as PHMSA's representative although any enforcement action must be referred to PHMSA. If the line has a State certification from the State Public Utility Commission (PUC) that such State PUC has regulatory jurisdiction over the rates and service of the line and is exercising it, that would be grounds for concluding that the line is not subject to FERC jurisdiction and therefore can be regulated as an intrastate pipeline by a State having a certification for gas under 49 U.S.C. 60105. This change does not affect direct sales pipelines that are intrastate pipelines because they extend from another intrastate line to the consumer.
49 U.S.C. chapter 601; 49 CFR 1.53.
Financial Management Service, Fiscal Service, Department of the Treasury.
Notice.
This is Supplement No. 13 to the Treasury Department Circular 570, 2007 Revision, published July 2, 2007, at 72 FR 36192.
Surety Bond Branch at (202) 874-6850.
Notice is hereby given that the Certificate of Authority issued by the Treasury to the above-named company under 31 U.S.C. 9305 to qualify as acceptable surety on Federal bonds was terminated effective May 1, 2008. Federal bond-approving officials should annotate their reference copies of the Treasury Department Circular 570 (“Circular”), 2007 Revision, to reflect this change.
With respect to any bonds currently in force with this company, bond-approving officers may let such bonds run to expiration and need not secure new bonds.
However, no new bonds should be accepted from this company, and bonds that are continuous in nature should not be renewed.
The Circular may be viewed and downloaded through the Internet at
Questions concerning this notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch, 3700 East-West Highway, Room 6F01, Hyattsville, MD 20782.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the name of one additional entity whose property and interests in property has been blocked pursuant to the Foreign Narcotics Kingpin Designation Act (“Kingpin Act”) (21 U.S.C. 1901-1908, 8 U.S.C. 1182).
The designation by the Secretary of the Treasury of the one entity identified in this notice pursuant to
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622-2490.
This document and additional information concerning OFAC are available on OFAC's Web site (
The Kingpin Act became law on December 3, 1999. The Kingpin Act establishes a program targeting the activities of significant foreign narcotics traffickers and their organizations on a worldwide basis. It provides a statutory framework for the President to impose sanctions against significant foreign narcotics traffickers and their organizations on a worldwide basis, with the objective of denying their businesses and agents access to the U.S. financial system and to the benefits of trade and transactions involving U.S. companies and individuals.
The Kingpin Act blocks all property and interests in property, subject to U.S. jurisdiction, owned or controlled by significant foreign narcotics traffickers as identified by the President. In addition, the Kingpin Act blocks the property and interests in property, subject to U.S. jurisdiction, of foreign persons designated by the Secretary of Treasury, in consultation with the Attorney General, the Director of Central Intelligence, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, the Secretary of State, and the Secretary of Homeland Security who are found to be: (1) Materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of a person designated pursuant to the Kingpin Act; (2) owned, controlled, or directed by, or acting for or on behalf of, a person designated pursuant to the Kingpin Act; or (3) playing a significant role in international narcotics trafficking.
On May 7, 2008, OFAC designated an additional entity whose property and interests in property are blocked pursuant to section 805(b) of the Foreign Narcotics Kingpin Designation Act.
The additional designee is as follows:
1. MERCURIO INTERNACIONAL S.A., Avenida Carrera 15 No. 100-69, Oficina 303, Bogota, Colombia; Carrera 15 No. 93-60 Local 205, Bogota, Colombia; Transversal 71D No. 26-94 Sur, Local 3504, Bogota, Colombia; Calle 5 No. 50-103, Local C108, Cali, Colombia; Carrera 1 No. 61A-30, Locales 80 y 81, Cali, Colombia; Calle 19 No. 6-48, Oficinas 403 y 404, Pereira, Colombia; Carrera 14 No. 18-56, Locales 34 y 35, Piso 3, Armenia, Colombia; Carrera 43A No. 34-95, Local 253, Medellin, Colombia; Carrera 54 No. 72-147, Local 144, Barranquilla, Colombia; NIT #830063708-7 (Colombia); (ENTITY) [SDNTK].
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the name of three individuals whose property and interests in property have been unblocked pursuant to Executive Order 12978 of October 21, 1995,
The unblocking and removal from the list of Specially Designated Narcotics Traffickers of the individuals identified in this notice whose property and interests in property were blocked pursuant to Executive Order 12978 of October 21, 1995, is effective on May 7, 2008.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622-2420.
This document and additional information concerning OFAC are available from OFAC's Web site (
On October 21, 1995, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The persons listed in an Annex to the Order; (2) any foreign person determined by the Secretary of Treasury, in consultation with the Attorney General and Secretary of State, to play a significant role in international narcotics trafficking centered in Colombia; or (3) to materially assist in, or provide financial or technological support for or goods or services in support of, the narcotics trafficking activities of persons designated in or pursuant to this order; and (4) persons determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to be owned or controlled by, or to act for or on behalf of, persons designated pursuant to this Order.
On May 7, 2008, the Director of OFAC removed from the list of Specially Designated Narcotics Traffickers the individuals listed below, whose property and interests in property were blocked pursuant to the Order.
The listing of the unblocked individuals follows:
1. GOMEZ POVEDA, Gustavo, c/o C A V J CORPORATION LTDA., Bogota, Colombia; DOB 8 Nov 1960; Cedula No. 19416811 (Colombia); Passport 19416811 (Colombia) (individual) [SDNT].
2. GALLEGO SANCHEZ, Isaac, c/o DISMERCOOP, Cali, Colombia; c/o GRACADAL S.A., Cali, Colombia; DOB 3 Nov 1953; Cedula No. 6457399 (Colombia) (individual) [SDNT].
3. BENITEZ CASTELLANOS, Cesar Tulio, c/o DROGAS LA REBAJA, Cali, Colombia; c/o RIONAP COMERCIOS Y REPRESENTACIONES S.A., Quito, Ecuador; c/o D'CACHE S.A., Cali, Colombia; c/o INVERSIONES MONDRAGON Y CIA. S.C.S., Cali, Colombia; c/o INVERSIONES Y CONSTRUCCIONES ABC S.A., Cali,
United States Institute of Peace.
Notice.
The Agency announces its Annual Grant Competition, which offers support for research, education and training, and the dissemination of information on international peace and conflict resolution. The Annual Grant Competition is open to any project that falls within the Institute's broad mandate of international conflict resolution.
The Grant Program, Annual Grant Competition, Phone (202) 429-3842, E-mail:
United States Institute of Peace.
Notice.
The Agency announces its ongoing Priority Grantmaking Competition. Priority Grantmaking focuses on seven countries as they relate to USIP's mandate. Applications are accepted throughout the year. Priority Grantmaking is restricted to projects that fit specific themes or topics identified for each country.
The seven Priority Grantmaking countries are outlined below. The specific themes and topics for each country may be found at our Web site at:
• Afghanistan;
• Colombia;
• Iran;
• Iraq;
• Nigeria;
• Pakistan;
• Sudan.
If you are unable to access our Web site, you may submit an inquiry to: United States Institute of Peace, Grant Program, Priority Grantmaking, 1200 17th Street, NW., Suite 200, Washington, DC 20036-3011. (202) 429-3842 (phone). (202) 833-1018 (fax). (202) 457-1719 (TTY). E-mail:
The Grant Program, Phone (202)-429-3842, E-mail:
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before June 12, 2008.
Submit written comments on the collection of information through
Denise McLamb, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7485, FAX (202) 273-0443 or e-mail
Titles:
a. Application for VA Education Benefits, VA Form 22-1990.
b. Application for Transfer of Entitlement (TOE), Basic Educational Assistance Under the Montgomery GI Bill, VA Form 22-1990E.
c. Application for VA Education Benefits Under the National Call to Service (NCS) Program, VA Form 22-1990N.
a. Claimants complete VA Form 22-1990 to apply for education assistance allowance.
b. Claimants who signed an enlistment contract with the Department of Defense for the National Call to Service program and elected one of the two education incentives complete VA Form 22-1990E.
c. VA Form 22-1990N is completed by claimants who wish to transfer his or her Montgomery GI Bill entitlement their dependents.
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before June 12, 2008.
Submit written comments on the collection of information through
Denise McLamb, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7485, FAX (202) 273-0443 or e-mail
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before June 12, 2008.
Submit written comments on the collection of information through
Denise McLamb, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7485, FAX (202) 273-0443 or e-mail
a. Manufactured Home Loan Claim Loan Guaranty (Manufactured Home Unit Only), (Section 3720, Chapter 37, Title 38 U.S.C), VA Form 26-8629.
b. Manufactured Home Loan Claim Under Loan Guaranty (Manufactured Home Unit and Lot or Lot Only), (Section 3712, Chapter 37, Title 38 U.S.C), VA Form 26-8630.
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
a. Manufactured Home Loan Claim Loan Guaranty (Manufactured Home Unit Only), (Section 3720, Chapter 37, Title 38 U.S.C), VA Form 26-8629—33 hours.
b. Manufactured Home Loan Claim Under Loan Guaranty (Manufactured Home Unit and Lot or Lot Only), (Section 3712, Chapter 37, Title 38 U.S.C), VA Form 26-8630—3 hours.
a. Manufactured Home Loan Claim Loan Guaranty (Manufactured Home Unit Only), (Section 3720, Chapter 37, Title 38 U.S.C), VA Form 26-8629—20 minutes.
b. Manufactured Home Loan Claim Under Loan Guaranty (Manufactured Home Unit and Lot or Lot Only),
a. Manufactured Home Loan Claim Loan Guaranty (Manufactured Home Unit Only), (Section 3720, Chapter 37, Title 38 U.S.C), VA Form 26-8629—100.
b. Manufactured Home Loan Claim Under Loan Guaranty (Manufactured Home Unit and Lot or Lot Only), (Section 3712, Chapter 37, Title 38 U.S.C), VA Form 26-8630—10.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before June 12, 2008.
Submit written comments on the collection of information through
Denise McLamb, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7485, FAX (202) 273-0443 or e-mail
Title: Veteran's Supplemental Application for Assistance in Acquiring Specially Adapted Housing, VA Form 26-4555c.
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before June 12, 2008.
Submit written comments on the collection of information through
Denise McLamb, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7485, FAX (202) 273-0443 or e-mail
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
By direction of the Secretary.
Department of Transportation, Office of the Secretary.
Final Rule.
The Department of Transportation is amending its Air Carrier Access Act (ACAA) rules to apply to foreign carriers. The final rule also adds new provisions concerning passengers who use medical oxygen and passengers who are deaf or hard-of-hearing. The rule also reorganizes and updates the entire ACAA rule. The Department will respond to some matters raised in this rulemaking by issuing a subsequent supplemental notice of proposed rulemaking.
Robert C. Ashby, Deputy Assistant General Counsel for Regulation and Enforcement, Department of Transportation, 1200 New Jersey Ave., SE., Room W94-302, Washington, DC 20590 (202) 366-9310 (voice); 202-366-7687 (TTY);
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 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. Preboarding announcements are not as universal as they once were. Many carriers now use regional jets for flights that formerly would have been served by larger aircraft. Security screening has become a responsibility of the Transportation Security Administration (TSA), rather than that of the airlines. In this rulemaking, the Department is updating Part 382 to take these and other changes in airline operations into account.
The over 17-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 rule, 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 rule uses a question-answer format, with language specifically directing particular parties to take particular actions (
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 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 significant rules in recent years, such as revisions of our disadvantaged business enterprise and drug and alcohol testing procedures rules.
In addition to this general revision and update, the Department in this rule is making important substantive changes to the rule in three areas: coverage of foreign carriers, accommodations for passengers who use oxygen and other respiratory assistive devices, and accommodation for deaf or hard-of-hearing passengers.
The original 1986 ACAA covered only U.S. air carriers. However, 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 [49 U.S.C.] 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.
Section 40105(b) provides as follows:
(b) Actions of Secretary and Administrator—
(1) In carrying out this part, the Secretary of Transportation and the Administrator
(A) Shall act consistently with obligations of the United States Government under an international agreement;
(B) Shall consider applicable laws and requirements of a foreign country; and
(C) May not limit compliance by an air carrier with obligations or liabilities imposed by the government of a foreign country when the Secretary takes any action related to a certificate of public convenience and necessity issued under chapter 411 of this title.
(2) This subsection does not apply to an agreement between an air carrier or an officer or representative of an air carrier and the government of a foreign country, if the Secretary of Transportation disapproves the agreement because it is not in the public interest. Section 40106(b)(2) of this title applies to this subsection.
In response to the AIR-21 requirements, the Department on May 18, 2000, issued a notice of its intent to investigate complaints against foreign carriers according to the amended provisions of the ACAA. The notice also announced the Department's plan to initiate a rulemaking modifying Part 382 to cover foreign carriers. On November 4, 2004, the Department issued a notice of proposed rulemaking (NPRM) to apply the ACAA rule to foreign carriers (69 FR 64364). The NPRM sought to apply Part 382 to foreign carriers in a way that achieves the ACAA's nondiscrimination objectives while not imposing undue burdens on foreign carriers. This NPRM also proposed revisions to a number of other provisions of 14 CFR Part 382 and generally reorganized the rule. The Department received about 1300 comments on this NPRM. In this preamble to the final rule, this proposed rule is called the “Foreign Carriers NPRM” or the “2004 NPRM.”
On September 7, 2005, the Department published a second NPRM, on the subject of medical oxygen and portable respiratory assistive devices (70 FR 53108). The Department received over 1800 comments on this proposed rule, which is referred to in this preamble as the “Oxygen NPRM.” On February 23, 2006, the Department published a third NPRM, concerning accommodations for passengers who are deaf, hard-of-hearing, or deaf-blind. The Department received over 700 comments on this proposed rule, which is called the deaf and hard-of-hearing (DHH) NPRM in this preamble. This document addresses the over 3800 comments received on all three NPRMs. The section-by-section analysis will describe each provision of the combined final rule.
In this preamble, when we mention the “present,” “current,” or “existing” rule, we mean the version of Part 382 that is in effect now. It will remain in effect until a year from today, when it will be replaced by the provisions that are published in this final rule.
A number of airline industry commenters—principally, but not only, foreign carriers—criticized the Foreign Carriers NPRM's approach as being too detailed and prescriptive. Many of these commenters said they preferred a more general approach, in which an overall objective of nondiscrimination and service to persons with disabilities was stated, with the details of implementation left to the discretion of carrier policies, guided by codes of recommended practice issued by various governments or international organizations.
It is the Department's experience, over the 21 years since the enactment of the Air Carrier Access Act, that in order to ensure that carriers are accountable for providing nondiscriminatory service to passengers with disabilities, detailed standards and requirements are essential. If all that carriers are responsible for is carrying out, in their best judgment, general objectives of nondiscrimination and good service, or best practices or recommendations, or regulations that are not enforceable by the Department, then effective enforcement of the rights Congress intended to protect in the ACAA becomes impracticable. It is understandable that carriers would wish to implement their goals through policies of their own devising and to limit potential compliance issues. However, the Department is responsible for ensuring consistent nondiscriminatory treatment of passengers with disabilities, including implementation of the variety of specific accommodations that are essential in providing such treatment. We must structure our response to this mandate in a way that allows for clear and consistent implementation by the carriers, and clear and consistent enforcement by the Department. Consequently, we are convinced that the approach taken in the NPRM, reflecting the Department's years of successful experience in carrying out the ACAA, is appropriate.
The Foreign Carriers NPRM proposed to cover the activities of foreign carriers with respect to a “flight,” defined as a continuous journey, in the same aircraft or using the same flight number that begins or ends at a U.S. airport. The Foreign Carriers NPRM included several examples of what would or would not be considered covered “flights.” One of these examples proposed that if a passenger books a journey on a foreign carrier from New York to Cairo, with a change of plane or flight number in London, the entire flight would be covered for that passenger. When there is a change in both aircraft and flight number at a foreign airport, the rule would not apply beyond that point. Another example proposed that the rules applying to U.S. carriers would apply to a flight operated by a foreign carrier between foreign points that was also listed as a flight of a U.S. carrier via a code sharing arrangement.
Commenters, including foreign carriers, generally conceded that it was acceptable for the rule to cover foreign carriers' flights that started or ended at a U.S. airport. Some carriers said that it was burdensome for them to continue to observe Part 382 rules for a leg of a flight that did not itself touch the U.S. (
Foreign carriers' main objection, however, centered on codeshare flights between two foreign points. They said that it was an inappropriate extraterritorial extension of U.S. jurisdiction to apply U.S. rules to a foreign carrier just because the foreign carrier's flight between two foreign points carried passengers under a code-sharing arrangement with a U.S. carrier. In response to these comments, the Department has changed the applicable provision of the final rule. If a foreign carrier operates a flight between two non-U.S. points and the flight carries the code of a U.S. carrier, the final rule will not extend coverage to the foreign carrier for that flight segment and the foreign carrier will not be responsible to the Department for compliance with Part 382 for that segment. Rather, with respect to passengers ticketed to travel under the U.S. carrier's code, the Department regards the transportation of those passengers to be transportation by a U.S. carrier, concerning which the U.S. carrier is responsible for Part 382 compliance. If there is a service-related violation of Part 382 on a flight between two non-U.S. points operated by a foreign carrier, affecting a passenger traveling under the U.S. carrier's code, the violation would be attributed to the U.S. carrier, and any enforcement action taken by the Department would be against the U.S. carrier. We note that the aircraft accessibility requirements would not apply in such a situation. U.S. carriers can work with their foreign carrier codeshare partners to ensure that required services are provided to passengers.
One of the most frequent comments made by foreign carriers and their organizations was that implementation of the proposed rules would lead to conflicts between Part 382 and foreign laws, rules, voluntary codes of practice, and carrier policies. These conflicts, commenters said, would lead to confusion and reduce efficiency in service to passengers with disabilities. Many commenters advocated that the Department should defer to foreign laws, rules, and guidance, or accept them as equivalent for purposes of compliance with Part 382.
In anticipation of this concern, and in keeping with the Department's obligation and commitment to giving due consideration to foreign law where it applies, the Foreign Carriers NPRM proposed a conflict of laws waiver mechanism. Under the proposal, a foreign carrier would be required to comply with Part 382, but could apply to DOT for a waiver if a foreign legal requirement conflicted with a given provision of the rule. If DOT agreed that there was a conflict, then the carrier could continue to follow the binding foreign legal requirement, rather than the conflicting provision of Part 382. Foreign carriers commented that this provision was unfair, because it would force them to begin complying with a Part 382 requirement allegedly in conflict with a foreign legal requirement while the application for a waiver was pending. Some commenters also objected to DOT making a determination concerning whether there really was a conflict between DOT regulations and a provision of foreign law.
In order to determine whether a foreign carrier should be excused from complying with an otherwise applicable provision of Part 382, the Department has no reasonable alternative to deciding whether a conflict with a foreign legal requirement exists. The Department cannot rely solely on an assertion by a foreign carrier that such a conflict exists.
Comments from a number of foreign carriers asked the Department to broaden the concept of the proposed waiver, by allowing foreign carriers to comply with recommendations, voluntary codes of practice, etc. We do not believe such a broadening is necessary to comply with the Department's legal obligations. Nor would it be advisable from a policy point of view, as it would not provide the consistency that passengers with disabilities should expect, regardless of the identity or nationality of the carrier they choose.
We therefore want to make clear, for purposes of this waiver provision, what we mean by a conflict with a provision of foreign law. By foreign law, we mean a legally binding mandate (
For example, Part 382 says that carriers are prohibited from imposing number limits on passengers with disabilities. Suppose that Country S has a statute, or the equivalent of an FAA regulation, mandating that no more than three wheelchair users can, under any circumstances, travel on an S Airlines flight. S Airlines would have no discretion in the matter, since it was subject to a legal mandate of its government. This would create a conflict between Part 382 and the laws of Country S that could be the subject of a conflict of laws waiver. However, suppose that the government of Country S publishes a guidance document that says limiting wheelchair users on a flight to three is a good idea, has a regulation authorizing S Airlines to impose a number limit if it chooses, or approves an S Airlines safety program that includes a number limit. In these cases, the conflict of laws waiver would not apply, since in each case there is not a binding government requirement for a number limit, and S Airlines has the discretion whether or not to adopt one.
We note one exception to this point. If a foreign government officially informs a carrier that it intends to take enforcement action (
While retaining the substance of the conflict of laws provision of the NPRM, the Department has, in response to comments, modified the process for considering waiver requests. We agree with commenters that it would be unfair to insist that carriers comply with a Part 382 provision that allegedly conflicts with foreign law while a waiver request is pending. Consequently, we have established an effective date for the rule of one year after its publication date. If a carrier sends in a waiver request within 120 days of the publication date of the final rule, the Department will, to the maximum extent feasible, respond before the effective date of the rule. If we are unable to do so, the carrier can keep implementing the policy or practice that is the subject of the request until we do respond, without becoming subject to enforcement action by the Department. The purpose of the 120-day provision is to provide an incentive to foreign carriers to conduct a due diligence review of foreign legal requirements that may conflict with Part 382 and make any waiver requests to DOT promptly, so that the Department can resolve the issues before the rule takes effect.
What a foreign carrier obtains by filing all its conflict of laws waiver requests within the first 120 days is, in effect, a commitment from DOT not to take enforcement action related to implementing the foreign law in question pending DOT's response to the waiver request. For example, if S Airlines filed a waiver request with respect to an alleged requirement of a Country S law requiring number limits for disabled passengers within 120 days of the rule's publication, then the Department would not commence an enforcement action relating to an alleged violation of Part 382's prohibition of number limits that occurred during the interval between the effective date of Part 382 and the date on which DOT responds to S Airline's waiver request. This would be true even if the Department later denies the request.
However, if S Airlines did not file its request until 180 or 210 days after the rule is published, DOT could begin enforcement action against the carrier for implementing number limits inconsistent with Part 382 during the period between the effective date of the rule and the Department's response to the waiver request. If the Department
We also recognize that laws change. Consequently, if a new provision of foreign law comes into effect after the 120-day period, a carrier may file a waiver request with the Department. The carrier may keep the policy or practice that is the subject of the request in effect pending the Department's response, which we will try to provide within 180 days. Again, the carrier would not be at risk of a DOT enforcement action relating to the period during which the Department was considering the waiver request concerning the new foreign law.
Carriers should not file frivolous waiver requests, the stated basis for which is clearly lacking in merit or which are filed with the apparent intent of delaying implementation of a provision of Part 382 or abusing the waiver process. In such cases, the Department may pursue enforcement action even if the frivolous waiver request has been filed within 120 days. As a general matter, a carrier that does not file a request for a waiver, or whose request is denied, cannot then raise the alleged existence of a conflict with foreign law as a defense to a DOT enforcement action.
Many foreign carriers and their organizations also said that a conflict of laws waiver, standing alone, was insufficient. They said that their policies and approaches to assisting passengers with disabilities, or laws or policies relating to disability access of foreign carriers' countries (either single-country laws or those of, for example, the European Union) should be recognized as equivalent to DOT's rules. Compliance with equivalent foreign laws and carrier policies, they said, should be sufficient to comply with Part 382.
U.S. disability law includes a concept—equivalent facilitation—that can address these comments to a reasonable degree. This concept, which is embodied in such sources as the Department's Americans with Disabilities Act (ADA) regulations and the Americans with Disabilities Act Accessibility Guidelines (ADAAG), states that a transportation or other service provider can use a different accommodation in place of one required by regulation if the different accommodation provides substantially equivalent accessibility. The final rule permits U.S. and foreign carriers to apply to the Department for a determination of what the final rule will call an “equivalent alternative.” (We use this term is used in place of “equivalent facilitation” to avoid any possible confusion with the use of “equivalent facilitation” in other contexts.). If, with respect to a specific accommodation, the carrier demonstrates that what it wants to do will provide substantially equivalent accessibility to passengers with disabilities than literal compliance with a particular provision of the rule, the Department will determine that the carrier can comply with the rule using its alternative accommodation. This provision applies to equipment, policies, procedures, or any other method of complying with Part 382.
It should be emphasized that equivalent alternative determinations concern alternatives only to specific requirements of Part 382. The Department will not entertain an equivalent alternative request relating to an entire regulatory scheme (
As with the conflict of laws waiver, if a carrier submits a request for an equivalent alternative determination within 120 days of the publication of this Part, the Department will endeavor to have a response to the carrier by the effective date of the rule. If the Department has not responded by that time, the carrier can implement its proposed equivalent alternative until and unless the Department disapproves it. However, with respect to a request filed subsequent to that date, carriers must begin complying with the Part 382 provision when it becomes effective, and could not use their proposed equivalent alternative until and unless the Department approved it.
A number of foreign carriers said that application of the rule alike to U.S. and foreign carriers was unfair, in that U.S. carriers receive Federal funds to support their operations, while European and other foreign carriers do not. Commenters also argued that it was unfair for DOT to allow U.S. carriers to avoid civil penalties if they have introduced programs that go beyond minimum requirements.
The Department disagrees with both these comments. The very reason for the existence of the ACAA is that the Supreme Court, in
The second of these comments appears to be a somewhat inaccurate reflection of a DOT enforcement policy that, in some cases, allows a carrier to invest part of a civil penalty to improve services for passengers with disabilities above and beyond what the ACAA requires, rather than paying the amount of this investment to the Department. For example, if a carrier were assessed a $1.5 million civil penalty for failure to provide timely and adequate assistance to passengers who use wheelchairs, the Department's Office of Aviation Enforcement and Proceedings might require a cash payment of only $200,000 if the carrier agreed to use the remaining $1.3 million to enhance accessibility for passengers with mobility impairments in ways that go beyond the requirements of Part 382. Since this enforcement approach applies equally to foreign and U.S. carriers, continued implementation of this policy will not result in any inequity between U.S. and foreign carriers.
Numerous foreign carriers and organizations complained that the Foreign Carriers NPRM was inconsistent with 49 U.S.C. 40105(b), which directs the Secretary to “act consistently with obligations of the United States
A related argument that many foreign carriers made is that the Foreign Carriers NPRM proposed provisions inconsistent with international agreements binding on the U.S., thereby violating subsection (b)(1)(A). In particular, commenters cited provisions of the Chicago Convention (
In the Department's view, Article 1 is fully consistent with the adoption of requirements that affect flights to and from the U.S., a point with which many commenters agreed. The one area in which the Foreign Carriers NPRM was said by many commenters to assert extraterritorial jurisdiction—coverage of foreign carriers with respect to flights carrying passengers under the code of a U.S. carrier—has been changed in the final rule, as described above.
The authority of ICAO under Article 37 to issue standards and recommendations does not purport to pre-empt a signatory state's authority to issue rules concerning air commerce to and from its airports. Nor do the standards and recommendations of Annex 9 with respect to transportation of passengers with disabilities purport to occupy the field, such that member states are pre-empted from issuing their own rules in this area. Indeed, the ICAO recommended practices suggest that member states
The two ICAO standards in Annex 9 related to transportation of passengers with disabilities are the following:
Some commenters alleged that requirements of the Chicago Convention regarding “notification of differences” should apply to the rulemaking and that the Department had failed to comply with them. The relevant language is the following:
In connection with their Chicago Convention-related arguments, a number of foreign carriers or organizations cited
This case concerns solely Article 33 and its relationship to the validity of carrier airworthiness certificates issued by foreign governments. This rulemaking, on the other hand, has nothing to do with Article 33 or airworthiness certificates. The case therefore is irrelevant to the rulemaking. It may be that commenters were arguing that DOT regulatory actions in general that conflict with the Chicago Conventions are vulnerable to court challenges; however, as noted above, this regulation is fully consistent with relevant portions of the Chicago Convention.
Other comments from foreign carriers and organizations were more policy-oriented in nature, asking for consultation through ICAO or other channels prior to publication of a rule which, while carefully limited to matters affecting service to and from the U.S., had implications for the international aviation system. Comments asked for greater focus on international harmonization. In fact, the Department consulted extensively with other interested parties. The volume and detail of comments from foreign carriers and organizations testify to the extensive opportunity non-U.S. parties have had to participate in this rulemaking. This final rule reflects the
The Department is willing to continue discussions with foreign carriers and international organizations with respect to harmonization of U.S. and other standards in the area of transportation of passengers with disabilities. Meantime, the Department has a responsibility to carry out its statutory mandate to apply the ACAA to foreign carriers, and we cannot make working with other parties on harmonization matters a condition precedent to carrying out what Congress has mandated.
Some comments alluded to the regulatory negotiation process that preceded the issuance of the original ACAA NPRM, complaining that there was not a similar process prior to the issuance of the November 2004 NPRM. Regulatory negotiation, is, of course, a wholly voluntary process on the Department's part. There can be no implication that, because the Department chose to use such a process in the 1980s, the Department was in any sense required to do so again for this rulemaking. Nor is there any such requirement in the statutory amendment applying the ACAA to foreign carriers. It is worth noting, in any event, that the original ACAA NPRM was not the product of consensus resulting from the regulatory negotiation. That negotiation terminated short of consensus, because of intractable disagreements on some issues between carriers and disability groups. The original NPRM, like the 2004 NPRM, was wholly the Department's proposal. The variety of disagreements among commenters concerning the November 2004 NPRM suggests, in retrospect, that the likelihood of achieving consensus on the application of the ACAA to foreign carriers in a manner consistent with the Department's obligations under the ACAA would have been very low. Moreover, in the years since the original ACAA regulatory negotiation, disability groups have expressed some skepticism about the utility of the regulatory negotiation process for nondiscrimination rules of this kind, making it questionable whether they would have chosen to participate in such a venture.
The Foreign Carriers NPRM (sec. 382.51) proposed that both U.S. and foreign carriers, at both U.S. and foreign airports, would be responsible for ensuring the accessibility of terminal facilities they own, lease, or control. The responsibility of foreign carriers at foreign airports would extend only to facilities involved with flights to or from the U.S. U.S. airports must meet applicable accessibility requirements (
Some comments appear to have misunderstood the Foreign Carriers NPRM to propose that DOT wished U.S. accessibility standards, like the ADAAG, to apply to foreign airports. The Foreign Carriers NPRM did not make such a proposal. Those comments aside, the most frequent comment made by foreign carriers and their organizations on this subject was that the Foreign Carriers NPRM's proposals for airport facility accessibility did not sufficiently take into account the fact that foreign governments or airport operators, not airlines, controlled matters relating to accessibility at many foreign airports. For example, it was pointed out that under recent European Union regulations, airport operators are given most of the responsibility for accommodating passengers with disabilities in airports.
The Department recognizes that this may often be the case, and the final rule should not be understood to require carriers to duplicate the accommodations made by airport operators at foreign airports. Where foreign airport operators provide accessibility services or accessible facilities, foreign carriers may rely on the airport operators' efforts, to the extent that those efforts fully meet the requirements of this Part. What happens, though, if the foreign airport operators' efforts do not fully provide the accessibility that this rule requires (
The Foreign Carriers NPRM asked whether the final rule should require automated kiosks operated by carriers in airports or other locations (
As an interim measure, the final rule will require a carrier whose kiosks are not accessible to provide equivalent service to passengers with disabilities who cannot use the kiosks. For example, suppose a passenger with a disability having only carry-on luggage wants to use a kiosk to get a boarding pass without standing in line with passengers checking baggage. If, because the kiosk is not accessible, the passenger cannot use it, the carrier would have to provide equivalent service, such as by having carrier personnel operate the kiosk for the passenger or allowing the passenger to use the first class boarding pass line.
We recognize that some disability community commenters have expressed concern about the latter approach, thinking that it might call undue attention to the individuals receiving the accommodation. We agree that
U.S. airports are governed, for disability nondiscrimination, by several Federal laws and rules, all of which coexist on the same airport real estate. The ACAA and DOT's ACAA rules apply to terminal facilities owned, leased, or controlled by a carrier, specifically facilities that provide access to air transportation (
Fortunately, ascertaining the practical obligations of various parties at the airport is a good deal less confusing than this summary of overlapping authorities might make it seem. In a November 1996 amendment to its existing ACAA rule, the Department clarified these relationships, and this understanding of the relationship carries over into the new ACAA rule (see 61 FR 56417-56418, November 1, 1996). Basically, regardless of which statutory or regulatory authority or authorities apply to a particular facility or portion of a facility, Title II ADA requirements apply to public entity spaces and Title III ADA requirements apply to private entity spaces. The Americans with Disabilities Act Accessibility Guidelines (ADAAG) are the physical accessibility standards that apply throughout the airport (note, however, that until DOJ completes its adoption of the 2004 ADAAG, the 1991 ADAAG continues to apply spaces controlled by DOJ regulations).
The original Part 382, issued in 1990, required U.S. carriers to provide enplaning and deplaning assistance, and it assigned to the arriving carrier the responsibility for providing assistance in making connections and moving between gates. The Foreign Carriers NPRM built on this existing requirement, proposing to require carrier assistance between the terminal entrance and gate, as well with accessing ticket and baggage locations, rest rooms, and food service concessions. The Foreign Carriers NPRM asked whether carriers should be permitted to require advance notice for these accommodations, and it proposed that enplaning, deplaning, and connecting assistance be provided “promptly.”
The Foreign Carriers NPRM proposed requiring carriers, in the course of providing this assistance, to help passengers with disabilities with carry-on and gate-checked luggage. It also proposed requiring carriers to make a general announcement in the gate area offering preboarding to passengers with disabilities.
Some carriers said that while they would voluntarily provide assistance to passengers with disabilities in moving through the terminal when practical and feasible, they opposed a regulatory requirement to provide this assistance. The Department does not believe that, under the ACAA, it is appropriate to tell passengers that they must learn to rely on the kindness of strangers. One of the purposes of Part 382 always has been, and remains, to create legally enforceable expectations upon which passengers with disabilities can consistently depend. Reliance on purely voluntary action by carriers does not achieve this objective.
One of the issues discussed most often in comments concerned the proposed requirement that enplaning, deplaning, and connecting assistance be provided promptly. Many commenters, particularly people with disabilities and organizations representing them, thought that the rule should specify maximum times for assistance—5, 10, or 15 minutes—rather than having a more general requirement for promptness. Some disability community comments also said that the rule should prohibit carriers from waiting until everyone else had left the plane before providing deplaning assistance to passengers with disabilities (
The Department has decided to adopt the “promptly” language as proposed. The Department is concerned that, given the wide variety of situations in different airports and flights, adopting a specific time limit as some commenters advocated would be unrealistic. On the other hand, having no standard would have the effect of reducing the requirement, as a practical matter, to “whenever the carrier gets around to it.” We understand “promptly” to mean, in the case of deplaning, that personnel and boarding chairs should be available to deplane the passenger no later than as soon as other passengers have left the aircraft. We believe that halting the boarding process for everyone behind, for example, Row 15, until a wheelchair user in Row 15 was transferred to a boarding chair and assisted off the aircraft, could unduly inconvenience a considerably greater number of persons. The requirement for prompt service imposes a reasonable performance requirement on carriers without creating unnecessarily rigid timing requirements which, in some situations, carriers operating in the best of faith might be unable to meet.
Many carriers suggested that they be allowed to require advance notice (
Carrier comments also mentioned, in this context, the relationship between carriers and many foreign airports, where airports often have the major responsibility for providing assistance in the terminal. As noted elsewhere in the preamble, carriers can rely on airports’ efforts with respect to assistance in the terminal, supplementing the assistance that airports provide as necessary to meet fully the requirements of Part 382. If carriers are precluded by law from supplementing the airport-provided assistance, carriers can request a conflict of laws waiver.
The Foreign Carriers NPRM, like the existing rule, assigns responsibility for connecting assistance to the carrier on which the passenger arrives. One foreign carrier mentioned that, per agreements with other carriers in at least some airports, its arriving passengers would be assisted to a connecting carrier's gate by personnel of the connecting carrier. As noted elsewhere, the Department does not object to contractual agreements between carriers that would delegate the connecting assistance function to the connecting carrier. However, under the rule, the arriving carrier would retain responsibility for ensuring that the function was properly carried out.
Many carriers objected to having to allow passengers they are assisting to stop at a restroom or food service location, saying that this would delay service and increase personnel costs. Passenger comments, to the contrary, suggested that it was unfair for assistance personnel to insist on wheeling a passenger who needed to go to the bathroom or who was hungry past a conveniently located restroom or food concession, at which ambulatory passengers could stop at their discretion. Their comments pointed out that eating and relieving oneself are basic life activities that people must do from time to time. This issue has become increasingly significant in recent years due to the need for early arrival at the airport for security screening and cutbacks in airline meal service.
The final rule is structured to accommodate both sets of concerns. If an airline or contractor employee is assisting a passenger from, for example, the ticket counter to the gate, and they come to a restroom or food service location on the route they are taking, the employee is required to allow the passenger a brief stop, if the passenger self-identifies as a person with a disability needing this service. The employee is not required to detour to a different route, provide personal care attendant services to the passenger, or incur an unreasonable delay. A delay which would result in the passenger not getting to a connecting flight would obviously be unreasonable. With respect to food service locations, the kind of brief stop the Department envisions is one sufficient to pick up a prepared carry-out item or fast-food sandwich, as distinct from eating at a sit-down restaurant. Even in the case of a carry-out or fast-food location, a long line might create an unreasonable delay.
The Foreign Carriers NPRM proposed that persons with disabilities who need assistance in boarding be provided an opportunity to preboard. It also proposed requiring a general preboarding announcement to this effect in the gate area. Disability community comments generally supported the proposed requirements. Carrier comments did not object to the proposed requirement to provide an opportunity for persons with disabilities to preboard, though some carriers did object to making the general announcement of the opportunity in the gate area, mostly out of concern that too many ineligible people would try to preboard, thereby slowing the boarding process. The Department believes that preboarding is an important way in which carriers can facilitate transportation by passengers with disabilities. Indeed, some portions of Part 382 (
The Foreign Carriers NPRM proposed that carriers, in the course of providing assistance to passengers with a disability in moving through the terminal, would assist them in transporting carry-on and gate-checked baggage. A number of carrier comments opposed this proposal, saying that it would impose staffing and cost burdens on them. If a passenger wanted to have someone carry his or her bags, at least one comment suggested, the passenger should hire porter service. Other commenters said that such service should be limited to wheelchair users or persons with severe hearing or vision impairments.
The Department notes that, in many cases, passengers with disabilities do not need extensive extra assistance in dealing with carry-on items. It is commonplace for wheelchair users to carry their briefcases or purses on their laps when being assisted through the terminal, for example. Proper-size carry-on and gate-checked items are, by definition, limited in size, and they are not the kind of items that passengers in general need to use a skycap and a cart to move through the airport. It would not be appropriate, in the context of a nondiscrimination rule, to effectively require passengers with disabilities to hire such service. We agree with commenters, however, that passengers who can carry their own items should do so, and we have added language saying that this service need be provided only to those passengers who cannot do so because of their disability. Carrier or contractor personnel can request credible verbal assurances from a passenger that he or she cannot transport the item in question or, in the absence of such credible assurances, require documentation as a condition of providing the service.
A number of foreign carriers commented that being able to limit the number of passengers with disabilities on board a given flight was important for safety, particularly in the context of an emergency evacuation. In some cases, carriers mentioned that laws or regulations of their governments either permitted or required them to impose limits on the numbers of either passengers with disabilities or assistive devices in the cabin.
A number limit permits a carrier to say to a passenger, in effect “As a person with a disability, we will deny
The Foreign Carriers NPRM proposed retaining, with minor modifications, the existing Part 382 limitations on the ability of carriers to require passengers with disabilities to travel with attendants. One terminological change we proposed was to refer to attendants that airlines could require in certain specified situations for safety purposes as “safety assistants.” The use of this term is intended to emphasize that the only reason a carrier may require another person to travel with a passenger with a disability is safety. It would never be permitted for a carrier to require someone to travel with a passenger with a disability as a personal care attendant; that is, as someone who is present to assist the passenger with personal needs such as eating, drinking, and elimination.
A number of foreign carriers asserted that they should retain the discretion to require attendants for passengers with disabilities. They gave several reasons for this desire. Some commenters did not want to have to rely on passengers’ self-assessments of their ability to travel independently. Some cited provisions of carrier manuals or government guidance that were contrary to the proposed regulation. Some feared that crew members might be pressed into performing personal care functions. Others argued that, on lengthy overseas flights, it was reasonable to require attendants for personal care purposes, since otherwise passengers with disabilities would be unable to perform personal functions for long periods, with harm possibly resulting to themselves or others. Some comments said that the requirement to allow a safety assistant to fly free if the carrier disagreed with the passenger's self-assessment could lead to abuse by clever passengers trying to get free flights for someone. Some of these comments suggested providing discounted, rather than free, transportation for the attendant in these situations.
Disability community commenters generally supported the Foreign Carriers NPRM proposals, and a number of comments were particularly supportive of the change to the “safety assistant” term, believing that it helped to clarify the meaning of the provision. Some comments from people with disabilities, however, objected to the provision to the extent that it would ever permit carriers to insist on an attendant over the passenger's objections. These commenters did not trust the carriers’ judgments about passengers’ capabilities and were concerned that carriers would impose attendant requirements arbitrarily, increasing the costs and difficulty of flying for passengers with disabilities.
The limits on carrier requirements for attendants were a significant issue in the original ACAA rulemaking, and the Department's discussion of that issue in the preamble to the 1990 ACAA rule remains relevant (see 55 FR 8029-8032; March 6, 1990). Passengers with disabilities, for the most part, are the best judges of their capabilities, and providing broad discretion to carriers to override that judgment does carry with it a significant risk of arbitrary burdens being placed on passengers. On the other hand, carriers have ultimate responsibility for the safety of passengers, and we believe that the balance struck in the original ACAA rule is a sensible one. Passengers have the primary responsibility for making the determination if they can travel independently, but carriers can overrule that determination, in a carefully limited set of circumstances, and require a safety assistant. If it is really an overriding safety reason that compels a carrier to overrule a passenger's decision and insist that he or she travel with a safety assistant, then it is appropriate for the carrier to bear the cost of the safety judgment that it makes. In the 17 years that the Department has implemented this provision under the existing ACAA rule, this requirement has not resulted, to the best of our knowledge, either in safety problems or frequent or significant abuse by passengers.
Even on long flights, passengers with disabilities, under a nondiscrimination statute, have the right to determine whether they will incur the discomfort involved with not having someone available to assist them with personal functions. A passenger may choose to forego the airline's food and beverage service. A passenger may dehydrate himself and avoid the need to urinate. The Foreign Carriers NPRM, like the present rule, emphasizes that flight attendants and other carrier personnel are never required to perform personal care functions for a passenger. To ensure that passengers who make the choice to fly unaccompanied have the opportunity to be fully informed of the implications of their decision, the information to which passengers are entitled (see sec. 382.41(f)) includes a description of services that are or are not available on a flight.
For these reasons, the Department is adopting the proposed provision and thereby retaining the substance of the existing provision of Part 382. The Department has made a few modifications in the rule text, however. In a situation where the carrier insists on a passenger traveling with a safety assistant, contrary to the passenger's self-assessment, we are deleting the proposed language that would require the carrier to make a good-faith effort to find someone to perform the safety assistant function. This language was not part of the original 1990 rule, and we do not think it is essential to add it. As stated in the preamble to the 1990 rule (see 55 FR 8031), the carrier can play an important role in selecting a safety assistant (
With respect to passengers who have mobility impairments, we have clarified the criterion relating to safety assistants to say that the passenger with a disability must be capable of “physically” assisting in his or her own evacuation. This clarification is made to avoid the possibility that someone could claim he is assisting in his own evacuation merely by calling for help. Finally, given that the rule will now apply to foreign carriers, we have added to the provisions concerning persons with mental disabilities and deaf-blind individuals a notation referring to
Consistent with the approach taken in the current rule and the Foreign Carriers NPRM, we proposed in the DHH NPRM to allow carriers to require any passenger who has severe hearing and vision impairment or is deaf-blind to travel with a safety assistant if communication adequate for transmission of the required safety briefing cannot be established. (We use the term “severe hearing and vision impairment” to include the entire spectrum of this disability, including the extreme of “deaf-blind,” unless we expressly indicate otherwise.) We proposed to require both the carrier's personnel and the disabled passenger to make reasonable attempts to establish adequate communication, beginning with self-identification on the passenger's part. We further proposed that if the carrier disagrees with the passenger's assessment that he or she is capable of traveling independently, the carrier must transport the safety assistant free of charge and must also make reasonable efforts to locate such an assistant. We solicited comments on the proposed joint responsibility, on what might qualify as reasonable attempts to communicate, on whether our proposal is specific enough for all parties concerned to understand their responsibilities, and on whether a different standard might be more appropriate. We also solicited comments on the costs of compliance.
The carriers and carrier associations that filed comments all supported the proposed requirement that passengers with severe hearing and vision impairment self-identify. Most opposed being required to find a voluntary safety assistant if they disagree with the disabled passenger's self-assessment of being able to travel without one, and all opposed being required to transport the safety assistant without charge. They contend that not only would the requirement to transport the safety assistant without charge create incentives for fraudulent assertions of independence, but using voluntary safety assistants would raise serious insurance and liability issues, and requiring free transportation would saddle them with undue costs. Most sought clarification of carriers’ responsibility for making reasonable efforts to establish communication with passengers whose hearing and vision are severely impaired. For flights of twelve hours or more, some carriers said, inexperienced passengers may not be aware of what needs may arise for them during their flight.
Of the disability organizations that filed comments, one supported joint responsibility for reasonable efforts to establish communication to determine the need for a safety assistant. Others maintained that the rule should ensure that persons with severe hearing and vision impairment are not denied travel because a carrier's employees lack adequate training in or knowledge of basic communication techniques.
In response to the comments we received, we are modifying the proposed rule in some respects. In so doing, we are maintaining the basic principle that has worked effectively in the domestic airline industry since the original 1990 rule: if a passenger is able to establish adequate communication with the carrier for purposes of receiving the safety briefing, and the carrier nonetheless decides to overrule the passenger's assessment that he or she can travel independently, the carrier cannot charge for the transportation of the safety assistant that the carrier requires.
To allow the carrier an opportunity to confirm that the passenger had such a means of communication available, the final rule provides that the carrier can require the passenger to self-identify 48 hours before the flight. As part of this notification, the passenger would explain to the carrier how communication can be established (
For example, if a passenger with severe hearing and vision impairments does not notify the carrier 48 hours before the flight of his or her intent to travel alone and of his or her ability to communicate adequately for transmission of the safety briefing, the carrier could refuse to transport the passenger without a safety assistant. If, however, the same passenger does not provide advance notice but is taking a nonstop flight, brings an interpreter to the airport, and is able to establish communication (in the gate area) adequate for the transmission of the safety briefing and to receive instruction during an emergency evacuation, the carrier must allow the passenger to travel without a safety assistant.
The FAA requires that the safety briefing be provided before each takeoff, so communication to permit transmission of this briefing must be established for each flight segment of the passenger's itinerary. Passengers can use a variety of means to establish the needed communication. A passenger could, for example, bring a companion to the airport to serve as a go-between with carrier personnel there. That individual can interpret for the passenger during the safety briefing and can help the passenger agree with carrier personnel on physical signals—touching the passenger's hand in a specific manner, for example—for use during evacuation or other emergencies. Another means by which the passenger may establish communication is to give carrier personnel an instruction sheet for communicating with him or her.
While we are not requiring carriers to make safety briefing information available on Braille cards, they are free to do so. The carrier may not require the passenger to demonstrate his or her ability to communicate or that he or she has understood the safety briefing. For example, there could not be a quiz on the contents of the safety briefing or a demonstration of lip reading or finger spelling ability.
In the case of codeshare flights, the carrier whose code is used must inform the operating carrier that a passenger with severe hearing and vision impairment has provided notice 48 hours in advance of his or her intent to travel without a safety assistant. If there is sufficient time before the 48-hour deadline for the passenger to directly contact the operating carrier, the carrier whose code is being used could, as an alternative, provide the passenger a number where he or she could contact the operating carrier to impart this information.
Consistent with the treatment of this issue in the rest of the rule, in cases where carriers disagree with a passenger's self-assessment that he or she can travel alone, we will continue to require that they transport the safety assistant without charge. Of course, any carrier that wishes to accommodate a passenger with severely impaired vision and hearing by designating a safety assistant from among, say, non-revenue passengers, its airport personnel, ticketed passengers on the same flight who volunteer to serve in that capacity, or a person accompanying the disabled passenger to the airport is free to do so.
This requirement of free transportation for the safety assistant also applies in cases when the disabled passenger who believes that he or she does not need a safety assistant proposes to establish communication by means of tactile signing or finger spelling, but no member of the carrier's flight crew can communicate using these methods. Carriers may decide as a practical matter that providing free transportation for a safety assistant in
Finally, with respect to a passenger with a mental impairment (
The Foreign Carriers NPRM proposed to continue, and apply to covered flights of foreign carriers, the existing Part 382 limits on the extent to which carriers can exclude or restrict passengers with communicable diseases and the situations in which carriers can require a passenger to get a medical certificate from a physician before traveling.
Many air carrier comments asked for greater guidance on how to apply the provisions of these sections. Some of these suggested incorporating past DOT guidance that spelled out that a combination of severity of health consequences and easy transmission of a disease in the aircraft cabin environment would create an appropriate situation for restrictions on an individual's travel and/or a requirement for a medical certificate. Commenters asked whether such conditions as the common cold, SARS, tuberculosis, or AIDS would meet the requirements of the proposed rule for permitting restrictions on travel or the requirement for a medical certificate. Some comments also asked how directives or recommendations from public health authorities would play into carrier decisions under the rule.
There were a number of comments about the concept of “direct threat,” which is defined as a significant risk to the health or safety of others that cannot be eliminated by a modification of polices, practices, or procedures or eliminated by the provision of auxiliary aids or services. Disability community commenters expressed the concern that use of this term—derived from the Americans with Disabilities Act—would make it too easy for carriers to use their discretion to exclude passengers, perhaps in a discriminatory fashion. Some carriers believed, to the contrary, that it would make it too difficult to exercise the discretion they need to protect the health of travelers or that it would be too burdensome for their personnel to make judgments on this basis. A medical group suggested that a direct threat be defined as a condition that would be seriously exacerbated by the flight itself or a serious communicable disease that could be transmitted to another person in flight.
Some carriers questioned the objectivity or qualifications of a passenger's physician to make a sound determination of whether it was safe for a passenger to travel. Some carriers preferred that their own medical staffs make these determinations, or at least have the ability to evaluate and override medical certificates provided by passengers' physicians. Generally, carriers preferred to have wider discretion to restrict passengers' travel than they perceived the provisions of the Foreign Carriers NPRM as giving them.
In response to comments, the Department has made some modifications in the final rule provisions on these subjects. We have included the substance of the DOT guidance. Under this provision, carriers would have the ability to impose travel restrictions and/or require a medical certificate if a passenger presented with a communicable disease that was
Existing language of the regulation, which will be carried forward, permits a carrier to require a medical certificate from a passenger when there is reasonable doubt that the individual can complete the flight safely without requiring extraordinary medical assistance. This language accommodates the comment that one aspect of a direct threat is a passenger having a condition that would be seriously exacerbated by the flight itself. We disagree with a commenter's assertion that a carrier should be able to ask for a medical certificate if
We have added language permitting carriers to rely on instructions issued by public health authorities (
The Foreign Carriers NPRM proposed extending to foreign carriers requirements for aircraft accessibility features based, with some modifications, on provisions in the existing ACAA rule. These features include accessible lavatories, movable aisle armrests, provision of on-board wheelchairs, and space to store wheelchairs and other mobility aids in the cabin. A few commenters apparently misunderstood the proposal as requiring retrofit of existing aircraft. This is not the case; no such requirement has ever existed or been proposed.
The current rule requires U.S. carriers using aircraft with 30 or more seats to have movable aisle armrests on at least half the passenger aisle seats. Such armrests need not be provided on emergency exit row seats or on seats on which movable aisle armrests are not feasible. The carrier is required to provide a means to ensure that individuals with mobility impairments or other passengers with disabilities can readily obtain seating in rows having movable aisle armrests. The requirement applies to new aircraft ordered or delivered after the rule went into effect (retrofitting was not required) or to situations in which existing seats are replaced by newly manufactured seats.
The Foreign Carriers NPRM proposed retaining these requirements and applying them to foreign carriers, with some modifications and clarifications. The exception for seats on which movable aisle armrests are not feasible was not included in the Foreign Carriers NPRM regulatory text, and a new requirement was proposed that would
A number of carriers and aircraft manufacturers commented that the proposed deletion of the feasibility exception and the requirement to have movable aisle armrests in each class of service were problematic. They said that some seats and seat console designs for first and business class seats in fact did make movable armrests infeasible or too costly. Moreover, they said, the wider seat pitches in first and business class cabins often permitted horizontal transfers of passengers from boarding chairs to aircraft seats, making movable armrests unnecessary in these cases.
The Department agrees that, if in a given aircraft, seats and seat pitches are configured so as to permit a horizontal transfer of a passenger from a boarding wheelchair to the aircraft seat (
Some commenters also said that putting seats with movable armrests into existing aircraft should be required only when newly designed or developed types of seats are installed, as distinct from newly manufactured seats of the same type that formerly occupied the space. Consistent with other provisions of the ACAA, ADA, and section 504, when a feature of a vehicle or facility is replaced, it must be replaced with an accessible item. (We note that, according to information referred to in the regulatory evaluation, movable aisle armrests are now standard features of at least some seat manufacturers' products.) This obligation is not limited to new models of a feature placed into a space where older models formerly were used. Indeed, adopting the commenters' suggestion would create a means for carriers to avoid providing movable aisle armrests on existing aircraft when newly manufactured armrests are installed, since carriers could simply order older seat models whenever they replaced the seats. When carriers remove any of the old seats on existing aircraft and replace them with newly manufactured seats, half of the replacement aisle seats must have movable armrests.
Disability community commenters generally favored the Foreign Carriers NPRM proposal, but suggested some modifications. Some comments said that emergency exit rows should be made part of the base from which the 50 percent calculation should be made. The Department believes, however, that the existing formula, which excludes those rows from the calculation, will result in sufficient rows being equipped with movable aisle armrests. Other comments suggested requiring some rows (presumably, in economy as well as business or first-class sections) to have wider seat pitches, the better to accommodate service animals or assistive devices, or to remove some rows entirely and provide securement devices so that passengers could sit in their own wheelchairs. The Department regards these suggestions as impractical and potentially too costly to airlines, as they would reduce seating capacity on the aircraft. The latter suggestion, in addition, would be inconsistent with FAA safety rules concerning passenger seats on aircraft, since aircraft seats must be certified to withstand specified g-forces.
One comment suggested requiring that in new aircraft or those subject to a cabin refit, the bulkhead row always have a movable aisle armrest. While we do not believe it is necessary to be this specific in the regulatory text, we believe that this is a good idea that carriers and manufacturers should consider, except when a bulkhead row is unavailable to passengers with disabilities because of FAA safety rules (
The Foreign Carriers NPRM proposed to retain the existing requirement that cabins of aircraft with more than one aisle (
Many disability community commenters believed the existing and proposed requirements concerning accessible lavatories were inadequate. They said that accessible lavatories should be required in all aircraft, including the much more common single-aisle aircraft. The absence of accessible lavatories makes travel uncomfortable and difficult for passengers with disabilities, they said. Airline industry commenters, on the other hand, said that adding a requirement for accessible lavatories on single-aisle aircraft would be overly costly and burdensome.
Particularly given that single-aisle aircraft often make lengthy flights (
Some comments objected to the proposed requirement to use accessible components (
Several foreign carriers objected to the application to them of the existing rule's requirement that when an inaccessible lavatory unit was being replaced on a twin-aisle aircraft, it must be replaced with an accessible lavatory. Their main concern was that since the accessible lavatory unit would require more space than its inaccessible predecessor, they would have to remove or forego seats, causing revenue loss. One carrier made very high estimates of seat loss from such a change (
Since the original ACAA rule (see 55 FR 8020-8021; March 6, 1990), the Department has drawn a distinction between single-aisle and twin-aisle aircraft for purposes of accessible lavatory requirements. While the Department has acknowledged since the time of the original rule that requiring accessible lavatories in twin-aisle aircraft involves direct costs and revenue losses (though some seat loss estimates, like the one referred to above, appear overstated), the Department determined then and continues to believe now that the requirement is justified in twin-aisle aircraft. The cabins of these aircraft are physically larger, affording somewhat greater flexibility than single-aisle aircraft in placing accessible lavatory units. They tend to be used on longer-distance flights and carry more people, making the presence of accessible lavatories all the more important to passengers. U.S. carriers have been subject to the same requirement for many years, and it is important to maintain a level playing field between U.S. carriers and their foreign carrier competitors in terms of such a requirement. Contrary to one foreign carrier comment, requiring accessible lavatories on twin-aisle aircraft does not discriminate against foreign carriers; U.S. carriers, no less than their foreign counterparts, use twin-aisle aircraft on long-distance international routes.
Several commenters requested a clarification with respect to the accessible lavatory requirement in a twin-aisle airplane, to the effect that only one accessible lavatory need be installed. For example, if a carrier was refitting a cabin, and replacing all its old inaccessible lavatories, it would only have to install one accessible lavatory unit. We believe that this is a reasonable interpretation of the requirement, and we will use this interpretation as we implement and enforce the rule. However, we do not believe that additional regulatory language is necessary.
The Foreign Carriers NPRM proposed to retain with some modifications, and to apply to foreign carriers' aircraft, the existing requirement that aircraft with 100 or more passenger seats have a priority space to stow at least one passenger wheelchair. The modifications proposed from the existing rule were to add dimensions of a wheelchair that would fit without disassembly into the priority space and to delete the application of this section to electric wheelchairs.
As with other aircraft accessibility provisions of the Foreign Carriers NPRM, the proposed requirement concerning on-board stowage of wheelchairs would apply to new aircraft. Contrary to concerns expressed by a number of carriers, the Foreign Carriers NPRM did not propose a retrofit requirement. Nor would the requirement apply to “all types of aircraft,” as several comments asserted. It would apply only to aircraft with 100 or more seats.
Comments from disability community commenters generally supported the proposed requirement, though several of these comments said that the dimensions proposed for wheelchairs to be carried in the cabin should be enlarged, given the size of many current types of mobility devices. Many foreign carrier comments said either that all wheelchairs should be carried in the cargo compartment or that carriers should have discretion concerning whether or not to carry a wheelchair in the cabin. Some comments expressed the concern that carriers could not fit a space for a folding wheelchair into their cabin configurations without losing seating capacity. One foreign carrier added that crew luggage should have priority over a passenger's wheelchair.
The reasons for storing a wheelchair in the cabin are twofold. First, it can often be more convenient for a passenger to have the wheelchair close at hand when he or she leaves the aircraft and to be able to get as close as possible to the aircraft door on boarding before having to transfer. Second, as pointed out in the preamble to the original ACAA rule (55 FR 8035; March 6, 1990), passengers with disabilities have the same concerns as other passengers about loss of or damage to their property when it is checked. While, as some comments pointed out, requiring space for one wheelchair does not completely solve this problem for all passengers with disabilities, doing so does help at least one such passenger per flight. A bit of added inconvenience to non-disabled passengers or crew who might have to stow their carry-on items elsewhere seems an acceptable price to pay, in the context of a nondiscrimination rule, for this service to passengers with respect to their means of mobility.
For these reasons, the Department is adopting the proposed requirement. We recognize that some foreign carriers are used to exercising their discretion about where to carry passengers' wheelchairs, as were U.S. carriers prior to the adoption of the original ACAA rule. U.S. carriers, with appropriate oversight from DOT, have successfully adapted to this requirement, and foreign carrier comments did not contain any compelling reasons why they could not do so as well. It is important to remember that foreign carriers will not be required to modify existing cabins just for the purpose of creating a space for passengers' wheelchairs.
There is a wide variety of wheelchairs and mobility devices on the market. It would not be practical to require spaces that can handle every sort of device. The rule's requirement is now limited to spaces for folding manual wheelchairs, the present and proposed language concerning cabin stowage of power wheelchairs having been deleted in response to comments expressing concern about the adequacy of space, problems arising from the disassembly and reassembly of wheelchairs in the context of transportation in the cabin, and potential issues concerning stowage of batteries. Of course, since only folding manual wheelchairs are permitted in the cabin, large, motorized mobility-assistive devices of any type—not just power wheelchairs, as such—would not have to be carried in the cabin.
Based on the Department's experience, the dimensions in the Foreign Carriers NPRM should be sufficient to handle a considerable majority of models of folding wheelchairs. Consequently, while we agree that this required space will not be sufficient for all models, we believe it is a reasonable compromise between the needs of passengers and the space constraints of carriers. We note that, under the final rule, carriers are not required to carry electric wheelchairs in the cabin.
One matter that some comments raised was the so-called “seat-
The existing rule requires that, on aircraft with more than 60 seats, the carrier must provide an on-board wheelchair in any case if the aircraft has an accessible lavatory, and on a passenger's advance request even if the aircraft does not have an accessible lavatory. The rationale for the latter requirement is that some passengers with limited mobility may be able to use an inaccessible lavatory on their own but may need to be assisted down the aisle to the lavatory in an on-board wheelchair. The Foreign Carriers NPRM proposed that this requirement apply on aircraft with 50 or more seats, as distinct from the criterion of more than 60 seats in the existing regulation. The reason for this proposal was that 50-seat regional jets are becoming an increasingly important component of the fleets of many carriers, and the accommodation provided by this section should be made available to passengers who use those aircraft.
Carriers and their associations objected to the application of the provision to 50-seat aircraft. Carriers cited cost as one reason for their position. In addition, they said, 50-seat aircraft typically have only one flight attendant on board. If that attendant is assisting a passenger using an on-board wheelchair, he or she will be unable to carry out other duties. This could create difficulties if an emergency occurred while the flight attendant was assisting a user of an on-board wheelchair, which might also obstruct the aisle in an emergency situation. In addition, carriers questioned whether the interior of a 50-seat regional jet could be configured to provide storage space for the on-board wheelchair when it was not in use.
While the cost estimates of commenters for on-board wheelchairs appear to be overstated, we believe that the operational concerns of carriers with respect to the use of on-board wheelchairs on 50-seat aircraft with one flight attendant have merit. In addition, the typically very confined spaces in lavatory units on these aircraft make their use by persons with limited mobility problematic. Consequently, the final rule will retain the existing rule's provision applying on-board wheelchair requirements to aircraft with more than 60 seats.
The current rule requires wheelchairs that cannot be carried in the cabin to be checked, carried as baggage, and returned to users as closely as possible to the door of the aircraft. These devices have priority over other items in the baggage compartment. Carriers must accept battery-powered wheelchairs (and other battery-powered mobility aids) in baggage, subject to applicable hazardous materials rules. Wheelchairs powered by lithium batteries may not be permitted under the hazardous materials rules depending on the lithium content of the battery. Generally, non-spillable batteries do not need to be removed from wheelchairs and separately packaged, if the batteries are securely attached to the wheelchair and the batteries or their housing, if any, are clearly marked as being non-spillable. Wet cell batteries which are not non-spillable may require removal from the wheelchair if the wheelchair cannot be loaded and stowed in an upright condition and secured against movement in the cargo compartment. Carriers may establish a one-hour advance check-in time to process battery-powered wheelchairs. Wheelchair users may provide written instructions concerning assembly and disassembly of their devices. On domestic flights, U.S. carriers must fully compensate passengers for loss of or damage to wheelchairs, without regard to rules limiting liability for lost or damaged baggage.
The Foreign Carriers NPRM essentially proposed to continue these provisions and apply them to foreign as well as U.S. carriers. Commenters made a number of points in response. One commenter asserted that the requirement to carry power wheelchairs in the baggage compartment was inconsistent with ICAO technical standards and IATA dangerous goods rules. While virtually identical in many respects, the DOT and ICAO/IATA standards differ, the commenter said, because the latter gives carriers discretion to refuse to carry such mobility aids while the former does not. The Department, according to the commenter, cannot impose a lesser requirement than the international standard. In the Department's view, there is no conflict. As cited by the commenter, the ICAO/IATA standard gives carriers the discretion to carry battery-powered wheelchairs. The DOT requirement tells carriers to exercise the discretion permitted them by the ICAO/IATA standard by, in fact, carrying the wheelchairs. The DOT rule does not require anything that the ICAO/IATA rule does not allow. It would not be accurate to call the Department's requirement a “lesser” standard than that of ICAO/IATA. Indeed, it is more properly regarded as a higher standard, since it ensures service to passengers with disabilities that the ICAO/IATA materials leave to carrier discretion.
On October 5, 2007, the Department's Pipeline and Hazardous Materials Administration (PHMSA) issued a special permit in response to an IATA request. The permit, which granted an exemption from portions of the Department's hazardous materials rules concerning battery-powered mobility aids, was revised in response to ATA's request on October 30, 2007. Under the special permit, the current term of which expires January 31, 2009, a non-spillable battery that is completely enclosed and protected from short circuits in a rigid case integral to the mobility aid would not have to be disconnected and its terminals further protected from short circuits to be carried on an aircraft. This special permit should make handling of some battery-powered wheelchairs easier for carriers to which the permit applies. It is PHMSA's intention to issue a rulemaking in the future that will extend the provisions of this exemption to all carriers. Due to the many instances of wheelchair damage resulting from disconnecting battery cables, the Department will require carriers not to disconnect the cables on non-spillable batteries unless a PHMSA or FAA safety regulation, or the safety regulation of a foreign government, requires them to do so.
Carriers and passengers with disabilities had differing views on the existing and proposed requirements for carriers to permit passengers to provide written instructions about the disassembly and reassembly of wheelchairs. Some of the former suggested requiring passengers to provide the manufacturer's instructions; some of the latter suggested that the airline employee who disassembles the wheelchair provide written instructions that would go forward to the employee who reassembles the wheelchair at its destination telling that employee how to put the device back together.
The Department believes that both suggestions have some merit. To the extent that there are relevant manufacturer's instructions, it seems useful for passengers to provide a copy to carriers. We do not think it would be appropriate to require the provision of manufacturer's instructions, since they may not exist in all cases and may not apply to specialized or customized features of a particular passenger's device. It also seems plausible that a user of a particular device would be in a good position to provide experience-based instructions to the carrier. Likewise, to the extent that a carrier employee at the passenger's originating airport can write down a “here's how I took it apart and here's how it goes back together” note to his counterpart at the destination, the information could be helpful to the latter. However, the employee may not have time to do so, and some passengers may prefer that the employee does not do so (
Some carrier comments said that Warsaw/Montreal convention provisions controlled payments for items carried as baggage and that the Department should not attempt to alter compensation requirements for international flights. We agree, and the Foreign Carriers NPRM proposed to make compensation requirements for lost or damaged mobility aids applicable only to U.S. domestic passenger trips. The final rule will do the same.
Some commenters suggested that the advance check-in time for persons delivering mobility aids for transportation in the baggage compartment should be 60 minutes before the regular check-in time for passengers, rather than 60 minutes before scheduled departure time. We agree, and we have changed the rule accordingly.
Some carrier comments noted that the existing and proposed regulatory language concerning luggage that doesn't make a flight because of the space taken by a wheelchair calls for the carrier to make best efforts to deliver the luggage within four hours. Commenters said that this often was not practical in international service, where flights may be scheduled at intervals of one a day or less. This is a fair comment; we have changed the language to say that such luggage must be placed on the carrier's next flight. We believe this is a reasonable standard for domestic as well as international flights.
The Department recognizes that there may be some circumstances in which it is not practical to stow an electric wheelchair, or some other sort of assistive device, in the baggage compartment. Only devices that fit and that meet all applicable hazardous materials and other safety regulations need be carried.
Some wheelchairs—such as those equipped with securely mounted non-spillable batteries or those for which the carriers remove the batteries and stow them separately under 49 CFR 175.10(a)(15) and (16)—are capable of being stowed in other than an upright position without damage to the wheelchair or batteries. However, if the physical size of the compartment—its actual dimensions, not crowding caused by other items—do not permit a wheelchair to be carried upright safely without risk of serious damage to the wheelchair, or a load imbalance caused by a large wheelchair in a small baggage compartment may violate weight and balance safety requirements, carriers could legitimately decline transportation of the item on that flight and should assist the passenger in identifying a flight using an aircraft that can accommodate the chair.
Given that the rule allows the carrier to require 48 hours' advance notice with respect to carrying electric wheelchairs, the carrier should use this time period to find an arrangement that will get the passenger and his or her chair to the intended destination. For example, when a change to a smaller aircraft the day before the flight's departure will preclude the passenger's wheelchair from being accommodated in the cargo hold (
A disability group also raised the concern—which could apply to manual as well as electric wheelchairs—that if several wheelchair users were traveling on a small aircraft, like a commuter aircraft or a regional jet, there might not be room in the baggage compartment for everyone's wheelchair. This situation could occur, but we do not see a regulatory solution to it. If a group is traveling together, providing as much notice as possible to the carrier to work the problem is advisable. Otherwise, the carrier would probably have to put some passengers' wheelchairs on a subsequent flight. A carrier association said that carriers should only have to carry one motorized mobility device per passenger. We do not believe it is necessary to provide for this situation in the regulatory text. However, in a situation like the above where there was not room for all disabled passengers' wheelchairs, we agree that it would make sense for the carrier to take one mobility device for each passenger on the flight before taking a second device for some passengers.
The Foreign Carriers NPRM proposed carrying forward and applying to foreign carriers the seating accommodations requirements of the current ACAA rule. These provisions would require carriers to make available certain seat locations to individuals with certain types of disability calling for a particular seating accommodation.
Some disability community commenters suggested that, if adequate seating accommodations for a person with a disability were not present, the individual should be seated in business or first class without additional charge. Carriers generally opposed this idea. Under the current rule, carriers are not required to provide accommodations in a seating/service class for which a passenger has not bought a ticket (see section 382.38(i)). The final rule continues this approach. Carriers are responsible for making seating accommodations in the seating/service class for which someone has bought a ticket, but are not required to provide a higher level of seat or service because doing so would be more comfortable or convenient for a passenger with a disability. Likewise, the Department is continuing its existing approach that a person who requires two seats for any reason (
Some carriers asked for an advance notice requirement for passengers
There were several miscellaneous comments concerning seating accommodations. One carrier commented that persons with fused legs could be transported more comfortably in a rear window seat rather than a bulkhead seat in some aircraft configurations. This approach appears consistent with section 382.81 of the final rule, which requires carriers to seat a passenger with a fused leg in a bulkhead seat “or other seat that provides greater legroom than other seats.”
Another carrier mentioned that because it provides “soft bulkheads” and “inflatable seatbelts” in some seats, national safety regulations prohibit seating some persons with disabilities in those seats. In this case, the carrier would then have to accommodate a passenger with a fused leg in any other seat on the aircraft offering greater legroom. If due to a particular aircraft model's design, no seat on that model other than those prohibited by national regulations offered greater legroom, the carrier would have to apply for a conflict of law waiver. We do not believe it is appropriate, as some disability groups suggested, to require bulkhead row seating to be made available to all wheelchair users. The apparent rationale for this request was to make it more convenient for such passengers to access their personal wheelchairs quickly in order to transfer to another flight or exit the airport. The rationale of the bulkhead seating accommodation for people with fused legs, however, is to make seating on the flight itself less difficult or uncomfortable for passengers, rather than easing the passenger's exit. A disability group asked the Department to clarify that wheelchair users are not limited to sitting in aisle seats. We agree, like the existing ACAA rule, the final rule does not allow carriers to limit seating options for passengers with disabilities, except where needed to comply with applicable safety rules (
In the Oxygen NPRM, we proposed that the requirements concerning the evaluation and use of passenger-owned electronic devices that assist passengers with respiration apply to all operations worldwide of U.S. air carriers that conduct passenger carrying service other than on-demand air taxi operators. The Oxygen NPRM proposed to cover foreign carriers operating flights to and from the United States in as similar a fashion as possible to U.S. air carriers. We also specifically requested comment as to whether the Department should limit coverage of this section to carriers operating larger than 60-seat aircraft and whether flights operated by commuter carriers should be covered.
Consumers argued against an exception for aircraft with 60 or fewer seats and favored a regulation of general applicability because many carriers that operate “hub and spoke” service as well as many carriers that service smaller cities and less frequently traveled routes use small aircraft. Consumers also asserted that it would frustrate the purpose of the regulation to exempt flights operated by commuter carriers as many individuals who use medical oxygen fly on commuter carriers from small regional airports to larger airports to connect to a flight to their ultimate destination. However, small carriers supported an exception for aircraft with 60 or fewer seats because of the costs associated with the regulation, particularly the cost of testing to determine if the electronic respiratory assistive devices interfere with the navigation or communication systems of each model of aircraft operated by the carrier. These carriers explained that testing would be more costly for small carriers because they do not have the technical knowledge or personnel necessary for testing, necessitating the hiring of subcontractors for compliance testing. Small carriers also indicated concern with the onboard service obligations associated with permitting passengers to use electronic respiratory assistive devices on an aircraft since there is no flight attendant on aircraft with fewer than 20 seats and only one flight attendant on aircraft with 20 to 50 seats Further, small carriers asserted that allowing a passenger to use an electronic respiratory device such as a portable oxygen concentrator (POC) onboard small aircraft is of limited benefit because they contend that many regional flights are one hour in length and carriers can prohibit the use of electronic devices during take-off and landing which can take a total of approximately forty minutes, leaving the passenger with only twenty minutes to use his/her device.
After fully considering the comments received regarding the applicability of section 382.133 to carriers, the Department believes that it is reasonable to apply the requirements of this section to U.S. and foreign carriers that conduct passenger carrying service other than on-demand air taxis and not to exempt carriers that only operate aircraft with 60 or fewer seats. The contention of small carriers that the costs associated with the requirements in this section would be unduly burdensome to them no longer carries the same weight, since this final rule shifts the responsibility for electromagnetic interference testing of the four types of electronic respiratory assistive devices from the carriers as proposed in the Oxygen NPRM to the manufacturers of these devices, as the manufacturers have a market incentive to test such devices. (See the discussion of industry comments on this issue in the section below entitled “Testing and Labeling of Electronic Respiratory Assistive Devices.”) The Department is also not persuaded that there are onboard service obligations associated with permitting passengers to use electronic respiratory assistive devices that require the assistance of a flight attendant. We also find unpersuasive the argument that electronic respiratory devices such as POCs are of limited use onboard small aircraft because they tend to operate shorter flights during which passengers could only use their devices for a small portion of the total flight time as it presumes that the devices cannot be used during ascent and descent. A device's use during a particular phase of a flight (
We proposed in the Oxygen NPRM to address the carriage of four types of portable electronic respiratory assistive
The Department recognizes that foreign carriers operate under a variety of laws and regulations. We have revised section 382.133 to clarify that foreign carriers need to permit the carriage and use of a ventilator, respirator, CPAP machine and POC only if among other things, the device can be stowed and used in the passenger cabin consistent with applicable TSA, FAA, and PHMSA regulations and
In the Oxygen NPRM, we proposed that a U.S. carrier that conducts passenger-carrying service other than an on-demand air taxi operator perform the necessary evaluation and testing of a ventilator, respirator, CPAP machine or FAA-approved POC to determine if the device causes interference with the navigation or communication systems of each model of aircraft the U.S. carrier operates. We also proposed requiring a foreign carrier that conducts passenger-carrying service other than an on-demand air taxi operator to perform the necessary evaluation and testing of these devices to ascertain whether such device can be used safely by passengers during a flight on each aircraft that the foreign carrier operates on flights to and from the U.S.
Industry commenters as well as some consumers said that the burden of testing should be shifted away from the carriers. The Air Transport Association and other industry commenters proposed that carriers only be required to permit the use of an electronic respiratory assistive device that has been tested and marked as approved by RTCA, Inc. (formerly the Radio Technical Commission for Aeronautics). These commenters argued that if carriers have the option of refusing to carry any device that is not tested and marked as approved by the RTCA then the device manufacturers would have an incentive to test their devices and produce safety testing results for the carriers to review. Other commenters suggested that the device manufacturers and the aircraft manufacturers should be required to conduct the testing and then label the device as approved for use aboard aircraft, as manufacturers have the greatest incentive to test devices. Industry commenters also requested that the FAA create a generic safety standard for testing respiratory devices as well as a uniform labeling system for all approved devices to cut down on confusion by carriers and passengers.
Having considered all of these comments, the Department is persuaded that responsibility for electromagnetic interference testing of the four types of electronic respiratory assistive devices covered in the Oxygen NPRM should be borne by the manufacturers of such devices rather than the carriers. However, this regulation does not mandate manufacturer testing. The FAA is considering whether to issue an NPRM in which the agency would propose to require manufacturers that want to market their ventilators, respirators, CPAP machines, and FAA-approved POCs for passenger use on aircraft to test those devices against FAA-prescribed performance standards and affix a label to each device stating that it meets the applicable standards prescribed in the federal aviation regulations. If the FAA decides to issue such an NPRM, the NPRM would clarify that those manufacturers that do not intend to market their devices for use on aircraft would be under no obligation to conduct any testing and would not be permitted to affix a label indicating FAA approval. The manufacturers that want to market such devices for use on aircraft but whose devices fail to meet the performance standards would also not be permitted to affix a label indicating FAA approval. Moreover, the FAA will consider whether to include other proposals in that NPRM, including specifying how a carrier would “verify” whether the aforementioned electronic respiratory assistive devices meet FAA performance standards.
In this rulemaking, we are strongly encouraging manufacturers that market their electronic respiratory assistive devices for use by passengers on aircraft to test their devices to determine whether they meet FAA electromagnetic and radio frequency interference emission standards set forth in FAA Advisory Circular No. 91.21-1B, and if they do so, to label the devices as FAA-compliant. The label should indicate that the device is approved for air travel (
This rule
The final rule also
We expect that both U.S. and foreign carriers will inspect the device label at the departure gate to ensure that it is labeled by the manufacturer in accordance with the applicable regulations. U.S. carriers' internal procedures must ensure that approved devices bearing labels indicating that they meet the FAA requirements are accepted. For foreign carriers, devices containing labels indicating that the device meets requirements set by the foreign carrier's government or, if no such requirement exists, the requirements for medical portable electronics set by the FAA for U.S. carriers, should be accepted.
We explained in the Oxygen NPRM that carriers would be required to inform passengers, on request, about any restrictions on using their personal respiratory assistive devices aboard the carrier's flights (
The Department received a number of comments from consumers strongly urging that a centralized list of approved and disapproved devices be provided by carriers, airports and/or the government. Industry comments varied, with some carriers indicating a willingness to provide this information, while others believed a list of approved and disapproved devices would be difficult to maintain and would open the airline up to liability. Many carriers suggested that the Department provide a list of approved devices through its Web site and by phone. Carriers also expressed concern about any requirement to provide information on the limitation of its codeshare partners to accommodate the use of respiratory devices. According to these carriers, some carriers have up to ten codeshare partners and the burden of knowing the limitation of its codeshare partners' ability to provide accommodations would be substantial.
Because this final rule shifts the responsibility for testing the electronic respiratory assistive devices from the carriers to the manufacturers of such devices and requires carriers to permit passengers to use these devices aboard aircraft only if appropriately labeled, we do not see a need for carriers or any other entity to produce a central list of approved or disapproved devices. A passenger can simply look to see if the label on his/her electronic respiratory assistive device indicates that the device has been approved for air travel (
However, we do see a need for carriers, during the reservation process, to inform passengers who express a desire to use a respirator, ventilator, CPAP machine, or FAA-approved POC aboard an aircraft of the conditions that must be met before these devices can be approved for such use. For instance, this final rule requires carriers through their reservation agents to inform passengers of the maximum weight and dimensions of a device that can be accommodated in the aircraft cabin, the requirement that an electronic respiratory assistive device be labeled appropriately, any requirement for advance check-in, any requirement for the individual to contact the carrier before the scheduled departure to learn the expected maximum duration of his/her flight, the requirement to bring an adequate number of fully charged batteries (
The Department understands the concerns expressed by carriers regarding the difficulty and the costs associated with providing information to passengers about the limitation on the ability of its codeshare partners to accommodate users of respiratory devices. The Department also believes that it is imperative that users of electronic respiratory assistive devices receive, in advance, accurate information concerning any limitation on the ability of the carrier to accommodate their need to use such a device in the cabin of the aircraft. The Department has tried to balance these somewhat conflicting concerns/needs. The final rule requires that, in a codeshare situation, the carrier whose code is used on the flight must either advise an individual who inquires about using his/her electronic respiratory assistive device onboard an aircraft to contact the carrier operating the flight for information about its requirements for use of such a device in the cabin, or provide such information on behalf of the codeshare carrier operating the flight. For example, consider a
We sought comments in the Oxygen NPRM about operational reasons, if any, in support of permitting carriers to require a passenger with a disability to provide advance notice of his or her intention to use a battery-operated CPAP machine, an approved POC, a respirator or a ventilator aboard a flight. We also asked whether carriers should be permitted to require a passenger to provide advance notice of his or her intention to use the aircraft electrical system as well as what would be a reasonable amount of advance notice.
Industry commenters provided a number of operational reasons why they said there should be advance notice requirements for individuals who wish to use electronic respiratory assistive devices aboard a flight. These commenters explained that advance notice is needed to: (1) Ensure the device is approved for use onboard the aircraft; (2) ensure that a passenger brings an adequate battery supply to power his/her device; (3) ensure that the respiratory device is medically necessary; (4) ensure the pilot in command is apprised when a passenger is using a POC; and (5) ensure that the passenger has talked with his/her physician regarding fitness to fly with the respiratory assistive device. Many consumers also indicated that they were comfortable with an advance notice requirement for individuals who wish to use a battery-operated CPAP machine, an approved POC, a respirator or a ventilator aboard a flight. There was, however, disagreement as to what would constitute a reasonable amount of advance notice. While most consumer and industry comments indicated that 48 hours is a reasonable amount of advance notice, some industry comments asked for 96 hours advance notice for international flights and a few consumers stated that 24 hours is sufficient notification.
With respect to electrical outlets, industry comments strongly urged that electrical outlets not be relied upon by respiratory device users. According to these commenters, electronic device users cannot depend on the presence of an outlet, as most aircraft do not have electrical outlets; the electrical outlets that are available on aircraft may not be compatible with the passenger's device, as most respiratory assistive devices require more wattage; electrical outlets may be turned off during takeoff and landing; and the carrier may switch aircraft and use aircraft with no outlets at the last minute.
Based on the comments received and the Department's belief that providing 48 hours’ advance notice would not be burdensome for consumers, this final rule permits carriers to require up to 48 hours’ advance notice from individuals who wish to use electronic respiratory assistive devices aboard a domestic or international flight. The Department believes that a 48 hour advance notice is reasonable as that time period provides sufficient time for carriers to prepare for the accommodation. Further, in other sections of this Part where a carrier has been permitted to require a qualified individual with a disability to provide advance notice of his or her need for certain accommodations or of his or her disability as a condition of receiving the requested accommodation, that advance notice has been limited to 48 hours. The Department also believes, as comments provided by the industry representatives contend, that electrical outlets are generally not reliable sources of power for electronic respiratory assistive devices. Of course, if a carrier is confident that the electrical outlet on the aircraft is reliable (
The proposed rule asked questions about operational reasons, if any, for requiring passengers who request to use their respiratory assistive devices to comply with an advance check-in deadline. It also asked about issues passengers who use respiratory assistive devices would face if carriers were permitted to require an advance check-in deadline, as well as what would be a reasonable length of time for the advance check-in.
Comments provided by the industry to justify the need for advance check-in are similar to the justifications provided for advance notice (
The Department believes that it is necessary to permit carriers to require advance check-in to enable the carrier personnel to inspect the label on the electronic respiratory assistive device to ensure that it was labeled by the manufacturer in accordance with the applicable regulations and to ensure that a passenger is carrying an adequate number of properly packaged batteries to power his/her assistive device. The Department generally believes that one hour advance check-in is reasonable for both domestic and international flights, especially since “advance check-in” as used in this rule means checking in one hour before the carrier's normal check-in time for the general public. Thus, for example, if a carrier's normal check-in deadline for all passengers for an international flight is one hour before scheduled departure time, the carrier is free to require passengers who wish to use electronic respiratory assistive devices to check in two hours before scheduled departure time. That having been said, it would not be reasonable for a carrier to require one hour advance check-in in situations where a passenger is not able to check-in one hour in advance because the passenger's connecting flight arrived late. Consider the example, of a codeshare connecting itinerary from Washington, DC to Johannesburg through Rome, where carrier A operates the segment from Washington, DC to Rome and carrier B operates the segment from Rome to Johannesburg. If carrier B has a one hour advance check-in requirement and the passenger checks in for the flight to Johannesburg less than an hour before departure due to carrier A's late arrival in Rome, the passenger must be accepted on the flight to Johannesburg
In the Oxygen NPRM, we asked whether a passenger who uses a ventilator, respirator, CPAP machine or an FAA-approved POC should be given priority over users of other types of electronic equipment that are not assistive devices (
The Department is not convinced by the industry arguments opposing priority seating on the basis of costs associated with such a seating accommodation but is convinced that, for safety reasons, it would not be good policy to have any requirements concerning the use of electrical outlets when electrical outlets are not available on a number of aircraft and are generally not reliable sources of power for electronic respiratory assistive devices. Therefore, this rule does not mandate that carriers allow users of respiratory assistive devices to plug their devices into the aircraft's power supply or to provide priority seating near such outlets. The Department does encourage carriers to permit passengers to hook up the four types of respiratory assistive devices to the aircraft electrical power supply in circumstances where the carrier is confident that the electrical outlet on the aircraft is reliable (
The Oxygen NPRM sought information about whether the rule should allow carriers to require users of electronic respiratory devices to carry a certain number of batteries. It also solicited comments about what action the Department should authorize the carrier to take if a passenger does not bring a sufficient number of batteries to power an electronic respiratory assistive device or a passenger does not ensure that the batteries for the device are packaged in a manner to allow them to be transported safely in the cabin.
Consumers generally agreed that it would be appropriate to require users of electronic respiratory assistive devices to carry a sufficient number of batteries to power the device for 1.5 times the length of the flight. Some carriers suggested that users of electronic respiratory assistive devices should carry enough batteries to power the device for the length of the flight plus an additional two hours. Other comments suggested enough batteries to power the device for 1.5 times the length of the flight plus one additional battery. There were also comments recommending that the passenger's physician should indicate the appropriate number of batteries in the prescription that indicates the passenger's medical need for the device. A number of carriers asked for the authority to refuse to carry a passenger who does not have an adequate number of batteries. A few carriers asked to be able to charge the passenger who does not carry a sufficient number of batteries for the cost of any resulting emergency action that may be required. Many industry comments also suggested that PHMSA and FAA should be involved in the discussion of the appropriate number of batteries to carry in the cabin to ensure that an excessive number of batteries is not carried onboard.
After fully considering the comments received and consulting with FAA and PHMSA personnel, the Department has determined that there is no need to place a limit on the number of batteries users of electronic respiratory devices transport in the cabin of an aircraft. The FAA and PHMSA are confident that batteries that are protected against short circuits and wrapped in strong outer packagings can safely be transported in the passenger cabin provided there are sufficient approved stowage locations available. On March 26, 2007, PHMSA published a safety advisory to inform the traveling public and airline employees about the importance of properly packing and handling batteries and battery-powered devices when they are carried aboard aircraft. Federal regulations require that electrical storage batteries or battery-powered devices carried aboard passenger aircraft be properly packaged or protected to avoid short-circuiting or overheating. In its safety advisory, PHMSA suggested various practical measures for complying with the regulations and minimizing transportation risks. Recommended practices include keeping batteries installed in electronic devices; packing spare batteries in carry-on baggage; keeping spare batteries in their original retail packaging; separating batteries from other metallic objects such as keys, coins and jewelry by packing individual batteries in a sturdy plastic bag; securely packing battery-powered equipment in a manner to prevent accidental activation; and ensuring batteries are undamaged and purchased from reputable sources.
The Department has decided to allow a carrier to require an individual who uses a ventilator, respirator, CPAP machine or FAA-approved POC to bring an adequate number of fully charged batteries onboard to operate the device for not less than 150% of the expected maximum flight duration. The appropriate number of batteries should be calculated using the manufacturer's estimate of the hours of battery life while the device is in use and the information provided in the physician's statement (
The Oxygen NPRM proposed to require certificated U.S. carriers operating aircraft that conduct passenger-carrying service with at least one aircraft having a designed seating capacity of more than 60 passengers and foreign carriers operating to and from the United States that conduct passenger-carrying service with at least one aircraft having a designed seating capacity of more than 60 passengers to provide passengers free in-flight medical oxygen in accordance with applicable safety rules. The Department is committed to providing individuals dependent on medical oxygen greater access to air travel, consistent with Federal safety and security requirements. However, in order to obtain additional information about the cost of carrier-supplied in-flight medical oxygen, the Department is deferring final action on this proposal.
Under existing Air Carrier Access Act interpretation and practice, carriers are not required to make modifications that would constitute an undue burden or fundamentally alter the nature of the carriers' service. As a matter of disability law, undue burden implies that there may necessarily be some burden (a “due burden”) in accommodating someone's disability. Generally, an action is deemed to be an undue burden if it would require significant difficulty or expense on the part of the covered entity when considered in light of factors such as the overall size of the business, the financial resources of the business, the type of operation, and the nature and cost of the accommodation. There is no hard and fast rule about what is or is not an “undue burden.” The portion of the cost of carrier-supplied oxygen that would constitute an undue burden could differ among carriers and could differ from one route to another with the same carrier. We do not currently have sufficient information available to determine if requiring a carrier to provide free in-flight medical oxygen would create an undue burden. The Department will seek additional comment about the cost of carrier-supplied oxygen in a supplemental notice of proposed rulemaking (SNPRM) that it plans to issue. The preamble to the SNPRM will also discuss comments received on the Oxygen NPRM with respect to this issue. In the interim, carriers can continue to charge for in-flight medical oxygen that they choose to provide.
The subject that attracted the most comments on the Foreign Carriers NPRM—over 1100 of the 1290 received—was service animals. Interestingly, most of these comments did not pertain to anything in the Foreign Carriers NPRM's proposed regulatory text, but rather to a guidance document concerning transportation of service animals that the Department had issued in May 2003. As an informational matter, this existing guidance document was published as an appendix to the November 2004 NPRM. The paragraph in the document that was the focus of most of the comments was the following:
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. (69 FR 64393)
The Department believes that the fears of these commenters are largely unfounded. Nevertheless, in order to avoid future misunderstanding, the Department is republishing its service animal guidance later in the preamble to this final rule and has revised the language in this guidance document concerning carriage of larger, but otherwise acceptable, service animals to read as follows:
The only situation in which the rule contemplates that a service animal would not be permitted to accompany its user at his or her seat is where the animal blocks a space that, per FAA or applicable foreign government safety regulations, must remain unobstructed (
In modifying this paragraph in the guidance, we deleted the phrase concerning the potential purchase of a second seat, since there are probably no circumstances under which this would happen. If a flight is totally filled, there would not be any seat available to buy. If the flight had even one middle seat unoccupied, someone with a service animal could be seated next to the vacant seat, and it is likely that even a large animal could use some of the floor space of the vacant seat, making any further purchase unnecessary. Of course, service animals generally sit on the floor, so it is unlikely that a service animal would ever actually occupy a separate seat.
We have not taken other steps recommended by some commenters, such as mandating that airlines accommodate coach passengers with service animals in first class or reconfigure cabins. We would regard such mandates as potentially requiring a fundamental alteration of airlines' operations, and consequently outside the scope of the statutory authority for this rule.
A second category of comments concerned the relationship of service animal requirements to Part 382's coverage of foreign carriers. Many foreign carriers and their organizations stated that foreign carriers often had policies more restrictive than those of the ACAA (
As a general matter, foreign carrier policies with respect to service animals, like other foreign carrier policies, are subject to the conflict of laws waiver and equivalent alternative provisions of the final rule. Otherwise, modifying carrier policies to accommodate U.S. civil rights requirements is something foreign carriers must accept as part of their obligation to comply with U.S. law when flying to and from the U.S.
In addition to wishing to maintain existing policies restricting the access of service animals, some commenters mentioned that some countries have quarantine rules that severely delay or limit the entrance of certain animals, or effectively prohibit, certain animals—even service animals—from entering those countries. The Department agrees that, if Country S prohibits a certain kind of animal from entering, an airline serving an airport in Country S could apply for a conflict of laws waiver to be relieved of carrying such an animal to that country. Such a waiver would be country-specific; however. If the same airline is asked to carry the same animal to Country R, which does not have such a prohibition, the carrier would have to transport the creature. The final rule also requires carriers to promptly take all steps necessary to comply with such foreign regulations as are necessary to legally transport service animals from the U.S. into foreign airports (
Commenters mentioned that some persons may have religious or cultural objections to traveling in proximity to certain service animals. Other commenters raised the issue of passengers who may have allergies to certain animals. It has long been a principle of the Department's ACAA and other disability regulations that it is improper for a transportation provider to deny or restrict service to a passenger with a disability because doing so may offend or annoy other persons (see for instance current 14 CFR 382.31(b) and section 382.19(b) of the final rule). This principle is again articulated in the final rule's service animal section. Only if a safety problem amounting to a direct threat can be shown is restricting access required by Part 382 justifiable.
This principle applies to concerns about passengers who have allergies not rising to the level of a disability or cultural or personal objections to being on the same aircraft with a certain service animal. Their discomfort must yield to the nondiscrimination mandate of the ACAA. As stated in the Department's service animal guidance, to which we have added language concerning the handling of allergy issues, carriers should do their best to accommodate other passengers' concerns by steps like seating passengers with service animals and passengers who are uncomfortable with service animals away from one other. We note that, on flights operated by foreign carriers that are not subject to these rules, the carriers may, of course, apply their own policies with respect to carriage of service animals.
A number of commenters objected to the requirement that carriers accept animals as service animals on the basis of the “credible verbal assurances” of passengers, especially in the absence of credentials from a training school that the carrier recognizes. Under U.S. law (the ADA as well as the ACAA), it is generally not permissible to insist on written credentials for an animal as a condition for treating it as a service animal. It would be inconsistent with the ACAA to permit a foreign carrier, for example, to deny passage to a U.S. resident's service animal because the animal had not been certified by an organization that the foreign carrier recognized. When flying to or from the United States, foreign carriers are subject to requirements of U.S. nondiscrimination law, though carriers may avail themselves of the conflict of laws waiver and equivalent alternative provisions of this Part. We acknowledge that some foreign carriers may be unused to making the kinds of judgment calls concerning the credibility of a passenger's verbal assurances that the Department's service animal guidance describes, and which U.S. carriers have made for over 17 years. However, the comments do not provide any persuasive evidence that foreign carriers are incapable of doing so or that making such judgment calls will in any important way interfere with the operation of their flights.
A number of carriers commented that making provision for service animals on long (
Another important issue that a number of commenters raised concerned “emotional support animals.” Unlike other service animals, emotional support animals are often not trained to perform a specific active function, such as pathfinding, picking up objects, carrying things, providing additional stability, responding to sounds, etc. This has led some service animal advocacy groups to question their status as service animals and has led to concerns by carriers that permitting emotional support animals to travel in the cabin would open the door to abuse by passengers wanting to travel with their pets.
The Department believes that there can be some circumstances in which a passenger may legitimately travel with an emotional support animal. However, we have added safeguards to reduce the likelihood of abuse. The final rule limits use of emotional support animals to persons with a diagnosed mental or emotional disorder, and the rule permits carriers to insist on recent documentation from a licensed mental health professional to support the passenger's desire to travel with such an animal. In order to permit the assessment of the passenger's documentation, the rule permits carriers to require 48 hours' advance notice of a passenger's wish to travel with an emotional support animal. Of course, like any service animal that a passenger wishes to bring into the cabin, an emotional support animal must be trained to behave properly in a public setting.
We have also noted a concern that there could be differences, in the airport terminal context, between the ACAA regulations that apply to airlines, and their facilities and services, contrasted with public accommodations like restaurants and stores. The DOJ Title III rules for places of public accommodation govern concession facilities of this kind. As a consequence, a concession could, without violating DOJ rules, deny entry to a properly documented emotional support animal that an airline, under the ACAA, would have to accept. On the other hand, nothing in the DOJ rules would prevent a concession from accepting a properly documented emotional support animal. We urge all parties at airports to be aware that their services and facilities are intended to serve all passengers. Airlines, airport operators, and concessionaires should work together to ensure that all persons who are able to use the airport to access the air transportation system are able equally to use all services and facilities provided to the general public.
Because they make for colorful stories, accounts of unusual service animals have received publicity wholly disproportionate to their frequency or importance. Some (
While it is possible that foreign air carriers may have safety-related reasons for objecting to service animals other than dogs, even ones that have been successfully accommodated on U.S. carriers, these reasons were generally not articulated in their comments to the docket. Nevertheless, to give foreign carriers a further opportunity to raise any safety-related objections specific to foreign airlines to carrying these animals, the final rule does not apply the requirement to carry service animals other than dogs to foreign airlines. However, foreign carriers could not, absent a conflict of laws waiver, impose certification or documentation requirements for dogs beyond those permitted to U.S. carriers. We intend to seek further comment on this subject in the forthcoming SNPRM.
A few comments suggested adding, to the section prohibiting carriers from requiring passengers to sign waivers or releases of liability, language specifically applying this prohibition to the loss, injury, or death of service animals. We believe that this is a sensible suggestion, and we have added the language.
The Foreign Carriers NPRM proposed that, similar to the current rule, carriers would have to make certain information available to passengers with disabilities upon request concerning the accommodations that were available to them for a particular flight. This includes the location of seats with a movable armrest as well as seats (
Disability community comments supported these proposals, which did not propose significant substantive changes from the provisions of the ACAA that have been in effect since 1990. Some carrier comments objected to the provision to identify seats with movable armrests, saying that, given the variety of cabin configurations and aircraft, it would be too hard and too expensive to be able to know where these seats are located.
The final rule does not mandate that carriers reconfigure cabins on all aircraft in order to meet this requirement, as some commenters mistakenly appeared to conclude. Rather, carriers would provide the best information available at the time a passenger made a reservation or inquiry. If the location of movable armrest seats on the aircraft actually providing the flight did not match the information previously provided to the passenger, gate and flight crew personnel could modify the passenger's seating assignment prior to or at the time of boarding in order to ensure that the passenger could transfer to a seat with a movable armrest.
A carrier could make the necessary information about seating configurations of each aircraft available to its personnel for this purpose, noting locations of movable armrest seats. We note that there are at least two commercial Web sites that make detailed information on characteristics of each seat of each configuration of most carriers' various aircraft models publicly available. While these sites do not include information on movable armrests, the detailed information they make available (
Another proposal carried over from the existing rule into the Foreign Carriers NPRM would require carriers to make a copy of Part 382 available at all the airports that they serve (for flights to the U.S., in the case of foreign airports). The Department sought further comment on this matter in the DHH NPRM. We also proposed to require all carriers to give passengers information on how to obtain both a copy of Part 382 in an accessible format and disability-related assistance from the Department (
A few disability community comments said that the rule should specify that the document be made available in other accessible formats as well as hard copy. Some foreign carrier comments objected to making copies of a U.S. regulation available, though others did not. Most foreign carriers, however, opposed any requirement that they have copies of Part 382 available at airports in accessible formats as unreasonably burdensome and of little practical use to passengers who are not already aware of this regulation. Some foreign carriers objected to being required to have a copy of Part 382 at the foreign airports from which they fly to the U.S., on the grounds that the foreign jurisdictions have their own disability-related requirements for carriers serving them. Virtually all of them took the position that any passenger desiring a copy of Part 382 in an accessible format should obtain it from this Department rather than from a carrier. Some suggested that passengers should be made aware of Part 382 and its availability from the Department at the time of booking or at some other point before they actually go to the airport. One foreign carrier did not object to having a copy of Part 382 available at airports in its home country from which it flies to the U.S., but it did object to any requirement that it also have copies available at third-country airports that could be the U.S. passenger's origin or final destination. Another made a similar argument concerning airports that are endpoints of flights operated on a codeshare basis with a U.S. carrier.
While we agree that carriers should make a print copy of the rule available, so that passengers can refer to it to assist them in resolving any problems that arise at the airport, the final rule will not require copies to be made available in other accessible formats, or in languages other than English. We also will not adopt the proposed requirement in § 382.45 that carriers provide information on the Department's Disability Hotline service or its Aviation Consumer Protection Division to passengers with disability-related complaints or concerns. Such a requirement is not necessary here, as other sections of the rule require carriers to tell passengers of their right to contact the Department as part of the resolution of complaints (
Probably the most important proposal in this portion of the NPRM would require carriers and their agents to make their Web sites accessible to people with vision impairments and other disabilities. Web sites are an increasingly important way in which passengers get information about airline service and make reservations. Some carriers make discounts available to Web site users, or charge extra fees to persons who make reservations by other means. Disability community commenters strongly supported the proposed requirements. Many carriers and carrier organizations opposed it, primarily on the grounds that it would be too difficult and expensive to accomplish. Many of these comments said the Department had underestimated the cost of Web site accessibility.
The Department continues to believe that Web site accessibility is extremely important to nondiscriminatory access to air travel for people with disabilities, and we note that many existing carrier Web sites provide a degree of accessibility. However, in order to obtain additional information about the costs and any technical issues involved, the Department is deferring final action on this proposal and seeking additional comment in the SNPRM that we are planning to issue. The preamble to the SNPRM will discuss comments on Web site accessibility and the issues they raise in greater detail. In the meantime, in order to comply with the general nondiscrimination requirement of Part 382, carriers will be prohibited from charging fees, or not making Web fare discounts available, to passengers with disabilities who cannot use inaccessible Web sites and therefore must make phone or in-person reservations.
We proposed in the DHH NPRM to require carriers to ensure that the service and response times are equal for TTY information and reservation lines and non-TTY information and reservation lines, including the provision of a queue for the former if one is provided for the latter. (Since 1990, U.S. carriers that offer telephone reservations and information service to the general public have been required by § 382.47 to offer TTY service as well.) TTY users should not be subject to longer wait times than other callers. We stated our belief that the cost to carriers of installing queuing features on their TTY lines would not be high. We solicited comments on this proposal.
The individuals and disability organizations that commented on this issue mostly supported all of our proposals. The carriers and carrier associations that filed comments expressed strong reservations about our proposal. Some foreign carriers opposed TTY requirements on the grounds that TTY access is technically infeasible in many countries. Some opposed the requirement of a queuing system for TTY calls, claiming that such systems are in fact quite costly and that the expense is not justified given the low incidence and low frequency of TTY calls that they receive (
The purpose of § 382.43 is to put deaf and hard of hearing passengers on a substantially equivalent footing with the rest of the public in their ability to communicate with carriers by telephone regarding information and reservations. We aim to ensure substantial equivalence in both access to any carrier and wait time if an agent is not available when a connection is first made.
Regarding access, both the comments and our own further investigations into voice relay services have persuaded us that we need not require carriers to make TTY service available
Regarding wait time, the comments and our own experiments with voice relay systems have persuaded us not to require carriers that use TTYs to implement a queuing system for TTY calls even if they do maintain one for calls from the rest of the public. Calls from a TTY to a carrier via a voice relay service are treated exactly the same as calls from conventional telephones. If an agent is available to take the call, the caller is connected to the agent. If not, if the carrier has a queuing system the call goes into the queue along with non-TTY calls. (If the carrier does not have a queuing system, any caller gets a busy signal.) Therefore, a TTY caller who calls the carrier's TTY number and gets a busy signal can hang up and immediately try the carrier's general public number through a voice relay service, where all calls receive identical treatment. We consider the timing in this scenario to be “substantially equivalent” to the timing for the rest of the public, the extra call notwithstanding. We do not intend for “substantially equivalent” to mean “exactly the same.” As long as disparities in wait times between TTY users and the general public remain both low and infrequent, we will consider the treatment of these groups to be substantially equivalent. Of course, we can and will investigate allegations of routine or lengthy disparities and require corrective action where appropriate.
We are concerned, moreover, that given the reportedly high cost of implementing a TTY queuing service
We proposed in the DHH NPRM to broaden the existing requirements for accommodating individuals who are deaf and hard of hearing that apply to video displays on aircraft. First, we proposed to require U.S. and foreign carriers to caption all safety and informational videos on aircraft within set periods of time. The current rule, § 382.47(b), only requires that U.S. carriers make safety briefings on the aircraft that are presented by video accessible to persons who are deaf or hard of hearing, and it exempts cases where open captioning or an inset would interfere with the video presentation so as to render it ineffective or if the captioning or inset would itself be unreadable. The proposed rule, applicable to foreign carriers as well, would eliminate the exemption, require high-contrast captioning of informational videos as well as safety videos, require compliance for safety videos within 180 days of the rule's effective date, and require compliance for informational videos within an additional 60 days. Until the new rule's compliance dates, U.S. carriers would remain bound by the provisions of the existing rule. We solicited comment on the elimination of the exemption clause, on extending the captioning requirement to informational displays, and on the technical feasibility of captioning all safety and informational videos, DVDs, and other audio-visual displays in such a way that they will still be useful to individuals without hearing disabilities. We also solicited comment on the proposed timetable.
Second, we proposed to require U.S. and foreign carriers to provide high-contrast captioning on entertainment videos, DVDs, and other audio-visual displays on new aircraft, or aircraft ordered after the rule's effective date or delivered more than two years after that date. Aircraft on which the audio-visual machinery is replaced after that date would also be considered new for purposes of § 382.69. We did not propose requiring the captioning of entertainment videos on existing aircraft, believing that the costs of such a requirement would exceed the benefits that would follow. We solicited comment on the costs and feasibility of both modifying and replacing equipment on existing aircraft and complying with the proposed rule with new aircraft.
The carriers and carrier groups that filed comments generally objected to the proposals. RAA opposes requiring videos on existing aircraft to be captioned, contending that the costs of modification would greatly exceed any potential benefits. One foreign carrier contended that this provision should not apply to foreign carriers. Some faulted the Department for not distinguishing between English and non-English products and maintained that the latter should be excluded from any captioning requirement. Some carriers argued that the exact content of any safety briefing provided by video can always be found in print in each seat pocket and maintain that the content of informational videos can be found in print both in seat pockets and elsewhere in the cabin. Most if not all carriers and carrier groups objected to allowing less time for compliance with the safety-video requirement than with the requirement for informational videos; some maintained that rather than a specific deadline, carriers should be permitted to comply if and when they replace video equipment in the normal course of operating the aircraft. Some claimed to have no control over the content of informational videos provided by third parties. Some opposed the requirement that captioning be high-contrast—
All of the carriers and carrier groups opposed requiring captioning for all in-flight entertainment, advancing several arguments: With existing technology, the costs and difficulties of compliance are prohibitive; for overhead screens, the size of captioning relative to the size of the screen would degrade the entertainment value of the video presentation for all passengers; on individual seat screens, current technology and cost do not permit the installation of systems that would let individual passengers choose whether to caption individual programs; captioning of all entertainment videos, regardless of what type of screen the aircraft features, is too costly and would increase the price of air transportation; in-flight entertainment is beyond the Department's jurisdiction to regulate, as it does not come within the purview of access to air transportation; film owners' restrictions on DVDs could make compliance impractical to impossible; in some cases, government censorship could make compliance illegal; the proposal does not specify whether or not captioning would be required in languages other than English, which would increase the costs and difficulties of complying. Many carriers endorsed the comments of the World Airline Entertainment Association (“WAEA”), which are summarized below, and many called for inclusion in any provision adopted of an exemption like the one in the current rule for safety videos—
The individuals and disability organizations that filed comments unanimously supported the proposed rule except insofar as they believed the compliance dates to be too far in the future. None of these commenters addressed the costs or difficulties of achieving compliance.
The WGBH Educational Foundation's National Center for Accessible Media (“the Center”), which reported that it is conducting a study on ways of making airline travel more accessible to passengers with sensory disabilities, filed comments on this proposal. The Center maintained that all safety videos are already being captioned and that pre-recorded informational videos are readily captionable, thus making the existing exemption unnecessary. It maintained that due to current technologies, the rule need not specify white letters on a black background to ensure that captions can be read, and given the number of production techniques available, a requirement that displayed text be “legible” or “readable” should suffice. The Center stated that the next generation of in-flight entertainment (“IFE”) systems can be designed to accommodate captioning in various ways and that it is advances in these systems, not new aircraft, that will make captions readily available. It therefore recommended that the rule be tied to changes in IFE systems and not the purchase or modification of aircraft. Further, the Center reported that captioning on next-generation IFE systems is a work in progress based on new means of sending video signals through the aircraft cabin. Caption data for broadcast and cable television, it stated, are incompatible with the digital signals being routed to seat screens in the newest IFE systems, and while the transformation of these data for use on in-flight systems can be developed, the process is not yet automatic, nor is it trivial. A further complication, according to the Center, lies in the variety in types of video signals being provided in-flight. The Center stated that despite the small size of seat screens, properly rendered captions can be as effective on these screens as they are on home television sets. It reported that the portable IFE systems that some carriers use as alternatives to installed systems—for example, DVD players or hard disks—can accommodate closed captions as readily as installed systems can.
As mentioned above, the comments filed by WAEA were endorsed by many of the carriers. WAEA stated that its members include both airlines and suppliers to the IFE industry, the latter including aircraft manufacturers, major electronics manufacturers, motion picture studios, audio/video post-production labs, broadcast networks, licensing bodies, communications providers, and others, worldwide. WAEA took the position that some of the proposed captioning requirements and implementation timelines would impose undue and unacceptable financial burdens on the carriers and that some of the requirements are not even technologically or operationally feasible given the following: technical limitations of both old and new IFE systems, variations among proprietary IFE systems currently in service and being installed, limited space for and readability of captioning on both seat screens and on more distant communal screens, the intrusion factor of open captions for passengers without a sensory disability, limited cabin-server storage for additional captioned video files to complement up to eight languages offered onboard, and lengthy aircraft retrofit and fleet order cycles and IFE system design and certification timelines.
Among other things, WAEA agreed with the Center that the implementation of the proposed new requirements should be tied to IFE system development and not the aircraft. Given the limitations of video files that may be available on the aircraft, WAEA contended that the rule should apply only to English-language videos and only to entertainment videos exhibited “while in United States territory.” WAEA reported that current IFE systems are typically based on proprietary rather than standard architectures and technologies and that they were not designed to accommodate broadcast closed-captioning signals and technologies. Given the limitations of IFE screens in terms of their size and distance from the viewer, WAEA opposed the requirement that captioning be white letters on a black background and supported instead the choice of using the same process as subtitling, which, it said, provides readable characters while keeping most of the picture visible and poses fewer risks of copyright infringement.
Based on the comments, we have made several changes to the final rule. We are retaining the requirement that safety and informational audio-visual displays played on the aircraft be high-contrast captioned, but we have revised the definition of that term to permit the use of captioning that is at least as easy to read as white letters on a consistent black background. The requirement will not apply, however, to informational videos that were not created under the carrier's control. The captioning need only be in the predominant language or languages in which the carrier communicates with passengers on the flight. If the carrier makes announcements both in English and another language, captions must be in both languages. We are retaining the compliance dates set forth in the DHH NPRM, based among other things on the Center's report that all safety videos are already being captioned and that pre-recorded informational videos can be captioned readily. This report also undercuts the carriers' arguments for retaining the current rule's exemption for cases in which captioning would interfere with the video presentation so as to render it ineffective or would itself be unreadable.
We have reluctantly concluded, though, that we cannot adopt a regulation governing entertainment displays at this time. We reject the contention that access to in-flight
Notwithstanding our authority to regulate, however, the record in this proceeding does not provide a basis for adopting a captioning requirement for IFE at present. We cannot conclude on the basis of the comments that providing high-contrast captioning for entertainment displays is technically and economically feasible now, nor can we ascertain a date by which it most likely will be. Therefore, we will shortly be issuing an SNPRM to call for more current and more complete information on the cost and feasibility of providing high-contrast captioning for entertainment displays, information not only on current technology but also on the nature and pace of technological developments. Regarding the latter, we are aware that on March 6, 2007, after the conclusion of the period for commenting on the DHH NPRM. WAEA's Board of Directors adopted a new specification as part of an ongoing effort to establish a standard digital content delivery system for IFE. This new specification reflects progress toward development of a common methodology for delivering digital content and greater interoperability for in-flight entertainment systems.
We proposed in the DHH NPRM to require carriers to provide the same information to deaf, hard of hearing, and deaf-blind individuals in airport terminals that they provide to other members of the public. We proposed that they must provide this information promptly when such individuals identify themselves as needing visual or auditory assistance, or both. The proposed rule set forth the following non-exhaustive list of covered topics: flight safety, ticketing, flight check-in, flight delays or cancellations, schedule changes, boarding, the checking and claiming of baggage, the solicitation of volunteers on oversold flights (
We explained in the DHH NPRM that we were proposing a performance standard, namely “prompt,” rather than requiring carriers to use a particular medium (
The carriers and carrier groups that filed comments all supported the requirement that passengers needing special transmission of this information identify themselves to carrier personnel. Most asked the Department to use “timely” as a standard rather than “prompt.” Some complain that any such standard is too subjective to provide effective guidance. One carrier suggested that the emphasis should be not on how swiftly carriers can transmit the information to the disabled passenger but on when the passenger needs to have it. Carriers shared considerable concern over the costs of compliance, both in terms of having personnel available at all of the areas listed in the proposal and in terms of potential technical solutions. One carrier opposed making the requirements applicable at foreign airports, arguing that foreign carriers are not likely to have the leverage they would need to comply. Several contended that the cost estimates in the initial Regulatory Evaluation were unrealistically low. Some proposed limiting the required “promptness” to individuals with either hearing or visual impairment, not both, who are traveling without a companion; one stated that it communicates the information at issue here to deaf-blind passengers through their traveling companions. Some objected to the list of types of information that must be provided promptly. (The list represents an expansion of the list in the existing rule, 14 CFR 382.45(c), which up to this time has applied only to U.S. carriers, and which is explicitly not exhaustive.) One U.S. carrier association was particularly concerned about the financial burdens that it assumes the rule would impose on its regional-airline members. It asserted that adoption of much of the technology discussed in the proposal is impossible at small airports and states that in any case its members report very few deaf-blind passengers flying from these airports. The costs of compliance, it contended, far exceed any putative benefits and could result in the reduction or even elimination of service.
The individuals and disability organizations that filed comments had a very different perspective. Most of these commenters objected to the requirement of self-identification. Many took the position that carriers should have reliable methods in place for conveying information to all passengers at all times. Several supported requiring simultaneous visual transmission of any information disseminated over a public address system. Some related that in the past self-identification has failed to result in this type of information's being transmitted at all, much less “promptly” or even in a “timely” manner.
Based on the comments, we have made several changes to the proposal in the final rule. First, we are adding the language that we inadvertently omitted in the proposed rule to limit the requirements for foreign carriers at foreign airports to areas that these carriers own, lease, or control. Second, we have determined that it is not appropriate at this time to require carriers to provide the information covered in § 382.53 to deaf-blind passengers. The information at issue is constantly changing, and we know of no methods of communicating with deaf-
Third, we have determined that the costs of requiring prompt transmission of the covered information at all of the terminal areas listed in the DHH NPRM exceed the benefits. We are therefore limiting the requirement to gates, ticketing areas, and customer service desks. For purposes of the rule, a customer service desk is a location in the terminal that a carrier dedicates to addressing customer problems that are not addressed at the gate or the ticket counter, most commonly the rerouting of passengers affected by a delayed or canceled flight. Fourth, we are adding a provision for information about baggage. This information must be transmitted to passengers who have identified themselves as having hearing or vision impairment no later than the time that it is transmitted to the other passengers. For example, assuming that information on collection of baggage is given to arriving passengers at the baggage claim area, carriers can comply with this rule by giving the information to self-identifying passengers before the others—
We are retaining the self-identification requirement, because we believe that requiring simultaneous visual transmission of the information along with each and every public-address announcement would saddle carriers with undue costs. In this regard, passengers with impaired hearing or vision must identify themselves to carrier personnel at the gate area or the customer service desk even if they have already done so at the ticketing area.
We are also retaining the “prompt” standard. It requires carriers to provide the information to self-identifying passengers with hearing or vision impairment as close as possible to the time that the information is transmitted to the general public. For example, when gate agents announce a flight cancellation or gate change, if they provide the information to self-identifying passengers with impaired hearing or vision either immediately before or immediately after they make a general announcement, the carrier will be complying with § 382.53. If a gate change is announced fifteen minutes before a scheduled departure but the gate agents do not provide effective notice to a passenger with impaired hearing until it is too late for that individual to reach the gate in time to board, or if they delay providing the information long enough that the individual reasonably believes that he or she will probably miss the flight, the carrier is violating the rule. The rule requires that carrier personnel notify a self-identifying passenger with impaired hearing that he or she has been paged immediately after making the announcement over a public address system unless the same information is displayed visually on a screen. If a flight is oversold and the carrier is soliciting volunteers to relinquish their seats in exchange for compensation, to comply with this rule carrier personnel must notify self-identifying passengers with impaired hearing or vision in time for them to take advantage of the offer—
As for passengers with impaired vision, for example, the rule requires carriers to notify a visually impaired passenger orally where his or her baggage can be claimed if the information is otherwise only posted on visual displays, and the notification must take place no later than the posting. At the time when a visually impaired passenger identifies himself or herself to an agent at the gate, the rule requires the agent to notify him or her of any change that has occurred that affects his or her itinerary even if the change has already been announced and is now posted on a screen. If a gate change is posted on the screen but not announced orally, as soon as possible after the posting a gate agent must notify any passenger who has identified himself or herself as having impaired vision.
We are retaining the entire list of types of information that carriers must provide even though it contains more items than the list in the current rule. In our view, since the list in the current rule is expressly non-exhaustive, the new items on the list in this section were never excluded obligations. Having them explicitly stated informs the carriers more effectively of their responsibilities.
In the DHH NPRM, we proposed a somewhat similar requirement for providing information aboard aircraft to the proposed requirements pertaining to information in airport terminals. U.S. and foreign carriers would be required, upon request, to provide deaf, hard of hearing, and deaf-blind individuals with the same information provided to other passengers in a prompt manner. We again proposed a non-exhaustive list of types of information to be covered by the rule: flight safety, procedures for take-off or landing, flight delays, schedule or aircraft changes that affect the travel of persons with disabilities, diversion to a different airport, scheduled departure and arrival times, boarding information, weather conditions, beverage and menu information, connecting gate assignments, baggage claim, individuals being paged by airlines, and emergencies (
The carriers and carrier groups that filed comments generally objected to the proposal as too broad and too prescriptive, particularly the expanded list of types of information for which accommodation would be required. The Air Transport Association of America (“ATA”) argued that the expanded list would create a tension between crew members' obligations to provide information to disabled passengers and their duties related to safety and concluded that if busy crew members are further burdened with having to transcribe every in-flight announcement for passengers with impaired hearing, only safety announcements mandated by the FAA will be made. Such a result, according to ATA, would work to the detriment of all passengers and constitute an undue burden not required by the ACAA. ATA proposed limiting the covered information to critical flight and safety information. Some commenters contended that they (or their members) already give passengers with hearing or vision impairment the same relevant information that they announce aloud. The International Air Transport Association (“IATA”) contended that the proposal would not allow carriers enough flexibility to make
The individuals and disability organizations that filed comments unanimously supported the proposed rule, including the expanded list of topics. Most objected to the requirement that individuals with hearing impairments identify themselves to the carrier and request accommodation. Most supported a requirement that all oral announcements made aboard the aircraft be simultaneously transmitted visually; some claimed that in practice, sporadic requests for accommodation are not honored.
With minor clarifying changes to the language of the proposed rule, we are adopting its substance as proposed. As with § 382.53, however, we have determined that it is not appropriate at this time to require carriers to provide the information covered in § 382.119 to deaf-blind passengers. As stated above, the information is constantly changing, and we know of no methods of communicating with deaf-blind individuals that allow for prompt transmission of information and do not require highly specialized training. Also as with § 382.53, we encourage members of the public to petition the Department for a rulemaking to amend this rule if and when technology becomes available that would permit the prompt and efficient transmission of the information to deaf-blind individuals.
We are also following our approach in § 382.53 with regard to maintaining the self-identification requirement, the standard of promptness, and the list of types of information that the rule covers. Here, as there, we believe that at this time, requiring simultaneous visual transmission of the information along with every spoken announcement would saddle the carriers with undue costs. Here, as there, carriers must provide the information to self-identifying passengers with hearing or vision impairment as close as possible to the time that the information is announced aloud. Here, as there, expanding the list in the current rule does not impose additional requirements on U.S. carriers, because the current rule's list is explicitly non-exhaustive and would thus cover the items added here. Specifying our expectation informs the carriers more completely of what the rule encompasses.
Finally, the carriers' concerns that compliance with the requirements of section 382.119 could keep their flight crews from performing their duties related to safety are misplaced. The rule expressly relieves the crew from complying when this would interfere with their safety duties under FAA and foreign regulations. There is similar language in § 382.53, though, given the duties of such personnel as gate agents, ticket agents, and baggage claim personnel, the likelihood of any conflict between normal duties and legally-mandated safety duties is probably lower than in the air crew context, outside, perhaps of an unusual emergency situation.
The Foreign Carriers NPRM proposed that carriers operating aircraft with 19 or more passenger seats must train its personnel to proficiency concerning ACAA requirements and providing services to passengers with disabilities. One element of the carrier's training efforts would be to consult with organizations representing persons with disabilities in developing training programs. Refresher training to maintain proficiency would also be required. Complaints resolution officials (CROs) would have to be trained in their duties by the effective date of the rule. Training for current employees would generally have to be accomplished within one year. New crewmembers would have to be trained before starting their duties, and other new employees would have to be trained within 60 days of starting their duties. For foreign carriers, training requirements would apply only to employees who are involved with flights to and from U.S. points. Carriers would incorporate procedures implementing Part 382 requirements into their manuals, but they would not need to submit these materials or a certification of compliance to DOT for review.
Disability community commenters generally supported the proposed training requirements, though several said that U.S. carriers were not providing adequate training. Some commenters said that they had rarely, if ever, encountered carrier personnel who, when asked, recalled getting ACAA training. Some of these commenters, as well as some carriers, asked for a stronger DOT role in providing training (
Some foreign carriers mentioned that they already had disability-related training programs for their employees, and suggested that these programs should be recognized as equivalent to the proposed requirements. A few foreign carriers said that the proposed training time frames were too short. Other foreign carriers objected to training their employees to meet U.S. requirements, since they already trained their personnel to meet applicable requirements of their home countries. Several of these commenters particularly objected to consulting with disability groups, some suggesting that the requirement should be waived if they could not find a local disability group to consult. (Disability groups expressed different views on this point, most suggesting such a waiver was unnecessary because the U.S.-based staff of the airline could consult with U.S. groups if necessary, while another group suggested such a waiver could be acceptable if the carrier showed it had made good faith efforts to consult.) An association of U.S. carriers cautioned that any waiver available to foreign carriers should also be available to U.S. carriers.
The Department regards thorough training of carrier personnel who interact with passengers with disabilities as vital to good service to those passengers and to compliance with the ACAA. We recognize that many foreign carriers already have disability-related training programs. Since specific ACAA requirements do not yet apply to these carriers, it is very likely that these training programs would need to be amended, for those personnel who serve flights to and from the U.S., in order to ensure that the personnel understand ACAA requirements. Personnel serving U.S.-related flights would not have to be retrained from scratch, only provided additional training on ACAA-specific matters. To respond to concerns about the time it would take to train employees, the final rule provides foreign carriers a year from the effective date of the rule to complete the process. Since there will be a year between publication of the final and its effective
While U.S. disability groups can undoubtedly be a useful resource for both U.S. and foreign carriers, we do not believe it would be realistic to require foreign carriers to seek out U.S. disability groups for consultation (in many cases, U.S.-based personnel of these carriers would be operations staff, not management and training officials). Consequently, we have modified the language of this provision to refer to seeking disability groups in the home country of the airline. If home country disability groups are not available, a carrier could consult individuals with disabilities or international organizations representing individuals with disabilities. We do not believe that a waiver provision is needed, since it is unlikely that a carrier would be completely unable to find anyone—home country or international disability groups, individuals with disabilities—with whom to consult. As a matter of enforcement policy, however, the Department would take into consideration a situation in which a carrier with an otherwise satisfactory training program documented it had made good faith efforts to consult but was unable to find anyone with whom to consult.
The Department has posted a model training program based on the current Part 382 at
We understand the concern of disability group commenters that some carrier personnel do not seem to have been trained to proficiency or at all. In an industry environment in which there is considerable personnel turbulence, carriers and the Department must both be vigilant to ensure that training takes place as required.
Because of the concern that some carrier employees may not be current in their knowledge of ACAA requirements, the final rule will require refresher training at least every three years. Carriers will have to develop a program for this purpose. Refresher training is intended to assist employees in maintaining proficiency, both by reminding them of ACAA requirements and their carriers' procedures for implementing them and by providing updated information about new developments, additional guidance etc. While the Department will not require such programs to be submitted for approval, carriers will be required to retain records concerning both initial and refresher training, including the instructional materials and individual employee training records, for three years. These records will be subject to inspection by the Department.
We also think that it is important to understand the relationship between compliance with the “trained to proficiency” requirement and compliance with other provisions of the rule. In the Department's view, a pattern or practice by a carrier of noncompliance with operational provisions of the ACAA rule (
Carriers generally supported the proposal to not require submission of material in manuals and procedures to DOT for review. The Department believes, based on the experience of reviewing carrier submissions at the time the original Part 382 went into effect, that mandating such submissions is not productive, so we will not impose such a requirement. Some disability community commenters supported the idea of submitting certificates of compliance. However, the Department believes that doing so would result in increasing information collection burdens without giving the Department a significant additional amount of information about carriers' actual compliance status. We believe it is sufficient for the Department to be able to review materials carriers have on file as part of our compliance and enforcement process.
In the DHH NPRM, we proposed to require carriers to train their employees to recognize the requests for communication accommodation by passengers with impaired vision or hearing and to use the most common methods that are readily available for communicating with these passengers. The required training would be for proficiency in basic visual and auditory methods for communicating with passengers whose disabilities affect communication. We explained that we were not proposing to require carriers to train their employees to use sign language. Rather, employees would be trained in methods that are readily mastered and of which one or more can be used as required to communicate with an individual who is deaf or hard of hearing (
The carriers and carrier associations that filed comments generally characterized the proposed requirements as far too vague and potentially too costly. Most objected to requiring training for all personnel and contractors that deal with the traveling public. One carrier suggested that a better approach would be to train all personnel to better awareness of communications needs and give carriers discretion to choose how to satisfy those needs—for example, by ensuring that proficient communicators can be made available on short notice. Foreign carriers generally argued that any training requirement should only apply to their employees in the United States. One carrier association noted that a person without training would naturally resort to writing to communicate with a deaf person and wondered what more would be taught in formal training. One carrier questioned the existence of universally established or internationally accepted methods in which to train carrier personnel. RAA asked that training requirements not apply to aircraft carrying 30 or fewer passengers and that training to communicate with deaf-blind individuals not be required.
The individuals and disability organizations that filed comments all supported training requirements. One organization argued that training in sign language should be required as well as training in how to operate any technology used to provide visual
In the final rule, we are retaining the proposed training requirement with some clarification and one addition. Carriers must train those employees who come into contact with passengers whose hearing or vision is impaired or who are deaf-blind both to recognize these passengers' requests for accommodation in communicating and to communicate with these passengers in ways that are common and readily available. For example, employees should be able to communicate with passengers whose hearing or vision is impaired via written notes or clear enunciation, respectively. We are adding a requirement that the training also cover deaf-blind passengers. Examples of communication accommodations for the latter include passing out Braille cards (which this rule does not require), reading any information sheet that a passenger provides, and communicating with the passenger through an interpreter. Given that what we are requiring is fairly rudimentary, the training costs should not be high, nor should compliance otherwise be burdensome.
Like the existing rule, the Foreign Carriers NPRM emphasized the role of CROs. These are individuals trained to be the carrier's experts in ensuring that carrier personnel correctly implement ACAA requirements and that problems of passengers with disabilities are resolved in a way that is consistent with Part 382. The purpose of having a CRO is to resolve passengers' problems as quickly as possible, without resort to formal DOT enforcement procedures and, we hope, in many cases, before a violation occurs.
Under the Foreign Carriers NPRM, there would have to be a CRO available to passengers with disabilities at every airport the U.S. carrier serves and at every airport where a foreign carrier operates a flight to or from the U.S., whether in person or by phone. Carrier personnel would have to refer a passenger with a disability-related complaint or problem to a CRO. The Foreign Carriers NPRM also would tell carriers to provide the number of the DOT Disability Hotline to such passengers. CROs have the authority to direct other carrier personnel (except pilots-in-command with respect to safety matters) to take actions to resolve problems so as to comply with the ACAA. Carriers and CROs would have to respond to consumer complaints in a timely manner.
Disability community comments generally supported the proposed rule, though some comments suggested that CROs and carriers should have to respond faster to consumer complaints than the Foreign Carriers NPRM proposed. Some carriers, on the other hand, thought that the time frames in the Foreign Carriers NPRM were too short, especially if a lengthy investigation were needed in order to respond. Disability community commenters also strongly supported the proposal to direct carriers to refer passengers who raise disability-related issues to a CRO, since many individuals may not know about the availability of CROs otherwise.
A number of carriers said that they thought that having CROs available to passengers at every airport was not cost-effective and that existing customer service offices could meet the need. One foreign carrier thought that its personnel could not be successfully trained to carry out the CRO role. Some carriers thought that they should not have to refer passengers to the DOT Hotline, saying that this would undermine the purpose of having CROs resolve problems as close to the scene of the action as possible. Some commenters objected to providing TTY service as a means of permitting hearing-impaired passengers to contact a CRO, saying that this was impractical in some places (
The final rule retains the role and functions of the CRO. Our experience supports the proposition that the use of CROs is crucial to prompt and efficient solution of passengers' problems. However, we are making a few clarifications and changes in response to comments. Carriers may use other accessible technologies in lieu of TTYs to permit hearing-impaired passengers to communicate with CROs. The proposed requirement for carriers to refer passengers to the DOT Hotline has been dropped. The time frame for a carrier to respond to an oral complaint to a CRO has been expanded to 30 days, making it consistent with the time frame for responding to written complaints. The final rule clarifies that with respect to CROs and complaint responses, carriers providing scheduled service, and carriers providing nonscheduled service using aircraft with 19 or more passenger seats, are covered. When the rule speaks of “immediate” responses by carriers, it means prompt and timely referral to a CRO when passengers raise a disability-related problem or complaint that cannot be quickly resolved by carrier personnel on the spot (
A few foreign carriers said that it was improper to permit non-U.S. citizens to have access to the U.S. DOT through the complaint process. In the commenters' view, this implied improper extraterritorial jurisdiction under a law that was intended to create rights only for U.S. citizens. We do not agree. First, the ACAA protects “individuals with disabilities,” with no limitation on the nationality of those individuals. Second, the Department has a legitimate interest in ensuring that its legal requirements are implemented. It does not matter to the Department who brings a problem to its attention. Once we know about the problem, it is up to the Department, working with the carrier, to correct the problem, and civil penalties are one of the Department's tools for helping to correct a problem.
An association representing U.S. carriers objected to a proposed exception to the 45-day limitation on accepting written complaints for complaints referred by the Department of Transportation. The commenter also suggested that carriers be allowed to limit the means through which a disability-related complaint is transmitted to them to the means used to accept non-disability-related complaints. In the Department's view, if we think a complaint is important enough to refer to an air carrier, it is important enough for the carrier to respond. We also believe that, in attempting to enforce rights under a nondiscrimination statute, passengers should be able to send a complaint by any reasonable means available to them, without limitations placed by carriers on the transmission of other sorts of consumer complaints. These features of
The purpose of this portion of the preamble is to describe each of the sections of the final rule. The focus of the descriptions is on new or changed material.
The section is amended to include foreign carriers.
This definitions section makes several additions or changes to the definitions in the current rule. A new definition of “carrier” includes both U.S. and foreign carriers. A new definition of “CPAP machine” or continuous positive airway pressure machine, a type of respiratory assistive device, has also been added. There are new definitions of “direct threat,” which concerns the standard that may permit carriers to take otherwise prohibited actions with respect to passengers with a disability, and “equivalent alternative,” which concerns the standard used in 382.10 for carriers to adopt policies, practices or other accommodations in lieu of compliance with the letter of provisions of the rule. “Indirect air carrier” refers to a person not directly involved with the operation of aircraft who sells transportation services to the general public other than as the agent of a carrier. Two agencies concerned with safety and security aspects of flight are also recognized in this section: The Pipeline and Hazardous Materials Safety Administration of DOT and the Transportation Security Administration of the Department of Homeland Security. In the definition of “qualified individual with a disability,” the final rule specifically mentions the term “passenger with a disability” that is frequently used throughout the rule. Finally, there is a new definition of “portable oxygen concentrator” (POC), a device used to provide oxygen to passengers who need it during flight.
We have also included in the final rule a definition of “commuter carrier” and “on-demand air taxi” as an understanding of those terms is essential to an understanding of the applicability of section 382.133. The Department also decided to include a definition of “expected maximum flight duration” in the final rule as commenters had a number of questions regarding how a carrier should determine if a passenger has a sufficient number of batteries available to power an electronic respiratory assistive device. In this final rule, the Department explains that a carrier may require an individual to bring enough fully charged batteries to power the device for not less than 150% of the expected maximum flight duration. The definition of “expected maximum flight duration” provides carriers a list of factors that they must take into account in determining the total length of a flight.
We proposed in the DHH NPRM to change the phrase, “telecommunication device for the deaf,” and its acronym, “TDD,” to “text telephone” and “TTY,” respectively. All who commented on this proposal supported it, so we are using the new phraseology in the final rule.
In the DHH NPRM, we proposed not to include a definition of “hard of hearing, deaf, and deaf-blind” in the rule, reasoning that the definition of an “individual with a disability” is broad enough to cover individuals who are hard of hearing, deaf, or deaf-blind. We did, however, solicit comments on this issue. We also proposed not to include a definition of “captioning,” but we solicited comments on this issue as well. We further proposed not to include a definition of “informational,” but we stated in the preamble that we intended that word to apply to all videos, DVDs, and other audio-visual displays that do not qualify as safety or entertainment displays, including but not limited to the following: videos, DVDs, and other audio-visual displays addressing weather, shopping, frequent flyer programs, customs and immigration information, carrier routes, and other general customer service presentations. We also solicited comments on this issue.
Of those who commented on § 382.3, the carriers and carrier associations generally opposed a definition of “hard of hearing, deaf, and deaf-blind,” agreeing with the Department that such individuals are covered by the definition of an “individual with a disability.” They opposed any definition of “captioning” that might be difficult to meet or that would not allow for innovation, and they agreed that “informational” need not be defined. One of the disability organizations argued for a definition of “hard of hearing, deaf, and deaf-blind” in order to cover the “entire spectrum” of hearing disabilities. All disability organizations supported a definition of captioning that makes all audio-visual displays easily readable, and they agreed with the proposal to explain the purport of “informational” in the preamble. One of these organizations asked the Department to add safety, entertainment, and other materials that are communicated to passengers who can see and hear normally.
The final rule includes a definition of the term “indirect air carrier.” For readers' information, an indirect air carrier is an entity that indirectly engages in “air transportation” as that term is defined in the governing statute by engaging the services of a “direct air carrier” (an airline). For example, when a tour operator or an air freight forwarder contracts for space on a wholesale level with an airline and the tour operator or air freight forwarder then re-sells space on that flight on a retail basis, setting his own price and terms, bearing the entrepreneurial risk of profit or loss rather than acting as an agent, and controlling the inventory and schedule, that tour operator or air freight forwarder is acting as an “indirect air carrier” as defined in the statute. Conversely, a retail travel agent who sells the product of a disclosed principal (
The final rule will not include definitions of “hard of hearing, deaf, and deaf-blind” or “informational.” The comments have not persuaded us of the need for a separate definition to cover hearing and vision problems: the definition of an “individual with a disability” logically includes individuals with the whole spectrum of hearing and vision impairments. Similarly, the comments do not show a need for a definition of “informational” in the rule. As we stated in the DHH NPRM, by “informational” displays we mean all videos, DVDs, and other audio-visual displays that do not qualify as safety or entertainment displays, including but not limited to the following: videos, DVDs, and other audio-visual displays addressing weather, shopping, frequent flyer programs, customs and immigration information, carrier routes, and other general customer service presentations. We exclude safety and entertainment displays: these are covered elsewhere, in §§ 382.53, 382.69, and 382.119.
As for captioning, we have determined that we should consistently use the term “high-contrast captioning” in the rule and define it in § 382.3 rather than do so whenever it occurs elsewhere. In our definition we are adopting a pragmatic approach. Defining “high-contrast captioning” as “captioning that is at least as easy to
Both U.S. and foreign carriers must begin complying with the new final rule on its effective date, which will be a year from the date on which the rule is published in the
The rule applies to all U.S. carriers, regardless of where their operations take place, except where otherwise provided in the rule. With respect to foreign carriers, the application of the rule is more limited. Only flights of foreign carriers that begin or end at a U.S. airport, and aircraft used in these operations, are covered. A flight means a continuous journey of a passenger in the same aircraft or using the same flight number. The rule provides several examples of what constitutes a “flight” and what does not. Notably, a foreign carrier is not covered under the rule with respect to an operation between two foreign points, even if, under a code-sharing arrangement with a U.S. carrier, the foreign carrier transports passengers flying under the U.S. carrier's code. The U.S. carrier, however, is covered under the rule with respect to the passengers traveling under its code on such a flight, such that if there is a violation of the Part 382 rights of a passenger traveling under the U.S. carrier's code, the Department would hold the U.S. carrier, not the foreign carrier, responsible. Finally, a charter flight on a foreign carrier from a foreign airport to a U.S. airport and back would not be covered if the carrier did not pick up any passengers in the U.S.
In the DHH NPRM, we proposed that the provisions concerning deaf, hard of hearing, and deaf-blind passengers apply to all U.S. carrier operations and to all flights operated by foreign carriers that begin or end at a U.S. airport. We proposed that in the case of flights operated by foreign carriers between two foreign points that are codeshared with a U.S. carrier, the service-related requirements of the rule would apply to the U.S. carrier whose code is used but not the aircraft accessibility and equipment requirements. In addition, we observed in the Preamble that § 382.51, which governs audio-video displays at airports, carves out an exception for U.S. and foreign carriers at foreign airports: § 382.51 applies by its terms only to U.S. airport terminal facilities owned, leased, or controlled by U.S. or foreign carriers. We solicited comments on the cost and feasibility of requiring U.S. carriers to modify equipment, space, or both at foreign airport terminals that they lease, own, or control.
Consistent with their comments on the Foreign Carriers NPRM, foreign carriers and carrier associations that filed comments generally criticized the Department, saying that it had acted unilaterally in this area. Some contended that Part 382 should not apply to flights that are not part of a single journey to or from the United States in the same aircraft with the same flight number. One U.S. carrier, Delta, expressed concern that its foreign codeshare partners might find the requirements so onerous that they will end the code-sharing rather than comply, precipitating declines in service and competition. One association of U.S. carriers supported the applicability of Part 382 to foreign carriers, as did the disability groups and individuals that commented. The Regional Airline Association (“RAA”) asked the Department to exempt all aircraft of up to 30 seats from the rule because its requirements will create excessive burdens for operators of small aircraft.
The individuals and disability organizations that filed comments generally favored making the rule applicable to all foreign carrier flights that originate or end at a U.S. airport and to foreign carrier flights between two foreign airports that are codeshared with a U.S. carrier.
We find unpersuasive the foreign carriers' suggestions that in applying these requirements to them we are somehow exceeding our authority. As we explained in the Foreign Carriers and DHH NPRMs, in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21), Congress amended the Air Carrier Access Act (ACAA) to include foreign carriers in the prohibition against discriminating against otherwise qualified individuals with disabilities. This rulemaking merely implements that law. This Department's authority to issue regulations that apply to foreign carriers is well-established. This general issue is discussed at greater length in the “Response to Comments” portion of the preamble above. In that section, the Department explains the final rule's approach to the issue of code-sharing, which applies to deaf and hard-of-hearing issues as well as to other provisions of Part 382.
The service-related requirements regarding deaf, hard of hearing, and deaf-blind passengers that apply to U.S. carriers on codeshare flights operated by their foreign-carrier partners between two foreign points are those listed in § 382.119. Although we are not applying these requirements to the foreign carrier operating these flights, the U.S. carrier will be subject to enforcement action if the foreign carrier fails to provide the required information promptly to “qualified individuals with a disability who identify themselves as needing visual and/or hearing assistance” and whose tickets bear the code of the U.S. carrier. The aircraft-accessibility requirements set forth in § 382.69 do not apply on such flights. Part 382 has no equipment requirements specific to deaf, hard of hearing, and deaf-blind passengers.
As for RAA's request, the evidence in the record does not provide a basis for a blanket exemption from Part 382 for aircraft with 30 or fewer seats. If an airport or aircraft operator does not use a particular technology, sections concerning that technology would not apply. Normal provisions concerning exemptions from Office of the Secretary rules (see 49 CFR Part 5) could be used if a carrier or airport believes an exemption is needed in a particular situation.
This provision creates a conflict of laws waiver mechanism to give appropriate consideration to requirements of foreign law applicable to foreign carriers. It is important to note that this mechanism is intended to apply only to genuine conflicts with legally binding foreign legal mandates. A foreign law that requires a foreign carrier to do something prohibited by this rule, or that prohibits a foreign
If, as a legal matter, the foreign carrier has no choice but to act contrary to this rule, the Department would grant a waiver. If the foreign carrier, as a matter of law, has any discretion in the matter, it must exercise that discretion by complying with this rule, even if contrary to the carrier's policy or the recommendation of a foreign government, and the Department would not grant a waiver. A waiver request would have to include the carrier's proposal for an alternative means of achieving the rule's objectives with respect to any provision that is waived.
The Department wants to ensure that waiver requests are submitted and granted or denied in a timely manner, avoiding the dilemma for foreign carriers of having to choose between compliance with this rule and with conflicting foreign laws when the rule goes into effect a year after its publication. We encourage foreign carriers to make any waiver requests within 120 days of the rule's publication. The Department commits to deciding requests made in this time period before the rule goes into effect. If we are late, then the foreign carrier may continue to carry out the policy or practice involved until we do respond, and if the request is denied the Department would not take any enforcement action against the carrier with respect to activities that took place prior to the denial. Even with respect to waiver requests submitted after the 120-day period, the Department will do its best to respond before the effective date of the rule. Again, the carrier can choose to continue to follow the policy or practice that is the subject of the request until the Department does respond. However, if such a request is denied, the carrier risks enforcement action with respect to the period between the effective date of the rule and the date of the Department's response. The Department has established this two-stage waiver consideration process to help avoid a situation in which a foreign carrier would delay submission of a waiver request until shortly before the effective date of the rule, in an attempt to delay compliance with the rule while the Department considered its late-filed request.
We also recognize that new foreign legal mandates can arise. If a new mandate is created after the initial 120-day period following publication of the rule (not an existing legal mandate that is subsequently discovered or goes into effect subsequently), then a foreign carrier may submit a waiver request and continue to implement the policy or practice involved until the Department responds. In this case, the carrier would not be subject to enforcement action for the period prior to the Department's response.
This section also notes that if a foreign carrier submits a frivolous or dilatory waiver request, has not submitted a waiver request with respect to a particular policy or practice, or continues to follow a policy or practice concerning which a waiver request has been denied, the carrier could be subject to DOT enforcement action. For example, if the Department initiates enforcement action because we believe a foreign carrier's practice is contrary to the rule, the carrier could not defend against the enforcement by claiming a conflict with an existing foreign legal mandate if the carrier had not previously submitted a waiver request concerning the practice, or the request had been denied.
While the concept of equivalent facilitation has been a part of DOT Americans with Disabilities Act (ADA) rules since 1991 (see 49 CFR 37.7-37.9), it has not previously been part of ACAA rules. The use of “equivalent alternative” in this rule is somewhat broader than the use of “equivalent facilitation” in DOT or DOJ ADA rules or in the Americans with Disabilities Act Accessibility Guidelines issued by the U.S. Access Board, which focused on “hardware” modifications to vehicles and facilities. In the ACAA context, equivalent alternative can also refer to policies, practices, or other accommodations to passengers with disabilities.
The key point of this section is that, in order to be viewed as an equivalent alternative, a policy, practice, accommodation, or piece of equipment must really provide substantially equivalent accessibility to passengers with disabilities than compliance with a provision of the rule. It isn't enough for a carrier's proposed alternative to be different from a provision of the rule. Alternatives that provide less accessibility than the provisions of the rule, or that impose greater burdens on passengers with disabilities, cannot be considered an equivalent alternatives. Equivalent alternatives also pertain only to specific requirements of the rule. The Department would not entertain an equivalent alternative request that asked us to find that an entire foreign regulatory scheme was equivalent to this rule, for example.
Similar to the conflict of laws waiver provision, the equivalent alternative provision is structured to provide an incentive to carriers to file timely requests. If a carrier submits its request within 120 days of the publication date of this Part, the Department will try to respond before the effective date of the rule. The carrier can implement the policy or practice it requests as an equivalent alternative beginning on the effective date of the rule until the Department does respond. (A U.S. carrier subject to the current rule could not begin implementing an equivalent alternative it had requested within the 120-day time period until the new rule goes into effect, since the current rule does not provide for equivalent alternatives.) If a carrier submits its request after the 120-day period following publication, the carrier must comply with the provision of the regulation pending the Department's response.
These sections are very similar to section 382.7 of the current regulation. One difference is that the new rule specifies that carriers may require preboarding as a condition of receiving certain seating or in-cabin stowage accommodations. The requirement to make modifications of policies, practices, and facilities has been broken out into a separate section. This requirement recognizes that there can be times when, in order to provide nondiscriminatory service to a particular individual, carriers must change or make an exception to an otherwise acceptable general policy or practice for that individual. It should be emphasized that this provision is not intended to require carriers to make generally applicable changes in policies for all passengers, or all passengers with disabilities. The provision focuses on
It is a basic principle of nondiscrimination law that while a regulated party can contract out its functions, it cannot contract away its responsibilities. Consequently, a carrier that contracts out any functions concerning passengers with disabilities must ensure that the contractors comply with the provisions of this Part, just as if the carrier were performing the functions itself. Assurances and contract conditions in the agreements between carriers and their contractors are a key measure to carriers' compliance with this section. Noncompliance with these contract conditions by the contractor must be stated in the contract as being a material breach of the contract. The Department expects carriers to monitor the performance of contractors to ensure that the contractors' performance complies with the requirements of this Part and to take appropriate contract action against contractors that breach their contracts by failing to comply. The Department would view a carrier's failure to do so as noncompliance with the carrier's obligations under this rule, and a carrier cannot defend against an enforcement action by the Department by claiming that a contractor erred. The carrier remains responsible.
This section continues, and extends to foreign carriers, the key nondiscrimination requirement of the ACAA and the existing Part 382. With narrow exceptions, a carrier is prohibited from denying transportation to a passenger on the basis of disability. Carriers retain their authority, under 49 U.S.C. 44902 and 14 CFR 121.533, to deny transportation to any passenger, disabled or not, on the basis of safety or whose carriage would violate FAA or TSA requirements.
If the carrier's reason for excluding a passenger on the basis of safety is that the individual's disability creates a safety problem, the carrier's decision must be based on a “direct threat” analysis. This concept, grounded in the Americans with Disabilities Act, calls on carriers to make an individualized assessment (
Exclusion of a passenger because his disability-related appearance or involuntary behavior may offend, annoy, or inconvenience other persons—as distinct from creating a direct threat to safety—is an important part of this nondiscrimination mandate. The rationale for this requirement was stated in the preamble to the 1990 ACAA rule, and it remains valid (see 55 FR 8027; March 6, 1990).
As a general matter, carriers may not exclude or impose other requirements or conditions on a passenger on the basis that the passenger has a communicable disease. However, if the passenger poses a direct threat, the carrier may take appropriate action to safeguard the health and safety of other persons on the flight.
The Department has added regulatory language codifying the Department's guidance on how airlines should determine whether someone's disease presents a direct threat. To be a direct threat, a condition must be both able to be readily transmitted by casual contact in the course of a flight AND have severe health consequences (
If a passenger who is deemed to present a direct threat cannot travel at his or her scheduled time as a result, the carrier must allow the passenger to travel at a time up to 90 days from the date of postponed travel at the same price or, if the passenger prefers, provide a refund. Consequently, cancellation or rebooking fees or penalties would not apply in this situation, and the passenger would not be subject to any fare increases that may occur in the meantime or any increase in that passenger's fare due to the non-availability of a seat in the fare class on his or her original ticket.
Like the medical certificates section in the current rule, this section generally prohibits carriers from requiring medical certificates (
Oxygen users and, people traveling in a stretcher or incubator can be required to produce a medical certificate. The situation that most commonly would result in a call for a medical certificate is one in which carrier personnel have a reasonable doubt that someone can complete the flight safely, without requiring extraordinary medical assistance. In such a case, carrier personnel can require a medical certificate in order to provide assurance that the passenger will not need such assistance. The rule clarifies that a medical certificate must be recent (within 10 days of the passenger's departing flight).
There is also a relationship between this section and the communicable diseases provision. Section 382.21(a)(4) allows a carrier to require a medical certificate if the carrier determines that the passenger has a communicable disease that could pose a direct threat. Under section 382.23(c), the passenger would then have to produce a medical certificate, to the effect that the passenger's condition would not be communicable to other persons during the normal course of the flight. If it is potentially transmissible during the flight but this can be prevented if
A carrier may elect to subject a passenger with a medical certificate to additional medical review (
We also note that, under section 382.117(e), airlines can require passengers traveling with emotional support or psychiatric service animals to provide certain documentation. This information is not a medical certificate in the sense articulated in section 382.23, but airlines are entitled to obtain this documentation as a condition of permitting the emotional support or psychiatric service animal to travel in the cabin with the passenger.
Carriers may not require a passenger with a disability to provide advance notice of the fact that he or she is traveling on a flight. That is, a carrier cannot say to a passenger, in effect, “You have a disability; therefore, you must let me know in advance that you are going to fly on my aircraft, Flight XXX.”
On the other hand, there is a series of accommodations that many passengers with disabilities may need or want that carriers reasonably require time to arrange. For these services, carriers may require up to 48 hours' advance notice (
Most of the services or accommodations for which a carrier can require advance notice are the same as under the existing regulation (
There are a few new situations in which the rule permits carriers to require advance notice. These include transportation of an emotional support or psychiatric service animal, transportation of any service animal on a flight scheduled to take eight hours or more, and accommodation of an individual who has both severe vision and hearing impairments.
The terminology of this section has been changed from “attendant” to “safety assistant” to more accurately reflect the role of the person accompanying the passenger. A safety assistant is not a personal care attendant who looks after the personal care needs of a passenger. A carrier cannot require a personal care attendant to travel with a passenger with a disability. Rather, the safety assistant is someone who would assist the passenger to exit the aircraft in case of an emergency evacuation or to establish communication with carrier personnel for purposes of the required safety briefing. People like passenger volunteers, an individual selected by the passenger, or deadheading crew members remain appropriate candidates to act as safety assistants.
This section generally follows the model of the corresponding section of the existing regulation. However, with respect to the situation of a passenger with a severe mobility impairment, the criterion for permitting the carrier to require a safety assistant has been clarified to address circumstances where the passenger is unable to physically assist in his or her own evacuation. This change is made to avoid potential confusion that a passenger could assist in his or her own evacuation simply by calling for help.
The “Response to Comments” section of the preamble describes in greater detail other changes, including a new advance notice requirement, that would apply to passengers who have both severe vision and hearing impairments. In section 382.29(b)(4), it is mentioned that a passenger with both severe hearing and vision impairments is responsible for explaining how he or she can establish communication adequate to permit transmission of the safety briefing and to enable the passenger to assist in his or her own evacuation of the aircraft in the event of an emergency. The new 48-hours' advance notice requirement is intended to give the carrier time to make any arrangements necessary to accommodate the passenger following this explanation. The language in section 382.29(b)(4) concerning the ability of a passenger to assist in his or her own
When a passenger with a disability cannot travel on a flight because there is no seat available for a safety assistant that the carrier has determined to be necessary, the passenger must be compensated in an amount to be calculated under the Department's denied boarding compensation (DBC) rule, 14 CFR Part 250, where Part 250 applies. The DBC rule applies to both U.S. and foreign carriers with respect to domestic and international scheduled-service nonstop flight segments departing from a U.S. airport. It does not apply to flights departing from a foreign airport, whether operated by a U.S. or foreign carrier.
Carriers may not impose charges on passengers for accommodations required by the rule. However, if a carrier voluntarily provides a service that this rule does not require, the carrier may charge a passenger with a disability for that service.
The issue of carrier web site accessibility requirements has been deferred to a forthcoming SNPRM. While that issue is being considered, the Department is adding a provision to address potentially discriminatory effects of their web site-related policies on passengers with disabilities who cannot use a carrier's web site because it is not accessible. If a carrier charges people who make reservations by phone or in person more than people who make reservations on the web site, this surcharge cannot be applied to persons with disabilities who must make reservations by another means because the web site is inaccessible to them. Likewise, if there are “web only” discounts or special offers made available to passengers on the carrier's web site, passengers with disabilities who cannot use the web site must be offered the same terms when they seek to book a flight by other means.
Carriers must not impose requirements or restrictions on passengers with a disability that they do not impose on other passengers, except where this regulation explicitly permits the carrier to do so (
This provision is very similar to the corresponding provision of the existing rule. Carriers must provide information about the accessibility features of aircraft (
As a general matter under Part 382, when an agent acting on behalf of an airline provides inaccurate information to a passenger with a disability concerning a disability-related accommodation, in most instances the airline will be responsible for any resulting information-related violation of the law. It should also be noted that when a carrier agrees to provide a service not specifically required under this Part to accommodate a particular passenger's disability, the carrier is obliged to provide that service to the passenger or risk being found in violation of section 382.41. For example, if a carrier informs a passenger that it will accommodate his or her peanut allergy by not serving peanuts on his or her flight itinerary, the carrier must ensure that peanuts are not served on those flights or it will be in violation of section 382.41.
The “Response to Comments” section of the preamble discusses the requirements that will apply to carriers with respect to TTY or telephone relay communication between users of TTYs and carriers. As noted in that discussion, the purpose of § 382.43 is to put deaf and hard of hearing passengers on a substantially equivalent footing with the rest of the public in their ability to communicate with carriers by telephone regarding information and reservations. We aim to ensure substantial equivalence in both access to any carrier and wait time if an agent is not available when a connection is first made.
Carriers may meet this requirement by using TTYs themselves, but they may also do so by means of voice relay or any other available technology that permits TTY users to communicate with them. This requirement is set forth in § 382.43(a). We are also adding a new access requirement in § 382.43(a)(4) to ensure that deaf and hard of hearing passengers are informed how to reach carriers by TTY: In any medium in which a carrier states the telephone number of its information and reservation service for the general public, it must also state its TTY number if it has one, or if not, it must specify how TTY users can reach the information and reservation service (
Based on comments to the docket, we are also adding § 382.43(b), which states that the requirements of § 382.43(a) do not apply to carriers in any country in which the telecommunications infrastructure does not readily permit compliance.
Carriers that provide written information to passengers must ensure that that this information can be communicated effectively to passengers with vision impairments. This could be done through alternative formats or,
For foreign carriers, these requirements apply only with respect to information and reservation services for flights covered by section 382.5. With respect to TTY services, the requirement applies to foreign carriers only with respect to flights for which reservation phone calls from the U.S. are accepted.
Please see the “Response to Comments” section for further information about the requirement that a copy of Part 382 be made available in airports served by carriers subject to this rule.
U.S. carriers must keep a copy of Part 382 at each airport they serve and make it available to anyone who asks for it. Foreign carriers must do this at any airport serving a flight that begins or ends at a U.S. airport. An English-language copy of the rule is sufficient for this purpose. Carriers are not required to translate the document into other languages. Although carriers are not required to make a copy of Part 382 available in accessible formats at airports, carriers that provide information to the public on a website must place information on that website telling passengers that they can obtain an accessible copy of the rule from DOT.
The principal substance of airport facility accessibility requirements is the same for both U.S. and foreign carriers. Certain aspects of the requirements differ depending on whether the facility in question is located in the U.S. or in a foreign country.
U.S. facilities that a carrier owns, controls, or leases must meet requirements applicable to Title III facilities under the Americans with Disabilities Act. The requirements are those of the Americans with Disabilities Act Accessibility Guidelines (ADAAG), as incorporated in Department of Justice (DOJ) ADA regulations implementing Title III. There must be an accessible path between gate and boarding area when level entry boarding is not available to an aircraft. The ADAAG reference in paragraph (a)(2) is to the former version of the ADAAG, which is still the version incorporated in the DOJ rules. When DOJ incorporates the new version of ADAAG in their Title III rules, we will update this reference.
Inter-terminal and intra-terminal transportation owned, leased, or controlled by a carrier at a U.S. airport must meet DOT ADA rules. Since DOT has already incorporated the new version of ADAAG into its regulations, the new ADAAG's provision will apply to any features covered by the DOT rules. One new requirement at U.S. airports is to provide, in cooperation with the airport operator, animal relief areas for service animals that accompany passengers who are departing, arriving, or connecting at the facility.
At foreign airports, to which the ADAAG do not apply, Part 382 applies a performance requirement to make sure that passengers with a disability can readily use the facilities the carrier owns, leases, or controls at the airport. For foreign carriers, this requirement applies only to terminal facilities that serve flights that begin or end in the U.S (
In the DHH NPRM, we proposed several requirements for U.S. and foreign carriers at terminal facilities that they own, lease, or control at any U.S. airport. First, we proposed a requirement that carriers enable any existing captioning feature (preferably high-contrast) on all televisions and other audio-visual displays providing safety, information, or entertainment content in those portions of the airport that are open to the general public and that they keep this captioning feature on at all times. Second, we proposed a requirement that in areas of restricted passenger access such as club rooms, carriers enable any existing captioning function on televisions and other audio and visual displays upon request. Third, we proposed a requirement that carriers replace any televisions and other audio-visual displays that do not have a high-contrast captioning function with ones that do as these devices are replaced in the normal course of operations or when the airport facilities undergo substantial renovation or expansion. Fourth, we proposed a requirement that newly acquired televisions and other audio-visual displays be equipped with high-contrast captioning capability. We solicited comments both on these proposals and on whether any carriers have leases for terminal facilities at a U.S. airport whereby the airport retains control over the televisions and other audio-visual displays in that facility. If so, we said, we would consider requiring the carriers and airports to work together to enable captioning on equipment that has captioning capability and to replace equipment that does not have high-contrast captioning capability with equipment that does. (We also noted that all televisions with screens of at least 13 inches made or sold in the U.S. since July 1, 1993, have been required to have captioning capabilities.) We further solicited comment on whether televisions and other audio-visual displays equipped with captioning features would necessarily have high-contrast captioning (
None of the comments addressed the question of high- versus medium- versus low-contrast captioning. Most of the carriers and carrier groups that filed comments claimed not to have control over the audio-visual equipment at their terminal facilities. The individuals and disability organizations that filed comments strongly objected to different standards for audio-visual equipment in areas open to all passengers versus areas with restricted access, and all support captioning on all such equipment at all times.
We are modifying the language of the proposed § 382.51 to make our intentions clearer, and based on the comments, we are also adding language that places joint responsibility for compliance on the carrier and the airport in cases where the latter has control over the televisions and other audio-visual equipment that this section addresses. (To this end, we will also be amending 49 CFR Part 27, Subpart B, to codify the requirement for airports.) We have determined, based both on the comments from individuals and disability groups and on the lack of objections from carriers and carrier groups, that the same standard should apply to all equipment, whether it be in areas to which the general public has access or in areas to which access is limited. If such equipment has captioning capability, that capability must be enabled at all times. These requirements do not apply to either U.S. or foreign carriers at foreign airports.
With some variations for the situations of U.S. and foreign airports, and U.S. and foreign carriers, the basic point of this section is that at each gate, ticketing area, and customer service desk that a carrier owns, leases, or controls, a carrier must ensure that passengers with a disability who identify themselves as persons needing visual or hearing assistance have prompt access to the same information provided to other passengers. This requirement applies to a wide variety of information, concerning such subjects as flight safety, ticketing, flight check-in, flight delays or cancellations, schedule changes, boarding information, connections, gate assignments, checking baggage, volunteer solicitation on oversold flights (
All passengers are subject, at U.S. airports, to TSA screening procedures and, at foreign airports, to screening procedures established by the law of the country in which the airport is located. If a carrier wants to go beyond those mandated procedures, it must make sure that it treats passengers with disabilities equally with other passengers. Security personnel may examine assistive devices and must provide, on request, private screenings for passengers with disabilities requiring secondary screening.
The Department will seek further comment on kiosk accessibility issues in an SNPRM. Meanwhile, if existing kiosks are inaccessible (
This section is very similar to the movable aisle armrest provisions of the present rule. Armrests on at least half the aisle seats in rows containing seats in which passengers with mobility impairments are permitted to sit under FAA rules must be movable. If there are no seats in which a person with a mobility impairment can sit under FAA rules (
The provision clarifies that movable aisle armrests must be provided proportionately in all classes of service. As discussed elsewhere in the preamble, if the seats in a given class of service, such as first class, can be accessed by a wheelchair user without a movable aisle armrest being provided, the carrier may request an equivalent alternative determination. Consistent with section 382.41, carriers must find ways of ensuring that passengers with disabilities can locate specific seats they can access with movable armrests.
A carrier wishing to submit an equivalent alternative request concerning movable armrests must show the Department that, in fact, persons with mobility impairments using aisle and boarding wheelchairs can transfer horizontally into a given seat without being lifted over an armrest or other obstacle. The Department would not make such a determination based solely on the representation of the carrier that such transfers were possible. “Show your work” is the appropriate maxim. Diagrams could be one useful part of such a showing. What the Department recommends, however, is a video of a demonstration showing carrier personnel actually transferring passengers with disabilities—preferably, passengers of various sizes—into the seat or row in question from an aisle or boarding chair.
Carriers are not required to retrofit cabins of existing aircraft to install movable armrests. However, if a carrier replaces any of an aircraft's aisle seats with newly manufactured seats, at least half the replacement seats must have movable armrests. For example, if a carrier replaces four aisle seats with newly manufactured seats, then two of these seats have to have movable armrests. If the carrier is replacing an odd number of seats, a majority of the newly manufactured aisle seats installed must have movable armrests. For example, if the carrier is replacing five old aisle seats with newly manufactured seats, at least three of the newly manufactured aisle seats must have movable armrests. The Department does not intend this provision to require carriers to have more than 50% movable armrests in the cabin, however. For example, suppose an aircraft has 40 aisle seats, 20 of which have movable armrests. The carrier decides to replace five aisle seats that do not have movable armrests with newly manufactured seats. These new seats would not have to include movable armrests.
The timing of the application of these requirements is as follows: Foreign carriers must comply with “new aircraft” requirements with respect to planes ordered after the effective date of this Part or delivered more than one year after the effective date of this Part. Foreign carriers must comply with the requirement for replacement seats (paragraph (e)) beginning on the effective date of the rule. U.S. carriers are already subject to the requirements of this section, except the proportionality requirement (paragraph (c)) with respect to aircraft ordered after April 5, 1990 or delivered after April 5, 1992. When we say “new aircraft” in this context, we mean aircraft that were new at the time they were ordered by or delivered to the U.S. carrier. U.S. carriers will have to comply with paragraph (c) for new aircraft ordered after the effective date of this Part or which are delivered more than one year after the effective date of this Part. With respect to the purchase of used aircraft, in this section and similar places, the date the aircraft was originally ordered from the manufacturer or initially delivered by the manufacturer determines whether the aircraft is subject to the aircraft accessibility requirements of this Part.
As under the present rule, only aircraft with more than one aisle must have an accessible lavatory. U.S. carriers are already subject to these requirements for new aircraft they ordered after April 5, 1990, or which were delivered after April 5, 1992. Foreign carriers must comply with respect to new aircraft ordered after the effective date of the rule or delivered more than one year after the effective date.
Also, if a carrier replaces a lavatory on an aircraft with more than one aisle it must replace the lavatory with an accessible unit. A carrier need not have more than one accessible lavatory on an
These requirements are also patterned on the existing rule. In aircraft with more than 60 passenger seats, carriers must provide an on-board wheelchair if the aircraft has an accessible lavatory. In an aircraft that has 60 or more seats that does not have an accessible lavatory, the carrier must provide an on-board wheelchair on the request, with advance notice, of a person who can use the inaccessible lavatory but cannot reach it from his or her seat without use of an on-board wheelchair. U.S. carriers are already subject to these requirements. Foreign carriers must meet these requirements by a date one year after the rule's effective date.
Under the current rule, the Department had granted exemptions to the requirement for providing a requested on-board wheelchair to two aircraft models, the ATP and the ATR-72. These exemptions will remain in force under the new rule.
The most important change in this section from the present regulation is that carriers are no longer required to stow any kind of electric wheelchair in the cabin. Only manual wheelchairs are required to be stored there. The section provides that there must be a priority space in the cabin capable of stowing at least one adult-size manual wheelchair of the stated dimensions. This requirement applies to aircraft with 100 or more passenger seats. The space must be in addition to the normal under-seat and overhead compartment storage made available for carry-on luggage. Where a carrier plans to use a closet or other storage area to comply with this requirement, we emphasize that in saying priority storage we mean that the space for a wheelchair trumps other possible uses for that closet or other storage area, including passenger hanging bags and crew luggage. This requirement to stow a passenger's wheelchair in the cabin is in addition to the carrier's on-board wheelchair as required under section 382.65. This requirement already applies to U.S. carriers for new aircraft they ordered after April 5, 1990, or which were delivered after April 5, 1992. Foreign carriers must comply with respect to new aircraft ordered after the effective date of the rule or delivered more than one year after the effective date.
This section requires carriers to ensure that all new videos, DVDs, and other audio-visual displays played on aircraft for safety purposes, and all such audio-visual displays played on aircraft for informational purposes that were created under the carrier's control, are high-contrast captioned. The captioning must be in the predominant language or languages in which the carrier communicates with passengers on the flight. If the carrier communicates regularly in more than one language (
For purposes of this section, we view a video as being controlled by a carrier not only if the carrier directly produces it, but if a contractor or other party produces the video for the carrier's use, with the carrier having significant editorial control or approval of the video's content. Note that the provision about carrier control of a video applies only to informational materials. Safety materials must be captioned in all cases.
The requirements of this section go into effect 180 days after the effective date of the rule with respect to safety videos, and 240 days after the effective date of the rule with respect to informational videos. This timing is the same for both U.S. and foreign carriers. The corresponding section of the current version of Part 382 permits carriers to use a non-video alternative only if neither open captioning nor a sign language interpreter inset can be used without so interfering with the video as to render it ineffective. This exception is not included in the new rule. The overall effective date of the rule is one year after the rule is published, but, as indicated above, carriers are not required to implement the provision concerning videos in the new rule until 180 to 240 days after that overall effective date. Consequently, starting on the overall effective date (
This provision, like its counterpart in the existing rule, requires maintenance of accessibility features in proper working order and tells carriers to ensure that any replacement or refurbishing of cabin features does not reduce existing accessibility.
Carriers must provide a seat that will accommodate a passenger with a disability other than one listed in section 382.81(a)-(d) when the passenger self-identifies and requests the accommodation in order to readily access and use the carrier's air transportation service.
These provisions are essentially the same as their counterparts in the existing regulation. The provisions are broken out into additional sections for clarity. The rule requires carriers to ensure an adequate number of seats to handle a reasonably expectable demand for seating accommodations of various kinds and emphasizes the need for passengers to self-identify in order to get seating accommodations. The provisions already apply to U.S. carriers and will apply to foreign carriers on the effective date of the rule. The one-year delay in the effective date of the rule following publication should be sufficient for foreign carriers to design procedures to carry out these requirements.
With respect to connecting assistance, the basic mandate is the same as under the existing rule. The arriving carrier (
The requirements concerning movement through the terminal are clarified to say that the carrier's assistance responsibility starts at the terminal entrance and goes through the airport to the gate for a passenger arriving to take a flight, and vice-versa for a passenger leaving the airport after a flight.
One addition concerns enroute stops at the entrance to a rest room. If the passenger is being assisted along the basic route from entrance to gate or vice-versa, or to make a connection, and the route goes by a rest room, the person assisting the passenger must stop and allow the passenger to use the amenity, if doing so will not result in unreasonable delay. To receive this assistance, the passenger must self-identify. It could also be very helpful to a passenger to be able to stop at a takeout food or beverage vendor that was enroute, if doing so would would not result in an unreasonable delay. The final rule does not require a stop for this purpose, but we believe that airlines and airports interested in good customer service would should allow a brief stop for this purpose.
Another addition, applicable only in U.S. airports, is that a carrier would, on request, and in cooperation with the airport operator, have to escort a passenger to a service animal relief area. Finally, carriers would have to assist passengers with disabilities in transporting their carry-on or gate-checked luggage to or from the gate. This obligation would arise only if the passenger could make credible verbal assurances of his or her inability to carry the item due to his or her disability. If the passenger's verbal assurances to the carrier are not credible, the carrier may require the passenger to produce documentation as a condition of providing the service. All the services mentioned in this paragraph would be provided only on request of a passenger with a disability.
At foreign airports, as mentioned in connection with the terminal accessibility section, airport operators may be the basic providers of terminal services. The carrier may rely on these services, but would have to supplement them if they did not fully comply with the provisions of this Part.
Carrier must offer an opportunity for preboarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, stow accessibility equipment, or be seated. This obligation exists regardless of the carriers' preboarding policies for other persons (
Carriers must promptly provide assistance to passengers in getting on and getting off aircraft. The assistance can use a variety of means to accomplish the section's objective; examples are listed in paragraph (a). This obligation exists at both U.S. and foreign airports.
At U.S. airports with 10,000 or more annual enplanements, boarding assistance must be provided through the use of lifts or ramps, where level-entry boarding is not otherwise available (paragraph (b)).
At U.S. airports where lift or ramp boarding is required, the requirement applies to aircraft with 19 or more passenger seats, with a few stated exceptions. The Department reserves the option to expand the list of aircraft to which the requirement does not apply, if we determine that there is no model of boarding device on the market that will accommodate the aircraft without a significant risk of serious damage to the aircraft or injury to persons, or that there are internal barriers in the aircraft that would preclude passengers who use a boarding or aisle chair from reaching a non-exit row seat. The Department need not amend this rule in order to make such a determination.
Consistent with the present rule, carriers serving U.S. airports must have agreements with the airport operators to provide, operate, and maintain lifts and ramps used to meet the boarding requirement of section 382.95(b). This requirement already applies to U.S. carriers. Foreign carriers would have a year from the effective date of the rule to enter into such agreements. Foreign carriers serving a particular airport may be able to join existing agreements among the airport and U.S. carriers serving it, rather than starting from scratch. Foreign carriers would have two years from the effective date of the rule to ensure that the boarding assistance called for in this rule was actually being provided.
Carriers may require passengers needing lift assistance for boarding to check in for the flight an hour before the standard check-in time for the flight.
When level-entry boarding is not required, carriers must still take whatever actions are necessary to assist people with disabilities to get on and off aircraft. For example, boarding and deplaning assistance using lifts is not required at smaller U.S. airports and foreign airports, or when severe weather or unexpected mechanical breakdowns prevent the use of a lift. In those circumstances, airlines must still provide enplaning and deplaning assistance by other available means, such as by placing the passenger in a boarding chair and carrying him or her up the boarding stairs unless the design of the aircraft (
The carrier and its contractors may not leave a passenger unattended in a wheelchair or other device in which the passenger is not independently mobile for more than 30 minutes.
This section reemphasizes that at a foreign airport where airport operators have this responsibility, both U.S and foreign carriers can rely on the airport operator's services. If these services do not fully meet the requirements of this
These sections are parallel to their counterparts in the existing rule. Personal care services like assistance in actual eating and drinking are not required, but more limited assistance such as assisting with the opening of packages is required.
This provision also parallels its counterpart in the existing rule.
This section has been made more detailed than the current rule's service animal provision, in response to the comments discussed earlier in the preamble. Appendix A provides further guidance to carriers and passengers concerning service animals.
The general rule is that service animals must be allowed to accompany their users. Carriers cannot deny transportation to a service animal because its presence may offend or annoy other passengers (
If a flight segment is scheduled to take eight hours or more, the carrier may require documentation that the service animal will not need to relieve itself or can do so in a way that will not create a health or sanitation issue on the flight.
The only acceptable reason for not allowing a service animal to accompany its user at the user's seat is that the animal will block a space that, according to FAA or equivalent foreign safety regulations, must remain unobstructed. If, for this reason, the animal cannot be accommodated at the user's seat, the carrier must allow the passenger and the animal to sit elsewhere on the aircraft, if an appropriate place exists.
There are new, more detailed procedures for the carriage of emotional support and psychiatric service animals. The carrier may require the passenger to provide current documentation from a mental health professional caring for the passenger that the passenger has a specific, recognized mental or emotional disability and that the passenger needs to be accompanied by the specific emotional support or psychiatric service animal in question, either on the flight or at the passenger's destination.
Certain unusual service animals need never be accommodated (
Near the end of this preamble, the Department has included a revised guidance document containing further discussion of service animal matters. With the exception of changes discussed earlier in the preamble, this guidance document incorporates the guidance the Department issued on service animal matters in May 2003. As guidance, it does not have independent mandatory effect, but rather describes how the Department understands the requirements of section 382.117. It also makes suggestions and recommendations concerning how carriers can best accommodate service animals and their users.
The guidance document notes that carriers can properly apply the same policies to “psychiatric service animals” as they do for emotional support animals. This is because carriers and the Department have encountered instances of attempted abuse of service animal transportation policies by persons traveling with animals in both categories. Should the Department encounter a pattern of abuse concerning service animals in other categories, we can consider additional safeguards with respect to those categories as well.
We would call also readers” attention to recent DOT guidance concerning the transportation of service animals into the United Kingdom. “Guidance Concerning the Carriage of Services Animals in Air Transportation Into the United Kingdom” (February 26, 2007) discusses the transportation of service dogs and cats into the U.K. via U.S. and foreign carriers. To transport service animals into the U.K., carriers must participate in the U.K. Pet Travel Scheme. A supplementary DOT guidance document, “Carriage of Service Animals in Air Transportation Into the United Kingdom and Foreign Health Documentation Requirements for Service Animals in Air Transportation” (July 17, 2007), provides further information for carriers and the public concerning carriage of, and documentation needed for, carriage of service animals into countries other than the U.K.
These documents may be found on the Department's Aviation Consumer Protection Division website.
This section requires that carriers ensure that passengers with a disability who identify themselves as needing visual or hearing assistance have prompt access to the same information provided to other passengers on the aircraft. In providing this information, carriers are not required to take steps that would interfere with crewmembers' safety duties as set forth in FAA and applicable foreign regulations.
The covered information includes, but is not limited to, information concerning flight safety, procedures for takeoff and landing, flight delays, schedule or aircraft changes that affect the travel of persons with disabilities, diversion to a different airport, scheduled departure and arrival time, boarding information, weather conditions at the flight's destination, beverage and menu information, connecting gate assignments, baggage claim (
We intend to require carriers to provide information that a reasonable consumer would deem important, even if it falls outside the list in § 382.119(b). Conversely, carriers are not required to provide information that a reasonable consumer would not deem important. For example, we do not consider information on sightseeing at the flight's destination or an announcement that the
Passengers may bring manual, but not electric wheelchairs, other mobility aids (
This section is related to the requirements for priority stowage spaces in section 382.67 and an opportunity to preboard in section 382.93. A passenger who takes advantage of the offer to preboard can stow his or her wheelchair in the aircraft's priority stowage area, with priority over other passengers' items brought onto the aircraft at the same airport, consistent with applicable safety and security regulatory requirements. The passenger's wheelchair also takes priority over items that may be stowed in the space by the carrier and its personnel, such as on-board wheelchairs or crew luggage, even if these items came on board at an earlier stop of the plane's itinerary. If such items are in the space when a wheelchair user comes on board, they must be moved to accommodate the passenger's wheelchair. Carriers must also offer this opportunity for other assistive devices, though wheelchairs retain priority. Passengers with wheelchairs or other assistive devices who do not preboard must still be allowed to use the priority stowage areas for their devices, but their use of the space is on a first-come-first-served basis with respect to other passengers' items.
Some U.S. carriers have used the so-called “seat-strapping” method of securing passengers' wheelchairs in the cabin, usually in situations in which, contrary to the existing rule in some cases, aircraft did not have closets or other spaces capable of accommodating the wheelchairs. The Department does not believe that this is a good long-term approach to carrying passenger wheelchairs in the cabin, especially in these times of frequently full flights. The Department emphasizes that providing priority stowage spaces as required by section 382.67 is essential. To limit the ability of carriers to use the seat-strapping method as a way of getting around the designated priority stowage requirement, carriers may not use the seat-strapping method in any aircraft ordered after the effective date of this Part or delivered more than two years after the rule's effective date.
As under the current rule, electric wheelchairs and other devices that are not required to be stowed in the cabin must be transported in the cargo compartment. These items have priority over other passengers' items. If other passengers' items are bumped as a result, the carrier must use its best efforts to ensure that they are delivered to the passenger's destination on the carrier's next flight. This may be a flight within an hour or two with respect to a domestic destination; it could be a matter of days with respect to some carriers' international flights.
This provision does not make substantive changes from its counterpart in the existing rule, except to say that carriers may require a passenger wishing to check his or her device to check in an hour before the standard check-in time for the flight. DOT's Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued a special permit which may affect procedures for handling power wheelchairs (see PHMSA “Special Permit 14548” dated October 5, 2007, and revised on October 30, 2007.)
These provisions are substantively the same as their counterparts in the existing rule. Carriers and passengers should note that section 382.131 applies only to domestic U.S. travel. Baggage liability limits for international travel, including flights of U.S. carriers, are governed by the Montreal Convention and other international agreements, rather than by 14 CFR Part 254.
The basic point of this section is that, with minor exceptions, carriers must permit passengers with a disability to use a portable oxygen concentrator (POC) and other respiratory assistive devices in the cabin. Such devices must meet FAA or foreign government requirements, as applicable, and display a manufacturer's label that indicates that the device meets the FAA or foreign government requirements.
When a passenger asks a carrier about bringing his or her electronic respiratory assistive device, the carrier must tell the passenger about the requirements for carrying such a device on board, touching on such matters as meeting FAA requirements, having the manufacturer's label, bringing an adequate number of fully charged batteries, any check-in or advance notice requirements, medical certificate requirements, and the expected duration of the flight. Carriers may insist on passengers bringing on board fully charged batteries adequate to last for 150 percent of the expected maximum flight duration. If a passenger does not comply with the conditions outlined in the rule, the carrier can deny him or her transportation on the flight.
This section continues, for the most part, the requirements of the existing rule. There are a few differences, in view of the rule's application to foreign carriers. The requirement to consult with disability groups now focuses on disability groups in the carrier's home country. If such groups are not available, consulting with individuals with disabilities or disability groups in other countries is appropriate.
Employees of U.S. carriers that have already received initial training must be trained on changes to Part 382 at their next recurrent training after the rule goes into effect or within one year after the effective date of the rule, whichever comes first. New crewmembers have to be trained before they assume their duties. Other employees new to a position must be trained within 60 days after starting their jobs. Current employees of foreign carriers that serve flights covered by the rule must be trained within a year after the effective
While the rule provides a reasonable amount of time for employees to be trained, carriers are nevertheless responsible for violations that occur between the effective date of the rule and the training deadlines. We strongly encourage carriers to expedite their training schedules so that as many employees as possible are trained by the final rule's effective date.
To ensure that foreign carriers have resource persons to deal with disability issues as soon as possible, foreign carriers will have to complete training for CROs, and U.S. carriers will have to complete training for CROs about changes in Part 382, by the effective date of the rule. Given the critical role played by CROs in carriers' implementation of the rule, it is essential for CROs to be trained before the rule becomes effective. U.S. carriers have been subject to requirements to train CROs under the existing rule, and additional training for these CROs should be limited in scope, since it would need only to cover changes between the existing rule and this final rule. Since foreign carriers will have a year between the publication of the rule and its effective date, they too should have adequate time to train CROs by the effective date of the rule.
Carriers must maintain records of the procedures they use to comply with this rule, including those portions of manuals and other instructional materials concerning Part 382 compliance, and individual employee training records. Training records must be retained for three years. Carriers are not to send these materials to DOT for review, but it must be made available to the Department if we ask to look at it. If we determine that something in these materials needs to be changed in the interest of compliance with the rule, the carrier must make the changes the Department directs.
The CRO requirement is essentially the same as under the current rule. U.S. carriers must make a CRO available—either in person or via telephone—at each airport the carrier serves, at all times the carrier is operating at the airport. Foreign carriers must make a CRO available at each airport serving flights the carrier operates that begin or end at a U.S. airport. The Department realizes that, in some cases, carriers operate covered flights infrequently. For example, a foreign carrier may fly from Dulles to a foreign airport only at 5 p.m. on Mondays and Thursdays. On other days, and on Monday and Thursday mornings for that matter, the foreign airline would not have to make a CRO available to persons at Dulles. CRO services would have to be made available in languages in which the carrier provides services to the general public.
This rule clarifies that carriers are responsible for making passengers aware of the availability of a CRO in some circumstances even if the passenger does not say “I want to talk to a CRO.” If a passenger raises a disability-related concern, and the carrier's personnel do not immediately resolve the issue to the customer's satisfaction, the carrier must say, in effect, “We have a CRO available that you can talk to about this problem if you want to. The CRO is our resource person who can help solve disability-related issues. Here is where you can find, or call, our CRO.”
CROs must have authority to definitively resolve complaints. This means they must have the power to overrule decisions of other carrier personnel, except that they are not required to have authority to countermand a safety decision of a pilot-in-command of an aircraft. Of course, even decisions of pilots, if they later are shown to be in noncompliance with this rule, can subject the carrier to DOT enforcement action.
CROs are to promptly take action to resolve complaints made to them. In some cases, CROs can take quick action to prevent a potential violation (
Often, complaints to carriers may be made in writing (letters, e-mails etc.). These complaints may or may not have been processed through the carrier's CRO, though they need to state whether a CRO was involved. Except for complaints DOT refers to a carrier, the carrier is not required to respond to a complaint transmitted more than 45 days after the incident in question. The carrier must respond within 30 days.
This section is identical to the current regulatory provision on disability-related complaint reporting. The language referring to carriers “covered by this Part” is not intended to change the scope of the existing provision, which refers to carriers conducting passenger operations with at least one aircraft having a designed seating capacity of more than 60 seats on flights to, from, or in the United States.
Changes from the corresponding provision of the existing regulation include a time frame for filing informal complaints, a change of postal address for sending an informal complaint by mail, and the Web address for filing an informal complaint on the Air Consumer Web site.
This appendix contains the form carriers use to submit disability-related complaint data.
This appendix provides, for the convenience of readers, information on where material found in a given section of the existing version of Part 382 is found in the new version of Part 382.
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 of this Part by 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 first promulgated, most service animals were guide or hearing dogs. Since then, a wider variety of animals (e.g. cats, monkeys, etc.) have been individually trained to assist people with disabilities. Service animals also perform a much wider variety of functions than ever before (
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 the key is training. Generally, a service animal is individually trained to perform functions to assist the passenger who is a qualified individual with a disability. In a few extremely limited situations, an animal such as a seizure alert animal may be capable of performing functions to assist a qualified person with a disability without individualized training. Also, an animal used for emotional support need not have specific training for that function. Similar to an animal that has been individually trained, the definition of a service animal includes: An animal that has been shown to have the innate ability to assist a person with a disability; or an emotional support animal.
These five steps can help one determine whether an animal is a service animal or a pet:
1.
➣ “
➣ “
➣ “
• 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.
There is a separate category of service animals generally known as “psychiatric service animals.” These animals may be trained by their owners, sometimes with the assistance of a professional trainer, to perform tasks such as fetching medications, reminding the user to take medications, helping people with balance problems caused by medications or an underlying condition, bringing a phone to the user in an emergency or activating a specially equipped emergency phone, or acting as a buffer against other people crowding too close. As with emotional support animals, it is possible for this category of animals to be a source of abuse by persons attempting to circumvent carrier rules concerning transportation of pets. Consequently, it is appropriate for airlines to apply the same advance notice and documentation requirements to psychiatric service animals as they do to emotional support animals.
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 or psychiatric service animal.
• Using the questions and other factors above, you must decide whether it is reasonable to believe that the passenger is a qualified individual with a disability, and the animal is a service animal.
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 (
• First, remember that not all allergies rise to the level of a disability. The fact that someone may have a stuffy nose or sneeze when exposed to dog or cat dander does not necessarily mean that the individual has a disability.
• If a passenger expresses discomfort or annoyance because of an allergic reaction to the presence of a service animal nearby, you can offer the uncomfortable passenger the opportunity to change to a seat further away from the animal. Passengers who state they have allergies or other animal aversions should be located as far away from the service animal as practicable. Each individual's needs should be addressed to the fullest extent possible under the circumstances and in accordance with the requirements of Part 382 and company policy.
• If a passenger provides credible verbal assurances, or medical documentation, that he or she has an allergy to a particular sort of animal that rises to the level of a disability (
• It is unlikely that the mere presence of an animal in the same cabin would, by itself, even if located at a distance from an allergic passenger, produce a severe allergic reaction rising to the level of a disability. However, if there was strong evidence that this was the case, it could be necessary to rebook one of the passengers on another flight. Since one disability does not trump another, the carrier should consider a disability-neutral means of determining which passenger would have to be rebooked (
• There may be situations in which, with respect to a passenger who brings a very serious potential allergy situation to the attention of your personnel, it is appropriate to seek a medical certificate for the passenger.
• 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 complaint resolution official (CRO). Part 382 requires all airlines to have a CRO available at each airport they serve during all hours of operation. The CRO may be made available by telephone. The CRO is a resource for resolving difficulties related to disability accommodation.
• Consult with the CRO immediately, if possible. The CRO normally has the authority to make the final decision regarding carriage of service animals. In
• 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 10 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 for U.S. carriers, 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. Note that, under the 2008 final rule, foreign carriers are not required to carry animals other than dogs.
• 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 by U.S. carriers. 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 (
• 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.
The only situation in which the rule contemplates that a service animal would not be permitted to accompany its user at his or her seat is where the animal blocks a space that, per FAA or applicable foreign government safety regulations, must remain unobstructed (
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 (
• Let passengers know the airline's policy about seat assignments for people with disabilities. For instance: (1) Should the passenger request preboarding 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 382.81(c) 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 preboarding for passengers with special needs, although it may be available. If you wish to request preboarding, tell the agent at the gate.
• A timely request for preboarding by a passenger with a disability must be honored (see sections 382.83(c) and 382.93)
Part 382 does not require carriers to make modifications that would constitute an undue burden or would fundamentally alter their programs (382.13(c)). Therefore, the following are
➢ Requiring another passenger to give up all or a most of the space in front of his or her seat to accommodate a service animal. (There is nothing wrong with asking another passenger if the passenger would mind sharing foot space with a service animal, as distinct from telling the passenger that he or she must do so. Indeed, finding a passenger willing to share space is a common, and acceptable, method of finding an appropriate place for someone traveling with a service animal that may not be able to be seated in his or her original seat location.)
➢ 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. (While a carrier is not required to do so, there could be situations in which the carrier could voluntarily reseat a passenger with a service animal in a different seating class. For example, suppose that the economy cabin is completely full and no alternate seat location in that cabin can be found for a service animal that cannot be seated at the passenger's original seat location. If the business or first class cabin has vacant space, the carrier could choose to move the passenger and animal into the vacant space, rather than make the passenger and animal take a later flight.)
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 carriers from imposing special charges for accommodations required by the regulation, such as carriage of a service animal. However, a 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 preboarding 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 or psychiatric service 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 are traveling with an emotional support or psychiatric service animal, you may be required by the airline to provide 48 hours’ advance notice.
• 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 preboarding—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 preboard 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, except for emotional support or psychiatric service animals, or on 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
• If you are having difficulty receiving an appropriate accommodation, ask the airline employee to contact the airline's CRO. Part 382 requires all airlines to have a CRO available during all hours of operation. The CRO is a resource for resolving difficulties related to disability accommodations.
• Another resource for resolving issues related to disability accommodations is the U.S. Department of Transportation's 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 382.5)
Any individual with a disability who:
(1) “Takes those actions necessary to avail himself or herself of facilities or services offered by a 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 carrier”; or
(3) “Purchases or possesses a valid ticket for air transportation on an 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 382.5).
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).
This action has been determined to be significant under Executive Order 12866 and the Department of Transportation Regulatory Policies and Procedures. It extends regulatory coverage under the ACAA to foreign carriers for the first time and adds requirements concerning passengers who use medical oxygen and accommodations for deaf and hard-of-hearing passengers. These are areas of considerable importance to passengers and air carriers and are of interest to the public and members of Congress.
The costs and benefits of the rule are summarized in the following tables, taken from the regulatory evaluation. It is very important to keep in mind that, in the Department's view, this rule has very significant nonquantifiable benefits, which these tables do not address. These nonquantifiable benefits include increased opportunities for individuals with disabilities to access the air travel system without discrimination and with fewer unnecessary barriers. This access opens up business and personal travel opportunities and the personal and economic benefits that result from the increased chance to travel. These nonquantifiable benefits make the rule cost-beneficial, even without considering the significant economic benefits displayed in the tables below.
The Regulatory Flexibility Act (5 U.S.C. 601
We project that about 30 small foreign carriers would incur costs related to boarding equipment (small U.S. carriers already are subject to this requirement). These costs represent a total present value ranging from $1.161 million to $2.245 million, or from $39,000 to $75,000 per carrier, almost entirely in the first two years. When more than one small carrier uses the same airport, however, a sharing arrangement may be more efficient. The affected airlines are, it should be noted, the larger small carriers, those which use aircraft with more than 19 seats and which serve a greater number of airports.
Both small U.S. and small foreign carriers would incur costs related to training. We project that U.S. carriers would need to provide two hours of training to each of their employees with respect to new requirements concerning oxygen and deaf and hard-of-hearing passengers. On this assumption, the present value of training costs would be $2.6 million or $7,738 for each of the 338 carriers affected by the rule.
Our analysis estimates that training costs for foreign carriers would amount to a present value of $0.8 million to $1.6 million over 20 years. Assuming the number of carriers affected to be 30, the cost would be $27,000 to $54,000 per carrier.
With small carriers handling 2.8 percent of the estimated medical oxygen reservations at a cost of $25 each, we would project small carrier costs as being a total present value of $5.4 million, or $16,000 per carrier. This figure is probably overstated, because many small carriers are affiliated with larger airlines that process reservations for them.
Following the line of argument adopted throughout Department's overall regulatory evaluation, these costs should be offset by an expected
We note that, while we have examined the effects of the rule on small foreign as well as small U.S. carriers, the Regulatory Flexibility Act does not apply to foreign entities. On the basis of this examination, the Department certifies that this rule will not have a significant economic impact on a significant number of small entities.
The Regulatory Flexibility Act (5 U.S.C. 601
We project that about 30 small foreign carriers would incur costs related to boarding equipment (small U.S. carriers already are subject to this requirement). These costs represent a total present value ranging from $1.161 million to $2.245 million, or from $39,000 to $75,000 per carrier, almost entirely in the first two years. mall carrier use the same airport, however, a sharing arrangement may be more efficient. The affected airlines are, it should be noted, the larger small carriers, those which use aircraft with more than 19 seats and which serve a greater number of airports.
Both small U.S. and small foreign carriers would incur costs related to training. We project that U.S. carriers would need to train their employees two hours each with respect to new requirements concerning oxygen and deaf and hard-of-hearing passengers. On this assumption, the a present value of training costs would be $2.6 million or $7,738 for each carrier involved.
Our analysis estimates that training costs for foreign carriers would amount to a present value of $0.8 million to $1.6 million over 20 years. Assuming the number of carriers affected to be 30, the cost for each would be $27,000 to $54,000 per carrier.
With small carriers handling 2.8 percent of the estimated medical oxygen reservations at a cost of $25 each, we would project small carrier costs as being a total present value of $5.4 million, or $16,000 per carrier. This figure is probably overstated, because many small carriers are affiliated with larger airlines that process reservations for them.
Following the line of argument adopted throughout Department's overall regulatory evaluation, these costs should be offset by an expected increase in the number of PWDs willing and able to fly on small carriers.
We note that, while we have examined the effects of the rule on small foreign as well as small U.S. carriers, the Regulatory Flexibility Act does not apply to foreign entities. On the basis of this examination, the Department certifies that this rule will not have a significant economic impact on a significant number of small entities.
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule does not include any provision that: (1) 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; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not significantly or uniquely affect the communities of the Indian tribal governments and does not impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply.
The final rule does contain a new information collection requirement that requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 2507
Section 382.157 involves disability-related complaint reporting to the Department. This provision is identical to a provision of the existing Part 382, and it is subject to an existing Paperwork Reduction Act approval by OMB. No further approvals are needed for this section at the present time.
The Department has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.
Air carriers, Consumer protection, Individuals with disabilities, Reporting and recordkeeping requirements.
49 U.S.C. 41705.
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 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 regulation, 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 a 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.
As a U.S. or foreign carrier, you are required to comply with the requirements of this Part on May 13, 2009, except as otherwise provided in individual sections of this Part.
(a) If you are a U.S. carrier, this Part applies to you with respect to all your operations and aircraft, regardless of where your operations take place, except as otherwise provided in this Part.
(b) If you are a foreign carrier, this Part applies to you only with respect to flights you operate 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.
A passenger books a nonstop flight on a foreign carrier from New York to Frankfurt, or Frankfurt to New York. Each of these is a “flight” for purposes of this Part.
A passenger books a journey on a foreign carrier from New York to Prague. The foreign carrier flies nonstop to Frankfurt. The passenger gets off the plane in Frankfurt and boards a connecting flight (with a different flight number), on the same foreign carrier or a different carrier, which goes to Prague. The New York-Frankfurt leg of the journey is a “flight” for purposes of this Part; the Frankfurt-Prague leg is not. On the reverse routing, the Prague-Frankfurt leg is not a covered flight for purposes of this Part, while the Frankfurt-New York leg is.
A passenger books a journey on a foreign carrier from New York to Prague. The plane stops for refueling and a crew change in Frankfurt. If, after deplaning in Frankfurt, the passengers originating in New York reboard the aircraft (or a different aircraft, assuming the flight number remains the same) and continue to Prague, they remain on a covered flight for purposes of this Part. This is because their transportation takes place on a direct flight between New York and Prague, even though it had an interim stop in Frankfurt. This example would also apply in the opposite direction (Prague to New York via Frankfurt).
In Example 3, the foreign carrier is not subject to coverage under this Part with respect to a Frankfurt-originating passenger who boards the aircraft and goes to Prague, or a Prague-originating passenger who gets off the plane in Frankfurt and does not continue to New York.
(c) As a foreign carrier, you are not subject to the requirements of this Part with respect to operations between two foreign points, even with respect to flights involving code-sharing arrangements with U.S. carriers. As a U.S. carrier that participates in a code-sharing arrangement with a foreign carrier with respect to operations between two foreign points, you (as distinct from the foreign carrier) are responsible for ensuring compliance with the service provisions of subparts A through C, F through H, and K with respect to passengers traveling under your code on such a flight.
A passenger buys a ticket from a U.S. carrier for a journey from New York to Prague. The ticket carries the U.S. carrier's code and flight number throughout the entire journey. There is a change of carrier and aircraft in Frankfurt, and a foreign carrier operates the Frankfurt-Prague segment. The foreign carrier is not subject to the provisions of Part 382 for the Frankfurt-Prague segment. However, the U.S. carrier must ensure compliance with the applicable provisions of Part 382 on the Frankfurt-Prague segment with respect to passengers flying under its code, and the Department could take enforcement action against the U.S. carrier for acts or omissions by the foreign carrier.
(d) As a foreign carrier, if you operate a charter flight from a foreign airport to a U.S. airport, and return to a foreign airport, and you do not pick up any passengers in the U.S., the charter operation is not a flight subject to the requirements of this Part.
(e) 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.
(f) If you are an indirect carrier, §§ 382.17 through 382.157 of this Part do not apply, except insofar as § 382.11(b) applies to you.
(g) Notwithstanding any provisions of this Part, you must comply with all FAA safety regulations, TSA security regulations, and foreign safety and security regulations having legally mandatory effect 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, C-70 U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W96-322, Washington, DC 20590.
(c) Your waiver request must be in English and 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 Department may grant the waiver request, or grant the waiver request subject to conditions, if it 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 provisions of this Part subject to the waiver or have demonstrated by clear and convincing evidence that it would be impossible to achieve this objective in any way.
(e) (1) If you submit a waiver request on or before September 10, 2008, the Department will, to the maximum extent feasible, respond to the request before May 13, 2009. If the Department does not respond to the waiver request by May 13, 2009, you may continue to implement the policy or practice that is the subject of your request until the Department does respond. The Department will not take enforcement action with respect to your implementation of the policy or practice during the time prior to the Department's response.
(2) If you submit a waiver request after September 10, 2008, the Department will, to the maximum extent feasible, respond to the request by May 13, 2009 or within 180 days of receiving it, whichever is later. If the Department does not respond to the waiver request by this date, you may continue to implement the policy or practice that is the subject of your request until the Department does respond. However, the Department may take enforcement action with respect to your implementation of the policy or practice during the time between May 13, 2009 and the date of the Department's response.
(3) If you submit a waiver request after September 10, 2008, and the request pertains to an applicable provision of the law of a foreign nation that did not exist on September 10, 2008, you may continue to implement the policy or practice that is the subject of your request until the Department responds to the request. The Department will, to the maximum extent feasible, respond to such requests within 180 days of receiving them. The Department will not take enforcement action with respect to your implementation of the policy or practice during the time prior to the Department's response.
(f) Notwithstanding any other provision of this section, the Department may commence enforcement action at any time after May 13, 2009 with respect to the policy or practice that is the subject of the request if it finds the request to be frivolous or dilatory.
(g) If you have not submitted a request for a waiver under this section with respect to a provision of this Part, or such a request has been denied, you cannot raise the alleged existence of such a conflict as a defense to an enforcement action.
(a) As a U.S. or foreign carrier, you may apply to the Department for a determination that you are providing an equivalent alternative to passengers with disabilities.
(b) You must send your application for an equivalent alternative determination to the following address: Assistant General Counsel for Aviation Enforcement and Proceedings (C-70), U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W96-322, Washington, DC 20590.
(c) Your application must be in English and include the following elements:
(1) A citation to the specific provision of this Part concerning which you are proposing an equivalent alternative.
(2) A detailed description of the alternative policy, practice, or other accommodation you are proposing to use in place of compliance with the provision of this Part that you cite, and an explanation of how it provides substantially equivalent accessibility to passengers with disabilities.
(d) The Department may grant the application, or grant the application subject to conditions, if it determines that the proposed facilitation does provide substantially equivalent accessibility to passengers with disabilities, compared to compliance with the provision of this Part in question.
(e) If your application is granted, you will be deemed to be in compliance with this Part through implementing the equivalent alternative. If your application is denied, you must implement this Part as written.
(f)(1) If you submit your application on or before September 10, 2008, the Department will respond to the request before May 13, 2009 to the maximum extent feasible. If the Department does not respond to the application by May 13, 2009, you may implement your policy or practice that is the subject of your application until the Department does respond.
(2) With respect to an application you make after September 10, 2008, you must comply with the provisions of this Part without change from May 13, 2009 until the Department responds to your application.
(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(c), 382.85(b), and 382.123(a) of this Part.
(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, except where specifically permitted by this Part. 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 adverse action against an individual (
(b) If, as an indirect carrier, you provide facilities or services for other carriers that are covered by sections 382.17 through 382.157, you must do so in a manner consistent with those sections.
(a) As a carrier, you must modify your policies, practices, and facilities when needed to provide nondiscriminatory service to a particular individual with a disability, consistent with the standards of section 504 of the Rehabilitation Act, as amended.
(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 that 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 that provide services to the public 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 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 for enforcing the assurances in your contracts with them.
(e) It is not a defense against 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)(6) of this Part.)
(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 or applicable requirements of a foreign government.
(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
(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, you must apply the provisions of § 382.19(c)(1)-(2) of this subpart.
(1) In making this assessment, you may rely on directives issued by public health authorities (
(2) In making this assessment, you must consider the significance of the consequences of a communicable disease and the degree to which it can be readily transmitted by casual contact in an aircraft cabin environment.
The common cold is readily transmissible in an aircraft cabin environment but does not have severe health consequences. Someone with a cold would not pose a direct threat.
AIDS has very severe health consequences but is not readily transmissible in an aircraft cabin environment. Someone would not pose a direct threat because he or she is HIV-positive or has AIDS.
SARS may be readily transmissible in an aircraft cabin environment and has severe health consequences. Someone with SARS probably poses a direct threat.
(c) If a passenger with a communicable disease meeting the direct threat criteria of this section gives you a medical certificate of the kind outlined in § 382.23(c)(2) describing 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.
(d) 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.
(e) 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.
(3) To be valid, a medical certificate under this paragraph must be dated within 10 days of the scheduled date of the passenger's initial departing flight.
A passenger who schedules a flight from New York to London on January 15 with a return on April 15 would have to show a medical certificate dated January 5 or later. The passenger would not have to show a second medical certificate dated April 5 or later.
(c)(1) You may also require a medical certificate for a passenger if he or she has a communicable disease or condition that could pose a direct threat to the health or safety of others on the flight.
(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. A medical certificate under this paragraph must be dated within 10 days of the date of the flight for which it is presented.
(d) As a carrier, you may require that a passenger with a medical certificate undergo additional medical review by you if there is a legitimate medical reason for believing that there has been a significant adverse change in the passenger's condition since the issuance of the medical certificate or that the certificate significantly understates the passenger's risk to the health of other persons on the flight. If the results of this medical review demonstrate that the passenger, notwithstanding the medical certificate, is likely to be unable to complete the flight without requiring extraordinary medical assistance (
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 and §§ 382.133(c)(3) and 382.133(d)(3), 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 72 hours' advance notice and check in one hour before the check-in time for the general public to receive carrier-supplied in-flight medical oxygen on international flights, 48 hours' advance notice and check-in one hour before the check-in time for the general public to receive carrier-supplied in-flight medical oxygen on domestic flights, and 48 hours' advance notice and check-in one hour before the check-in time for the general public to use his/her ventilator, respirator, CPAP machine or POC.
(c) You may require a passenger with a disability to provide up to 48 hours' advance notice and check in one hour before the check-in time for the general public to receive the following services and accommodations. The services listed in paragraphs (c)(1) through (c)(3) of this section are optional; you are not required to provide them, but you may choose to do so.
(1) Carriage of an incubator;
(2) Hook-up for a respirator, ventilator, CPAP machine or POC to the aircraft electrical power supply;
(3) Accommodation for a passenger who must travel in a stretcher;
(4) Transportation for an electric wheelchair on an aircraft with fewer than 60 seats;
(5) Provision of hazardous materials packaging for batteries or other assistive devices that are required to have such packaging;
(6) Accommodation for a group of ten or more qualified individuals with a disability, who make reservations and travel as a group; and
(7) Provision of an on-board wheelchair on an aircraft with more than 60 seats that does not have an accessible lavatory.
(8) Transportation of an emotional support or psychiatric service animal in the cabin;
(9) Transportation of a service animal on a flight segment scheduled to take 8 hours or more;
(10) Accommodation of a passenger who has both severe vision and hearing impairments (see § 382.29(b)(4)).
(d) If the passenger with a disability provides the advance notice you require, consistent with this section, for a service that you must provide (see paragraphs (c)(4) through (c)(10) of this section) or choose to provide (see paragraphs (c)(1) through (c)(3) of this section), you must provide the requested service or accommodation.
(e) 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.
(f) 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 (
(g) 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 the safety regulations of a foreign carrier's government, as applicable;
(3) A passenger with a mobility impairment so severe that the person is unable to physically assist in his or her own evacuation of the aircraft;
(4) A passenger who has both severe hearing and severe vision impairments, if the passenger cannot establish some means of communication with carrier personnel that is adequate both to permit transmission of the safety briefing required by 14 CFR 121.57(a)(3) and (a)(4), 14 CFR 135,117(b) or the safety regulations of a foreign carrier's government, as applicable, and to enable the passenger to assist in his or her own evacuation of the aircraft in the event of an emergency. You may require a passenger with severe hearing and vision impairment who wishes to travel without a safety assistant to notify you at least 48 hours in advance to provide this explanation. If the passenger fails to meet this notice requirement, however, you must still accommodate him or her to the extent practicable.
(c)(1) 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. You are not required to find or provide the safety assistant, however.
(2) For purposes of paragraph (b)(4) of this section, you may require, contrary to the individual's self-assessment, that an individual with both severe hearing and vision impairments must travel with a safety assistant if you determine that—
(i) The means of communication that the individual has explained to you does not adequately satisfy the objectives identified in paragraph (b)(4) of this section; or
(ii) The individual proposes to establish communication by means of finger spelling and you cannot, within the time following the individual's notification, arrange for a flight crew member who can communicate using this method to serve the passenger's flight.
(3) If a passenger voluntarily chooses to travel with a personal care attendant
(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, you must compensate the passenger with a disability in an amount to be calculated as provided for instances of involuntary denied boarding under 14 CFR part 250, where part 250 applies.
(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) Except as otherwise provided in this Part you must not, as a carrier, 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 (
(c) If your web site that passengers use to make reservations or purchase tickets is not accessible to a passenger with a disability, you must not charge a fee to the passenger who is consequently unable to make a reservation or purchase a ticket on that site for using another booking method (
(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) 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, or for the loss of, death of, or injury to service animals. Carriers may note pre-existing damage to an assistive device to the same extent that carriers do this with respect to other checked baggage.
As a carrier, you must provide the following information, on request, to qualified individuals with a disability or persons making inquiries on their behalf concerning the accessibility of the aircraft expected to make a particular flight. The information you provide must be specific to the aircraft you expect to use for the flight unless it is unfeasible for you to do so (
(a) The specific location of seats, if any, with movable armrests (
(b) The specific location of seats (
(c) Any aircraft-related, service-related or other limitations on the ability to accommodate passengers with a disability, including limitations on the availability of level-entry boarding 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 of this Part;
(e) Whether the aircraft has an accessible lavatory; and
(f) The types of services to passengers with a disability that are or are not available on the flight.
(a) If, as a carrier, you provide telephone reservation and information service to the public, you must make this service available to individuals who use a text telephone (TTY), whether via your own TTY, voice relay, or other available technology, as follows:
(1) You must provide access to TTY users during the same hours as the telephone service is available to the general public.
(2) You must ensure that the response time for answering calls and the level of service provided to TTY users is substantially equivalent to the response time and level of service provided to the general public (
(3) You must not subject TTY users to charges exceeding those that apply to non-TTY users of telephone information and reservation service.
(4) In any medium in which you list the telephone number of your information and reservation service for the general public, you must also list your TTY number if you have one. If you do not have a TTY number, you must state how TTY users can reach your information and reservation service (
(5) If you are a foreign carrier, you must meet this requirement by May 13, 2010.
(b) The requirements of paragraph (a) do not apply to you in any country in which the telecommunications infrastructure does not readily permit compliance.
(a) As a carrier, you must keep a current copy of this Part at each airport you serve. As a foreign carrier, you must keep a copy of this Part at each airport serving a flight you operate that begins or ends at a U.S. airport. You must make this copy available for review by any member of the public on request.
(b) If you have a Web site, it must provide notice to consumers that they can obtain a copy of this Part in an accessible format from the Department of Transportation by any of the following means:
(1) For calls made from within the United States, by telephone via the Toll-Free Hotline for Air Travelers with Disabilities at 1-800-778-4838 (voice) or 1-800-455-9880 (TTY),
(2) By telephone to the Aviation Consumer Protection Division at 202-366-2220 (voice) or 202-366-0511 (TTY),
(3) By mail to the Air Consumer Protection Division, C-75, U.S. Department of Transportation, 1200 New Jersey Ave., SE., West Building, Room W96-432, Washington, DC 20590, and
(4) On the Aviation Consumer Protection Division's Web site (
(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 providing access to air transportation 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.
(5) In cooperation with the airport operator and in consultation with local service animal training organization(s), you must provide animal relief areas for service animals that accompany passengers departing, connecting, or arriving at an airport on your flights.
(6) You must enable captioning at all times on all televisions and other audio-visual displays that are capable of displaying captions and that are located in any portion of the terminal to which any passengers have access on May 13, 2009. The captioning must be high-contrast insofar as is feasible.
(7) You must replace any televisions and other audio-visual displays providing passengers with safety briefings, information, or entertainment that do not have high-contrast captioning capability with equipment that does have such capability whenever such equipment is replaced in the normal course of operations and/or whenever areas of the terminal in which such equipment is located are undergoing substantial renovation or expansion.
(8) If you newly acquire televisions and other audio-visual displays for passenger safety briefings, information, or entertainment on or after May 13, 2009, such equipment must have high-contrast captioning capability.
(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 covered by § 382.7 of this part.
(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 carrier, you must meet the requirements of this section by May 13, 2010. As a U.S. carrier, you must meet the requirements of paragraph (b) of this section by May 13, 2010.
(a)(1) As a U.S. carrier, you must ensure that passengers with a disability who identify themselves as persons needing visual or hearing assistance have prompt access to the same information provided to other passengers at each gate, ticketing area, and customer service desk that you own, lease, or control at any U.S. or foreign airport, to the extent that this does not interfere with employees' safety and security duties as set forth in FAA, TSA, and applicable foreign regulations.
(2) As a foreign carrier, you must make this information available at each gate, ticketing area, and customer service desk that you own, lease, or control at any U.S. airport. At foreign airports, you must make this information available only at gates, ticketing areas, or customer service desks that you own, lease, or control and only for flights that begin or end in the U.S.
(3) As a U.S. or foreign carrier, at any U.S. airport covered by this paragraph where the airport has effective control over the covered gates, ticketing areas, and customer service desks, you and the airport are jointly responsible for compliance.
(b) The information you must provide under paragraph (a) of this section includes, but is not limited to, the following: Information concerning flight safety, ticketing, flight check-in, flight delays or cancellations, schedule changes, boarding information, connections, gate assignments, checking baggage, volunteer solicitation on oversold flights (
(c) With respect to information on claiming baggage, you must provide the information to passengers who identify themselves as persons needing visual or hearing assistance no later than you provide this information to other passengers.
(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 a carrier, you impose security screening procedures for passengers with disabilities that go beyond those mandated by TSA (or, at a foreign airport, beyond the law of the country in which the airport is located), you must ensure that they meet the following requirements:
(1) You must use the same criteria for applying security screening procedures to passengers with disabilities 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 aid or device clears the security system without activating it.
(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.
As a carrier, if your automated kiosks in airport terminals cannot readily be used by a passenger with a disability for such functions as ticketing and obtaining boarding passes that the kiosks make available to other passengers, you must provide equivalent service to the passenger (
(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 rows in which passengers with mobility impairments are permitted to sit under FAA or applicable foreign government safety rules.
(b) You are not required to provide movable armrests on aisle seats of rows 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 passengers 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 any of an aircraft's aisle seats with newly manufactured seats, the new seats must include movable aisle armrests as required by this section. However, an aircraft is never required to have movable aisle armrests on more than one half of the aisle seats.
(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 May 13, 2009 or which are delivered after May 13, 2010. As a U.S. carrier, the requirements of paragraphs (a), (b), (d), and (e) of this section applies to you with respect to new aircraft you operate that were initially ordered after April 5, 1990, or which are delivered after April 5, 1992. As a U.S. carrier, paragraph (c) of this section applies to you with respect to new aircraft you operate that were initially ordered after May 13, 2009 or which were delivered after May 13, 2010.
(g) As a foreign carrier, you must comply with the requirements of paragraph (e) of this section with respect to seats ordered after May 13, 2009.
(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.
(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 May 13, 2009 or which are delivered after May 13, 2010. 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
(e) As a foreign carrier, you must comply with the requirements of paragraph (c) of this section beginning May 13, 2009. As a U.S. carrier, these requirements apply to you with respect to new aircraft you operate that were initially ordered after April 5, 1990, or which were delivered after April 5, 1992.
(a) As a carrier, you must equip aircraft that have more than 60 passenger seats, and that have an accessible lavatory (whether or not having such a lavatory is required by § 382.63 of this Part) with an on-board wheelchair. The Aerospatiale/Aeritalia ATR-72 and the British Aerospace Advanced Turboprop (ATP), in configurations having between 60 and 70 passenger seats, are exempt from this requirement.
(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 more than 60 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 May 13, 2010. As a U.S. carrier, you must meet this requirement by May 13, 2009.
(a) As a carrier, you must ensure that there is a priority space in the cabin of sufficient size to stow at least one typical adult-sized folding, collapsible, or break-down manual 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. This requirement applies to any aircraft with 100 or more passenger seats; and
(b) This space must be other than the overhead compartments and under-seat spaces routinely used for passengers' carry-on items.
(c) As a foreign carrier, you must meet the requirement of paragraph (a) of this section for new aircraft ordered after May 13, 2009 or delivered after May 13, 2010. As a U.S. carrier, this requirement applies to you with respect to new aircraft you operate that were ordered after April 5, 1990, or which were delivered after April 5, 1992.
(a) As a carrier, you must ensure that all new videos, DVDs, and other audio-visual displays played on aircraft for safety purposes, and all such new audio-visual displays played on aircraft for informational purposes that were created under your control, are high-contrast captioned. The captioning must be in the predominant language or languages in which you communicate with passengers on the flight.
(b) The requirements of paragraph (a) of this section go into effect with respect to audio-visual displays used for safety purposes on November 10, 2009.
(c) Between May 13, 2009 and November 9, 2009, U.S. carriers must ensure that all videos, DVDs, and other audio-visual displays played on aircraft for safety purposes have open captioning or an inset for a sign language interpreter, unless such captioning or inset either would interfere with the video presentation so as to render it ineffective or would not be large enough to be readable, in which case these carriers must use an equivalent non-video alternative for transmitting the briefing to passengers with hearing impairments.
(d) The requirements of paragraph (a) of this section go into effect with respect to informational displays on January 8, 2010.
(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 the accessibility of that element 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 and the type of seating accommodation in question exists on the particular aircraft. Once the passenger self-identifies to you, you must ensure that the information is recorded and properly transmitted to personnel responsible for providing the accommodation.
(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. You must ensure that your personnel are trained in the location and proper use of movable aisle armrests, including appropriate transfer techniques. You must ensure that aisle seats with movable armrests are clearly identifiable.
(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
(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 of this Part) 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 of this Part who requests the accommodation at the time the passenger makes the request. You may require such a passenger to check in and request the seating accommodation at least one hour before the standard check-in time for 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 standard check-in time for the general public, 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 provide advance seat assignments 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 of this Part.
As a carrier, you must provide the following seating accommodations to a passenger who self-identifies as having a disability other than one in the four categories listed in § 382.81 (a) through (d) of this Part and as needing a seat assignment accommodation in order to readily access and use the carrier's air transportation services:
(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) of this Part, 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) of this Part 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) of this Part, 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 standard check-in time for 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) of this subpart.
(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.
(c) If you assign seats to passengers, but not until the date of the flight, you must use the “priority seating” approach of section 382.83(a)(2).
(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 or applicable foreign government safety requirements.
(b) In responding to requests from individuals for accommodations under this subpart, you must comply with FAA and applicable foreign government 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
(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.
(a) As a carrier, you must provide or ensure the provision of assistance requested by or on behalf of a passenger with a disability, or offered by carrier or airport operator personnel and accepted by 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 (
(b) You must also provide or ensure the provision of assistance requested by or on behalf of a passenger with a disability, or offered by carrier or airport operator personnel and accepted by 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).
(1) This requirement includes assistance in accessing key functional areas of the terminal, such as ticket counters and baggage claim.
(2) This requirement also includes a brief stop upon the passenger's request at the entrance to a rest room (including an accessible rest room when requested). As a carrier, you are required to make such a stop only if the rest room is available on the route to the destination of the enplaning, deplaning, or connecting assistance and you can make the stop without unreasonable delay. To receive such assistance, the passenger must self-identify as being an individual with a disability needing the assistance.
(c) As a carrier at a U.S. airport, you must, on request, in cooperation with the airport operator, provide for escorting a passenger with a service animal to an animal relief area provided under § 382.51(a)(5) of this Part.
(d) As part of your obligation to provide or ensure the provision of assistance to passengers with disabilities in moving through the terminal (
As a carrier, you must offer preboarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, stow accessibility equipment, or be seated.
(a) As a carrier, you must promptly provide or ensure the provision of assistance requested by or on behalf of passengers with a disability, or offered by carrier or airport operator personnel and accepted by passengers with a disability, in enplaning and deplaning. 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 of section 382.95(b) of this Part 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 19-seat capacity 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 accommodate 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 U.S. airport described in § 382.95(b) to ensure the provision of lifts for boarding and deplaning where level-entry loading bridges are not available.
(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 May 13, 2010.
(c) For foreign carriers, the agreement with a U.S. airport 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 May 13, 2010.
(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 standard check-in
(e) The agreement must ensure that all lifts and other accessibility equipment are maintained in proper working condition.
(f) All carriers and airport operators involved are jointly and severally responsible for the timely and complete implementation of the agreement.
(g) You must make a copy of 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 or ensure the provision of 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 the lift boarding and deplaning assistance requirements under § 382.97 (a)-(c) of this subpart;
(d) The deadlines established in § 382.99(c) have not yet passed; and
(e) Circumstances beyond your control (
As a carrier, you must not leave a passenger who has requested assistance required by this subpart unattended by the personnel responsible for enplaning, deplaning, or connecting assistance 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 (
At a foreign airport at which enplaning, deplaning, or connecting assistance is provided by the airport operator, rather than by carriers, as a carrier you may rely on the services provided by the airport operator to meet the requirements of this subpart. If the services provided by the airport operator are not sufficient to meet the requirements of this subpart, you must supplement the airport operator's services to ensure that these requirements are met. If you believe you are precluded by law from supplementing the airport operator's services, you may apply for a conflict of laws waiver under § 382.9 of this Part.
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 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 semi-ambulatory 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 (see also 382.91(c)). To receive such assistance, the passenger must self-identify as being an individual with a disability needing the assistance.
(f) Effective communication with passengers who have vision impairments and/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 services.
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 respect to the general safety briefing. You must not take any action adverse to a qualified individual with a disability on the basis that the person has not “accepted” the briefing.
(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) The accessibility requirements for onboard video safety presentations that carriers must meet are outlined in section 382.69.
(a) As a carrier, you must permit a service animal to accompany a passenger with a disability.
(1) You must not deny transportation to a service animal on the basis that its carriage may offend or annoy carrier personnel or persons traveling on the aircraft.
(2) On a flight segment scheduled to take 8 hours or more, you may, as a condition of permitting a service animal to travel in the cabin, require the
(b) You must permit the service animal to accompany the passenger with a disability at 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 another seat location, if present on the aircraft, where the animal can be accommodated.
(d) As evidence that an animal is a service animal, you must accept 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) If a passenger seeks to travel with an animal that is used as an emotional support or psychiatric service animal, you are not required to accept the animal for transportation in the cabin unless the passenger provides you current documentation (
(1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM IV);
(2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger's destination;
(3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and
(4) The date and type of the mental health professional's license and the state or other jurisdiction in which it was issued.
(f) You are never required to accommodate certain unusual service animals (
(g) 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 10 calendar days of the incident.
(h) You must promptly take all steps necessary to comply with foreign regulations (
(i) Guidance concerning the carriage of service animals generally is found in the preamble of this rule. Guidance on the steps necessary to legally transport service animals on flights from the U.S. into the United Kingdom is found in 72 FR 8268-8277, (February 26, 2007).
(a) As a carrier, you must ensure that passengers with a disability who identify themselves as needing visual or hearing assistance have prompt access to the same information provided to other passengers on the aircraft as described in paragraph (b) of this section, to the extent that it does not interfere with crewmembers' safety duties as set forth in FAA and applicable foreign regulations.
(b) The covered information includes but is not limited to the following: information concerning flight safety, procedures for takeoff and landing, flight delays, schedule or aircraft changes that affect the travel of persons with disabilities, diversion to a different airport, scheduled departure and arrival time, boarding information, weather conditions at the flight's destination, beverage and menu information, connecting gate assignments, baggage claim, individuals being paged by airlines, and emergencies (
(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, PHMSA, TSA, or applicable foreign government requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items.
(1) Manual wheelchairs, including folding or collapsible 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) The following rules apply to the stowage of passengers' wheelchairs or other assistive devices in the priority stowage area provided for in § 382.67 of this Part:
(1) You must ensure that a passenger with a disability who uses a wheelchair and takes advantage of the opportunity to preboard the aircraft can stow his or her wheelchair in this area, with priority over other items brought onto the aircraft by other passengers or crew enplaning at the same airport, consistent with FAA, PHMSA, TSA, or applicable foreign government requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items. You must move items that you or your personnel have placed in the priority stowage area (
(2) You must also ensure that a passenger with a disability who takes advantage of the opportunity to preboard the aircraft can stow other assistive devices in this area, with priority over other items (except wheelchairs) brought onto the aircraft by other passengers enplaning at the same airport consistent with FAA, PHMSA, TSA, or applicable foreign government requirements concerning security, safety, and hazardous materials with respect to the stowage of carry-on items.
(3) You must ensure that a passenger with a disability who does not take advantage of the opportunity to preboard is able to use the area to stow his or her wheelchair or other assistive device on a first-come, first-served basis along with all other passengers seeking to stow carry-on items in the area.
(b) If a wheelchair exceeds the space provided for in § 382.67 of this Part 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, you must stow the removed components in areas provided for stowage of carry-on luggage.
(c) You must not use the seat-strapping method of carrying a wheelchair in any aircraft you order after May 13, 2009 or which are delivered after May 13, 2011. Any such aircraft must have the designated priority stowage space required by section 382.67, and you must permit passengers to use the space as provided in this section 382.123.
(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, PHMSA, TSA, or applicable foreign government 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. Only items that fit into the baggage compartment and can be transported consistent with FAA, PHMSA, TSA, or applicable foreign government requirements concerning security, safety, and hazardous materials with respect to the stowage of items in the baggage compartment need be transported. 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 on the carrier's next flight to the destination.
(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 considerations do not prohibit doing so, you must, as a carrier, accept a passenger's battery-powered wheelchair or other similar mobility device, including the battery, as checked baggage, consistent with the requirements of 49 CFR 175.10(a)(15) and (16) and the provisions of paragraphs (b) through (f) of this section.
(b) You may require that passengers with a disability wishing to have battery-powered wheelchairs or other similar mobility devices transported on a flight check in one hour before the check-in time for the general public. If the passenger checks in after this time, you must nonetheless carry the wheelchair or other similar mobility device if you can do so by making a reasonable effort, without delaying the flight.
(c) If the battery on the passenger's wheelchair or other similar mobility device 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 must remove and package separately any battery that is inadequately secured to a wheelchair or, for a spillable battery, is contained in a wheelchair that cannot be loaded, stowed, secured and unloaded in an upright position, in accordance with 49 CFR 175.10(a)(15) and (16). A damaged or leaking battery should not be transported.
(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)(15) and (16) 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 disconnect the battery on wheelchairs or other mobility devices equipped with a non-spillable battery completely enclosed within a case or compartment integral to the design of the device unless an FAA or PHMSA safety regulation, or an applicable foreign safety regulation having mandatory legal effect, requires you to do so.
(f) You must not drain batteries.
(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, PHMSA, TSA, or applicable foreign government 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 transportation to which 14 CFR Part 254 applies, the limits to liability for loss, damage, or delay concerning wheelchairs or other assistive devices provided in Part 254 do not apply. The basis for calculating the compensation for a lost, damaged, or
(a) Except for on-demand air taxi operators, as a U.S. carrier conducting passenger service you must permit any individual with a disability to use in the passenger cabin during air transportation, a ventilator, respirator, continuous positive airway pressure machine, or an FAA-approved portable oxygen concentrator (POC) on all flights operated on aircraft originally designed to have a maximum passenger capacity of more than 19 seats, unless:
(1) the device does not meet applicable FAA requirements for medical portable electronic devices and does not display a manufacturer's label that indicates the device meets those FAA requirements, or
(2) the device cannot be stowed and used in the passenger cabin consistent with applicable TSA, FAA, and PHMSA regulations.
(b) Except for foreign carriers conducting operations of a nature equivalent to on-demand air taxi operations by a U.S. carrier, as a foreign carrier conducting passenger service you must permit any individual with a disability to use a ventilator, respirator, continuous positive airway pressure machine, or portable oxygen concentrator (POC) of a kind equivalent to an FAA-approved POC for U.S. carriers in the passenger cabin during air transportation to, from or within the United States, on all aircraft originally designed to have a maximum passenger capacity of more than 19 seats unless:
(1) The device does not meet requirements for medical portable electronic devices set by the foreign carrier's government if such requirements exist and/or it does not display a manufacturer's label that indicates the device meets those requirements, or
(2) The device does not meet requirements for medical portable electronic devices set by the FAA for U.S. carriers and does not display a manufacturer's label that indicates the device meets those FAA requirements in circumstances where requirements for medical portable electronic devices have not been set by the foreign carrier's government and the foreign carrier elects to apply FAA requirements for medical portable electronic devices, or
(3) The device cannot be stowed and used in the passenger cabin consistent with applicable TSA, FAA and PHMSA regulations, and the safety or security regulations of the foreign carrier's government.
(c) As a U.S. carrier, you must provide information during the reservation process as indicated in paragraphs (c)(1) through (c)(6) of this section upon inquiry from an individual concerning the use in the cabin during air transportation of a ventilator, respirator, continuous positive airway machine, or an FAA-approved POC. The following information must be provided:
(1) The device must be labeled by the manufacturer to reflect that it has been tested to meet applicable FAA requirements for medical portable electronic devices;
(2) The maximum weight and dimensions (length, width, height) of the device to be used by an individual that can be accommodated in the aircraft cabin consistent with FAA safety requirements;
(3) The requirement to bring an adequate number of batteries as outlined in paragraph (f)(2) of this section and to ensure that extra batteries carried onboard to power the device are packaged and protected from short circuit and physical damage in accordance with SFAR 106, Section 3 (b)(6);
(4) Any requirement, if applicable, that an individual contact the carrier operating the flight 48 hours before scheduled departure to learn the expected maximum duration of his/her flight in order to determine the required number of batteries for his/her particular ventilator, respirator, continuous positive airway pressure machine, or POC;
(5) Any requirement, if applicable, of the carrier operating the flight for an individual planning to use such a device to check-in up to one hour before that carrier's general check-in deadline; and
(6) For POCs, the requirement of paragraph 382.23(b)(1)(ii) of this Part to present to the operating carrier at the airport a physician's statement (medical certificate) prepared in accordance with applicable federal aviation regulations.
(d) As a foreign carrier operating flights to, from or within the United States, you must provide the information during the reservation process as indicated in paragraphs (d)(1) through (d)(7) of this section upon inquiry from an individual concerning the use in the cabin during air transportation on such a flight of a ventilator, respirator, continuous positive airway machine, or POC of a kind equivalent to an FAA-approved POC for U.S. carriers:
(1) The device must be labeled by the manufacturer to reflect that it has been tested to meet requirements for medical portable electronic devices set by the foreign carrier's government if such requirements exist;
(2) The device must be labeled by the manufacturer to reflect that it has been tested to meet requirements for medical portable electronic devices set by the FAA for U.S. carriers if requirements for medical portable electronic devices have not been set by the foreign carrier's government and the foreign carrier elects to apply FAA requirements for medical portable electronic devices;
(3) The maximum weight and dimensions (length, width, height) of the device to be used by an individual that can be accommodated in the aircraft cabin consistent with the safety regulations of the foreign carrier's government;
(4) The requirement to bring an adequate number of batteries as outlined in paragraph (f)(2) of this section and to ensure that extra batteries carried onboard to power the device are packaged in accordance with applicable government safety regulations;
(5) Any requirement, if applicable, that an individual contact the carrier operating the flight 48 hours before scheduled departure to learn the expected maximum duration of his/her flight in order to determine the required number of batteries for his/her particular ventilator, respirator, continuous positive airway pressure machine, or POC;
(6) Any requirement, if applicable, of the carrier operating the flight for an individual planning to use such a device to check-in up to one hour before that carrier's general check-in deadline; and
(7) Any requirement, if applicable, that an individual who wishes to use a POC onboard an aircraft present to the operating carrier at the airport a physician's statement (medical certificate).
(e) In the case of a codeshare itinerary, the carrier whose code is used on the flight must either inform the individual inquiring about using a ventilator, respirator, CPAP machine or POC onboard an aircraft to contact the carrier operating the flight for information about its requirements for use of such devices in the cabin, or provide such information on behalf of the codeshare carrier operating the flight.
(f)(1) As a U.S. or foreign carrier subject to paragraph (a) or (b) of this section, you must inform any individual who has advised you that he or she plans to operate his/her device in the aircraft cabin, within 48 hours of his/her
(2) You may require an individual to bring an adequate number of fully charged batteries onboard, based on the battery manufacturer's estimate of the hours of battery life while the device is in use and the information provided in the physician's statement, to power the device for not less than 150% of the expected maximum flight duration.
(3) If an individual does not comply with the conditions for acceptance of a medical portable electronic device as outlined in this section, you may deny boarding to the individual in accordance with 14 CFR 382.19(c) and in that event you must provide a written explanation to the individual in accordance with 14 CFR 382.19(d).
(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 also train these employees to recognize requests for communication accommodation from individuals whose hearing or vision is impaired and to use the most common methods for communicating with these individuals that are readily available, such as writing notes or taking care to enunciate clearly, for example. Training in sign language is not required. You must also train these employees to recognize requests for communication accommodation from deaf-blind passengers and to use established means of communicating with these passengers when they are available, such as passing out Braille cards if you have them, reading an information sheet that a passenger provides, or communicating with a passenger through an interpreter, for example.
(4) You must consult with organizations representing persons with disabilities in your home country when developing your training program and your policies and procedures. If such organizations are not available in your home country, you must consult with individuals with disabilities and/or international organizations representing individuals with disabilities.
(5) 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. You must develop a program that will result in each such employee receiving refresher training at least once every three years. The program must describe how employee proficiency will be maintained.
(6) You must provide, or ensure that your contractors 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.
(7) The employees you designate as CROs, for purposes of § 382.151 of this Part, must receive training concerning the requirements of this Part and the duties of a CRO.
(8) Personnel subject to training required under this Part, who are already employed on May 13, 2009, must be trained one time in the changes resulting from the reissuance 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) Employees designated as CROs shall receive training concerning the requirements of this Part and the duties of a CRO before assuming their duties under § 382.151 (see § 382.141(a)(7)). You must ensure that all employees performing the CRO function receive annual refresher training concerning their duties and the provisions of this regulation. The one-time training for CROs about the changes to Part 382 must take place by May 13, 2009. For employees who have already received CRO training, this training may be limited to changes from the previous version of Part 382.
(2) The one-time training for existing employees about changes to Part 382 (see § 382.141(a)(8)) must take place as part of the next scheduled recurrent training after May 13, 2009 for each such employee or within one year after May 13, 2009, whichever comes first.
(3) For crewmembers subject to training requirements under 14 CFR Part 121 or 135 whose employment in any given position commences after May 13, 2009, before they assume their duties; and
(4) For other personnel whose employment in any given position commences after May 13, 2009, 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) Employees designated as CROs shall receive training in accordance with paragraph (a)(1) of this section, by May 13, 2009.
(2) For crewmembers and other personnel who are employed on May 13, 2009, within one year after that date;
(3) For crewmembers whose employment commences after May 13, 2010, before they assume their duties;
(4) For other personnel whose employment in any given position commences after May 13, 2010, or a date within 60 days after the date on which they assume their duties; and
(5) For crewmembers and other personnel whose employment in any given position commences after May 13,
(a) As a carrier that operates aircraft with 19 or more passenger seats, you must incorporate procedures implementing the requirements of this Part in the manuals or other guidance or instructional materials provided for the carrier and contract 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. You must retain these records 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.
(b) You must retain for three years individual employee training records demonstrating that all persons required to receive initial and refresher training have done so.
(a) As a carrier providing scheduled service, or a carrier providing nonscheduled service using aircraft with 19 or more passenger seats, you must designate one or more CROs.
(b) As a U.S. carrier, you must make a CRO available at each airport you serve during all times you are operating at that airport. As a foreign carrier, you must make a CRO available at each airport serving flights you operate that begin or end at a U.S. airport. 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 or a similarly effective technology must be available so that persons with hearing impairments may readily communicate with the CRO. You must make CRO service available in the language(s) in which you make your services available to the general public.
(c) 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 then contact a CRO on the passenger's behalf or provide the passenger a means (
(2) Your reservation agents, contractors, and Web sites must provide information equivalent to that required by paragraph (c)(1) of this section to passengers with a disability using those services who complain or raise a concern about a disability-related issue.
(d) 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.
(e) 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 for a carrier providing scheduled service, or a carrier providing nonscheduled service using aircraft with 19 or more passenger seats (
(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 30 calendar days of the complaint.
(a) As a carrier providing scheduled service, or a carrier providing nonscheduled service using aircraft with 19 or more passenger seats, you must respond to written complaints received by any means (
(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 enclose any written response you received from the CRO.
(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) For the purposes of this section, a disability-related complaint means a specific written expression of dissatisfaction received from, or
(b) If you are a carrier covered by this Part, conducting passenger operations with at least one aircraft having a designed seating capacity of more than 60 passengers, this section applies to you. As a foreign carrier, you are covered by this section only with respect to disability-related complaints associated with any flight segment originating or terminating in the United States.
(c) You must categorize disability-related complaints that you receive according to the type of disability and nature of complaint. Data concerning a passenger's disability must be recorded separately in the following areas: vision impaired, hearing impaired, vision and hearing impaired, mentally impaired, communicable disease, allergies (
(d) You must submit an annual report summarizing the disability-related complaints that you received during the prior calendar year using the form specified at the following internet address:
(e) You must retain correspondence and record of action taken on all disability-related complaints for three years after receipt of the complaint or creation of the record of action taken. You must make these records available to Department of Transportation officials at their request.
(f)(1) As either carrier in a codeshare relationship, you must comply with paragraphs (c) through (e) of this section for—
(i) Disability-related complaints you receive from or on behalf of passengers with respect to difficulties encountered in connection with service you provide;
(ii) Disability-related complaints you receive from or on behalf of passengers when you are unable to reach agreement with your codeshare partner as to whether the complaint involves service you provide or service your codeshare partner provides; and
(iii) Disability-related complaints forwarded by another carrier or governmental agency with respect to difficulties encountered in connection with service you provide.
(2) As either carrier in a codeshare relationship, you must forward to your codeshare partner disability-related complaints you receive from or on behalf of passengers with respect to difficulties encountered in connection with service provided by your code-sharing partner.
(g) Each carrier, except for carriers in codeshare situations, shall comply with paragraphs (c) through (e) of this section for disability-related complaints it receives from or on behalf of passengers as well as disability-related complaints forwarded by another carrier or governmental agency with respect to difficulties encountered in connection with service it provides.
(h) Carriers that do not submit their data via the Web shall use the disability-related complaint data form specified in Appendix A to this Part when filing their annual report summarizing the disability-related complaints they received. The report shall be mailed, by the date specified in paragraph (d) of this section, to the following address: U.S. Department of Transportation, Aviation Consumer Protection Division (C-75), 1200 New Jersey Avenue, SE., West Building, Room W96-432, Washington, DC 20590.
(a) Any person believing that a carrier has violated any provision of this Part may seek assistance or file an informal complaint at the Department of Transportation no later than 6 months after the date of the incident by either:
(1) going to the web site of the Department's Aviation Consumer Protection Division at
(2) writing to Department of Transportation, Aviation Consumer Protection Division (C-75), 1200 New Jersey Avenue, SE., Washington, DC 20590.
(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) You must file a formal complaint under this Part within six months of the incident on which the complaint is based in order to ensure that the Department of Transportation will investigate the matter.
The Department is providing the following table to assist users familiar with the current Part 382 in finding material in the new, renumbered Part 382.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice of proposed rulemaking (NPRM).
The Secretary proposes to amend the regulations in 34 CFR part 300 governing the Assistance to States for the Education of Children with Disabilities Program and Preschool Grants for Children with Disabilities Program, as published in the
We must receive your comments on or before July 28, 2008.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by e-mail. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID at the top of your comments.
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The Department's policy for comments received from members of the public (including those comments submitted by mail, commercial delivery, or hand delivery) is to make these submissions available for public viewing on the Federal eRulemaking Portal at
Tracy R. Justesen, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5107, Potomac Center Plaza, Washington, DC 20202-2600. Telephone: (202) 245-7605.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under
We invite you to submit comments regarding these proposed regulations. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations.
We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further opportunities we should provide to reduce the potential costs or increase potential benefits while preserving the effective and efficient administration of the programs.
During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You also may inspect the comments, in person, in Room 5104, Potomac Center Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under
On December 3, 2004, the Individuals with Disabilities Education Improvement Act of 2004 was enacted into law as Pub L. 108-446, and made significant changes to the IDEA. On June 21, 2005, the Secretary published a notice of proposed rulemaking in the
Final regulations for Part 304—Special Education-Personnel Development to Improve Services and Results for Children with Disabilities were published in the
On August 14, 2006, the Secretary published final regulations in the
In developing final regulations for the Assistance to States for the Education of Children with Disabilities Program, we identified certain issues for which additional regulatory changes might be necessary. These issues, which we address in this NPRM, are: (1) Parental revocation of consent after consenting to the initial provision of services; (2) a State's or local educational agency's (LEA's) obligation to make positive efforts to employ qualified individuals
We discuss issues according to subject, with appropriate sections of the proposed regulations indicated.
We propose to amend §§ 300.9 and 300.300 (71 FR 46757, 46783-46784) to permit parents to unilaterally withdraw their children from further receipt of special education and related services by revoking their consent for the continued provision of special education and related services to their children. Under the proposed regulation, a public agency would not be able, through mediation or a due process hearing, to challenge the parent's decision or seek a ruling that special education and related services must continue to be provided to the child.
Under section 614(a)(1)(D)(i)(II) of the Act, agencies responsible for making a free appropriate public education (FAPE) available to a child with a disability under Part B of the Act must seek to obtain informed consent from the child's parent before initiating the provision of special education and related services to the child. Section 614(a)(1)(D)(ii)(II) further requires that, if a parent refuses to provide such consent, the LEA shall not require the provision of those services to the child by utilizing the due process procedures under section 615 of the Act. In these circumstances, under section 614(a)(1)(D)(ii)(III) of the Act, the LEA is not considered to be in violation of its obligation to provide FAPE and is not required to convene an individualized education program (IEP) Team meeting or develop an IEP.
The regulations in § 300.300(b) (71 FR 46784) interpret the statutory provision in section 614(a)(1)(D)(i)(II) of the Act to require consent prior to the initial provision of special education and related services;
It has been our longstanding interpretation of the current regulations in § 300.300(b), and similar regulations that were in effect prior to October 13, 2006, that, although parents have the right to determine whether their child would initially receive special education and related services by providing or withholding parental consent for the initial provision of services, once the child receives special education and related services, parents cannot unilaterally withdraw their child from receipt of special education and related services. If parents no longer want their child to receive those services, yet the public agency believes the services are necessary to ensure that the child continues to receive FAPE, our view was that the public agency had an obligation to continue to provide the services, or if under State law the parent had the right to consent to continued services, to take the necessary steps, which could include using informal means to reach agreement with the parent, as well as requesting a due process hearing, to seek to override the parent's refusal to consent to the continuation of those services.
The issue of whether parents have the right to unilaterally withdraw their child from continued receipt of special education and related services was not included in the June 21, 2005 NPRM. The Department, however, received several comments on the consent provisions in the proposed regulations in §§ 300.9 and 300.300(b), including comments requesting that we address situations in which a child's parents want to discontinue special education and related services because they believe that their child no longer needs those services. As we indicated in the
Therefore, we propose to amend the regulations to provide that parents may unilaterally withdraw their child from continued receipt of special education and related services and that public agencies may not take steps to override a parent's refusal to consent to further services. Just as, under section 614(a)(1)(D)(ii)(II), parents have the authority to consent to the initial provision of special education and related services, we believe that parents also should have the authority to revoke that consent, thereby ending the provision of special education and related services to their child. This change is also consistent with the IDEA's emphasis on the role of parents in protecting their child's rights and the Department's goal of enhancing parent involvement and choice in their child's education.
These proposed regulations would not require public agencies, once they have obtained parental consent for the initial provision of special education and related services, to obtain parental consent to provide special education and related services at any subsequent time, such as for the provision of services under a subsequent IEP. We believe that including this type of additional consent requirement would be unduly burdensome for public agencies, and an unwarranted intrusion on State and local control of education. States, however, have the discretion to establish additional consent requirements, consistent with the provisions in § 300.300(d) (71 FR 46784).
The proposed amendment to § 300.300(b)(3) would combine the provisions in current § 300.300(b)(3) and (b)(4) (71 FR 46784) relating to parental consent for the provision of initial services. Section 300.300(b)(3) currently provides that a public agency may not use the procedures in subpart E of the regulations (Procedural Safeguards and Due Process Procedures) to obtain agreement or a ruling that services may be provided if the parent of a child fails to respond or refuses to consent to the initial provision of services. Section 300.300(b)(4) currently provides that a public agency will not be considered in violation of its obligation to make FAPE available and is not required to convene an IEP Team meeting or develop an IEP if a parent refuses or fails to consent to the initial provision of services. This proposed change would simplify the regulation by eliminating the slight differences in the introductory material in the current provisions and would clarify that the provision would apply to situations in which a parent refuses or fails to consent to the initial provision of special education and related services.
We propose to add a new § 300.300(b)(4) to provide that if, at any time subsequent to the initial provision of special education and related
We also propose to revise § 300.300(d)(2) and (d)(3) (71 FR 46784) to correct an inadvertent omission. Section 300.300(d)(2) (71 FR 46784) currently provides that States may require parental consent for other services and activities under Part 300 in addition to the consent requirements in § 300.300(a) (71 FR 46783), which addresses parental consent for an initial evaluation. Section 300.300(d)(3) (71 FR 46784) currently provides that a public agency may not use a parent's refusal to consent to one service or activity under § 300.300(a) or (d)(2) to deny the parent or child other services and activities. To be consistent with comparable provisions in effect before the final regulations published in 2006, § 300.300(d)(2) should have included a reference to the parental consent provisions in § 300.300(a), (b), and (c), rather than just § 300.300(a), and § 300.300(d)(3) should have referred to § 300.300(a), (b), (c), or (d)(2), rather than just § 300.300(a) or (d)(2). Therefore, we propose to revise § 300.300(d)(2) to refer to paragraphs (a), (b), and (c) of § 300.300 rather than just paragraph (a). We propose to revise § 300.300(d)(3) to refer to paragraphs (a), (b), (c), or (d)(2) of § 300.300, rather than just paragraphs (a) or (d)(2).
We would add a new § 300.9(c)(3) to clarify that, if a parent revokes consent for the child's receipt of special education and related services after the child is initially provided special education and related services, the public agency would not be required to amend the child's education records to remove any references to the child's receipt of special education and related services because of the parent's revocation of consent. We believe that this change is necessary to clarify that the child's education records would not be required to be changed for the period prior to the parent's revocation of consent for special education and related services. Schools need the ability to keep accurate records of a child's school experience, including whether the child received special education and related services.
We propose to amend § 300.177, regarding States' sovereign immunity, by adding a new provision relating to States' and LEAs' obligations to make positive efforts to employ and advance qualified individuals with disabilities. Specifically, we are proposing to redesignate current § 300.177(a) through (c), regarding States' sovereign immunity, as proposed § 300.177(a)(1) through (a)(3), and add a new paragraph (b) to provide that any recipient of assistance under Part B of the Act must make positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted under Part B of the Act, such as special education programs of an SEA or LEA or the State-wide assessment program of an SEA that is using IDEA funds to develop assessments for children with disabilities. This paragraph would reflect the provisions in section 606 of the Act, which provides that the Secretary will ensure that each grant recipient under the IDEA makes positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted under the IDEA.
Section 615(h)(1) of the Act provides that any party to a hearing conducted under Part B of the IDEA has the right to be accompanied and advised by counsel, and by individuals with special knowledge or training with respect to the problems of children with disabilities. This statutory provision is reflected in § 300.512(a)(1) (71 FR 46795).
Both the Act and its implementing regulations are silent on the issue of whether individuals who are not attorneys, but have special knowledge or expertise regarding the problems of children with disabilities, may represent parties at IDEA due process hearings. However, as indicated in an April 8, 1981 letter from Theodore Sky, Acting General Counsel of the Department of Education, to the Honorable Frank B. Brouillet, the Department previously interpreted section 615(h) of the Act and implementing regulations to mean that attorneys and lay advocates may perform the same functions at due process hearings.
One commenter, in responding to the June 21, 2005 NPRM, requested that the Department amend the regulations to indicate that a parent has the right to be represented by a non-attorney at an IDEA due process hearing. The Department believes that some clarification is warranted because the IDEA is silent regarding the representational role of non-attorneys at IDEA due process hearings.
In the absence of statutory or regulatory language, at least one court concluded that State laws regulating the practice of law and prohibiting representation by lay advocates in due process hearings do not conflict with the IDEA.
Specifically, § 300.512(a)(1) (71 FR 46795), concerning a parent's right to be accompanied and advised by counsel and by other individuals with special knowledge or training with respect to the problems of children with disabilities, would be amended to specify that a parent's right to be represented by non-attorneys at due process hearings is determined by State law. We believe alerting parents that State laws affect whether they can be represented in a due process hearing by a non-attorney advocate should reduce future litigation of this issue. The proposed change also is consistent with the Department's general position to provide flexibility to States where the IDEA is silent or where State law does not conflict with the Act.
Because this proposed change would directly reverse a prior interpretation that the Department authoritatively adopted and consistently followed, and the June 21, 2005 NPRM did not indicate that we were considering any change, we are now proposing in this NPRM, that a parent's right to be represented by non-attorneys at a due process hearing must be determined under State law.
Note that this change would not prevent parents from representing themselves in due process hearings or during court proceedings under the IDEA. In
Section 616(a)(1)(C) of the Act requires States to monitor the implementation of Part B of the Act by LEAs, and to enforce Part B of the Act in accordance with the monitoring priorities and enforcement mechanisms set forth in section 616(a)(3) and (e) of the Act. Section 300.600(a) (71 FR 46800) implements section 616(a)(1) of the Act, and requires States to monitor implementation of Part B of the Act by LEAs, enforce Part B of the Act in accordance with the statutory enforcement mechanisms that are appropriate for States to apply to LEAs, and annually report on performance under Part B of the Act.
Section 616(e) of the Act makes clear that the Secretary's enforcement actions are based, in large part, on annual determinations about a State's performance, as provided in section 616(d) of the Act. Based on the language in section 616(a)(1)(C)(ii) of the Act, which requires States to enforce Part B of the Act consistent with section 616(e), States also have an obligation to make annual determinations about each LEA's performance using the same categories, under section 616(d) of the Act, that the Secretary applies to States. We believe that § 300.600(a) (71 FR 46800), however, should address more clearly States' responsibilities to make annual determinations about each LEA's performance. Therefore, we propose to amend § 300.600(a) (71 FR 46800) to clarify that a State must annually review and make determinations about the performance of each LEA in the State, consistent with the Secretary's responsibility, under section 616(d) of the Act, to annually review and make determinations concerning the performance of each State. Specifically, we propose adding language to § 300.600(a) to clarify that States must use the categories listed in § 300.603(b)(1) (71 FR 46801) to make annual determinations about the performance of each LEA.
We also believe that it would be useful to clarify the specific enforcement mechanisms that a State must use, consistent with section 616(a)(1)(C)(ii) and (e) of the Act. The current regulations in § 300.600(a) use regulatory citations to refer to the enforcement mechanisms in § 300.604 that States must use. We propose to revise § 300.600(a) (71 FR 46800) to identify specifically the enforcement mechanisms associated with each relevant regulatory citation. Therefore, we propose to reorganize § 300.600(a) for clarity by indicating that the State must: (a) Under proposed paragraph (a)(1), monitor the implementation of Part B of the IDEA; (b) under proposed paragraph (a)(2), make annual determinations about the performance of each LEA using the categories in § 300.603(b)(1); (c) under proposed paragraph (a)(3), enforce the requirements of the IDEA, consistent with § 300.604, by using applicable enforcement mechanisms in § 300.604(a)(1) (technical assistance), (a)(3) (conditions on funding of an LEA's grant), (b)(2)(i) (corrective action plan or improvement plan), (b)(2)(v) (withholding funds, in whole or in part, by the SEA), and (c)(2) (withholding funds, in whole or in part, by the SEA); and (d) under proposed paragraph (a)(4), report annually to the public on the performance of the State and each LEA under Part B of the Act, as provided in § 300.602(b)(1)(A) and (b)(2).
Proposed § 300.600(e) would clarify that a State, in exercising its monitoring responsibilities under § 300.600(d), must ensure that when it identifies noncompliance with the requirements of Part B of the Act by its LEAs, the noncompliance is corrected as soon as possible, and in no case, later than one year after the State's identification.
We propose to add § 300.600(e) because, based on our monitoring activities, we have determined that correction of noncompliance does not always occur in a timely manner. Noncompliance must be corrected in a timely manner to ensure that children with disabilities receive appropriate services and to ensure proper and effective implementation of the requirements of Part B of the IDEA. Throughout our 30 years of monitoring experience we have observed that, in most cases, when a State makes a good faith effort, the needed corrective actions can be accomplished and their effectiveness verified within one year. It is important to note that timely correction of noncompliance is critical to ensuring that children with disabilities receive a free appropriate public education. Allowing noncompliance to continue can negatively impact the education of great numbers of children with disabilities.
Correction of noncompliance means that a State requires a public agency to revise any noncompliant policies, procedures and practices, and verifies, through a follow-up review of documentation or interviews, or both, that the noncompliant policies, procedures, and practices are corrected. We believe that States must ensure correction as soon as possible and that one year is a reasonable timeframe for an LEA to correct noncompliant policies, procedures, and practices and for the State to verify that the LEA is complying with the requirements under the IDEA. For example, if an SEA determines that an LEA is not in compliance with the requirement to make placement decisions consistent with the least restrictive environment requirements of the Act, we would expect the SEA to require corrective actions and verify correction by determining that the LEA corrected any noncompliant policies, procedures, or practices, and that placement teams,
Section 300.602(b)(1)(i)(A) (71 FR 46801) implements section 616(b)(2)(C)(ii)(I) of the Act and requires a State to annually report to the public on the performance of each LEA in the State on the targets in the State's performance plan. The Act is silent, however, on when a State must provide this report to the public and the June 21, 2005 NPRM did not address this issue.
Following the publication of the final regulations on August 14, 2006 (71 FR 46540), the Department received many informal inquiries from SEA personnel and other interested parties regarding the timeframe for reporting information to the public about LEAs' performance relative to its State's targets. To clarify States' obligations, we are proposing in § 300.602(b)(2) to require each State to report to the public on the performance of each LEA located in the State on the targets in the State's performance plan no later than 60 days following a State's submission of its annual performance report (APR) to the Secretary under § 300.602(b). We believe this timeframe is reasonable, and would not be burdensome to States. This timeframe should ensure that each State provides timely information to the public.
Section 300.602(b)(1)(i)(B) (71 FR 46801) implements section 616(b)(2)(C)(ii)(I) of the Act and requires each State to make its performance plan available through public means, including by posting it on the State's Web site and distributing it to the media and through public agencies. The Department received inquiries regarding whether other materials, such as a State's APRs to the Secretary and the annual report on the performance of each LEA on the targets in the State's performance plan, must be made available through the same public means, so that the public has easy access to State and LEA performance information. We believe that public accountability is served by requiring States to make these documents available to the public by the same means as their performance plans, and this requirement should not impose significant burden on States, because the documents are already required and could easily be made available to the public.
Public reporting of each LEA's performance on the targets in the State's performance plan is currently required by § 300.602(b)(1)(i)(A) (71 FR 46801); however, the means by which such public reporting may be completed are not specified. Additionally, a State's APRs are public documents that would otherwise be available to the public on request under State freedom of information laws. Therefore, we propose to amend § 300.602(b)(1)(i)(B) to require States to make each of the following documents available through public means (including, posting on the SEA's Web site, distributing to the media, and distributing through public agencies): (a) The State's performance plan, under § 300.601(a); (b) the State's APRs, under § 300.602(b)(2); and (c) the State's annual reports on the performance of each LEA located in the State, under § 300.602(b)(1)(i)(A). Additionally, in the interest of transparency and public accountability, we strongly encourage States to report to the public on any enforcement actions taken under § 300.604.
Section 300.606 (71 FR 46802) implements section 616(e)(7) of the Act, which requires any State that has received notice of a determination under section 616(d)(2) of the Act to take steps to bring the pendency of an enforcement action, under section 616(e) of the Act, to the attention of the public within that State. However, § 300.606 is unclear about when States are required to notify the public of enforcement actions. There is confusion in States because of this lack of clarity. Some States may make public the Department's determinations, enforcement actions, both determinations and enforcement actions, or neither determinations nor enforcement actions. This clarification would eliminate the confusion by delineating the public notification requirements. Therefore, we propose to clarify the circumstances under which public notice is required.
Specifically, we propose to amend § 300.606 to require States to provide public notice of any enforcement action taken by the Secretary pursuant to § 300.604. This change would clarify that States do not have to provide public notice of the Secretary's annual determinations, but must provide public notice when the Secretary takes an enforcement action as a result of those determinations. We believe that this clarification will minimize the States' reporting burden while providing the public with appropriate notice of the actions taken by the Secretary as a result of the determinations required by section 616(d) of the Act and § 300.603. Additionally, we propose to amend § 300.606 to specify that each State's public notice of enforcement actions must include, posting the notice on the State's Web site and distributing the notice to the media and through public agencies.
We propose to add language to § 300.705(a) (71 FR 46808), regarding subgrants to LEAs, to clarify that States are required to make a subgrant under section 611(f) of the Act to eligible LEAs, including public charter schools that operate as LEAs, even if an LEA is not serving any children with disabilities. This requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations.
The Department's Office of Inspector General (OIG) indicated, in an October 26, 2004 final audit report (2004 OIG Report), that the regulations and guidance implementing Part B of the Act in effect at that time did not address the application of the funding formula under section 611 of the Act for a charter school established as an LEA that does not have a child with a disability enrolled during the school's first year of operation.
Under section 611(f)(1) of the Act, each State must provide subgrants to LEAs, including public charter schools that operate as LEAs in the State, that have established their eligibility under section 613 of the Act for use in accordance with Part B of the Act. Under section 613(a) of the Act, an LEA is eligible for assistance under Part B of the Act for a fiscal year if the LEA submits a plan that provides assurances to the SEA that the LEA meets each of the conditions in section 613(a) of the Act. There is no requirement in section
Under the current regulations, a previously-existing LEA not serving any children with disabilities, is entitled to the base payment it received in the previous fiscal year. A newly-created LEA, including a new public charter school LEA, is entitled to a base payment that is calculated by dividing the base allocation of LEAs that would have been responsible for serving children with disabilities now being served by the new LEA, among the new LEA and affected LEAs, based on the relative numbers of children with disabilities currently provided special education by each of the LEAs.
In determining the base payment to which a new public charter school LEA would be entitled, States must comply with the requirements in section 5206 of the ESEA and its implementing regulations in subpart H of 34 CFR part 76 of the Education Department General Administrative Regulations (EDGAR). These requirements apply to a public charter school LEA that opens or significantly expands its enrollment. Specifically under 34 CFR 76.791(b), when making a subgrant to a new public charter school LEA, a State cannot rely on enrollment or eligibility data from a prior year when calculating the subgrant of a public charter school LEA opening for the first time. A State may, but is not required to, allocate funds to, or reserve funds for, an eligible new public charter school LEA based on reasonable estimates of projected enrollment at the public charter school LEA, in accordance with 34 CFR 76.789(b)(2). Once the public charter school LEA is open, the public charter school LEA must provide actual enrollment and eligibility data to the SEA at a time the SEA may reasonably require in accordance with 34 CFR 76.788(b)(2)(i). A State is not required to provide funds to a new public charter school LEA until the public charter school LEA provides the SEA with the required actual enrollment and eligibility data in accordance with 34 CFR 76.788(b)(2)(ii). If the SEA allocates funds based on estimated enrollment or eligibility data, the SEA must make appropriate adjustments to the amount of funds allocated to a new public charter school LEA, as well as to other LEAs, based on actual enrollment or eligibility data for the public charter school LEA, on or after the date the public charter school LEA first opens, in accordance with 34 CFR 76.796. If, on the date the SEA reasonably requires the new public charter school LEA to provide actual enrollment and eligibility data, which must be on or after the date the public charter school LEA opens, the new public charter school LEA is not serving any children with disabilities, its base payment in its first year of operation would be zero.
Because we believe it would be burdensome for States to comply with the requirement to distribute funds to eligible LEAs not currently serving children with disabilities after subgrants have been made for a fiscal year, we propose to add language to § 300.705(a) to clarify that this requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations.
The 2004 OIG Report also recommended that the Department consider issuing guidance on whether a public charter school LEA that has no children with disabilities enrolled in its first year of operation is entitled to a base payment adjustment in subsequent years if it enrolls children with disabilities. We agree that further clarification is necessary and propose to add a new paragraph (iv) to § 300.705(b)(2) (71 FR 46808-09), regarding base payment adjustments. The amended regulations would require that an LEA that received a base payment of zero in its first year of operation because it was serving no children with disabilities, and that subsequently provides special education and related services to children with disabilities, must receive a base payment adjustment for the fiscal year after the first annual child count in which the LEA reports that it is serving any children with disabilities. Under this provision, the State must divide the base allocation determined under § 300.705(b)(1) for the LEAs that would have been responsible for serving children with disabilities now being served by the LEA, among the LEA and affected LEAs, based on the relative numbers of children with disabilities ages 3 through 21, or ages 6 through 21, currently provided special education by each of the LEAs.
Under this proposed change, an LEA, including a public charter school that operates as an LEA, that received a base payment of zero in its first year of operation, would be entitled to a base payment adjustment for the first fiscal year after the first annual child count in which the LEA reports that it is serving any children with disabilities. This adjusted base payment would apply to all subsequent years, unless the LEA's base payment is adjusted due to one of the other circumstances described in § 300.705(b)(2) (71 FR 46808-46809). Because the current regulations do not require a base payment adjustment under these circumstances, and we believe that it would be burdensome for States to comply with this requirement after subgrants have been made for a fiscal year, we propose to add language to § 300.705(b)(2)(iv), to clarify that this requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations.
Section 611(f)(3) of the Act and § 300.705(c) (71 FR 46809) authorize an SEA to reallocate Part B funds not needed by an LEA, if the SEA determines that an LEA is adequately providing FAPE to all children with disabilities residing in the area served by that agency, with State and local funds. Under these statutory and regulatory provisions, States may, but are not required to, reallocate these Part B funds. The regulations in current § 300.705(c) do not address reallocation of funds from an LEA that does not use its funds because it is not serving any children with disabilities.
We propose to amend § 300.705(c) (71 FR 46809) to indicate that, after an SEA distributes funds under Part B to an eligible LEA that is not serving any children with disabilities, as provided in proposed § 300.705(a), the SEA must determine, within a reasonable period of time prior to the end of the carryover period specified in 34 CFR 76.709, whether the LEA has obligated the funds. The SEA may, if it chooses, reallocate any of those funds not obligated by the LEA to other LEAs in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas served by those other LEAs. The SEA may also retain those funds for use at the State level to the extent the State has not reserved the maximum amount of funds it is permitted to reserve for State-level activities pursuant to § 300.704. Given the fact that small amounts of funds distributed late in their period of availability to LEAs would be prone to lapse, we are clarifying that States may use these funds at the State level, to the extent the State has not set aside the maximum amount for State-level activities, in order to increase the chance these funds would be well spent. Whether funds are reallocated or retained for use at the State-level under § 300.705(c), they must be obligated prior to the close of the period of availability for those funds. In sum, these proposed regulations would help to ensure that the funds under section 611 of the Act do not lapse, by making it clear that SEAs may redistribute funds that have not been obligated by LEAs that currently are not serving any children with disabilities or retain these funds for State-level activities.
We propose to add language to § 300.815 (71 FR 46813), regarding subgrants to LEAs, to clarify that States are required to make a subgrant under section 619(g) of the Act to eligible LEAs, including public charter schools that operate as LEAs, that are responsible for providing education to children aged three through five years (preschool), even if an LEA is not serving any preschool children with disabilities. This requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations.
The Department's OIG indicated, in the 2004 OIG Report, that the regulations and guidance implementing Part B of the Act in effect at that time did not address the application of the funding formula under section 619 of the Act for a public charter school established as an LEA that does not have a preschool child with a disability enrolled during the school's first year of operation.
Under section 619(g)(1) of the Act, each State must provide subgrants to LEAs, including public charter schools that operate as LEAs in the State, that have established their eligibility under section 613 of the Act. Under section 613(a) of the Act, an LEA is eligible for assistance under Part B of the Act for a fiscal year if the LEA submits a plan that provides assurances to the SEA that the LEA meets each of the conditions in section 613(a) of the Act. There is no requirement in section 613(a) of the Act that an LEA must be serving preschool children with disabilities in order for an LEA to be eligible for a subgrant. We believe that requiring States to make a subgrant to all eligible LEAs responsible for providing education to preschool children, including public charter schools that operate as LEAs, would ensure that LEAs have Part B funds available if they are needed to conduct child find activities or to serve preschool children with disabilities who subsequently enroll or are identified during the year. The payment made to an LEA, including a public charter school that operates as an LEA, that is not serving any preschool children with disabilities, would be based on enrollment and poverty data and any base payment to which the LEA is entitled, in accordance with the statutory formula in section 619(g) of the Act.
Under the current regulations, a previously-existing LEA not serving any preschool children with disabilities, is entitled to the base payment it received in the previous fiscal year. A newly-created LEA, including a new public charter school LEA, is entitled to a base payment that is calculated by dividing the base allocation of LEAs that would have been responsible for serving preschool children with disabilities now being served by the new LEA, among the new LEA and affected LEAs, based on the relative numbers of preschool children with disabilities currently provided special education by each of the LEAs.
In determining the base payment to which a new public charter school LEA would be entitled, States must comply with the requirements in section 5206 of the ESEA and its implementing regulations in subpart H of 34 CFR part 76 of EDGAR. These requirements apply to a public charter school LEA that opens or significantly expands its enrollment. Specifically, under 34 CFR 76.791(b), when making a subgrant to a new public charter school LEA, a State cannot rely on enrollment or eligibility data from a prior year when calculating the subgrant of a public charter school LEA opening for the first time. A State may, but is not required to, allocate funds to, or reserve funds for, an eligible new public charter school LEA based on reasonable estimates of projected enrollment at the public charter school LEA, in accordance with 34 CFR 76.789(b)(2). Once the public charter school LEA has opened, the public charter school LEA must provide actual enrollment and eligibility data to the SEA at a time the SEA may reasonably require in accordance with 34 CFR 76.788(b)(2)(i). A State is not required to provide funds to a new public charter school LEA until the public charter school LEA provides the SEA with the required actual enrollment and eligibility data in accordance with 34 CFR 76.788(b)(2)(ii). If the SEA allocates funds based on estimated enrollment or eligibility data, the SEA must make appropriate adjustments to the amount of funds allocated to a new public
Because we believe it would be burdensome for States to comply with the requirement to distribute funds to eligible LEAs not currently serving preschool children with disabilities, after subgrants have been made for a fiscal year, we propose to add language to § 300.815 to clarify that this requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations.
The 2004 OIG Report also recommended that the Department consider issuing guidance on whether a public charter school LEA that has no preschool children with disabilities enrolled in its first year of operation is entitled to a base payment adjustment in subsequent years if it enrolls preschool children with disabilities. We agree that further clarification is necessary and propose to add a new paragraph (4) to § 300.816(b) (71 FR 46813), regarding base payment adjustments. The amended regulations would require that an LEA that is responsible for providing education to preschool children, but that received a base payment of zero in its first year of operation because it was serving no preschool children with disabilities, and that subsequently provides special education and related services to preschool children with disabilities, must receive a base payment adjustment for the fiscal year after the first annual child count in which the LEA reports that it is serving any preschool children with disabilities. Under this provision, the State must divide the base allocation determined under § 300.816(a) for the LEAs that would have been responsible for serving preschool children with disabilities now being served by the LEA, among the LEA and affected LEAs, based on the relative numbers of preschool children with disabilities currently provided special education by each of the LEAs.
Under this proposed change, an LEA, including a public charter school that operates as an LEA, that received a base payment of zero in its first year of operation, would be entitled to a base payment adjustment for the first fiscal year after the first annual child count in which the LEA reports that it is serving any preschool children with disabilities. This adjusted base payment would apply to all subsequent years, unless the LEA's base payment is adjusted due to one of the other circumstances described in § 300.816(b) (71 FR 46813). Because the current regulations do not require a base payment adjustment under these circumstances, and we believe it would be burdensome for States to comply with this requirement after subgrants have been made for a fiscal year, we propose to add language to § 300.816(b)(4), to clarify that this requirement would take effect with funds that become available on the first July 1 following the effective date of the final regulations.
Section 619(g)(2) of the Act and § 300.817 (71 FR 46813) authorize an SEA to reallocate section 619 funds not needed by an LEA, if the SEA determines that an LEA is adequately providing FAPE to all preschool children with disabilities residing in the area served by that agency, with State and local funds. Under these statutory and regulatory provisions, States may, but are not required to, reallocate these section 619 funds. The regulations in current § 300.817 do not address reallocation of funds from an LEA that does not use its funds because it is not serving any preschool children with disabilities.
We propose to amend § 300.817 (71 FR 46813) to indicate that, after an SEA distributes funds under section 619 to an eligible LEA that is not serving any preschool children with disabilities, as provided in proposed § 300.815, the SEA must determine, within a reasonable period of time prior to the end of the carryover period specified in 34 CFR 76.709, whether the LEA has obligated the funds. The SEA may, if it chooses, reallocate any of those funds not obligated by the LEA to other LEAs in the State that are not adequately providing special education and related services to all preschool children with disabilities residing in the areas served by those other LEAs. The SEA may also retain those funds for use at the State level to the extent the State has not reserved the maximum amount of funds it is permitted to reserve for State-level activities pursuant to § 300.812. Given the fact that small amounts of funds distributed late in their period of availability to LEAs would be prone to lapse, we are clarifying that States may use these funds at the State level, to the extent the State has not set aside the maximum amount for State-level activities, in order to increase the chance these funds would be well spent. Whether funds are reallocated or retained for use at the State level under § 300.817, they must be obligated prior to the close of the period of availability for those funds. In sum, these proposed regulations would help to ensure that the funds under section 619 of the Act do not lapse, by making it clear that SEAs may redistribute funds not obligated by LEAs that currently are not serving any children with disabilities aged three through five or retain these funds for State-level activities.
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive Order and review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities in a material way (also referred to as an “economically significant” rule); (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The Secretary has determined that this regulatory action is significant under section 3(f)(4) of the Executive Order.
Under Executive Order 12866, we have assessed the potential costs and benefits of these proposed regulations. In conducting this analysis, the Department examined the extent to which the amended regulations would add to, or reduce, the costs for public agencies and others in relation to the costs of implementing the program regulations. Based on this analysis, the Secretary has concluded that the amendments to the regulations would not impose significant net costs in any one year. The amendments to the regulations would primarily affect SEAs and LEAs responsible for carrying out
Executive Order 12866 and the Presidential memorandum on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.
The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:
• Are the requirements in the proposed regulations clearly stated?
• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?
• Does the format of the proposed regulations (use of headings, paragraphing, etc.) aid or reduce their clarity?
• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§ ” and a number heading; for example, § 300.172, regarding access to instructional materials.)
• Could the description of the proposed regulations in the
• What else could we do to make the proposed regulations easier to understand?
To send any comments that concern how the Department could make these proposed regulations easier to understand see the instructions in the
The Secretary certifies that these amendments to the final regulations governing the Assistance to States for the Education of Children with Disabilities and the Preschool Grants for Children with Disabilities programs, would not have a significant economic effect on a substantial number of small entities. The small entities that would be affected by these proposed regulations regarding allocation of funds under sections 611 and 619 of the IDEA to LEAs, that are not serving any children with disabilities, are small LEAs, including charter schools that operate as LEAs. These small entities would benefit from the proposed changes that clarify their eligibility for funding in cases where they are not serving any children with disabilities.
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), we have assessed the potential information collections in these proposed regulations that would be subject to review by the OMB. In conducting this analysis, the Department examined the extent to which the amended regulations would add information collection requirements for public agencies. Based on this analysis, the Secretary has concluded that these amendments to the Part B IDEA regulations would not impose additional information collection requirements. The proposed changes to § 300.602(b)(1)(i)(B) (71 FR 46801) would—(1) Add the State's APR to the list of documents that a State must make available through public means; and (2) specify that the SEA make the State's performance plan, the State's APR, and the State's annual reports on the performance of each LEA in the State available to the public by posting the documents on the State's Web site and distributing the documents to the media and through public agencies. Each State already is required to report to the Secretary on the annual performance of the State as a whole in its APR. Because the APR is a completed document, the additional time for reporting to the public would be minimal and is within the established reporting and recordkeeping estimate of current information collection 1820-0624 (71 FR 46751-46752). Additionally, States already are required by current § 300.602(a) and (b)(1)(i)(A) to analyze the performance of each LEA on the State's targets, and to report annually to the public on the performance of each LEA on the targets. The proposed regulation, by requiring that these documents be posted on the State's Web site and be distributed to the media and through public agencies, merely adds specificity about the means of public reporting. The additional time for reporting to the public through these means would be minimal and is within the established reporting and recordkeeping estimate of current information collection 1820-0624 (71 FR 46751-46752).
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79 of EDGAR. One of the objectives of the Executive Order is to foster an intergovernmental partnership and a strengthened federalism by relying on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of the Department's specific plans and actions for this program.
The Secretary particularly requests comments on whether these proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
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Administrative practice and procedure, Education of individuals with disabilities, Elementary and secondary education, Equal educational opportunity, Grant programs—education, Privacy, Charter schools, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Secretary proposes to amend title 34 of the Code of Federal Regulations as follows:
1. The authority citation for part 300 continues to read as follows:
20 U.S.C. 1221e-3, 1406, 1411-1419, unless otherwise noted.
2. Section 300.9 is amended by adding a new paragraph (c)(3).
The addition reads as follows:
(c) * * *
(3) If the parents revoke consent for their child's receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child's education records to remove any references to the child's receipt of special education and related services because of the revocation of consent.
3. Section 300.177 is revised to read as follows:
(a)
(1) A State that accepts funds under this part waives its immunity under the 11th amendment of the Constitution of the United States from suit in Federal court for a violation of this part.
(2) In a suit against a State for a violation of this part, remedies (including remedies both at law and in equity) are available for such a violation in the suit against any public entity other than a State.
(3) Paragraphs (a)(1) and (a)(2) of this section apply with respect to violations that occur in whole or part after the date of enactment of the Education of the Handicapped Act Amendments of 1990.
(b)
Each recipient of assistance under Part B of the Act must make positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted under Part B of the Act.
4. Section 300.300 is amended by:
A. Revising paragraphs (b)(3) and (b)(4).
B. In paragraph (d)(2), removing the words “paragraph (a)” and inserting, in their place, the words “paragraphs (a), (b), and (c)”.
C. In paragraph (d)(3), adding after the words “paragraphs (a)” the words “, (b), (c),”.
The revision reads as follows:
(b) * * *
(3) If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the public agency—
(i) May not use the procedures in subpart E of this part (including the mediation procedures under § 300.506 or the due process procedures under §§ 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child;
(ii) Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with the special education and related services for which the parent refuses to or fails to provide consent; and
(iii) Is not required to convene an IEP Team meeting or develop an IEP under §§ 300.320 and 300.324 for the child.
(4) If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent for the continued provision of special education and related services, the public agency—
(i) May not continue to provide special education and related services to the child;
(ii) May not use the procedures in subpart E of this part (including the mediation procedures under § 300.506 or the due process procedures under §§ 300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child;
(iii) Will not be considered to be in violation of the requirement to make available FAPE to the child because of the failure to provide the child with further special education and related services; and
(iv) Is not required to convene an IEP Team meeting or develop an IEP under §§ 300.320 and 300.324 for the child for further provision of special education and related services.
5. Section 300.512 is amended by revising paragraph (a)(1) to read as follows:
(a) * * *
(1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities, except that whether parents have the right to be represented by non-attorneys at due process hearings is determined under State law;
6. Section 300.600 is amended by:
A. Revising paragraph (a).
B. Adding a new paragraph (e).
The revision and addition read as follows:
(a) The State must—
(1) Monitor the implementation of this part;
(2) Make determinations annually about the performance of each LEA using the categories in § 300.603(b)(1);
(3) Enforce this part, consistent with § 300.604, using appropriate enforcement mechanisms, which must include, if applicable, the enforcement mechanisms identified in § 300.604(a)(1) (technical assistance), (a)(3) (conditions on funding of an LEA), (b)(2)(i) (a corrective action plan or improvement plan), (b)(2)(v) (withholding funds, in whole or in part, by the SEA), and (c)(2) (withholding funds, in whole or in part, by the SEA); and
(4) Report annually on the performance of the State and of each LEA under this part, as provided in § 300.602(b)(1)(A) and (b)(2).
(e) In exercising its monitoring responsibilities under paragraph (d) of this section, the State must ensure that when it identifies noncompliance with the requirements of this part by LEAs, the noncompliance is corrected as soon as possible, and in no case later than one year after the State's identification.
7. Section 300.602(b)(1)(i) is revised to read as follows:
(b)
(1)
(A) Report annually to the public on the performance of each LEA located in the State on the targets in the State's performance plan no later than 60 days following the State's submission of its annual performance report to the Secretary under paragraph (b)(2) of this section; and
(B) Make each of the following items available through public means: the State's performance plan, under § 300.601(a); annual performance reports, under paragraph (b)(2) of this section; and the State's annual reports on the performance of each LEA located in the State, under paragraph (b)(1)(i)(A) of this section. In doing so, the State must, at a minimum, post the plan and reports on the State's Web site, and distribute the plan and reports to the media and through public agencies.
8. Section 300.606 is revised to read as follows:
Whenever a State receives notice that the Secretary is proposing to take or is taking an enforcement action pursuant to § 300.604, the State must, by means of a public notice, take such actions as may be necessary to notify the public within the State of the pendency of an action pursuant to § 300.604, including, at a minimum, by posting the notice on the State's Web site and distributing the notice to the media and through public agencies.
9. Section 300.705 is amended by:
A. Revising paragraph (a).
B. In paragraph (b)(2)(ii), removing the word “and” at the end of the paragraph.
C. In paragraph (b)(2)(iii), removing the punctuation “.” and inserting in its place the words “; and”.
D. Adding a new paragraph (b)(2)(iv).
E. Revising paragraph (c).
The revisions and addition read as follows:
(a)
(b) * * *
(2) * * *
(iv) If an LEA received a base payment of zero in its first year of operation, the SEA must adjust the base payment for the first fiscal year after the first annual child count in which the LEA reports that it is serving any children with disabilities. The State must divide the base allocation determined under paragraph (b)(1) of this section for the LEAs that would have been responsible for serving children with disabilities now being served by the LEA, among the LEA and affected LEAs based on the relative numbers of children with disabilities ages 3 through 21, or ages 6 through 21 currently provided special education by each of the LEAs. This requirement takes effect with funds that become available on the first July 1 following the effective date of this regulation.
(c)
(2) After an SEA distributes funds under this part to an eligible LEA that is not serving any children with disabilities, as provided in paragraph (a) of this section, the SEA must determine, within a reasonable period of time prior to the end of the carryover period in 34 CFR 76.709, whether the LEA has obligated the funds. The SEA may reallocate any of those funds not obligated by the LEA to other LEAs in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas served by those other LEAs. The SEA may also retain those funds for use at the State level to the extent the State has not reserved the maximum amount of funds it is permitted to reserve for State-level activities pursuant to § 300.704.
10. Section 300.815 is revised to read as follows:
Each State that receives a grant under section 619 of the Act for any fiscal year must distribute all of the grant funds the State does not reserve under § 300.812 to LEAs (including public charter schools that operate as LEAs) in the State that have established their eligibility under section 613 of the Act. Effective with funds that become available on the first July 1 following the effective date of this regulation, each State must distribute funds to eligible LEAs that are responsible for providing education to children aged three through five years, including public charter schools that operate as LEAs, even if the LEA is not serving any preschool children with disabilities.
11. Section 300.816 is amended by:
A. In paragraph (b)(2), removing the word “and”.
B. In paragraph (b)(3), removing the punctuation “.” and adding, in its place, the words “; and”.
C Adding a new paragraph (b)(4) to read as follows:
(b) * * *
(4) If an LEA received a base payment of zero in its first year of operation, the SEA must adjust the base payment for the first fiscal year after the first annual child count in which the LEA reports that it is serving any children with disabilities aged three through five years. The State must divide the base allocation determined under paragraph (a) of this section for the LEAs that would have been responsible for serving children with disabilities aged three through five years now being served by the LEA, among the LEA and affected LEAs based on the relative numbers of children with disabilities aged three through five years currently provided special education by each of the LEAs. This requirement takes effect with funds that become available on the first July 1 following the effective date of this regulation.
12. Section 300.817 is revised to read as follows:
(a) If an SEA determines that an LEA is adequately providing FAPE to all children with disabilities aged three through five years residing in the area served by the LEA with State and local funds, the SEA may reallocate any portion of the funds under section 619 of the Act that are not needed by that LEA to provide FAPE, to other LEAs in the State that are not adequately providing special education and related services to all children with disabilities aged three through five years residing in the areas served by those other LEAs. The SEA may also retain those funds for
(b) After an SEA distributes section 619 funds to an eligible LEA that is not serving any children with disabilities aged three through five years, as provided in § 300.815, the SEA must determine, within a reasonable period of time prior to the end of the carryover period in 34 CFR 76.709, whether the LEA has obligated the funds. The SEA may reallocate any of those funds not obligated by the LEA to other LEAs in the State that are not adequately providing special education and related services to all children with disabilities aged three through five years residing in the areas served by those other LEAs. The SEA may also retain those funds for use at the State level to the extent the State has not reserved the maximum amount of funds it is permitted to reserve for State-level activities pursuant to § 300.812.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
This notice provides for FHA's implementation of risk-based premiums for most of its Title II single family mortgage insurance programs, enabling mortgage lenders to offer borrowers FHA-insured financing with a range of mortgage insurance premiums based on the risk the insurance contract represents. This notice follows a September 20, 2007, notice that solicited public comment on the proposal to implement risk-based premiums. This notice makes certain changes, in response to public comment, to FHA's risk-based premium structure and implements risk-based premiums in accordance with those changes.
Margaret E. Burns, Director, Office of Single Family Program Development, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; telephone number (202) 708-2121 (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.
By notice published by HUD in the
In the September 20, 2007, notice, FHA advised that, by offering a range of premiums based on risk, it would be able to offer options to: (1) Mortgagees serving borrowers who were previously underserved, or not served, by the conventional marketplace; and (2) mortgagees serving those borrowers wishing to lower their premiums by, for example, increasing their downpayment or by improving their credit scores. Additionally, offering a range of premiums based on risk helps to ensure the future financial soundness of FHA programs that are obligations of the Mutual Mortgage Insurance Fund (MMIF or the Fund). The September 20, 2007, notice emphasized that under risk-based premiums, no qualified borrower will be charged by the mortgagee in excess of the current statutory upfront and annual mortgage insurance premium limits.
The September 20, 2007, notice solicited public comment for a period of 30 days. Although, as more fully discussed in Sections III and IV of this notice, a number of public commenters opposed HUD's proposal to implement risk-based premiums but did not fully explain the reasons for the opposition, other commenters raised important issues for HUD's consideration and offered suggestions that HUD should adopt. Therefore, after careful review and consideration of the public comments, HUD will implement risk-based premiums, as provided in this notice, with certain revisions made after consideration of public comments. HUD is proceeding to implement risk-based premiums for the reasons expressed in the September 20, 2007, notice; namely, that such a pricing mechanism will allow FHA to serve a range of borrowers and will help ensure the financial soundness of FHA programs that are obligations of the MMIF. These policy reasons are more fully discussed in Section III of this notice.
After consideration of public comments, this notice makes the following changes to the September 20, 2007, proposal:
• The effective date is changed from January 1, 2008, to July 14, 2008, for FHA loans for which case numbers are assigned on or after that date.
• The classifications used in the upfront premium rate table are changed from minimum downpayment to loan-to-value (LTV) ratio.
• Source of downpayment is eliminated as a factor in determining the borrower's mortgage insurance premium.
• Borrowers with nontraditional credit are eligible for 97 percent LTV financing.
• The September 20, 2007, notice's provision on averaging the borrower's credit scores has been removed and replaced with the lowest-decision credit score.
• A revised matrix shows both upfront and annual premiums for loans with terms in excess of 15 years, and another matrix shows premiums for loans with terms of 15 years or fewer.
• The minimum upfront premium is raised from 75 basis points to 125 basis points for mortgages in excess of 15 years, and from 75 basis points to 100 basis points for mortgages of 15 years or fewer.
At the close of the public comment period on October 22, 2007, HUD received 176 public comments. These public comments came from a variety of sources, including the general public, loan officers, mortgage companies, regional and national banks, state housing finance agencies, various organizations representing the interests of the mortgage lending and home building industries, private mortgage insurers, seller-funded downpayment assistance providers, and companies providing information management systems services.
While many of the commenters opposed risk-based premiums, the majority did not clearly express the basis for their opposition. Some of these commenters stated that risk-based premiums would hurt the very persons FHA was established to serve, but provided no information or explanation to support this claim. One commenter stated that if risk-based premiums are implemented, FHA will offer only more expensive, conventional-type loans and will cease to assist lower-income borrowers who represent the target audience for FHA insurance. Other commenters stated that HUD did not need to implement risk-based premiums and eliminate downpayment assistance; that is, that one or the other should be sufficient to address higher risk mortgages. (These comments and others are more fully addressed in Section IV of this notice.)
FHA is implementing risk-based premiums in support of its mission to promote homeownership among first-time and minority homebuyers. While the conventional market regularly uses risk-based premiums to price insurance risk, FHA, to date, continues to charge a one-size-fits-all premium to mortgagees, resulting in lower-risk borrowers paying a higher premium than necessitated by their risk, and higher-risk borrowers paying a lower premium relative to their risk. The criteria that FHA proposes to use for risk-based premiums—credit scores and LTV ratios—are strongly associated with claim rates and have become the primary risk factors used in conventional market pricing of mortgage credit risk. FHA has a legitimate business basis for charging higher premiums to higher-risk borrowers. Indeed, it has a business imperative, because the current FHA method of average-risk pricing is no longer sustainable.
Risk-based premiums expand FHA's ability to serve borrowers whom it would otherwise have to turn away. By charging them a slightly higher insurance premium, FHA can assist underserved borrowers with fewer monetary resources or impaired credit to become homeowners while protecting the MMIF with the higher premium. Many homebuyers, who were steered to subprime products, paid substantially more for access to homeownership. As the 2004, 2005, and 2006 Home Mortgage Disclosure Act (HMDA) data show, many of these homebuyers were minorities. FHA can potentially lower the cost to borrowers because it is actually less costly for borrowers to pay for their credit risk in a mortgage insurance premium than what is charged to them through a higher subprime mortgage interest rate. For example, if a borrower with imperfect credit used an FHA-insured loan rather than a subprime loan for a $200,000 mortgage used to purchase a $225,000 home, the borrower would typically qualify for a 3 percentage point-lower mortgage interest rate. Assuming a 6.5 percent mortgage interest rate, a 10 percent downpayment, financing of a 1.75 percent upfront mortgage insurance premium, and payment of a 0.50 percent annual premium on the declining principal balance, a borrower would still save nearly $4,000 in monthly payments in the first year alone with an FHA-insured loan compared to a 9.5 percent subprime loan. After 10 years, the borrower would experience a total of nearly $40,000 of savings in monthly payments. Not only would the borrower benefit from lower loan costs with an FHA-insured loan, but FHA requires FHA-approved mortgagees to take measures designed to provide foreclosure alternatives that may not be offered with a subprime loan. FHA requires loan servicers to offer an array of loss mitigation options that may result in defaulting borrowers being able to stay in their homes.
In addition, as the accompanying Appendix chart shows, substantial shares of FHA's lower-income borrowers have FICO
Risk-based premiums enable FHA to respond to changes in the market, like the recent implosion of subprime lending, by reaching out to higher-risk borrowers without having to raise premiums for all borrowers. Borrowers are better off, even with higher mortgage insurance premiums, because FHA insurance gives borrowers access to substantially lower interest rates than are charged for subprime loans, thereby lowering borrowers' overall borrowing costs.
Risk-based premiums do not end the cross-subsidization that has always existed within the MMIF programs, but, by implementing risk-based premiums FHA can better manage the cross-subsidization. At present, some segments of the borrowers served by FHA have very high default and foreclosure rates. Ultimately, if FHA did not implement risk-based premiums, FHA would have to raise premiums for all borrowers and impose new underwriting restrictions. Increasing premiums for all borrowers would drive away more of the lower-risk borrowers who are needed to provide cross-subsidies to higher-risk borrowers and would only increase any adverse selection. As a result, FHA would serve fewer borrowers than it does now, and more borrowers would be left with either a higher-cost and higher-risk subprime option, or no access to mortgage credit.
FHA is provided with flexible authority in section 203 of the National Housing Act (12 U.S.C. 1709) to charge an upfront premium not exceeding 2.25 percent of the mortgage balance and an annual premium not exceeding 50 basis points on the declining mortgage balance, but not exceeding 55 basis points for mortgages with LTVs greater than 95 percent. This authority has been implemented by HUD through regulations at 24 CFR 203.284 and 203.285. Therefore, HUD has discretion to charge an upfront and an annual insurance premium that are greater than 0 percent but do not exceed the respective statutory limits. The range of insurance premiums in this notice is consistent with, and supported by, the statutory authority in section 203(c)(2) of the National Housing Act (12 U.S.C. 1709(c)(2)). FHA also is authorized to discount the upfront premiums for some mortgagors who are first-time homebuyers and who successfully complete pre-purchase homeownership counseling approved by HUD. Notwithstanding the date of enactment of its statutory authority, FHA is not prohibited from trying new and different approaches from the one originally chosen, consistent with its statutory authority, to improve its financial management and to make its programs more available to the
FHA's adjustable rate mortgages (ARMs) do not bear the risk characteristics of subprime ARMs because FHA does not permit initial teaser rates, and it underwrites the borrower's credit on the basis of the maximum second-year rate to avoid “payment shock.” As a result, the performance of FHA's ARMs does not differ sufficiently from the performance of its fixed-rate mortgages to justify a premium differential.
In managing risk, however, FHA will continue cross-subsidization by charging higher than break-even premiums to borrowers with better credit scores and lower LTVs so that it can serve some borrowers whose premiums do not cover their full risk to the Fund. Such cross-subsidies have been normal and subject to study within the MMIF, and FHA plans to analyze them even more intensely in the future with the implementation of risk-based pricing.
While the percentage of borrowers obtaining FHA-insured mortgage financing that will be affected by this restriction is small, this restriction is imposed to serve the public purpose of avoiding excessive foreclosures and to ensure the sustainability of the insurance fund. Due to statutory ceilings, FHA is not authorized to charge premium rates high enough to cover the costs of foreclosures on these loans, and high foreclosure rates adversely impact neighborhoods and communities, as well as the individual families. FHA holds the view that borrowers who lack sufficient credit quality to qualify for immediate homeownership will be best served if they are referred to mortgage counseling, and if they can focus on improving their credit scores or saving for a larger downpayment and, thereby, increase their chances of sustainable homeownership in the future.
By implementing risk-based premiums, HUD is preserving and enhancing its ability to serve low-income and minority groups that represent FHA's traditional borrowers. HUD is doing so by improving its management of—not eliminating—cross-subsidization. Risk-based premiums offer a balanced approach that will permit FHA to reach more potential homebuyers, an objective that is necessary to continue to provide cross-subsidies to targeted groups. Furthermore, because risk-based premiums will also apply to the refinancing of loans, borrowers who improve their creditworthiness through regular mortgage payments or through increases in home value can lower the insurance premiums they pay to FHA, when refinance opportunities present themselves.
The key element of APA notice and comment rulemaking is “notice and comment”; that is, advance notice and the opportunity to comment prior to agency action. HUD has provided such advance notice and opportunity to comment through the September 20, 2007, notice. What HUD has not undertaken at this point is codification, which is not a matter covered by or subject to the APA. Codification presents a convenient organization for rules with some degree of permanence. However, when agencies are charged with setting prices or costs, such as insurance premiums, interest rates, fees or rents, which are based on market or other changing conditions that may necessitate periodic changes, then codification is less convenient. In such cases, what is important is that an agency provides advance notice and the opportunity to comment, and HUD has provided such notice and opportunity for comment in this matter.
For borrowers that receive a “Refer” decision from TOTAL, FHA will continue to require manual underwriting, which allows an underwriter to consider additional compensating factors beyond the credit and application factors considered in TOTAL. Further, FHA may accept loans underwritten using nontraditional credit sources where borrowers have insufficient experience with traditional credit.
FHA has made the decision to establish risk-based premiums using credit scores as a principal determinant because a borrower's credit score provides the most important single measure of the willingness and ability of any single borrower to be successful under the borrower's debt obligations. A home loan is the most significant debt obligation that most households will ever enter into. In statistical models used to predict mortgage performance, credit scores and LTV ratios are the most important determinants. They, therefore, provide the best basis for establishing mortgage insurance premiums.
The premiums charged by FHA are independent of the interest rates charged by lenders on the insured loans. FHA provides lenders with 100 percent insurance on the principal balance of the loan. Therefore, the interest rates charged for FHA-insured loans are very close to those charged for prime, conventional loans purchased by Fannie Mae or Freddie Mac. That would not change regardless of what premiums FHA might charge for the insurance.
This notice replaces FHA's Mortgagee Letter 00-38, which identifies the current mortgage insurance premiums for FHA's single family programs. The risk-based premium structure, as provided in this Section V, is effective for new FHA case number assignments made on or after July 14, 2008.
Risk-based premiums will utilize the following schedule for upfront and annual mortgage insurance premium rates:
1. Annual premium rates are: 50 basis points for loans with a loan-to-value (LTV) ratio of less than or equal to 95 percent; and 55 basis points for loans with an LTV ratio of 95.01 percent and higher.
2. The LTV ratio, computed to two decimals (
3. Eligibility for the mortgage insurance premiums listed in the chart above is based on an applicant's decision credit score. A “decision credit score” is determined for each applicant according to the following guidelines: when three scores are available (one from each national consumer reporting agency: Equifax, TransUnion, and Experian®), the middle value is used; when only two are available, the lesser of the two is chosen; when only one is available, then that score is used. If more than one individual is applying for the same mortgage, the lender should determine the decision credit score for each individual borrower and then use the lowest score to determine the final decision credit score for the application. That application “decision” credit score is then used as part of underwriting to determine if the mortgagor is considered an acceptable risk.
4. Except as provided below, eligibility for these insurance premiums is dependent upon borrower acceptance by TOTAL (Technology Open to Approved Lenders). Therefore, all borrowers with valid credit scores must be scored by TOTAL.
5. Borrowers not scored by TOTAL or with insufficient trade lines to generate credit bureau scores will fall in the “non-traditional” column in the premium chart and are priced accordingly. Borrowers falling into cells with no premium price shown are not eligible for FHA-insured financing. Note that a minimum decision credit score of 500 will be required for FHA-insured mortgages with an LTV ratio in excess of 90 percent.
6. If TOTAL refers a loan for manual underwriting and the underwriter deems that there are sufficient compensating factors to create an acceptable risk to FHA, then the upfront insurance premium charge will be as shown on the premium chart.
7. These premiums apply to all purchase loans and to fully underwritten (non-streamline) refinance loans. Cash-out refinance loans must meet a minimum 5 percent equity requirement, based on the appraised value of the property.
8. Streamline refinance of an existing FHA loan for which a case number was assigned prior to July 14, 2008, will have an upfront premium of 100 basis points and an annual premium of 50 basis points.
9. The risk-based premium rates established in this notice apply to those forward mortgages insured under FHA's Mutual Mortgage Insurance (MMI) fund, the Section 203(k) rehabilitation mortgage insurance program, and individual condominium units insured under Section 234(c). Risk-based premiums do not apply to mortgages insured under Title I of the National Housing Act, nor to reverse mortgages under FHA's Home Equity Conversion Mortgage (HECM) program. Risk-based premiums also do not apply to Section 223(e) (declining neighborhoods), Section 238(c) (military impact areas in Georgia and New York), Section 247 (Hawaiian
The following matrix shows upfront and annual mortgage insurance premiums for loan terms with 15 or fewer years.
A Finding of No Significant Impact is not required for this notice. Under 24 CFR 50.19(b)(6), the subject matter of this notice is categorically excluded from the requirements of the National Environmental Policy Act (42 U.S.C. 4332