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Bureau of Consumer Financial Protection.
Final rule.
The Bureau of Consumer Financial Protection (Bureau) is amending its rules relating to the confidential treatment of information by adding a new section providing that the submission by any person of any information to the Bureau in the course of the Bureau's supervisory or regulatory processes will not waive or otherwise affect any privilege such person may claim with respect to such information under Federal or State law as to any other person or entity. In addition, the Bureau has amended its regulations to provide that the Bureau's provision of privileged information to another Federal or State agency does not waive any applicable privilege, whether the privilege belongs to the Bureau or any other person.
This rule is effective August 6, 2012.
John R. Coleman, Senior Litigation Counsel, Office of General Counsel, Bureau of Consumer Financial Protection, 1700 G Street NW., Washington, DC 20552, at (202) 435–7770.
Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) established the Bureau as an independent agency within the Federal Reserve System responsible for regulating the offering and provision of consumer financial products and services under the Federal consumer financial laws.
This final rule amends the Bureau's rules relating to the confidential treatment of information, 12 CFR part 1070, subpart D, in order to facilitate the exercise of the Bureau's authorities by ensuring that the confidentiality of privileged information is not vitiated by any person's disclosure of such information to the Bureau in the course of its supervisory or regulatory processes, or by the Bureau's exchange of privileged information with another Federal or State agency.
The Bureau is in the process of reviewing comments received on other aspects of the interim final rule that governs the Bureau's disclosure of records and information.
The Bureau has authority to supervise and examine insured depository institutions and credit unions with total assets of more than $10,000,000,000 as well as their affiliates and service providers, in order to assess their compliance with Federal consumer financial law, to obtain information about their activities subject to such laws and their associated compliance systems or procedures, and to detect and assess risks to consumers and to markets for consumer financial products and services.
The Bureau's supervision program is focused on supervised entities' “ability to detect, prevent, and correct practices that present a significant risk of violating the law and causing consumer harm.”
An independent audit program and regular self-testing for violations of Federal consumer financial law are essential elements of a strong compliance program.
On January 4, 2012, the Bureau issued a bulletin, CFPB Bulletin 12–01, in which it stated its view that “because entities must comply with the Bureau's supervisory requests for information, the provision of privileged information to the Bureau would not be considered voluntary and would thus not waive any privilege that attached to such information.”
On March 15, 2012, in order to provide further reassurances to its supervised entities, the Bureau published a notice and request for comment regarding its proposal to add a new section to its rules relating to the confidential treatment of information that would provide that any person's submission of information to the Bureau in the course of the Bureau's supervisory or regulatory processes will not waive any privilege such person may claim with respect to such information as to any other person or entity.
The Bureau received 26 comment letters regarding the proposed rule. These comments were submitted on behalf of twenty trade associations (one letter was submitted on behalf of five trade associations), eight individual financial institutions, and two individuals. A majority of the comments supported adoption of the proposed rule; however, several commenters recommended that the Bureau not adopt the proposed rule, but wait for Congress to address institutions' concerns regarding privilege waiver through the enactment of legislation. Although the Bureau has expressed support for legislation codifying the Bureau's view that the submission of privileged information to the Bureau does not result in a waiver,
Some commenters disagreed with the Bureau's position, stated in the notice of proposed rulemaking, that the Bureau has the authority to compel privileged information and that the submission of privileged information to the Bureau pursuant to this authority does not waive any applicable privilege because it is not voluntary.
The validity and effectiveness of the rule depends on the scope of the Bureau's rulemaking authority, not on the Bureau's authority to compel privileged information.
In fact, the rule is authorized by the rulemaking authority delegated to the Bureau in the Dodd-Frank Act. In the notice of proposed rulemaking, the Bureau cited three sources of rulemaking authority that support the rule. First, the Bureau relied on “its authority to `prescribe rules regarding the confidential treatment of information obtained from persons in connection with the exercise of its authorities under Federal consumer financial laws.' ”
Commenters generally agreed that an effective supervision program requires that the Bureau be able to obtain privileged information, and that the proposed rule would facilitate such access. As one trade association commenter observed, “the Bureau needs to have a trusting and open relationship with its supervised entities, which includes having appropriate access to certain privileged information.” A large financial services provider agreed that the proposed rule would “yield numerous benefits, chief among them encouraging the free flow of information between supervised persons and their counsel and between supervised persons and the CFPB.” Another trade association agreed that “the preservation of existing legal privileges * * * is vitally important to the functioning of an effective regulatory and supervisory framework.” Commenters also generally agreed with the Bureau that the same standards should apply to entities supervised by the Bureau as to entities currently or formerly supervised by the prudential regulators. These comments confirm the Bureau's judgment in the exercise of its rulemaking authorities that the rule will ensure the confidentiality of information it obtains in the course of its supervisory or regulatory processes and is necessary or appropriate to administer or facilitate the exercise of its supervisory responsibilities.
No commenters argued that the rule was not within the plain text of the rulemaking authority upon which the Bureau relies, but some commenters suggested that Congress's failure to amend 12 U.S.C. 1828(x) to include the Bureau when it enacted the Dodd-Frank Act raises the negative inference that Congress did not intend the Bureau to accomplish the same end through an exercise of its rulemaking authority. The text of both the Federal Deposit
Several commenters asked the Bureau to make clear that the rule would apply to the submission of privileged information by insured depository institutions or credit unions with $10,000,000 or less in assets, as defined in section 1026(a) of the Dodd-Frank Act. As the commenters note, although the prudential regulators retain primary supervisory authority over these institutions, the Bureau has authority, at its discretion, to participate in the prudential regulators' examinations of these institutions on a sampling basis.
Commenters also sought clarification as to whether the rule would apply to claims that institutions have waived protections afforded to attorney work product by submitting such information to the Bureau. The Bureau does intend the rule's reference to “privilege” to encompass “any privilege” that applies to information submitted by the Bureau, including the attorney work product protection. In fact, in discussing the need for the rule in the notice of proposed rulemaking, the Bureau began by observing that it “will at times request from its supervised entities information that may be subject to one or more statutory or common law privileges, including, for example, the attorney-client privilege and attorney work product protection.”
Several commenters asked the Bureau to reaffirm its policy, as expressed in CFPB Bulletin 12–01, that it will request privileged information only in limited circumstances. As noted in CFPB Bulletin 12–01, the Bureau recognizes the important interests served by the common law privileges, in particular the attorney-client privilege. The Bureau understands that compliance with Federal consumer financial law is served by policies that do not discourage those subject to its supervisory or regulatory authority from seeking the advice of counsel. Accordingly, the Bureau continues to adhere to its policy to request submission of privileged information only when it determines that such information is material to its supervisory objectives and that it cannot practicably obtain the same information from non-privileged sources. The Bureau also continues to adhere to its policy of giving “due consideration to supervised institutions' requests to limit the form and scope of any supervisory request for privileged information.”
In light of these policies, the Bureau disagrees with the contention of several commenters that the final rule will have the effect of chilling attorney-client communications within supervised entities. To the contrary, the final rule encourages and strengthens communications between supervised entities and their attorneys by providing additional protections for the
Commenters also expressed concern regarding the Bureau's disclosure to other agencies of attorney-client or work product privileged information submitted to the Bureau in the course of its supervisory process. The Bureau's policy for the treatment of confidential supervisory information generally is expressed in CFPB Bulletin 12–01, which states, in pertinent part:
[T]he Bureau will not routinely share confidential supervisory information with agencies that are not engaged in supervision. Except where required by law, the Bureau's policy is to share confidential supervisory information with law enforcement agencies, including State Attorneys General, only in very limited circumstances and upon review of all the relevant facts and considerations. The significance of the law enforcement interest at stake will be an important consideration in any such review. However, even the furtherance of a significant law enforcement interest will not always be sufficient, and the Bureau may still decline to share confidential supervisory information based on other considerations, including the integrity of the supervisory process and the importance of preserving the confidentiality of the information.
This policy applies to the Bureau's treatment of all confidential supervisory information, including the instances in which the Bureau is asked to share with a law enforcement agency confidential supervisory information that is also subject to the attorney-client or work product privileges. The Bulletin's presumption against sharing confidential supervisory information would be even stronger in such instances.
As stated in CFPB Bulletin 12–01, “[b]y articulating its policy regarding its treatment of confidential supervisory information, the Bureau does not intend to limit its use of such information in administrative or judicial proceedings, subject to appropriate protective orders.”
For the foregoing reasons, the Bureau adopts the proposed rule without modification.
On July 28, 2011, the Bureau issued an interim final rule providing that “[t]he provision by the CFPB of any confidential information pursuant to [12 CFR part 1070, subpart D] does not constitute a waiver, or otherwise affect, any privilege any agency or person may claim with respect to such information under federal law.” 12 CFR 1070.47(c). In the notice of proposed rulemaking, the Bureau proposed readopting this rule in modified form to create a non-waiver provision substantively similar to that codified in section 11 of the Federal Deposit Insurance Act,
The Bureau received comparatively few comments related to its proposed revision of section 1070.47(c). As noted, some commenters expressed concern regarding the Bureau's treatment of attorney-client and attorney work product privileged information obtained in the course of its supervisory or regulatory processes, including whether the Bureau intends to provide such privileged information to other Federal or State agencies. One commenter suggested that the term “State agency” in section 1070.47(c) be defined to exclude State attorneys general, and suggested that the Bureau should not share with a State agency the privileged information of a regulated entity that relates to pending or anticipated litigation between the State agency and the entity.
As addressed above in the discussion of section 1070.48, the ordinary presumption that the Bureau will not share confidential supervisory information is even stronger when the confidential supervisory information is also subject to the attorney-client or work product privilege. Although section 1070.47(c) will protect any person's privileged information from claims of waiver, it is primarily intended to protect the Bureau's privileges—including, for example, its examination privilege, its deliberative process privilege, and its law enforcement privilege—in the context of a coordinated examination or joint investigation.
Several commenters raised a specific concern regarding whether the corporate entity created by State regulators to administer the National Mortgage Licensing System (NMLS) will be considered a “State agency” for purposes of section 1070.47(c). According to the commenters, State regulators often use the NMLS to exchange confidential information of related companies. The Secure and Fair Enforcement for Mortgage Licensing Act (S.A.F.E. Act) protects the confidentiality of information exchanged by State and Federal agencies through the NMLS, and expressly provides that information provided to the NMLS “may be shared with all State and Federal regulatory officials with mortgage industry oversight authority without the loss of privilege or the loss of confidentiality protections provided by Federal or State laws.” 12 U.S.C. 5111(a);
Commenters also sought clarification that section 1070.47(c), like section 1070.48, would apply to attorney work product, as well as other types of privileged information. For the reasons set forth in the discussion of section 1070.48, the Bureau affirms that section 1070.47(c) is intended to apply to attorney work product and other privileged information.
For the foregoing reasons, the Bureau adopts the proposed rule without modification.
The final rule is based on the Bureau's authority to “prescribe rules regarding the confidential treatment of information obtained from persons in connection with the exercise of its authorities under Federal consumer financial laws.”
In addition, the Bureau relies on its general rulemaking authority to “prescribe rules * * * as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, and to prevent evasions thereof.”
Finally, the Bureau also relies on its authority to “prescribe rules to facilitate the supervision of [nondepository institutions] and assessment and detection of risks to consumers.”
In developing the final rule, the Bureau considered potential benefits, costs, and impacts, and has consulted or offered to consult with the prudential regulators and the Federal Trade Commission, including regarding consistency with any prudential, market, or systemic objectives administered by such agencies.
Section 1070.48 of the final rule provides that the submission by any person of information to the Bureau in the course of the Bureau's supervisory or regulatory processes does not waive or otherwise affect any privilege such person may claim with respect to such information under Federal or State law as to any other person or entity. Section 1070.47(c) of the final rule provides that the Bureau's provision of privileged information to another Federal or State agency does not waive any applicable privilege.
As explained above, the Bureau anticipates that section 1070.48 will most often apply in the context of a supervised entity's involuntary submission of privileged information to the Bureau.
The Bureau also believes that courts applying the principles of the common law would be unlikely to find a waiver of any applicable privilege in most circumstances in which it will share privileged information with another Federal or State agency. For example, the Bureau believes it unlikely that a court would find a waiver if it were to share its privileged deliberative work product with Federal or State agencies in the context of a coordinated examination or joint investigation. In circumstances in which the rule does result in a determination regarding waiver different than that which would be reached under existing law, section 1070.47(c)'s only effect would be to preserve the confidentiality of privileged information and, therefore, would not impose material costs on consumers or covered persons for the same reasons as set forth above in relation to section 1070.48. Accordingly, section 1070.47(c) is not expected to impose material costs on consumers or covered persons or to impact consumers' access to consumer financial products or services.
Finally, although the final rule would apply to privileged information submitted by depository institutions or credit unions with $10,000,000,000 or less in assets as described in section 1026 of the Dodd-Frank Act, it has no unique impact upon such institutions. Nor does the final rule have a unique impact on rural consumers.
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small governmental units, and small not-for-profit organizations.
The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Bureau did not perform an IFRA because it determined and certified that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Bureau did not receive any comments regarding its certification, and is adopting the proposed rule without change.
A FRFA is not required for the proposed rule because it will not have a significant economic impact on a substantial number of small entities. The proposed rule does not impose obligations or standards of conduct on any entities. In any event, as noted, the submission by any person of any information to the Bureau in the course of the Bureau's supervisory or regulatory processes or the Bureau's later disclosure of such submitted material generally does not waive or otherwise affect any privilege such person may claim with respect to such information under Federal or State law as to any other person or entity. The final rule is intended to codify this result in order to give further assurance to entities subject to the Bureau's authority. Any requirement to provide information stems from the Bureau's authority under existing law, not the final rule. To the extent that the final rule alters existing law, it protects any applicable privilege under Federal or State law that a covered person that provides information to the Bureau may claim.
Accordingly, the undersigned hereby certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Confidential business information, Consumer protection, Privacy.
For the reasons set forth in the preamble, the Bureau amends 12 CFR part 1070, subpart D, as set forth below:
12 U.S.C. 3401; 12 U.S.C. 5481
(c)
(2)
(a)
(b)
(1) Any person waives any privilege applicable to information that is submitted or transferred under circumstances to which paragraph (a) of this section does not apply; or
(2) Any person would waive any privilege applicable to any information by submitting the information to the CFPB but for this section.
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This amendment clarifies aircraft engine vibration test requirements in the airworthiness standards. The clarification is in response to inquiries from applicants requesting FAA engine type certifications and aftermarket certifications, such as supplemental type certificates, parts manufacturing approvals, and repairs. We are revising the regulations to clarify that “engine surveys” require an engine test. The change is not substantive in nature, and will not impose any additional burden on any person.
This amendment becomes effective July 5, 2012.
For technical questions concerning this action, contact Dorina Mihail, Federal Aviation Administration, Engine and Propeller Directorate, Standards Staff, ANE–110, 12 New England Executive Park, Burlington, Massachusetts 01803–5229; (781) 238–7153; facsimile: (781) 238–7199; email:
For legal questions concerning this action, contact Vincent Bennett, Federal Aviation Administration, Office of Regional Counsel, ANE–7, 12 New England Executive Park, Burlington, Massachusetts 01803–5299; telephone (781) 238–7044; fax (781) 238–7055; email
The airworthiness standards in § 33.83 refer to engine surveys, vibration surveys, vibration test, or simply surveys with the intent to prescribe engine vibration surveys conducted by the means of an engine test. This intent has been applied since the regulation was first issued in 1964 and is common certification practice. However, FAA continues to receive requests for clarification in regard to the “engine surveys” required in the second sentence of § 33.83(a). The requested clarification was whether an “appropriate combination of experience, analysis, and component test” is acceptable in lieu of an engine test. We are revising § 33.83(a) to clarify that the applicants must conduct the engine surveys by the means of an engine test, and that the applicants may use an “appropriate combination of experience, analysis, and component test” in support of conducting the engine test. This clarification is not substantive in nature, and will not impose any additional burden on any person.
Aircraft, Aviation safety.
In consideration of the following, the Federal Aviation Administration amends part 33 of Title 14, Code of Federal Regulations, as follows:
49 U.S.C. 106(g), 40113, 44701–44702, 44704.
(a) Each engine must undergo vibration surveys to establish that the vibration characteristics of those components that may be subject to mechanically or aerodynamically induced vibratory excitations are acceptable throughout the declared flight envelope. Compliance with this section must be demonstrated by engine test, and must address, as a minimum, blades, vanes, rotor discs, spacers, and rotor shafts. The conduct of the engine test should be based on an appropriate combination of experience, analysis, and component test.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for all Pratt & Whitney Canada (P&WC) PW118, PW118A, PW118B, PW119B, PW119C, PW120, PW120A, PW121, PW121A, PW123, PW123B, PW123C, PW123D, PW123E, PW123AF, PW124B, PW125B, PW126A, PW127, PW127E, PW127F, PW127G, and PW127M turboprop engines. This AD requires initial and repetitive inspections of certain serial numbers (S/Ns) of propeller shafts for cracks and removal from service if found cracked. This AD was prompted by reports of two propeller shafts found cracked at time of inspection during maintenance. We are issuing this AD to detect propeller shaft cracks, which could cause failure of the shaft, propeller release, and loss of control of the airplane.
This AD becomes effective July 20, 2012.
We must receive comments on this AD by August 20, 2012.
The Director of the Federal Register approved the incorporation by reference of P&WC Alert Service Bulletin (ASB) No. PW100–72–A21813, Revision 3, dated March 21, 2012, ASB No. PW100–72–A21802, Revision 4, dated March 16, 2012, and Special Instruction P&WC 22–2012R2, dated April 4, 2012, listed in the AD as of July 20, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Pratt & Whitney Canada Corp., 1000 Marie-Victorin, Longueuil, Quebec, Canada, J4G 1A1; phone 800–268–8000; fax 450–647–2888; Web site:
You may examine the AD docket on the Internet at
James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; email:
Transport Canada, which is the aviation authority for Canada, has issued Canada AD CF–2012–12, dated March 26, 2012 (referred to after this as “the MCAI”), to correct an unsafe
Two PW100 propeller shafts were discovered with cracks during troubleshooting for oil leakage in the propeller shaft area. The subsequent investigation has determined that the crack initiation resulted from a plating repair not performed in accordance with the current published Pratt & Whitney Canada (P&WC) Cleaning Inspection and Repair (CIR) Manual. Both propeller shafts that were found with a circumferential crack had been processed consecutively for nickel plating repair at the same repair facility.
P&WC had initially identified 24 high-risk propeller shafts that were repaired by the same facility and accordingly, issued Service Bulletin (SB) No. A21802 in May 2011 to remove those 24 units from service. Nineteen of those units were removed and the remaining 5 are confirmed to not be installed on any serviceable aircraft. Further investigation by P&WC indicated that the lack of full conformity with the CIR procedure may not have been limited to one vendor only. As a result P&WC identified a total of 203 (24 + 179) suspect units that may not have been repaired in accordance with CIR procedures.
You may obtain further information by examining the MCAI in the AD docket.
P&WC has issued ASB No. PW100–72–A21813, Revision 3, dated March 21, 2012 and ASB No. PW100–72–A21802, Revision 4, dated March 16, 2012. These ASBs provide instructions on replacing the affected propeller shafts that are identified by S/N in the ASBs. P&WC has also issued Special Instruction P&WC 22–2012R2, dated April 4, 2012, which provides instructions on performing ultrasonic inspections to the affected propeller shafts. The actions described in that service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of Canada, and is approved for operation in the United States. Pursuant to our bilateral agreement with Canada, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by Canada and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
This AD requires within 30 days after the effective date of the AD, removing from service propeller shafts with a S/N listed in Table 1 of P&WC ASB No. PW100–72–A21802, Revision 4, dated March 16, 2012. These propeller shafts are the highest-risk propeller shafts.
This AD also requires within 200 engine flight hours (EFH) or 40 days, whichever occurs first after the effective date of this AD, performing an initial, and repetitive visual inspections or ultrasonic inspections of propeller shafts with a S/N listed in Table 1 or Table 2 of P&WC ASB No. PW100–72–A21813, Revision 3, dated March 21, 2012. These propeller shafts are not as high a risk.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the compliance requirements are within 30 days or less, depending on airplane usage. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
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.
The PW126, PW127B, PW127H, and PW127J model engines listed in the MCAI are not included in this AD because they are not subject to FAA oversight.
The MCAI requires retirement of all subject propeller shafts within 12 months. This AD does not. However, that requirement may be added at a later date as required terminating action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective July 20, 2012.
None.
This AD applies to all Pratt & Whitney Canada (P&WC) PW118, PW118A, PW118B, PW119B, PW119C, PW120, PW120A, PW121, PW121A, PW123, PW123B, PW123C, PW123D, PW123E, PW123AF, PW124B, PW125B, PW126A, PW127, PW127E, PW127F, PW127G, and PW127M turboprop engines, with the serial number (S/N) propeller shafts listed in P&WC Alert Service Bulletin (ASB) No. PW100–72–A21813, Revision 3, dated March 21, 2012, and ASB No. PW100–72–A21802, Revision 4, dated March 16, 2012.
This AD was prompted by reports of two propeller shafts found cracked at time of inspection during maintenance. We are issuing this AD to detect propeller shaft cracks, which could cause failure of the shaft, propeller release, and loss of control of the airplane.
Unless already done, do the following actions.
(1) Within 30 days after the effective date of this AD, remove from service propeller shafts with an S/N listed in Table 1 of P&WC ASB No. PW100–72–A21802, Revision 4, dated March 16, 2012.
(2) For propeller shafts with a S/N listed in Table 1 or Table 2 of P&WC ASB No. PW100–72–A21813, Revision 3, dated March 21, 2012:
(i) Within 200 engine flight hours (EFH) or 40 days, whichever occurs first after the effective date of this AD, perform either an initial visual inspection or an initial ultrasonic inspection (UI) for cracks, in accordance with paragraphs 3.C.(1) through 3.C.(1)(a), and 3.C.(2) of P&WC ASB No. PW100–72–A21813, Revision 3, dated March 21, 2012, and Section 9 of P&WC Special Instruction (SI) P&WC 22–2012R2, dated April 4, 2012.
(ii) If the visual inspection was performed, repeat the visual inspection within 50 EFH after the initial inspection, and thereafter every 10 EFH, until the propeller shaft is removed from service.
(iii) If the UI was performed, repeat the UI at intervals not to exceed 1,000 EFH, until the propeller shaft is removed from service.
(3) If a crack is found during any of the inspections required by this AD, remove the propeller shaft from service before the next flight.
After the effective date of this AD, do not install any propeller shaft S/Ns listed in Table 1 of P&WC ASB No. PW100–72–A21802, Revision 4, dated March 16, 2012, into any engine.
The Manager, Engine Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
No special flight permits will be issued for this AD.
(1) For more information about this AD, contact James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; email:
(2) Refer to Transport Canada AD CF–2012–12, dated March 26, 2012, for related information.
(1) The Director of the
(2) You must use the following service information to do the actions required by this AD, unless the AD specifies otherwise.
(i) Pratt & Whitney Canada Alert Service Bulletin No. PW100–72–A21813, Revision 3, dated March 21, 2012.
(ii) Pratt & Whitney Canada Alert Service Bulletin No. PW100–72–A21802, Revision 4, dated March 16, 2012.
(iii) Pratt & Whitney Canada Special Instruction P&WC 22–2012R2, dated April 4, 2012.
(3) For service information identified in this AD, contact Pratt & Whitney Canada Corp., 1000 Marie-Victorin, Longueuil, Quebec, Canada, J4G 1A1; phone 800–268–8000; fax 450–647–2888; Web site:
(4) You may review copies of the service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
(5) You may also review copies of the service information incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Commodity Futures Trading Commission; Securities and Exchange Commission.
Joint final rule; joint interim final rule; interpretations; correction.
The Commodity Futures Trading Commission and Securities and Exchange Commission are correcting final rules that appeared in the
Effective July 23, 2012.
In FR Doc. 2012–10562 appearing on page 30596 in the
(ggg) * * *
(4) * * *
(ii) * * *
(D) If the phase-in termination date has not been previously established pursuant to paragraph (ggg)(4)(ii)(C) of this section, then in any event the phase-in termination date shall occur five years after the date that a swap data repository first receives swap data in accordance with part 45 of this chapter.
(hhh) * * *
(6) * * *
(iii) * * *
(B) * * *
(
(jjj) * * *
(3) * * *
(iii) * * *
(A) Potential outward exposure equals the potential exposure that would be attributed to such positions using the procedures in paragraph (jjj)(3)(ii) of this section multiplied by:
(
(
Under Secretary of Defense for Acquisition, Technology, and Logistics, Office of the Deputy Under Secretary of Defense (Installations and Environment), DoD.
Direct final rule.
This direct final rule makes non-substantive changes to the Expanded Homeowners Assistance Program (HAP) rule. The Expanded HAP, authorized in the American Recovery and Reinvestment Act for 2009 (“the Act”), provided much needed assistance to military and civilian employees, and spouses of military members who died in the line of duty. However, the Expanded HAP eligibility criteria established in the Act, including those criteria that were subsequently changed through administrative rulemaking procedures, did not establish a deadline for when applications must be submitted to DoD. These changes inform applicants of application deadlines and the current field office address for submitting applications. These changes do not impact the eligibility criteria or other policies and procedures prescribed in the rule.
This direct final rule is effective September 4, 2012 unless Agency receives significant adverse comments by midnight Eastern Standard Time on August 6, 2012.
Phyllis Newton, 703–571–9060.
Due to funding limitations, in the Expanded HAP Final Rule, the Permanent Change of Station (PCS) eligibility criterion date for when PCS orders needed to be issued was changed from September 30, 2012, to September 30, 2010, but the Final Rule retained the September 30, 2012, date for when the house must be sold. In accordance with the Act, the Base Realignment and Closure (BRAC) 2005 eligibility criterion will terminate on September 30, 2012, a full year after implementation of the BRAC 2005 round. It is appropriate to establish application deadlines for Expanded HAP benefits for the PCS and BRAC 2005 categories. To that end, this rule will amend 32 CFR part 239 by adding two paragraphs to Section 239.9(a) to establish the application deadlines. This change does not eliminate anyone's eligibility; rather it simply requires filing of applications in a timely manner. Submission of the applications by the specified deadlines is sufficient even if further documentation is required.
Additionally, the amendment will revise the HAP Field Office address for the submission of HAP applications. The three former field offices were consolidated into one field office in Savannah, Georgia.
The prompt implementation of the Direct Final Rule is of critical importance. Due to the current economic climate, continuing the Expanded HAP provisions for PCS and BRAC 2005 categories is no longer viable. This Direct Final Rule makes nonsubstantive changes to the Expanded HAP rule. These changes inform applicants of application deadlines and the current field office address for submitting applications. These changes do not impact the eligibility criteria or other policies and procedures prescribed in the rule.
Additionally, the Department of Defense has determined that these
DoD has determined this rulemaking meets the criteria for a direct final rule because it involves nonsubstantive changes dealing with DoD's management of its Expanded HAP. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule by publishing a notice in the
a. The Expanded Homeowners Assistance Program (HAP), authorized in the American Recovery and Reinvestment Act of 2009 (“the Act”), provided much needed assistance to military and civilian employees, and spouses of military members who died in the line of duty. However, the Expanded HAP eligibility criteria established in the Act, including those criteria that were subsequently changed through administrative rulemaking procedures, did not establish a deadline for when applications must be submitted to DoD. Based on reductions in the Defense budget in Fiscal Year 2012 and beyond, continuing the Expanded HAP provisions for Permanent Change of Station (PCS) and Base Realignment and Closure (BRAC) 2005 categories is no longer viable. In the Expanded HAP Final Rule, the PCS eligibility criterion date was changed from September 30, 2012, to September 30, 2010, due to funding limitations. However, the Department continues to receive more than 100 eligible applications per month for the PCS category. Per the Act, the BRAC 2005 eligibility criterion will terminate on September 30, 2012, a full year after the statutory completion of the BRAC 2005 round. It is now time to establish application deadlines for Expanded HAP benefits for the PCS and BRAC 2005 categories. To that end, this rule will amend 32 CFR part 239 by adding two paragraphs to Section 239.9(a) to establish the application deadlines.
b. 42 United States Code, Section 3374, as amended.
The HAP Rule, Section 239.9(a) will be amended to add application deadlines for the submission of PCS and BRAC 2005 benefits. This change does not eliminate anyone's eligibility; rather it simply requires filing of applications in a timely manner. Submission of the applications by the specified deadlines is sufficient even if further documentation is required. Additionally, the amendment will revise the HAP Field Office address for the submission of HAP applications. The three former field offices were consolidated into one field office in Savannah, Georgia.
There is no cost to the public. The Department of Defense administrative costs for implementation of the authorities under this rule are eight (8) percent of the funds appropriated to execute the Expanded HAP. Workload will be accomplished with additional staffing and be integrated into normal business.
It has been determined that this rule is a significant regulatory action.
This rule does not:
(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; or
(3) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.
This rule does:
Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof.
OMB has reviewed this rule.
It has been certified that 32 CFR part 239 does not contain a Federal mandate that may result in expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been certified that 32 CFR part 239 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
It has been certified that this rule does impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. The HAP Application is approved under OMB Control Number 0704–0463.
It has been certified that 32 CFR part 239 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of Government.
Government employees; Grant programs—housing and community development; Housing; Military personnel.
Accordingly, 32 CFR part 239 is amended as follows:
42 U.S.C. 3374, as amended.
(a) * * *
(1) Applications for benefits by members of the Armed Forces due to eligibility pursuant to § 239.6(a)(4) of
(2) Applications of eligible personnel for benefits due to eligibility pursuant to § 239.6(a)(3) of this part because of BRAC 2005 must be submitted directly to the U.S. Army Corps of Engineers field office identified in § 239.15 of this part by U.S. Mail or commercial delivery service, and must be postmarked or deposited with the commercial delivery service no later than September 30, 2012. Applications postmarked or deposited after September 30, 2012, will not be accepted.
U.S. Army Engineer District, Savannah, Corps of Engineers, Attn: CESAS–RE–HM, 100 West Oglethorpe Avenue, Savannah, Georgia 31401–3604, 1–800–861–8144, Internet Address:
Homeowners Assistance Program, HQ U.S. Army Corps of Engineers Real Estate Directorate, Military Division, 441 G Street NW., Washington, DC 20314–1000.
Department of the Navy, DoD.
Final rule.
The Department of the Navy (DoN) is amending its certifications and exemptions under the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), to reflect that the Deputy Assistant Judge Advocate General (DAJAG) (Admiralty and Maritime Law) of the DoN has determined that USS HARRY S. TRUMAN (CVN 75) is a vessel of the Navy which, due to its special construction and purpose, cannot comply fully with certain provisions of the 72 COLREGS without interfering with its special function as a naval ship. The intended effect of this rule is to warn mariners in waters where 72 COLREGS apply.
This rule is effective July 5, 2012 and is applicable beginning June 25, 2012.
Lieutenant Jocelyn Loftus-Williams, JAGC, U.S. Navy, Admiralty Attorney, (Admiralty and Maritime Law), Office of the Judge Advocate General, Department of the Navy, 1322 Patterson Ave. SE., Suite 3000, Washington Navy Yard, DC 20374–5066, telephone number: 202–685–5040.
Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR part 706.
This amendment provides notice that the DAJAG (Admiralty and Maritime Law) of the DoN, under authority delegated by the Secretary of the Navy, has certified that USS HARRY S. TRUMAN is a vessel of the Navy which, due to its special construction and purpose, cannot comply fully with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I, paragraph 3(a), pertaining to the placement of the forward masthead light in the forward quarter of the ship; Annex I, paragraph 2(g), pertaining to the placement of the sidelights above the hull; and Annex I, paragraph 2(i)(iii), pertaining to the vertical line spacing of the task lights. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.
Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.
Marine safety, Navigation (water), and Vessels.
For the reasons set forth in the preamble, amend part 706 of title 32 of the CFR as follows:
33 U.S.C. 1605.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing special local regulations during the swim segment of the “Swim Across the Potomac River” swimming competition, to be held on the waters of the Potomac River on July 8, 2012. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to temporarily restrict vessel traffic in a portion of the Potomac River and National Harbor Access Channel during the event.
This rule is effective on July 8, 2012.
Documents mentioned in this preamble are part of docket [USCG–2012–0276]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Mr. Ronald Houck, Sector Baltimore Waterways Management Division, U.S. Coast Guard; telephone 410–576–2674, email
On April 27, 2012, we published a notice of proposed rulemaking (NPRM) entitled “Special Local Regulations for
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
On July 8, 2012, the National Harbor Marina of Oxon Hill, Maryland, will sponsor a swimming competition across the Potomac River between Alexandria, Virginia and Oxon Hill, Maryland. The event consists of up to 250 swimmers on a 1.3-mile linear course located downriver from the Woodrow Wilson Memorial (I–495/I–95) Bridge. The swimmers will be supported by sponsor-provided watercraft. The start will be located at North Point in Jones Point Park and the finish will be located along the shore at National Harbor Marina. Portions of the swim course will cross the Potomac River federal navigation channel and the National Harbor Access Channel. Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators and other transiting vessels.
The Coast Guard received no comments in response to the NPRM. No public meeting was requested and none was held.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this regulation will prevent traffic from transiting portions of the Potomac River and National Harbor Access Channel during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners and marine information broadcasts, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic will be able to transit safely through a portion of the regulated area, but only after the last participant has cleared that portion of the regulated area and when the Coast Guard Patrol Commander deems it safe to do so.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard received no comments from the Small Business Administration on this rule. 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 transit or anchor in the effected portions of the Potomac River, including and National Harbor Access Channel, during the event.
Although this regulation prevents traffic from transiting portions of the Potomac River and the National Harbor Access Channel during the event, this rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only a limited period. Though the regulated area extends across the entire width of the river, vessel traffic may be permitted to safely transit a portion of the regulated area, but only after all participants have safely cleared that portion of the regulated area and when the Coast Guard Patrol Commander deems it safe for vessel traffic to do so. All Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF–FM channel 16 (156.8 MHz). Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
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 will not call for a 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 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
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 (adjusted for inflation) 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 cause 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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR Part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, canoe and sail board racing. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(b)
(2)
(c)
(2) Persons desiring to transit the regulated area must first obtain authorization from the Captain of the Port Baltimore or his designated representative. To seek permission to transit the area, the Captain of the Port Baltimore and his designated representatives can be contacted at telephone number 410–576–2693 or on Marine Band Radio, VHF–FM channel 16 (156.8 MHz). All Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF–FM channel 16 (156.8 MHz).
(3) The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue a marine information broadcast on VHF–FM marine band radio announcing specific event date and times.
(d) Enforcement period. This section will be enforced from 7 a.m. until 11 a.m. on July 8, 2012.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the Seattle Seafair Unlimited Hydroplane Race Special Local Regulation on Lake Washington, WA from 8 a.m. on August 2, 2012 through 11:59 p.m. on August 5, 2012 during
The regulations in 33 CFR 100.1301 will be effective from 8 a.m. on August 2, 2012 through 11:59 p.m. on August 5, 2012.
If you have questions on this notice, call or email Ensign Nathaniel P. Clinger, Sector Puget Sound Waterways Management Division, Coast Guard; telephone 206–217–6045, email
The Coast Guard will enforce the special local regulation for the annual Seattle Seafair Unlimited Hydroplane Race in 33 CFR 100.1301 from 8 a.m. on August 2, 2012 through 11:59 p.m. on August 5, 2012.
Under the provisions of 33 CFR 100.1301, the Coast Guard will restrict general navigation in the following area: The waters of Lake Washington bounded by the Interstate 90 (Mercer Island/Lacey V. Murrow) Bridge, the western shore of Lake Washington, and the east/west line drawn tangent to Bailey Peninsula and along the shoreline of Mercer Island.
The regulated area has been divided into two zones. The zones are separated by a line perpendicular from the I–90 Bridge to the northwest corner of the East log boom and a line extending from the southeast corner of the East log boom to the southeast corner of the hydroplane race course and then to the northerly tip of Ohlers Island in Andrews Bay. The western zone is designated Zone I, the eastern zone, Zone II. (Refer to NOAA Chart 18447).
The Coast Guard will maintain a patrol consisting of Coast Guard vessels, assisted by Auxiliary Coast Guard vessels, in Zone II. The Coast Guard patrol of this area is under the direction of the Coast Guard Patrol Commander (the “Patrol Commander”). The Patrol Commander is empowered to control the movement of vessels on the racecourse and in the adjoining waters during the periods this regulation is in effect. The Patrol Commander may be assisted by other federal, state and local law enforcement agencies.
Only authorized vessels may be allowed to enter Zone I during the hours this regulation is in effect. Vessels in the vicinity of Zone I shall maneuver and anchor as directed by Coast Guard Officers or Petty Officers.
During the times in which the regulation is in effect, the following rules shall apply:
(1) Swimming, wading, or otherwise entering the water in Zone I by any person is prohibited while hydroplane boats are on the racecourse. At other times in Zone I, any person entering the water from the shoreline shall remain west of the swim line, denoted by buoys, and any person entering the water from the log boom shall remain within ten (10) feet of the log boom.
(2) Any person swimming or otherwise entering the water in Zone II shall remain within ten (10) feet of a vessel.
(3) Rafting to a log boom will be limited to groups of three vessels.
(4) Up to six (6) vessels may raft together in Zone II if none of the vessels are secured to a log boom. Only vessels authorized by the Patrol Commander, other law enforcement agencies or event sponsors shall be permitted to tow other watercraft or inflatable devices.
(5) Vessels proceeding in either Zone I or Zone II during the hours this regulation is in effect shall do so only at speeds which will create minimum wake, seven (07) miles per hour or less. This maximum speed may be reduced at the discretion of the Patrol Commander.
(6) Upon completion of the daily racing activities, all vessels leaving either Zone I or Zone II shall proceed at speeds of seven (07) miles per hour or less. The maximum speed may be reduced at the discretion of the Patrol Commander.
(7) A succession of sharp, short signals by whistle or horn from vessels patrolling the areas under the direction of the Patrol Commander shall serve as signal to stop. Vessels signaled shall stop and shall comply with the orders of the patrol vessel; failure to do so may result in expulsion from the area, citation for failure to comply, or both.
This notice is issued under authority of 33 CFR 100.1301 and 5 U.S.C. 552(a). If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, he may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.
Coast Guard, DHS.
Final rule.
The Coast Guard is establishing temporary special local regulations and safety zones for marine events on the navigable waters within the Captain of the Port (COTP) Sector Long Island Sound zone for regattas, fireworks displays and swim events. This action is necessary to provide for the safety of life on navigable waters during the events. Entering into, transiting through, remaining, anchoring or mooring within these regulated areas would be prohibited unless authorized by the COTP Sector Long Island Sound.
This rule is effective from August 6, 2012 until November 11, 2012.
This rule will be enforced during the specific dates and time listed in TABLE 1 and 2 to § 165.T01–0111.
Documents mentioned in this preamble are part of docket [USCG–2012–0111]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Petty Officer Joseph Graun, Prevention Department, Coast Guard Sector Long Island Sound, (203) 468–4544,
On April 4, 2012 the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Special Local Regulations and Safety Zones; Marine Events in Captain of the Port Sector Long Island Sound Zone, in the
We received no comments on the NPRM. No requests for a public meeting were received and no public meetings were held.
The legal basis for this temporary rule is 33 U.S.C. 1226, 1231, 1233; 46 U.S.C. Chapters 454, 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6 and 160.5; Public Law 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1 which collectively authorize the Coast Guard to define regulatory special local regulations and safety zones.
This temporary rule establishes special local regulations and safety zones in order to provide for the safety of life on navigable waterways during regattas, fireworks displays and swim events.
In the NPRM the Coast Guard stated the following events: Davis Park Fireworks, Charles W. Morgan Anniversary Fireworks and Waves of Hope Swim, had not chose a date and time for their events and we would announce them in the final rule. The dates for each of the events are as follows: The Davis Park Fireworks have been removed from the table because the sponsor has decided not to hold the event. Charles W. Morgan Anniversary Fireworks will be held on November 3, 2012 and Waves of Hope Swim will be held on August 13, 2012. The dates can also be found in TABLE 1 & 2 to § 165.T01–0111.
The following events have been removed from this rulemaking and placed in a separate rulemaking under docket number (USCG–2012–0477) titled Safety Zones; Fireworks Displays in Captain of the Port Long Island Sound Zone. Salute to Veterans Devon Yacht Club Fireworks, Dolan Family Fourth Fireworks, Islip Fireworks, Madison Fireworks, Stratford Fireworks, Rowayton Fireworks, Quarentello Wedding Fireworks and Niantic Bay Fireworks. These events have been moved because there was less than 30 days between publication of this rule and the start of each events. Moving these events to a separate rulemaking allows the Coast Guard to accommodate a 30 day window between this rule publication and first day of being effective.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The Coast Guard determined that this rulemaking is not a significant regulatory action for the following reasons: The regulated areas are of limited duration and cover only a small portion of the navigable waterways. Furthermore, vessels may transit the navigable waterways outside of the regulated areas. Persons or vessels requiring entry into the regulated areas may be authorized to do so by the COTP Sector Long Island Sound or designated representative.
Advanced public notifications will also be made to the local maritime community through the Local Notice to Mariners as well as Broadcast Notice to Mariners.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard received no comments from the Small Business Administration on this rule. 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 will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit, anchor or moor within the regulated areas during the enforcement periods stated for each event listed below in the List of Subjects.
These temporary special local regulations and safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: the regulated areas are of limited size and of short duration, vessels that can safely do so may navigate in all other portions of the waterways except for the areas designated as regulated areas, and vessels requiring entry into the regulated areas may be authorized to do so by the COTP Sector Long Island Sound or designated representative. Additionally, before the effective period, notifications will be made to the local maritime community through the Local Notice to Mariners and Broadcast Notice to Mariners well in advance of the events.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
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 will not call for a 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
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
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 (adjusted for inflation) 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 cause 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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of special local regulations and safety zones. This rule is categorically excluded from further review under paragraph 34(g)&(h), of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recording requirements, Waterways.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 100 and 165 as follows:
33 U.S.C. 1233.
(a)
(b)
(1)
(2)
(3)
(c) Vessel operators desiring to enter or operate within the regulated areas shall contact the COTP Sector Long Island Sound at 203–468–4401 (Sector LIS command center) or the designated representative via VHF channel 16.
(d) Vessels may not transit the regulated areas without the COTP Sector Long Island Sound or designated representative approval. Vessels permitted to transit must operate at a no wake speed, in a manner which will not endanger participants or other crafts in the event.
(e) Spectators or other vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated areas during the effective dates and times, or dates and times as modified through the Local Notice to Mariners, unless authorized by COTP Sector Long Island Sound or designated representative.
(f) The COTP Sector Long Island Sound or designated representative may
(g) For all regattas listed, vessels not participating in the event, swimmers, and personal watercraft of any nature are prohibited from entering or moving within the regulated area unless authorized by the COTP Sector Long Island Sound or designated representative. Vessels within the regulated area must be at anchor within a designated spectator area or moored to a waterfront facility in a way that will not interfere with the progress of the event.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapters 454, 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6 and 160.5; Public Law 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(1)
(2)
(3)
(c) Vessel operators desiring to enter or operate within the regulated areas should contact the COTP Sector Long Island Sound at 203–468–4401 (Sector LIS command center) or the designated representative via VHF channel 16 to obtain permission to do so.
(d) Spectators or other vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated areas during the effective dates and times, or dates and times as modified through the Local Notice to Mariners, unless authorized by COTP Sector Long Island Sound or designated representative.
(e) Upon being hailed by a U.S. Coast Guard vessel or the designated representative, by siren, radio, flashing light or other means, the operator of the vessel shall proceed as directed. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.
(f) The COTP Sector Long Island Sound or designated representative may delay or terminate any marine event in this subpart at any time it is deemed necessary to ensure the safety of life or property.
(g) The regulated area for all fireworks displays listed in TABLE 1 to § 165.T01–0111 is that area of navigable waters within a 1000 foot radius of the launch platform or launch site for each fireworks display, unless otherwise noted in TABLE 1 to § 165.T01–0111 or modified in USCG First District Local Notice to Mariners at:
(h) Fireworks barges used in these locations will also have a sign on their port and starboard side labeled “FIREWORKS—STAY AWAY”. This sign will consist of 10 inch high by 1.5 inch wide red lettering on a white background. Shore sites used in these locations will display a sign labeled “FIREWORKS—STAY AWAY” with the same dimensions. These zones will be enforced from 8:30 p.m. to 10:30 p.m. each day a barge with a “FIREWORKS—STAY AWAY” sign on the port and starboard side is on-scene or a “FIREWORKS—STAY AWAY” sign is posted in a location listed in TABLE 1 to § 165.T01–0111.
(i)
(1) Each fireworks display will be enforced from 8:30 p.m. until 10 p.m. on the respective dates listed in Table 1 of § 165.T01–0111.
(2) Each swim event will be enforced during the date and time listed in Table 2 of § 165.T01–0111.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on Lake Erie, Lake View, NY. This safety zone is intended to restrict vessels from a portion of Lake Erie during the Barbara Harder Wedding Fireworks. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with a fireworks display.
This rule will be effective from 9 p.m. until 11 p.m. on July 7, 2012.
Documents mentioned in this preamble are part of docket [USCG–2012–0568]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary rule, call or email LT Christopher Mercurio, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716–843–9343, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a maritime fireworks display, which are discussed further below.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Between 9:30 p.m. and 10:30 p.m. on July 7, 2012, a fireworks display will be held on Lake Erie near Lake View, NY. The Captain of the Port Buffalo has determined that fireworks launched proximate to a gathering of watercraft pose a significant risk to public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris.
With the aforementioned hazards in mind, the Captain of the Port Buffalo has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the Barbara Harder Wedding Fireworks. This zone will be effective and enforced from 9 p.m. until 11 p.m. on July 7, 2012. This zone will encompass all waters of Lake Erie, Lake View, NY within a 560 foot radius of position 42°43′17.8″ N and 78°57′54.2″ W (NAD 83).
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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 will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Lake Erie on the evening of July 7, 2012.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone would be activated, and thus subject to enforcement, for only two hours late in the day. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, we would issue local Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
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 will not call for a 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 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. We have analyzed this rule under that Order and determined that this rule 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 (adjusted for inflation) 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 cause 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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Public Law 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo, or his on-scene representative.
Environmental Protection Agency (EPA).
Final rule.
This final rule will reduce burden to restricted use pesticide applicators and simplify federal certification expiration dates. Restricted use pesticides (RUPs) are those which may generally cause unreasonable adverse effects on the environment without additional restrictions. RUPs may only be applied by or under the direct supervision of an applicator certified as competent by a certifying agency. A State, tribe, or Federal agency becomes a certifying agency by receiving approval from EPA on their certification plan. In areas not covered by a certifying agency, EPA may establish a Federal certification plan and issue Federal certificates directly. One way EPA may issue a Federal certificate is based on an existing valid certificate from a certifying agency, and this final rule will synchronize the expiration dates on the Federal certificate with that of the certifying agency certificate on which the Federal certificate is based.
This final rule is effective September 4, 2012.
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2011–0049, is available either electronically through
Joe Hogue, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–9072; fax number: (703) 308–7070; email address:
You may be potentially affected by this action if you are or intend to become a certified applicator under an EPA Federal certification plan. Certified applicators are included in three major industries in the North American Industrial Classification System (NAICS) codes described as crop production, animal production or exterminating, and pest control services. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111), e.g., individuals that are private certified applicators on farms.
• Animal production (NAICS code 112), e.g., individuals that are private certified applicators on farms.
• Exterminating and pest control services (NAICS code 561710), e.g., individuals that are commercial certified applicators for hire.
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected.
This final rule is issued pursuant to the authority in sections 11 and 25 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136i and w). Section 11 of FIFRA (7 U.S.C. 136i), requires EPA to provide certification plans for applicators of RUPs. Section 25 of FIFRA (7 U.S.C. 136w), authorizes EPA to issue regulations to carry out provisions of FIFRA.
Under the provisions of FIFRA section 3(d)(1)(C), EPA shall classify a pesticide for restricted use, if, absent additional regulatory restrictions, the Agency determines that it may generally cause unreasonable adverse effects on the environment. RUPs may be applied only by a certified applicator or under the direct supervision of a certified applicator.
Pesticide applicators can be certified either by a certifying agency (a State, tribe, or non-EPA Federal agency that has an EPA-approved certification plan), or directly by EPA through a Federal certification plan for an area or situation not covered by a certifying agency's plan. Applicators must demonstrate competency to the certifying agency granting the certificate, according to the requirements of that agency's plan. Currently, all 50 States, some federal agencies, and 4 tribes are certifying agencies (i.e., they implement their EPA-approved certification plans). Applicators certified by a State may apply RUPs in that State, and applicators certified by a tribe may apply RUPs in that tribe's Indian country, without a Federal certificate. However, under 40 CFR 171.11, in areas where there is no EPA-approved certification plan in effect (currently, most of Indian country), EPA may implement a Federal plan, thereby allowing applicators to use RUPs in the area covered by the plan after receiving Federal certification. Under 40 CFR 171.11(e), a Federal plan may include an option that allows applicators to be issued an EPA Federal certificate after submitting to EPA a certification form along with documentation of a valid certificate from a certifying agency, without further demonstration of competency.
Applicator certificates have expiration dates to help ensure that certified applicators maintain their competency.
Section 171.11(e) states that an EPA Federal certificate based on a certifying agency's certificate is valid for 2 years for commercial applicators and 3 years for private applicators, or until the expiration date of the original certifying agency certificate, whichever occurs first. The duration of the certification period varies significantly among States, with some currently being shorter and some longer than the Federal certificate maximum of 2 or 3 years.
On June 24, 2011 (76 FR 37045) (FRL–8863–7), EPA published a proposed rule to eliminate the 2 or 3 year maximum for Federal certificates and allow Federal certification to expire at the same time as the underlying certifying agency certificate. The public comment period for the proposed rule closed on August 23, 2011. EPA received one comment, which was from a tribal government agency and supported the proposal. The commenter said that the rule will “eliminate confusion about the different expiration dates and there will be less paperwork.”
This action will finalize what was proposed in June 2011. EPA is amending 40 CFR 171.11(e) to synchronize the expiration dates for the EPA Federal certificate with the certifying agency certifications of RUP applicators. This minor revision does not pose any additional requirement or burden and is expected to have a beneficial impact on affected entities, without impacting human health or the environment. EPA will benefit through the reduction of administration of Federal certification plans. Additionally, this rule supersedes the expiration dates described in the Navajo Certification Plan. Further explanation of benefits and the underlying reasons for this revision are explained in the proposed rule associated with this action (June 24, 2011; 76 FR 37045).
In accordance with FIFRA section 25(a) and (d), EPA submitted a draft of this final rule to the Committee on Agriculture in the House of Representatives, the Committee on Agriculture, Nutrition, and Forestry in the United States Senate, the United States Department of Agriculture (USDA), and the FIFRA Scientific Advisory Panel (SAP). The SAP and USDA waived review of this final rule.
This action will allow EPA to use the same expiration date for the certification it grants, using the expiration date of the valid certifying agency certification upon which the EPA certification is based. It does not otherwise amend or impose any other requirements. The final rule will not otherwise involve any significant policy or legal issues, and will not increase existing costs. In fact, synchronizing the expiration dates can reduce burden because some applicators will have to complete less paperwork by having a reduced frequency of Federal recertification. As such, EPA is not required to make special considerations or evaluations under the following statutory and Executive Order review requirements.
This is not a “significant regulatory action” under Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This action does not impose or change any information collection burden that requires additional review by the Office of Management and Budget (OMB) under the provisions of the PRA (44 U.S.C. 3501
The information collection activities contained in the regulations are already approved under OMB control number 2070–0029 (EPA ICR No. 0155.09), and the changes to the expiration date do not change the covered activities such that additional OMB review or approval is required.
Pursuant to section 605(b) of the RFA (5 U.S.C. 601
The revision in this final rule will only synchronize the certification expiration dates for restricted use applicators and is not expected to have any adverse economic impacts on affected entities, regardless of their size. It does not otherwise amend or impose any other requirements. As such, this final rule will not have any adverse economic impact on any entities, large or small.
State, local, and tribal governments are not regulated by this final rule, so it is not expected to affect these governments. Accordingly, pursuant to Title II of UMRA (2 U.S.C. 1531–1538), EPA has determined that this action is not subject to the requirements in sections 202 and 205 of UMRA because it does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or for the private sector in any 1 year. In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA.
This action will not have “federalism implications” as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it is not expected to have a substantial direct effect on 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. Thus, Executive Order 13132 does not apply to this action.
This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because it will not have substantial direct effects on 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. This rule only affects some applicators of RUPs that are certified under an EPA federal plan by reducing their paperwork burden, and it is not expected to impact human health or the environment or impose any additional burden or restrictions, or otherwise affect Indian tribes. Thus, Executive Order 13175 does not apply to this action.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks, nor is it an “economically significant regulatory action” as defined by Executive Order 12866.
This action is not a “significant regulatory action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
This action does not involve technical standards that would require the consideration of voluntary consensus standards pursuant to section 12(d) of NTTAA (15 U.S.C. 272 note).
This action does not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. Therefore, this action does not involve special consideration of environmental justice-related issues as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
Pursuant to the Congressional Review Act, 5 U.S.C. 801
Environmental protection, Indian-lands, Intergovernmental relations, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
7 U.S.C. 136i and 136w.
(e)
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact David Stearrett, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2953.
The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood
In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
42 U.S.C. 4001
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; extension.
NMFS extends the recreational fishing season for the red snapper component of the reef fish fishery in the exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf). NMFS previously determined the recreational red snapper quota would be reached by 12:01 a.m., local time, July 11, 2012. However, due to severe weather conditions in the central and northeastern Gulf during the first 26 days in June, fishing opportunities were restricted during the beginning of the recreational fishing season. NMFS has projected the quota will not be reached by the current closure date. Therefore, NMFS is extending the recreational red snapper fishing season for 6 days to allow the remainder of the quota to be harvested. The intent of this action is to provide fishermen the opportunity to harvest the recreational red snapper quota, and the opportunity to achieve the optimum yield for the fishery, thus enhancing social and economic benefits to the fishery.
The extension is effective from 12:01 a.m., local time, July 11, 2012, until 12:01 a.m., local time, July 17, 2012. The season will then be closed until it reopens on June 1, 2013, the beginning of the 2013 recreational fishing season.
Steve Branstetter, 727–824–5305.
The Gulf reef fish fishery is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council (Council) and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
On June 29, 2012, NMFS implemented a recreational quota for Gulf red snapper of 3.959 million lb (1.796 million kg) and a commercial quota of 4.121 million lb (1.869 million kg) through a regulatory amendment (77 FR 31734, May 30, 2012). These quotas are based on the Council's established acceptable biological catch of 8.080 million lb (3.665 million kg) for the 2012 fishing year, and the allocation ratios in the FMP.
The Magnuson-Stevens Act requires NMFS to close the recreational red snapper component of the Gulf reef fish fishery in Federal waters when the quota is met or projected to be met. Based on 2011 recreational landings data, NMFS projected the recreational quota would be met on or by July 10, 2012. Therefore, in the rule that published May 30, 2012 (77 FR 31734), NMFS announced the recreational red snapper fishing season would close at 12:01 a.m., local time, July 11, 2012, which constituted a 40-day fishing season.
Landings and effort data are not available in-season to determine if the quota will be met on July 10, 2012. However, the central and northeastern Gulf experienced severe weather conditions during the first 26 days of the 2012 recreational red snapper fishing season and it is likely that fishing effort and landings are less than projected. In addition to tropical storm Debby in late June, poor weather conditions persisted prior to that time in the central and northeastern Gulf. The majority of recreational harvest in the Gulf comes from the northern and central parts of the Gulf. Weather data from four buys stationed throughout the Gulf were used as proxies for determining days when fishing did not occur or when effort was reduced. Wave heights and wind speeds have been greater in June 2012 than June 2011 for all areas of the Gulf, except Texas. Because of this reduced effort, NMFS has projected the recreational red snapper quota will not be met by the July 11, 2012, closing date. Based on the assumption that weather will improve over the next 2 to 3 weeks and, thus, fishing effort will return to expected rates, NMFS projects the recreational red snapper season can be extended for an additional 6 days, and will close at 12:01 a.m. local time on July 17, 2012. The season will then be closed until 12:01 a.m., local time, June 1, 2013, the beginning of the 2013 recreational fishing season.
During the open period, the bag and possession limit for recreational Gulf red snapper is two fish. However, no red snapper may be retained by the captain and crew of a vessel operating as a charter vessel or headboat. The bag limit for such captain and crew is zero.
During the closed period, the bag and possession limit for recreational Gulf red snapper is zero. A person aboard a vessel for which a Federal charter vessel/headboat permit for Gulf reef fish has been issued, must also abide by these closure provisions in state waters.
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)(3)(B). Allowing prior notice and opportunity for public comment on the season extension is unnecessary because the rule establishing the annual quota has already been subject to notice and comment, and all that remains is to notify the public that additional harvest remains in the established quota and, therefore, the fishery will be extended for a limited time.
This rule relieves a restriction by extending the recreational red snapper fishing season. Because it relieves a restriction, this rule is not subject to the 30-day delayed effectiveness provision of the Administrative Procedures Act pursuant to 5 U.S.C. 553(d)(1).
This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is closing the commercial fishery for non-sandbar large coastal sharks (LCS) in the Gulf of Mexico region. This action is necessary because the commercial landings for the 2012 fishing season are projected to reach at least 80 percent of the available commercial quota by June 30, 2012.
The commercial non-sandbar LCS fishery is closed effective 11:30 p.m. local time July 6, 2012, until December 31, 2012, or if NMFS announces, via a notice in the
Karyl Brewster-Geisz or Peter Cooper 301–427–8503; fax 301–713–1917.
The Atlantic shark fisheries are managed under the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP), its amendments, and its implementing regulations (50 CFR part 635) issued under authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
Under § 635.5(b)(1), shark dealers are required to report to NMFS all sharks landed every two weeks. Dealer reports for fish received between the 1st and 15th of any month must be received by NMFS by the 25th of that month. Dealer reports for fish received between the 16th and the end of any month must be received by NMFS by the 10th of the following month. Under § 635.28(b)(2), when NMFS projects that fishing season landings for a specific shark quota have reached or are projected to reach 80 percent of the available quota, NMFS will file for publication with the Office of the Federal Register a notification of closure for that shark species group, which will be effective no fewer than 5 days after the date of filing. From the effective date and time of the closure until NMFS announces, via a notice in the
On January 24, 2012 (77 FR 3393), NMFS announced that the non-sandbar LCS fishery for the Gulf of Mexico region for the 2012 fishing year would open on February 15 with a quota of 392.8 metric tons (mt) dressed weight (dw) (866,063 lb dw). Dealer reports through June 15 2012, indicate that 295.9 mt dw or 75.3 percent of the available quota for non-sandbar LCS has been taken. Dealer reports received to date indicate that 20 percent of the quota was landed from the opening of the fishery on February 15, 2012, through March 6, 2012; 16 percent of the quota was landed from March 7, 2012, through March 28, 2012; 21 percent was landed from March 29, 2012, through April 17, 2012; 11 percent of the quota was landed from April 18, 2012, through May 17, 2012; and 7.3 percent was landed from May 18, 2012, through June 15, 2012. Based on the rate of fishing effort indicated by these preliminary dealer reports, NMFS estimates that an additional 9 to 14 percent of the quota could be taken from June 15 through June 30, 2012, thus reaching or exceeding the 80-percent limit specified for a closure notice in the regulations. Accordingly, NMFS is closing the commercial non-sandbar LCS fishery in the Gulf of Mexico region as of 11:30 p.m. local time July 6, 2012. All other shark fisheries remain open, except the commercial porbeagle fishery, which closed on May 30, 2012 (77 FR 32036).
At § 635.27(b)(1)(ii), the boundary between the Gulf of Mexico region and the Atlantic region is defined as a line beginning on the East Coast of Florida at the mainland at 25°20.4′ N. lat, proceeding due east. Any water and land to the south and west of that boundary is considered, for the purposes of quota monitoring and setting of quotas, to be within the Gulf of Mexico region.
During the closure, retention of non-sandbar LCS sharks in the Gulf of Mexico region is prohibited for persons fishing aboard vessels issued a commercial shark limited access permit under 50 CFR 635.4—unless, that is, the vessel is properly permitted to operate as a charter vessel or headboat for HMS and is engaged in a for-hire trip, in which case the recreational retention limits for sharks and “no sale” provisions apply (50 CFR 635.22(a) and (c)), or if the vessel possesses a valid shark research permit under § 635.32 and a NMFS-approved observer is onboard. A shark dealer issued a permit pursuant to § 635.4 may not purchase or receive non-sandbar LCS in the Gulf of Mexico region from a vessel issued an Atlantic Shark Limited Access Permit (LAP), except that a permitted shark dealer or processor may possess non-sandbar LCS that were harvested, off-loaded, and sold, traded, or bartered, prior to the effective date of the closure and were held in storage consistent with § 635.28(b)(4). However, a permitted shark dealer or processor may possess non-sandbar LCS that were harvested by a vessel issued a valid shark research fishery permit per § 635.32 with a NMFS-approved observer onboard during the trip the sharks were taken on as long as the non-sandbar shark research fishery remains open. Under this closure, a shark dealer issued a permit pursuant to § 635.4 may, in accordance with state regulations, purchase or receive a non-sandbar LCS in the Gulf of Mexico region if the sharks were harvested, off-loaded, and sold, traded, or bartered from a vessel that fishes only in state waters and that has not been issued an Atlantic Shark LAP, HMS Angling permit, or HMS Charter/Headboat permit pursuant to § 635.4.
Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA (AA), finds that providing prior notice and public comment for this action is impracticable and contrary to the public interest because the fishery is currently underway and any delay in this action would result in overharvest of the quota and be inconsistent with management requirements and objectives. Similarly, affording prior notice and opportunity for public comment on this action is contrary to the public interest because if the quota is exceeded, the stock may be negatively affected and fishermen ultimately could experience reductions in the available quota and a lack of fishing opportunities in future seasons. For these reasons, the AA also finds good cause to waive the 30-day delay in effective date pursuant to 5 U.S.C. 553(d)(3). This action is required under § 635.28(b)(2) and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting retention of “other rockfish” in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary because the 2012 total allowable catch (TAC) of “other rockfish” in the Western Regulatory Area of the GOA has been reached.
Effective 1200 hrs, Alaska local time (A.l.t.), July 2, 2012, through 2400 hrs, A.l.t., December 31, 2012.
Steve Whitney, 907–586–7269.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (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 2012 TAC of “other rockfish” in the Western Regulatory Area of the GOA is 44 metric tons (mt) as established by the final 2012 and 2013 harvest specifications for groundfish of the GOA (77 FR 15194, March 14, 2012).
In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2012 TAC of “other rockfish” in the Western Regulatory Area of the GOA will be achieved. Therefore, NMFS is requiring that “other rockfish” caught in the Western Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b).
“Other rockfish” in the Western Regulatory Area of the GOA means slope and demersal shelf rockfish.
This action responds to the best available information recently obtained from the fishery. The Acting 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 prohibiting the retention of “other rockfish” in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 28, 2012.
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 § 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific ocean perch in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2012 total allowable catch (TAC) of Pacific ocean perch in the Western Regulatory Area of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), July 2, 2012, through 2400 hrs, A.l.t., December 31, 2012.
Steve Whitney, 907–586–7269.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (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 2012 TAC of Pacific ocean perch in the Western Regulatory Area of the GOA is 2,102 metric tons (mt) as established by the final 2012 and 2013 harvest specifications for groundfish of the GOA (77 FR 15194, March 14, 2012).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2012 TAC of Pacific ocean perch in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,802 mt, and is setting aside the remaining 300 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the Western Regulatory Area of the GOA.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) will apply at all times during a trip.
This action responds to the best available information recently obtained from the fishery. The acting 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 because it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific ocean
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 is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E airspace at Circle Town County Airport, Circle Town, MT, to accommodate aircraft using new Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures at the airport. The FAA is proposing this action to enhance the safety and management of Instrument Flight Rules (IFR) operations at Circle Town County Airport.
Comments must be received on or before August 20, 2012.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366–9826. You must identify FAA Docket No. FAA–2012–0539; Airspace Docket No. 12–ANM–10, at the beginning of your comments. You may also submit comments through the Internet at
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203–4537.
Interested parties are invited to participate in this proposed rulemaking 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 (FAA Docket No. FAA 2012–0539 and Airspace Docket No. 12–ANM–10) and be submitted in triplicate to the Docket Management System (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA–2012–0539 and Airspace Docket No. 12–ANM–10”. The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. 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 through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267–9677, for a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace at Circle Town County Airport, Circle Town, MT. Controlled airspace is necessary to accommodate aircraft using new RNAV (GPS) standard instrument approach procedures at Circle Town County Airport. This action would enhance the safety and management of IFR operations at the airport.
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.
The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (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 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 U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for 14 CFR part 71 continues 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 the Federal Aviation Administration Order 7400.9V, Airspace Designations and Reporting Points, dated August 9, 2011, and effective September 15, 2011 is amended as follows:
That airspace extending upward from 700 feet above the surface within 12.1-mile radius of the Circle Town County Airport; that airspace extending upward from 1,200 feet above the surface bounded by a line beginning at lat. 47°59′00″ N., long. 106°16′00″ W.; to lat. 47°49′00″ N., long. 105°59′00″ W.; to lat. 47°49′00″ N., long. 105°24′00″ W.; to lat. 47°40′00″ N., long. 105°26′00″ W.; to lat. 47°25′00″ N., long. 105°00′00″ W.; to lat. 47°05′00″ N., long. 105°25′00″ W., to lat. 47°22′00″ N., long. 106°06′00″ W.; to lat. 47°27′00″ N., long. 106°17′00″ W.; to lat. 47°50′00″ N., long. 106°26′00″ W.; thence to the point of origin.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E Airspace at La Belle, FL, to accommodate the Area Navigation (RNAV) Global Positioning System (GPS) Standard Instrument Approach Procedures at La Belle Municipal Airport. This action would enhance the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport.
Comments must be received on or before August 20, 2012. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA, Order 7400.9 and publication of conforming amendments.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590–0001; Telephone: 1–800–647–5527; Fax: 202–493–2251. You must identify the Docket Number FAA–2012–0586; Airspace Docket No. 12–ASO–29, at the beginning of your comments. You may also submit and review received comments through the Internet at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305–6364.
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 (FAA Docket No. FAA–2012–0586; Airspace Docket No. 12–ASO–29) and be submitted in triplicate to the Docket Management System (see
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2012–0249; Airspace Docket No. 12–ASO–16.” 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
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267–9677, to request a copy of Advisory circular No. 11–2A, Notice of
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at La Belle, FL, providing the controlled airspace required to support the RNAV GPS standard instrument approach procedures for La Belle Municipal Airport. Controlled airspace extending upward from 700 feet above the surface would be established for the safety and management of IFR operations at the airport.
Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will 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 proposed 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 proposed regulation is within the scope of that authority as it would establish Class E airspace at La Belle Municipal Airport, La Belle, FL.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
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 continues 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 7400.9V, Airspace Designations and Reporting Points, dated August 9, 2011, effective September 15, 2011, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6.7-mile radius of La Belle Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E Airspace at Reidsville, GA. Separation of existing Class E airspace surrounding Swinton Smith Field at Reidsville Municipal Airport, Reidsville, GA, from the Class E airspace of Vidalia Regional Airport, Vidalia, GA, has made this action necessary to enhance the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport. This action also would change the names of both airports and update the airport's geographic coordinates.
Comments must be received on or before August 20, 2012. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA, Order 7400.9 and publication of conforming amendments.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12–140, 1200 New Jersey SE., Washington, DC 20590–0001; Telephone: 1–800–647–5527; Fax: 202–493–2251. You must identify the Docket Number FAA–2012–0385; Airspace Docket No. 12–ASO–23, at the beginning of your comments. You may also submit and review received comments through the Internet at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305–6364.
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 (FAA Docket No. FAA–2012–0385; Airspace Docket No. 12–ASO–23) and be submitted in triplicate to the Docket Management System (see
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2012–0385; Airspace Docket No. 12–ASO–23.” 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
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267–9677, to request a copy of Advisory circular No. 11–2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface at Swinton Smith Field at Reidsville Municipal Airport (formerly Reidsville Airport), Reidsville, GA, to accommodate the separation of existing Class E airspace surrounding Vidalia Regional Airport (formerly Vidalia Municipal Airport), Vidalia, GA. Geographic coordinates for both airports also would be adjusted to be in concert with the FAA's aeronautical database.
Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will 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 proposed 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 proposed regulation is within the scope of that authority as it would amend Class E airspace at Vidalia, GA and establish Class E airspace at Reidsville, GA.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
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 continues 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 7400.9V, Airspace Designations and Reporting Points, dated August 9, 2011, effective September 15, 2011, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 7-mile radius of Vidalia Regional Airport.
That airspace extending upward from 700 feet above the surface within a 7-mile radius of the Swinton Smith Field at Reidsville Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Proposed interpretation; correction.
On June 1, 2012 at 77 FR 32441, the FAA published a proposed legal interpretation in which the agency considered clarifying prior legal interpretations regarding pilot in command discretion under 14 CFR
Sara Mikolop, Attorney, Regulations Division, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202–267–3073.
In the
Also, on page 32441, in the third column, correct the
You may send comments identified by Docket Number FAA–2012–0670 using any of the following methods:
Internal Revenue Service (IRS), Treasury.
Correction to a notice of proposed rulemaking and notice of public hearing.
This document corrects a notice of proposed rulemaking and notice of public hearing (REG–134042–07) that was published in the
Concerning the proposed regulations, Caroline E. Hay at (202) 622–3070; concerning the submissions of comments, the hearing and/or to be placed on the building access list to attend the hearing, Mrs Oluwafunmilayo (Funmi) Taylor, at (202) 622–7180 (not toll-free numbers).
The notice of proposed rulemaking and notice of public hearing (REG–134042–07) that is the subject of this correction is under section 1366 of the Internal Revenue Code.
As published, REG–134042–07, contains errors that may prove to be misleading and are in need of clarification.
Accordingly, the publication of the correction to a notice of proposed rulemaking and notice of public hearing (REG–134042–07), which was the subject of FR. Doc. 2012–14188, is corrected as follows:
1. On page 34884, column 2, in the preamble, under the caption
2. On page 34886, column 1, in the preamble, under the paragraph heading “Comments and Requests for a Public Hearing”, second paragraph, line two, the language “for October 8, 2012, beginning at 10 a.m.” is corrected to read “for October 9, 2012, beginning at 10 a.m.”.
Office of the Secretary, Department of Defense (DoD).
Proposed rule; withdrawal.
The Department of Defense published a proposed rule for the CHAMPUS/TRICARE: TRICARE Retail Pharmacy Program on Tuesday, June 26, 2012 (77 FR 38019). This rule is being published to withdrawal the proposed rule. The Department has decided to defer consideration of possible regulatory changes to the TRICARE Pharmacy Benefits Program for the present time.
The proposed rule published on Tuesday, June 26, 2012 is withdrawn as of Tuesday, June 26, 2012.
Rear Admiral Thomas McGinnis, Chief, Pharmacy Operations Directorate, TRICARE Management Activity, telephone 703–681–2890.
Architectural and Transportation Barriers Compliance Board.
Notice of establishment; appointment of members.
The Architectural and Transportation Barriers Compliance Board (Access Board) has decided to establish an advisory committee to assist on matters associated with comments received and responses to questions included in a previously published Notice of Proposed Rulemaking on Medical Diagnostic Equipment Accessibility Standards.
The first meeting of the committee will be held at a date and time in September 2012. A notice of the actual date and times will be published in the
The first meeting of the committee will be held at the Access Board's offices, 1331 F Street NW., Suite 800, Washington, DC 20004.
Rex Pace, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street NW., Suite 1000, Washington, DC 20004–1111. Telephone number (202) 272–0023 (Voice); (202) 272–0052 (TTY). Electronic mail address:
In March 2012, the Access Board published a notice of intent to establish an advisory committee to make recommendations to the Board on matters associated with comments received and responses to questions included in a previously published Notice of Proposed Rulemaking (NPRM) on Medical Diagnostic Equipment Accessibility Standards. See 77 FR 14706 (March 13, 2012).
Section 510 of the Rehabilitation Act (29 U.S.C. 794f) requires the Access Board to issue accessibility standards for medical diagnostic equipment, in consultation with the Food and Drug Administration. In February 2012, the Access Board published an NPRM proposing the accessibility standards. See 77 FR 6916 (February 9, 2012). The proposed standards contain minimum technical criteria to ensure that medical diagnostic equipment, including examination tables, examination chairs, weight scales, mammography equipment, and other imaging equipment used by health care providers for diagnostic purposes are accessible to and usable by individuals with disabilities. The proposed standards are intended to ensure, to the maximum extent possible, independent entry to, use of, and exit from such equipment by individuals with disabilities. The proposed standards do not impose any mandatory requirements on health care providers or medical device manufacturers. However, other agencies may issue regulations or adopt policies that require health care providers subject to the agency's jurisdiction to acquire accessible medical diagnostic equipment that conforms to the standards. The NPRM and information related to the proposed standards are available on the Access Board's Web site at:
For the reasons stated in the notice of intent, the Access Board has determined that establishing a Medical Diagnostic Equipment Accessibility Standards Advisory Committee (Committee) is necessary and in the public interest. The Access Board has appointed the following organizations as members to the Committee:
The Department of Justice, Department of Health and Human Services (Food and Drug Administration), and the Department of Veterans Affairs will serve as ex officio members.
The Access Board regrets its inability to accommodate all requests for membership on the Committee. It was necessary to limit membership to maintain balance among members representing different interests such as medical device manufacturers, health care providers, and disability organizations. The Committee membership identified above provides representation for interests affected by the issues to be discussed.
The comment period on the NPRM ended on June 8, 2012. Fifty-three comments were received by the end of the comment period. Access Board staff is conducting a preliminary analysis of the public comments to assist the Committee in its deliberations.
The Committee's first meeting will be held at a date and time in September 2012. A notice of the actual date and times will be published in the
Committee meetings will be open to the public, and interested persons can attend the meetings and communicate their views. Members of the public will have opportunities to address the Committee on issues of interest to them and the Committee. Members of groups or individuals who are not members of the Committee may also have the opportunity to participate if subcommittees of the Committee are formed.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to determine that the Tacoma, Pierce County nonattainment area (hereafter referred to as “Tacoma, Pierce County” or “the area”) for the 2006 24-hour fine particulate matter (PM
Written comments must be received on or before August 6, 2012.
Submit your comments, identified by Docket ID No. EPA–R10–OAR–2012–0380, by any of the following methods:
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Jeff Hunt at telephone number: (206) 553–0256, email address:
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
The following outline is provided to aid in locating information in this preamble.
EPA is proposing to determine that the area has clean data for the 2006 24-hour PM
If this determination is made final, under the provisions of EPA's PM
If EPA subsequently determines that the area is in violation of the 2006 24-hour PM
The proposed clean data determination that the air quality data shows attainment of the 2006 24-hour PM
The 2006 PM
EPA has reviewed the ambient air monitoring data for PM
EPA is proposing to determine that the Tacoma, Pierce County area has clean data for the 2006 24-hour PM
This action proposes to make an attainment determination based on air quality data and would not, if finalized, impose any additional requirements. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rulemaking that the Tacoma, Pierce County PM
Environmental protection, Air pollution control, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to make three determinations under the Clean Air Act (CAA) regarding the fine particle (PM
Comments must be received on or before August 6, 2012.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2012–0467, by one of the following methods:
1.
2.
3.
4.
5.
Carolyn Persoon, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353–8290,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
This supplementary information section is arranged as follows:
In accordance with 40 CFR 51.1004(c), EPA is proposing to determine that Detroit-Ann Arbor Michigan has attained both the 1997 annual and the 2006 24-hour PM
Pursuant to section 179(c) of the CAA, EPA is also proposing to determine that, based on air quality monitoring data for 2007–2010, the Detroit-Ann Arbor area attained the 1997 annual PM
On July 18, 1997 (62 FR 36852), EPA established an annual PM
On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual PM
In response to legal challenges to the annual standards promulgated in 2006, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) remanded these standards to EPA for further consideration. See
On April 25, 2007 (72 FR 20664), EPA promulgated its PM
Today's proposed determinations assess whether the Detroit-Ann Arbor area has attained the 1997 annual and the 2006 24-hour PM
Under EPA's regulations at 40 CFR 50.7, the annual primary and secondary PM
EPA has reviewed the ambient air quality monitoring data in the Detroit-Ann Arbor area, consistent with the requirements contained at 40 CFR part 50. EPA's review focused on data recorded in the EPA Air Quality System (AQS) database, for the Detroit-Ann Arbor area for PM
The Detroit-Ann Arbor area has fourteen monitors located in Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne Counties that reported design values from 2009–2011, the most recent three years of data, for PM
All monitors in the Detroit-Ann Arbor area recorded complete data in accordance with criteria set forth by EPA in 40 CFR part 50, appendix N, where a complete year of air quality data comprises four calendar quarters, with each quarter containing data from at least 75 percent capture of the scheduled sampling days. Available data are considered to be sufficient for comparison to the NAAQS if three consecutive complete years of data exist.
EPA's review of monitoring data from the 2007–2009, 2008–2010, and 2009–2011 monitoring periods supports EPA's determinations that the Detroit-Ann Arbor PM
If EPA's proposed determinations of attainment for the 1997 annual and 2006 24-hour PM
These proposed determinations of attainment for the Detroit-Ann Arbor PM
If these rulemakings are finalized and EPA subsequently determines, after notice-and-comment rulemaking in the
The actions proposed above are limited to determinations that the air quality data show that the Detroit-Ann Arbor PM
These proposed actions, if finalized, would not constitute a redesignation to attainment under section 107(d)(3) of the CAA because EPA is not proposing to take action pursuant to CAA section 107(d)(3) and the statutory prerequisites set forth in CAA section 107(d)(3) have not yet been met. For example, EPA has not yet approved a maintenance plan for the area as required under CAA section 175A, nor proposed a determination that the Detroit-Ann Arbor PM
The designation status of the Detroit-Ann Arbor PM
Pursuant to section 179(c) of the CAA, EPA is also proposing to determine that the Detroit-Ann Arbor area attained the 1997 annual PM
EPA is soliciting comment on the issues discussed in this document. EPA will consider these comments before taking final action. Please note that if EPA receives adverse comment on any of the proposed determinations described above and if that determination may be severed from the remainder of the final agency actions, EPA may adopt as final those provisions of the proposed agency action that are not the subject of an adverse comment.
This action proposes to make attainment determinations based on air quality data and would, if finalized, result in the suspension of certain Federal requirements and/or would not impose any additional requirements. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, these proposed PM
Environmental protection, Air pollution control, Particulate matter, Reporting and record-keeping requirements.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Advance notice of proposed rulemaking (ANPRM).
PHMSA is publishing this ANPRM to identify ways to reduce the regulatory burden for persons who ship consumer products containing hazardous materials in the “reverse logistics” supply chain. Reverse logistics is the process that is initiated when a consumer product goes backwards in the distribution chain. It may be initiated by the consumer, the retailer, or anyone else in the chain. Therefore, the process may involve consumers, retailers, manufacturers, and even disposal facilities. Following this ANPRM, PHMSA anticipates publishing an NPRM that will propose to simplify the regulations for reverse logistics shipments and provide avenue means for regulatory compliance that maintains transportation safety. This action is part of DOT's retrospective plan under EO 13563 completed in August 2011 DOT's plan is available at:
Comments must be received by October 3, 2012.
You may submit comments identified by the docket number PHMSA–2011–0143 (HM–253) by any of the following methods:
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Steven Andrews, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590–0001, telephone (202) 366–8553.
In general, “reverse logistics” pertains to the safe return of goods from the marketplace to the original vendor, manufacturer, or supplier. Reverse logistics of hazardous materials affects many industries including high-tech, retail, medical, pharmaceutical, automotive, and aerospace. In effect, reverse logistics is the supply chain in reverse. PHMSA is publishing this ANPRM to identify possible ways to reduce the regulatory burden on retail outlets that ship consumer products containing hazardous materials in the “reverse logistics” supply chain. PHMSA is looking to evaluate the shipment of “reverse logistics” by
PHMSA received a petition from the Council on the Safe Transportation of Hazardous Articles Inc. (COSTHA) outlining issues related to hazardous materials and “reverse logistics.” In its petition for rulemaking (P–1528), COSTHA proposed that the HMR include a definition for “reverse logistics” in § 171.8 and add a new section, § 173.157 to outline the general requirements and exceptions for hazardous materials shipped in the context of “reverse logistics.” In its petition COSTHA identified an unquantifiable exposure to risk presented through undeclared hazmat from retail outlets. This includes retail operations that unknowingly return articles containing hazardous materials to the product manufacturing that are potentially compromised. The purpose of this ANPRM is to gather data on how these hazardous materials are shipped with respect to “reverse logistics.”
COSTHA noted that hazardous materials commonly shipped from distribution centers to various retail outlets are often shipped under the ORM–D exception. PHMSA notes that the ORM–D exception allows for a hazardous material, which is a limited quantity and which meets the consumer commodity definition, to be reclassified as an ORM–D and assigned a consumer commodity shipping name. However, in a final rule issued under docket HM–215K (76 FR 3308, January 19, 2011), PHMSA began phasing out the ORM–D hazard class. Based on the final rule, the phase-out of the ORM–D system will be completed on December 31, 2014. Those materials previously shipped under the ORM–D hazard class may be able to be shipped as consumer commodities under the appropriate limited quantities exception in part 173.
COSTHA has indicated that a significant volume of these hazardous materials are returned to the retail outlet by the customer. PHMSA believes based on its enforcement experience that significant quantities of these returned hazardous materials may be in damaged packaging or even leaking prior to their shipment back to the return center. If this is the case, the materials must be repackaged and shipped as fully regulated hazardous materials under the HMR. The HMR generally defines a “hazmat employee” as a person employed on a full-time, part time, or temporary basis by a hazmat employer and who in the course of such full time, part time or temporary employment directly affects hazardous materials transportation safety. However, PHMSA recognizes that most retail employees or other related employees are not readily identifiable as “hazmat employees” as defined by § 171.8 of the HMR. Consequently this results in employees that often lack sufficient training and qualifications to classify, package, mark, label, and ship hazardous materials. This may result in unsafe shipping practices (e.g., hazardous materials shipped in containers that are not designed for the safe transportation of hazardous materials.) These occurrences are often exacerbated by hazardous materials being improperly segregated in packages. COSTHA also noted that equipment powered by internal combustion engines may be returned to retail outlets after being used and may contain residual fuel, posing a hazardous materials risk.
PHMSA received a petition (P–1561) from the Battery Council International (Battery Council). In its petition, the Battery Council requests that PHMSA allow the shipment of used batteries from multiple shippers on a single transport vehicle under the exception provided in § 173.159(e). The Battery Council notes in their petition that currently the exception in § 173.159(e) does not clearly allow for shipment of used batteries from multiple shippers for the purposes of recycling. The petition also notes that, when this regulation was written in 1969, it was not common practice for battery to be recycled using multiple shippers. PHMSA believes that the collection of these used batteries for return, disposal, or recycling falls within the realm of “reverse logistics.” Currently § 173.159(e)(4) prevents a battery recycler from picking up shipments of used batteries from multiple locations. In looking at incident history, PHMSA has not identified any significant incidents involving the shipment of wet lead acid batteries. PHMSA believes that modifying this section to allow battery recyclers to pick up wet lead acid batteries from multiple locations will likely reduce the number of battery shipments on the highway and thus reduce the likelihood of an accident involving hazmat.
Under the current HMR, consumer products that are no longer suitable for retail sale are considered fully regulated. This presents a problem to retail outlets in that many may not have the necessary training or resources to handle fully regulated hazardous materials. PHMSA is looking to identify ways to potentially reduce the regulatory burden associated with the return of these hazardous materials in the “reverse logistics” supply chain, while at the same time ensuring their safe transportation.
According to the Reverse Logistics Association (RLA), the process of reverse logistics represents 3–15% of the Gross Domestic Product, which is estimated between $360 billion and $1.8 trillion. Retail outlets often accept returns of hazardous materials from customers that are ultimately shipped back to distribution centers. Retail sales of goods are a primary driver of goods returned. According to the 2007 Economic Census, wholesale trade in the U.S. reached $6.5 trillion (a 40% increase from the 2002 census) among 435 thousand establishments and 6.2 million employees, while retail sales reached $3.9 trillion (a 28% increase among 1.1 million establishments and 15.5 million employees).
In addition, we anticipate that online transactions will cause the quantity of reverse logistics shipments to increase. Data indicate that online purchases of hazardous materials have increased. The National Retail Federation reported that in 2010, over 48% of all retail goods (by value) were purchased from on-line providers with an average return rate of 8%. Third-party logistics providers estimate that up to 7% of an enterprise's gross sales are return costs. The third-party logistics providers themselves earn 12% to 15% in profits on this business. PHMSA is concerned that customers may often return opened or damaged packages containing hazardous materials without any regard for the HMR. This ANPRM seeks comment on whether additional language is needed to clarify how returns of hazardous materials purchased online should be handled.
The rapidly expanding market for consumer electronics is another topic of interest with respect to the “reverse logistics” supply chain. As emerging technologies come online, there are an ever increasing number of batteries that come along with consumer devices. As the batteries in these devices become unusable, PHSMA expects to see large quantities of batteries being returned to retail outlets. PHMSA seeks comment on this assumption. This ANPRM is seeking comment on how the retail industry should handle the recycling or disposal of these batteries for use in consumer electronics.
In all of these scenarios, PHMSA enforcement efforts have shown that hazardous materials that are returned to the distribution centers or retail outlets are shipped in ways that are inconsistent with the requirements of the HMR. Often, these materials and packages may be damaged or compromised. Very often, the employees at the retail outlets responsible for packing and shipping these materials have little or no hazardous materials training. This may result in inadequate packaging and hazard communication. Below we identify potential problems that may be attributed with the reverse logistics of hazardous materials:
1. Lack of hazardous materials training by the employees at the retail outlet;
2. Different packaging from the original packaging being used to ship the material;
3. Lack of knowledge about the hazard class by the employee;
4. Potential for hazardous materials to be subject to Environmental Protection Agency (EPA) waste manifest rules;
5. Items that were once classified as consumer commodities may no longer meet that exception;
6. Undeclared hazardous materials may be shipped within the stream of commerce;
7. Properly-marked and labeled original packaging is being improperly re-used to ship returned products that are either not hazardous materials or hazardous materials for which said packaging is not authorized; and
8. These shipments may not be accompanied by appropriate hazardous communication, such as shipping papers, emergency response numbers, placards, labels, markings, and other requirements of the HMR.
PHMSA believes that its enforcement data show that “reverse logistics” issues involving hazardous materials will continue to rise with the increased consumption of goods in a growing economy. PHMSA believes it could be beneficial to identify those areas where PHMSA and the regulated community can work together to facilitate the movement of hazardous materials in the “reverse logistics” supply chain. This could include identifying whether or not there are actually safety concerns involving “reverse logistics” for the transport of hazardous materials as well as identifying potential solutions moving forward.
PHMSA invites comments on the data and information contained in this section. How can we work together to better facilitate the movement of hazardous materials in the “reverse logistics” supply chain? What data is available regarding the current and anticipated future number of reverse logistic shipments for hazardous materials?
As previously noted, the purpose of this ANPRM is to invite comments on “reverse logistics.” PHSMA is considering a definition for “reverse logistics” and a possible new section in the HMR that will clearly identify the regulatory responsibilities of the shipper. To assist PHMSA in getting valuable data and information from commenters, we have compiled questions pertaining to the “reverse logistics” process and welcome input from all interested parties. Below we outline the key issues identified above:
PHMSA is considering a regulatory definition for “reverse logistics.” The definition would likely be added to 49 CFR 171.8. It would clearly define the term “reverse logistics.” Generally, “reverse logistics” is thought of as the flow of surplus or unwanted material, goods, or equipment back to the firm, through its logistics chain, for reuse, recycling, or disposal. By defining “reverse logistics” in the HMR, PHMSA will identify how it can assist the regulated community in ensuring the safe and swift movement of these materials in the “reverse logistics” supply chain.
PHMSA is considering adding a section outlining the shippers' responsibilities with respect to “reverse logistics.” PHMSA believes a section outlining the regulations for materials meeting the definition of “reverse logistics” should address:
1. Classification of materials under the definition of “reverse logistics”;
2. Training requirements for employees who handle materials under “reverse logistics;” and
3. Packaging approved for the shipment of hazardous materials under “reverse logistics.”
PHMSA believes that, by outlining the responsibilities of shippers with respect to reverse logistics, it will contribute to the safe and efficient movement of these materials in commerce. Do commenters agree that outlining the responsibilities of the shippers with respect to reverse logistics will promote safe and efficient movement of these materials? Would regulated entities incur documentation costs to develop and maintain risk assessments and operational procedures? If so, what is a fair estimate of the potential costs?
PHMSA is considering regulatory relief for “reverse logistics.” We have developed the following questions to solicit comments on the key issues, please provide sources for your data when available:
1. What are the types of hazardous materials and quantities that are frequently returned?
2. What is the volume of returns? Is there a “rule-of-thumb” metric—e.g., 10% of retail sales are returned?
• What is the current volume returned by private citizens?
• What is the current volume returned by other businesses?
• What are the most widely-used methods of return (U.S. Mail, Walk-ins, Commercial Carriers, etc.)?
3. Are returns directed to a disposal facility of the original manufacturer?
4. Should returns be the responsibility of the manufacturer?
5. To what extent should retail employees who package hazardous materials for shipments back to the distribution centers be subject to the training requirements in 49 CFR part 172, subpart H? Are retail employees currently being trained for the shipment of hazardous materials under 49 CFR part 172, subpart H?
6. Are hazardous materials being properly segregated as required by § 177.843 of the HMR when being shipped from retail outlets to their distribution centers? How are they being segregated?
7. Should certain hazard classes/divisions be excluded when considering regulations for “reverse logistics?” If so, why?
8. Should PHMSA define specification packages for materials shipped under “reverse logistics”? If so, why?
9. Are shipping and distribution companies assuring the safety of their employees and the public when allowing drop-box hazardous material returns? If so, how?
10. What precautions, if any, are these companies taking to avoid the mixing of hazardous materials and contamination of other packages that might contain hazardous materials and/or non-hazardous materials?
11. What role(s) do 3rd party logistics providers
12. Have any specific safety risks been observed in returns of hazardous materials products that need to be addressed through rulemaking? If so, how should they be addressed and why?
13. How does the regulated community currently handle hazardous materials that are imported and must then be shipped back in the “reverse logistics” supply chain?
14. What data is available regarding the current and anticipated future number of reverse logistic shipments for hazardous materials?
15. Should PHMSA define “reverse logistics”? If so, to what extent should PHMSA define types of shipments that would receive a relaxation under the HRM for “reverse logistics” shipments?
If commenters suggest modification to the existing regulatory requirements, PHMSA requests that commenters be as specific as possible. In addition, PHMSA requests commenters to provide information and supporting data related to:
1. The potential costs of modifying the existing regulatory requirements pursuant to the commenter's suggestions.
2. The potential quantifiable safety and societal benefits of modifying the existing regulatory requirements.
3. The potential impacts on small businesses of modifying the existing regulatory requirements.
4. The potential environmental impacts of modifying the existing regulatory requirements
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.”
Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB). The ANPRM is considered a significant regulatory action under the Regulatory Policies and Procedures order issued by the Department of Transportation [44 FR 11034].
Executive PHMSA invites comments on this section. How should we approach the “reverse logistics” issue to ensure that we regulate in the “most cost-effective manner?” Please provide any cost or benefit figures to support that approach along with any sources that were used to obtain the information.
E.O. 13132 requires agencies to assure meaningful and timely input by state and local officials in the development of regulatory policies that may 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. We invite state and local governments with an interest in this rulemaking to comment on any effect that revisions to the HMR relative to reverse logistics may cause.
E.O. 13175 requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that “significantly or uniquely affect” Indian communities and that impose “substantial and direct compliance costs” on such communities. We invite Indian tribal governments to provide comments if they believe there will be an impact.
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
Any future proposed rule would be developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts on small entities of a regulatory action are properly considered.
Section 1320.8(d), Title 5, Code of Federal Regulations requires that PHMSA provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. It is possible that new or revised information collection requirements could occur as a result of any future rulemaking action. We invite comment on the need for any collection of information and paperwork burdens, if any.
The National Environmental Policy Act of 1969, 42 U.S.C. 4321–4375, requires federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. Under regulations promulgated by the Council on Environmental Quality (CEQ), a federal agency may prepare an environmental assessment to determine whether it should prepare an environmental impact statement for a particular action. 40 CFR 1508.9(a). The environmental assessment should (1) briefly discuss the need for the proposed action, alternatives to the proposed action, and the probable environmental impacts of the proposed action and alternatives; and (2) include a listing of the agencies and persons consulted. 40 CFR 1508.9(b). PHMSA welcomes any data or information related to environmental impacts that may result from a reverse logistics rulemaking.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act
Under E.O. 13609, agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.
Similarly, the Trade Agreements Act of 1979 (Pub. L. 96–39), as amended by the Uruguay Round Agreements Act (Pub. L. 103–465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.
PHMSA participates in the establishment of international standards in order to protect the safety of the American public, and we have assessed the effects of the proposed rule to ensure that it does not cause unnecessary obstacles to foreign trade. Accordingly, this rulemaking is consistent with E.O. 13609 and PHMSA's obligations under the Trade Agreement Act, as amended.
49 U.S.C. 5103(b) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. Our goal in this ANPRM is to gather the necessary information to determine a course of action in a potential Notice of Proposed Rulemaking (NPRM) associated with the issue of reverse logistics for the transportation of hazardous materials.
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
Fish and Wildlife Service, Interior.
Notice of 90-day petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the
The finding announced in this document was made on July 5, 2012.
This finding is available on the Internet at
Marelisa Rivera, Deputy Field Supervisor of the Caribbean Ecological Services Field Office (see
Section 4(b)(3)(A) of the Act (16 U.S.C. 1531
Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12-month finding.
On October 6, 2011, we received a petition, dated September 28, 2011, from Mark N. Salvo of Wild Earth Guardians, requesting that
The species occurs on dry to moist coastal woodlands in Puerto Rico at elevations below 100 feet (i.e., Piñeros Island, Vieques and Fajardo), in the U.S. Virgin Islands (USVI; St. Croix and St. Thomas), and in the British Virgin Islands (Virgin Gorda) (Little
Based on the petition and the information available in our files, the largest population of
We accept the characterization of
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act.
In making this 90-day finding, we evaluated whether information regarding the threats to
The petition claims that the recorded populations of
The petition does not provide any information about specific threats (for example, road construction, hotel developments, or housing developments) to the populations of
In summary, the petition claims
The petitioner does not identify this factor as a current threat to the species. Based on the information available in our files, there are no data to suggest that overutilization for commercial, recreational, scientific, or educational purposes has contributed to a decline of the
The petitioner does not identify this factor as a current threat to the species. Based on the information available in our files, there are no data that suggest that disease or predation has contributed to a decline of
The petition notes that the British Virgin Islands has an environmental charter that required development of a Protected Areas System Plan, and promulgated environmental ordinances for the conservation and management of National Parks. The petitioner states that, despite these policies and ordinances, habitat loss and degradation continues in the British Virgin Islands and
As discussed under Factor A, the petition does not provide any substantial information about specific threats resulting in habitat loss and degradation to
The Territory of the USVI currently considers
In Puerto Rico, the species is considered as a critical element by the Puerto Rico Department of Natural and Environmental Resources. Critical elements are described in the Comprehensive Wildlife Conservation Strategy as federally or locally listed species, species important to Puerto Rican heritage, and some endemic species (DNER, 2005, p.54). This classification does not provide regulatory protection to
In summary, the petition does not provide any substantial information documenting the inadequacy of existing regulatory mechanisms nor do we have any such information in our files. Therefore, we find that the information provided in the petition and currently available in our files does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to the inadequacy of existing regulatory mechanisms.
The petition indicates that the small number of remaining
The petition also indicates that the population of
The petition does not provide any information to support a claim that the populations have actually declined, resulting in a negative effect on the genetic diversity of the species that would render it vulnerable to extinction. We have no information in our files about the genetics of the species or any information about the reproductive biology or population dynamics of
The petition does not provide any information, nor do we have any in our files, indicating that
The petition does not provide any information, nor do we have any information in our files, indicating that
We find that the information provided in the petition and currently available in Services files does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to other natural or manmade factors (genetic diversity, fires, or hurricanes).
In summary, the petition does not present substantial information that listing
Therefore, on the basis of our analysis under section 4(b)(3)(A) of the Act, we conclude that the petition does not present substantial scientific or commercial information to indicate that listing
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff members of the Caribbean Ecological Services Field Office (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of 90-day petition finding.
We, the U.S. Fish and Wildlife Service, announce a 90-day finding on a petition to list a distinct population segment (DPS) of the American black bear (
The finding announced in this document was made on July 5, 2012.
This finding is available on the Internet at
Edward D. Koch, State Supervisor of the Nevada Fish and Wildlife Office (see
Section 4(b)(3)(A) of the Act (16 U.S.C. 1531
Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12-month finding.
On September 6, 2011, we received a petition dated September 1, 2011, from Big Wildlife and NoBearHuntNV.org, requesting that the American black bear in Nevada be designated as a DPS and listed as endangered or threatened under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required by 50 CFR 424.14(a). In a November 4, 2011, letter to the petitioner, we responded that we reviewed the information presented in the petition and determined that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not warranted. We also stated that due to a requirement to complete a significant number of listing and critical habitat actions in Fiscal Year 2012, pursuant to court orders, judicially approved settlement agreements, and other statutory deadlines, we would conduct our review of the petition when we secured funding for the action. At that point, we anticipated making an initial finding on the petition. This finding addresses the petition.
No previous Federal actions have been conducted specifically for American black bears in Nevada. Federal actions have been conducted for black bears in other states, as discussed below.
On February 15, 1983 (48 FR 6752), the Service included the black bear in Pennsylvania in a list of various petitions; the Service determined that the petition to list the black bear in Pennsylvania did not provide substantial information.
On June 21, 1990, the Service published a proposed rule (55 FR 25341) to list the Louisiana black bear (
American black bears are large mammals with fur color that can be black or cinnamon (Hall 1946, p. 171). They are considered plantigrades (walk on whole sole of foot) and both the front and rear feet have five toes; claws are longer on the front feet than on the hind feet, and the tail is short (Hall 1946, p. 171). The profile is rather blunt; the eyes are small, and the nose pad is
According to Hall (1981, p. 950), there are 16 subspecies of black bear in North America. Collectively, these subspecies number approximately 800,000–900,000 bears in North America with about 400,000 in the United States (Williamson 2002, p. 12; Renda 2010a, no page number; Big Wildlife and NoBearHuntNV.org 2011, p. 6).
The American black bear is adaptable and inhabits forests, swamps, tundra, and even the edges of suburbia (Bowers
Bears, in general, are wide-ranging animals with low reproductive rates and low population densities (Jonkel 1978, pp. 227, 231). The size of the habitat needed by bears is generally related to the abundance and availability of food (Jonkel 1978, p. 238) and the age and sex of the bear (Lackey 2004, p. 13). Males will have larger home ranges than females and may overlap with other males and females (Lackey 2004, p. 13). Bears can live within home ranges that are small, provided there are many available foods (Jonkel 1978, p. 238). American black bear home ranges have been recorded to be as small as 1 square mile (mi
Sexual maturity for American black bear males occurs at about 4–6 years of age; the age of sexual maturity for females is about 4–5 years (Lackey 2004, p. 11). American black bears mate in the spring, with the embryo(s) implanting in the fall; generally two or three cubs are born in January or February (Bowers
American black bears in western Nevada belong to the subspecies
Hall (1946, pp. 171, 175) indicates that the historical distribution of American black bears in Nevada occurred near the vicinity of Lake Tahoe (Douglas and Washoe Counties, Nevada) on the border of Nevada and California. However, Lackey (2004, pp. 2–3, 15) states that the American black bear in Nevada historically occurred in several mountain ranges in the northeastern (Jarbidge and Ruby), central (Toiyabe), and western (Sierra Nevada) portions of the State.
Currently, American black bears in Nevada are known to occur in the Carson (includes Lake Tahoe), Sweetwater, Pine Nut, and Wassuk Ranges of western Nevada (Beckmann and Berger 2003, p. 597; Lackey 2004, p. 19; Big Wildlife and NoBearHuntNV.org 2011, p. 7). Goodrich (1993 cited in Lackey 2004, p. 15) mentions these ranges and also includes the Excelsior Range in Mineral County. Confirmed recent American black bear sightings have occurred in the Delano, Independence, and Jarbidge Mountains of Elko County; the Schell Creek Range of White Pine County; and the Vya Rim of northern Washoe County (Nevada Department of Wildlife (NDOW), unpublished data cited in Lackey 2004, p. 15). These sightings may indicate that the American black bear in Nevada is expanding its range eastward (Lackey 2004, p. 30).
There are currently an estimated 150–300 adult American black bears living on the Nevada side of the Lake Tahoe Basin and in the mountain ranges to the south (Sonner 2011, no page number, Big Wildlife and NoBearHuntNV.org 2011, p. 6). During the early 1990s in Nevada, wild-land American black bears (bears with almost 100 percent of their point locations outside of urban areas, in the Carson Range of the Sierra Nevada, Sweetwater Range, Pine Nut Range, and Wassuk Range) were at a density of 20–40 bears/39 mi
Nevada Department of Wildlife estimates that the American black bear population in Nevada is growing at an annual rate of 16 percent (Sonner 2011, no page number). Beckmann and Berger (2003, p. 602) were uncertain if the American black bear population had increased in their western Nevada study area (Carson, Sweetwater, Pine Nut, and Wassuk Ranges). While these authors reported population numbers similar to Goodrich (1990 cited in Beckmann and Berger 2003, p. 602), they suggested that the increase in numbers may be the result of a shift of individuals from wild-land areas to urban-interface areas rather than an increase in population size. During 1997–2002, Beckmann (2002, p. 20) and Beckmann and Berger (2003, p. 602) estimated Nevada's American black bear population at about 300 in the Carson, Sweetwater, Pine Nut, and Wassuk Ranges collectively. This number is similar to an estimate of 150–290 animals in the same population based on an extrapolation of Goodrich's density
The petition requests that the American black bear in Nevada be listed as a DPS under the Act. The petition states that the American black bear in Nevada is threatened by habitat loss due primarily to residential development and recreational encroachment (Big Wildlife and NoBearHuntNV.org 2011, p. 5). The petition also states that, due to increasing interactions with humans, anthropogenic killing of these bears is identified as significant and increasing (Big Wildlife and NoBearHuntNV.org 2011, p. 5). In addition, NDOW authorized, for the first time, a fall hunt in 2011; the petition asserts that hunting will further endanger this population (Big Wildlife and NoBearHuntNV.org 2011, p. 5).
The petition asserts that the American black bear in Nevada should be listed under the Act as a DPS because Nevada's black bears are markedly separated (discrete) from other populations of American black bears due to physical and behavioral factors (Big Wildlife and NoBearHuntNV.org 2011, p. 13). The petition cites Breck
The petition also asserts that the American black bear population in Nevada is significant due to the bear's continued existence in western Nevada since the early 1990s in forested, mountain range habitat that is isolated by wide desert valleys; however, the petition notes that American black bears will occasionally use the desert valleys in Nevada for travel between mountain ranges (Big Wildlife and NoBearHuntNV.org 2011, p. 13). The petition asserts that this bear habitat in western Nevada is characteristic of the unique Great Basin ecosystem (Big Wildlife and NoBearHuntNV.org 2011, p. 13). The petition asserts that loss of the American black bear population in Nevada would result in a significant gap in the species' range because this population is genetically and behaviorally distinct from other American black bears as indicated above, and, therefore, a unique population would be lost (Big Wildlife and NoBearHuntNV.org 2011, p. 14).
Under the Service's Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (61 FR 4722, February 7, 1996), three elements are considered in the decision concerning the establishment and classification of a possible DPS. These are applied similarly for additions to or removal from the Federal List of Endangered and Threatened Wildlife. These elements include:
(1) The discreteness of a population in relation to the remainder of the taxon to which it belongs;
(2) The significance of the population segment to the taxon to which it belongs; and
(3) The population segment's conservation status in relation to the Act's standards for listing, delisting (removal from the list), or reclassification (
In this analysis, we evaluate whether the petition provides substantial information that the American black bear in Nevada may constitute a DPS.
Under the DPS policy, a population segment of a vertebrate taxon may be considered discrete if it satisfies either one of the following conditions:
(1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
(2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
The petition asserts that American black bears in Nevada should be listed under the Act as a DPS because they are markedly separate from other populations of American black bears due to physical and behavioral factors, citing Breck
Breck
As indicated above, Breck
While food-conditioning behavior could be learned from the parent-offspring relationship or through inheritance, these are not the primary means of learning (Breck
There is further lack of support for the claim that American black bear populations between Nevada and California are markedly separate because the American black bear population in Nevada is not physically separated from American black bears in California, nor is the habitat used by American black bears in Nevada unique. While Lake Tahoe (and its Basin) is divided by the State boundary between California and Nevada, it is not a complete physical barrier to American black bear movement between the two States; American black bears are found throughout the Sierra Nevada (Zielinski
The petition asserts that American black bear habitat in western Nevada (forested mountain ranges isolated by valleys) is characteristic of the unique Great Basin ecosystem (Big Wildlife and NoBearHuntNV.org 2011, p. 13). American black bears are adaptable and are found in many habitat types across North America (Bowers
The petition does not present information to suggest there may be a markedly separate population of American black bears in Nevada due to physiological reasons. Additionally, we do not have information in our files to indicate that the American black bear in Nevada may be markedly separate from other American black bears outside of this area due to physiological reasons.
Substantial information is not presented in the petition, nor is it available in our files, to suggest there may be a markedly separate population of American black bears in Nevada due to physical, physiological, ecological, or behavioral differences as compared to American black bears located in the Sierra Nevada of California and elsewhere. Therefore, we determine, based on the information provided in the petition and in our files that the American black bear population in Nevada may not be markedly separate from other black bear populations found outside of the State. Therefore, we conclude that the black bear population in Nevada does not meet the discreteness criterion of the 1996 DPS policy.
There are no international governmental boundaries associated with this subspecies that are significant. The American black bear population found in Nevada lies wholly within the United States. Because this element is not relevant in this case for a finding of discreteness, it was not considered in reaching this determination.
If a population segment is considered discrete under one or more of the conditions described in our DPS policy, its biological and ecological significance will be considered in light of Congressional guidance that the authority to list DPSs be used “sparingly” while encouraging the conservation of genetic diversity. In making this determination, we consider available scientific evidence of the discrete population segment's importance to the taxon to which it belongs. Since precise circumstances are likely to vary considerably from case to case, the DPS policy does not describe all the classes of information that might be used in determining the biological and ecological importance of a discrete population. However, the DPS policy does provide four possible reasons why a discrete population may be significant. As specified in the DPS policy (61 FR 4722), this consideration of the population segment's significance may include, but is not limited to, the following:
(1) Persistence of the discrete population segment in an ecological setting unusual or unique to the taxon;
(2) Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon;
(3) Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; or
(4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.
A population segment needs to satisfy only one of these criteria to be considered significant. Furthermore, the list of criteria is not exhaustive; other criteria may be used as appropriate.
Because we must find a population to be both discrete and significant to qualify as a DPS, and we did not find the population to be discrete, we will not address the potential significance of the American black bear in Nevada to the remainder of the taxon, nor will we evaluate the population's conservation status.
Based on the information provided in the petition and in our files, we find that the petition does not provide substantial information to indicate that the American black bear population in Nevada meets the discreteness criterion of the DPS policy. Since both discreteness and significance are required to satisfy the DPS policy, we have determined that the American black bear population in Nevada does not qualify as a DPS under our policy and, therefore, is not a listable entity under the Act. As a result, no further analysis under the DPS policy is necessary.
We reviewed the information presented in the petition, and we evaluated that information in relation to information readily available in our files. On the basis of our review, we find that neither the petition, nor information readily available in our files, suggests that the American black bear population in Nevada meets the criteria for being discrete under our DPS policy. Available information from the petition and our files does not suggest there may be a markedly separate population of American black bears in Nevada compared with other populations due to physical, physiological, ecological, or behavioral differences. The American black bear in Nevada is not found to be markedly separate from other American black bear populations because it is not physically separate from other adjacent populations due to various kinds of barriers, it is not genetically different and does not demonstrate physiological or behavioral differences, nor does it occur in ecological settings in Nevada that are dissimilar from other areas occupied by the American black bear. Because the petition does not present substantial information that the American black bear in Nevada may be a DPS, we did not evaluate whether the information contained in the petition regarding the conservation status was substantial. We conclude that the American black bear in Nevada does not satisfy the elements of being a DPS under our 1996 policy and, therefore, is not a listable entity under section 3(16) of the Act.
We encourage interested parties to continue to gather data that will assist with the conservation of the American black bear in Nevada. If you wish to provide information regarding the American black bear in Nevada, you may submit your information or materials to the State Supervisor, Nevada Fish and Wildlife Office (see
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff of the Nevada Fish and Wildlife Office (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Forest Service, USDA.
Correction—Notice of intent to prepare a supplement to a final environmental impact statement.
Sophia Millar, Interdisciplinary Team Leader, Wallowa-Whitman National Forest, Wallowa Mountains Office, PO Box 905, Joseph, OR 97846, Phone: (541) 426–5540.
Rural Business-Cooperative Service, USDA.
Notice.
This Notice announces the acceptance of applications from newly-formed Rural Business Investment Companies (RBICs) who are interested in being licensed as non-leveraged RBICs under the Agency's Rural Business Investment Program (RBIP). The Agency intends to issue no more than one non-leveraged license in Fiscal Year 2012.
The Agency will begin accepting applications on August 6, 2012.
Detailed information on the RBIP, including application materials and instructions, can be found on the Agency's Web site at
The Paperwork Reduction Act of 1995 defines “collection of information” as a requirement for “answers to * * * identical reporting or recordkeeping requirements imposed on ten or more persons” (44 U.S.C. 3502(3)(A)). The collection requirements associated with this Notice, is expected to receive less than ten respondents and therefore the Act does not apply.
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The purpose of this Notice is to license qualified RBICs as non-leveraged RBICs under the RBIP. Previously, the Agency only licensed qualified RBICs as leveraged RBICs.
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Applicants and their applications are subject to the provisions of this Notice
A.
Application materials may also be obtained via
B.
Contents of the initial application include RD Form 4290–1, “Rural Business Investment Program (RBIP) Application,” Part I, Management Assessment Questionnaire (MAQ), and RD Form 4290–2, “Rural Business Investment Program (RBIP) Application,” Part II, Exhibits (exhibits A, D, E, F, G, K, L, P, V, and Z).
Submit two complete, original hard copy sets of the RD Form 4290–1 and RD Form 4290–2 (excluding Exhibit P, which is required in electronic form only). Place each of the two original sets in a large 3-ring binder. Label the binders with the RBIC's name. Submit one complete and unbound one-sided hard copy of the MAQ and Exhibits suitable for photocopying (i.e., no hole punches, staples, paper clips, tabs or binders).
Applicants must enclose in their submission a nonrefundable licensing fee of $500 in the form of a check payable to USDA.
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This section of the Notice identifies the procedures the Agency will use to process and select applicants for licensing as a non-leveraged RBIC. More information about the RBIP is available in the regulation at 7 CFR part 4290.
The Agency will select applicants for licensing as a non-leveraged RBIC on a first-come, first-served basis. For Fiscal Year 2012, the Agency intends to award no more than one non-leveraged license.
The Agency will review each application it receives in response to this Notice with regard to eligibility and completeness. If the application is incomplete, the Agency will notify the applicant of the missing information. The applicant must then provide the missing information in order for the Agency to further review the application.
As noted above, the Agency will select applicants on a first-come, first-served basis. The Agency will determine the order of applications based on the date the Agency receives a complete application. For example, if an application is received on July 1, but is incomplete, and the applicant supplies the Agency with the missing information on August 1, then that application will be considered for selection on the basis of the August 1 date—the date on which the Agency received a complete application. Therefore, the Agency encourages applicants to ensure their applications are complete prior to submitting them.
Only those applications that are eligible will be processed further for determining whether the applicant will be licensed as a non-leveraged RBIC. The Agency anticipates being able to further process only one application in FY 2012. The Agency will not begin processing additional complete and eligible applications until the evaluation of the first application has been completed. Thus, most of the complete and eligible applications received in response to this Notice will be processed in FY 2013 and beyond in the order received.
For each application that receives further processing, the Agency will focus its assessment of the application on the consistency of the newly-formed RBIC's business plan with the goals of the RBIC program and on the applicant's management team's qualifications. Following this assessment, if the initial recommendation is favorable, the Agency, or its designee, will interview the applicant's management team.
Based on the assessment and interview, a recommendation will be made as to whether or not to select the applicant for non-leveraged status. If the recommendation is favorable, the Agency will send to the applicant a Letter of Conditions (also known as a “Green Light” letter) and the applicant will be invited to submit an updated RD Form 4290–1, Part I, Management Assessment Questionnaire, and RD Form 4290–2, Part II, Exhibits. Upon receipt of the Letter of Conditions, the applicant has 24 months to raise their private equity capital. Once a selected applicant has achieved full compliance with the regulations governing licensing as an RBIC, the Agency will issue the non—leveraged license to the RBIC.
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For further information about this Notice or for assistance with the program requirements, please contact the Specialty Programs Division, STOP 3225, Room 6867, 1400 Independence
USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720–2600 (voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250–9410, or call (800) 795–3272 (voice), or (202) 720–6382 (TDD). “USDA is an equal opportunity provider, employer, and lender.”
Architectural and Transportation Barriers Compliance Board.
Notice.
Notice is given of the appointment of members to a performance review board for the Architectural and Transportation Barriers Compliance Board (Access Board).
David M. Capozzi, Executive Director, Access Board, 1331 F Street NW., Suite 1000, Washington, DC 20004–1111. Telephone (202) 272–0010.
Section 4314(c) of Title 5, U.S.C., requires each agency to establish, in accordance with regulations, one or more Senior Executive Service (SES) performance review boards. The function of the boards is to review and evaluate the initial appraisal of senior executives' performance and make recommendations to the appointing authority relative to the performance of these executives. Because of its small size, the Access Board has appointed SES career members from other federal agencies to serve on its performance review board. The members of the performance review board for the Access Board are:
• Craig Luigart, Chief Information Officer, Veterans Health Administration, Department of Veterans Affairs;
• Georgia Coffey, Deputy Assistant Secretary for Diversity and Inclusion, Department of Veterans Affairs;
• Henry Claypool, Principal Deputy Administrator, Administration for Community Living, Department of Health and Human Services.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Many states use Special Census population statistics to determine the need for a change in the distribution of funds to local jurisdictions. The local jurisdictions may also use the data to plan new schools, transportation systems, housing programs, or water treatment facilities.
The Census Bureau will use the following forms to conduct the Special Census operations:
SC–1, Special Census Enumerator Questionnaire—This interview form will be used to collect special census data at regular housing units (HU), and eligible units in Transitory Locations (TL) such as RV parks, marinas, campgrounds, hotels or motels.
SC–1 (SUPP), Special Census Enumeration Continuation Questionnaire—This interview form will be used to collect special census data at a regular HU or eligible units in a TL, when there are more than five members in a household.
SC–1 (Phone/WYC), Special Census Phone/WYC Questionnaire—This interview form will be used to collect special census data when a respondent calls the local Special Census Office.
SC–2, Special Census Individual Census Report—This interview form will be used to collect special census data at group quarters (GQ) such as hospitals, prisons, boarding and rooming houses, college dormitories, military facilities, and convents.
SC–3 (RI), Special Census Enumeration Reinterview Form—This interview form is a quality assurance form used by enumerators to conduct an independent interview at a sample of HUs. Special Census office staff will compare the data collected on this form with the original interview to make sure the original enumerator followed procedures.
SC–116, Special Census Group Quarters (GQ) Enumeration Control Sheet—This form will be used by Special Census enumerators to list residents/clients at GQs.
SC–117, Special Census Transitory Locations (TL) Enumeration Record—This form will be used by Special Census office staff to collect contact information for TLs, to schedule interviews for the TLs, to determine the type of TL, and to estimate the number of interviews to be conducted at the TL.
SC–351, Special Census Group Quarters (GQ) Initial Contact Checklist—This checklist will be used by enumerators to collect GQ contact information and to determine the type of GQ.
SC–920, Special Census Address Listing Page—This form will list existing addresses from the Census Bureau's Master Address File (MAF). Special Census enumerators will update
SC–901, Special Census Address Listing Notes Page—This form will be used by the enumerator to write notes about any extenuating circumstances regarding the listing of an address found on the SC–920, Address Listing Page. The Enumerator will use the line number from the Address Listing page and note any issues encountered that might need further explanation regarding the unit/address.
SC–921(HU), Special Census Housing Unit Add Page—This form will be used by enumerators to add housing units (HUs) that are observed to exist on the ground, that are not contained on the address listing page.
SC–921(GQ), Special Census Group Quarter Add Page—This form will be used by enumerators to add Group Quarters (GQs) that are observed to exist on the ground, that are not contained on the address listing page.
SC–921(TU), Special Census Transitory Unit Add Page—This form will be used by enumerators to add Transitory Units (e.g., hotels, motels, RV parks, marinas) that are observed to exist on the ground, that are not contained on the address listing page.
SC–1(F), Special Census Information Sheet—This sheet contains the Confidentiality Notice and the Flash Card information for use at Housing Units. The Confidentiality Notice is required by the Privacy Act of 1974. The Flash Card portion of the Information Sheet shows the set of flashcards that will be shown to respondents as an aid in answering certain questions. Special Census field staffs are required by law to give an Information Sheet to each person from whom they request census-related information.
SC–31/SC–31(S), Special Census Group Quarters Information Sheet—This sheet contains the Confidentiality Notice and the Flashcard information for use at Group Quarters. The Confidentiality Notice is required by the Privacy Act of 1974. The Flash-card portion of the Information Sheet shows the set of flashcards that will be shown to respondents as an aid in answering certain questions. Special Census field staffs are required by law to give an Information Sheet to each person from whom they request special census related information.
SC–26, Special Census Notice of Visit Form—This form is the form that enumerators will leave at addresses where they are not able to make contact. The notice indicates that a special census enumerator was there and will return to conduct an interview. It also provides a telephone number that the respondent can use to contact the enumerator and/or the Special Census Office.
SC–3309, Language Identification Flashcard—This form will be used by enumerators to identify the language spoken by a respondent when a language barrier is encountered.
The Census Bureau will establish a reimbursable agreement with a variety of potential special census customers that are unknown at this time. The Special Census Program will include a library of standard forms that will be used for the Special Censuses we anticipate conducting throughout this decade. While no additional documentation will be provided to OMB in advance of conducting any Special Census which utilizes the library of standard forms, any deviation from the standard forms, such as an additional question requested by a specific governmental unit, will be forwarded to OMB for approval. In addition, the Special Census program will provide OMB an annual report summarizing the activity for the year.
Local jurisdictions determine the need for and uses of their special census data. Some governmental units request a special census for proper infrastructure planning and others make a request because they must have the updated data to qualify for some sources of funding. Local governmental units use special census data to apply for available funds from both the state and Federal governments. Many states distribute these funds based on Census Bureau population statistics. This fact, along with local population shifts or annexations of territory, prompts local officials to request special censuses. In addition, special census data are used by the local jurisdictions to plan new schools, transportation systems, housing programs, water treatment facilities, etc.
The Census Bureau also uses special census data as part of its local population estimates calculation and to update the Census Bureau's Master Address File (MAF) and Topographically Integrated Geographic Encoding and Referencing (TIGER) System.
Title 13 U.S.C., Section 196.
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482–0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Brian Harris-Kojetin, OMB Desk Officer either by fax (202–395–7245) or email (
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, 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 proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
To ensure consideration, written comments must be submitted on or before September 4, 2012.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Brian O'Hara, Social and Economic Housing Statistics Division, U.S. Census Bureau, 301–763–3196 (or via the Internet at
The Current Population Survey (CPS) Annual Social and Economic
With regard to income, the CPS ASEC was converted to computer assisted interviewing (CAI) in 1994. This conversion, essentially, took the questions and skip patterns of the paper questionnaire, and put them on a computer screen. Automated data collection methods allow for complicated skips, respondent-specific question wording, and carry-over of data from one interview to the next. The computerized questionnaire also permits the inclusion of several built-in editing features, including automatic checks for internal consistency and unlikely responses, and verification of answers. With these built-in editing features, errors can be caught and corrected during the interview itself. It has been more than 30 years since the last major redesign of the income questions of this questionnaire (1980), and the need to modernize this survey to take advantage of CAI technologies has become more and more apparent.
Regarding health insurance, the CPS ASEC health insurance questions have measurement error due to both the reference period and timing of data collection. Qualitative research has shown that some respondents do not focus on the calendar year reference period, but rather report on their current insurance status. Quantitative studies have shown that those with more recent coverage are more likely to report accurately than those with coverage in the distant past. A new set of integrated questions on both current and past calendar year status should produce more accurate estimates of past year coverage. This is because the current coverage status questions may serve as an anchor to elicit more accurate reports of past year coverage than the standard methodology.
In addition to making improvements to the core set of questions on health insurance, in 2014 the Patient Protection and Affordable Care Act (PPACA) is set to go into effect. One of the main features of the PPACA is the “Health Insurance Exchange.” These are joint federal-state partnerships designed to create a marketplace of private health insurance options for individuals and small businesses. While these Exchanges are still in development and states have broad flexibility in designing the programs, it is essential for the federal government to have a viable methodology in place when the PPACA goes into effect to measure Exchange participation, and to measure types of health coverage (in general) in the post-reform era.
Lastly, the point-in-time health insurance questions lend themselves to additional questions concerning whether the current employer offered the respondent health insurance coverage. Although this set of questions is new to the CPS ASEC, it has been in CPS production in the Contingent Worker Supplement (CWS). The CWS was fielded in February of 1995, 1997, 1999, 2001 and 2005.
The overarching purpose of the 2013 CPS ASEC Content Test is to evaluate the following:
• Customization of income questions to fit specific demographic groups
• Ask recipiency and amounts separately
• Use better targeted questions for certain income types that are currently not well reported
• Improve health insurance questions by using a new method of collection
• New content on a new way for people to get income-related subsidies for health insurance coverage
• New content on employer-provided health insurance
The 2013 field test is expected to be conducted using a CATI instrument by Census Bureau interviewers located in three telephone interviewing facilities (in Hagerstown, Maryland; Jeffersonville, Indiana; and Tucson, Arizona).
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Bureau of Industry and Security, Commerce.
Notice of inquiry.
Numerous exporters have expressed interest in establishing an automatic calculation through the Automated Export System (AES) of the shipping tolerance for licenses issued by the Bureau of Industry and Security (BIS) to enhance exporter compliance with the Export Administration Regulations (EAR). In addition, automatic calculation would assist in achieving the goals of the President's Export Control Reform (ECR) initiative to harmonize the control lists of the Departments of Commerce and State, and with the transfer of militarily less significant defense articles from the United States Munitions List (USML) to the Commerce Control List (CCL), by making the transfer smoother for exporters since automatic calculation of shipping tolerances is already in place for the primary licenses issued by the Department of State (DSP–5 licenses). BIS seeks public comment to help it ascertain if changes should be made to its shipping tolerance regulations in
Comments must be received no later than August 20, 2012.
Comments may be submitted via email to
Teresa Telesco, Office of Technology Evaluation, Bureau of Industry and Security, telephone: 202–482–4959; fax: 202–482–5361; email:
BIS, among its other activities, issues licenses for the export of items that are subject to the Export Administration Regulations (EAR). Under some circumstances defined in the EAR, exporters are allowed to export more than the quantity or dollar value shown on an export license. This additional amount is called a shipping tolerance. Currently, the allowable shipping tolerance is calculated based on the “unit” specified in the Export Control Classification Number (ECCN); the three basic “units” are “dollar value,” “number,” or “area, weight or measure” (see § 750.11). Depending on the applicable “unit,” BIS allows either no shipping tolerance on dollar value, or up to 25 percent shipping tolerance on dollar value. The Department of State, which issues licenses for commodities identified on the USML, measures shipping tolerances based on dollar value. The Department of State applies a flat 10 percent shipping tolerance on dollar value to all defense articles.
The President's Export Control Reform (ECR) initiative aims to harmonize, to the maximum extent possible, the control lists of the United States Munitions List (USML) and Commerce Control List (CCL). With the anticipated transfer of items determined to no longer warrant control under the USML to the CCL, which are largely generic parts and components, harmonization of the two agencies' shipping tolerance regulations and the ability to automatically calculate available shipping tolerance in the Automated Export System (AES) may be beneficial, because they could make the transfer easier and less confusing for exporters.
BIS is looking into the feasibility of adding to the Automated Export System (AES) a feature that automatically calculates the shipping tolerance of the dollar value on an export license, communicates the dollar value remaining on the license back to the AES filer, and notifies the AES filer when the license has been fully utilized. This feature is also known as electronic decrementation of a license, and is already in place on AES for the primary licenses issued by the Department of State (DSP–5 licenses). This feature would enhance compliance with licenses and increase transparency of export licensing by providing precise and timely information to exporters on what they are allowed to export under the license in the future. In addition, electronic decrementation would assist with the ECR harmonization goal, as well as the anticipated control of some munitions items under the CCL, by providing exporters of CCL items with the same functionality in AES already available to exporters of USML items.
BIS is seeking information that would help it determine:
• If the current EAR shipping tolerance rules should be maintained or if changes should be made that facilitate automatic calculation;
• If the EAR shipping tolerance rules were changed, (i) should BIS continue to exclude certain ECCNs from having an allowable shipping tolerance, (ii) should the dollar value-based shipping tolerance be set at 10 percent to match the Department of State rules; and
• Whether an automatic calculation of the dollar value-based shipping tolerance in AES (electronic decremention) would assist exporters in maintaining compliance with the allowable shipping dollar value of the license.
The following kinds of information would be useful to BIS's assessment:
• Detailed information on your company's experiences with both the Department of State's and BIS's shipping tolerance regulations;
• Detailed information on how dollar value-based shipping tolerances are beneficial and practical, or detrimental and burdensome to your company or organization;
• Detailed information on your company's experience with automatic calculation of a dollar value-based shipping tolerance (decrementation) against State Department licenses in AES;
• If you believe that BIS's dollar value-based shipping tolerances should be changed, detailed information on how the tolerances should be changed; and
• Detailed information on what benefits, if any, industry would receive through electronic decrementation of a dollar value-based shipping tolerance in AES.
All comments must be in writing and submitted to one of the addresses indicated above. Comments must be received by BIS no later than August 20, 2012. All comments (including any personal identifiable information) will be available for public inspection and copying. Those wishing to comment anonymously may do so by submitting their comment via regulations.gov and leaving the fields for identifying information blank.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) published its
Lilit Astvatsatrian or Charles Riggle, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–6412 or (202) 482–0650, respectively.
On March 7, 2012, the Department published its
On April 10, 2012, Meco Corporation, a domestic producer of the like product and petitioner in the underlying investigation (“Petitioner”), withdrew its request for administrative review. On April 13, 2012, Feili and Cosco withdrew their requests for administrative review and requested that the Department rescind the ongoing review. On April 16, 2012, Target filed comments supporting the rescission of the review.
We have conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (“the Act”), 19 CFR 351.241, and 19 CFR 351.213.
The products covered by the order consist of assembled and unassembled folding tables and folding chairs made primarily or exclusively from steel or other metal, as described below:
(1) Assembled and unassembled folding tables made primarily or exclusively from steel or other metal (folding metal tables). Folding metal tables include square, round, rectangular, and any other shapes with legs affixed with rivets, welds, or any other type of fastener, and which are made most commonly, but not exclusively, with a hardboard top covered with vinyl or fabric. Folding metal tables have legs that mechanically fold independently of one another, and not as a set. The subject merchandise is commonly, but not exclusively, packed singly, in multiple packs of the same item, or in five piece sets consisting of four chairs and one table. Specifically excluded from the scope of the order regarding folding metal tables are the following:
Lawn furniture;
Trays commonly referred to as “TV trays;”
Side tables;
Child-sized tables;
Portable counter sets consisting of rectangular tables 36″ high and matching stools; and, Banquet tables. A banquet table is a rectangular table with a plastic or laminated wood table top approximately 28″ to 36″ wide by 48″ to 96″ long and with a set of folding legs at each end of the table. One set of legs is composed of two individual legs that are affixed together by one or more cross-braces using welds or fastening hardware. In contrast, folding metal tables have legs that mechanically fold independently of one another, and not as a set.
(2) Assembled and unassembled folding chairs made primarily or exclusively from steel or other metal (folding metal chairs). Folding metal chairs include chairs with one or more cross-braces, regardless of shape or size, affixed to the front and/or rear legs with rivets, welds or any other type of fastener. Folding metal chairs include: those that are made solely of steel or other metal; those that have a back pad, a seat pad, or both a back pad and a seat pad; and those that have seats or backs made of plastic or other materials. The subject merchandise is commonly, but not exclusively, packed singly, in multiple packs of the same item, or in five piece sets consisting of four chairs and one table. Specifically excluded from the scope of the order regarding folding metal chairs are the following:
Folding metal chairs with a wooden back or seat, or both;
Lawn furniture;
Stools;
Chairs with arms; and
Child-sized chairs.
The subject merchandise is currently classifiable under subheadings 9401.71.0010, 9401.71.0011, 9401.71.0030, 9401.71.0031, 9401.79.0045, 9401.79.0046, 9401.79.0050, 9403.20.0018, 9403.20.0015, 9403.20.0030, 9403.60.8040, 9403.70.8015, 9403.70.8020, and 9403.70.8031 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise is dispositive.
All issues raised in the post-preliminary comments by parties in this review are addressed in the memorandum from Gary Taverman, Senior Advisor for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Import Administration, “Issues and Decision Memorandum for the 2010–2011 Administrative Review of Folding Metal Tables and Chairs from the People's Republic of China” (dated concurrently with this notice) (“Issues and Decision Memorandum”), which is hereby adopted by this notice. A list of the issues that parties raised and to which we responded in the Issues and Decision Memorandum is attached to this notice as an appendix. The Issues and Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). Access to IA ACCESS is available in the Central Records Unit (“CRU”), room 7046 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Internet at
Based on our analysis of comments received, we have made changes in the margin calculations for Feili.
• We included contemporaneous financial statements of two additional Thai producers of comparable merchandise, Silpfah Thai Industrial Limited Partnership and Index Interfurn Co., Ltd., to derive the average surrogate financial ratios.
• We applied a market-economy purchase price to Feili's factors of production of rivets and revised the value for washers.
• We corrected the conversion rate from cubic meters to kilograms in valuing Feili's natural gas.
We determine that the dumping margins for the POR are as follows:
The Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. For assessment purposes, we calculated exporter/importer- (or customer) specific assessment rates for merchandise subject to this review. Where appropriate, we calculated an
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For Feili, because the rate is zero, no cash deposit will be required; (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate established in the final results of this review (
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during the review period. Pursuant to 19 CFR 351.402(f)(3), failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO as explained in the administrative protective order itself. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice of the final results of these reviews is issued and published in accordance with sections 751(a)(1) and 777(i) of the Act.
Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89–651, as amended by Pub. L. 106–36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States.
Comments must comply with 15 CFR 301.5(a)(3) and (4) of the regulations and be postmarked on or before July 25, 2012. Address written comments to Statutory Import Programs Staff, Room 3720, U.S. Department of Commerce, Washington, DC 20230. Applications may be examined between 8:30 a.m. and 5 p.m. at the U.S. Department of Commerce in Room 3720.
Import Administration, International Trade Administration, Department of Commerce.
On December 27, 2011, the Department of Commerce (“the Department”) published in the
Eve Wang, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: 202–482–6231.
New Zhongya, a producer of aluminum extrusions, participated in the antidumping duty investigation of aluminum extrusions from the PRC. The Department issued its final determination for this investigation on April 4, 2011.
On November 7, 2011, New Zhongya requested a changed circumstances review claiming that it had undergone a name change to Guangdong Zhongya Aluminum Company Limited.
In response to this request, on December 27, 2011, the Department initiated a CCR, and on January 27, 2012, the Department issued a questionnaire to New Zhongya. New Zhongya filed its questionnaire response on February 24, 2012. Its submission included organizational charts, employment contracts, board meeting minutes, monthly income statements
The petitioner in this proceeding, Aluminum Extrusions Fair Trade Committee, has not commented on New Zhongya's request.
The merchandise covered by the order is aluminum extrusions which are shapes and forms, produced by an extrusion process, made from aluminum alloys having metallic elements corresponding to the alloy series designations published by The Aluminum Association commencing with the numbers 1, 3, and 6 (or proprietary equivalents or other certifying body equivalents). Specifically, the subject merchandise made from aluminum alloy with an Aluminum Association series designation commencing with the number 1 contains not less than 99 percent aluminum by weight. The subject merchandise made from aluminum alloy with an Aluminum Association series designation commencing with the number 3 contains manganese as the major alloying element, with manganese accounting for not more than 3.0 percent of total materials by weight. The subject merchandise is made from an aluminum alloy with an Aluminum Association series designation commencing with the number 6 contains magnesium and silicon as the major alloying elements, with magnesium accounting for at least 0.1 percent but not more than 2.0 percent of total materials by weight, and silicon accounting for at least 0.1 percent but not more than 3.0 percent of total materials by weight. The subject aluminum extrusions are properly identified by a four-digit alloy series without either a decimal point or leading letter. Illustrative examples from among the approximately 160 registered alloys that may characterize the subject merchandise are as follows: 1350, 3003, and 6060.
Aluminum extrusions are produced and imported in a wide variety of shapes and forms, including, but not limited to, hollow profiles, other solid profiles, pipes, tubes, bars, and rods. Aluminum extrusions that are drawn subsequent to extrusion (“drawn aluminum”) are also included in the scope.
Aluminum extrusions are produced and imported with a variety of finishes (both coatings and surface treatments), and types of fabrication. The types of coatings and treatments applied to subject aluminum extrusions include, but are not limited to, extrusions that are mill finished (
Subject aluminum extrusions may be described at the time of importation as parts for final finished products that are assembled after importation, including, but not limited to, window frames, door frames, solar panels, curtain walls, or furniture. Such parts that otherwise meet the definition of aluminum extrusions are included in the scope. The scope includes the aluminum extrusion components that are attached (
Subject extrusions may be identified with reference to their end use, such as fence posts, electrical conduits, door thresholds, carpet trim, or heat sinks (that do not meet the finished heat sink exclusionary language below). Such goods are subject merchandise if they otherwise meet the scope definition, regardless of whether they are ready for use at the time of importation.
The following aluminum extrusion products are excluded: Aluminum extrusions made from aluminum alloy with an Aluminum Association series designations commencing with the number 2 and containing in excess of 1.5 percent copper by weight; Aluminum extrusions made from aluminum alloy with an Aluminum Association series designation commencing with the number 5 and containing in excess of 1.0 percent magnesium by weight; and aluminum extrusions made from aluminum alloy with an Aluminum Association series designation commencing with the number 7 and containing in excess of 2.0 percent zinc by weight.
The scope also excludes finished merchandise containing aluminum extrusions as parts that are fully and permanently assembled and completed at the time of entry, such as finished windows with glass, doors with glass or vinyl, picture frames with glass pane and backing material, and solar panels. The scope also excludes finished goods containing aluminum extrusions that are entered unassembled in a “finished goods kit.” A finished goods kit is understood to mean a packaged combination of parts that contains, at the time of importation, all of the necessary parts to fully assemble a final finished good and requires no further finishing or fabrication, such as cutting or punching, and is assembled “as is” into a finished product. An imported product will not be considered a “finished goods kit” and therefore excluded from the scope of the investigation merely by including fasteners such as screws, bolts,
The scope also excludes aluminum alloy sheet or plates produced by other than the extrusion process, such as aluminum products produced by a method of casting. Cast aluminum products are properly identified by four digits with a decimal point between the third and fourth digit. A letter may also precede the four digits. The following Aluminum Association designations are representative of aluminum alloys for casting: 208.0, 295.0, 308.0, 355.0, C355.0, 356.0, A356.0, A357.0, 360.0, 366.0, 380.0, A380.0, 413.0, 443.0, 514.0, 518.1, and 712.0. The scope also excludes pure, unwrought aluminum in any form.
The scope also excludes collapsible tubular containers composed of metallic elements corresponding to alloy code 1080A as designated by the Aluminum Association where the tubular container (excluding the nozzle) meets each of the following dimensional characteristics: (1) Length of 37 mm or 62 mm, (2) outer diameter of 11.0 mm or 12.7 mm, and (3) wall thickness not exceeding 0.13 mm.
Also excluded from the scope of this order are finished heat sinks. Finished heat sinks are fabricated heat sinks made from aluminum extrusions the design and production of which are organized around meeting certain specified thermal performance requirements and which have been fully, albeit not necessarily individually, tested to comply with such requirements.
Imports of the subject merchandise are provided for under the following categories of the Harmonized Tariff Schedule of the United States (“HTS”): 7604.21.0000, 7604.29.1000,
In this changed circumstances review, and in accordance with section 751(b) of the Tariff Act of 1930, as amended (the “Act”), the Department has conducted a successor-in-interest analysis. In making a successor-in-interest determination, the Department examines several factors, including, but not limited to, changes in the following: (1) Management; (2) production facilities; (3) supplier relationships; and (4) customer base.
In accordance with 19 CFR 351.221(c)(3)(i), the Department preliminarily determines that Guangdong Zhongya is the successor-in-interest to New Zhongya. The record evidence indicates that Guangdong Zhongya has retained New Zhongya's management and organizational structure, operations and production facilities, and significantly similar supplier and customer relationships.
All of New Zhongya's executive personnel remain in the same positions in Guangdong Zhongya's organization, and the organizational structure remains the same.
The evidence on the record also shows that New Zhongya retained a significant majority of its suppliers after it became Guangdong Zhongya.
Therefore, the Department preliminarily finds that the record evidence supports Guangdong Zhongya's claim that it is the successor-in-interest to New Zhongya. Given the totality of the considered factors, the record evidence demonstrates that Guangdong Zhongya is the same entity, operating in a significantly similar manner to New Zhongya. Consequently, the Department preliminarily determines that Guangdong Zhongya should be given the same antidumping duty treatment as New Zhongya,
If these preliminary results are adopted in our final results of this changed circumstances review, the Department will instruct U.S. Customs and Border Protection to suspend liquidation and collect a cash deposit rate of 33.28 percent on all shipments of the subject merchandise exported by Guangdong Zhongya and entered, or withdrawn from warehouse, for consumption, on or after the publication date of the final results of this changed circumstances review.
Any interested party may request a hearing within 10 days of publication of this notice in accordance with 19 CFR 351.310(c). Interested parties may submit case briefs no later than 14 days after the date of publication of this notice, in accordance with 19 CFR 351.309(c)(1)(ii). Rebuttal briefs, limited to issues raised in the case briefs, may be filed no later than five days after the case briefs, in accordance with 19 CFR 351.309(d)(1). Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of
This notice is published in accordance with sections 751(b)(1) and 777(i) of the Act and 19 CFR 351.216.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Availability of a Draft Programmatic Environmental Impact Statement and Restoration Plan; request for comments.
NOAA, the Department of the Interior (U.S. Fish and Wildlife Service), the Oregon Department of Fish and Wildlife, the Nez Perce Tribe, the Confederated Tribes of the Warm Springs Indian Reservation of Oregon, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of Siletz Indians, and the Confederated Tribes of the Grand Ronde Community of Oregon are collectively referred to as the Trustee Council for this case. The Trustee Council is providing notice that the Draft Programmatic Environmental Impact Statement (PEIS) and Draft Restoration Plan are being released for public comment. The Restoration Plan identifies a restoration approach to compensate for injuries to natural resources in Portland Harbor in the Lower Willamette River. The Trustees seek damages from potentially responsible parties (PRPs) to restore, rehabilitate, replace or acquire the equivalent of natural resources and services injured by the release of hazardous substances in Portland Harbor. This notice provides details on the availability of and opportunity to comment on the Draft PEIS and Restoration Plan. Comments may be submitted in written form or verbally at a public meeting.
Written comments must be received by October 7, 2012.
Public meetings to discuss and comment on the Draft PEIS/RP will be held as follows:
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•
Written comments on the Draft PEIS/RP should be sent to Megan Callahan Grant, NOAA Restoration Center, 1201 NE Lloyd Blvd. #1100, Portland, OR 97232. Comments may be submitted electronically to
The Draft PEIS and Restoration Plan is available for viewing at the following locations:
• Multnomah County Central Library, 801 SW 10th Avenue, Portland, OR 97205.
• Multnomah County Northwest Library, 2300 NW Thurman Avenue, Portland, OR 97210.
• Multnomah County St. Johns Library, 7510 N. Charleston Avenue, Portland, OR 97203.
A full electronic copy may be downloaded at:
Megan Callahan Grant at (503) 231–2213 or email at
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the Oil Pollution Act (OPA) of 1990, the Clean Water Act (CWA), the National Oil and Hazardous Substances Pollution Contingency Plan (National Contingency Plan [NCP]), and other applicable federal and state laws and regulations provide a legal framework for addressing injuries to the nation's natural resources resulting from releases of hazardous substances and discharges of oil. The National Environmental Policy Act (NEPA) of 1960 requires an assessment of any federal action that may impact the environment, in this case development of a Restoration Plan.
In January of 2007, the Portland Harbor Trustee Council released a Pre-Assessment Screen (PAS) for the Portland Harbor Superfund site. The PAS concluded that natural resources in the area have been affected or potentially affected from releases or discharges of contaminants. Based on the conclusions of the PAS, the Portland Harbor Trustee Council determined that proceeding past the preassessment phase to a full natural resource damage assessment was warranted.
Exposed living natural resources include, but are not limited to: (1) Aquatic-dependent mammals such as mink and river otter, and species they depend on as prey items; (2) migratory birds, including osprey, bald eagle, mergansers and other waterfowl, great blue heron, spotted sandpiper and other shorebirds, cliff swallow, belted kingfisher, and other species; (3) threatened and endangered species; (4) anadromous and resident fish, including salmon and steelhead; (5) reptiles and amphibians; (6) aquatic invertebrates; (7) wapato and other aquatic plants.
Exposed habitat types and water natural resources include wetland and upland habitats, groundwater, and surface water. The services that are provided by these potentially affected natural resources include, but are not limited to: (1) Habitat for trust resources, including food, shelter, breeding, foraging, and rearing areas, and other factors essential for survival; (2) consumptive commercial resource use such as commercial fishing; (3) consumptive recreational resource use such as hunting and fishing; (4) non-consumptive uses such as wildlife viewing, photography, and other outdoor recreation activities; (5) primary and secondary contact activities such as swimming and boating; (6) cultural, spiritual, and religious use; (7) option and existence values; (7) traditional foods.
An Assessment Plan was completed in June of 2010. Based on this plan, scientific literature and studies being conducted by the Trustee Council seek to document injuries from hazardous substances found in Portland Harbor. The objective of these studies is to demonstrate (1) how the contamination has harmed the organisms that inhabit the riverine sediments, (2) how the contamination has harmed the fish and wildlife that come into contact with the contaminated sediments or that eat
By identifying criteria and guidance to be used in selecting feasible restoration projects, the Restoration Plan provides a framework to maximize the benefits of restoration projects to the affected resources and services in the defined areas of the Lower Willamette River. The Trustee Council analyzed three alternatives including: (1) (Preferred) integrated habitat restoration actions that will benefit multiple species and services (those species listed above as potentially affected by releases of hazardous substances, such as salmon and resident fish, mammals such as mink and river otter, and aquatic-dependent birds such as osprey and bald eagle); (2) species-specific restoration actions (for example, augmenting a species population through artificial production); and (3) a no-action alternative (no action takes place and the public is not compensated). A fourth alternative for restoration without a limited geographic boundary was also considered, but was not moved forward for detailed study because it did not meet the purpose and need for the project.
The Trustee Council has opened an Administrative Record (Record). The Record includes documents that the Trustees relied upon during the development of the Draft Restoration Plan and Draft PEIS. The Record is on file at the offices of Parametrix, a contractor to NOAA. The Record is also available at:
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Consideration will be given to all comments received by August 6, 2012.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350–3100.
Office of the Under Secretary of Defense for Personnel and Readiness, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by September 4, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
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 Director, Federal Voting Assistance Program, ATTN: John Godley, 4800 Mark Center Drive, Mailbox 10, Alexandria, Virginia 22350–5000.
Respondents are UOCAVA citizens who desire to apply for voter registration or request an absentee ballot from their State of residency. The information provided by these citizens is used by the States to determine if the citizen is a resident of a jurisdiction within that State, and therefore eligible to vote within that jurisdiction and to provide absentee ballots to these citizens for Federal elections held within each calendar year. This form is mandated by 42 U.S.C. 1973ff. The Department of Defense does not receive, collect nor maintain any data provided on the form by these citizens; this data is received, collected and maintained by the individual States. The burden for the collection of this data resides with the individual States. If the form is not provided, UOCAVA citizens may not be able to register to vote in their State of residency nor be able to request absentee ballots and thus, may be disenfranchised from their right as a U.S. citizen to participate in the electoral process.
The Institute of Education Sciences (IES) at the U.S. Department of Education (ED) is conducting a rigorous study of the Free Application for Federal Student Aid (FAFSA) Completion Project. The project will provide 80 Local Educational Agencies (LEAs) or school districts with access to data on whether specific students have completed the Free Application for Federal Student Aid (FAFSA).
Interested persons are invited to submit comments on or before September 4, 2012.
Written comments regarding burden and/or the collection activity requirements should be electronically mailed to
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. 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 the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
IPR–GDF SUEZ Energy Marketing North America, Inc. (GSEMNA) has applied for authority to transmit electric energy from the United States to Mexico pursuant to section 202(e) of the Federal Power Act (FPA).
Comments, protests, or motions to intervene must be submitted on or before August 6, 2012.
Comments, protests, or motions to intervene should be addressed to: Christopher Lawrence, Office of Electricity Delivery and Energy Reliability, Mail Code: OE–20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Christopher Lawrence (Program Office) at 202–586–5260, or by email to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the FPA (16 U.S.C. 824a(e)).
On June 22, 2012, DOE received an application from GSEMNA for authority to transmit electric energy from the United States to Mexico for five years as a power marketer using existing international transmission facilities. GSEMNA does not own any electric transmission facilities nor does it hold a franchised service area.
The electric energy that GSEMNA proposes to export to Mexico would be surplus energy purchased from electric utilities, Federal power marketing agencies, and other entities within the United States. The existing international transmission facilities to be utilized by GSEMNA have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments on the GSEMNA application to export electric energy to Mexico should be clearly marked with OE Docket No. 386. An additional copy is to be filed directly with Cesar Seymour, Director-Special Projects, IPR–GDF SUEZ Energy Marketing North America, Inc., 1990 Oak Post Blvd., Suite 1900, Houston, TX 77056 and Catherine P. McCarthy, Bracewell & Giuliani LLP, 2000 K Street NW., Suite 500, Washington, DC 20006.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Dynasty Power, Inc. (Dynasty Power) has applied for authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act (FPA).
Comments, protests, or motions to intervene must be submitted on or before August 6, 2012.
Comments, protests, or motions to intervene should be addressed to: Christopher Lawrence, Office of Electricity Delivery and Energy Reliability, Mail Code: OE–20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Christopher Lawrence (Program Office) at 202–586–5260, or by email to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the FPA (16 U.S.C. 824a(e)).
On June 14, 2012, DOE received an application from Dynasty Power for authority to transmit electric energy from the United States to Canada for five years as a power marketer using existing international transmission facilities. Dynasty Power does not own any electric transmission facilities nor does it hold a franchised service area. Dynasty Power states that it will make all of the necessary commercial arrangements and will obtain any and all of the required regulatory approvals
The electric energy that Dynasty Power proposes to export to Canada would be surplus energy purchased from electric utilities and Federal power marketing agencies within the United States. The existing international transmission facilities to be utilized by Dynasty Power have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments on the Dynasty Power application to export electric energy to Canada should be clearly marked with OE Docket No. EA–385. An additional copy(s) is to be filed directly with Allen Cho, President, and Todd McRae, Risk Manager, Dynasty Power, Inc, 500 715 5th Ave. SW., Calgary AB, CN T2P2X6 and Bonnie A. Suchman, Troutman Sanders LLP, 401 9th Street NW., Suite 1000, Washington, DC 20004.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Energy Efficiency and Renewable Energy, Department of Energy.
Notice of open teleconference.
This notice announces a teleconference call of the State Energy Advisory Board (STEAB). The Federal Advisory Committee Act (Pub. L. 92–463; 86 Stat.770) requires that public notice of these meetings be announced in the
Thursday, July 19, 2012 from 3:30 p.m.–4 p.m., EST. To receive the call-in number and passcode, please contact the Board's Designated Federal Officer (DFO) at the address or phone number listed below.
Gil Sperling, STEAB Designated Federal Officer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, 1000 Independence Ave. SW., Washington, DC, 20585. Phone number is (202) 287–1644.
Office of Energy Efficiency and Renewable Energy, Department of Energy (DOE).
Submission for Office of Management and Budget (OMB) review; comment request.
The Department of Energy has submitted to the OMB for clearance, a proposal for collection of information pursuant to the Paperwork Reduction Act of 1995. The collection would be used to develop a scorecard that would assist DOE's Clean Cities Coalitions and stakeholders in assessing the level of readiness of their communities for plug-in electric vehicles. Information collected would allow DOE to provide respondents with an objective assessment of their communities' readiness for PEV adoption and an understanding of their commitment to successful deployment of PEVs, and is needed to ensure appropriate evaluation of progress in deploying PEVS.
Comments regarding this collection must be received on or before August 6, 2012. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, please advise the OMB Desk Officer of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at 202–395–4650.
Written comments should be sent to: Desk Officer for the Department of Energy, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10102, 735 17th Street NW., Washington, DC 20503. And to Ms. Linda Bluestein, Office of Energy Efficiency and Renewable Energy (EE–2G), U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585–0121, or by fax at 202–586–1600, or by email at
Ms. Linda Bluestein at the address listed above in
This information collection request contains: (1)
The scorecard assessment effort will rely on responses to questions the respondent chooses to answer. The multiple-choice questions address the following topic areas: (1) Electric vehicle supply equipment permitting and inspection process; (2) PEV and electric vehicle supply equipment availability and numbers; (3) laws, incentives, and financing; (4) education and outreach; (5) utility interaction; and (6) vehicle and infrastructure planning. Respondents will provide answers through a user-friendly online interface. The answers will then be translated through a simple algorithm that will establish appropriate quantitative criteria, translating the readiness measures across several weighted categories into numeric data. Using a numberless color spectrum, a community will be rated against itself, with the colored spectrum results made available only to the respondent community. The total rankings will be normalized into a “score”, and communities will see their own rating and may be compared to other cities.
The scorecard will use one information collection system, an online system. No other data collection system will be employed to support the scorecard. The online scorecard system DOE has developed provides several advantages. First, it avoids the need to download any forms or materials, though respondents may print out the full list of questions and answers, or a portion thereof if they wish. Second, avoiding downloads also limits potential security threats. Third, the designed system allows respondents to dynamically compare historical records, providing the opportunity to revisit the scorecard however often they like to track progress. Further, employing an online system also eliminates version control concerns, allowing for a single update to ensure that all scorecard users are using the current version.
The voluntary scorecard may be completed at any time, and there is no date by which the scorecard questions must be completed. Calculation of outcomes will be undertaken on an ongoing basis, immediately following completion of the scorecard questionnaire.
While there are approximately 90 Clean Cities Coalitions across the United States, DOE expects that other communities may want to avail themselves of the opportunity to assess their respective community's PEV readiness. Therefore, DOE expects a total respondent population of approximately 100 respondents. Selecting the multiple choice answers in completing a scorecard questionnaire is expected to take under 30 minutes, although additional time of no more than 20 hours may be needed to assemble information necessary to be able to answer the questions, leading to a total burden of approximately 2,050 hours in the first year. Assembling information to update questionnaire answers in future years on a voluntary basis would be expected to take less time, on the order of 10 hours, as much of any necessary time and effort needed to research information would have been completed previously; (5)
42 U.S.C. Sec. 13233; 42 U.S.C. Sec. 13252(a)–(b); 42 U.S.C. 13255.
Federal Energy Regulatory Commission, DOE.
Comment request.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is submitting the information collection FERC–725, Certification of Electric Reliability Organization; Procedures for Electric Reliability Standards, to the Office of Management and Budget (OMB) for review of the information collection requirements. 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 issued a Notice in the
Comments on the collection of information are due by August 6, 2012.
Comments filed with OMB, identified by the OMB Control No. 1902–0225, should be sent via email to the Office of Information and Regulatory Affairs:
A copy of the comments should also be sent to the Federal Energy Regulatory Commission, identified by the Docket No. IC12–11–000, by either of the following methods:
•
•
Ellen Brown may be reached by email at
Section 215
On February 3, 2006, the Commission issued Order No.672
The ERO can delegate its enforcement responsibilities to a Regional Entity. Delegation is effective only after the Commission approves the delegation agreement. A Regional Entity can also propose a Reliability Standard to the ERO for submission to the Commission for approval.
The FERC–725 contains the following information collection elements:
The Commission implements its responsibilities through the Code of Federal Regulations in 18 CFR part 39.
The Commission
The total estimated annual cost burden to respondents is $115,655,020 ($15,128,199 + $46,121,011 + $54,405,810).
The hourly cost figures are loaded (i.e. includes salary and other personnel costs). The Commission used NERC's 2012 Business Plan and internal FERC salary estimates for these cost figures.
On April 24, 2012, Natural Currents Energy Services, LLC filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Fisher's Island Tidal Energy Project, which would be located on the Long Island Sound in Suffolk County, New York. The proposed project would not use a dam or impoundment. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of: (1) Installation of 50 NC Sea Dragon tidal turbines at a rated capacity of 100 kilowatts, (2) an estimated 12.6 kilometers in length of additional transmission infrastructure, and (3) appurtenant facilities. Initial estimated production would be a minimum of 17,520 megawatt hours per year with the installation of 50 units.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's Web site at
Take notice that the following application has been filed with the Commission and is available for public inspection:
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i.
j.
Comments, protests, and motions to intervene may be filed electronically via the Internet. See 18 CFR 385.2001(a)(l)(iii) and the instructions on the Commission's Web site under the “eFiling” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. For more information on how to submit these types of filings, please go to the Commission's Web site located at
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n. 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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Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on June 25, 2012, pursuant to section 13(1) of the Interstate Commerce Act (ICA); 49 U.S.C. App. § 13(1), Rule 206 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission); 18 CFR 385.206 (2011), and the Commission's Procedural Rules Applicable to Oil Pipeline Proceedings; 18 CFR 343.1(a) and 343.2(c), HollyFrontier Refining and Marketing LLC (Complainant) filed a formal complaint against Osage Pipe Line Company, LLC (Respondent) alleging that the Respondent has violated the ICA by charging unjust and unreasonable rates for Respondent's interstate transportation service, as set forth more fully in the Complaint.
The Complainant states that a copy of the Complaint has been served on the contact for the Respondent as listed on the Commission list of Corporate Officials.
Any person desiring 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, 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. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
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
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission or FERC) regulations, 18 CFR part 380, Commission staff has reviewed the applications for amendment of the licenses for the Bliss Project (FERC No. 1975) and Lower Salmon Falls Project (FERC No. 2061) and has prepared a Draft Environmental Assessment. The projects are located on the Snake River in Gooding, Twin Falls, and Elmore Counties, Idaho. Both projects occupy lands managed by the Bureau of Land Management. The Lower Salmon Falls Project also occupies lands within the Hagerman Fossil Beds National Monument managed by the National Park Service.
The Draft Environmental Assessment contains the Commission staff's analysis
A copy of the Draft Environmental Assessment is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Any comments should be filed within 30 days from the date of this notice. Comments may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
For further information, contact Rachel Price by telephone at 202–502–8907 or by email at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Driver Residue Pipeline Project involving construction and operation of facilities by Atlas Pipeline Mid-Continent WestTex, LLC and Pioneer Natural Resources USA, Inc. (Atlas and Pioneer), as joint applicants, in Midland County, Texas. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. Your input will help the Commission staff determine what issues they need to evaluate in the EA. Please note that the scoping period will close on July 27, 2012.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
Atlas and Pioneer provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?”. This fact sheet addresses a number of typically-asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (
Atlas and Pioneer propose to construct and operate 10.2 miles of 16-inch-diameter pipeline in Midland County, Texas. According to Atlas and Pioneer, increased natural gas production in the Permian Basin has brought about the need for additional natural gas processing facilities including the facilities to deliver residue gas to downstream markets from the Driver Plant that is presently under construction. The Driver Residue Pipeline Project would provide access to markets via two intrastate and one interstate natural gas pipeline systems for approximately 150 million standard cubic feet of natural gas per day.
The Driver Residue Pipeline Project would consist of the following facilities:
• Construction of 10.2 miles of 16-inch-diameter pipeline and appurtenant facilities between the Driver Plant and interconnections with Atmos Energy Corporation, Northern Natural Gas Company, and Enterprise Products Partners, LP.
• Installation of a pig launcher
• Installation of about 40 feet of 6-inch-diameter pipeline to connect the proposed pipeline to the existing Atlas/Pioneer Shackleford Station near MP 8.3.
The general location of the project facilities is shown in appendix 1.
Construction of the proposed facilities would disturb about 93.4 acres of land. Following construction, Atlas and Pioneer would maintain about 39.7 acres for permanent operation of the project's facilities; the remaining acreage would be restored and revert to former uses. The proposed pipeline would be installed using a 75-foot-wide construction right-of-way, of which a 30-foot-wide strip would remain as permanent right-of-way. The proposed pipeline route parallels existing pipeline rights-of-way.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• Land use;
• Water resources, fisheries, and wetlands;
• Cultural resources;
• Vegetation and wildlife;
• Air quality and noise;
• Endangered and threatened species;
• Public safety; and
• Cumulative impacts
We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section below.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with applicable State Historic Preservation Office (SHPO), and to solicit its views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before July 27, 2012.
For your convenience, there are three methods which you can use to submit your comments to the Commission. In all instances please reference the project docket number (CP12–468) with your submission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502–8258 or
(1) You can file your comments electronically using the eComment feature on the Commission's Web site (
(2) You can file your comments electronically using the eFiling feature on the Commission's Web site (
(3) You can file a paper copy of your comments by mailing them to the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; Native American Tribes; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If we publish and distribute the EA, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the User's Guide under the “e-filing” link on the Commission's Web site.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208–FERC, or on the FERC Web site at
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on June 13, 2012, Transcontinental Gas Pipe Line Company, LLC (Transco), Post Office Box 1396, Houston, Texas 77251, filed in Docket No. CP12–476–000, a prior notice request, pursuant to sections 157.205 and 157.216 of the Commission's Regulations under the Natural Gas Act, and Transco's blanket certificate issued in Docket No. CP82–426, for authorization to abandon Transco's Compressor Station 20 in Refugio County, Texas. In addition, Transco states that it will retain an office building and other miscellaneous facilities for use as a field office location at the Station 20 yard. Transco asserts that all other facilities at Station 20 will be abandoned by removal, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
Specifically, Transco asserts that the abandonment of Station 20 will have no impact on its pipeline system, nor will the abandonment have any adverse impact on Transco's existing customers. Additionally, Transco states that no customers have been served through Station 20 for several years.
Any questions regarding this Application should be directed to Nan Miksovsky, Transcontinental Gas Pipe Line Company, LLC, P.O. Box 1396, Houston, Texas 77251, or call (713) 215–3422.
Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
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 commenter's 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 commenter's will not be required to serve copies of filed documents on all other parties. However, the non-party commentary, 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 via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA), this document announces that EPA is planning to submit a new Information Collection Request (ICR) to the Office of Management and Budget (OMB). Before submitting the ICR, titled: “Soil Fumigant Risk Mitigation” and identified by EPA ICR No. 2451.01 and OMB Control No. 2070-new to OMB for review and approval, EPA is soliciting comments on specific aspects of the proposed information collection.
Comments must be received on or before September 4, 2012.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2011–1036, by one of the following methods:
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Amaris Johnson, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 305–9542; fax number: (703) 308–5884; email address:
Pursuant to section 3506(c)(2)(A) of PRA, EPA specifically solicits comments and information to enable it to:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the
2. Evaluate the accuracy of the Agency's estimates 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.
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. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection.
The ICR provides a detailed explanation of this estimate, which is only briefly summarized here:
This includes an estimated burden cost of $6,283,510 and an estimated cost of $0 for capital investment or maintenance and operational costs.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another
Environmental protection, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before August 6, 2012.
Submit your comments, referencing Docket ID No. EPA–HQ–RCRA–2012–0163, to (1) EPA, either online using
Kristen Fitzgerald, (Mail Code 5304P), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 703–308–8286; fax number: 703–308–8827; email address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On March 20, 2012 (77 FR 16222), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No EPA–HQ–RCRA–2012–0163, which is available for online viewing at
Use EPA's electronic docket and comment system at
When submitting the Site Identification Form, the eligible academic entity must, at a minimum, fill out the fields on the form that are specified at section 262.203(b)(1)–(11). Section 262.203(c) provides that an eligible academic entity must keep a copy of the notification on file at the eligible academic entity while its laboratories are subject to Subpart K. Section 262.203(d) provides that a teaching hospital that is not owned by a college or university must keep a copy of its formal written affiliation agreement with a college or university on file at the teaching hospital while its laboratories are subject to Subpart K. Section 262.203(e) provides that a non-profit research institute that is not owned by a college or university must keep a copy of its formal written affiliation agreement with a college or university on file at the non-profit research institute while its laboratories are subject to Subpart K. An eligible academic entity must submit a separate notification of withdrawal (Site Identification Form) for each EPA Identification Number (or site, for conditionally exempt small quantity generators) that is withdrawing from the requirements of Subpart K.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before August 6, 2012.
Submit your comments, referencing docket ID number EPA–HQ–OECA–2011–0265, to: (1) EPA online using
Learia Williams, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 564–4113; fax number: (202) 564–0050; email address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 9, 2011 (76 FR 26900), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to both EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under docket ID number EPA–HQ–OECA–2011–0265, which is available for public viewing online at
Use EPA's electronic docket and comment system at
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports, at a minimum, are required semiannually.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before August 6, 2012.
Submit your comments, referencing Docket ID No. EPA–HQ–OPP–2011–0843, to (1) EPA online using
Scott Drewes, Field and External Affairs Division, (7506P), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (703) 347–0107; fax number: (703) 305–5884; email address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On Wednesday, December 14, 2011 (76 FR 77817), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received 3 comments during the comment period, which are addressed in the ICR. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA–HQ–OPP–2011–0843, which is available for online viewing at
Use EPA's electronic docket and comment system at
During this renewal of this information collection, EPA is revising EPA Form 3540–1. The revisions clarify the instructions for completing the form, revise the data items, and update the terminology used on the form to be consistent with those used by CBP. In addition, EPA is capturing the burden of providing supplemental information submitted with Form 3540–1 to the Agency by most importers on a voluntary basis.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before August 6, 2012.
Submit your comments, referencing docket ID number EPA–HQ–OECA–2011–0263, to: (1) EPA online, using
Learia Williams, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 564–4113; fax number: (202) 564–0050; email address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 9, 2011 (76 FR 26900), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to both EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under docket ID number EPA–HQ–OECA–2011–0263, which is available for public viewing online at
Use EPA's electronic docket and comment system at
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is
Environmental Protection Agency (EPA).
Notice.
Notice is hereby given that the Environmental Protection Agency (EPA) has determined that, in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2, the National Advisory Council for Environmental Policy and Technology (NACEPT) is a necessary committee which is in the public interest. Accordingly, NACEPT will be renewed for an additional two-year period. The purpose of NACEPT is to provide advice and recommendations to the Administrator of EPA on a broad range of environmental policy, technology and management issues. Inquiries may be directed to Mark Joyce, U.S. EPA, (Mail Code 1601M), 1200 Pennsylvania Avenue NW., Washington, DC 20460, telephone (202) 564–2130, or
Environmental Protection Agency (EPA).
Notice of Advisory Committee Meeting.
Under the Federal Advisory Committee Act, Public Law 92463, EPA gives notice of a public meeting of the National Advisory Council for Environmental Policy and Technology (NACEPT). NACEPT provides advice to the EPA Administrator on a broad range of environmental policy, technology, and management issues. NACEPT represents diverse interests from academia, industry, non-governmental organizations, and state, local, and tribal governments. The purpose of this meeting is to continue developing recommendations to the Administrator regarding actions that EPA can take in response to the National Academy of Sciences Report on “Incorporating Sustainability in the U.S Environmental Protection Agency.” A copy of the agenda for the meeting will be posted at
NACEPT will hold a two-day public meeting on Thursday, August 2, 2012, from 8:30 a.m. to 5 p.m. (ET) and Friday, August 3, 2012, from 8:30 a.m. to 2 p.m. (ET).
The meeting will be held at the EPA East Building, Room 2138, 1201 Constitution Avenue NW., Washington, DC 20004.
Mark Joyce, Acting Designated Federal Officer,
Requests to make oral comments or to provide written comments to NACEPT should be sent to Eugene Green at green.eugene@epa.gov by Thursday, July 26, 2012. The meeting is open to the public, with limited seating available on a first-come, first-served basis. Members of the public wishing to attend should contact Eugene Green at
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before August 6, 2012. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at 202–395–5167 or via Internet at
Judith B. Herman, Office of Managing Director, FCC, at 202–418–0214.
The requirements contained in 47 CFR 80.59 of the Commission's rules are necessary to implement the provisions of Section 362(b) of the Communications Act of 934, as amended, which require the Commission to inspect the radio installation of large cargo ships and certain passenger ships at least once a year to ensure that the radio installation is in compliance with the requirements of the Communications Act.
Further, section 80.59(d) states that the Commission may, upon a finding that the public interest would be served, grant a waiver of the annual inspection required by section 362(b) of the Communications Act of 1934, for a period of not more than 90 days for the sole purpose of enabling the United States vessel to complete its voyage and proceed to a port in the United States where an inspection can be held. An information application must be submitted by the ship's owner, operator or authorized agent. The application must be submitted to the Commission's District Director or Resident Agent in charge of the FCC office nearest the port of arrival at least three days before the ship's arrival. The application must provide specific information that is in rule section 80.59.
Additionally, the Communications Act requires the inspection of small passenger ships at least once every five years.
The Safety Convention (to which the United States is a signatory) also requires an annual inspection.
The Commission allows FCC-licensed technicians to conduct these inspections. FCC-licensed technicians certify that the ship has passed an inspection and issue a safety certificate. These safety certificates, FCC Forms 806, 824, 827 and 829 (approved by the OMB under OMB Control Number 3060–0835) indicate that the vessel complies with the Communications Act of 1934, as amended and the Safety Convention. These technicians are required to provide a summary of the results of the inspection in the ship's log that the inspection was satisfactory.
Inspection certificates issued in accordance with the Safety Convention must be posted in a prominent and accessible place on the ship (third party disclosure requirement).
Finally, the Commission seeks revision of this OMB control number to merge this information collection with OMB Control Number 3060–0835. We will retain OMB Control Number 3060–0228 as the active number in OMB's system and upon OMB approval will voluntarily discontinue OMB Control Number 3060–0835.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for a license as a Non-Vessel-Operating Common Carrier (NVO) and/or Ocean Freight Forwarder (OFF)—Ocean Transportation Intermediary (OTI) pursuant to section 40901 of the Shipping Act of 1984 (46 U.S.C. 40101). Notice is also hereby given of the filing of applications to amend an existing OTI license or the Qualifying Individual (QI) for a license.
Interested persons may contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573, by telephone at (202) 523–5843 or by email at
Electronic Government Office, HHS.
Notice.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Electronic Government Office (EGOV), Department of Health and Human Services, announces plans to submit a request to extend the use of an approved Information Collection Request (ICR) to the Office of Management and Budget. The approved ICR is assigned OMB control number 4040–0005 and expires on August 31, 2012. Prior to submitting that ICR to OMB, HHS seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR. HHS especially requests 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
Submit your comments, including the document identifier HHS–EGOV–16815–60D, to
Copies of the supporting statement and any related forms for the ICR may also be requested through the above email or telephone number.
Office of the Secretary (OS), HHS.
Notice.
The Secretary of Homeland Security determined on September 23, 2008 that there is a significant potential for a domestic emergency involving a heightened risk of attack with a specified biological, chemical, radiological, or nuclear agent or agents—in this case,
This Notice and referenced HHS declaration are effective as of June 28, 2012.
Nicole Lurie, MD, MSPH, Assistant Secretary for Preparedness and Response, Office of the Secretary, Department of Health and Human Services, 200 Independence Avenue SW., Washington, DC 20201, Telephone (202) 205–2882 (this is not a toll free number).
On September 23, 2008, former Secretary of Homeland Security, Michael Chertoff, determined that there is a significant potential for a domestic emergency, involving a heightened risk of attack with a specified biological, chemical, radiological, or nuclear agent or agents—in this case,
On October 1, 2008, on the basis of that determination, and pursuant to section 564(b) of the FD&C Act, 21 U.S.C. 360bbb–3(b), former Secretary of Health and Human Services, Michael O. Leavitt, declared an emergency justifying the emergency use of doxycycline hyclate tablets accompanied by emergency use information subject to the terms of any authorization issued under 21 U.S.C. 360bbb–3(a).
On the basis of the September 23, 2008 determination by the Secretary of Homeland Security and pursuant to section 564(b) of the FD&C Act, I hereby renew my July 20, 2011 declaration that the emergency justifies emergency use of all oral formulations of doxycycline accompanied by emergency use information subject to the terms of any authorization issued under 21 U.S.C. 360bbb–3(a). I am issuing this notice in accordance with section 564(b)(4) of the
The Program was later expanded in response to legislation enacted by Congress to address the particular needs of persons with mental illness (24 U.S.C. 321 through 329). Further refinements occurred in response to Executive Order (EO) 11490 (as amended) where HHS was given the responsibility to “develop plans and procedures for assistance at ports of entry to U.S. personnel evacuated from overseas areas, their onward movement to final destination, and follow-up assistance after arrival at final destination.” In addition, under EO 12656 (53 CFR 47491), “Assignment of emergency preparedness responsibilities”, HHS was given the lead responsibility to develop plans and procedures in order to provide assistance to U.S. citizens or others evacuated from overseas areas.
Overall, the Program manages two major activities, Emergency and Non-emergency Repatriation Activities. The ongoing routine arrivals of individual repatriates and the repatriation of individuals with mental illness constitute the Program Non-emergency activities. Emergency activities are comprised of group repatriations (evacuations of 50–500 individuals) and emergency repatriations (evacuations of 500 or more individuals). Operationally, these activities involve different kinds of preparation, resources, and implementation. However, the core Program policies and administrative procedures are essentially the same.
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Estimated Total Annual Burden Hours: 258.90
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Organ-Specific Warnings: Internal Analgesic, Antipyretic, and Antirheumatic Drug Products for Over-the-Counter Human Use—Labeling for Products That Contain Acetaminophen.” The draft guidance is intended to inform manufacturers of certain over-the-counter (OTC) internal analgesic, antipyretic, and antirheumatic (IAAA) drug products that contain
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by September 4, 2012.
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 2201, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft guidance to
Tina Walther, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 5108, Silver Spring, MD 20993–0002, 301–796–5086.
FDA is announcing the availability of a draft guidance for industry entitled “Organ-Specific Warnings: Internal Analgesic, Antipyretic, and Antirheumatic Drug Products for Over-the-Counter Human Use—Labeling for Products That Contain Acetaminophen.” In the
The labeling for OTC IAAA products that contain acetaminophen and are labeled for adults only, must include the following liver warning:
Although the currently proposed total daily dose of acetaminophen is 4,000 milligrams (mg), some OTC IAAA products that contain acetaminophen have directions for use that provide a maximum daily dose of acetaminophen for the product that is less than 4,000 mg. For example, for some OTC IAAA drug products that contain both acetaminophen and one or more other active ingredients, the maximum number of daily dosage units might be limited by an active ingredient other than acetaminophen, which could result in a maximum daily dose of acetaminophen that is less than 4,000 mg for that product. The optional statement, “for this product,” in the first bullet of the liver warning is intended to address these situations, by clarifying that the maximum number of daily dosage units for a product might not reflect the maximum daily dose of acetaminophen.
However, the Agency understands that in certain circumstances, despite this optional statement, the wording of the first bulleted warning might be interpreted as indicating that severe liver damage is associated with a total daily dose of acetaminophen that is less than 4,000 mg. This suggestion is not the intent of the requirement that the liver warning be included in the labeling. To address this potential confusion, the Agency intends to exercise enforcement discretion with respect to the liver warning required in the circumstances described in this draft guidance.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c) (2) (A) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104–13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
Comments are invited on: (a) The proposed collection of information for the proper performance of the functions of the Agency; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques
One goal of the Health Resources and Services Administration (HRSA) is to ensure that all Health Center program grantees effectively implement health information technology (HIT) systems that enable all providers to become meaningful users of HIT, including Electronic Health Records (EHRs), and use those systems to increase access to care, improve quality of care, and reduce the costs of care delivered. The Health Center Controlled Network (HCCN) program serves as a major component of HRSA's HIT initiative to support these goals. The HCCN model focuses on the integration of certain functions and the sharing of skills, resources, and data to improve health center operations and care provision, and generating efficiencies and economies of scale. Through this grant, HCCNs will provide support for the adoption, implementation, and meaningful use of Health Information Technology (HIT) to improve the quality of care provided by existing Health Center Program grantees (i.e., Section 330 funded health centers) by engaging in the following program components:
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HRSA plans to collect and evaluate network outcome measures. HRSA plans to require that HCCNs report such measures to HRSA in annual work plan updates as part of their annual, non-competing continuation progress reports through an electronic reporting system. The work plan updates will include information on grantees' plans and progress on the following:
• Adoption and Implementation of HIT (including EHR);
• Attainment of Meaningful Use Requirements; and
• Quality improvement measures (e.g., Healthy People 2020 clinical quality measures, PCMH recognition status, etc.).
The annual, non-competing continuation progress reports will describe each grantee's progress in achieving key activity goals such as quality improvement, data access and exchange, efficiency and effectiveness of network services, and the ability to track and monitor patient outcomes, as well as emerging needs, challenges and barriers encountered customer satisfaction, and plans to meet goals for the next year. Grantees will submit their work plan updates and annual, non-competing continuation progress report each fiscal year of the grant; the submission and subsequent HRSA approval of each report triggers the budget period renewal and release of each subsequent year of funding. The estimated total number of burden hours is 750.
The annual estimate of burden is as follows:
Email comments to
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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 contract proposal and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposal, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
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. App.), 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. App.), 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. App.), 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.
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. App), notice is hereby given of meetings of the Board of Regents of the National Library of Medicine.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the 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 materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and, when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of a meeting of the Board of Scientific Counselors, National Center for Biotechnology Information.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for review, discussion, and evaluation of individual intramural programs and projects conducted by the
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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. App.), 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. App.), 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. App.), 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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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 contract proposal and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposal, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Federal Emergency Management Agency, DHS.
Notice; correction.
On June 22, 2012, the Federal Emergency Management Agency (FEMA) published a notice in the
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Deputy Associate Administrator for Mitigation reconsider
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before October 3, 2012.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA–B–1256, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below will be 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 request is for the clearance of on-site and telephone data collection from public housing agencies (PHAs) in support of the Housing Choice Voucher (HCV) Program Administrative Fee Study. The purpose of the study is to collect accurate information on the costs of administering the HCV program across a national sample of high-
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Reports Liaison Officer, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410, Room 9120 or the number for the Federal Information Relay Service (1–800–877–8339).
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410; email Colette Pollard at
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection 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 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:
Description of the need for the information and proposed use:
This request is for the clearance of on-site and telephone data collection from public housing agencies (PHAs) in support of the Housing Choice Voucher (HCV) Program Administrative Fee Study. The purpose of the study is to collect accurate information on the costs of administering the HCV program across a national sample of high-performing and efficient PHAs, and to use this information to develop a new administrative fee allocation formula for the HCV program. This request for clearance is the fourth OMB request in support of this study and is for data collection for the full national study. The prior OMB requests have covered the reconnaissance or research design phase of the study, pretesting the full national study design, and conducting additional reconnaissance visits to increase the study sample. For the current OMB request, the research team proposes three main types of data collection: (1) Measuring the time that HCV staff spend working on the various activities required to administer the program over a two-month period; (2) collecting information via interviews and document review on overhead costs, other costs related to HCV program administration that cannot be captured by measuring staff time, and “transaction counts” (the number of times an HCV program activity is completed over a specified period of time) in order to translate the staff time spent on that activity into a time per activity or cost per activity; and (3) a telephone survey of 130 small HCV programs (fewer than 250 vouchers) to understand how smaller agencies administer the HCV program effectively without the benefit of economies of scale that apply to larger programs. The results of the data collection will be used to generate estimates of total cost per activity per PHA and to build a multivariate regression model that tests how much the variation across PHAs in administrative costs can be explained by PHA, participant, and market characteristics. The results of the model will be used to inform the development of an administrative fee formula that is based on the average cost per activity and takes into account the most important factors that cause some HCV programs to be more costly to administer than others.
The Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, as amended.
Fish and Wildlife Service, Interior.
Notice of public meeting; request for public comment.
We, the U.S. Fish and Wildlife Service (Service), announce a public meeting of the U.S. Coral Reef Task Force (USCRTF) and a request for written comments. This meeting, the 28th biannual meeting of the USCRTF, provides a forum for coordinated planning and action among Federal agencies, State and territorial governments, and nongovernmental partners.
Please be aware of the following dates:
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Lee Auditorium, Pago Pago, American Samoa (phone number is 684–633–5155).
Liza Johnson, DOI USCRTF Steering Committee Point of Contact, U.S. Department of the Interior, MS–3530–MIB, 1849 C Street NW., Washington, DC 20240 (phone: 202–208–1378; fax: 202–208–4867; email:
Established by Presidential Executive Order 13089 in 1998, the USCRTF has a mission to lead, coordinate, and strengthen U.S. government actions to better preserve and protect coral reef ecosystems. The Departments of Commerce and the Interior co-chair the USCRTF, whose members include leaders of 12 Federal agencies, 2 U.S. States and 5 U.S. territories, and 3 freely associated States. For more information about the meetings, draft agendas, and how to register, go to
Comments may address the meeting, the role of the USCRTF, or general coral reef conservation issues.
Before including your address, phone number, email 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.
Bureau of Indian Affairs, Interior.
Notice of final agency determination to take land into trust.
The Assistant Secretary—Indian Affairs made a final agency determination to acquire approximately 8.43 acres of land into trust for the 19 pueblos on January 31, 2012.
Sandra Ray, Realty Specialist, Southwest Regional Office, Bureau of Indian Affairs, 1001 Indian School Road NW., Albuquerque, NM 87104–2303; Telephone (505) 563–3337,
This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 Departmental Manual 8.1.
This acquisition is mandatory under 25 U.S.C. 2216(c); Title I—Albuquerque Indian School Act, Public Law 110–453, dated December 2, 2008; and 25 CFR part 151. The land being transferred is two tracts of Federal land, the combined acreage of which is approximately 8.43 acres that were historically part of the Albuquerque Indian School. These two tracts were officially surveyed in 2011 by the U.S. Bureau of Land Management for the Secretary of the Interior, in accordance with Sec. 103 (c) of Public Law 110–453, and are more particularly described as follows:
(1) EASTERN PART TRACT B —That certain tract of land, officially designated TRACT B EAST on the hereinafter described 2011 U.S. Bureau of Land Management survey plat, situated in the Town of Albuquerque Grant, in the City of Albuquerque, within Section 8, Township 10 North,
(2) NORTHERN PART OF TRACT D—That certain tract of land, officially designated TRACT D NORTH on the hereinafter described 2011 U.S. Bureau of Land Management survey plat, situated in the Town of Albuquerque Grant, in the City of Albuquerque, within Sections 7 and 8, Township 10 North, Range 3 East, New Mexico Principal Meridian, Bernalillo County, New Mexico, containing 6.21 acres, more or less.
The above-described TRACT B EAST and TRACT D NORTH were officially surveyed in 2011 by the U.S. Department of the Interior, Bureau of Land Management, Cadastral Survey, and are the same as shown and designated on the official plat of survey entitled “The Town of Albuquerque Grant, Bernalillo County, within Township 10 North, Range 3 East, of the New Mexico Principal Meridian, New Mexico, Metes and Bounds Surveys,” and described in the official field note record, both approved August 12, 2011, and filed in the records of the Bureau of Land Management, New Mexico State Office, in Santa Fe, New Mexico.
The land taken into trust shall remain subject to any private or municipal encumbrances, rights-of-way, restrictions, easements of record, or utility service agreements in effect on the date of enactment of the Act.
The TOTAL AREA, as derived from the above-described survey plat, containing 8.43 acres, more or less. (For copies of the above-described Bureau of Land Management survey plat and field notes, please contact Paul J. Hickey, BLM Indian Lands Surveyor, BIA Southwest Regional Office, by phone at (505) 563–3338, or by email at
The determination of the Assistant Secretary—Indian Affairs that this is a mandatory acquisition is final for the Department and can only be appealed to the Federal District Court. This notice will serve as the final agency determination to take the land into trust and that the Secretary shall acquire title to the land no sooner than 30 days following publication of this document in the
Bureau of Indian Affairs, Interior.
Notice of final agency determination to take land into trust.
The Assistant Secretary—Indian Affairs, made a final agency determination to acquire approximately 7,393.75 acres of land into trust for the Pueblo of Santo Domingo on January 27, 2012.
Douglas Hickman, Realty Officer, Southern Pueblos Agency, Bureau of Indian Affairs, 1001 Indian School Road NW., Albuquerque, NM 87104–2303; Telephone (505) 563–3680,
This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 Departmental Manual 8.1.
This acquisition is mandatory under 25 U.S.C. 2216(c); the Santo Domingo Pueblo Claims Settlement Act of 2000, Public Law 106–425, 114 Stat. 1890, 25 U.S.C. 1777 through 1777e, dated November 1, 2000; and Section 7 of the Settlement Agreement between the United States and the Pueblo of Santo Domingo dated May 26, 2000. The approximately 7,393.75 acres are located in Sandoval and Santa Fe Counties, New Mexico, and are described as follows:
A parcel of land described as follows: beginning at a monument marking the position for the 3 Mile corner on the north boundary of the Santo Domingo Pueblo Grant (as originally established by Wendell V. Hall in 1907), on the south boundary of the Santa Cruz Spring Tract, thence S. 87°11′ E., along the south boundary of the Santa Cruz Spring Tract, identical with the north boundary of the Santo Domingo Pueblo Grant (Hall Survey), a distance of 2642.5 feet to the monumented 3
A portion of the La Majada Grant lying south of the following described line (said portion being bounded on the south by the north boundary of the Mesita de Juana Lopez Grant as depicted on the official plat of confirmation, as surveyed by Rollin J. Reeves, U.S. Deputy Surveyor, in October, 1876, approved by the Surveyor General for New Mexico on February 28, 1877, and confirmed by Congress by the Act of January 28, 1879 (20 Stat. 592)):
Beginning at a point on the east boundary of the La Majada Grant, whence a brass cap marked, “T 15 N R 7 E, LM, MJL, PI, S1, 1917”, bears S. 00°47′26″ W., along the East boundary of the La Majada Grant, a distance of 1440.00 feet, thence N. 77°00′02″ W., a distance of 59.54 feet to a point, thence S. 66°57′18″ W., a distance of 736.73 feet to a point, thence N. 62°26′19″ W., a distance of 640.22 feet to a point, thence S. 84°35′42″ W., a distance of 1142.33 feet to a point, thence N. 43°43′11″ W., a distance of 361.18 feet to a point, thence S. 64°27′27″ W., a distance of 864.34 feet to a point, thence S. 68°15′58″ W., a distance of 1166.64 feet to a point, thence S. 76°34′58″ W., a distance of 3404.79 feet to a point, thence N. 79°28′27″ W., a distance of 1445.63 feet to a point, thence S. 56°36′38″ W., a distance of 724.88 feet to a point of closing on the north boundary of the Mesita de Juana Lopez Grant, whence the “Beginning Corner” for the Mesita de Juana Lopez Grant bears N. 59°15′50″ W., a distance of 2300.10 feet, and whence “AP–1” of the Mesita de Juana Lopez Grant bears S. 59°15′50″ E., a distance of 1756.98 feet. All containing 297.3 acres, more or less.
Containing 3,931.68 acres, more or less;
Containing 1,395.37 acres, more or less.
All of Tract C containing 5,327.05 acres, more or less.
The determination of the Assistant Secretary—Indian Affairs that this is a mandatory acquisition is final for the Department and can only be appealed to the Federal District Court. This notice will also serve as the final agency determination to take the land into trust and that the Secretary shall acquire title to the land no sooner than 30 days following publication of this document in the
Bureau of Indian Affairs, Interior.
Notice of final agency determination to take land into trust.
The Assistant Secretary—Indian Affairs, made a final agency determination to acquire approximately 1,219.24 acres of land into trust for the Pueblo of Santa Clara on January 27, 2012.
Sandra Ray, Realty Specialist, Southwest Regional Office, Bureau of Indian Affairs, 1001 Indian School Road NW., Albuquerque, NM 87104–2303; Telephone (505) 563–3337,
This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 Departmental Manual 8.1.
This acquisition is mandatory under 25 U.S.C. 2216(c); the Pueblo de San Ildefonso Claims Settlement Act of 2005 (Pub. L. 109–286) dated September 27, 2006. The acres are described as follows:
Those certain lands situated in Rio Arriba County, New Mexico, and being more particularly described as follows:
All of the above-described land containing 120.00 acres, more or less, as derived from the official General Land Office plat of survey for T.20 N., R. 7 E., N.M.P.M., New Mexico, approved June 13, 1883, and filed in the records of the U.S. Department of the Interior, Bureau of Land Management, New Mexico State Office, in Santa Fe, New Mexico.
All of the above-described land containing 1,099.24 acres, more or less, as derived from the official Bureau of Land Management plat of survey for T. 20 N., R. 7 E., N.M.P.M., New Mexico, approved November 26, 2008, and filed in the records of the U.S. Department of the Interior, Bureau of Land Management, New Mexico State Office, in Santa Fe, New Mexico.
The Total Area, as derived from the above-described survey plats, containing 1,219.24 acres, more or less.
The determination of the Assistant Secretary—Indian Affairs that this is a mandatory acquisition is final for the Department and can only be appealed to the Federal District Court. This notice will serve as the final agency determination to take the land into trust and that the Secretary shall acquire title to the land no sooner than 30 days following publication of this document in the
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the Amendment to the Poarch Band of Creek Indians—Alcohol Beverage Control Ordinance. This Ordinance regulates and controls the possession, sale and consumption of liquor within the Poarch Band of Creek Indians' Indian country. This Ordinance allows for the possession and sale of alcoholic beverages within the jurisdiction of the Poarch Band of Creek Indians, will increase the ability of the tribal government to control the liquor distribution and possession of liquor within their Indian country, and at the same time, will provide an important source of revenue, the strengthening of the tribal government and the delivery of tribal services.
Chanda Joseph, Tribal Relations Specialist, Eastern Regional Office, Bureau of Indian Affairs, 545 Marriott Drive, Suite 700, Nashville, Tennessee 37214, Telephone: (615) 564–6750; Fax: (615) 564–6701; or, De Springer, Office of Indian Services, Bureau of Indian Affairs, 1849 C Street NW., MS–4513–MIB, Washington, DC 20240; Telephone: (202) 513–7626.
Pursuant to the Act of August 15, 1953, Public Law 83–277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Tribal Council of the Poarch Band of Creek Indians duly adopted Tribal Council Ordinance TCO 2012–001 on January 19, 2012.
The Poarch Band of Creek Indians—Alcoholic Beverage Control Ordinance, as amended, shall read as follows:
This section of Poarch Band of Creek Indians Tribal Code shall be known as the “Alcoholic Beverage Control Ordinance”.
This Ordinance is adopted pursuant to the sovereign authority of the Poarch Band of Creek Indians and Article IV, Section 4(k), (m), (n) of the Constitution of the Poarch Band of Creek Indians and the Act of August 15, 1953, Public Law 83–277, 18 U.S.C. 1161. The introduction, possession, transportation, and sale of alcoholic beverages shall be lawful within the Indian country under the jurisdiction of the Tribe, provided that such introduction, possession, transportation, and sale are in conformity with the provisions of this Ordinance and the laws of the State of Alabama pursuant to 18 U.S.C. 1161.
As used in this Ordinance, the following words shall have the following meanings unless the context clearly requires otherwise:
(a) “Alcoholic Beverages” means any alcoholic, spirituous, vinous, fermented or other alcoholic beverage, or combination of liquors and mixed liquor, a part of which is spirituous, vinous, fermented or otherwise alcoholic, and all drinks or drinkable liquids, preparations or mixtures intended for beverage purposes, which contain one-half of one percent or more of alcohol by volume, and shall include liquor, Beer, and wine, both fortified and table wine.
(b) “Applicant” means any individual, entity, or enterprise seeking to sell or serve Alcoholic Beverages within Indian Country under the jurisdiction of the Tribe by submitting an application for a license or permit.
(c) “Indian Country” means land under the jurisdiction of an Indian tribe as defined by 18 U.S.C. § 1151.
(d) “Minor” means any person under age twenty-one (21) years of age.
(e) “Tribe” or “Tribal” means the Poarch Band of Creek Indians.
(f) “Tribal Council” means the duly elected governing body of the Poarch Band of Creek Indians.
(g) “Ordinance” means Poarch Band of Creek Indians Alcoholic Beverage Control Ordinance.
Nothing contained in this Ordinance is intended to nor does in any way limit, alter, restrict, or waive the Tribe's sovereign immunity.
If any clause, sentence, paragraph, section, or part of this Ordinance shall, for any reason be adjudicated by any court of competent jurisdiction, to be invalid or unconstitutional, such judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section, or part thereof directly involved in the controversy in which the judgment shall have been rendered.
Upon the effective date of this Ordinance, any prior, inconsistent resolutions, policies, ordinances and/or procedures of the tribal government and tribal enterprises are hereby superseded and/or amended to comply with this Ordinance.
This Ordinance may be amended in accordance with the Tribal Constitution. All amendments shall be subject to the final approval of the Secretary of the Interior before they become effective. This Ordinance shall be deemed effective January 1, 2012 or upon approval by the Secretary of the Interior or whichever is later.
The Tribal Council authorizes the Public Safety Department to oversee and enforce this Ordinance.
The Public Safety Department shall have the authority and responsibility to:
(a) Administer and enforce all provisions of this Ordinance;
(b) Deny issue, or restrict alcoholic beverage control renewal licenses and permits to any Applicant that operates within the Indian Country under the jurisdiction of the Tribe;
(c) Revoke or suspend alcoholic beverage control licenses or permits of any licensee or permittee that operates within the Indian Country under the jurisdiction of the Tribe after notice and an opportunity to be heard has been provided to licensee or permittee;
(d) Maintain a current list of licensees and permittees for purposes of ensuring compliance with tribal and state license laws;
(e) Monitor licensee's compliance with this Ordinance and any conditions placed on any license or permit issued pursuant to the Ordinance;
(f) Ensure licensees are conducting employee TIPS training for new hires and as a part of ongoing employment;
(g) Establish forms and internal policies and procedures necessary to carry out the purposes of this Ordinance;
(h) Promulgate and enforce written rules and regulations not inconsistent with this Ordinance;
(i) Investigate any reports of a violation of this Ordinance and, if applicable, coordinate investigations and prosecutions with other law enforcement agencies;
(j) Impose civil sanctions and penalties in accordance with this Ordinance; and
(k) Submit any reports requested by Tribal Council regarding any aspect of the administration or enforcement of this Ordinance.
(a) Rules and regulations that the Public Safety Department deems necessary to administer its responsibilities under this Ordinance shall be promulgated only upon thirty (30) days' notice of the proposed rulemaking action, which shall be provided to the Tribal Council and posted at the tribal offices.
(b) The notice shall specify the purpose of the proposed regulation, the draft language of the proposed regulation, the factors the Public Safety Department has considered in its determination to enact the proposed regulation, and the Public Safety Office's address at which the Public Safety Department shall receive comments.
(c) During the notice period, the Public Safety Department shall receive comments regarding the proposed regulation at the designated mailing address.
(d) The comments received by the Public Safety Department shall be considered by the Public Safety Department at a public meeting, and the Public Safety Department shall make a final determination regarding the need for the proposed regulation on the basis of all the information available. All final determinations of the Public Safety Department shall be recorded in writing.
(e) Any final rules and regulations shall be provided to the Tribal Council. No later than thirty (30) days after the final determination of the Public Safety Department, the Tribal Council may veto the final rules or regulations or a portion thereof. A veto requires a
No person shall engage in the sale of any alcoholic beverage within the Indian Country under the jurisdiction of the Tribe, unless duly licensed or permitted to do so by the State of Alabama and the Tribe in accordance with the terms of the Ordinance. A separate license or permit shall be required for each location where Alcoholic Beverages are to be sold or served.
(a) Notwithstanding any other provision of this Ordinance, a tribal alcoholic beverage license or permit is a mere permit for a fixed duration of time. A tribal alcoholic beverage license or permit is a revocable privilege and shall not be deemed a property right or vested right of any kind nor shall the granting of a tribal alcoholic beverage license or permit give rise to a presumption or legal entitlement to the granting of such license or permit for a subsequent time period.
(b) Applicants and licensees shall have a continuing duty to provide any materials, assistance or other information required by the Public Safety Department and to fully cooperate in any investigation conducted by or on behalf of the Public Safety Department. If any information provided on the application changes or becomes inaccurate in any way, the Applicant or licensee shall promptly notify the Commission of such changes or inaccuracies.
(c) Acceptance of a license by the licensee constitutes an agreement on the part of the licensee to be bound by the provisions of this Ordinance, applicable laws, and applicable rules and regulations as they are now, or as they may hereafter be amended or restated, and to cooperate fully with the Public Safety Department.
(d) It is the responsibility of the licensee to remain informed of the contents of this Ordinance and all other applicable laws, rules, regulations, amendments, provisions, and conditions, and ignorance thereof will not excuse violations.
No tribal license or permit issued under this Ordinance shall be assigned or transferred without the written approval of the delegated authority as expressed by formal resolution and upon satisfaction of the conditions required for a license or permit as set out in § 40–3–4 of this Ordinance.
Any Tribal license or permit issued under this Ordinance shall be subject to such reasonable conditions as the Public Safety Department shall determine, including, but not limited to the following:
(a) The licensee or permittee shall at all times maintain an orderly, clean, and neat establishment, both inside and outside the licensed premises.
(b) The licensee or permittee shall be subject to patrol by the Public Safety Department, and such other law enforcement officials as may be authorized under Tribal or federal law.
(c) The licensee or permittee shall be open to inspection by duly authorized Tribal officials at all times during the regular business hours.
(d) The licensee or permittee shall not sell Alcoholic Beverages within 200 feet of a polling place on tribal election days and including on special days of observance as designated by the Tribal Council.
(e) The licensee or permittee shall perform all acts and transactions under authority of the Tribal alcoholic beverage license or permit in conformity with this Ordinance and the terms of the Tribal license or permit.
(f) The licensee or permittee shall sell Alcoholic Beverages only for the personal use and consumption of the purchaser. Resale of any alcoholic beverage is prohibited.
(g) The licensee or permittee shall not sell, serve, deliver, or give any person under the age of 21 Alcoholic Beverages in the licensed establishment or at a permitted event. A licensee or permittee shall not allow any person under the age of 21 to consume Alcoholic Beverages in the licensed establishment or permitted event. Where there may be a question of a person's right to purchase an Alcoholic Beverage by reason of his or her age, such person shall be required to present any one of the following cards of identification which shows his or her correct age and bears his or her signature and photograph:
(1) A driver's license of any state or identification card issued by any state department of motor vehicles;
(2) United States active duty military ID;
(3) A passport; or
(4) A Poarch Creek tribal identification card or other recognized tribal identification card.
A license shall be for a term of one year. License renewals are required each year.
A permit shall be for a term of no more than three (3) days.
An Applicant shall file an application for an initial alcoholic beverage license with the Public Safety Department. The initial application shall include, but not be limited to, the following information:
(1) The name and address of the Applicant;
(2) The description of the premises in which the Alcoholic Beverages are to be sold;
(3) Certification that the Applicant's establishment is not located closer than 500 feet from any church or school;
(4) Evidence that the Applicant is or will be duly licensed by the State of Alabama;
(5) Agreement by the Applicant to accept and abide by all conditions of the tribal license; and
(6) Agreement by the Applicant to:
(i) Post notice in a prominent, noticeable place on the premises where Alcoholic Beverages are to be sold for at least 30 days prior to consideration by Tribal Council for licensure, and
(ii) Publish notice at least twice in a local newspaper serving the community that may be affected by the license.
The notices shall state the date, time and place when the application shall be considered by the Tribal Council.
(1) If a complete application and all required documentation are received, the Public Safety Department shall schedule a public hearing before the Tribal Council.
(2) The Applicant shall provide notice of the public hearing by:
(i) Posting notice in a prominent, noticeable place on the premises where Alcoholic Beverages are to be sold for at least 30 days prior to consideration by Tribal Council, and
(ii) Publishing notice at least twice in a local newspaper serving the community that may be affected by the license.
The public hearing notice shall state the date, time, and place when the application shall be considered by the Tribal Council.
(3) The Applicant and any person(s) supporting or opposing the application shall have the right to be present and to offer sworn oral or documentary evidence relevant to the application.
After the hearing, the Tribal Council shall determine whether to grant or deny the application, based on whether the Council, in its discretion, determines that granting the license is in the best interests of the Tribe. The decision of the Tribal Council shall be final and not subject to appeal.
Renewals applications shall be submitted each year no later than sixty (60) days prior to the expiration of the current license. The renewal application shall include, but not be limited to, the following information:
(1) Name and address of the Applicant;
(2) Description of the premises in which the Alcoholic Beverages is sold, if there has been any changes since the last license application;
(3) Certification that the Applicant's establishment is not located closer than 500 feet from any church or school;
(4) Evidence that the Applicant is or will be duly licensed by the State of Alabama;
(5) Agreement by the Applicant to accept and abide by all conditions of the Tribal license; and
(6) Documentation of any violations which occurred during the past licensed year and corrective actions in place to remedy the situation.
After review of renewal application, the Public Safety Department shall determine whether to grant or deny the application based on the following:
(1) Whether the Applicant is in current compliance with the requirements and conditions for licensing as set forth in § 40–3–4;
(2) Whether the Public Safety Department in its discretion determines that granting the renewal license is in the best interests of the Tribe; and
(3) The decision of the Public Safety Department may be appealed in accordance with Chapter V herein.
An Applicant seeking to sell or serve Alcoholic Beverages for no more than three (3) days shall file an application
(1) The name and address of the Applicant;
(2) The description of the premises in which the Alcoholic Beverages are to be sold;
(3) Certification that the Applicant's establishment is not located closer than 500 feet from any church or school;
(4) Evidence that the Applicant is or will be duly licensed by the State of Alabama; and
(5) Agreement by the Applicant to accept and abide by all conditions of the Tribal license.
After review of a permit application, the Public Safety Department, in its discretion, shall determine whether it is in the best interests of the Tribe to grant or deny the application. The decision of the Public Safety Department may be appealed in accordance with Chapter V herein.
(a) Any licensee or permittee who violates any of the provisions in this Ordinance or any rules and regulations promulgated under this Ordinance is subject to the imposition of civil penalties for such violation.
(b) To the fullest extent permitted by law, the Tribal Court shall have jurisdiction over any action brought by the Public Safety Department to enforce any and all penalties and/or sanctions provided for within this Ordinance.
(c) Based on the severity of the civil violation, the Public Safety Department shall determine what sanctions and/or penalties are warranted, including, but not limited to, the following:
(1) Suspension, restriction, or revocation of a license or permit;
(2) Issuance of a Notice of Violation and a corrective action plan;
(3) Issuance of a civil fine not to exceed $500 per violation;
(4) Initiation of an action in Tribal Court for appropriate injunctive relief if any alleged violation of the Ordinance or of the terms of any license or permit poses a threat to public health, safety or welfare; and
(5) Any other sanctions and/or penalties the Public Safety Department deems necessary to carry out the purposes of this Ordinance; however, the sanction and/or penalty may not violate any applicable laws.
(d) Any civil penalties issued under this Ordinance are in addition to, and do not supersede or limit any other remedies which may be available to the Tribe, including the filing of any action for injunctive relief in Tribal Court, or the filing of a criminal action in any court of competent jurisdiction.
(a) Any action or decision taken by the Public Safety Department may be appealed by filing a written notice of appeal with the Tribal Chairman no later than fourteen (14) days after the appellant receives the written notice of the Public Safety Department's action or decision. The written notice of appeal shall include:
(1) A copy of the final decision; and
(2) The specific grounds for the appeal.
(b) All hearings shall be conducted by rules and regulations established in accordance with Tribal law.
(c) The appellant shall have the burden of proving by clear and convincing evidence that the Public Safety Department acted arbitrarily, unreasonably, or contrary to tribal law.
(d) The Tribal Council shall have thirty (30) days from the date of the hearing to issue a written decision to the Appellant.
(e) The decision of the Tribal Council shall be final and not subject to further appeal.
Violations of the Alcoholic Beverage Control Ordinance by any person subject to the criminal jurisdiction of the Tribe may be prosecuted under the Poarch Band of Creek Indians Criminal Code (Title 8).
(a)
(a) A person commits the crime of unlawful possession of alcoholic beverages if:
(1) A person possess, sells, trades, transports, manufactures, or distributes any Alcoholic Beverage, except as provided in the Poarch Band of Creek Indians Alcoholic Beverage Control Ordinance; or
(2) A person purchases or buys Alcoholic Beverages from any person or entity does not have a license or permit as required by the Alcoholic Beverage Control Ordinance.
(b) Unlawful possession of alcoholic beverages except as provided in the Poarch Band of Creek Indians Alcoholic Beverage Control Ordinance is a Class B Misdemeanor.
(a) A person commits the crime of furnishing alcoholic beverages to minors if the person:
(1) Sells, delivers, furnishes, or gives away Alcoholic Beverages to any person under the age of 21, or permits any person under the age of 21 to drink, consume, or possess any Alcoholic Beverages; or
(2) Transfers in any manner an identification of age to a minor for the purpose of permitting such minor to obtain any Alcoholic Beverage.
(b) Furnishing alcoholic beverages to minors is a Class C Misdemeanor.
(a) Notwithstanding the provisions of Section 8–7–5, a person commits the crime of possession of alcoholic beverages by minors if the person:
(1) Purchases, acquires, consumes, possesses, or transports any Alcoholic Beverages within the Indian Country under the jurisdiction of the Tribe while under the age of 21; or
(2) Knowingly uses or attempts to use a false, forged, or deceptive driver's license to obtain or attempt to obtain Alcoholic Beverages.
Provided, however, it shall not be unlawful for a person under the age of 21 who is an employee of an off-premises retail licensee to handle, transport, or sell any Alcoholic Beverage if the person is acting within the line and scope of his or her employment. There must be an adult employee of the licensee present at all times a licensed establishment is open for business.
(b) Unlawful possession of alcoholic beverages is a Class C Misdemeanor.
(a) A person commits the crime of fraudulent submissions in connection with a license or permit if the person makes, provides, or swears to any false or fraudulent statement, contention, or documentation in connection with an application for an alcoholic beverage license or permit under the Poarch Band of Creek Indians Alcoholic Beverage Control Ordinance.
(b) Fraudulent submissions in connection with a license or permit shall be considered a Class C Misdemeanor.
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes Title 15, Chapter 4: Liquor Legalization, Regulation and License Code for the Swinomish Indian Tribal Community. The Code regulates and controls the possession, sale and consumption of liquor within the Swinomish Indian Tribal Community's Indian country. This Code allows for the possession and sale of alcoholic beverages within the jurisdiction of the Swinomish Indian Tribal Community, will increase the ability of the tribal government to control the distribution and possession of liquor within their Indian country, and at the same time, will provide an important source of revenue, the strengthening of the tribal government and the delivery of tribal services.
Betty Scissons, Tribal Government Specialist, Northwest Regional Office, Bureau of Indian Affairs, 911 NE. 11th Avenue, Portland, OR 97232, Phone: (503) 231–6723; Fax: (503) 231–6731: or De Springer, Office of Indian Services, Bureau of Indian Affairs, 1849 C Street NW., MS–4513–MIB, Washington, DC 20240; Telephone (202) 513–7626.
Pursuant to the Act of August 15, 1953, Public Law 83–277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Swinomish Indian Tribal Community Senate adopted Ordinance No. 296, enacting Swinomish Tribal Code Title 15, Chapter 4: Liquor Legalization, Regulation and License Code, on August 4, 2011.
The Swinomish Indian Tribal Community Title 15, Chapter 4: Liquor Legalization, Regulation and License Code shall read as follows:
This Chapter shall be referred to as the Liquor Legalization, Regulation and License Code.
This Chapter is enacted pursuant to authority provided by Article VI, Section (1)(h), (k) and (1) of the Constitution. In addition, this Chapter is adopted in accordance with 18 U.C.S.A. § 1161.
For purposes of this Chapter, unless otherwise expressly provided, the following definitions shall apply:
(A) “
(B) “
(1) All land within the limits of the Swinomish Indian Reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent provided that the term “patent” does not include fee-patented lands in non-Indian communities; and
(2) All Indian allotments or other lands held in trust for a Swinomish tribal member or the Tribe, or otherwise subject to a restriction against alienation imposed by the United States, the Indian titles to which have not been extinguished.
(C) “
(D) “
(E) “
(F) “
The introduction, sale or possession of intoxicating beverages shall be lawful within the Indian Country under the jurisdiction of the Tribe, provided that such introduction, sale or possession is in conformity with the laws of the State of Washington and in conformity with this Chapter.
(A) Any person, association, firm, corporation, or partnership, or any individual or group of individuals engaged in the retail sale of intoxicating beverages within the Indian Country under the jurisdiction of the Tribe, regardless of whether the principal place of business is or is not located outside the Reservation, is required to have a Tribal License.
(B) A Tribal License shall run from July 1st of one year through the 30th day of June the following year. The Senate or the Senate's designee shall charge an annual fee in accordance with the attached fee schedule.
(C) Applicants for an initial Tribal License and those seeking to renew a Tribal License shall make application and pay the annual fee to the Senate or its designee by June 30th of each year for the ensuing year, except if an initial application is made between January 1st and July 1st, the license fee shall be cut in half.
(D) If the Senate or its designee denies an application for a Tribal License or denies an application to renew a Tribal License, the fee shall be returned to the applicant.
Before the Senate issues a Tribal License, the applicant shall be investigated as to moral character and as to whether or not such person is acceptable to the members of the Tribe to engage in a retail intoxicating beverage business within the Indian Country under the jurisdiction of the Tribe. The Senate or its designee may, in its discretion, set a time for public hearing and give reasonable notice for the time and place thereof before acting upon an application for a Tribal License.
A Tribal License may be revoked only for cause and upon a hearing, conducted by the Senate or its designee, with notice being mailed by registered mail to the holder of the Tribal License ten (10) days prior to such hearing, except a Tribal License may not be transferred without the approval and consent of the Senate. The grounds for revocation of a Tribal License are:
(A) The failure to pay the Tribal License fee each year;
(B) The violation of tribal ordinances duly passed or the laws of the State of Washington;
(E) The acquisition of a Tribal License by fraud, misrepresentation, concealment, or through inadvertence or mistake;
(F) The denial of the Senate or its authorized representatives, including authorized law enforcement agencies, access to any place where a licensed activity is conducted, or the failure to promptly produce for inspection or audit any book, record, document, or item required by law or Senate rule;
(G) The denial, suspension, or repeal of any liquor-related license, permit, or certification by any tribal, state or federal regulatory agency; or
(H) Transfer or attempted transfer of a Tribal License without the approval and consent of the Senate.
(A) No Tribal License may be transferred without the approval of the Senate or its designee.
(B) Persons wishing to transfer a Tribal License must file an application for a transfer with the Senate or the Senate's designee. The application for a transfer shall include:
(1) The name(s) of the persons, group, or association to whom the transfer is to be made;
(2) Any other information required of initial applicants in accordance with Section 15–04.050; and
(3) A statement, signed by the proposed transferee, designating the location of the premises where the Tribal License is to be used and operated.
(C) Before any transfer of a Tribal License is approved, the Tribe shall investigate the moral character of the transferee and determine whether the proposed transferee is acceptable to the members of the Tribe to engage in said retail intoxicating beverage business within the Indian Country under the jurisdiction of the Tribe. The Senate may, in its discretion, set a time for public hearing and give reasonable notice of the time and place thereof before acting upon an application for transfer.
(D) The approval of a transfer of a Tribal License shall be given at a duly called, noticed and convened session of the Senate.
It shall be the responsibility of Tribal License holders to notify the Liquor Control Board of Washington State that an application has been made for a transfer of a Tribal License. The requisite Tribal License and state permit are required before any person, association, firm, corporation, or partnership, or any individual or group of individuals may engage in the retail sale of intoxicating beverages within the Indian Country under the jurisdiction of the Tribe.
The following fees shall be assessed for license under this Chapter:
The Senate may promulgate regulations consistent with this Chapter and applicable state and federal law that alter the amount or categories of fees to be paid and that further describe the process to be followed in license application, issuance, renewal, revocation or suspension, or transfer.
Any tribal laws, resolutions or ordinances that prohibited the sale, introduction or possession of intoxicating beverages are repealed. Ordinance No. 27 is repealed. The Swinomish Liquor Regulations promulgated August 4, 2011, are repealed.
This Chapter shall become effective upon approval by the Secretary of the Interior and publication of the ordinance in the
National Park Service (NPS), Interior.
Notice of an extension of a currently approved information collection (1024–0259); request for comments.
We (National Park Service) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. This collection 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 (Trail). To comply with the Paperwork Reduction Act of 1995 and as a part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other federal agencies to comment on this IC. The PRA (44 U.S.C. 3501,
Please submit your comment on or before September 4, 2012.
Please send your comments to the IC to Phadrea Ponds, Information Collections Coordinator, National Park Service, 1201 Oakridge Drive, Fort Collins, CO 80525 (mail); or
Angela Walters, Appalachian National Scenic Trail (ANST), NPS, P.O. Box 50, Harpers Ferry, WV 25425; or via phone at (304) 535–6278; or via fax at (304) 535–6270, or via email at
The Appalachian National Scenic Trail (ANST) is an unusual unit of the national park system, managed through a decentralized volunteer-based cooperative management system involving: eight national forests, six other national park units, agencies in fourteen states, the Appalachian Trail Conservancy, and citizen volunteers from 30 affiliated trail club organizations. The Appalachian Trail Management Partner Survey (ATMPS) will be used to measure performance through a partner satisfaction survey. The purpose of the ATMPS is to track the satisfaction of partner organizations receiving support from the Appalachian Trail Park Office (ATPO). Progress is measured by evaluating the quality of support provided by ATPO. Data from the proposed survey is needed to assess performance regarding NPS GPRA goal IIb0. HPS performance on all goals measured in this study will contribute to DOI Department-wide performance reports.
Please note that the comments submitted in response to this notice are a matter of public record. Before including your address, phone number, email 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 it will be done.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review in part the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 7) finding respondents T-Tech Tattoo Device Inc. of Ontario, Canada (“T-Tech”); Yiwu Beyond Tattoo Equipments Co., Ltd. of Yiwu
Megan M. Valentine, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708–2301. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on March 6, 2012, based on a complaint filed by MT.Derm GmbH of Berlin, Germany and Nouveau Cosmetique USA Inc. of Orlando, Florida (collectively “Complainants”) alleging violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337), as amended, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain ink application devices and components thereof and methods of using the same by reason of infringement of certain claims of U.S. Patent Nos. 6,345,553 and 6,505,530. 77 FR 13351 (Mar. 6, 2012). The Commission's Notice of Investigation (“NOI”) named T-Tech, Yiwu, and Guangzhou as respondents. The Complaint was served on March 1, 2012. The Office of Unfair Import Investigations was named as a party.
On April 16, 2012, Complainants filed a motion seeking a determination that respondents T-Tech, Yiwu, and Guangzhou be found in default based on their failure to respond to the Complaint and Notice of Investigation. On April 17, 2012, the Commission investigative attorney (“IA”) filed a response in support of the motion. On May 1, 2012, the ALJ issued Order No. 5, ordering the respondents to show cause by close of business on May 16, 2012, why they should not be found in default. No responses were received.
On May 31, 2012, the ALJ issued the subject ID, granting the motion for default pursuant to section 210.16(a)(1) of the Commission's Rules of Practice and Procedure (19 CFR 210.16(a)(1)). On June 6, 2012, T-Tech submitted correspondence to the Commission stating that it had not received any prior communication from the Commission and arguing that the ID finding it in default should be reviewed. On June 7, 2012, the IA filed a Request for Extension of Time for Filing a Petition for Review of Order No. 7. The Chairman granted the motion on June 8, 2012. On June 13, 2012, the IA filed a petition for review of Order No. 7 as to the finding of default against T-Tech. In its petition, the IA notes that the FedEx shipping log indicates that the shipment containing the Complaint and NOI was incorrectly addressed and that it was redirected to another address, but was not received. The IA further notes that the FedEx shipping log indicates that on March 14, 2012, the shipment was intended to be returned to the Commission as undelivered, but that it was not returned, nor did FedEx notify the Commission of the delivery failure. On June 19, 2012, Complainants filed a response to the IA's petition.
Having examined the record of this investigation, including the subject ID, T-Tech's correspondence, the petition for review, and the response thereto, the Commission has determined to review the subject ID in part, and, on review, to reverse the finding of default against T-Tech.
The Commission has determined not to review the subject ID findings that Yiwu and Guangzhou are in default. Pursuant to section 337(g)(1) (19 U.S.C. 1337(g)(1)) and section 210.16(c) of the Commission's Rules of Practice and Procedure (19 CFR 210.16(c)), the Commission presumes the facts alleged in the complaint to be true with respect to Yiwu and Guangzhou.
In connection with the final disposition of this investigation as to Yiwu and Guangzhou, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders that could result in the respondent(s) being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background, see
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) The public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42–46 and 210.50 of the Commission's Rules of Practice and Procedure (19 CFR 210.42–46 and 210.50).
By order of the Commission.
On the basis of the record
The Commission instituted these reviews on November 1, 2011 (76 FR 67473) and determined on February 6, 2012 that it would conduct expedited reviews (77 FR 10773, February 23, 2012). On March 21, 2012, the Commission revised its schedule in these expedited reviews (77 FR 18266, March 27, 2012).
The Commission transmitted its determinations in these reviews to the Secretary of Commerce on June 28, 2012. The views of the Commission are contained in USITC Publication 4337 (June 2012), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on May 31, 2012, under section 337 of the Tariff Act of 1930, as amended, on behalf of Industrial Technology Research Institute of Taiwan and ITRI International of San Jose, California. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain integrated circuit packages provided with multiple heat-conducting paths and products containing same by reason of infringement of certain claims of U.S. Patent No. 5,710,459 (“the `459 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainants request that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist order.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205–2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205–2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2012).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain integrated circuit packages provided with multiple heat-conducting paths and products containing same that infringe one or more of claims 1 and 2 of the `459 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)–(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By Order of the Commission.
On the basis of the record
The Commission instituted these reviews on July 1, 2011 (76 FR 38691) and determined on October 4, 2011 that it would conduct full reviews (76 FR 65748, October 24, 2011). Notice of the scheduling of the Commission's reviews and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these reviews to the Secretary of Commerce on June 28, 2012. The views of the Commission are contained in USITC Publication 4333 (June 2012), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 11) of the presiding administrative law judge (“ALJ”) terminating the investigation based on settlement agreements.
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–3106. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on November 8, 2011, based on a complaint filed by Westinghouse Solar, Inc. and Andalay Solar, Inc., both of Campbell, California, alleging a violation of section 337 in the importation, sale for importation, and sale within the United States after importation of certain integrated solar power systems and components thereof by reason of infringement of certain claims of U.S. Patent Nos. 7,406,800 and 7,987,641. 76 FR 69284 (Nov. 8, 2011). The respondents are Zep Solar, Inc. of
On May 25, 2012, all of the private parties filed a joint motion to terminate the investigation based on confidential settlement agreements under Commission rules 210.21(a)(2) and (b). The Commission investigative attorney supported the motion.
On June 13, 2012, the presiding ALJ issued an ID (Order No. 11) granting the joint motion. No party petitioned for review of the ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in section 210.42(h) of the Commission's Rules of Practice and Procedure, 19 CFR 210.42(h).
By order of the Commission.
Pursuant to 28 CFR 50.7, notice is hereby given that on June 28, 2012, a proposed Consent Decree in
In this civil enforcement action under the federal Clean Air Act (“Act”), the United States alleges that Dairyland—an electric utility—failed to comply with certain requirements of the Act intended to protect air quality. The complaint alleges that Dairyland violated the Prevention of Significant Deterioration (“PSD”) and Title V provisions of the Act, 42 U.S.C. 7401–7671
The proposed Decree lodged with the Court requires installation and operation of certain pollution control devices at the Alma/J.P. Madgett and Genoa plants, and the permanent cessation of operations of certain units at the Alma/J.P. Madgett plant. The settlement will reduce emissions of sulfur dioxide (“SO
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 emailed to
During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
Drug Enforcement Administration (DEA), Department of Justice.
Notice with request for comments.
This notice proposes to adjust the 2012 aggregate production quotas for several controlled substances in schedules I and II of the Controlled Substances Act (CSA).
Electronic comments must be submitted and written comments must be postmarked on or before August 6, 2012. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after midnight Eastern Time on the last day of the comment period.
To ensure proper handling of comments, please reference “Docket No. DEA–363” on all electronic and written correspondence. DEA encourages all comments be submitted electronically through
John W. Partridge, Chief, Liaison and Policy Section, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, VA 22152, Telephone: (202) 307–4654.
Please note that all comments received are considered part of the public record and made available for public inspection online at
If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all the personal identifying information you do not want posted online or made available in the public docket in the first paragraph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket.
Personal identifying information and confidential business information identified and located as set forth above will be redacted, and the comment, in redacted form, will be posted online and placed in the DEA's public docket file. Please note that the Freedom of Information Act applies to all comments received. If you wish to inspect the agency's public docket file in person by appointment, please see the
Section 306 of the CSA (21 U.S.C. 826) requires that the Attorney General establish aggregate production quotas for each basic class of controlled substance listed in schedules I and II. This responsibility has been delegated to the Administrator of the DEA by 28 CFR 0.100. The Administrator, in turn, has redelegated this function to the Deputy Administrator, pursuant to 28 CFR 0.104. The 2012 established aggregate production quotas for controlled substances in schedules I and II were published in the
DEA now proposes to adjust the established 2012 aggregate production quotas for some schedule I and II controlled substances. In proposing the adjustment, DEA has taken into account the criteria that DEA is required to consider in accordance with 21 CFR 1303.13. DEA proposes the adjustment of the aggregate production quotas for basic classes of schedule I and II controlled substances by considering (1) Changes in demand for the class, changes in the national rate of net disposal for the class, and changes in the rate of net disposal by the registrants holding individual manufacturing quotas for the class; (2) whether any increased demand or changes in the national and/or individual rates of net disposal are temporary, short term, or long term; (3) whether any increased demand can be met through existing inventories, increased individual manufacturing quotas, or increased importation without increasing the aggregate production quota; (4) whether any decreased demand will result in excessive inventory accumulation by all persons registered to handle the class; and (5) other factors affecting the medical, scientific, research, and industrial needs of the United States and lawful export requirements, as the Administrator finds relevant.
In determining whether to propose adjustments to the 2012 aggregate production quotas, DEA considered updated information obtained from 2011 year-end inventories, 2011 disposition data submitted by quota applicants, estimates of the medical needs of the United States, product development, and other information made available to DEA after the initial aggregate production quotas had been established. The Deputy Administrator, therefore, proposes to adjust the 2012 aggregate production quotas for some schedule I and II controlled substances, expressed in grams of anhydrous acid or base, as follows:
Aggregate production quotas for all other schedule I and II controlled substances included in 21 CFR 1308.11 and 1308.12 remain at zero. Pursuant to 21 CFR part 1303, the Deputy Administrator may adjust the 2012 aggregate production quotas and individual manufacturing quotas allocated for the year.
Pursuant to 21 CFR 1303.11 and 1303.13, any interested person may submit written comments on or objections to these proposed determinations. Based on comments received in response to this Notice, the Deputy Administrator may hold a public hearing on one or more issues raised. In the event the Deputy Administrator decides in his sole discretion to hold such a hearing, the Deputy Administrator will publish a notice of any such hearing in the
Pursuant to Title 21 Code of Federal Regulations 1301.34(a), this is notice that on May 9, 2012, Myoderm, 48 East Main Street, Norristown, Pennsylvania 19401, made application to the Drug Enforcement Administration (DEA) for registration as an importer of the following basic classes of controlled substances:
The company plans to import the listed controlled substances in finished dosage form for clinical trials, and research.
The import of the above listed basic classes of controlled substances would be granted only for analytical testing and clinical trials. This authorization does not extend to the import of a finished FDA approved or non-approved dosage form for commercial distribution in the United States.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic classes of controlled substances listed in schedule I or II, which fall under the authority of section 1002(a)(2)(B) of the Act 21 U.S.C. 952(a)(2)(B) may, in the circumstances set forth in 21 U.S.C. 958(i), file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43, and in such form as prescribed by 21 CFR 1316.47.
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than August 6, 2012.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e), and (f). As noted in a previous notice published in the
National Institute of Corrections, U.S. Department of Justice.
Solicitation for a Cooperative Agreement.
The National Institute of Corrections' (NIC) Academy Division is soliciting proposals from organizations, groups, or individuals to enter into a cooperative agreement for the review, revision, and/or development of competency-based, blended modality training curricula with the aim of providing corrections agencies and professionals with the knowledge, skills, and abilities needed to train and develop their staff.
Application must be received by 4 p.m. (EDT) on Friday, July 20, 2012.
Mailed applications must be sent to: Director, National Institute of Corrections, 320 First Street NW., Room 5002, Washington, DC 20534. Applicants are encouraged to use Federal Express, UPS, or similar service to ensure delivery by the due date.
Hand delivered applications should be brought to 500 First Street NW., Washington, DC 20534. At the front desk, dial 7–3106, extension 0 for pickup.
Faxed applications will not be accepted. Electronic applications can be submitted via
All technical or programmatic questions concerning this announcement should be directed to Michael Guevara, Correctional Program Specialist, National Institute of Corrections. Mr. Guevara can be reached by calling 800–995–6429, ext. 6617, or by email at
All curricula will follow the Instructional Theory into Practice (ITIP) model and will incorporate blended learning strategies. A copy of the “ITIP Toolkit,” which may be useful in helping awardees develop acceptable curricula, is available on the NIC Web site at
Three important factors have caused NIC to reexamine its trainer development series. The first factor is the effect of ongoing budget constraints on agencies and departments throughout the country. Staff development divisions have been hit particularly hard by budget cuts, and administrators are faced with the difficult task of finding personnel qualified to train their staff. Second, a wide variety of technologies have emerged in the last decade (and new ones debut at an astounding rate) that can enhance learning experiences and make training both more effective and more efficient. Third, research on adult learning and performance continues to grow, mandating that lesson plans be examined to ensure that the instructional design itself (as well as the subject matter) is evidence-based.
Among other factors, the cooperative agreement will be awarded with consideration for a proposal that demonstrates an organization, group, or individual with knowledge, experience, and expertise in the following: Curriculum design and development; Adult learning theory; Current research in the areas of learning and performance; Applying the ITIP (or comparable) model; Designing and delivering effective blended learning curricula; Training for trainers design and delivery; Managing projects and delivering products on time and within budget.
All final documents and other media submitted under this project may be posted on the NIC Web site and must meet the federal government's requirement for accessibility (e.g., 508 PDFs or HTML files). The awardee must provide descriptive text interpreting all graphics, photos, graphs, and/or multimedia that will be included with or distributed alongside the materials and must provide transcripts for all applicable audio/visual works.
Applications may be submitted in hard copy, or electronically via
Is there demonstrated knowledge of adult learning theory? Is there a demonstrated knowledge of the ITIP model of curriculum development? Does the applicant demonstrate knowledge, skill, and experience in designing and developing curricula? Does the applicant demonstrate knowledge, skill, and experience in designing and developing training for trainers? Is there demonstrated knowledge of how to effectively use blended learning techniques? Does the proposal clearly lay out a plan for incorporating blended learning strategies? Are there any innovative approaches, techniques, or design aspects proposed that will enhance the project?
Do the skills, knowledge, and expertise of the organization and the proposed project staff demonstrate a high level of competency to complete the tasks? Does the applicant/organization have the necessary experience and organizational capacity to meet all goals of the project? Are the proposed project management and staffing plans realistic and sufficient to complete the project within the specified time frame?
Does the applicant identify specific and reasonable objectives, milestones, and measures to track progress? Are major tasks and strategies that will be used to achieve objectives and milestones clearly identified? Is a clear and reasonable structure for the allocation of all personnel, consultants, and resources laid out?
Is there adequate cost narrative to support the proposed budget? Does the budget seem realistic, and does the cost seem reasonable? Does the proposal seem to provide good value relative to the anticipated results?
NIC will NOT award a cooperative agreement to an applicant who does not have a Dun and Bradstreet Database Universal Number (DUNS) and is not registered in the Central Contractor Registry (CCR).
A DUNS number can be received at no cost by calling the dedicated toll-free DUNS number request line at 1–800–333–0505 (if you are a sole proprietor, dial 1–866–705–5711 and select option 1).
Registration in the CCR can be done online at the CCR Web site:
Occupational Safety and Health Administration (OSHA), Labor.
Request for nominations to serve on the Federal Advisory Council on Occupational Safety and Health (FACOSH).
The Assistant Secretary of Labor for Occupational Safety and Health invites interested individuals to submit nominations for membership on FACOSH.
Nominations for FACOSH must be submitted (postmarked, sent, transmitted, or received) by September 4, 2012.
You may submit nominations and supporting materials, which you must identify by the Docket Number for this
The Assistant Secretary of OSHA invites interested individuals to submit nominations for membership on FACOSH.
The categories of FACOSH membership and the number of new members to be appointed to three-year terms include:
• Eight members are federal agency management representatives—Three management representatives will be appointed.
• Eight members are representatives of labor organizations that represent federal employees—Three federal employee representatives will be appointed.
FACOSH members serve at the pleasure of the Secretary unless the member is no longer qualified to serve, resigns, or is removed by the Secretary. The Secretary may appoint FACOSH members to successive terms. FACOSH meets at least two times a year.
The Department of Labor is committed to equal opportunity in the workplace and seeks broad-based and diverse FACOSH membership. Any interested federal agency, labor organization, or person(s) may nominate one or more qualified persons for membership on FACOSH. Interested individuals also are invited and encouraged to submit statements in support of particular nominees.
1. The nominee's name, contact information and current occupation or position;
2. The nominee's resume or curriculum vitae, including prior membership on FACOSH and other relevant organizations, associations and committees;
3. Category of membership (management, labor) the nominee is qualified to represent;
4. A summary of the nominee's background, experience and qualifications that address the nominee's suitability for FACOSH membership;
5. Articles or other documents the nominee has authored that indicate the nominee's knowledge, experience, and expertise in occupational safety and health, particularly as it pertains to the federal workforce; and
6. A statement that the nominee is aware of the nomination, is willing to regularly attend and participate in FACOSH meetings, and has no apparent conflicts of interest that would preclude membership on FACOSH.
The information received through the nomination process, along with other relevant sources of information, will assist the Secretary in making appointments to FACOSH. In selecting FACOSH members, the Secretary will consider individuals nominated in response to this
Because of security-related procedures, the use of regular mail may cause a significant delay in the receipt of nominations. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger or courier service, please contact the OSHA Docket Office (see
All submissions in response to this
Electronic copies of this
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by section 19 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 668), 5 U.S.C. 7902, the Federal Advisory Committee Act (5 U.S.C. App, 2), Executive Order 12196 and 13511, Secretary of Labor's Order 1–2012 (77 FR 3912, 1/25/2012), 29 CFR part 1960 (Basic Program Elements of for Federal Employee Occupational Safety and Health Programs), and 41 CFR part 102–3.
The National Transportation Safety Board (NTSB) will convene a 2-day forum focused on general aviation search and rescue operations on July 17 and 18, 2012. In the United States, following the crash of a general aviation airplane, inland searches for the aircraft are conducted by the Air Force Rescue Coordination Center, who are supported by numerous Federal, state, local, and volunteer organizations.
The forum will concentrate on examining the regulations, policies, and procedures at a Federal level and serve as a platform to facilitate dialog between search organizations, technology manufacturers, and industry groups on the issues currently impacting the general aviation community. Additionally, the forum will spend a second day discussing emerging technologies and how they may shape the future of general aviation search and rescue.
The two-day forum is being chaired by NTSB Chairman Deborah A. P. Hersman and all five Board Members will participate. Panelists participating in the forum will represent government and industry.
Search and rescue can often mean the difference between life and death,” said Chairman Hersman. “Unfortunately, every year we see delays in the detection and location of crashed aircraft due to outdated equipment and a failure to coordinate information and assets.”
The NTSB has issued more than two dozen safety recommendations on search and rescue, conducted safety studies addressing ways to improve search and rescue operations and even included general aviation safety on the
The forum will be held in the NTSB Board Room and Conference Center, located at 429 L'Enfant Plaza SW., Washington DC. The forum is open to the public and free of charge. In addition, the forum can be viewed via Web cast at
Nuclear Regulatory Commission.
Draft regulatory guide; request for comment.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is issuing for public comment draft regulatory guide (DG), DG–1282, “Fuel Oil Systems for Emergency Power Supplies.” This guide describes a method that the NRC staff considers acceptable for use in complying with the Commission's requirements regarding fuel oil systems for safety-related emergency diesel generators and oil-fueled gas turbine generators, including assurance of adequate fuel oil quality.
Submit comments by August 31, 2012. Comments received after this date will be considered if it is practical to do so, but the NRC staff is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
You may access information and comment submissions related to this document, which the NRC possesses and is publically available, by searching on
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Bob Radlinski, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–415–8503 or by email at:
Please refer to Docket ID NRC–2012–0159 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, by the following methods:
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Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
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Please include Docket ID NRC–2012–0159 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information in their comment submissions that they do not want to be publicly disclosed. Your request should state that the NRC will not edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC is issuing for public comment a draft guide in the NRC's “Regulatory Guide” series. This series was developed to describe and make available to the public such information as methods that are acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
The draft regulatory guide, entitled, “Fuel Oil Systems for Emergency Power Supplies,” is temporarily identified by its task number, DG–1282. The DG–1282 is proposed revision 2 of Regulatory Guide 1.137, “Fuel Oil Systems for Standby Diesel Generators” dated April 1979.
This guide describes a method that the NRC staff considers acceptable for use in complying with the Commission's requirements regarding fuel oil systems for safety-related emergency diesel generators and oil-fueled gas turbine generators, including assurance of adequate fuel oil quality.
Proper quantity and quality of fuel oil is necessary for proper operation of the emergency diesel generators and gas turbine generators. Appendix C to ANSI/ANS–59.51–1997, “Recommended Fuel Oil Practices,” addresses recommended practices for maintaining fuel oil quantity and quality. Although not a mandatory part of the standard, the NRC staff believes Appendix C serves as an acceptable basis for a program to maintain the quality of fuel oil, with additions, deletions, and clarifications as contained in this guide.
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is considering issuance of an exemption from the requirements of Title 10 of the Code of Federal Regulations (10 CFR) Part 50, Appendix R, “Fire Protection Program for Nuclear Power Facilities Operating Prior to January 1, 1979,” for Facility Operating License No. DPR–65 issued to Dominion Nuclear Connecticut, Inc. (DNC or the licensee), for operation of the Millstone Power Station, Unit 2 (MPS2) located in town of Waterford, CT. Therefore, as required by 10 CFR 51.21, the NRC staff performed an environmental assessment. Based on the results of the environmental assessment, the NRC staff is issuing a finding of no significant impact.
DNC proposed that the NRC grant exemptions to certain NRC requirements pertaining to the NRC fire regulations. The proposed action is detailed in the licensee's application dated June 30, 2011, as supplemented by letter dated February 29, 2012. The licensee's application and supplemental submission are accessible electronically from the NRC's Agencywide Documents Access and Management System (ADAMS) under Accession Nos. ML11188A213 and ML12069A016.
Regulatory Issue Summary (RIS) 2006–10, “Regulatory Expectations With Appendix R, Paragraph III.G.2 Operator Manual Actions,” documents the NRC position on the use of operator manual actions (OMAs) as part of a compliance strategy to meet the requirements of 10 CFR part 50, appendix R, Section III.G.2. The NRC requires plants which credit manual actions for 10 CFR part 50, appendix R, Section III.G.2 compliance to obtain NRC approval for the manual actions using the exemption process in accordance with the requirements of 10 CFR 50.12. In response, the licensee proposed this licensing action which would exempt MPS2 from certain requirements of 10 CFR part 50, appendix R, Section III.G.2.
DNC proposed a number of OMAs in lieu of one of the means specified in Section III.G.2 to ensure a train of equipment used for hot shutdown is available when redundant trains are in the same fire area. Therefore, DNC requested exemptions from the requirements of 10 CFR part 50, appendix R, Paragraph III.G.2 for MPS2 to the extent that OMAs are necessary to achieve and maintain hot shutdown for fire areas in which both trains of safe-shutdown cables or equipment are located in the same fire area.
The proposed action is requested to permit the licensee an alternate method from those specified in 10 CFR part 50, to achieve and maintain hot shutdown conditions in the event of a fire that could disable electrical cables and equipment in the fire areas of MPS2 listed in the licensee's request for exemption.
The criteria for granting specific exemptions from 10 CFR part 50 regulations are specified in 10 CFR 50.12. In accordance with 10 CFR 50.12(a)(1), the NRC is authorized to grant an exemption upon determining that the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security.
The NRC staff has completed its evaluation of the environmental impact of the proposed action. The NRC staff has concluded that such actions would not adversely affect the environment. The proposed action would not result in an increased radiological hazard. There will be no change to the radioactive effluent releases that effect radiation exposures to plant workers and members of the public. No changes will be made to plant structures or the site property. Therefore, no changes or different types of radiological impacts are expected as a result of the proposed exemption.
The proposed action does not result in changes to land use or water use, or result in changes to the quality or quantity of non-radiological effluents. No changes to the National Pollution Discharge Elimination System permit are needed. No effects on the aquatic or terrestrial habitat in the vicinity or the plant, or to threatened, endangered, or
Accordingly, the NRC staff concludes that there are no significant environmental impacts associated with the proposed action. The details of the staff's safety evaluation will be provided in the exemption, when it is issued.
As alternatives to the proposed action, the NRC staff is considering denial of the proposed action (i.e., the “no-action” alternative) or requiring the licensee to modify the facility to achieve compliance with Appendix R. Denial of the application would result in no change in current environmental impacts. The environmental impacts of the proposed action and the alternative action are similar.
The action does not involve the use of any different resources than those previously considered in the U.S. Atomic Energy Commission's 1973 “Final Environmental Statement Related to the Continuation of Construction of Unit 2 and the Operation of Units 1 and 2, Millstone Nuclear Power Station.”
On May 14, 2012, the NRC staff consulted with the Connecticut State official, Michael Firsick of the Department of Environmental Protection, regarding the environmental impact of the proposed action. Mr. Firsick had no comments.
On the basis of the environmental assessment, the NRC staff concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC staff has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's application dated June 30, 2011, as supplemented by letter dated February 29, 2012. The licensee's application and supplemental submission are accessible electronically under ADAMS Accession Nos. ML11188A213 and ML12069A016. Publicly available versions of the documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through the ADAMS in the NRC Library at
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service request to add a padded flat rate envelope to its Express Mail International product. This notice addresses procedural steps associated with the filing.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel at 202–789–6820.
In support of its filing, the Postal Service states that the dimensions of the EMI Padded Flat Rate Envelope (12.5 inches by 9.5 inches) are the same as those of the EMI Flat Rate Envelope. It states that the price for the Padded Flat Rate Envelope ($29.25 to Canada and $38.00 to all other countries that offer EMI service) is the same as the price for the current EMI Flat Rate Envelope and EMI Legal Flat Rate Envelope. In addition, it notes that all standards that apply to the EMI Flat Rate Envelope and EMI Legal Flat Rate Envelope (
The Commission establishes Docket No. MC2012–30 for consideration of matters related to the Postal Service's filing. It appoints Kenneth E. Richardson to represent the interests of the general public (Public Representative) in this proceeding. Interested persons may comment on the proposed change and on the Postal Service's response to the matter addressed below no later than July 11, 2012.
The instant notice would likewise appear to effect a change in rates of general applicability. Accordingly, the Postal Service is requested to address, no later than July 6, 2012, why a filing similar to that made in Docket No. CP2012–39 was not made with respect to the change in EMI rates. If, on reconsideration, the instant filing should have been filed pursuant to 39 CFR part 3015, the Postal Service
The notices referred to in this order can be accessed via the Commission's Web site, (
1. The Commission establishes Docket No. MC2012–30 for consideration of matters raised by the Postal Service's notice.
2. The Postal Service's response to the Information Request posed in the body of this order is due no later than July 6, 2012.
3. Comments addressing matters raised in the Postal Service's notice and the Information Request posed in the body of this order are due no later than July 11, 2012.
4. Pursuant to 39 U.S.C. 505, Kenneth E. Richardson is appointed to serve as the officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
5. The Secretary shall arrange for publication of this order in the
By the Commission.
U.S. Railroad Retirement Board (RRB).
Notice of a renewal of an existing computer matching program due to expire on August 12, 2012.
The Privacy Act, as amended, requires the RRB to issue a public notice of its use and intent to use, information obtained from state agencies in ongoing computer matching programs regarding individuals who received benefits under the Railroad Unemployment Insurance Act.
The information received through the computer matching programs may consist of either: (1) A report of unemployment or sickness payments made by the state for the same period that benefits were paid by the RRB, or (2) a report of wages paid to an individual, and the names and addresses of employers who reported those wages to the state for the same period that benefits were paid by the RRB.
The purpose of this notice is to advise individuals applying for or receiving benefits under the Railroad Unemployment Insurance Act of the use made by the RRB of the information obtained from state agencies by means of a computer match.
Submit comments on or before August 14, 2012.
Address any comments concerning this notice in writing to the Secretary to the Board, U.S. Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611–2092.
Mr. Timothy S. Grant, Chief Privacy Officer, U.S. Railroad Retirement Board, 844 North Rush Street, Attn: BIS–IRMC, Chicago, Illinois 60611–2092.
The Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100–503), amended the Privacy Act (5 U.S.C. 552a) by describing the conditions under which computer matching involving the Federal government could be performed, and by adding certain protections for persons applying for, and receiving, Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101–508) further amended the Privacy Act regarding protection for such persons.
The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when matching records in a system of records with other Federal, State, or local government records. It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain approval of the matching agreement by the Data Integrity Boards of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish reports about matching programs to Congress and Office of Management and Budget;
(5) Notify beneficiaries and applicants that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating, or denying a person's benefits or payments.
We have taken action to ensure that all of our computer matching programs comply with the requirements of the Privacy Act, as amended.
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If the matching operation reveals that wages had been reported for the individual during the requested period, the state will notify the RRB of this fact and furnish a breakdown of the wages, as well as the name and address of each employer who reported earnings for the individual. The RRB will then contact each employer who reported earnings for the individual for the given period. Only if the employment is verified will the RRB take action to recover the overpayment. If the RRB benefits had been paid under the Railroad Unemployment Insurance Act, recovery is limited to payments made for those days on which the individual was gainfully employed.
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By Authority of the Board.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold an Open Meeting on Wednesday, August 22, 2012 at 10 a.m., in the Auditorium, Room L–002.
The subject matters of the Open Meeting will be:
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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
EDGX proposes to modify existing routing options contained in EDGX Rule 11.9(b)(3) to provide Users
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 self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange's current list of routing options is codified in Rule 11.9(b)(3). In this filing, the Exchange proposes to amend paragraph (3) of Rule 11.9(b) to indicate that the Exchange reserves the right to route orders both sequentially and simultaneously. This amendment allows for simultaneous routing to certain destinations on the System routing table. With respect to Rules 11.9(b)(3)(a), (b), (h), and (m), specifically, the Exchange currently sends orders to certain destinations on the System routing table only in a sequential manner. For example, if an order cannot be filled after checking for available shares on the Exchange's book, the Exchange will route such order to certain destinations on the System routing table one at a time until all such destinations are exhausted, the order is cancelled, or the order is filled. As a result of the proposed change in functionality, which would allow such
Simultaneous routing is an improvement on the current sequential manner in which orders are filled because it allows an order to be broken up into child orders to be sent to multiple destinations at one time instead of to one venue after another. Doing so has the potential to improve an order's fill rate, as well as reduce latency. The Exchange believes that the proposed introduction of this functionality will provide Users with increased access to multiple sources of liquidity and greater flexibility in routing orders, without having to develop their own complicated routing strategies. The Exchange also believes the proposed modification will provide additional specificity to the Exchange's rulebook regarding routing strategies and will further enhance transparency with respect to Exchange routing offerings.
The Exchange will notify its Members in an information circular of (a) the exact implementation date of this rule change, which will be no later than July 31, 2012; and (b) the manner in which certain routing options may function (
The Exchange believes that the proposed rule change is consistent with Section 6(b)(5) 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 has neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change does not (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b–4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend 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 paper comments in triplicate to Elizabeth M. Murphy, 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”)
The Exchange proposes a rule change with respect to the amendment of the by-laws of its parent corporation, The NASDAQ OMX Group, Inc. (“NASDAQ OMX”). The text of the proposed rule change is below. The text of the proposed rule change is available at
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.
NASDAQ OMX is proposing amendments to provisions of its by-laws pertaining to the composition of the Management Compensation Committee of the NASDAQ OMX Board of Directors. Specifically, NASDAQ OMX is amending the compositional requirements of its Management Compensation Committee in Section 4.13 to replace a requirement that the committee be composed of a majority of Non-Industry Directors
A “Non-Industry Director” means a Director (excluding the Staff Directors) who is (1) a Public Director; (2) an officer, director, or employee of an issuer of securities listed on a national securities exchange operated by any subsidiary of NASDAQ OMX that is a self-regulatory organization; or (3) any other individual who would not be an Industry Director.
A “Public Director” means a Director who has no material business relationship with a broker or dealer, NASDAQ OMX or its affiliates, or FINRA.
NASDAQ OMX and the Exchange believe that the change will provide greater flexibility to NASDAQ OMX with regard to populating a committee that includes Directors with relevant expertise and that is not excessively large in relation to the size of the full Board of Directors, while continuing to ensure that Directors associated with NASDAQ members and other broker-dealers do not exert disproportionate influence of the governance of NASDAQ OMX. As required by NASDAQ Rule 5605(d), the committee would continue at all times to be composed solely of Directors who are independent within the meaning of that rule.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
NASDAQ believes that the change will provide greater flexibility to NASDAQ OMX with regard to populating a committee that includes Directors with relevant expertise and that is not excessively large in relation to the size of the full Board of Directors, while continuing to ensure that Directors associated with NASDAQ members and other broker-dealers do not exert disproportionate influence of the governance of NASDAQ OMX.
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.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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”),
Nasdaq proposes to establish fees for a new optional delivery mechanism for Nasdaq Depth data (defined below). Specifically, Nasdaq proposes to establish Distributor and Administration fees for a hardware-based version of Nasdaq TotalView-ITCH data and is not offering a new market data product.
The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
(a)–(b) No change.
(c) [Reserved]
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 is proposing to amend Nasdaq Rule 7026 (Distribution Models) to establish Distributor and Administration fees for an optional hardware-based delivery of Nasdaq Depth-of-Book data, defined in Nasdaq Rule 7023 to include TotalView, OpenView, and NASDAQ Level 2 (collectively, “Nasdaq Depth data”). This new delivery option of the Nasdaq TotalView-ITCH equities depth feed uses field-programmable gate array (“FPGA”) technology. In offering a hardware-delivery mechanism, Nasdaq is serving those customers requiring a predictable latency profile throughout the trading day. By taking advantage of hardware parallelism, FPGA technology is capable of processing more data packets during peak market conditions without the introduction of variable queuing latency.
The proposed Distributor fee for utilizing the optional hardware-based delivery of Nasdaq Depth data is $25,000 for internal only distribution, $2,500 for external only distribution and $27,500 for internal and external distribution. The optional Managed Data Solution (“MDS”) Administration fee is tiered based upon the number of subscribers, starting at $3,000 as outlined above. There will be no change in Nasdaq Depth data subscriber fees as a result of these other fee changes.
This new pricing option is available to all firms, regardless of how they choose to access the hardware-based version of Nasdaq Depth data, and is in response to industry demand, as well as due to changes in the technology to distribute and consume market data. Distributors opting to pay for the hardware-based delivery of Nasdaq Depth data would still be fee liable for the applicable market data fees, as described in Nasdaq Rule 7026, Nasdaq Rule 7019(b) and Nasdaq Rule 7023.
Competition for depth data is considerable and the Exchange believes that this proposal clearly evidences such competition. The Exchange is offering a new pricing model in order to keep pace with changes in the industry and evolving customer needs as new technologies emerge and products continue to develop and change. It is entirely optional and is geared towards attracting new customers, as well as retaining existing customers.
The proposed fees are based on pricing conventions and distinctions that exist in Nasdaq's current fee schedule, and the fee schedules of other exchanges. These distinctions (
The proposed hardware-based delivery of Nasdaq Depth data is completely optional. Nasdaq is offering this new delivery mechanism for the Nasdaq TotalView-ITCH product, which uses FPGA technology, and is designed to deliver Nasdaq direct data content in a predictable manner throughout the trading day.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
On July 21, 2010, President Barack Obama signed into law H.R. 4173, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), which amended Section 19 of the Act. Among other things, Section 916 of the Dodd-Frank Act amended paragraph (A) of Section 19(b)(3) of the Act by inserting the phrase “on any person, whether or not the person is a member of the self-regulatory organization” after “due, fee or other charge imposed by the self-regulatory organization.” As a result, all SRO rule proposals establishing or changing dues, fees, or other charges are immediately effective upon filing regardless of whether such dues, fees, or other charges are imposed on members of the SRO, non-members, or both. Section 916 further amended paragraph (C) of Section 19(b)(3) of the Exchange Act to read, in pertinent part, “At any time within the 60-day period beginning on the date of filing of such a proposed rule change in accordance with the provisions of paragraph (1) [of Section 19(b)], the Commission summarily may temporarily suspend the change in the rules of the self-regulatory organization made thereby, 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 this title. If the Commission takes such action, the Commission shall institute proceedings under paragraph (2)(B) [of Section 19(b)] to determine whether the proposed rule should be approved or disapproved.”
Nasdaq believes that these amendments to Section 19 of the Act reflect Congress' intent to allow the Commission to rely upon the forces of competition to ensure that fees for market data are reasonable and equitably allocated. Although Section 19(b) had formerly authorized immediate effectiveness for a “due, fee or other charge imposed by the self-regulatory organization,” the Commission adopted a policy and subsequently a rule stipulating that fees for data and other products available to persons that are not members of the self-regulatory organization must be approved by the Commission after first being published for comment. At the time, the Commission supported the adoption of the policy and the rule by pointing out that unlike members, whose representation in self-regulatory organization governance was mandated by the Act, non-members should be given the opportunity to comment on fees before being required to pay them, and that the Commission should specifically approve all such fees. Nasdaq believes that the amendment to Section 19 reflects Congress' conclusion that the evolution of self-regulatory organization governance and competitive market structure have rendered the Commission's prior policy on non-member fees obsolete. Specifically, many exchanges have evolved from member-owned not-for-profit corporations into for-profit investor-owned corporations (or subsidiaries of investor-owned corporations). Accordingly, exchanges no longer have narrow incentives to manage their affairs for the exclusive benefit of their members, but rather have incentives to maximize the appeal of their products to all customers, whether members or non-members, so as to broaden distribution and grow revenues. Moreover, we believe that the change also reflects an endorsement of the Commission's determinations that reliance on competitive markets is an appropriate means to ensure equitable and reasonable prices. Simply put, the change reflects a presumption that all fee changes should be permitted to take effect immediately, since the level of all fees are constrained by competitive forces.
The decision of the United States Court of Appeals for the District of Columbia Circuit in
For the reasons stated above, Nasdaq believes that the proposed fees are fair and equitable, and not unreasonably discriminatory. As described above, the proposed fees are based on pricing conventions and distinctions that exist in Nasdaq's current fee schedule, and the fee schedules of other exchanges. These distinctions (
As described in greater detail below, if Nasdaq has calculated improperly and the market deems the proposed fees to be unfair, inequitable, or unreasonably discriminatory, firms can diminish or discontinue the use of their data because the proposed fee is entirely optional to all parties. Firms are not required to purchase Nasdaq Depth data or to utilize any specific pricing alternative if they do choose to purchase Nasdaq Depth data. Nasdaq is not required to make depth data available or to offer specific pricing alternatives for potential purchases. Nasdaq can discontinue offering a pricing alternative (as it has in the past) and firms can discontinue their use at any time and for any reason (as they often do), including due to their assessment of the reasonableness of fees charged. Nasdaq continues to create new pricing policies aimed at increasing fairness and equitable allocation of fees among users, and Nasdaq believes this is another useful step in that direction.
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not
There is intense competition between trading platforms that provide transaction execution and routing services and proprietary data products. Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price and distribution of its data products. Without the prospect of a taking order seeing and reacting to a posted order on a particular platform, the posting of the order would accomplish little. Without trade executions, exchange data products cannot exist. Data products are valuable to many end users only insofar as they provide information that end users expect will assist them or their customers in making trading decisions.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and to maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange's customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A broker-dealer will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the broker-dealer chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the broker-dealer will choose not to buy it. Moreover, as a broker-dealer chooses to direct fewer orders to a particular exchange, the value of the product to that broker-dealer decreases, for two reasons. First, the product will contain less information, because executions of the broker-dealer's orders will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that broker-dealer because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the broker-dealer is directing orders will become correspondingly more valuable.
Thus, a super-competitive increase in the fees charged for either transactions or data has the potential to impair revenues from both products. “No one disputes that competition for order flow is `fierce'.”
Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of the exchange's costs to the market data portion of an exchange's joint product. Rather, all of the exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products.
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platform may choose to pay rebates to attract orders, charge relatively low prices for market information (or provide information free of charge) and charge relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower rebates (or no rebates) to attract orders, setting relatively high prices for market information, and setting relatively low prices for accessing posted liquidity. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering. This would be akin to strictly regulating the price that an automobile manufacturer can charge for car sound systems despite the existence of a highly competitive market for cars and the availability of after-market alternatives to the manufacturer-supplied system.
The market for market data products is competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market.
Broker-dealers currently have numerous alternative venues for their order flow, including ten self-regulatory organization (“SRO”) markets, as well as internalizing broker-dealers (“BDs”) and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated Trade Reporting Facilities (“TRFs”) compete to attract internalized
The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including Nasdaq, NYSE, NYSE Amex, NYSEArca, and BATS.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple broker-dealers' production of proprietary data products. The potential sources of proprietary products are virtually limitless.
The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products, as BATS and Arca did before registering as exchanges by publishing proprietary book data on the Internet. Second, because a single order or transaction report can appear in an SRO proprietary product, a non-SRO proprietary product, or both, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace.
Market data vendors provide another form of price discipline for proprietary data products because they control the primary means of access to end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Thomson Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail broker-dealers, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: They can simply refuse to purchase any proprietary data product that fails to provide sufficient value. Nasdaq and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully.
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TracECN, BATS Trading and Direct Edge. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume.
Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While broker-dealers have previously published their proprietary data individually, Regulation NMS encourages market data vendors and broker-dealers to produce proprietary products cooperatively in a manner never before possible. Multiple market data vendors already have the capability to aggregate data and disseminate it on a profitable scale, including Bloomberg, and Thomson Reuters.
The court in
Competition among platforms has driven Nasdaq continually to improve its platform data offerings and to cater to customers' data needs. For example, Nasdaq has developed and maintained multiple delivery mechanisms (IP, multi-cast, and compression) that enable customers to receive data in the form and manner they prefer and at the lowest cost to them. Nasdaq offers front end applications such as its “Bookviewer” to help customers utilize data. Nasdaq has created new products like TotalView Aggregate to complement TotalView ITCH and Level 2/NQDS, because offering data in multiple formatting allows Nasdaq to better fit customer needs. Nasdaq offers data via multiple extranet providers, thereby helping to reduce network and total cost for its data products. Nasdaq has developed an online administrative system to provide customers transparency into their data feed requests and streamline data usage reporting. Nasdaq has also expanded its Enterprise License options that reduce the administrative burden and costs to firms that purchase market data.
Despite these enhancements and a dramatic increase in message traffic, Nasdaq's fees for market data have remained flat. In fact, as a percent of total customer costs, Nasdaq data fees have fallen relative to other data usage costs—including bandwidth, programming, and infrastructure—that have risen. The same holds true for execution services; despite numerous enhancements to Nasdaq's trading platform, absolute and relative trading costs have declined. Platform competition has intensified as new entrants have emerged, constraining prices for both executions and for data.
The vigor of competition for depth information is significant and the Exchange believes that this proposal clearly evidences such competition. Nasdaq is offering a new pricing model in order to keep pace with changes in the industry and evolving customer needs. It is entirely optional and is geared towards attracting new customers, as well as retaining existing customers.
The Exchange has witnessed competitors creating new products and innovative pricing in this space over the course of the past year. Nasdaq continues to see firms challenge its pricing on the basis of the Exchange's explicit fees being higher than the zero-priced fees from other competitors such as BATS. In all cases, firms make decisions on how much and what types of data to consume on the basis of the total cost of interacting with Nasdaq or other exchanges. Of course, the explicit data fees are but one factor in a total platform analysis. Some competitors have lower transactions fees and higher data fees, and others are vice versa. The market for this depth information is highly competitive and continually evolves as products develop and change.
No written comments were either solicited or received.
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)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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 (the “Act”)
C2 proposes to amend its Rule 8.2 regarding Market-Maker registration cost. The text of the proposed rule change is available on the Exchange's Web site (
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 those 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 parts of such statements.
The Exchange proposes to amend its Rule 8.2(d) regarding registration costs. An option class registration of a Market-Maker confers the right to quote in that product. Each Trading Permit held by a Market-Maker has a registration credit of 1.0. A Market-Maker may select for each Trading Permit the Market-Maker holds any combination of option classes, whose aggregate registration cost does not exceed 1.0. When the Exchange initially adopted language regarding registration costs, the Exchange designated every option traded on C2, except SPX, VIX, OEX, DJX, and XSP (the “Excluded Products”), to have a registration cost of .001, and stated that, if C2 determines to commence trading of any of the Excluded Products, it will file a proposed rule change to adopt
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
C2 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 neither solicited nor received comments on 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 after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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 May 15, 2012, The NASDAQ Stock Market LLC (“Exchange” or “NASDAQ”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NASDAQ Rule 2160(a) prohibits the Exchange or any entity with which it is affiliated from, directly or indirectly, acquiring or maintaining an ownership interest in, or engaging in a business venture with, a NASDAQ member or an affiliate of a NASDAQ member in the absence of an effective filing under Section 19(b) of the Act.
On May 1, 2012, BX filed a proposed rule change to establish a new BX options market (“BX Options”), which will be an electronic trading system that trades options.
On June 26, 2012, the Commission approved the BX Options Proposal.
After careful review, 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.
NOS will operate as a facility of BX that provides outbound options routing from BX Options to other market centers, subject to certain conditions.
Recognizing that the Commission has previously expressed concern regarding the potential for conflicts of interest in instances where a member firm is affiliated with an exchange of which it is a member, the Exchange previously proposed, and the Commission approved, limitations and conditions on NOS's affiliation with the Exchange.
• First, the Exchange and the Financial Industry Regulatory Authority (“FINRA”) will maintain a Regulatory Contract, as well as an agreement pursuant to Rule 17d–2 under the Act
• Second, FINRA will monitor NOS for compliance with the Exchange's trading rules, and will collect and maintain certain related information.
• Third, FINRA will provide a report to the Exchange's chief regulatory officer (“CRO”), on a quarterly basis, that: (i) Quantifies all alerts (of which the Exchange or FINRA is aware) that identify NOS as a participant that has potentially violated Commission or Exchange rules, and (ii) lists all investigations that identify NOS as a participant that has potentially violated Commission or Exchange rules.
• Fourth, the Exchange is amending NASDAQ Rule 2160(c) to require NASDAQ OMX, as the holding company owning both the Exchange and NOS, to establish and maintain procedures and internal controls reasonably designed to ensure that NOS does not develop or implement changes to its system, based on non-public information obtained regarding planned changes to the Exchange's systems as a result of its affiliation with the Exchange, until such information is available generally to similarly situated Exchange members, in connection with the provision of inbound options order routing to the Exchange.
• Fifth, the Exchange proposes that the routing of options orders from NOS to the Exchange, in NOS's capacity as a facility of BX, be authorized for a pilot period of one year.
In the past, the Commission has expressed concern that the affiliation of an exchange with one of its members raises potential conflicts of interest, and the potential for unfair competitive advantage.
The Commission believes that these limitations and conditions enumerated above will mitigate its concerns about potential conflicts of interest and unfair competitive advantage. In particular, the Commission believes that a non-affiliated SRO's oversight of NOS,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 3, 2012, ICE Clear Credit LLC (“ICC”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change (SR–ICC–2012–04) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
This rule change will amend Chapter 26 of ICC's rules to add Section 26C to provide for the clearance of the CDX Emerging Markets CDS contracts (“CDX.EM Contracts”), which reference an emerging market sovereign index. ICC will list the five year tenor of Series 14, 15, 16 and 17 of the CDX.EM Contracts.
CDX.EM Contracts have similar terms to the CDX North American Index CDS contracts (“CDX.NA Contracts”) currently cleared by ICC and governed by Section 26A of the ICC rules. Accordingly, the proposed rules found in Section 26C largely mirror the ICC rules for CDX.NA Contracts in Section 26A, with certain modifications that reflect the underlying reference entities (sovereign reference entities instead of corporate reference entities) and differences in terms and market conventions between CDX.EM Contracts and CDX.NA Contracts. The CDX.EM Contracts reference the CDX.EM index, the current series of which consists of 15 emerging market sovereign entities: Argentina, Venezuela, Brazil, Malaysia, Colombia, Hungary, Indonesia, Panama, Peru, South Africa, the Philippines, Turkey, Russia, Ukraine, and Mexico. CDX.EM Contracts, consistent with market convention and widely used standard terms documentation, can be triggered by credit events for failure to pay, restructuring, and repudiation/moratorium (by contrast to the credit events of failure to pay and bankruptcy applicable to the CDX.NA Contracts). CDX.EM Contracts will only be denominated in U.S. dollars.
ICC Rule 26C–102 (Definitions) sets forth the definition ICC uses for its CDX.EM Contract rules. An “Eligible CDX.EM Untranched Index” is defined as “each particular series and version of a CDX.EM index or sub-index, as published by the CDX.EM Untranched Publisher, included from time to time in the List of Eligible CDX.EM Untranched Indexes,” which is a list maintained, updated, and published from time to time by the ICC board of directors or its designee, containing certain specified information with respect to each index. “CDX.EM Untranched Terms Supplement” refers to the market standard form of documentation used for credit default swaps on the CDX.EM index, which is incorporated by reference into the contract specifications in Section 26C. The remaining definitions are substantially the same as the definitions found in Section 26A of the ICC rules, other than certain conforming changes.
Rules 26C–309 (Acceptance of CDX.EM Untranched Contract), 26C–315 (Terms of the Cleared CDX.EM Untranched Contract), and 26C–316 (Updating Index Version of Fungible Contracts After a Credit Event or a Succession Event; Updating Relevant Untranched Standard Terms Supplement) reflect or incorporate the basic contract specifications for CDX.EM Contracts and are substantially the same as under Section 26A of the ICC rulebook for CDX.NA Contracts. In addition to various non-substantive conforming changes, proposed Rule 26C–317 (Terms of CDX.EM Untranched Contracts) differs from the corresponding Rule 26A–317 to reflect the fact that restructuring and repudiation/moratorium are credit events for the CDX.EM Contract.
In addition, a conforming change is being made to the definition of “Restructuring CDS Contract” in Section 26E (CDS Restructuring Rules) to address components of CDX.EM Contracts that become subject to a restructuring credit event. The treatment of such restructuring credit events for CDX.EM Contracts will thus be as set forth in existing Section 26E of the ICC rules.
Section 19(b)(2)(B) of the Act directs the Commission to approve a proposed rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to such organization.
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
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 proposes to amend the NYSE Amex Options Fee Schedule (the “Fee Schedule”) to increase the monthly fee per Amex Trading Permit (“ATP”) for Order Flow Providers and Clearing Members and to make a conforming change to the current text in the Fee Schedule. The proposed change will be operative on July 1, 2012. The text of the proposed rule change is available on the Exchange's Web site at
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 those 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 parts of such statements.
The Exchange proposes to amend the Fee Schedule to increase the monthly fee per ATP for Order Flow Providers and Clearing Members and to make a conforming change to the current text in the Fee Schedule. Specifically, the Exchange proposes to increase the fee per ATP for Order Flow Providers and Clearing Members from $500 per month to $1,000 per month. The Exchange does not propose to increase the monthly fee per ATP for Floor Brokers. The Exchange believes that the proposed rule change is warranted because volume on the Exchange has increased and the ATP fees for these participants have not changed since March 2009.
The Exchange also proposes to make conforming changes to the text of the Fee Schedule. Presently, the Fee Schedule refers to “Order Routing” and “Clearing Firms” in the context of the ATP fees charged on a monthly basis for a participant acting in either capacity. The Exchange proposes to change Clearing Firm to Clearing Member and Order Routing to Order Flow Provider because Clearing Firm and Order Routing are not defined terms in the rules of the Exchange.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6(b)
The Exchange notes that it is leaving the monthly ATP fee for Floor Brokers at $500 per month. The Exchange believes this is both reasonable and equitable given the following. First, ATP Holders conducting a floor brokerage business are required to purchase an ATP for each Floor Broker that is engaged in business on the floor of the Exchange. In practice, such firms typically have more than one ATP to ensure adequate coverage on the trading floor (i.e., a single Floor Broker cannot be physically present in several trading crowds at the same time). As a result, ATP Holders conducting a floor brokerage business typically pay more in ATP fees than either Order Flow Providers or Clearing Members by virtue of the requirement that they have an ATP for each Floor Broker on the floor in their employ. By contrast, an Order Flow Provider sending agency orders to the Exchange for execution, either electronically or via phone for a Floor Broker to execute, need only purchase a single ATP each month to conduct their business. Similarly, a Clearing Member, sending orders to the Exchange electronically or utilizing a Floor Broker to represent their orders also is only required to purchase a single ATP to conduct their business. Further, while the Exchange has seen increases in volume and market share, the amount of open outcry volume has remained steady over time and as a result has actually decreased as a percentage of overall Exchange volume. Consequently, Floor Brokers and other on floor participants may have not benefited from the overall increase in Exchange volumes and market share as have other participants.
The Exchange believes the proposed change is not unfairly discriminatory as it will apply to all participants who act as either Order Flow Providers or Clearing Members equally. Also, the Exchange believes that increasing the fees applicable to Order Flow Providers and Clearing Members while leaving the ATP fee applicable to Floor Brokers is not unfairly discriminatory given the nature of the volume increases coupled with the fact that most ATP Holders conducting a Floor Broker business are already paying more than $500 per month as they are required to purchase an ATP for each Floor Broker in their employ—whereas that is not the case for Order Flow Providers and Clearing Members.
The Exchange also believes that the proposed conforming changes to terms
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.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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 May 14, 2012, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade the Shares of the Funds pursuant to NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares on the Exchange. The Shares will be offered by iShares U.S. ETF Trust (“Trust”), a statutory trust organized under the laws of the State of Delaware and registered with the Commission as an open-end management investment company.
The iShares Strategic Beta U.S. Large Cap Fund will seek long-term capital appreciation. The Fund will seek to achieve its investment objective by investing, under normal circumstances,
The Fund's proprietary investment process will begin with the selection of securities representing a defined investable universe of stocks of U.S. large-capitalization issuers. The universe is then subjected to rules-based screens designed to exclude securities with very low trading volume or very low prices. The stocks will then be scored based on their exposure to quantitative metrics such as leverage, return on equity, price-to-book ratio, and capitalization. BFA will assemble a portfolio emphasizing those stocks with high relative exposure to the desired investment characteristics, while seeking to remain diversified by industry.
The iShares Strategic Beta U.S. Small Cap Fund seeks long-term capital appreciation. The Fund will seek to achieve its investment objective by investing, under normal circumstances, at least 80% of its net assets in U.S. exchange-listed and traded equity securities of small-capitalization issuers. The Fund will seek to maintain strategic exposure to U.S. small-capitalization stocks with targeted investment characteristics. BFA will utilize a proprietary investment process to assemble an investment portfolio from a defined group of stocks that seeks to emphasize companies within the group that exhibit certain quantitative investment characteristics, such as higher quality earnings, low relative valuation, and smaller relative market capitalization, and de-emphasize companies that lack such characteristics. The investment process is intended to provide an increased exposure to securities of companies with higher quality earnings, lower relative valuations, and smaller relative market capitalizations than would a fund that seeks to replicate the performance of a broad U.S. small-capitalization stock index. Companies in the universe of U.S. small capitalization securities represent various sectors of the U.S. small capitalization market.
The Fund's proprietary investment process will begin with securities representing a defined investable universe of stocks of U.S. small-capitalization issuers. The universe will then be subjected to rules-based screens designed to exclude securities with very low trading volume or very low prices. The stocks are then scored based on their exposure to quantitative metrics such as leverage, return on equity, price-to-book ratio, and capitalization. BFA will assemble a portfolio emphasizing those stocks with high relative exposure to the desired investment characteristics, while seeking to remain diversified by industry.
With respect to each of the Funds, no less than 80% of the equity securities held by the respective Fund will be listed and traded on a U.S. national securities exchange.
While each Fund, under normal circumstances, will invest at least 80% of its net assets in their respective investments, each Fund may directly invest in certain other investments, as described below. The Funds may temporarily depart from their normal investment process,
Each Fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities (calculated at the time of investment), including Rule 144A securities. Each Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of a Fund's net assets are held in illiquid securities. Illiquid securities include securities subject to contractual or other restrictions on resale and other instruments that lack readily available markets as determined in accordance with Commission staff guidance.
The Funds may invest in repurchase and reverse repurchase agreements. A repurchase agreement is an instrument under which the purchaser (
The Funds may invest in other short-term instruments, including money market instruments, on an ongoing basis to provide liquidity or for other reasons. Money market instruments are generally short-term investments that may include but are not limited to: (i) Shares of money market funds (including those advised by BFA or otherwise affiliated with BFA); (ii) obligations issued or guaranteed by the U.S. government, its agencies, or instrumentalities (including government-sponsored enterprises); (iii) negotiable certificates of deposit, bankers' acceptances, fixed-time deposits, and other obligations of U.S. and non-U.S. banks (including non-U.S.
A Fund may invest a small portion of its net assets in tracking stocks, which primarily will be U.S. exchange-listed. A tracking stock is a separate class of common stock whose value is linked to a specific business unit or operating division within a larger company and is designed to “track” the performance of such business unit or division. The tracking stock may pay dividends to shareholders independent of the parent company. The parent company, rather than the business unit or division, generally is the issuer of tracking stock. However, holders of the tracking stock may not have the same rights as holders of the company's common stock.
Each Fund will be classified as a “diversified” investment company under the 1940 Act. In addition, the Funds intend to qualify for and to elect treatment as a separate regulated investment company (“RIC”) under Subchapter M of the Internal Revenue Code. The Funds will not purchase the securities of issuers conducting their principal business activity in the same industry if, immediately after the purchase and as a result thereof, the value of a Fund's investments in that industry would equal or exceed 25% of the current value of a Fund's total assets, provided that this restriction does not limit a Fund's: (i) Investments in securities of other investment companies, (ii) investments in securities issued or guaranteed by the U.S. government, its agencies or instrumentalities, or (iii) investments in repurchase agreements collateralized by U.S. government securities.
In accordance with the Exemptive Order, the Funds will not invest in options, futures, or swaps. The Funds may invest in currency forwards for hedging and trade settlement purposes.
The Exchange represents that the Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. The Exchange further represents that, for initial and/or continued listing, the Funds will be in compliance with Rule 10A–3 under the Exchange Act,
Additional information regarding the Trust, the Funds, and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions, and taxes, among other things, is included in the Notice and Registration Statements.
The Commission has carefully reviewed the proposed rule change and finds that it is consistent with the requirements of Section 6 of the Act
The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Commission notes that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time.
The Exchange represents that the Shares are deemed to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including:
(1) The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) The Exchange's surveillance procedures applicable to derivative products, which include Managed Fund Shares, are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
(4) Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated IOPV will not be calculated or publicly disseminated; (d) how information regarding the IOPV is disseminated; (e) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading and other information.
(5) For initial and/or continued listing, the Funds will be in compliance with Rule 10A–3 under the Act,
(6) With respect to each of the Funds, no less than 80% of the equity securities held by the respective Fund will be listed and traded on a U.S. national securities exchange.
(7) Each Fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities, including Rule 144A securities.
(8) Each Fund will not: (a) invest in non-U.S.-registered equity securities; and (b) pursuant to the terms of the Exemptive Order, invest in options, futures, or swap agreements. In addition, each Fund's investments will be consistent with its respective investment objective and will not be used to enhance leverage.
(9) A minimum of 100,000 Shares of each Fund will be outstanding at the commencement of trading on the Exchange.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
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 (the “Act”)
National Stock Exchange, Inc. (“NSX®” or “Exchange”) is proposing to amend its Fee and Rebate Schedule (the “Fee Schedule”) issued pursuant to Exchange Rule 16.1(c) to increase the rebates for certain orders executed in the Exchange's Order Delivery Mode.
The text of the proposed rule change is available on the Exchange's Web site at
With this rule change, the Exchange is proposing to amend the Fee Schedule with respect to the rebates applicable to liquidity adding order executions in securities priced at least one dollar in the Exchange's Order Delivery Mode of order interaction (“Order Delivery”). The proposed changes are further addressed below.
As reflected in Section II of the Fee Schedule, for all liquidity adding displayed orders of securities priced at least one dollar in Order Delivery, the Exchange currently offers four tiers of progressively greater rebates in the amounts of $0.0008 per share (tier 1), $0.0024 per share (tier 2), $0.0027 per share plus 25% of market data revenues attributable to such orders (tier 3), or $0.0027 per share plus 50% of market data revenues attributable to such orders (tier 4). The applicable rebate tier depends on an ETP Holder's ADV. Endnote 3 provides that “ADV” means, with respect to an ETP Holder, the number of shares such ETP Holder has executed on average per trading day (excluding partial trading days) in AutoEx or Order Delivery, as applicable, across all tapes in securities priced at least one dollar on NSX for the calendar month (or partial month, as applicable) in which the executions occurred. Endnote 3 further clarifies that “ADV” as used with respect to the Exchange's Automatic Execution mode of order interaction (“AutoEx”) shall mean only those executed shares of the ETP Holder that are submitted in AutoEx mode, and that ADV as used with respect to Order Delivery shall mean only those executed shares of the ETP Holder that are submitted in Order Delivery mode.
Specifically, the current Fee Schedule provides that a $0.0008 per share rebate (with no market data revenue sharing) applies to an ETP Holder's Order Delivery, dollar or higher displayed order executions that add liquidity where the ETP Holder's ADV is less than 15,000,000 shares; a $0.0024 per share rebate (with no market data revenue sharing) applies to an ETP Holder's Order Delivery, dollar or higher displayed order executions that add liquidity where the ETP Holder's ADV is at least 15,000,000 shares but less than 25,000,000 shares; a $0.0027 per share rebate (plus 25% market data revenue sharing) applies to an ETP Holder's Order Delivery, dollar or higher displayed order executions that add liquidity where the ETP Holder's ADV is at least 25,000,000 shares but less than 30,000,000 shares; and a $0.0027 per share rebate (plus 50% market data revenue sharing) applies to an ETP Holder's Order Delivery, dollar or higher displayed order executions that add liquidity where the ETP Holder's ADV is at least 30,000,000 shares. Currently, an ETP Holder's “ADV” with respect to the rebate in Order Delivery for securities priced at least one dollar is calculated to include only the ETP Holder's volumes in Order Delivery, and excludes sub-dollar securities.
The proposed rule change provides that each of the above-referenced four rebate dollar amounts in Order Delivery may be increased by $0.0003 per share (to the amounts of $0.0011 per share in tier 1, $0.0027 per share in tier 2, or $0.0030 per share in each of tiers 3 and 4) if an ETP Holder achieves, in the same measurement period, a combined ADV in both AutoEx and Order Delivery of at least 11.5 million shares, of which at least one million five hundred thousand are Order Delivery ADV. Endnote 5, which is proposed to apply to each of the four rebate tiers in Order Delivery, provides that an ETP Holder shall receive an additional $0.0003 per share rebate (with respect to executions of Displayed Orders in Order Delivery that are priced at least $1) in the event such ETP Holder achieves an Order Delivery ADV of at least 1,500,000 and an AutoEx ADV (in the same period) of at least 10,000,000. No changes are proposed to the market data sharing program component that is applicable to the third and fourth tier.
A conforming edit adding the clause “except as otherwise noted” is proposed to be made to the definition of ADV in Endnote 3 to allow for explicit exceptions (as is contained in proposed Endnote 5) to the general definition of ADV as set forth in Endnote 3. In addition, certain non-substantive formatting edits (rearranging the header “All Tapes”) are proposed to the headers in Section I for the purpose of streamlining the text of the Fee Schedule.
The proposed increase to the dollar amounts of the rebates applicable to displayed liquidity providing Order
The Exchange currently intends to make the proposed modifications, which are effective on filing of this proposed rule, operative as of commencement of trading on July 2, 2012. Pursuant to Exchange Rule 16.1(c), the Exchange will “provide ETP Holders with notice of all relevant dues, fees, assessments and charges of the Exchange” through the issuance of a Regulatory Circular of the changes to the Fee Schedule and will post a copy of the rule filing on the Exchange's Web site (
The Exchange believes that the rule changes as described herein are consistent with the provisions of Section 6(b) of the Act, in general, and Section 6(b)(4) of the Act,
The changes to the rebates payable for executions in securities priced at least one dollar in Order Delivery are reasonable because they are designed to incentivize the submission of such orders as well as displayed orders of at least one dollar in AutoEx, and to generally increase order volume on the Exchange. The changes are equitably allocated and not unfairly discriminatory because all qualified ETP Holders are eligible to submit (or not submit) displayed liquidity providing orders of securities priced at least one dollar in Order Delivery and AutoEx on the Exchange. The rebate adjustments are reasonable methods to incentivize the submission of such orders. All similarly situated members are subject to the same fee structure, and access to the Exchange is offered on terms that are not unfairly discriminatory.
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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 (the “Act”),
The Exchange proposes to amend Rule 11.5 to provide an additional order type, the Route Peg Order. In addition, the Exchange proposes to amend Rule 11.8 to describe the priority of the Route Peg Order relative to other orders on the EDGX Book.
The text of the proposed rule changes are attached as Exhibit 5
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule changes and discussed any comments it received on the proposed rule changes. 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.
The Exchange proposes to amend Rule 11.5(c) to add a new subparagraph (17) that describes a Route Peg Order. A Route Peg Order would be a non-displayed limit order eligible for execution at the national best bid (the “NBB”) for Route Peg Orders to buy, and at the national best offer (the “NBO”, and together with the NBB, the “NBBO”) for Route Peg Orders to sell, against routable orders
An incoming order that has been designated as eligible for routing would be able to interact with Route Peg Orders. Such an order would first be matched against orders other than Route Peg Orders in price/time priority in accordance with Rule 11.8(a)(2)(A)–(D). If any portion of the incoming order remained unexecuted, only then would such order be eligible to execute against Route Peg Orders.
As mentioned
The following example illustrates how this would work: Assume Member A places a Route Peg Order to buy 500 shares, and an incoming order to sell executes against the Route Peg Order at the NBB for 300 shares. That would leave Member A with a remaining balance of 200 shares to buy. Another incoming order to sell 400 shares would be eligible to execute against Member A's balance, for 200 shares, because the size of its order would be less than the original size of Member A's order. If, however, the incoming order were to sell 600 shares, it would not execute against the Route Peg Order because the size of the order would be greater than the original size of Member A's order. In that event, such order would be routed externally. It should be noted, however, that if there were another Route Peg Order on the Book, behind Member A's order in time priority, for, say, 1,000 shares, the order to sell 600 shares would execute against that second Route Peg Order.
The Exchange elected to design the System in this manner, as opposed to alternatives such as measuring incoming orders against the aggregate size of all Route Peg Orders then on the Book, in order to avoid the possibility of a single block-sized order potentially clearing all the liquidity on the Book attributable to Route Peg Orders.
Route Peg Orders would be able to be entered, cancelled and cancelled/replaced prior to and during Regular Trading Hours.
The Route Peg Order would provide Members with an additional means to post stable trading interest at the NBB and NBO. The purpose of the Route Peg Order is to encourage Members to further enhance the depth of liquidity at the NBBO on the Exchange. The Exchange believes that if the Route Peg Order became widely used, Members seeking to access liquidity at the NBBO would be more motivated to direct their orders to EDGX because they would have a heightened expectation of the availability of liquidity at the NBBO. In addition, a User
The Exchange believes that the proposed rule changes are consistent with Section 6(b) of the Act
The benefits to investors of enhanced depth of liquidity at the NBBO in today's market structure cannot be understated. The Route Peg Order is designed to incentivize Users to place greater liquidity at the NBBO, thereby promoting more favorable and efficient executions for the benefit of public customers. It would do so by (1) Offering liquidity providers a means to use the Exchange to post larger limit orders that are only executable at the NBBO and that do not disclose their trading interest to other market participants in advance of execution; (2) offering market participants seeking to access liquidity a greater expectation of market depth at the NBBO than may currently be the case; and (3) offering more predictable executions at the NBBO for Users by reducing the risk that incremental latency associated with routing an order to an away destination may result in an inferior execution. Thus, by providing an additional means by which market participants can be encouraged to post liquidity at the NBBO on the Exchange, which would add depth and support to the NBBO on the Exchange and mitigate the negative effects of market fragmentation, the proposed rule changes would promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market and national market system. Moreover, the proposed rule changes would protect investors and the public interest by increasing the probability of an execution on the Exchange at the NBBO in the event that the order would otherwise be shipped to an external destination and potentially miss an execution at the NBBO while in transit.
The Exchange believes, however, that the benefits to be derived from Route Peg Orders would only be realized if Route Peg Orders only interact with orders eligible for routing. Routable orders are typically characteristic of public customers, both retail and institutional (colloquially referred to as well as “natural” investors), who are concerned with executing at the best price. On the other hand, non-routable orders typically expect to post liquidity on the Book or seek to execute immediately, such as via an Immediate-or-Cancel Order, against the Exchange's best displayed bid or offer or to ferret out hidden liquidity at or inside the NBBO (colloquially referred to as well as “pinging”). Professional traders, in particular, are more apt to submit, and often immediately cancel, “pinging” orders, as reflected in generally higher message-to-trade ratios. The Exchange believes this type of order behavior, while it may have its own business purposes, would not be suitable to interact with Route Peg Orders simply because Users would be reticent to post liquidity via Route Peg Orders given the uncertain, and therefore difficult to manage, exposure to executions against orders attributable to professional traders. Indeed, we believe potential liquidity providers would be more apt to provide liquidity in alternative trading systems and other non-exchange market centers where the customization and segmentation experience may be less transparent and objective.
While non-routable orders would not be permitted to execute against Route Peg Orders, the Exchange does not believe that the proposed rule changes would be designed to permit unfair discrimination between customers, brokers, or dealers. First, the Exchange believes this limited exception is constructed narrowly enough, based on rational and legitimate grounds, so that the compelling policy objectives, which are wholly consistent with the Act, can be realized. Second, the Exchange is not proposing to limit the type of User that can place routable orders, or that can place Route Peg Orders. So any disadvantage resulting from the limitation to executing against routable orders would not target particular segments of market participants,
Finally, because the Route Peg Order would be functionally similar to the Supplemental Order that is currently offered by the NASDAQ Stock Market LLC (“NASDAQ”),
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Within 45 days of the date of publication of this notice or within such longer period (i) as the Commission may designate up to 45 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will:
(a) By order approve or disapprove such proposed rule changes; or
(b) Institute proceedings to determine whether the proposed rule changes 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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 May 15, 2012, NASDAQ OMX PHLX LLC (“Exchange” or “PHLX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
PHLX Rule 985(b) prohibits the Exchange or any entity with which it is affiliated from, directly or indirectly, acquiring or maintaining an ownership interest in, or engaging in a business venture with, an Exchange member or an affiliate of an Exchange member in the absence of an effective filing under Section 19(b) of the Act.
On May 1, 2012, BX filed a proposed rule change to establish a new BX options market (“BX Options”), which will be an electronic trading system that trades options.
After careful review, 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.
NOS will operate as a facility of BX that provides outbound options routing from BX Options to other market centers, subject to certain conditions.
Recognizing that the Commission has previously expressed concern regarding the potential for conflicts of interest in instances where a member firm is affiliated with an exchange of which it is a member, the Exchange previously proposed, and the Commission approved, limitations and conditions on NOS's affiliation with the Exchange.
• First, the Exchange and the Financial Industry Regulatory Authority (“FINRA”) will maintain a Regulatory Contract, as well as an agreement pursuant to Rule 17d–2 under the Act (“17d–2 Agreement”).
• Second, FINRA will monitor NOS for compliance with PHLX's trading rules, and will collect and maintain certain related information.
• Third, FINRA will provide a report to the Exchange's chief regulatory officer (“CRO”), on a quarterly basis, that: (i) Quantifies all alerts (of which the Exchange or FINRA is aware) that identify NOS as a participant that has potentially violated Commission or Exchange rules, and (ii) lists all investigations that identify NOS as a participant that has potentially violated Commission or PHLX rules.
• Fourth, the Exchange has in place PHLX Rule 985, which requires NASDAQ OMX, as the holding company owning both the Exchange and NOS, to establish and maintain procedures and internal controls reasonably designed to ensure that NOS does not develop or implement changes to its system, based on non-public information obtained regarding planned changes to the Exchange's systems as a result of its affiliation with the Exchange, until such information is available generally to similarly situated Exchange members, in connection with the provision of inbound options order routing to the Exchange.
• Fifth, the Exchange proposes that the routing of options orders from NOS to the Exchange, in NOS's capacity as a facility of BX be authorized for a pilot period of one year.
In the past, the Commission has expressed concern that the affiliation of an exchange with one of its members raises potential conflicts of interest, and the potential for unfair competitive advantage.
The Commission believes that these limitations and conditions enumerated above will mitigate its concerns about potential conflicts of interest and unfair competitive advantage. In particular, the Commission believes that a non-
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
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 institute an excess order fee. [sic] NASDAQ will implement the proposed change on July 2, 2012. The text of the proposed rule change is available at
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 those statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NASDAQ recently submitted a proposed rule change to introduce an Excess Order Fee,
Through this proposed rule change, the Exchange is modifying the parameters of the fee slightly to provide that all calculations under the rule establishing the fee will be based on orders received by NASDAQ during regular market hours (generally, 9:30 a.m. to 4:00 p.m.)
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
As originally proposed and as modified by this proposed rule change, NASDAQ believes that the Order Entry Fee is reasonable because it is designed to achieve improvements in the quality of displayed liquidity and market data that will benefit all market participants. In addition, although the level of the fee may theoretically be very high, the fee is reasonable because market participants may readily avoid the fee by making improvements in their order entry practices that reduce the number of orders they enter, bring the prices of their orders closer to the NBBO, and/or increase the percentage of their orders that execute. The proposed change to the fee is reasonable because it will reduce the likelihood of the fee being imposed on an MPID that is considered acceptably efficient during regular market hours, when the impact of
For similar reasons, the fee is consistent with an equitable allocation of fees, because although the fee may apply to only a small number of market participants, the fee would be applied to them in order to encourage better order entry practices that will benefit all market participants. Ideally, the fee will be applied to no one, because market participants will adjust their behavior in order to avoid the fee. The proposed change will increase the likelihood that the fee will not be imposed in unwarranted circumstances. Finally, NASDAQ believes that the fee is not unfairly discriminatory. Although the fee may apply to only a small number of market participants, it will be imposed because of the negative externalities that such market participants impose on others through inefficient order entry practices. The proposed modification to the fee is not unfairly discriminatory because although it will lessen the potential impact of the fee on MPIDs that are active outside of regular market hours, this change is rationally related to the fee's purpose of promoting efficient trading practices in conditions where inefficiency may negatively impact NASDAQ and other market participants.
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. Specifically, NASDAQ believes that the fee will constrain market participants from pursuing certain inefficient and potentially abusive trading strategies. To the extent that this change may be construed as a burden on competition, NASDAQ believes that it is appropriate in order to further the purposes of Section 6(b)(5) of the Act.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ is filing with the Commission a proposal for the NASDAQ Options Market (“NOM”) to amend the following provisions: Chapter I, Section 3 to add additional exchanges to the list of those rules incorporated by reference; Chapter V, Section 3 to provide that market maker interest is cancelled during a halt;
The text of the proposed rule change is available from NASDAQ's Web site at
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 proposes to correct and clarify various provisions in NOM rules. Specifically, NASDAQ proposes to amend Chapter I, Section 3, to add to the list of those rules incorporated by reference. Currently, the rule refers to the Financial Industry Regulatory Authority (“FINRA”), but not to the Chicago Board Options Exchange nor to the New York Stock Exchange, which are now proposed to be added. NASDAQ believes that the proposed change is not controversial, because it merely codifies two additional exchanges into the provision that covers rules that are incorporated by reference.
NASDAQ proposes to amend Chapter V, Section 3, to provide that market maker interest is cancelled during a halt. Currently, this provision states that during a halt, the Exchange will maintain existing orders on the book, accept orders, and process cancels. However, Market Maker interest entered pursuant to the obligations contained in Chapter VII, Section 5 is cancelled. Therefore, NASDAQ proposes to add this language to the rule to more accurately reflect what occurs during a halt. Furthermore, it is not reasonable for a Market Maker to determine an option's price without taking into account the event that caused the halt in that option, and it is not beneficial to the market to maintain the quotes of Market Makers when an option halts. Therefore, NASDAQ believes that the proposed change is not controversial.
NASDAQ proposes to amend Chapter VI, Section 6(a)(1) to delete reference to a limit price to be clear that market orders are accepted. NASDAQ believes that this proposal is not controversial, because another rule already provides that market orders are accepted.
NASDAQ also proposes to amend Chapter VI, Section 1(e)(3), to provide that Minimum Quantity Orders are treated as having a time-in-force designation of Immediate or Cancel (“IOC”). The current language of Chapter VI, Section 1(e)(3) states that Minimum Quantity Orders may only be entered with a time-in-force designation of IOC; however, in actuality, Minimum Quantity Orders with any time-in-force designation may be entered and will be treated as IOC. Accordingly, the provision should say that Minimum Quantity Orders are treated as having a time-in-force designation of IOC, regardless of the time-in-force designation on the order. This has been the case since NOM launched in 2008 and NASDAQ recently realized that the language should be corrected. NASDAQ does not believe that this is a controversial change to NOM's rules, because it accurately described the operation of the System, and, NASDAQ notes that the System has been accepting more orders, which is useful to order entry firms. In addition, treating a Minimum Quantity Order as IOC regardless of the time-in-force designation on the order is akin to how NOM handles All-or-None orders today, which are very similar.
NASDAQ proposes to amend Chapter VI, Section 1(d) to delete Attributable and Non-Attributable Orders. Attributable orders are orders that are designated for display (price and size) next to the Participant's MPID.
In addition, NASDAQ proposes to amend Chapter VI, Section 1(e)(8), to provide that ISOs may have any time-in-force designation except WAIT. The current language implies that all ISOs have a time-in-force designation of IOC, but that is not the case. ISOs can have a time-in-force of Day, GTC or IOC; ISOs that are marked as Day or GTC lose the ISO designation once posted on the book, meaning the order is no longer considered an ISO when posted on the book. If an entering firm cancels/replaces that resting Day ISO order, the replacement order cannot be marked as ISO. NASDAQ does not believe that this is controversial, because it is useful to order entry firms to be able to submit ISOs other than IOC and another exchange also permits this.
NASDAQ also proposes to amend Chapter VI, Section 2(a) to provide that option contracts on
Further, NASDAQ proposes to amend Chapter VI, Section 11, to provide that routing is limited to System Securities. System Securities are all options that are currently trading on NOM pursuant
NASDAQ also proposes to amend Chapter VII, Section 12, Commentary .03 to delete the reference to non-displayed trading interest. NOM no longer has any order types with non-displayed interest; previously, NOM offered Discretionary Orders and Reserve Orders on NOM, but both have been eliminated.
NASDAQ also proposes minor typographical changes to the following rules: Chapter III, Section 13(c) (Mandatory Systems Testing); Chapter III, Section 14(a) (Limit on Outstanding Uncovered Short Positions); Chapter III, Section 15(g) (Significant Business Transactions of Options Clearing Participants); Chapter IV, Section 6(g) (Series of Options Contracts Open for Trading); Chapter XII, Section 3(b) (Locked and Crossed Markets); and Chapter XIV, Section 3(b)(12) (Designation of a Broad-Based Index).
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
In addition, making clearer that Market Orders are accepted should promote just and equitable principles of trade, by removing an inconsistency between two rules so firms know that such orders are permitted. Furthermore, accepting Market Orders in addition to Limit Orders provides investors with additional tools for market participation. Additional order choices helps Participants achieve their investment objectives when interacting with the market. At least one other exchange recognizes this and allows both limit and market orders.
Deleting the terms Attributable Order and Non-Attributable Order also promotes just and equitable principles of trade by making clear that all orders are non-attributable. NASDAQ experienced no demand for the ability to provide attribution to orders. Neither consumers of NASDAQ data, nor the providers of orders requested attribution functionality. As such, NASDAQ removed this ability to simplify its systems and the related rules.
Permitting ISOs to have a time-in-force designation other than IOC assists order entry firms in managing ISOs, because some firms may seek to have such orders post on the book if they do not immediately execute, which promotes just and equitable principles of trade. Allowing a Participant to post an ISO, after having properly submitted the required ISOs to other exchanges with equal or better prices, should provide the market and investors with superior prices. It also helps the Participant who submitted the ISO to more accurately reflect the value they assign to the security designated on the order.
Specifying that option contracts on certain fund shares or broad-based indexes may close at 4:15 p.m. is intended to correct the rule to be clear that some such products close at 4 p.m., which should promote just and equitable principles of trade. Generally, the more information that is available to the market, the better it is for investors. In particular, the more accurate the information is, the better market participants can manage their objectives. Correcting this language will make it clear to investors that some products close at 4 p.m. and some close at 4:15 p.m. The ability to get the closing times for specific funds from the NOM Web site will provide participants with the precise information they need.
Limiting routing to System Securities is common, such that eliminating the routing of Non-System Securities should not have a significant effect on Participants and correcting the rule makes this clear, which should promote just and equitable principles of trade. As stated above, it is common practice for options exchanges to only route orders for securities that are listed on the exchange. In fact, it is NASDAQ's understanding that NOM was the only exchange that offered routing for securities not listed on NOM. NOM experimented with the feature to explore whether there was an underserved customer segment and discovered that the feature often led to confusion and operational headaches for Participants and thus was rarely used.
Deleting the reference to non-displayed trading interest is merely a correction to address that previously available order types are no longer covered by this provisions, which provides better clarity, and thereby promotes just and equitable principles of trade. As discussed above, this reference was in place to reflect how NOM viewed the exposure rule in relation to Reserve Order, which were eliminated. NASDAQ inadvertently left this language in the rulebook which created confusion for members. Clarity with respect to the exposure rule provides Participants with a better understanding of how to comply with this rule.
Accordingly, NASDAQ believes that all of the changes proposed herein should promote just and equitable principles of trade, consistent with Section 6(b)(5).
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.
The Exchange believes that the foregoing proposed rule change may take effect upon filing with the Commission pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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 (the “Act”),
The Exchange proposes to amend its rules related to its Automated Improvement Mechanism (“AIM”). The text of the proposed rule change is available on the Exchange's Web site (
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.
In December 2009, the Commission approved adoption of C2's rules, including the AIM auction process.
The Commission approved on a pilot basis the component of AIM that there is no minimum size requirement for orders to be eligible for the auction. In connection with the pilot program, the Exchange has submitted to the Commission reports providing AIM auction and order execution data, and the Exchange will continue to submit to the Commission these reports. Two one-year extensions to the pilot program have previously become effective.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the proposed rule change protects investors and the public interest by allowing for an extension of the AIM pilot program, and thus allowing additional time for the Commission to evaluate the AIM pilot program. The AIM pilot program will continue to allow smaller orders to receive the opportunity for price improvement pursuant to the AIM auction.
C2 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 neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay period. The Commission believes that waiver of the 30-day operative delay period is consistent with the protection of investors and the public interest because such waiver will allow the AIM pilot program to continue without interruption. Accordingly, the Commission designates the proposed rule change operative upon filing with the Commission.
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend 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. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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 (the “Act”),
The Exchange proposes to amend its rules related to its Automated Improvement Mechanism (“AIM”). The text of the proposed rule change is available on the Exchange's Web site (
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.
In February 2006, CBOE obtained approval from the Commission to adopt the AIM auction process.
With respect to non-FLEX Options, the Commission approved two components of AIM on a pilot basis: (1) That there is no minimum size requirement for orders to be eligible for the auction; and (2) that the auction will conclude prematurely anytime there is a quote lock on the Exchange pursuant to Rule 6.45A(d).
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the proposed rule change protects investors and the public interest by allowing for an extension of the AIM pilot programs, and thus allowing additional time for the Commission to evaluate the AIM pilot programs. The AIM pilot programs will continue to allow (1) smaller orders to receive the opportunity for price improvement pursuant to the AIM auction (for non-FLEX and FLEX Options), and (2) Agency Orders in AIM auctions that are concluded early because of quote lock on the Exchange to receive the benefit of the lock price (for non-FLEX Options).
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.
The Exchange neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay period. The Commission believes that waiver of the 30-day operative delay period is consistent with the protection of investors and the public interest because such waiver will allow the AIM pilot programs to continue without interruption. Accordingly, the Commission designates the proposed rule change operative upon filing with the Commission.
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend 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. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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 (the “Act” or the “Exchange Act”),
The Exchange is proposing to amend BATS Rules 14.2 and 14.3 to adopt additional listing requirements for a company that has become an Act reporting company by combining either directly or indirectly with a public shell, whether through a Reverse Merger, exchange offer, or otherwise (a “Reverse Merger”). The text of the proposed rule addition is available at the Exchange's Web site at
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 those 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 is proposing to adopt more stringent listing requirements for operating companies that become Exchange Act reporting companies through a Reverse Merger (“Reverse Merger Companies”). In a Reverse Merger, an existing public shell company merges with a private operating company in a transaction in which the shell company is the surviving legal entity. While the public shell company survives the merger, the shareholders of the private operating company typically hold a large majority of the shares of the public company after the merger and the management and board of the private company will assume those roles in the post-merger public company. The assets and business operations of the post-merger are primarily, if not solely, those of the former private operating company. The Exchange understands that private operating companies generally enter into Reverse Merger transactions to enable the company and its shareholders to sell shares in the public equity markets. By becoming a public reporting company via a Reverse Merger, a private operating company can access the public markets quickly and avoid the generally more expensive and lengthy process of going public by way of an initial public offering. While the public shell company is required to report the Reverse Merger in a Form 8–K filing with the Commission, generally there are no registration requirements under the Securities Act of 1933 (the “Securities Act”)
Significant regulatory concerns, including accounting fraud allegations, have arisen with respect to a number of Reverse Merger Companies in recent times. The Commission has taken direct action against Reverse Merger Companies. During 2011, the Commission suspended trading in the securities of numerous Reverse Merger Companies.
BATS Rule 14.2 provides the exchange with “broad discretionary authority over the initial and continued listing of securities on the Exchange in order to maintain the quality of and public confidence in its market, to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and to protect investors and the public interest.” BATS Rule 14.2 also provides that the Exchange may use such discretion to “deny initial listing, apply additional or more stringent criteria for the initial or continued listing of particular securities, or suspend or delist particular securities based on any event, condition, or circumstance that exists or occurs that makes initial or continued listing of the securities on the Exchange inadvisable or unwarranted in the opinion of the Exchange, even though the securities meet all enumerated criteria for initial or continued listing on the Exchange.” The Exchange may use this discretionary authority to increase the stringency of its stated listing criteria, but not to decrease their stringency.
In light of the well-documented concerns related to some Reverse Merger Companies described above, the Exchange believes that it is appropriate to codify in its rules specific requirements with respect to the initial listing qualification of Reverse Merger Companies. As proposed, a Reverse Merger Company would not be eligible for listing unless the combined entity had, immediately preceding the filing of the initial listing application:
(1) Traded for at least one year in the U.S. over-the-counter market, on another national securities exchange, or on a regulated foreign exchange following the consummation of the Reverse Merger and (i) in the case of a domestic issuer, filed with the Commission a form 8–K including all of the information required by Item 2.01(f) of Form 8–K, including all required audited financial statements; or (ii) in the case of a foreign private issuer, filed
(2) Maintained on both an absolute and an average basis for a sustained period a minimum stock price of at least $4, but in no event for less than 30 of the most recent 60 trading days prior to each of the filing of the initial listing application and the date of the Reverse Merger Company's listing on the Exchange, except that a Reverse Merger Company that has satisfied the one-year trading requirement described in (1) above and has filed at least four annual reports with the Commission which each contain all required audited financial statements for a full fiscal year commencing after filing the information described in paragraph (1) above will not be subject to this price requirement; and
(3) Timely filed with the Commission all required reports since the consummation of the Reverse Merger, including the filing of at least one annual report containing audited financial statements for a full fiscal year commencing on a date after the date of filing with the Commission of the filing described in (1) above.
In addition, a Reverse Merger Company would be required to maintain on both an absolute and an average basis a minimum stock price of at least $4 through listing.
The Exchange believes that requiring a “seasoning” period prior to listing for Reverse Merger Companies should provide great assurance that the company's operations and financial reporting are reliable, and will also provide time for its independent auditor to detect any potential irregularities, as well as for the company to identify and implement enhancements to address any internal control weaknesses. The seasoning period will also provide time for regulatory and market scrutiny of the company and for any concerns that would preclude listing eligibility to be identified.
In addition, the Exchange believes that the proposed rule change will increase transparency to issuers and market participants with respect to the factors considered by the Exchange in assessing Reverse Merger Companies for listing and should generally reduce the risk of regulatory concerns with respect to these companies being discovered after listing. However, the Exchange notes that, while it believes that the proposed requirements would be a meaningful additional safeguard, it is not possible to guarantee that a Reverse Merger Company (or any other listed company) is not engaged in undetected accounting fraud or subject to other concealed and undisclosed legal or regulatory problems.
For purposes of the proposed amendment to BATS Rules 14.2(c) and 14.3(b)(9) (which will both be applicable to Reverse Merger Companies which qualify to list under BATS Rules) and as defined above, a Reverse Merger would mean any transaction whereby an operating company became an Exchange Act reporting company by combining either directly or indirectly with a shell company that was an Exchange Act reporting company, whether through a Reverse Merger, exchange offer, or otherwise. However, a Reverse Merger would not include the acquisition of an operating company by a listed company that qualified for initial listing under BATS Rule 14.2(b) (the Exchange's standard for companies whose business plan is to complete one or more acquisitions). In determining whether a company was a shell company, the Exchange would consider, among other factors: Whether the company was considered a “shell company” as defined in Rule 12b–2 under the Exchange Act; what percentage of the company's assets were active versus passive; whether the company generates revenues, and if so, whether the revenues were passively or actively generated; whether the company's expenses were reasonably related to the revenues being generated; how many employees worked in the company's revenue-generating business operations; how long the company had been without material business operations; and whether the company had publicly announced a plan to begin operating activities or generate revenues, including through a near-term acquisition or transaction.
In order to qualify for initial listing, a Reverse Merger Company would be required to comply with one of the initial listing standards set forth in BATS Rule 14.4 or 14.5 and the stock price and market value requirements of BATS Rule 14.8 or 14.9, as appropriate. Proposed Rules 14.2(c)(3) and 14.3(b)(9) would supplement and not replace any applicable requirements of Chapter XIV of BATS Rules. However, in addition to the otherwise applicable requirements of BATS Rules, a Reverse Merger Company would be eligible to submit an application for an initial listing only if it meets the additional criteria specified above.
The Exchange would have the discretion to impose more stringent requirements than those set forth above if the Exchange believed that it was warranted in the case of a particular Reverse Merger Company, based on, among other things, an inactive trading market in the Reverse Merger Company's securities, the existence of a low number of publicly held shares that were not subject to transfer restrictions, if the Reverse Merger Company had not had a Securities Act registration statement or other filing subjected to a comprehensive review by the Commission, or if the Reverse Merger Company had disclosed that it had material weaknesses in its internal controls which had been identified by management and/or the Reverse Merger Company's independent auditor and had not yet implemented an appropriate corrective action plan.
The Exchange reiterates that any Reverse Merger Company would have to comply with all listing standards set forth in BATS Rules, including corporate governance standards. The Exchange also notes that it will monitor the compliance with applicable BATS Rules by any Reverse Merger Company and will investigate any issues that indicate that a Reverse Merger Company is non-compliant with BATS Rules.
A Reverse Merger Company would not be subject to the requirements of proposed BATS Rules 14.2(c)(3) and 14.3(b)(9) if, in connection with its listing, it completes a firm commitment underwritten public offering where the gross proceeds to the Reverse Merger Company will be at least $40 million.
The Exchange notes that the proposal is based on and consistent with recent Commission approvals of analogous rules for the New York Stock Exchange LLC (“NYSE”), NYSE Amex LLC (“AMEX”) and the NASDAQ Stock Market LLC (“Nasdaq”).
The Exchange believes that its proposal is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
The Exchange does not believe that the proposed rule change will result in any burden on competition.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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 (the “Act”),
The Exchange proposes to amend its fees and rebates applicable to Members
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of,
The Exchange proposes to add Flag DM to its fee schedule. Such flag will be yielded when Members add or remove liquidity in the discretionary (hidden) range using the Mid-Point Discretionary Order type (“MDO”).
The Exchange proposes to implement this amendment to its fee schedule on June 19, 2012.
The Exchange believes that the proposed rule changes are consistent with the objectives of Section 6 of the Act,
The Exchange believes that Flag DM is designed to provide for the equitable allocation of reasonable dues, fees and other charges among its Members and other customers using the Exchange's facilities. As stated in SR–EDGA–2012–22, MDOs represent a combination of two existing order types:
The MDO has two discrete components—a displayed portion that is pegged to the NBB or NBO, and a non-displayed portion which gives discretion to execute to the mid-point of the NBBO, subject to certain limits. The displayed, pegged portion of the MDO is conceptually similar to the Exchange's Pegged Order.
As such, the proposed rate for Flag DM is reflective of this concept. When the MDO adds liquidity like a displayed Pegged Order, the Exchange will continue to offer a rebate of $0.0003 per share and the order will continue to receive Flags B, V, Y, 3, or 4. Where the MDO adds or removes liquidity, including upon entry, within the Member's specified discretionary (hidden) range, then it behaves like a Non-Displayed or Discretionary Order, which is proposed to now be assessed a rate of $0.0005 per share. Today, without the addition of Flag DM, such Non-Displayed or Discretionary Orders would yield Flags HA or HR and be assessed a rate of $0.0010 per share or $0.0030 per share if the conditions in the volume tier are not satisfied by the Member.
The Exchange proposes to exclude the volume generated from Flag DM from counting towards the volume tiers because a Member can potentially receive Flag DM if the Member either adds or removes liquidity using the MDO; therefore, the Exchange believes it would be less confusing to exclude these executions from volume tiers (which are typically achieved by counting just the executions that add liquidity) and the footnote on the fee schedule would contribute towards more clarity and transparency for Members.
In addition, the Exchange believes that the proposed rate is non-discriminatory because the charge will apply uniformly to all Members.
The Exchange also notes that it operates in a highly-competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive. The proposed rule change reflects a competitive pricing structure designed to incent market participants to direct their order flow to the Exchange. The Exchange believes that the proposed rates are equitable and non-discriminatory in that they apply uniformly to all Members. The Exchange believes the fees and credits remain competitive with those charged by other venues and therefore continue to be reasonable and equitably allocated to Members.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3) 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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 (the “Act”),
The Exchange proposes to amend Rule 11.5 to provide an additional order type, the Route Peg Order. In addition, the Exchange proposes to amend Rule 11.8 to describe the priority of the Route Peg Order relative to other orders on the EDGA Book.
The text of the proposed rule changes are attached as Exhibit 5
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule changes and discussed any comments it received on the proposed rule changes. 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.
The Exchange proposes to amend Rule 11.5(c) to add a new subparagraph (14) that describes a Route Peg Order. A Route Peg Order would be a non-displayed limit order eligible for execution at the national best bid (the “NBB”) for Route Peg Orders to buy, and at the national best offer (the “NBO”, and together with the NBB, the “NBBO”) for Route Peg Orders to sell, against routable orders
An incoming order that has been designated as eligible for routing would be able to interact with Route Peg Orders. Such an order would first be matched against orders other than Route Peg Orders in price/time priority in accordance with Rule 11.8(a)(2)(A)–(C). If any portion of the incoming order remained unexecuted, only then would such order be eligible to execute against Route Peg Orders.
As mentioned
The Exchange elected to design the System in this manner, as opposed to alternatives such as measuring incoming orders against the aggregate size of all Route Peg Orders then on the Book, in order to avoid the possibility of a single block-sized order potentially clearing all the liquidity on the Book attributable to Route Peg Orders.
Route Peg Orders would be able to be entered, cancelled and cancelled/replaced prior to and during Regular Trading Hours.
The Route Peg Order would provide Members with an additional means to post stable trading interest at the NBB and NBO. The purpose of the Route Peg Order is to encourage Members to further enhance the depth of liquidity at the NBBO on the Exchange. The Exchange believes that if the Route Peg Order became widely used, Members seeking to access liquidity at the NBBO would be more motivated to direct their orders to EDGA because they would have a heightened expectation of the availability of liquidity at the NBBO. In addition, a User
The Exchange believes that the proposed rule changes are consistent with Section 6(b) of the Act
The benefits to investors of enhanced depth of liquidity at the NBBO in today's market structure cannot be understated. The Route Peg Order is designed to incentivize Users to place greater liquidity at the NBBO, thereby promoting more favorable and efficient executions for the benefit of public customers. It would do so by (1) offering liquidity providers a means to use the Exchange to post larger limit orders that are only executable at the NBBO and that do not disclose their trading interest to other market participants in advance of execution; (2) offering market participants seeking to access liquidity a greater expectation of market depth at the NBBO than may currently be the case; and (3) offering more predictable executions at the NBBO for Users by reducing the risk that incremental latency associated with routing an order to an away destination may result in an inferior execution. Thus, by providing an additional means by which market participants can be encouraged to post liquidity at the NBBO on the Exchange, which would add depth and support to the NBBO on the Exchange and mitigate the negative effects of market fragmentation, the proposed rule changes would promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market and national market system. Moreover, the proposed rule changes would protect investors and the public interest by increasing the probability of an execution on the Exchange at the NBBO in the event that the order would otherwise be shipped to an external destination and potentially miss an execution at the NBBO while in transit.
The Exchange believes, however, that the benefits to be derived from Route Peg Orders would only be realized if Route Peg Orders only interact with orders eligible for routing. Routable orders are typically characteristic of public customers, both retail and institutional (colloquially referred to as well as “natural” investors), who are concerned with executing at the best price. On the other hand, non-routable orders typically expect to post liquidity on the Book or seek to execute immediately, such as via an Immediate-or-Cancel Order, against the Exchange's best displayed bid or offer or to ferret out hidden liquidity at or inside the NBBO (colloquially referred to as well as “pinging”). Professional traders, in particular, are more apt to submit, and often immediately cancel, “pinging” orders, as reflected in generally higher message-to-trade ratios. The Exchange believes this type of order behavior, while it may have its own business purposes, would not be suitable to interact with Route Peg Orders simply because Users would be reticent to post liquidity via Route Peg Orders given the uncertain, and therefore difficult to manage, exposure to executions against orders attributable to professional traders. Indeed, we believe potential
While non-routable orders would not be permitted to execute against Route Peg Orders, the Exchange does not believe that the proposed rule changes would be designed to permit
Finally, because the Route Peg Order would be functionally similar to the Supplemental Order that is currently offered by the NASDAQ Stock Market LLC (“NASDAQ”),
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Within 45 days of the date of publication of this notice or within such longer period (i) as the Commission may designate up to 45 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will:
(a) By order approve or disapprove such proposed rule changes; or
(b) Institute proceedings to determine whether the proposed rule changes 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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 (the “Act”),
EDGA proposes to modify existing routing options contained in EDGA Rule 11.9(b)(3) to provide Users
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 self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange's current list of routing options is codified in Rule 11.9(b)(3). In this filing, the Exchange proposes to amend paragraph (3) of Rule 11.9(b) to indicate that the Exchange reserves the right to route orders both sequentially and simultaneously. This amendment allows for simultaneous routing to certain destinations on the System routing table. With respect to Rules 11.9(b)(3)(a), (b), (h), (m), and (t), specifically, the Exchange currently sends orders to certain destinations on the System routing table only in a sequential manner. For example, if an order cannot be filled after checking for available shares on the Exchange's book, the Exchange will route such order to certain destinations on the System routing table one at a time until all such destinations are exhausted, the order is cancelled, or the order is filled. As a result of the proposed change in functionality, which would allow such orders to be sent either sequentially or simultaneously, language in paragraph (3) of Rule 11.9(b) will be amended to account for the fact that the Exchange reserves the right to “route orders simultaneously or sequentially”. Other routing strategies in Rule 11.9(b) are already written broadly enough to allow for both sequential or simultaneous routing of orders, which the Exchange operates in a discretionary manner depending on the type of venues with which the order flow is routed to.
Simultaneous routing is an improvement on the current sequential manner in which orders are filled because it allows an order to be broken up into child orders to be sent to multiple destinations at one time instead of to one venue after another. Doing so has the potential to improve an order's fill rate, as well as reduce latency. The Exchange believes that the proposed introduction of this functionality will provide Users with increased access to multiple sources of liquidity and greater flexibility in routing orders, without having to develop their own complicated routing strategies. The Exchange also believes the proposed modification will provide additional specificity to the Exchange's rulebook regarding routing strategies and will further enhance transparency with respect to Exchange routing offerings.
The Exchange will notify its Members in an information circular of (a) the exact implementation date of this rule change, which will be no later than July 31, 2012; and (b) the manner in which certain routing options may function (
The Exchange believes that the proposed rule change is consistent with Section 6(b)(5) 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 has neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change does not (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b–4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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” or “Exchange Act”)
BOX Options Exchange LLC (the “Exchange”) proposes to amend its Fee Schedule for trading on its options facility, BOX Market LLC (“BOX”). While changes to the fee schedule pursuant to this proposal will be effective upon filing, the changes will become operative on July 1, 2012. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site at
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 amend its Fee Schedule. While changes to the fee schedule pursuant to this proposal will be effective upon filing, the changes will become operative on July 1, 2012.
The Exchange proposes to amend Market Maker Exchange Fees for Auction Transaction responses in Section I of its fee schedule to implement a tiered schedule to provide potentially discounted fees based upon a Market Maker's monthly average daily volume (“ADV”). Market Makers will be assessed a per contract execution fee based on ADV considering all of their executed transactions on BOX as calculated at the end of each month. All executions for the month will be charged the same per contract fee according to the Market Maker's ADV, according to the table below:
This proposal will potentially lower Market Maker fees for all transactions on BOX. In particular, this may potentially lower Market Maker fees for Improvement Orders in the Price Improvement Period (“PIP”) and Responses in the Solicitation or Facilitation Auction mechanisms on BOX, allowing Market Makers to more effectively compete for customer order flow in these mechanisms. Currently, Market Makers may achieve a discounted Exchange Fee rate in these Auction Transactions as their ADV in Auction Transactions (those transactions executed through the PIP, Solicitation Auction mechanism, and Facilitation Auction mechanism) increases past certain break points (e.g., 20,000 contracts, 50,000 contracts, etc.). The proposed change would provide Market Makers a potentially discounted Exchange Fee rate for all of their BOX trades as their monthly ADV for all transactions on BOX reaches certain break points.
The Exchange believes that providing this potential discount for Market Makers in connection with their ADV considering all of their transactions on BOX rather than only their Auction Transactions will allow additional Market Makers to benefit from the potential discounts in the tiered Exchange Fee schedule, and will provide an incentive for Market Makers to potentially provide greater liquidity on BOX. The Exchange also believes this may provide an incentive for Market Makers to provide more competition in BOX Auction Transactions.
The Exchange also proposes to amend the Market Maker Tiered Fee Schedule to modify the break point tiers and increase the per contract fees for Market Makers with monthly ADV of 50,000 contracts or less. Currently, Market Makers with monthly ADV of up to 10,000 contracts pay an Exchange Fee of $0.25, and those with ADV of 10,001 to 50,000 contracts pay $0.20. As set forth in the table above, the Exchange proposes to increase the per contract Exchange Fee for Market Makers with monthly ADV of 10,001 to 50,000 contracts to $0.25, increase the per contract Exchange Fee to $0.30 for Market Makers with monthly ADV of 5,001 to 10,000 contracts, and increase the per contract Exchange Fee to $0.35 for Market Makers with monthly ADV of 5,000 contracts or less.
The Exchange proposes to amend the Tiered Fee Schedule for Participants that initiate Auction Transactions (“Initiating Participants”). Currently, Initiating Participants pay a per contract fee, regardless of account type, that is reduced as the Participant's monthly ADV in Auction Transactions increases past certain break points. Currently, Initiating Participants pay $0.25 per contract for monthly ADV up to 20,000 contracts. The Exchange proposes to amend the tiers and increase the fees for those Participants with monthly ADV in Auction Transactions of 10,000 or less. The Exchange proposes to maintain the $0.25 fee for Initiating Participants with monthly ADV of 10,001 to 20,000 contracts. Additionally, the Exchange proposes to increase the fee to $0.30 for monthly ADV of 5,001 to 10,000 contracts, and to $0.35 for monthly ADV of 5,000 contracts or less.
The proposed tiered fee schedule for Initiating Participants is set forth below:
Finally, the Exchange proposes to increase the fee in Section I of the Fee Schedule for Broker-Dealer Improvement Orders in the PIP and Responses in the Solicitation and Facilitation Auction Mechanisms from $0.25 to $0.35.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act,
With regard to Market Maker exchange fees, the Exchange believes it is reasonable, equitable, and not unfairly discriminatory for BOX Market Makers to have the opportunity to benefit from potentially discounted fees based on all of their transactions on BOX. The Exchange believes that the proposed tiered and potentially discounted fees for Market Makers that on a daily basis, trade an average daily volume (as calculated at the end of the month) of more than 5,000 contracts on BOX represents a fair and equitable allocation of reasonable dues, fees, and other charges as it is aimed at incentivizing these participants to provide a greater volume of liquidity. The Exchange believes that giving incentives for this activity will result in increased liquidity on BOX, and within its auction mechanisms, to the benefit of
The Exchange believes the Market Maker fees proposed, including an increase in the fees at the bottom of the tiered schedule for Market Makers with ADV less than 10,000 contracts, are reasonable, equitable, and not unfairly discriminatory. BOX operates within a highly competitive market in which market participants can readily direct order flow to any other competing venue if they deem fees at a particular venue to be excessive. Additionally, Market Makers may choose on which markets they undertake their associated obligations and fees are a factor in their decision. The proposed Market Maker fees are intended to attract additional liquidity to BOX by offering market participants incentives to submit their quotes and orders. The Exchange believes that we are providing Market Makers a greater opportunity to receive discounted fees for their BOX transactions. To help offset the potentially discounted fees for Market Makers providing greater liquidity, the Exchange believes it is reasonable and equitable to increase the fees for Market Makers with ADV less than 10,000 contracts as these Market Makers are not providing the same level of liquidity to the market.
The Exchange believes it is equitable and non-discriminatory to provide Initiating Participants the proposed fees in a tiered structure to provide potential discount related to participation in BOX Auction Transactions. The proposed fees related to trading activity in BOX Auction Transactions are available to all BOX Options Participants that initiate Auction Transactions, and they may choose to trade on BOX to take advantage of the discounted fees for doing so, or not. The Exchange also believes the proposed fees for BOX Participants initiating Auction Transactions to be reasonable.
The Exchange believes that providing a volume discount to Options Participants that initiate auctions on customer orders is appropriate to provide an incentive to BOX Participants to submit their customer orders to BOX, particularly into the PIP for potential price improvement. Such a discount is necessary to limit the exposure that Initiating Participants will have to liquidity removal fees, because as Initiating Participants they will be adding liquidity and will be charged a fee should their principal order execute against the customer order in any BOX Auction Transaction. Further, the Exchange believes it is reasonable and equitable to increase the fees paid by Participants that have monthly Auction Transaction ADV of 10,000 contracts or less because the fees will be comparable to that of Market Makers trading on BOX.
Further, the Exchange believes the proposed $0.35 fee per executed contract for Broker-Dealer Improvement Orders in the PIP and Responses in the Solicitation and Facilitation Auction Mechanisms to be equitable, reasonable, and not unfairly discriminatory. The Exchange believes the proposed fee is reasonable because the Exchange does not charge broker-dealers fees other than transaction fees (e.g., ongoing systems access fees, ongoing fees for access to BOX market data, or fees related to order cancellation) as other exchanges. Additionally, the proposed increase in trading fees charged to broker-dealer proprietary accounts is designed to be comparable to the costs that such accounts would be charged at competing venues.
The Exchange believes it is equitable and not unfairly discriminatory to offer BOX Market Makers in Auction Transactions an opportunity to be charged potentially lower fees than broker-dealers. Market Makers have obligations that other Participants do not. In particular, they must maintain active two-sided markets in the classes in which they are appointed, and must meet certain minimum quoting requirements. As such, the Exchange believes it is appropriate that Market Makers be charged potentially lower transaction fees on BOX and within BOX Auction Transactions. As such, the
The Exchange believes that the proposed Exchange Fees will keep BOX competitive with other exchanges and apply in such a manner so as to be equitable among BOX Participants. The Exchange believes the proposed fees are fair and reasonable and must be competitive with fees in place on other exchanges. Further, the Exchange believes that this competitive marketplace impacts the fees proposed for BOX. Greater liquidity and additional volume executed on BOX aids the price and volume discovery process.
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. The Exchange believes the proposed fee changes are reasonably designed to potentially enhance competition in BOX Auction Transactions, particularly in the PIP.
The proposed fee changes modify the tiered fees charged to Initiating Participants based on their monthly ADV in Auction Transactions. This may result in higher fees for Initiating Participants with monthly Auction Transaction ADV of less than 20,000 contracts. The proposed changes also increases the fee charged to broker-dealers for Improvement Orders in the PIP and Responses in the Solicitation and Facilitation Auction Mechanisms from $0.25 to $0.35. The Exchange believes this increase will not impair broker-dealers from adding liquidity and competing in Auction Transactions, so that they may gain the opportunity to interact with the customer orders seeking to remove liquidity in Auction Transactions.
Further, the proposed changes modify the tiered fees for Market Makers based on their ADV considering all of their BOX transactions. This may potentially increase or decrease any particular Market Maker's fees on BOX, including those fees for Auction Transactions, based on their monthly ADV. The Exchange believes it is likely that more Market Makers may benefit from lower fees as a result of this proposed change, lowering their cost to compete in BOX Auction Transactions.
Considering all of the above, the Exchange believes the proposed fee changes are reasonably designed to potentially enhance competition in BOX Auction Transactions, particularly in the PIP, and 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.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend 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 Exchange 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Apogee Technology, Inc. (“Apogee”) because it has not filed any periodic reports since the period ended June 30, 2011.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company, and any equity securities of any entity purporting to succeed to this issuer.
Therefore,
By the Commission.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Michigan dated 06/28/2012.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 131016 and for economic injury is 131020. The State which received an EIDL Declaration No. is Michigan.
The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 301.201
Federal Aviation Administration (FAA), DOT.
Notice of Proposal to Release Airport Property.
The FAA proposes to rule and invites public comment on the release of land at Portland—Hillsboro Airport under the provisions of Section 125 of the Wendell H. Ford Aviation Investment Reform Act for the 21st Century (AIR 21), now 49 U.S.C. 47107(h)(2).
The FAA is considering a proposal to change a portion of the airport from aeronautical use to nonaeronautical use and to authorize the sale and/or conversion of the airport property. The proposal consists of two parcels of land containing a total of approximately 3.21 acres located in the southeast portion of the airport southeast of Cornell Rd. The FAA may approve the request, in whole or in part, no later than August 6, 2012.
Comments must be received on or before August 6, 2012.
Comments on this application may be mailed or delivered to the FAA at the following address: Dave Roberts, Federal Aviation Administration, Northwest Mountain Region, Airports Division, Seattle Airports District Office, 1601 Lind Avenue SW., Suite 250, Renton, Washington 98057–3356.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Port of Portland at the following address: Steve Nagy, Hillsboro Airport Manager, Port of Portland, 7200 NE. Airport Way, Portland, OR 97218.
Dave Roberts, Federal Aviation Administration, Northwest Mountain Region, Seattle Airports District Office, 1601 Lind Avenue SW., Suite 250, Renton, Washington 98057–3356.
The request to release property may be reviewed, by appointment, in person at this same location.
The FAA invites public comment on the request to release property at the Portland—Hillsboro Airport under the provisions of the AIR 21 (49 U.S.C. 47107(h)(2)).
The following is a brief overview of the request:
The Port of Portland is proposing the release of approximately 3.21 acres of airport property acquired under federal grants: FAAP 9–35–063–D903, FAAP 9–35–063–E802, and ADAP 5–41–0025–04.
The land will be transferred to the City of Hillsboro for right-of-way use in constructing an extension of NE Veterans Drive and associated storm sewers. The Port of Portland proposes swapping the land with the City of Hillsboro and the County of Washington for approximately 4.1 acres of vacant right-of-way located on the airport in the runway 13 safety area and protection zone near NE Evergreen Road.
The property is described as follows:
(1) A tract of land located in the north one-half of Section 33 of Township 1 North, Range 2 West, Willamette Meridian, City of Hillsboro, Washington County, Oregon, and also being a portion of that property described in warranty deeds to the Port of Portland, recorded in Book 623, Page 367 and Book 824, Page 830 and Document Number 84044001 all recorded in the deed records of Washington County. Containing 136,106 square feet more or less.
(2) A tract of land located in the northeast one-quarter of Section 33 of Township 1 North, Range 2 West, Willamette Meridian, City of Hillsboro, Washington County, Oregon and also being a portion of that property described in warranty deed to the Port of Portland, as recorded in Book 623, Page 367 in the deed records of Washington County. Containing 4,000 square feet more or less.
Any person may inspect, by appointment, the request in person at the FAA office listed above under
In addition, any person may, upon appointment and request, inspect the application, notice and other documents germane to the application in person at the Portland—Hillsboro Airport or the Port of Portland offices at the Portland International Airport.
Federal Aviation Administration, DOT.
Notice of Request to Release Airport Land.
The Federal Aviation Administration (FAA) proposes to rule and invites public comment on the application for a release of approximately 13.35 acres of airport property at the Fresno Yosemite International Airport (FAT), Fresno, California from all conditions contained in the Grant Assurances since the parcels of land is not needed for airport purposes. The land is located approximately 5,000 feet from the end of runway 11L in the northwest corner of the airport property. The property will be sold for its fair market value to the Fresno Metropolitan Flood Control District and the proceeds deposited in the airport account. The Fresno Metropolitan Flood Control District will continue use of the property as storm water detention basin. The detention basin usage will keep the property vacant and compatible with the airport to ensure it does not interfere with the airport or its operation, as well as continuing to serve the interest of civil aviation.
Comments must be received on or before August 6, 2012.
Comments on the request may be mailed or delivered to the FAA at the following address: Robert Lee, Airports Compliance Specialist, Federal Aviation Administration, San Francisco Airports District Office, Federal Register Comment, 1000 Marina Boulevard, Suite 220, Brisbane, CA 94005. In addition, one copy of the comment submitted to the FAA must be mailed or delivered to Mr. Russell C. Widmar, Director of Aviation, 4995 E. Clinton Way, Fresno, CA 93727.
In accordance with the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), Public Law 106–181 (Apr. 5, 2000; 114 Stat. 61), this notice must be published in the
The following is a brief overview of the request:
The City of Fresno, California requested a release from grant assurance obligations for approximately 13.35 acres of airport land to allow for its sale. The property was originally acquired as separate parcels with federal funding and airport generated funds. Approximately 2.23 acres were acquired under Airport Development Aid Program (ADAP) grant No. 6–06–0087–02; 1.41 acres were acquired under Airport Development Aid Program (ADAP) grant No. 6–06–0087–06; 3.05 acres were acquired under Airport Improvement Program (AIP) grant No. 3–06–0087–16 for noise abatement; 4.02 acres acquired under AIP grant No. 3–06–0087–19 for noise abatement; and 2.64 acres of the land was acquired from the State of California with airport generated funds for a total of 13.35 acres of airport land to be released.
Due to its location and condition, the property cannot be used for airport purposes. The property previously contained homes that have been removed and the land cleared. The land is presently kept vacant and is unimproved and does not have any current or future income generating potential. The planned land use is for a storm water detention basin and will be kept vacant. The release will allow 13.35 acres to be sold to the Fresno Metropolitan Flood Control District. The sale price will be based on an upward adjusted appraised fair market value. The sale proceeds will be deposited in the airport account. The Fresno Yosemite International Airport will be properly compensated, thereby serving the interests of civil aviation.
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by FHWA.
This notice announces actions taken by the FHWA that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to the Interstate 395 High Occupancy Vehicle (HOV) Ramp at Seminary Road project in the City of Alexandria, Virginia. Those actions grant licenses, permits, and approvals for the project.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(
Mr. John Simkins, Planning and Environment Team Leader, Federal Highway Administration, 400 North 8th Street, Richmond, Virginia 23219; telephone: (804) 775–3342; email:
Notice is hereby given that FHWA has taken final agency actions subject to 23 U.S.C. 139(l)(1) by issuing licenses, permits, and approvals for the following project in the State of Virginia: Interstate 395 High Occupancy Vehicle (HOV) Ramp at Seminary Road. The project would involve construction of a ramp between the Interstate 395 HOV lanes and Seminary Road. The actions taken by FHWA, and the laws under which such actions were taken, are described in the Environmental Assessment, the May 10, 2012 letter revising the Environmental Assessment and requesting a Finding of No Significant Impact (FONSI), the FONSI that was issued on June 12, 2012, and in other documents in the FHWA project records. The Environmental Assessment, the letter revising the Environmental Assessment and requesting a FONSI, and the FONSI can be viewed on the project's Internet site at
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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23 U.S.C 139(
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) has received a request for a waiver of compliance from certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
The Lake Railway LLC (LRY) petitioned FRA for a waiver from the requirements of 49 CFR 231.30 regarding their locomotive, LRY #2809, a 1985 EMD Model GP49.
As stated by the petitioner, this locomotive has been in service with the current step arrangement for decades, as it was modified for specific use by its original owner, Alaska Railroad. The current configuration of the front ladder does not present a safety hazard to LRY crews that are regularly assigned to use this locomotive. In summary, the configuration of the front ladder arrangement is equivalent to that for a locomotive built prior to April 1, 1977.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (e.g., Waiver Petition Docket Number FRA–2012–0050) and may be submitted by any of the following methods:
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Communications received within 45 days of the date of this notice will be
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before August 6, 2012.
Comments should refer to docket number MARAD–2012–0074. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–0903, Email
As described by the applicant the intended service of the vessel RANGER is:
The complete application is given in DOT docket MARAD–2012–0074 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before August 6, 2012.
Comments should refer to docket number MARAD–2012–0075. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–0903, Email
As described by the applicant the intended service of the vessel CHA–CHING is:
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, PHMSA invites comments on a new information collection (IC) to help determine the effectiveness of PHMSA's 811 Public Service Announcement (PSA) campaign. In calendar year 2012, as part of a campaign to raise awareness of 811 as the national “Call Before You Dig” toll-free telephone number, PHMSA produced a 30-second video PSA, a 30-second radio PSA and a 60-second radio PSA. All were produced in both English and Spanish and are available in several formats for downloading and broadcasting. PHMSA seeks to measure the effectiveness of the campaign through an online survey. After the comments to this notice are addressed, PHMSA will request approval for this new information collection from the Office of Management and Budget (OMB).
Interested persons are invited to submit comments on or before September 4, 2012.
Comments may be submitted in the following ways:
Angela Dow by telephone at 202–366–1246, by fax at 202–366–4566, or by mail at U.S. DOT, PHMSA, 1200 New Jersey Avenue SE., PHP–30, Washington, DC 20590–0001.
Section 1320.8(d), Title 5, Code of Federal Regulations requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies a new information collection request that PHMSA will submit to OMB for approval. The information collection will be titled: “U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 811 Awareness Survey.” This information collection will provide the data necessary to measure the effectiveness of the PHMSA 811 PSA campaign. Excavation damage to pipelines is a leading cause of serious incidents involving fatalities and injuries. A call to 811 is the first step in preventing such incidents and PHMSA seeks to increase awareness of this critical safety message to reduce the number of damages to pipelines. Target audiences for the PSA include the general public and small professional excavators. The survey is designed to measure awareness of the importance of calling 811 before beginning an excavation project and the extent to which the PSA influences that awareness and planned behavior. The results of this survey will help shape future PHMSA 811 outreach and educational efforts. PHMSA is proposing an online form for this information collection. A copy of the survey has been placed in the docket and is available for comment. The following information is provided for
PHMSA requests comments on the following information collection:
Comments are invited on:
(a) The need for the proposed collection of information for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Clarification.
This notice clarifies and provides further guidance on PHMSA's policy of conducting fitness reviews of applicants for classification approvals, including Fireworks, Explosives, Organic Peroxides and Self-reactive materials.
The policy clarification discussed in this document is effective July 5, 2012.
Mr. Ryan Paquet, Director, Approvals and Permits Division, Office of Hazardous Materials Safety, (202) 366–4512, PHMSA, 1200 New Jersey Avenue SE., Washington, DC 20590.
Effective immediately, Initial Fitness Reviews (IFR) will no longer be performed by PHMSA as part of the processing for classification approvals, including: Fireworks, Explosives, Organic Peroxides and Self Reactive Materials.
The use of the available agency information in the Hazmat Intelligence Portal (HIP) and Federal Motor Carrier Safety Administration's (FMCSA) Safety Fitness Electronic Records (SAFER) databases do not directly and adequately indicate a company's capability to manufacture the approved product in accordance with the application submitted to PHMSA. This change in policy and practice will be reflected in the next update to the Approvals Standard Operating Procedures and in the evaluation forms completed as part of the review process.
Fitness of applicants for classification approvals will continue to be reviewed through application evaluation, inspection, oversight and intelligence received from PHMSA or another Operating Administration (FAA, FMCSA, FRA, or USCG).
Office of the Secretary, U.S. Department of Transportation (DOT).
Request for comments.
The Department of Transportation is updating its technical assistance manual (TAM) for airlines and passengers with disabilities concerning their rights and responsibilities under the Air Carrier Access Act (ACAA) and its implementing regulation. This draft updated TAM is being published in the
Comments must be received October 3, 2012. The Department will consider late-filed comments only to the extent practicable.
You may file comments identified by the docket number DOT–OST–2012–0098 by any of the following methods:
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Lisa Swafford-Brooks, Chief of the Civil Rights Compliance Branch, Office of the Assistant General Counsel for Aviation Enforcement and Proceedings, Department of Transportation, 1200 New Jersey Avenue SE., Room W96–464, Washington, DC 20590.
Since that time, DOT has made significant changes to Part 382, the rule implementing the Air Carrier Access Act. On May 13, 2008, DOT issued an amendment to 14 CFR part 382, which among other things, extended its applicability to foreign air carriers and added new provisions concerning the onboard use of respiratory assistive devices and accommodations for passengers who are deaf, hard of hearing, and deaf-blind. See 73 FR 27614. The final rule became effective on May 13, 2009. The Department has also issued guidance that interprets or explains further the text of the rule. See e.g.,
Similar to the 2005 TAM, this updated draft manual does not expand U.S. or foreign air carriers' legal obligations or establish new requirements under the law. The primary purpose of the manual is to help employees and contractors of airlines to assist passengers with disabilities in accordance with the law. Another purpose is to provide air travelers with disabilities information about their rights under the ACAA and the provisions of Part 382.
The updated TAM, like its predecessor, follows the chronological path of an air traveler with a disability from making a reservation through the completion of the trip. Each section of the TAM is discussed in the context of the particular stage of a trip and is designed to be a separate stand-alone product. For example, the TAM includes separate chapters on assisting air travelers with disabilities planning a trip, assisting air travelers with disabilities at the airport, assisting air travelers with disabilities boarding, deplaning and during the flight, and assisting air travelers with disabilities with their complaints. In addition, the TAM contains a chapter on sensitivity and awareness issues when interacting with people with disabilities as well as a chapter on tips for communicating and interacting with individuals with specific types of disabilities.
This manual is a guide to the Air Carrier Access Act (ACAA), 49 U.S.C. 41705, and its implementing regulation, Title 14, Code of Federal Regulations (14 CFR) Part 382, Nondiscrimination on the Basis of Disability in Air Travel. It is designed to serve as an authoritative source of information about the services, facilities, and accommodations required by the ACAA and Part 382. Note, however, that this manual does not expand carriers' legal obligations or establish new requirements under the law.
The primary purpose of the manual is to help carriers and indirect carriers and their employees/contractors that provide services or facilities to passengers with disabilities, assist those passengers in accordance with Part 382. Knowing your legal responsibilities will help ensure consistent compliance with Part 382 and protect the civil rights of air travelers with disabilities when you provide services, facilities, and accommodations to them.
The second purpose of this manual is to offer air travelers with disabilities information about their rights under the ACAA and Part 382.
Unless otherwise noted, throughout the manual the word “you” refers to carriers, indirect carriers, or the employees/contractors of both carriers and indirect carriers. In most cases, the word “you” refers to personnel who deal directly with the traveling public. In addition, the obligations and responsibilities under Part 382 as discussed in the manual must be read within the context of each specific employee's duties on the job.
Italics and boldfaced type are used throughout the manual to draw attention to a subtle requirement or for emphasis.
In 1986, Congress passed the ACAA, which prohibits discrimination by U.S. air carriers against qualified individuals with disabilities.
• Preambles to regulatory amendments;
• Industry letters;
• Correspondence with individual carriers or complainants;
• DOT enforcement actions;
• Web site postings,
• Conducting public forums on Part 382, and
• Informal conversations between DOT staff and interested members of the public.
On April 5, 2000, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR–21”), Public Law 106–181, amended the ACAA
The DOT also published NPRMs addressing medical oxygen and portable respiratory assistive devices (70 FR 53108; September 7, 2005) and accommodations for passengers who are deaf or hard-of-hearing (71 FR 9285; February 23, 2006). As a result of those NPRMs, the final rule revising Part 382 to cover foreign carriers, also included new provisions concerning passengers who use medical oxygen and passengers who are deaf or hard-of-hearing. The final rule also reorganized and updated the entire ACAA rule (Part 382).
In 2000, Congress required DOT to create a technical assistance manual to provide guidance to individuals and entities with rights or responsibilities under the ACAA. See 49 U.S.C. 41705(c). Responding to that mandate, the DOT published a manual in the
This manual is organized chronologically to reflect the steps in a passenger's trip and the associated requirements of Part 382, as follows:
• Planning a flight,
• At the airport,
• Boarding, deplaning, and making connections,
• Assistance services during a flight, and
• Responding to disability-related complaints.
This manual also contains the following tools to assist you in quickly and easily finding the answer to your questions:
• A Table of Contents at the front of the manual;
• An Alphabetical Index at the back of the manual; and
• A Part 382 Index listing the citations to Part 382 at the back of the manual.
In addition, the following appendixes appear at the end of the manual:
• Appendix I: Table of Effective Dates
• Appendix II: Tips for Air Travelers with Disabilities as they relate to the most commonly-used accommodations, facilities, and services that carriers are required to make available to such passengers;
• Appendix III: Airline Management-Related Issues addressing topics applicable mainly to carrier management, as opposed to frontline customer service personnel;
As with Part 382, the topics discussed in this manual apply to both U.S. and foreign carriers unless otherwise specified. (§ 382.7(e))
The following web links are provided for you to review and download information related to Part 382 and/or the ACAA:
• A list of frequently asked questions and answers (
• A list of recent DOT enforcement orders related to the ACAA (
• The full text of Part 382 (
• A listing of conflict of law waiver determinations (
• A listing of equivalent alternative determinations (
• Guidance concerning service animals (
• Guidance on transporting service animals to the United Kingdom (
This manual highlights the difference between actions you must take to comply with Part 382 and actions that you may choose to take to provide superior customer service to passengers with disabilities. Legal requirements are generally designated by the word “must” in the manual. Words such as “should” or “may,” indicate accommodations that Part 382 does not require but that DOT recommends and that you may decide to provide as a matter of good customer service.
Where applicable, this manual discusses how to properly and lawfully consider aircraft and passenger safety when providing transportation to passengers with disabilities. Part 382 does not require or authorize you to disregard Federal Aviation Administration (FAA), Pipeline and Hazardous Materials Safety Administration (PHMSA), or foreign government safety regulations. Where an FAA, PHMSA, or foreign government safety regulation requires different treatment of passengers with disabilities or other restrictions, Part 382 states you must comply with the FAA, PHMSA, or foreign government safety regulation. For example, if an FAA safety rule provides that only persons who can perform certain functions can sit in an exit row, then you must request that an individual unable to perform those functions (regardless of whether that individual has a disability) sit in another row. If the passenger refuses, you may properly deny transportation to such passengers. (§ 382.7(g))
However, where an optional carrier action that is not required by FAA, PHMSA, or foreign government safety rules would result in different treatment of passengers with disabilities, or in other restrictions, then the ACAA and the provisions of Part 382 prohibit you from implementing the optional carrier action.
Suppose ABC Airways required only passengers with disabilities—not all passengers—to provide correct answers to a quiz about the content of a safety briefing and a passenger with a disability either refused to respond or failed such a quiz. It would
In short, Part 382 is consistent with FAA, PHMSA, and foreign government safety requirements, as it requires you to comply with those regulations and ensure that the safe completion of the flight or the health and safety of other passengers are not jeopardized. Determinations about whether an FAA, PHMSA, or foreign government regulation requires different treatment of a passenger with a disability for safety reasons often depend on the circumstances you encounter. Therefore, it is important that you seek information from passengers with
The FAA safety regulations can be found in 14 CFR parts 1 through 199, and in FAA guidance materials that provide additional information about these regulations (see
This manual addresses security procedures which affect or may affect the types of accommodations and services provided to passengers with disabilities. You must comply with Transportation Security Administration (TSA) regulations and foreign government security regulations having a legally mandatory effect applicable to you. (§ 382.7(g))
Part 382 is consistent with security requirements mandated by the TSA. For example, TSA has strict rules as to who can go beyond the airport screening checkpoints, but these TSA rules are consistent with Part 382 and do not invalidate your obligation to provide boarding and deplaning assistance requested by passengers with disabilities, including assistance beyond airport screening checkpoints. You have discretion in how that assistance is provided. You can provide (1) A “pass” allowing an individual who needs to assist a passenger with a disability to go through the airport screening checkpoint without a ticket; (2) assistance directly to the passenger; or (3) both. For foreign government security requirements, refer to screening procedures established by the law of the country in which the airport is located.
This manual recognizes the important role that contractors play in providing services, equipment, and other accommodations to passengers with disabilities. A contractor is an entity that has a business arrangement with a carrier to perform functions that the ACAA and Part 382 would otherwise require the carrier to perform with its own employees. Contractors provide a variety of services on behalf of carriers in furnishing assistance to persons with disabilities. For example, contractors often provide—
• Wheelchair service;
• Assistance to passengers with disabilities in getting on and off aircraft;
• Transportation to passengers with disabilities between departure gates; and
• Ground handling of passengers' wheelchairs and other assistive devices.
Contractors must provide the same services, equipment, and other accommodations as those required of a carrier and its employees under the ACAA and Part 382. As an employee of a contractor, you are required to follow the ACAA and Part 382 when providing services, equipment, and other accommodations to passengers with disabilities. If you do not follow the ACAA and Part 382, the carrier is subject to DOT enforcement action for your failure to comply with those mandates. In essence, although a carrier may contract out various services and accommodations required by Part 382, a carrier may not contract away its responsibilities to ensure compliance with the rule.
• ACCESS
• DOT regards thorough training of carrier personnel who interact with passengers with disabilities as vital for good service to those passengers and compliance with the ACAA and Part 382. A detailed discussion of employee/contractor training requirements can be found in Chapter 8: Personnel Training and Appendix II, Airline Management-Related Issues. In addition, the DOT has developed an interactive model training program (MTP) on the ACAA and Part 382. You can view this module at
Following is a list of keyword definitions to help you fully understand the information in this manual.
(1) The requirements of Part 382;
(2) The carrier's policies and procedures addressing Part 382; and
(3) The provision of services, facilities, and accommodations to passengers with disabilities.
A CRO must be available (1) in person at the airport; or (2) via telephone and Text Telephones (TTY), or a similarly effective technology, at all times the carrier is operating. As a foreign carrier, you must make a CRO available as noted above at each airport serving flights you
• 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 a physical or mental impairment that, on a permanent or temporary basis, substantially limits one or more major life activities; or
• Is regarded as having a physical or mental impairment that, on a permanent or temporary basis, substantially limits one or more major life activities. (§ 382.3).
(1) Who, as a passenger—
• Purchases, offers to purchase, or otherwise validly obtains a ticket for air transportation;
• Presents himself or herself at the airport for the purpose of traveling on the flight; and
• Meets reasonable, nondiscriminatory contract of carriage requirements applicable to all passengers.
(2) Who accompanies or meets a traveler, using ground transportation or terminal facilities, or seeks to obtain information about schedules, fares, reservations, or policies and takes those actions necessary to use facilities or services offered by a carrier to the general public, with reasonable accommodations, as needed, provided by the carrier. (§ 382.3).
Dogs, cats, and monkeys are among the types of animals that have been trained to act as service animals. Service animals may assist people with disabilities by, for example—
• Guiding persons with vision impairments;
• Alerting persons with hearing impairments to specific sounds;
• Alerting persons with epilepsy of imminent seizure onset;
• Pulling a wheelchair;
• Carrying items a passenger cannot readily carry while using his or her wheelchair;
• Assisting persons with mobility impairments to open and close doors, retrieve objects, transfer from one seat to another, and maintain balance; and
• Providing support for persons with emotional or mental disabilities. (§ 382.117 and Appendix III, Guidance Concerning Service Animals, and Chapter 3, Section D, Service Animals.).
Following is a list of acronyms used in this manual.
• What does the Air Carrier Access Act (ACAA) say? The ACAA prohibits U.S. and foreign air carriers from discriminating against a qualified individual with a disability based on such disability in providing air transportation. See Chapter 1, Section C of this manual for a definition of a qualified individual with a disability. (49 U.S.C. 41705).
• What is Title 14, Code of Federal Regulations (14 CFR) Part 382 (Part 382)? Part 382 is a detailed set of rules that define U.S. and foreign air carriers' responsibilities under the ACAA, as amended. Part 382 ensures that individuals with disabilities will be treated without discrimination, and requires U.S. and foreign air carriers (under certain conditions) to make aircraft, other facilities, and services accessible and take steps to accommodate a passenger with a disability. (§ 382.1).
• Who is protected by Part 382? Part 382 protects three groups of individuals with disabilities:
(1) Individuals with a physical or mental impairment that, on a permanent or temporary basis, substantially limits one or more major life activities;
(2) Individuals with a record of such impairment; and
(3) Individuals who are regarded as having such impairments, whether they have the impairment or not.
• Who must comply with Part 382? The following organizations and individuals must comply with Part 382:
(1) A U.S. air carrier and its employees (for example, ticket agents, gate agents, flight attendants, pilots, baggage handlers) with respect to all operations and aircraft, regardless of where those operations take place (unless otherwise noted in Part 382).
(2) A foreign air carrier, its employees (such as ticket agents, gate agents, flight attendants, pilots, and baggage handlers), and its aircraft for flights that begin or end at a U.S. airport. Part 382 does not apply to a foreign carrier for flights operating between two foreign points. However, a U.S. air carrier that participates in a codesharing arrangement with a foreign air carrier with respect to flights between two foreign points is responsible for ensuring compliance with Part 382, Subparts A through C, F through H, and K with respect to passengers traveling under its code on such a flight.
(3) An authorized agent of a carrier (such as travel agents).
(4) An organization and its employees that have business arrangements with a carrier to provide disability-related services (for example, wheelchair service, baggage handling).
(5) An indirect air carrier and its employees (such as public charter operators) that provide facilities or services for other carriers that are covered by §§ 382.17 through 157. (§§ 382.3, 382.7(a), (c), and (f), 382.11(b) and 382.15).
• When does Part 382 apply to U.S. carriers and foreign carriers? U.S. carriers and foreign carriers were required to comply with the requirements of current Part 382 on May 13, 2009, except as otherwise noted in individual sections of Part 382. (§ 382.5) See Appendix I for a table of exceptions to the May 13, 2009, effective date.
• What is the difference between an indirect air carrier and an agent? An indirect air carrier indirectly engages in air transportation by selling the services of a direct air carrier. (§ 382.3) An agent is an entity that has lawful authority to act on behalf of the operating carrier, indirect air carrier, or on behalf of the prospective passenger. An agent typically sells the product of a disclosed principal (e.g., a seat on a scheduled airline or on a charter flight), offering it at the price and terms set by the principal.
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 their own price and terms, bearing the entrepreneurial risk of profit or loss rather than acting as an agent, and controlling the inventory and schedule.
On the other hand, an agent, such as a retail travel agent, sells a product such as a seat on a scheduled airline or a charter flight, at a price and terms set by the airline. The travel agent is acting as an agent of the airline and is not an indirect air carrier. Concessionaires, suppliers, and other participants in the air travel system also are not indirect air carriers.
• Do carriers have to make contractors comply with Part 382 requirements? Yes, as a carrier, you must ensure that your contractors providing services to the public meet Part 382 requirements just as if you were performing those functions yourself. While you may contract out services, you may not contract away responsibilities. You must include an assurance of compliance with Part 382 in your contracts with any contractors who provide services to the public that are subject to Part 382 requirements. For a U.S. carrier, an assurance of compliance must be included in your contracts with U.S. travel agents but not foreign travel agents. The Department of Transportation expects you to monitor the performance of your contractors to ensure that the contractors' performance complies with Part 382. (§ 382.15).
• For a passenger with a disability traveling on a foreign carrier, what is considered a “flight” covered under Part 382? Flight means a continuous journey in the same aircraft or with one flight number that begins or ends at a U.S. airport. (§ 382.7(b)).
The following are examples of flight scenarios involving foreign carriers.
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” covered by Part 382.
A passenger books a trip on a foreign carrier from New York to Prague. The foreign carrier flies nonstop to Frankfurt. The passenger deplanes in Frankfurt and boards a connecting flight (with a different flight number), on the same foreign carrier or a different carrier, which flies to Prague. The New York–Frankfurt leg of the trip is a “flight” covered by Part 382; the Frankfurt–Prague leg is not a covered flight. On the reverse routing, the Prague–Frankfurt leg is not a covered flight for purposes of Part 382, while the Frankfurt–New York leg is a covered flight.
A passenger books a trip on a foreign carrier from New York to Prague. The aircraft 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 Part 382. 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 also would apply in the opposite direction (Prague to New York via Frankfurt).
In Example 3 directly above, the foreign carrier is not subject to coverage under Part 382 with respect to a Frankfurt originating passenger who boards the aircraft and flies to Prague, or a Prague-originating passenger who deplanes in Frankfurt and does not continue to New York.
• Does Part 382 apply to foreign carriers operating between two foreign points under a codeshare arrangement with a U.S. carrier? No, Part 382 does not generally apply to foreign carriers operating between two foreign points and transporting passengers flying under the U.S. carrier's code. However, Part 382 applies to the U.S. carrier with respect to passengers traveling under its code. A U.S. carrier, not the foreign carrier, would be responsible for any violation of the service provisions of Subparts A through C, F through H, and K of Part 382 for a passenger traveling under the U.S. carrier's code. (§ 382.7(c)).
• Does Part 382 apply to foreign carrier charter flights? A charter flight on a foreign carrier originating from a foreign airport to a U.S. airport and returning to a foreign airport would not be covered if the carrier does not board any new passengers in the United States for the return flight. (§ 382.7(d)).
• What may a carrier do if a provision of a foreign nation's law conflicts with Part 382 requirements? Part 382 contains a conflict of laws waiver provision to address conflicts with legally binding foreign legal mandates. For example, as a carrier, you may request a waiver from a Part 382 requirement if a foreign law—(1) Requires you to do something prohibited by Part 382 or (2) prohibits you from doing something required by Part 382. Your U.S. carrier code share partner may file a waiver request on your behalf when a foreign law conflicts with a service-related provision of Part 382. Note that a foreign carrier's or foreign government's policy, authorized practice, recommendation, or preference is not an appropriate basis for a conflict of laws waiver request. In addition, if you have discretion in complying with Part 382 under the foreign law then you must exercise that discretion by complying with Part 382. (§ 382.9).
• What must a conflicts of law waiver request include? A conflicts of law waiver request must include: (1) A copy of the conflicting foreign law (in English); (2) a description of how the law applies and how it precludes you from complying with Part 382; and (3) your proposal for an alternative means of meeting the objective of the requirement or a justification of why it would be impossible to meet the requirement in any way. (§ 382.9(c)).
• Is there a deadline for a carrier to file a conflict of law waiver request? DOT sought to encourage carriers to conduct a due diligence review of foreign legal requirements that may conflict with Part 382. Accordingly, foreign carriers that filed waiver requests by September 10, 2008 (within 120 days of the publication date of the rule (May 13, 2008)), had a commitment from DOT that it would not take any enforcement action related to implementing the foreign law in question pending DOT's response to the waiver request. (§ 382.9(e)).
• Is a carrier subject to enforcement action while a conflict of law waiver request submitted after September 10, 2008, is under DOT review? If the conflicting foreign law 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 DOT responds to your request. The DOT will not take enforcement action with respect to your policy or practice while the waiver request is under its review. However, the DOT may begin an enforcement action if it finds that a carrier's waiver request: (1) is frivolous or dilatory, (2) has not been submitted with respect to a certain policy or practice, or (3) has been previously denied and the carrier continues to follow the denied policy or practice. (§ 382.9(e) through (g)).
• What must DOT determine to grant a conflicts of law waiver request? The DOT may grant the waiver request, or grant the request subject to conditions, if DOT determines: (1) The foreign law applies; (2) the foreign law does preclude compliance with a provision of Part 382; and (3) the carrier has provided an effective alternative means of achieving the Part 382 objective or has demonstrated by clear and convincing evidence that it would be impossible to achieve that objective in any way. (§ 382.9(d)).
• What is an equivalent alternative determination and when does a carrier have to file one? If, with respect to a specific accommodation, a carrier can demonstrate that what it wants to do will provide substantially equivalent accessibility to passengers with disabilities as compared with literal compliance with a particular provision of Part 382, it can file for an equivalent alternative determination. If the DOT agrees, it will determine that the carrier can comply with the rule using its alternative accommodation. Carriers must comply with Part 382 and cannot use their proposed equivalent alternative until and unless DOT approves it. (§ 382.10).
• How does a carrier apply for an equivalent alternative determination? As a U.S. carrier or foreign carrier, you may apply to the DOT for a determination that you are providing an alternative to passengers with disabilities. Your application must be in English and include: (1) A citation of the specific provision to 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 the Part 382 requirement cited above; and (3) an explanation of how it provides substantially equivalent accessibility to passengers with disabilities.
If the DOT grants your application, you may comply with Part 382 through implementing your equivalent alternative. If the DOT denies your application, you must comply with Part 382 as written. (§ 382.10).
• What is a physical or mental impairment? Physical impairment includes—(1) Any physiological disorder or condition; (2) cosmetic disfigurement; or (3) anatomical loss affecting one or more of the following body systems:
○ Neurological;
○ Musculoskeletal;
○ Special sense organs;
○ Respiratory, including speech organs;
○ Cardiovascular;
○ Reproductive;
○ Digestive;
○ Genitourinary;
○ Hemic and lymphatic;
○ Skin; and
○ Endocrine.
Examples of physical impairments include—
○ Orthopedic, visual, speech, and hearing impairments;
○ Cerebral palsy;
○ Epilepsy;
○ Muscular dystrophy;
○ Multiple sclerosis;
○ Cancer;
○ Heart disease;
○ Diabetes; and
○ Human Immunodeficiency Virus (HIV).
• What is not considered a physical or mental impairment? Physical characteristics such as the color of one's eyes, hair, or skin; baldness; and left-handedness do not constitute physical impairments. Similarly, neither age nor obesity alone constitutes a physical impairment. Disadvantages due to cultural or economic factors are not covered by Part 382. Moreover, the definition of “physical or mental impairment” does not include personality traits such as poor judgment or a quick temper, where these are not symptoms of a mental or psychological disorder.
• What is a substantial limitation on one or more major life activities? To qualify as a “disability” under Part 382 a condition or disease must substantially limit a major life activity. Major life activities include, activities such as—
○ Caring for oneself,
○ Performing manual tasks,
○ Walking,
○ Seeing,
○ Hearing,
○ Speaking,
○ Breathing,
○ Learning, and
○ Working. (§ 382.3).
• When does an impairment “substantially limit” a major life activity? There is no absolute standard for determining when an impairment is a substantial limitation. Some impairments obviously limit the ability of an individual to engage in a major life activity as noted in the following examples.
A person who is deaf is substantially limited in the major life activity of hearing.
A person with traumatic brain injury may be substantially limited in the major life activities of: (a) Caring for himself or herself; and (b) working, because of memory deficiency, confusion, contextual difficulties, and the inability to reason appropriately.
An individual who is paraplegic may be substantially limited in the major life activity of walking.
• Are temporary mental or physical impairments covered by Part 382? Yes. The definition of individual with a disability addresses any individual who has a temporary physical or mental impairment. (§ 382.3) See the following example:
While on a skiing trip, Jane breaks her leg and is placed in a cast that keeps her from bending her leg and walking without using crutches. Jane will eventually recover the full use of her leg, but in the meantime, she is substantially limited in the major life activity of walking. Because Jane's broken leg will substantially limit a major life activity for a period of time, Jane would be considered to have a disability covered by Part 382 during that period. As a carrier, you would be required to provide her certain services and equipment under Part 382 if requested (for example, boarding and deplaning assistance, connecting wheelchair assistance, seating with additional leg room to the extent required by Part 382, and safe stowage of her crutches in the aircraft cabin in close proximity to her seat).
• Who is a person with a “record of” a disability under Part 382? Part 382 protects from discrimination an individual (1) who has a “record of” (a history of) a physical or mental impairment that substantially limits one or more major life activities or (2) who has been classified, or misclassified, as having such an impairment. Therefore, an individual who does not have a current actual impairment that substantially limits a major life activity would still be protected under Part 382 based upon a past diagnosis (or a misdiagnosis) of an impairment that substantially limits a major life activity. Individuals with a history of cancer or epilepsy are examples of people with a record of impairment. (§ 382.3) The following example illustrates such a situation:
Adam, a passenger who has had severe epileptic seizures in the past that rendered him unable to work, is denied transportation by carrier personnel because of their concern that he may have a seizure on board the aircraft. This denial of transportation would be unlawful if based solely on the fact that Adam has had past seizures, because epilepsy may be controlled by medication. Carrier personnel can lawfully deny transport to Adam only if they reasonably believe, based on the information available, that his seizure disorder poses a real safety risk to him, or is a direct threat to other passengers.
• When is a person “regarded as” having a disability? Part 382 protects an individual who is “regarded as” having a physical or mental impairment that substantially limits a major life activity, whether or not that person actually has an impairment. A person can be “regarded as” disabled if—
(1) His or her non-limiting or slightly limiting impairments are treated by an air carrier as substantially limiting;
(2) He or she has no impairments but is treated by an air carrier as having a substantially limiting impairment; or
(3) His or her impairments become substantially limiting because of the attitudes of others toward such impairments. (§ 382.3).
See the following two examples.
Carrier personnel deny John, an individual with a mild heart condition controlled by medication, transportation because they believe that flying will cause him to have heart problems requiring the pilot to divert the aircraft during the flight. John's condition does not substantially limit any major life activity. John has informed the air carrier personnel that his heart condition is controlled by medication and that for the past five years he has flown on a near weekly basis without incident. Even though John does not actually have an impairment that substantially limits a major life activity, he is protected by the provisions of Part 382 because he is treated as though he does. The air carrier personnel's refusal to provide transportation to John must be reasonable under the facts and circumstances presented. Arguably, excluding John from the flight was unreasonable because he had informed the air carrier employee that he was taking medication and that he had flown frequently in the recent past without incident. The reasonableness of the decision depends on John's credibility and any additional information provided. Regardless of the reasonableness of the decision, the air carrier employee is legally required under § 382.19(d) to provide a written explanation to John within 10 calendar days of the refusal of transportation detailing the specific safety or other reason(s) for excluding John from the flight.
Karen, an individual born with a prominent facial disfigurement, has been refused transportation on the grounds that
• When am I required to provide disability-related accommodations to an individual? You are required to provide such an accommodation when—
(1) An individual with a disability or someone acting on his or her behalf, such as a travel companion, family member, or friend, requests an accommodation required by Part 382 or
(2) You offer such a required accommodation to a passenger with a disability and he or she accepts such accommodation.
• How do I determine whether a person is an individual with a disability? Provide an opportunity for the passenger to self-identify by asking how you can best assist him or her. (See for example, §§ 382.81, 382.85, 382.87, 382.91, 382.93, 382.111).
• May I ask an individual what his or her disability is? Generally, no. However, clarifying the nature of a disability may be required to determine if a passenger is entitled to a particular seating accommodation under sections 382.81 through 382.87. You may not make inquiries about an individual's disability or the nature or severity of the disability. However, you may ask questions about an individual's ability to perform specific air travel-related functions, such as boarding, deplaning, and walking through the airport. For example—
Susan asks for a bulkhead seat because the condition of her leg requires additional legroom. You may ask, “Are you unable to bend your leg or is your leg fused or immobilized?” For a passenger with a fused or immobilized leg, the carrier is required to provide a bulkhead seat or other seat that provides more legroom than other seats on the side of an aisle that better accommodates the individual's disability. (§ 382.81(d))
• How do I assist a passenger with a disability? Ask the passenger how you can best assist him or her. A passenger with a disability has the most information about his or her abilities, limitations, level of familiarity with the airport and air carrier, and needs in connection with air travel.
• What are some of the requirements of Part 382 that I should be aware of? Following are some of the principle requirements of Part 382. It is important to note that the list of Part 382 requirements below is not meant to be exhaustive. Rather, it is a list of requirements governing situations that you are likely to encounter regularly. In addition, these requirements may not be applicable in instances where a legally binding conflicts of law waiver exists. You should refer to the specific sections cited below for exceptions to these requirements.
○ You must not discriminate against passengers with a disability. (§ 382.11(a)(1)) .
○ You must not require a passenger with a disability to accept special services (including preboarding) they do not request. (§ 382.11(a)(2)). Instead, you may ask a person if he or she would like a particular service, facility, or other accommodation. However, you may require preboarding as a condition to receive certain seating or cabin stowage accommodations. (§§ 382.83(c), 382.85(b), and 382.123(a)).
○ You must not exclude a passenger with a disability from or deny the individual the benefit of any air transportation or related services that are available to other persons. (§ 382.11(a)(3)). For example, if you choose to provide ground transportation and overnight accommodations to passengers because of a flight cancellation, you must ensure that the ground transportation to the hotel, and the hotel itself, are accessible to a passenger with a disability.
○ You must not take any adverse action against an individual, such as refusing transportation, because an individual asserts, on his or her own behalf, or on behalf of another individual, rights protected under Part 382 or the ACAA. (§ 382.11(a)(4)).
○ You must not limit the number of passengers with disabilities on a particular flight.
○ You must not refuse transportation to a passenger solely based on a disability. (§ 382.19).
○ You must provide transportation to a passenger with a disability who has an impairment that affects his or her appearance or results in involuntary behavior except under limited circumstances specified below. You must provide transportation to such passengers with disabilities even if the disability may offend, annoy, or inconvenience crewmembers or other passengers. (§ 382.19(b)). However, if the person's disability results in involuntary behavior that would or might adversely affect the safety of the flight, then the person may be refused transportation. (§ 382.19(c)).
○ You may refuse transportation to a passenger with a disability if transportation of that passenger would—
(1) Endanger the safety of the aircraft or the health or safety of its passengers or
(2) Violate a Federal Aviation Administration (FAA) or Transportation Security Administration (TSA) regulation or applicable requirement of a foreign government. (§ 382.19(c)).
○ You must not require a passenger with a disability to travel with a safety assistant or to present a medical certificate, except in very limited circumstances. (§§ 382.23(a) and 382.29).
○ You must not require a passenger with a disability to sign a release or waiver of liability to receive transportation or services or accommodations for a disability. (§ 382.35(a)).
○ You must not exclude a passenger with a disability from any seat in an exit or other row solely based on his or her disability except to comply with FAA regulations or applicable foreign
FAA regulations establish criteria that must be met for a passenger to occupy a seat in the emergency exit rows. (14 CFR 121.585). There also may be foreign government safety requirements for exit row seating. If a passenger with a disability meets these FAA criteria and applicable foreign government safety requirements, he or she should not necessarily be excluded from sitting in an emergency exit row. As with any other passenger, you must look at the individual passenger with a disability and reasonably assess whether he or she meets the applicable criteria for exit-row seating. (§ 382.87(b)).
○ You must provide prompt boarding, deplaning, and connecting assistance to passengers with disabilities requesting such assistance. As part of this assistance, you must provide, as needed—
(1) Equipment (for example, wheelchairs, electric carts, and aisle chairs);
(2) Personnel (for example, individuals to push wheelchairs and aisle chairs and individuals to assist passengers with disabilities in carrying and stowing their baggage); and
(3) Ramps or mechanical lifts (only required at any U.S. commercial service airport with 10,000 or more annual enplanements where level-entry boarding and deplaning is not available.) (§§ 382.91 and 382.95). See Appendix II for a discussion of the agreements carriers must have with airports for the provision of lifts where level-entry loading bridges are not available. (§ 382.99).
You must allow passengers with disabilities to bring their assistive devices including canes, crutches, walkers; or other assistive devices inside the cabin of the aircraft. Other assistive devices include items such as—
Prescription medications and any medical devices needed to administer them such as syringes or auto-injectors;
Vision enhancing devices;
Continuous positive airway pressure (CPAP) machines, portable oxygen concentrators (POC), respirators, and ventilators, using nonspillable batteries, and
A folding or collapsible wheelchair (see below).
These assistive devices may be stowed in designated priority stowage areas, in overhead compartments, or under seats consistent with FAA, PHMSA, TSA, or foreign government requirements concerning safety, hazardous materials, and security with respect to stowage of carry-on items. You must not count the number of assistive devices described above toward the carry-on baggage limit. (§ 382.121).
○ On certain aircraft, the carrier must designate a priority stowage space (required dimensions 13″ × 36″ × 42″) for at least one passenger's typical adult-sized folding, collapsible, or break-down manual wheelchair. You must not require removal of the wheels or any other disassembly to fit the manual wheelchair in this priority space. (§ 382.67) This space must be in addition to the overhead compartments and under-seat spaces routinely used for passenger carry-on items. You are not required to stow any kind of electric wheelchair in the aircraft cabin.
This requirement applies if the aircraft—(1) has a designed seating capacity of 100 or more seats and (2)
With regard to the priority stowage space, you, as a carrier, must comply with the following:
A passenger with a disability who takes advantage of the opportunity to preboard may stow his or her wheelchair in this area with priority over other carry-on items brought onto the aircraft by other passengers and crewmembers consistent with FAA, PHMSA, TSA, or foreign government requirements concerning safety, hazardous materials, and security with respect to the stowage of carry-on items. (§ 382.123).
You must move any item that you or your personnel have placed in the closet or other area designated for priority stowage of carry-on items such as crewmember luggage or a required on-board wheelchair to make room for the passenger's wheelchair even if the items were placed there before the passenger boarded the flight. This includes any items that were placed in the priority stowage area on an earlier originating or connecting flight. (§ 382.123).
A passenger with a disability who does not preboard may use the priority space to stow his or her wheelchair or other assistive device on a first-come, first-served basis along with other passengers stowing their carry-on items. (§ 382.123).
○ On new aircraft ordered after May 13, 2009, or delivered to carriers after May 13, 2011, carriers are not permitted to use seat-strapping (tying down a wheelchair across a row of seats in an aircraft that does not have the required space for stowing a folding wheelchair in the cabin) as an alternative to designated stowage spaces. Subject to the outcome of the pending rulemaking, you may use seat strapping for manual wheelchairs on existing aircraft that do not have the required space for stowing a folding wheelchair in the aircraft cabin.
○ A passenger with a disability who takes advantage of the opportunity to preboard may stow assistive devices other than folding wheelchairs in the priority stowage area over other carry-on items (except folding wheelchairs) brought onto the aircraft by other passengers and crewmembers enplaning at the same airport. Stowing these devices in the priority space must be consistent with FAA, PHMSA, TSA, or foreign government requirements concerning safety, hazardous materials, and security with respect to the stowage of carry-on items. (§ 382.123(a)(2)).
○ You must have a copy of Part 382 available at every airport you serve. For foreign carriers, you must keep a copy of Part 382 and make it available at each airport serving a flight you operate that begins or ends at a U.S. airport. You must make a copy available for review upon request by any member of the public. (§ 382.45(a)). If you have a Web site, it must also provide a notice that consumers may obtain a copy of Part 382 from the DOT—
By telephone (including the appropriate voice and Text Telephones (TTY) numbers) via a toll-free hotline for air travelers with disabilities or to the Aviation Consumer Protection Division;
By mail to the Aviation Consumer Protection Division, or
On the Aviation Consumer Protection Division's Web site (
○
Flight safety,
Ticketing,
Flight check-in,
Gate assignments,
Delayed flights,
Cancellations,
Schedule changes,
Boarding information,
Connections,
Checking baggage,
Volunteer solicitation on oversold flights (offers of compensations for giving up a reservation),
Individuals being paged by airlines,
Aircraft changes, and
Emergencies such as fire or bomb threats.
You must provide this information 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 under FAA, TSA, and foreign regulations. (§ 382.53(a)(1)).
As a U.S. or foreign carrier, you and any U.S. airport you use are jointly responsible for providing the required passenger information to passengers with vision or hearing impairments when that airport has control over the gates, ticketing areas, and customer service desks, (§ 382.53(a)(3)).
○ You also must provide passengers with vision or hearing impairments prompt access to the same information given to other passengers on the aircraft. This means information that a reasonable consumer would deem important, such as information on—
Flight safety,
Procedures for takeoff and landing,
Flight delays,
Schedule or aircraft changes,
Diversion to a different airport,
Scheduled departure and arrival time,
Boarding information,
Weather conditions at the destination airport,
Beverage and menu information,
Connecting gate assignments,
Claiming baggage,
Individuals being paged by airlines, and
Emergencies such as fire or bomb threats.
Crewmembers are not required to provide such information if it would interfere with the crewmember's safety duties required under FAA and applicable foreign regulations. (§ 382.119).
○ You must allow a service animal to accompany a passenger with a disability in the aircraft cabin consistent with FAA regulations or applicable foreign government requirements. As a foreign carrier, you are not required to carry service animals other than dogs (except as noted in § 382.7(c) for codeshare flights with U.S. carriers).
You must allow the service animal to sit in close proximity to its user if the service animal does not block the aisle or other emergency evacuation route in violation of FAA regulations or applicable foreign government requirements. Often this will mean that the service animal will sit under the seat in front of the passenger with a disability to avoid obstructing an aisle or other space. Some service animals are held by their users in their arms as an adult would hold a human infant (limited to infants under 2 years of age) of roughly the same size. (§ 382.117).
○ You must designate one or more Complaints Resolution Official (CRO) if you provide service using aircraft with 19 or more passenger seats. The CRO must be available (in person, by telephone, or TTY service) to address disability-related complaints. You must provide a CRO to a passenger even if the passenger does not use the term “Complaints Resolution Official” or “CRO.” When a passenger with a disability uses words such as “supervisor,” “manager,” “boss,” or “disability expert” in connection with resolving a disability-related issue, you must provide a CRO.
○ You must not charge for services that are required by Part 382. This means, for example, you and your employees and contractors may not ask for a tip when providing wheelchair service to a passenger. You may, however, impose a reasonable charge for services not required by Part 382, that is, optional services. Examples of such optional services include carrier-supplied medical oxygen for use onboard an aircraft or stretcher service. (§ 382.31(a)).
○ You may charge a passenger for the use of more than one seat if the passenger's size or condition, such as use of a stretcher, causes the passenger to occupy more than one seat. (§ 382.31(b)).
○ If you have a Web site that persons use to make reservations or purchase tickets that is inaccessible to a passenger with a disability, you must not charge a fee to the passenger with a disability who is unable to make a reservation or purchase a ticket from your Web site when using another reservation booking method such as by telephone. In addition, if you provide discounts or other benefits to individuals who book a flight online, then that discount or benefit must be given to a passenger with a disability who cannot use the Web site due to his or her disability when he or she buys a ticket using another method. (§ 382.31(c)).
You cannot require a passenger with a disability to provide advance notice of his or her intention to travel except as noted below.
You may require up to 48 hours' advance notice (that is, 48 hours before the scheduled departure time of the flight) and 1 hours' advance check-in (that is, 1 hour before the check-in time for the general public) from a passenger with a disability who wishes to receive the following services:
• Transportation of an electric wheelchair on an aircraft with fewer than 60 passenger seats;
• Provision by the carrier of hazardous materials packaging for the battery of a wheelchair or other assistive device;
• Accommodations for 10 or more passengers with disabilities who make reservations and travel as a group;
• Provision of an on-board wheelchair on an aircraft with more than 60 passenger seats that does not have an accessible lavatory for passengers with disabilities who can use an inaccessible lavatory but need an on-board chair to do so;
• Transportation of an emotional support or psychiatric service animal in the cabin;
• Transportation of any service animal on a flight segment scheduled to take 8 hours or more; and
• Accommodation of a passenger with both severe vision and hearing impairments. (§ 382.27(c)(4) through (c)(10)).
If you advise passengers to check-in 1 hour before the scheduled departure time of the flight, you may advise a passenger with a disability who seeks one of the accommodations listed above to check-in 2 hours before the scheduled departure time for the flight.
While making his reservation, a passenger with a disability gave the reservation agent 48 hours' advance notice that he would need an aisle chair to access the lavatory on his upcoming flight. The flight is on an aircraft with more than 60 passenger seats and it does not have an accessible lavatory. During the telephone call, the reservation agent makes the passenger aware of the fact that the lavatory is inaccessible, but the passenger explains that he can use an inaccessible lavatory if he has access to an aisle chair provided by the carrier. The passenger has complied with the advance notice requirement. Normally this information would have been entered into the passenger's reservation record (also known as the passenger name record (PNR)) by the carrier and the request for an aisle chair would have been handled through that notification process. You are a new gate agent for your carrier and when this passenger approaches you at the gate of the flight and asks about the requested aisle chair, you are not sure how to reply. What should you do?
To begin, as a matter of good customer service, you should tell the passenger that you are not sure but you will find out. You should ask a colleague and, if necessary, contact a Complaints Resolution Official (CRO). When you ask your colleague, you are told that all aircraft with more than 60 passenger seats in your air carrier's fleet are equipped with an in-cabin aisle chair. Once you receive this information, you should assure the passenger that an aisle chair is available so he can use the inaccessible lavatory on the aircraft.
With respect to onboard use of supplemental oxygen during a flight, you can require advance notice of a passenger whether you, the carrier, provides the oxygen or the passenger supplies the POC.
With respect to onboard use of a ventilator, respirator, or continuous positive airway pressure (CPAP) machine during a flight, you may require up to 48 hours' advance notice and 1-hour advance check-in (that is, 1 hour before the check-in time for the general public) from a passenger with a disability when the passenger supplies the ventilator, respirator, or CPAP machine. (§ 382.27(b)).
Although carriers are not required to provide the following services or equipment, if you choose to provide them, you may require up to 48 hours' advance notice (that is, up to 48 hours before the scheduled departure time of the flight) and 1 hour's advance check-in (that is, 1 hour before the check-in time for the general public) for—
• Carriage of an incubator;
• Hook-up for a CPAP machine, POC, respirator, or ventilator to the aircraft's electrical power supply; and
• Accommodation for a passenger who must travel on a stretcher. (§ 382.27(c)(1)–(3)).
If a passenger with a disability provides the appropriate advance notice for a service you are required to provide or choose to provide, you must provide that the service or accommodation. (§ 382.27(d)).
Since the issuance of the revised Part 382 on May 13, 2008, some carriers have denied passengers the use of POCs onboard the aircraft because the devices did not have a manufacturer's label indicating that the device complies with the standards of RTCA/DO–160 or other applicable Federal Aviation Administration (FAA) or foreign requirements for portable medical electronic devices, even though the POC has been approved by the FAA for onboard use. As stated in its Notice published on October 29, 2009, the Department of Transportation (DOT) strongly encourages carriers to allow passengers to use any FAA-approved POC if the conditions in Special Federal Aviation Regulation No. 106 (SFAR 106) for use of portable oxygen concentrator systems onboard aircraft are followed even if the device has not been labeled
If a passenger with a disability does
Mr. Thomas uses a battery-powered wheelchair. He travels frequently between Washington, DC, and New York for business. One day, he finds out that he has an important business meeting in New York and must travel to New York that afternoon. He has no time to provide advance notice regarding the transportation of his battery-powered wheelchair and arrives at the gate 45 minutes before his flight is scheduled to depart. The aircraft for the flight has fewer than 60 passenger seats. What should you do?
As a carrier, you may require 48 hours' advance notice and 1-hour advance check-in for transportation of a battery-powered wheelchair on a flight scheduled to be made on an aircraft with fewer than 60 passenger seats. You may require the same advance notice to provide hazardous materials packaging for a battery. However, carrier personnel are required to make reasonable efforts to accommodate a passenger who fails to provide the requisite notice to the extent it would not delay the flight. Therefore, you must make a reasonable effort to accommodate Mr. Thomas.
Mr. Thomas is a frequent traveler on this particular route and he knows that usually it is feasible to load, store, secure, and unload his battery-powered wheelchair and spillable battery in an upright position (§ 382.127(c)) or detach, “box”, and store the spillable battery (§ 382.127(d)) within about 20 to 25 minutes. If this is possible under the existing circumstances, you must accommodate Mr. Thomas, his battery-powered wheelchair, and the spillable battery even though Mr. Thomas did not provide advance notice, because doing so would not delay the flight.
Ms. Webster must travel with medical oxygen and arrives at the airport without providing advance notice of her need for medical oxygen. As a policy, your carrier does not provide medical oxygen on any flights. What should you do?
To begin, you should confirm that your carrier does not provide the optional service
As a matter of customer service, you may direct Ms. Webster to another carrier that provides medical oxygen service in that market. The passenger should be aware, however, that providing medical oxygen involves coordination with the passenger's physician to determine the flow rate and the amount of oxygen needed and arranging for the delivery of the oxygen by the carrier to the point of origin of the passenger's trip. Therefore, normally, it is not possible to accommodate a passenger who needs medical oxygen on a flight unless the advance notice is provided because the accommodation cannot be made without delaying the flight. If the customer cannot be accommodated, you should provide the customer with a written statement stating the specific basis for the refusal to provide transportation within 10 calendar days of the refusal in accordance with section 382.19(d).
Even if a passenger with a disability provides advance notice, sometimes weather or mechanical problems require cancellation of the flight or the substitution of another aircraft. Under these circumstances, you must, to the maximum extent feasible, assist in providing the accommodation originally requested by the passenger with a disability even if the new flight is on another carrier. (§ 382.27(f)).
You should be able to provide information about aircraft accessibility to passengers with a disability when they or persons on their behalf request this information. When feasible, you should provide information pertaining to a specific aircraft to be used for a specific flight. In general, you must take into account safety and feasibility when seating passengers with disabilities. (§ 382.41 and Subpart F—Seating Accommodations).
• Any limitations concerning the ability of the aircraft to accommodate an individual with a disability. This includes limitations on the availability of level-entry boarding to the aircraft at any airport involved in the flight;
• The location of seats in a row with a movable aisle armrest, if any, by row and seat number and any seats which the carrier may not make available to individuals with a disability (for example, exit rows);
• Any limitation on the availability of storage facilities in the cabin or in the cargo compartment for mobility aids or other assistive devices commonly used by an individual with a disability, including storage in the cabin of a passenger's wheelchair;
• Whether the aircraft has a lavatory accessible to passengers with a disability; and
• The type of services available and unavailable to passengers with a disability. (§ 382.41).
For a passenger with a disability who communicates that he or she uses a wheelchair for boarding, you must provide information on any aircraft-related, service-related, or other accommodation limitation such as a limitation on the availability of level-entry boarding to the aircraft at any airport involved in the flight. The passenger does not have to request this information explicitly. (§ 382.41(c)).
When an agent acting on your behalf provides inaccurate information to a passenger with a disability concerning a disability-related accommodation, you, the carrier, are responsible for any resulting information-related violation of Part 382.
In addition, if you agree to provide a service not specifically required under Part 382 to accommodate a particular passenger's disability, you are obligated to provide that service or risk being in violation of § 382.41. For example, if you inform a passenger that you will not serve peanuts on the passenger's flights to accommodate his or her peanut allergy then you must ensure peanuts are not served on those flights or be in violation of § 382.41.
You must permit passengers with a disability travelling on aircraft originally designed to have a maximum passenger seating capacity of more than 19 seats to use a continuous positive airway pressure (CPAP) machine, respirator, ventilator, or an FAA-approved POC in the aircraft cabin if the device—
(1) Meets FAA or applicable foreign government requirements and displays a manufacturer's label indicating that the device meets those requirements; and
(2) Can be stowed and used in the aircraft cabin under applicable FAA, PHMSA, and Transportation Security Administration (TSA) regulations. (§ 382.133(a)).
When during the reservation process a passenger with a disability asks you about bringing his or her electronic respiratory assistive device onboard the aircraft, you must tell the passenger about the requirements for carrying the device onboard the aircraft specifically—
(1) Labeling (see Note on labeling in Section A),
(2) Maximum weight and dimension limitations,
(3) Bringing an adequate number of fully charged batteries (packaged and protected from short circuit and physical damage),
(4) Any advance notice and check-in requirements (See Section A),
(5) Medical certificate requirements (POCs), and
(6) The maximum expected duration of the flight. (§ 382.133(c)(1) through (c)(6) and (f)(1)).
You may insist that passengers bring an adequate number of fully charged batteries onboard to power the device for not less than 150 percent of the expected maximum flight duration. (§ 382.133(f)(2)). If the passenger does not comply with the conditions for acceptance of a medical portable electronic device outlined in the regulation, you may deny the passenger boarding. (§ 382.133(f)(3)) If you deny the passenger boarding, you must provide the passenger with a written explanation within 10 calendar days of the refusal of transport as required under § 382.19(d).
You must permit passengers with a disability traveling on aircraft originally designed to have a maximum passenger seating capacity of more than 19 seats to use a CPAP machine, respirator, ventilator, or a POC of a kind equivalent to an FAA-approved POC for U.S. carriers in the aircraft cabin during flights to, from, or within the United States if the device—
(1) Meets requirements for medical portable electronic devices set by the foreign carrier's government and displays a manufacturer's label indicating that the device meets those requirements or, if there is no applicable foreign government provision, the device meets requirements for medical portable electronic devices set by the FAA for U.S. carriers and displays a manufacturer's label that the device meets FAA requirements and
(2) Can be stowed and used in the aircraft cabin under applicable FAA, PHMSA, and TSA regulations,
When during the reservation process a passenger with a disability asks you about bringing his or her CPAP machine, respirator, ventilator, or a POC of a kind equivalent to an FAA-approved POC for U.S. carriers onboard the aircraft, you must tell the passenger about the foreign carrier's government requirements or FAA requirements, if applicable, for carrying the device onboard the aircraft specifically—
(1) Labeling (see Note on labeling in Section A),
(2) Maximum weight and dimension limitations,
(3) Bringing an adequate number of fully charged batteries (packaged in accordance with applicable government safety regulations),
(4) Any advance notice and check-in requirements (See Section A),
(5) Medical certificate requirements (POCs), and
(6) The maximum expected duration of the flight. (§ 382.133(d)(1) through (d)(7) and (f)(1)).
You may insist that passengers bring an adequate number of fully charged batteries onboard to power the device for not less than 150 percent of the expected maximum flight duration. (§ 382.133(f)(2)). If the passenger does not comply with the conditions for acceptance of a medical portable electronic device outlined in the regulation, you may deny the passenger boarding. (§ 382.133(f)(3)). If you deny the passenger boarding, you must provide the passenger with a written explanation within 10 calendar days of the refusal of transport as required under § 382.19(d).
While you may require a medical certificate from an individual who wishes to use a POC or carrier supplied oxygen during flight, it normally would not be appropriate for you to ask for such a certificate from someone wishing to use a CPAP machine, respirator, or ventilator aboard a flight. Consistent with § 382.23, a medical certificate should be required of an individual who uses a CPAP machine, respirator, or ventilator only if the individual's 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. See Section G., Medical Certificates.
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 as specified in the passenger's medical certificate (for example, flow rate for POCs). The expected maximum flight duration is defined as the carrier's best estimate of the total duration of the flight from departure gate to arrival gate, including taxi time to and from the terminals, based on the scheduled flight time and factors such as wind and other weather conditions forecast; anticipated air traffic delays; one instrument approach and possible missed approach at the destination airport; and any other conditions that may delay arrival of the aircraft at the destination. (§§ 382.3 and 382.133(f)).
You may deny boarding, on the basis of safety, to a passenger with a disability who does not carry the number of fully charged batteries prescribed in the rule or to a passenger with a disability who does not properly package the extra batteries needed to power his/her device. Information for passengers on how to travel safely with batteries is available at
The requirement to bring an adequate number of batteries to operate the device continuously for up to 150 percent of the expected maximum flight duration does not apply in circumstances where the passenger will be using an FAA-approved POC while boarding or deplaning from the aircraft but will be using a carrier-supplied POC or carrier-supplied oxygen during the flight itself.
As the carrier whose code is used on a flight itinerary, you must either inform the passenger with a disability who inquires about using an electronic respiratory device (CPAP, POC, respirator, or ventilator) onboard the aircraft to—
(1) Contact the carrier operating the flight for information about its requirements for use of electronic respiratory devices onboard the aircraft or
(2) Provide information on the use of electronic respiratory devices on behalf of the codeshare carrier operating the flight. (§ 382.133(e)).
A passenger buys a codeshare ticket from carrier A for a connecting itinerary from New York to Cairo through London, where carrier A operates the New York to London flight segment and carrier B operates the London to Cairo flight segment under carrier A's designator code. Carrier A must upon inquiry from the passenger inform the passenger about—
(1) Carrier A's requirements for the use in the cabin of a CPAP machine, POC, respirator, or ventilator and
(2) Carrier B's requirements for the use in the cabin of a CPAP machine, POC, respirator, or ventilator, or tell the passenger to contact carrier B directly to obtain this information.
If, in assisting a passenger with a disability, a carrier employee or contractor disassembles the passenger's wheelchair, mobility aid, or other assistive device, another carrier employee or contractor must reassemble it and ensure its prompt return to the passenger with a disability in the same condition in which the carrier received it. (§ 382.129(b)). You must permit passengers with a disability to provide written instructions 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 foreign government requirements concerning safety, hazardous materials, and security with respect to the stowage of carry-on items. (§ 382.129(a)). You cannot require passengers with disabilities to sign a waiver of liability for damage to or loss of wheelchairs or other assistive devices. However, you may note preexisting damage to wheelchairs or other assistive devices. (§ 382.35(b)).
A service animal is an—
(1) Animal individually trained to perform functions to assist a person with a disability;
(2) Animal that has been shown to have the innate ability to assist a person
(3) Emotional support or psychiatric service animal.
You should be aware that there are many different types of service animals that perform a range of tasks for individuals with a disability. However, as a foreign carrier you are only required to accommodate dogs as service animals except on codesharing flights with U.S. carriers. For more information regarding service animals on such flights, see the Note under the heading
You must permit a service animal used by a passenger with a disability to accompany the passenger on his or her flight. (§ 382.117(a)). In addition, you must permit a service animal to accompany a passenger with a disability to the passenger's assigned seat and remain there if the animal does not obstruct the aisle or other areas that must remain unobstructed to facilitate an emergency evacuation. (§ 382.117(b)). The service animal must be allowed to accompany the passenger unless it poses a direct threat to the health or safety of others or presents a significant threat of disruption to the cabin service.
If a service animal does not fit in the space immediately in front of the accompanying passenger with a disability and there is no other seat with sufficient space to safely accommodate the animal and the accompanying passenger, there are several options to consider for accommodating the service animal in the cabin in the same class of service. You should speak with other passengers to find a passenger—
(1) Seated in an adjacent seat who is willing to share foot space with the animal, or
(2) Who is willing to exchange seats with the passenger accompanying the service animal and is seated in a seat adjacent to—
(a) A location where the service animal can be accommodated (for example, in the space behind the last row of seats) or
(b) An empty seat.
You must not deny a passenger with a disability transportation on the basis that the service animal may offend or annoy persons traveling on the aircraft. (§ 382.117(a)(1)). See also Guidance Concerning Service Animals at
If a service animal cannot be accommodated at the seat of the passenger with a disability and if there is another seat in the same class of service where the passenger and the animal can be accommodated, you must offer the passenger the opportunity to move to the other seat with the service animal. (§ 382.117(c)).
Under particular circumstances (see Example 1 below), you may wish to verify whether an animal accompanying a passenger with a disability qualifies as a service animal under Part 382. Other than service animals used as emotional support or psychiatric service animals, you must accept the following as evidence that the animal is a service animal:
• The credible verbal assurances of a qualified individual with a disability using the animal,
• The presence of harnesses,
• Tags, or
• Identification cards or other written documentation. (§ 382.117(d)).
Passengers accompanied by service animals may not have identification or written documentation regarding their service animals. Some service animals wear harnesses, vests, capes, or backpacks. Markings on these items or on the animal's tags may identify it as a service animal, however, the absence of such equipment does not necessarily mean the animal is not a service animal. Similarly, the presence of a harness or vest on a pet for which the passenger cannot provide a credible verbal assurance may not be sufficient evidence that the animal is a legitimate service animal. See also Appendix III of this manual titled DOT Guidance Concerning Service Animals in Air Transportation.
If a flight is scheduled for 8 hours or more, you may require documentation that the service animal will not need to relieve itself on the flight or can do so in a way that will not create a health or sanitation issue on the flight. (§ 382.117(a)(2)).
Carriers also may require that passengers traveling with emotional support or psychiatric service animals present current documentation (that is, no older than 1 year from the date of the passenger's scheduled initial flight)
• The passenger has a recognized mental or emotional disability;
• The passenger needs the service animal as an accommodation for air travel and/or activity at the passenger's destination;
• The provider of the letter is a licensed mental health professional, or a licensed medical professional treating the individual for the recognized mental or emotional disability, and the passenger is under the individual's professional care; and
• The date and type of mental health professional's license and the state or other jurisdiction in which the license was issued. (§ 382.117(e)(1) through (e)(4)).
Even if you receive sufficient verification that an animal accompanying a passenger is a service animal, if the service animal's behavior in a public setting is inappropriate or disruptive to other passengers or carrier personnel, you may refuse to permit the animal on the flight and offer the passenger alternative accommodations in accordance with Part 382 and your carrier's policy (for example, carry the animal in the cargo compartment). Note that carriers are required to carry service animals even if the animal may offend or annoy carrier personnel or persons traveling on the aircraft. Pursuant to section 382.117(g), if you refuse 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 within 10 calendar days of the incident.
A passenger arrives at the gate accompanied by a pot-bellied pig. She claims that the pot-bellied pig is her service animal. What should you do?
Generally, you must permit a passenger with a disability to be accompanied by a service animal. However if you have a reasonable basis for questioning whether the animal is a service animal, you may ask for some verification. Usually written verification is not required.
You may begin by asking questions about the service animal, for example, “What tasks or functions does your animal perform for
Finally, if you determine that the pot-bellied pig is a service animal, you must permit the service animal to accompany the passenger to her seat provided the animal does not obstruct the aisle or present any safety issues and the animal is behaving appropriately in a public setting. However, note that as a foreign carrier, you are not required to carry service animals other than dogs (except as noted in § 382.7(c) for codeshare flights with a U.S carrier.).
A passenger with a hearing impairment is planning to board the plane with his service animal. The service animal is a hearing-assistance dog and is small enough to sit on the passenger's lap. While waiting to board the flight, the hearing-assistance dog jumps off the passenger's lap and begins barking and nipping at other passengers in the waiting area. What should you do?
Although you have initially made the determination that the hearing-assistance dog is a service animal and may accompany the passenger with the hearing impairment on the flight, you may reconsider the decision if the dog is behaving in a manner that seems disruptive and infringes on the safety of other passengers. You should carefully observe the hearing-assistance dog's behavior and explain it in detail to a CRO (if the CRO is on the telephone). If, after careful consideration of all the facts presented, the CRO decides not to treat the dog as a service animal, you should explain your carrier's policy regarding traveling with animals that are not being allowed in the passenger cabin as service animals. As discussed later, you also must document your decision in writing and provide the passenger with a copy of your explanation at the airport or within 10 calendar days. (§ 382.117(g)).
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. (§ 382.81(c)). Note that on some aircraft the bulkhead seat is also the emergency exit row. If this is the case, the passenger cannot sit in the bulkhead seat with the service animal.
With respect to terminal facilities you own, lease, or control at a U.S. airport, you must, in cooperation with the airport operator, provide relief areas for service animals that accompany passengers with a disability who are departing, arriving, or connecting at an airport on your flights.
When establishing relief areas you should consider the size and surface material of the area, maintenance, and distance to relief area, which could vary, based on the size and configuration of the airport. In planning the relief area, it is critical to involve airline, airport, service animal training organization, TSA, and U.S. Customs and Border Protection.
In addition, you should advise passengers who request you provide them with assistance to an animal relief area, the location of the animal relief area. Additionally, if requested, it would be your responsibility to accompany a passenger traveling with a service animal to and from the animal relief area.
The DOT requirement to provide animal relief areas was effective on May 13, 2009, for U.S. carriers and May 13, 2010, for foreign carriers. See Chapter 4, Section A, Animal Relief Areas, for additional guidance on establishing and maintaining relief areas for service animals. (§ 382.51(a)(5)).
As a U.S. carrier, you are not required to carry certain unusual service animals in the aircraft cabin such as ferrets, rodents, spiders, snakes and other reptiles. Other commonly used service animals, such as miniature horses and monkeys, can travel as service animals on U.S. carriers. However, the carrier can decide to exclude a particular animal on a case-by-case basis if it—
• Is too large or heavy to be accommodated in the aircraft cabin;
• Would pose a direct threat to the health and safety of others;
• Would cause a significant disruption in cabin service; or
• Would be prohibited from entering a foreign country at the aircraft's destination.
For U.S. carriers, if none of the factors listed directly above preclude a service animal from traveling in the aircraft cabin, you must permit it to travel onboard the aircraft.
As a foreign carrier, you are normally only required to accommodate dogs as service animals. However, if you are a foreign carrier that participates in a codesharing arrangement with a U.S. carrier on flights between two foreign points, the service provisions of Subparts A through C, F through H, and K with respect to passengers traveling under the U.S. carriers code would be in effect on the codeshare flight. Therefore, in such instances as a foreign carrier you would have to accommodate service animals other than dogs.
A U.S. carrier advises the passenger that the foreign carrier does not accept service animals other than dogs and then assists the passenger in making alternate flight arrangements using alternate carriers and/or alternate routings.
Alternatively, the U.S. carrier could market and sell the flight segment between two foreign points as an interline connection
If you decide not to accept an animal as a service animal, you must explain the reason to the passenger and document your decision in writing. A copy of the explanation must be provided to the passenger at the airport or within 10 calendar days of the event. (§ 382.117(g)).
You must promptly take all steps necessary to comply with foreign regulations such as animal health regulations, to permit the transportation of a passenger's service animal from the United States to a foreign destination. (§ 382.117(h)). See Appendix IV for DOT Guidance on transportation of service animals into the United Kingdom and into countries other than the United Kingdom. (§ 382.117(i)). This guidance also can be found on the DOT's Aviation Consumer Protection Division Web site at
If, as a carrier, you provide a telephone reservation and information service to the public, you must make this service available to individuals who use a text telephone (TTY), whether through your own TTY, voice relay, or other available technology to permit individuals with hearing impairments to make reservations and obtain information. You no longer are required to have a TTY; only your reservation service must be available to those who use a TTY. The TTY, voice relay, or other available technology must be available during the same hours as the telephone service for the general public and the same response time for answering calls and the same surcharges
As a foreign carrier, information and reservation services must be accessible to individuals with hearing impairments for flights covered by this rule by May 13, 2010. (§ 382.43(a)(5)).
You do not have to meet the TTY, voice relay, or other available technology requirements in any country in which the telecommunications infrastructure does not readily permit compliance. (§ 382.43(b)).
Except as described below in this section, you must not— (1) Refuse transportation to; (2) require a medical certificate from; (3) delay the passenger's transportation (for example, require the passenger to take a later flight); or (4) impose any condition, restriction, or requirement not imposed on other passengers on a passenger with a communicable disease or infection. (§ 382.21)
Only if a passenger with a communicable disease or infection poses a
To be a direct threat—
A condition must be (1) readily transmittable by casual contact during a flight;
If you are faced with particular circumstances where you are required to make a determination as to whether a passenger with a communicable disease or infection poses a direct threat to the health or safety of others, you must make an individualized assessment based on a reasonable judgment, relying on current medical knowledge or the best available objective evidence, to determine—
(1) The nature, duration, and severity of the risk;
(2) The probability that the potential harm to the health and safety of others will actually occur; and
(3) Whether reasonably modifying policies, practices, or procedures will mitigate the risk. (§§ 382.19(c)(1)(i–iii) and 382.21(b)(1)(2)).
In making this assessment, you may rely on directives issued by public health authorities such as the U.S. Centers for Disease Control or Public Health Service, comparable agencies in other countries, and the World Health Organization. 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. (§ 382.21(b)(1)).
You should also confer with appropriate medical personnel and a CRO when making this assessment. The following table presents examples of communicable diseases and the degree to which they can be readily transmitted in an aircraft cabin, whether they involve severe health consequences and whether they pose a “direct threat” to other passengers:
If, in your estimation, a passenger with a communicable disease or infection poses a direct threat to the health or safety of other passengers, you may—
(1) Impose on that passenger a special condition or restriction (for example, wearing a mask);
(2) Require that person to provide a medical certificate stating that the disease at its current stage would not be transmittable during the normal course of a flight or, if applicable, describing measures that would prevent transmission during the flight (§ 382.21(c));
(3) Delay the passenger's transportation (for example, require the passenger to take a later flight); or
(4) Refuse to provide transportation to that person.
You must choose the least restrictive of the four options described above that would accomplish the objective. (§ 382.19(c)(2)).
See Section G, Medical Certificates, Medical Certificate and a Passenger with a Communicable Disease or Infection.
If you deem a passenger as presenting a direct threat and determine he or she cannot travel as scheduled, you must allow the passenger to travel at a time
A passenger purchases a one-way economy/coach class ticket for a flight from Los Angeles to Tokyo on March 15 for $750. When the passenger arrives at the airport it is determined he has contracted Severe Acute Respiratory Syndrome (SARS). The carrier determines that because SARS is both able to be readily transmitted by casual contact during a flight and has severe health consequences the passenger presents a direct threat. Accordingly, the carrier forces the passenger to postpone his travel. On April 15, the passenger is completely healthy and
At all times, as a matter of good customer service, you should treat the passenger with courtesy and respect.
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. Except under the circumstances described below, you must not require medical certification of a passenger with a disability as a condition for providing transportation. (§ 382.23(a) and (b)(2)).
You may require a medical certificate only if the passenger with a disability:
• Is traveling on a stretcher or in an incubator (where such service is offered);
• Will be using a passenger-supplied POC in-flight or needs carrier-supplied medical oxygen (where such service is offered);
• Has a medical condition that causes the carrier to have reasonable doubt that the passenger can complete the flight safely without requiring extraordinary medical assistance during the flight. (§ 382.23(b)); or
• Has a communicable disease that poses a direct threat to the health and safety of others on the flight. (§ 382.23(c)).
To be valid, the required medical certificate must be dated within 10 days of the scheduled date of the passenger's initial departing flight. (§ 382.23(b)(3)).
The DOT's intent regarding the medical certificate provision was to allow carriers to impose the 10-day time limit to medical certificates only for passengers with communicable diseases, not to other individuals such as passengers who need supplemental oxygen (for example, to assist those individuals with asthma or emphysema.) The DOT encourages carriers not to require the documentation to be dated within 10 days of the scheduled date of the passenger's flight for passengers who wish to use an FAA-approved POC as supplemental oxygen.
A passenger schedules a flight from New York to London on January 15 with a return flight on April 15 and would like to use a POC onboard the aircraft. The carrier could require the passenger to show a medical certificate dated January 5 or later. For the passenger's return flight on April 15, the passenger would not have to show a second medical certificate dated April 5 or later.
You may subject a passenger with a medical certificate to additional medical review if you believe that—
(1) There has been a significant adverse change in the passenger's medical condition since the issuance of the medical certificate or
(2) The certificate significantly understates the passenger's risk to the health or safety of others on the flight.
If this additional medical review shows that the passenger is unlikely to complete the flight without extraordinary medical assistance you may, notwithstanding the medical certificate, deny or restrict the passenger's transportation. (§ 382.23(d)).
If you deny or restrict a passenger's travel, you must provide a written explanation upon the passenger's request within 10 days of the request explaining why you considered the restriction necessary. (§ 382.21(e)).
If you determine that a passenger with a communicable disease or infection poses a direct threat to the health or safety of others on the flight, you may require a medical certificate from the passenger. (§ 382.23(c)(1)) The medical certificate is a written statement from the passenger's physician stating that the disease or infection would not under current conditions be communicable to other persons during the normal course of the flight and must include any conditions or precautions that would have to be observed to prevent the transmission of the disease or infection during the normal course of the flight. The medical certificate must be dated within 10 days of the flight date, not within 10 days of the initial flight. (§ 382.23(c)(2)).
In the event that you determine the need for a medical certificate for a passenger with a communicable disease or infection, you should provide the passenger with the disability the reason for the request. You should base your request on the reasons provided in Part 382 and outlined above.
At all times, you should treat the passenger from whom you are requesting a medical certificate with courtesy and respect.
A passenger arrives at the gate with her 6-year-old daughter. The girl's face and arms are covered with red lesions, resembling chicken pox. What should you do?
Generally, you must not refuse travel to, require a medical certificate from, or impose special conditions on a passenger with a communicable disease or infection. However, if a passenger appears to have a communicable disease or infection that poses a direct threat to the health or safety of other passengers, you may be required to make a determination about the best course of action based on the seriousness of the health risk and the ease of disease transmittal. As previously discussed, for a communicable disease or infection to pose a direct threat, the condition must both be readily transmitted under conditions of flight and have serious health consequences. An example of such a communicable disease is SARs. Medical conditions that do not pose a direct threat to the health or safety of passengers (1) are easily transmitted in aircraft cabins but have limited health consequences such as the common cold or (2) are difficult to transmit in aircraft cabins but have serious health consequences such as acquired immune deficiency syndrome (AIDS).
The first thing you should do is interview the passenger and her mother to obtain basic information about the girl's condition. This exchange should be done discreetly and in a courteous and respectful manner. If you still have a question about the nature of the child's condition that will affect decisions about transportation, you should contact a CRO and explain the situation.
Here, the mother tells you and the CRO that the child has chicken pox but is no longer contagious. The CRO would likely consult with appropriate medical personnel to verify whether the child could be contagious based on the mother's statement and the CRO's observations and confirm that contagious chicken pox would pose a direct threat to passengers.
If there is a reasonable basis for believing that the passenger poses a direct threat to the health or safety of others, you must choose the least restrictive alternative among the following options:
(1) Refusing transportation to the individual;
(2) Delaying the passenger's transportation (for example, requiring the individual to take a later flight);
(3) Requiring a medical certificate; or
(4) Imposing a special condition or limitation on the individual.
If the medical support people indicate there is a chance that the child is no longer contagious but only if a certain number of days have passed since the outbreak of the
Having discussed the situation with the passenger and her mother and consulted the CRO and the medical support personnel, the request for a medical certificate appears to be reasonable under the circumstances and the least restrictive of the four options.
As a reminder, § 382.23(c)(2) specifies that the medical certificate be from the child's physician and state that the child's chicken pox would not be communicable to other passengers during the normal course of a flight. The medical certificate must also include any conditions or precautions that would have to be observed to prevent the transmission of the chicken pox to other passengers during the normal course of a flight and be dated within 10 days of the date of the flight. If the medical certificate is incomplete, you cannot carry out the prescribed measures on the medical certificate. If you cannot carry out the prescribed measures on the medical certificate or if the passenger is attempting to travel before the date specified in the medical certificate or without implementing the conditions outlined to prevent transmission, the child would not be permitted to fly.
If you restrict a passenger's travel, you must provide a written explanation upon the passenger's request within 10 days of the request explaining why you considered the restriction necessary. (§ 382.21(e)).
You may subject a passenger with a medical certificate to additional medical review if you believe that—
(1) There has been a significant adverse change in the passenger's medical condition since the issuance of the medical certificate or
(2) The certificate significantly understates the passenger's risk to the health or safety of others on the flight.
If this additional medical review shows that the passenger is unlikely to complete the flight without extraordinary medical assistance or would pose a direct threat to other passengers, you may, notwithstanding the medical certificate, deny or restrict the passenger's transportation. (§ 382.23(d)).
As a carrier, you must provide, or ensure the provision of, assistance to a passenger with a disability in moving from the terminal entrance through the airport to the gate for a departing flight or from the gate to the terminal entrance if the passenger or someone on behalf of the passenger requests such assistance or you offer and the passenger with a disability accepts the assistance. This obligation extends to a vehicle drop-off or pick-up point adjacent to the terminal entrance and key functional areas of the terminal such as ticket counters and baggage claim. This does not include satellite parking or car rental drop-off areas that are not adjacent to the terminal entrance.
While providing assistance to a disabled passenger in going to, from and between gates, a carrier must, upon request, make a brief stop at the entrance to a rest room, including an accessible rest room when requested, if such a stop is available on the route and the stop can be made without unreasonable delay. (§ 382.91(b), (b)(1), and (b)(2)).
As a carrier, you also must assist passengers who are unable to carry their luggage because of their disability with transporting their luggage for check-in at the ticket counter or gate, or as carry-on aboard the aircraft. This obligation exists only if the passenger requests such assistance and can make credible verbal assurances of his or her inability to carry the item because of his or her disability. If the passenger's verbal assurances are not credible, you may require the passenger to produce documentation as a condition of providing the service. (§ 382.91(d)).
At airports located in the United States, you must in cooperation with the airport operator, provide for escorting a passenger with a service animal to an animal relief area if the passenger requests. (§ 382.91(c)). See Section D above.
The arriving carrier (the one that operates the first of the two flights that are connecting) is responsible for connecting assistance for passengers with a disability moving within the terminal. As an employee/contractor of the arriving carrier, on request, you must provide assistance to a passenger with a disability in making flight connections and providing transportation between gates. The arriving carrier may mutually agree with the carrier operating the departing connecting flight (the second flight of the two flights) that the departing carrier will provide the connecting assistance. However, the carrier operating the arriving flight
If assistance with boarding or deplaning, making flight connections, or transportation between gates is requested by or on behalf of a passenger with a disability, or offered by carrier personnel and accepted by the passenger, you must provide it.
More specifically, you must promptly provide, when needed and to the extent required by law, the following:
• Services personnel,
• Ground wheelchairs,
• Accessible motorized carts,
• On-board wheelchairs,
• Boarding wheelchairs, and/or
• Ramps or mechanical lifts. (§ 382.95(a)).
Aircraft with more than 60 passenger seats having an accessible lavatory must be equipped with an operable on-board wheelchair. The Aerospatiale/Aeritalia ATR–72 and the British Aerospace Advanced Turboprop (ATP) that have seating configurations between 60 and 70 passenger seats are exempt from this requirement. (§ 382.65(a)).
On-board wheelchairs must be equipped with—
• 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. (§ 382.65(c)(1)).
The on-board wheelchair 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 easily be pushed, pulled, and turned in the cabin environment by carrier personnel. (§ 382.65(c)(2)).
If the aircraft being used for the flight has more than 60 passenger seats but does not have an accessible lavatory, you must provide an on-board wheelchair upon request for a passenger who can use the inaccessible lavatory but cannot reach it from his or her seat without the use of an on-board wheelchair. You may require the passenger to provide up to 48 hours' advance notice and check in 1 hour before the check-in time for the general public when requesting the on-board wheelchair under these circumstances. (§ 382.65(b)) and 382.27(c)(7)).
Foreign carriers were required to meet the requirements for an on-board wheelchair by May 13, 2010. U.S. carriers were required to meet these requirements by May 13, 2009.
You must permit a passenger with a disability to provide written instructions and should accept oral advice from the passenger concerning the disassembly and reassembly of the passenger's wheelchair. (§ 382.129(a)).
In addition, consistent with good customer service, you should treat the passenger with a disability with courtesy and respect at all times by keeping the passenger informed about any problems or delays in providing personnel or equipment in connection with an accommodation.
Except under limited circumstances, you cannot require a passenger with a disability to be accompanied by a safety assistant. (§ 382.29(a)). See Chapter 4, Section E, Safety Assistants, for a discussion of the Part 382 requirements for a safety assistant.
All terminal facilities owned, leased, or controlled by carriers at U.S. airports, must be readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. (§ 382.51(a)(1)). For example, terminals must provide accessible intra- and inter-terminal transportation systems, such as moving sidewalks, shuttle vehicles, and people movers. (§ 382.51(a)(3)).
As a carrier, you must ensure that there is an accessible route (one meeting the requirements of the Americans with Disabilities Act Accessibility Guidelines (ADAAG)) between the gate and boarding area when an accessible passenger lounge or other level entry boarding and deplaning is not available to and from an aircraft. For example, there must be an accessible path on the tarmac between the gate and the aircraft when level-entry boarding is not available. (§ 382.51(a)(2)).
In cooperation with the airport operator and in consultation with local service animal training organizations, you must provide animal relief areas for service animals that accompany passengers departing, connecting, or arriving at an airport on your flights. (§ 382.51(a)(5)).
The national and international service animal organizations below have directories of training organizations on their Web sites that you and the airport operator can use to find the nearest service animal training organization. Such groups are often able to put airlines and airports in touch with sources of the necessary technical expertise on establishing relief areas.
• American Dog Trainers Network. Web site address:
• Assistance Dogs International. Web site address:
If the Department's Aviation Enforcement Office received a complaint alleging that an animal relief area was not available or not being properly maintained, the carrier involved would ultimately be responsible for ensuring these areas are available and maintained, with respect to terminal facilities the carrier owns, leases or controls. However, the actual establishment of the animal relief area, as well as its maintenance, could be handled contractually with the airport operator since several carriers could be using the same designated animal relief area.
Considerations for designating and constructing areas safe for humans and animals include:
(1) Designate relief areas solely for that purpose. This helps keep the area free of hazards and distractions, and helps prevent the spread of waste contamination.
(2) Establish relief areas that are:
(a) Accessible to passengers with all types of disabilities;
(b) Of a size adequate for larger dogs to use;
(c) Minimal travel distance to and from the gate for passengers making connecting flights; and
(d) Equipped with adequate lighting to enhance usability and security.
(3) Keep the area clean (for example, free of broken glass, bottle caps, and trash). When feasible, the area should also be free of loud noises and strong odors.
(4) Use a gravel or sand surface for relief areas. Gravel can be disinfected adequately to reduce the chance of germs being spread between animals or carried outside of the relief area.
(5) Install adequate drainage to allow cleaning by regularly hosing down the relief area.
(6) Provide trash cans for waste disposal that are emptied frequently.
There is a requirement for carriers to consult with service animal training organizations in establishing animal relief areas. Where there is no local service animal training organization, the Department of Transportation (DOT) would consider consultation with a national or international service animal training organization to satisfy the requirement.
You should advise passengers who request you provide them with assistance to an animal relief area of the location of the animal relief area. Additionally, if requested, it would be your responsibility to accompany a passenger traveling with a service animal to and from the animal relief area. The requirement to provide animal relief areas was effective on May 13, 2009, for U.S. carriers and May 13, 2010, for foreign carriers.
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 where passengers have access. The captioning must be high contrast if feasible. (§ 382.51(a)(6)).
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 has such capability when you replace such equipment 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. (§ 382.51(a)(7)). If you newly acquire televisions and other audio-visual displays for passenger safety briefings (for example, safety briefings on the location of airport terminal emergency exists), information, or entertainment, on or after May 13, 2009, this equipment must have high-contrast captioning capability. (§ 382.51(a)(8)).
(§ 382.51(c)).
The ADAAG requirements do not apply to foreign airports. However, Part 382 contains a performance requirement to ensure that passengers with a disability can readily use the facilities the carrier owns, leases, or controls at the airport. (§ 382.51(b)). As a foreign carrier, this requirement applies only at terminal facilities for flights covered by the rule.
You must ensure that a passenger with a disability is able to move readily through the terminal facilities, to get to or from the gate and any other area from which passengers board your carrier's aircraft. This includes moving on the tarmac between the gate and the aircraft when an accessible passenger lounge is not available, and moving to and from an aircraft when level-entry boarding is not available. (§ 382.51(b)(1)). You may meet this obligation through any combination of accessible facilities, auxiliary aids, equipment, the assistance of personnel, or other means consistent with ensuring the safety and dignity of the passenger (for example, lifting a passenger in a boarding chair). (§ 382.51(b)(2)).
Foreign and U.S. carriers must have met the facility accessibility requirements described above at foreign airports by May 13, 2010. (§ 382.51(c)).
As a carrier, you must not subject passengers with disabilities to restrictions that do not apply to other passengers unless otherwise permitted for certain services such as the advance notice requirements under § 382.27. You must not—
(1) Restrict the movements of individuals with disabilities within terminals;
(2) Require them to remain in a holding area or other location to receive assistance, such as transportation, services, or accommodations;
(3) Mandate separate treatment for individuals with disabilities except as required or permitted under Part 382 or other applicable Federal requirements; or
(4) Make passengers with disabilities wear badges or other special identification (unless the passenger gives consent). (§ 382.33).
If existing automated kiosks are inaccessible (for example, to wheelchair users because of height or reach issues or to passengers with vision impairments because of issues related to visual displays or touch screens), as a carrier, you must provide equivalent service for persons with disabilities who cannot use the kiosks for ticketing and obtaining boarding passes. For example, you could allow a passenger who cannot use the kiosk to come to the front of the line at the check-in counter, or carrier personnel could meet the passenger at the kiosk and help the passenger use the kiosk. (§ 382.57).
All passengers including those with disabilities are subject to TSA security screening requirements at U.S. airports. Passengers at foreign airports, including those with disabilities, may be subject to security screening measures required by the law of the country where the airport is located. (§ 382.55(a)).
If, as a carrier, you want to go beyond mandated security screening procedures, you must conduct the security screening of a passenger with a disability in the same manner as any other passenger. You must not subject a passenger with a disability who possesses a mobility aid or other assistive device used for independent travel to a special screening procedure if the passenger and the aid or assistive device clears security without activating the security system. (§ 382.55(b)(2)).
Your security personnel may examine a mobility aid or assistive device if, in their judgment, it may conceal a weapon or other prohibited item even if the mobility aid or assistive device does not activate the security system.
In the event a passenger's mobility aid or assistive device activates the security system, you may conduct the security search of the passenger with a disability in the same manner as you would for other passengers who activate the system. (§ 382.55(b)(2)(ii)).
You must not require a private security screening for a passenger with a disability for any reason different from the reasons other passengers would be subject to a private security screening. (§ 382.55(b)(3)). However, if a passenger with a disability requests a private security screening in a timely manner, you must provide it in time for the passenger to board the flight. (§ 382.55(c)). If you use technology to conduct a security screening of a passenger with a disability without the need for a physical search of the person, you are not required to provide a private screening. (§ 382.55(d)).
Finally, under certain circumstances, safety considerations may require you to exercise discretion in making the above decisions. You must always seek assistance from the appropriate designated personnel, including your carrier's Complaints Resolution Official (CRO), in making such a decision.
As a carrier, you must provide, or ensure the provision of, assistance to a passenger with a disability in moving from the terminal entrance through the airport to the gate for a departing flight or from the gate to the terminal entrance if the passenger or someone on behalf of the passenger requests such assistance or you offer and the passenger with a disability accepts the assistance. This obligation extends to a vehicle drop-off or pick up point adjacent to the terminal entrance and key functional areas of the terminal such as ticket counters and baggage claim. This does not include satellite parking or car rental drop-off areas that are not adjacent to the terminal entrance.
While providing assistance to a disabled passenger in going to, from and between gates, a carriers must, upon request, make a brief stop at the entrance to a rest room, including an accessible rest room when requested, if such a stop is available on the route and the stop can be made without unreasonable delay. (§ 382.91(b), (b)(1), and (b)(2)).
As a carrier, you also must assist passengers who are unable to carry their luggage because of their disability with transporting their luggage for check-in at the ticket counter or gate, or as carry-on aboard the aircraft. This obligation exists only if the passenger requests such assistance and can make credible verbal assurances of his or her inability to carry the item because of his or her disability. If the passenger's verbal assurances are not credible, you may require the passenger to produce documentation as a condition of providing the service. (§ 382.91(d)).
At airports located in the United States, you must in cooperation with the airport operator, provide for escorting a passenger with a service animal to an animal relief area if the passenger requests. (§ 382.91(c)).
The arriving carrier (the one that operates the first of the two flights that are connecting) is responsible for connecting assistance for passengers with a disability moving within the terminal. As an employee/contractor of the arriving carrier, on request, you must provide assistance to a passenger with a disability in making flight connections and providing transportation between gates. The arriving carrier may mutually agree with the carrier operating the departing connecting flight (the second flight of the two flights) that the departing carrier will provide the connecting assistance. However, the carrier operating the arriving flight
When needed and to the extent required by law, you must provide the services of personnel, and the use of ground wheelchairs, accessible motorized carts, boarding wheelchairs, and/or onboard wheelchairs, and ramps or mechanical lifts. This requirement is discussed in more detail in Chapters 3 and 5. (§ 382.95(a)).
A carrier and its contractors must not leave a passenger with a disability who has requested assistance unattended in a wheelchair or other device in which the passenger is not independently mobile for more than 30 minutes. This requirement applies even if another person such as a family member or personal care attendant accompanies the passenger unless the passenger with a disability clearly waives this obligation. (§ 382.103)).
A passenger who developed a progressive onset of weakness in his legs during his flight requests a wheelchair when he deplanes to assist him in making his connecting flight. What should you do?
Because the arriving carrier is responsible for providing transportation to a passenger with a disability to the gate of his connecting flight, you must provide timely assistance so he makes it to his connecting flight. In addition, you should keep in mind that you cannot leave the passenger unattended for more than 30 minutes in a wheelchair or other device if the passenger is not independently mobile. For purposes of section 382.103, a person who is not independently mobile is a person who would not be able to get up from the wheelchair and maneuver to areas of the terminal such as the restroom or a food service provider without mobility assistance. As a matter of good customer service, you should treat the passenger with courtesy and respect throughout this process.
As an arriving air carrier, you provide connecting assistance to a passenger with a disability to the departing carrier's gate. Upon arrival at the departing carrier's gate, you and the passenger find there is no staff at any of the gates yet. What should you do?
If the departing carrier has no staff at any of its gates in that terminal at the time the passenger is brought there (for example, if the passenger missed the second flight because the first flight was delayed), you should advise the passenger of this fact and offer to take the passenger to a staffed location such as the departing carrier's ticket counter, or office location. You should not leave the passenger at an unstaffed gate unless he or she has agreed.
If no departing carrier staff can be located, you should advise the passenger of this fact. If the passenger asks to be taken to the terminal entrance or motor vehicle pickup point (for example, to go to a hotel) you must take the passenger to the terminal entrance or pickup point. If the passenger wishes to remain at the airport, your obligation to an ambulatory passenger ends. For a nonambulatory passenger, you are subject to § 382.103, which states that a carrier must not leave a passenger who has requested connecting assistance unattended in a wheelchair or comparable device, in which the passenger is not independently mobile, for more than 30 minutes. In that situation, you must take the passenger to one of your staffed locations, or at a minimum, you must check on the passenger at least every 30 minutes. Your obligation to provide connecting assistance ends 12 hours after you began the connecting assistance for that passenger, or when the airport closes, or when your carrier's operations at that airport end, whichever comes first.
As a U.S. carrier, you must ensure that passengers with a disability, including those who identify themselves as persons needing visual or hearing assistance, receive
This requirement applies to a wide variety of areas such as—
• Flight safety,
• Ticketing,
• Flight check-in,
• Flight delays or cancellations,
• Schedule changes,
• Boarding information,
• Connections,
• Gate assignments,
• Claiming baggage,
• Volunteer solicitation on oversold flights (for example, offers of compensation for surrendering a reservation),
• Individuals being paged by airlines,
• Aircraft changes that affect the travel of persons with disabilities, and
• Emergencies (for example, fire, bomb threat) in the terminal. (§ 382.53(b)).
As a foreign carrier, you must make the same information listed in the section above available to passengers with a disability, including those who identify themselves as needing visual or hearing assistance, 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 United States. (§ 382.53(a)(2)).
As a carrier, you must provide information on claiming baggage to passengers who identify themselves as persons needing visual or hearing assistance no later than you provide this information to other passengers. (§ 382.53(c)). For example, if you provide information on baggage collection to arriving passengers at the baggage claim area, you can comply with this requirement by giving the information to self-identifying passengers onboard the aircraft or at the gate.
As a U.S. carrier, if you provide a telephone reservation and information service to the public, you must make that service available to individuals who use a TTY (by your own TTY, voice relay (real time text streaming to an Internet connected computer), or other available technology) to permit individuals with hearing impairments to obtain this information. See also Chapter 3, Section E, Accommodations for Air Travelers with Hearing Impairments.
You must make access to the telephone reservation and information service available to TTY users during the same hours as the telephone service is available for the general public. The same wait time and surcharges must apply to TTY users as for non-TTY users of the telephone information and reservation service. In addition, 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 non-TTY users. These requirements ensure that passengers with hearing impairments are on a substantially equivalent footing with the rest of the public in their ability to communicate with carriers about information and reservations by telephone. (§ 382.43(a)(1)–(3)).
If you list the telephone number of your information and reservation service for the general public, you must 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 for example using a voice relay service. The media used to state these information and reservation services may include Web sites, ticket jackets, telephone books, and print advertisements. (§ 382.43(a)(4)).
The TTY or similar technology also must be available if the passenger with a hearing impairment wishes to contact a CRO. (§ 382.151(b)). You should be familiar with the use of the TTY or similar technology and its locations within the terminal.
In addition, you should be aware of the option of using a relay operator to connect one party who is using a TTY and one party who is using a voice-operated telephone. By dialing 711 on any telephone in the United States (TTY or voice operated) you can contact a relay operator who serves as a “go between” between a person using a TTY and a person using a voice-operated telephone. (
A passenger with a hearing impairment complains to you about another employee whom she believes has been rude and humiliated her when she asked for an alternate means of communication because she was unable to hear what was being said to passengers waiting to board the flight. What should you do?
As a matter of good customer service, you should apologize to the passenger for any insensitive behavior on the part of carrier personnel. In general, you should carefully observe and gauge the manner in which this passenger with a hearing impairment communicates. When communicating, try to use the same method, for example, speaking slowly, communicating in writing or with the assistance of an aid or device. Try to find out what happened and what information she missed by communicating in an accessible manner.
You may also consult with a CRO about sign language or other assistive services that might be available for this passenger. If the CRO is made available by telephone and the passenger requests, TTY service must be available for the passenger to communicate directly with the CRO. You should also notify the appropriate crewmembers to ensure that the transmittal of information onboard the aircraft is accessible to this passenger.
As a foreign carrier, you must have met the TTY requirements that apply to U.S. carriers and described above in this section by May 13, 2010. (§ 382.43(a)(5)). However, these requirements apply only with respect to information and reservation services for flights that begin or end at a U.S. airport. TTY services apply only with respect to flights for which reservation telephone call from the United States are accepted.
The TTY requirements do not apply to carriers in any country in which the telecommunications infrastructure does not readily permit compliance. (§ 382.43(b)).
You should know that you must not require a passenger with a disability to be accompanied by another person in order to travel unless you determine that a safety assistant is essential for safety. (§ 382.29(a) and (b)). Similarly, even if you have concerns about a passenger's ability to access the lavatory or the passenger's need for extensive special assistance which airline personnel are not obligated to provide (for example, assistance in eating, assistance within the lavatory, or provision of medical services (§ 382.113), you must not require the passenger with a disability to travel with a safety assistant or personal care attendant except in the circumstances described below. (§ 382.29(f)).
In the interest of safety, you may require that a passenger with a disability travel with a safety assistant if the passenger is—
• Traveling on a stretcher or in an incubator (where such service is offered);
• Because of a mental disability is unable to comprehend or respond appropriately to safety instructions including the safety briefing;
• Severely mobility impaired and would be unable to assist in the passenger's own evacuation from the aircraft; or
• Severely hearing and vision impaired such that the passenger could not adequately communicate with airline employees with regard to the safety briefing and assist in his or her evacuation in the event of an emergency. (§ 382.29(b)(1) through (b)(4)).
If after careful consultation with a CRO and any other personnel you are required to consult, you determine that a passenger with a disability must travel with a safety assistant for one of the reasons described in § 382.29(b) (see list above), then you may require that the passenger be accompanied by a safety assistant. If your decision differs from the self-assessment of the passenger with a disability, then you must not charge for the transportation of the safety assistant. (§ 382.29(c))(1)). In addition, if a seat is not available on the flight for the safety assistant whom you have determined to be necessary and, as a result, the passenger with a disability with a confirmed reservation is unable to travel on the flight, the passenger with a disability is eligible for denied boarding compensation. (§ 382.29(d)). For purposes of determining whether a seat is available for a safety assistant, you must consider the assistant to have checked in at the same time as the passenger with a disability. (§ 382.29(e)).
In the event you choose to recruit a safety assistant to accompany the passenger with a disability, even though carriers are not obligated to do so (§ 382.29(c)(1)), you may ask—
(1) An off-duty airline employee traveling on the same flight to function as the safety assistant;
(2) A volunteer from among the other customers traveling on the flight and offer compensation, such as a free ticket, for their assistance; or
(3) The passenger with a disability to provide his or her own safety assistant and you must offer a free ticket to that assistant.
If the safety assistant is accompanying a passenger traveling on a stretcher or in an incubator, the assistant must be capable of attending to the passenger's in-flight medical needs. (§ 382.29(b)(1)). Otherwise, the purpose of the assistant is to assist the passenger with a disability in an emergency evacuation. Other than the situation described above when a safety assistant is accompanying a passenger who is on a stretcher or in an incubator, the assistant is not obligated to provide personal services to the passenger with a disability such as assistance with eating or accessing the lavatory.
A passenger with quadriplegia
You should begin by communicating with the passenger to determine the extent of his mobility impairment. As a matter of good customer service, you should treat the passenger with courtesy and respect at all times. Under the circumstances, you should contact a CRO to discuss the situation and determine whether a safety assistant must accompany the passenger. You and the CRO could begin by asking the passenger about his mobility impairment and whether he would be able to assist with his own evacuation in the event of an emergency. More specifically, you should determine whether the passenger has the functional ability to make any progress toward an exit during an evacuation. If the passenger tells you that his ability to assist in his evacuation is limited to shouting, “Help!” you and the CRO should explain to him that the issue is whether he can physically assist in his own evacuation. If not, he must travel with a safety assistant.
If, after speaking with the passenger, you and the CRO determine that a safety assistant must accompany him because of his severe mobility impairment, you should explain this requirement to the passenger. Next, at the carrier's option you can explain that he can choose someone to serve as his safety assistant or you can assist him by recruiting an off-duty employee or another passenger on the flight to serve as his safety assistant. You must not charge for the transportation of the safety assistant if selected by the passenger who is disabled. You also should explain that the purpose of the safety assistant is to assist in the case of an emergency evacuation.
If a passenger with a disability chooses to travel with a personal care attendant or safety assistant that you, the carrier, do not require, or you feel that the passenger requires a safety assistant and the passenger agrees, then you may charge for the transportation of that attendant or assistant. (§ 382.29(c)(3)).
As a carrier, you may require a passenger with both a severe hearing and vision impairment who wishes to travel without a safety assistant to notify you at least 48 hours in advance. However, you still must accommodate the passenger to the extent practicable even if the passenger fails to meet the 48-hour advance notice requirement. (§ 382.29(b)(4)).
You may require an individual with a severe hearing and vision impairment to travel with a safety assistant if you determine that the means of communication that the individual plans to use with you does not (1) satisfy the communication objectives for a safety briefing contained in Part 382 or (2) enable the individual to assist in his or her own evacuation. You also may require the individual with a severe hearing and vision impairment to travel with a safety assistant if the individual proposes to communicate by finger spelling and you cannot within the time following the individual's notification arrange for the availability on the passenger's flight of a flight crewmember who can communicate using this method. (§ 382.29(c)(2)).
To assist passengers with a disability, it is important for you to understand how aircraft have been made accessible to accommodate those passengers. You should be aware that Part 382 addresses the following features depending on the size of the aircraft:
• Movable aisle armrests,
• Priority stowage space for passenger wheelchairs,
• Accessible lavatories,
• On-board wheelchairs, and
• New in-flight audio-visual services.
Each of these features is discussed separately in detail below.
You must configure aircraft cabins or establish an administrative system to ensure that passengers with a disability can readily identify and obtain seating in rows with movable aisle armrests. You must provide this information to passengers by specific seat and row number. (§ 382.61(d))
The revised rule removes the infeasibility provision prescribed in old § 382.21(a)(1)(ii). Therefore, carriers can no longer claim it is not feasible to install movable armrests on aisle seats in which the carrier has chosen to install, for example, integrated food trays, controls for in-flight video systems, etc.
Movable aisle armrests must be provided proportionately in all classes of service in the aircraft cabin. (§ 382.61(c)).
If 80 percent of the aisle seats in which passengers with mobility impairments may sit are in economy/coach class, and 20 percent are in first class, then 80 percent of the movable aisle armrests must be in economy/coach class, with 20 percent in first class.
However, if the seats without a movable aisle armrest in a given class of service can be accessed by a passenger using a wheelchair by horizontally transferring the passenger from a boarding wheelchair to the aircraft seat without lifting the passenger over the aisle armrest or other obstacle, a carrier may request an equivalent alternative determination.
As a carrier, you are not required to retrofit cabin interiors of existing aircraft to include movable aisle armrests. However, when you remove aisle seats on existing aircraft and replace them with newly manufactured seats, one-half of the replacements seats must have movable armrests. (§ 382.61(e)).
As a carrier, if you replace four aisle seats with newly manufactured seats, then two of these seats must have movable armrests. If you are replacing an odd number of seats, a majority of the newly manufactured aisle seats installed must have movable armrests. If you replace five aisle seats with newly manufactured seats, at least three of the newly manufactured aisle seats must have movable armrests. However, you are not required to have more than 50 percent of the aisle armrests in the cabin be moveable. Suppose your aircraft has 40 aisle seats, 20 of which have movable armrests, and you decide to replace 5 aisle seats that do not have movable armrests with newly manufactured seats. These new seats do not have to include movable armrests.
You must have a priority storage space in the cabin to stow at least one typical adult-sized folding, collapsible, or break-down manual wheelchair. This priority storage space must be at least 13 inches by 36 inches by 42 inches (13 x 36 x 42) to allow storage of the wheelchair without removing its wheels or disassembling the wheelchair. (§ 382.67(a)). Priority storage space for a passenger's wheelchair in the cabin is important for two reasons. It is often more convenient for a passenger to have a wheelchair close by when he or she leaves the aircraft and to be able to get as close as possible to the aircraft door for boarding. In addition, passengers with disabilities have the same concerns as other passengers about the loss of or damage to their property when it is checked.
The priority storage space for a passenger's wheelchair must be in addition to the normal under seat and overhead compartment storage available for carry-on items. (§ 382.67(b)). In addition, if you use a closet or other storage area for stowing the passenger's wheelchair, the wheelchair has
You should be aware that this requirement for priority space to stow a passenger's manual wheelchair is
Carriers are not required to carry electric wheelchairs in the cabin.
(1) Aircraft With More Than One Aisle
Aircraft with more than one aisle that are equipped with lavatories must have at least one lavatory accessible to passengers with a disability. This accessible lavatory must allow the passenger to enter the lavatory, maneuver within it and use all of its facilities, and leave the lavatory using the aircraft's on-board wheelchair. The accessible lavatory must afford privacy to persons using the on-board wheelchair equivalent to that afforded ambulatory persons. The lavatory must include door locks, accessible call buttons, grab bars, faucets and other controls and dispensers usable by passengers with a disability including wheelchair users and persons with manual impairments. (§ 382.63(a)).
You are not required to retrofit aircraft with accessible lavatories. However, if you replace an inaccessible lavatory on an existing twin-aisle aircraft, you must install an accessible lavatory. (§ 382.63(c)).
You are not required, but may provide, an accessible lavatory on aircraft with only one aisle. (§ 382.63(b)).
You are not required to retrofit aircraft with one aisle with accessible lavatories. (§ 382.63(c)).
You must provide an on-board wheelchair if the aircraft has an accessible lavatory. You must meet this requirement whether or not an accessible lavatory is required as discussed above. However, the Aerospatiale/Aeritalia ATR–72 and the British Aerospace Advanced Turboprop (ATP) configured with between 60 and 70 passenger seats are exempt from this requirement. (§ 382.65(a)).
Some passengers with limited mobility may be able to use an inaccessible lavatory on their own but may need assistance to the lavatory in an on-board wheelchair. Therefore, in an aircraft with
In summary, with respect to
(1) The aircraft has an accessible lavatory, or
(2) A passenger with a disability gives up to 48 hours' notice that the passenger can use an inaccessible lavatory. (§ 382.65)(b).
You should be aware that if a particular aircraft is required to have an on-board wheelchair and a storage space within the cabin for at least one passenger's manual folding wheelchair, that aircraft must have storage spaces for
As a carrier, you must ensure that all
“High-contrast captioning” means captioning that is at least as easy to read as white letters on a consistent black background. (§ 382.3). The captioning must be in the predominant language or languages that you use to communicate with passengers on the flight. If you communicate in more than one language on the flight (for example, French and English on a Canadian carrier), the captioning must be in all of these languages. (§ 382.69(a)).
As a U.S. or foreign carrier, you must have met the high-contrast captioning requirement with respect to audio-visual displays used for safety purposes by November 10, 2009. (§ 382.69(b)). The captioning requirement with respect to informational displays was effective January 8, 2010. (§ 382.69(d)).
You must maintain aircraft accessibility features in proper working order. (§ 382.71(a)). In addition, any replacement or refurbishing of the aircraft cabin must not reduce existing accessibility to a level below that required under Part 382 for new aircraft. (§ 382.71(b)) . As discussed above, if you replace an inaccessible lavatory on an existing twin-aisle aircraft, you would have to install an accessible lavatory, unless the aircraft is already equipped with another accessible lavatory. (§ 382.63(c)). If you remove aisle seats on existing aircraft and replace them with newly manufactured seats, one-half of the replacements aisle seats must have movable armrests. (§ 382.61(e)).
You must not exclude a passenger with a disability from any seat or require a passenger with a disability to sit in a particular seat based on the passenger's disability, except to comply with FAA or foreign government safety requirements. (§ 382.87(a)). If a passenger's disability results in an involuntary active behavior that would result in you properly refusing to provide the passenger transportation under § 382.19 and the passenger could be transported safely if seated in another location, you must offer the passenger that particular seat location as an alternative to refusing to provide the passenger transportation. (§ 382.87(c)).
A passenger with Tourette's syndrome (a neurological disability that manifests itself by episodes of shaking, muscle tics, and/or spasms and uncontrolled shouting, barking, screaming, cursing, and/or abusive language) approaches the check-in desk, self-identifies himself as a passenger with a disability, and presents brochures explaining the disability to the agent. What should you do?
If safety is not an issue, you cannot restrict this passenger from any particular seat, including an exit row. If this passenger's disability causes him to physically touch other passengers or crewmembers involuntarily, safety considerations could require that he be seated in his own row, if available, as an alternative to you refusing to provide the passenger transportation. However, if the physical and/or verbal manifestations of this passenger's Tourette's syndrome jeopardize the safety of others it might create a safety concern. For example, if the passenger with Tourette's syndrome involuntarily touches or strikes other passengers or crewmembers, or the passenger is yelling “fire” or yelling continuously. Continuous yelling could hinder other passengers from hearing important crewmember announcements. Therefore, refusing to provide the passenger with transportation could be appropriate.
Although the passenger's conduct may create an uncomfortable experience for other passengers, if the involuntary behavior is only an annoyance and not a safety concern, you must not restrict the passenger with Tourette's syndrome from any seating assignment.
If a passenger self-identifies as a passenger with a disability, there are four specific situations where you must provide a particular seating accommodation. You must meet this requirement for passengers who self-identify as having certain qualifying disabilities if the passenger requests the accommodation and the type of seating accommodation requested exists on the particular aircraft. (§ 382.81). The four situations are as follows:
(1)
Some carriers that have requested and been granted equivalent alternative determination approvals for the movable armrest requirement have training requirements stated in the grant of approval that exceed those required under Part 382.
(2)
• Traveling with a personal care attendant who will be performing functions during the flight that airline personnel are not required to perform (for example, assistance with eating); (§ 382.81(b)(1))
• Visually impaired and traveling with a reader/assistant who will be performing functions for the passenger during the flight; (§ 382.81(b)(2))
• Hearing impaired and traveling with an interpreter who will be performing functions for the passenger during the flight; (§ 382.81(b)(3)) and
• Traveling with a safety assistant that you have required under § 382.29. (§ 382.81(b)(4)).
(3)
A passenger traveling with a service animal would not be permitted to sit in the bulkhead seat if that seat is located in an emergency exit row. (14 CFR 121.585).
(4)
The type of seat assignment method your carrier uses will determine how you are to provide appropriate seating accommodations. You should be aware of your carrier's method for managing seat assignments and be able to explain it to passengers with disabilities and the general passenger population depending on the circumstances.
Carriers providing advance seat assignments may use either the block seating method or the priority seating method to provide the seating accommodations discussed above. (§ 382.83(a)).
Carriers may block an adequate number of seats to be used by passengers who meet the requirements of § 382.81. (§ 382.83(a)(1)). If your carrier employs the block method, you must not assign these “blocked seats” to passengers other than the types of passengers entitled to the accommodation until 24 hours before the scheduled departure of the flight. (§ 382.83(a)(1)(i)). At any time up until 24 hours before the scheduled departure of the flight, you must assign a blocked seat to any passenger who qualifies for such a seating accommodation. (§ 382.83(a)(1)(ii)).
If a passenger with a disability who is entitled to a seating accommodation listed above does
A passenger with a service animal calls and speaks to you, a reservation agent, several days before the scheduled departure of her flight and requests a bulkhead seat. What should you do?
The aircraft has four bulkhead seats, two of which are blocked under your carrier's reservation system for passengers traveling with a service animal or passengers with an immobilized leg. Because the passenger has requested the seating accommodation more than 24 hours in advance of the scheduled departure of the flight, you must assign one of the blocked bulkhead seats to this passenger with the service animal.
If, on the other hand, the passenger with the service animal requests the bulkhead seat within 24 hours of the scheduled departure of the flight, you must provide the bulkhead seat to the passenger and the service animal if available, but you are not required to reassign a bulkhead seat already assigned to another passenger.
Part 382 requires carriers to block an adequate number of bulkhead seats for passengers with a fused or immobilized leg or a passenger traveling with a service animal. DOT's Office of Aviation Enforcement and Proceedings has interpreted “adequate” to mean, for example, (in the context of bulkhead seating) that if an aircraft has six total bulkhead seats, three on each side separated by the main aisle, an “adequate” number of bulkhead seats that must be blocked would be at least two of the six bulkhead seats.
Carriers may designate an adequate number of priority seats for passengers with a disability who meet the requirements of § 382.81. (§ 382.83(a)(2)). Carriers that have chosen to use this seating method must provide notice to any passenger assigned to a priority seat (other than a passenger with a disability listed in § 382.81) that he or she may be reassigned to another seat if necessary to provide a seating accommodation required under Part 382. (§ 382.83(a)(2)(i)). A carrier may provide this potential reassignment notice through—
• Its computer reservation system,
• Verbal information provided by reservations personnel,
• Ticket notices,
• Gate announcements,
• Counter signs,
• Seat cards or notices,
• Frequent-flyer literature, or
• Other appropriate means. (§ 382.83(a)(2)(ii)).
You must assign a “priority seat” to a passenger with a disability entitled to such accommodation at the time the passenger requests the accommodation. A carrier may require that the passenger check in and request the seating accommodation at least 1 hour before the standard check-in time for the flight. (The purpose for this advance check-in is to allow carriers sufficient time to conduct any seat reassignment that this method sometimes requires.) If all of the designated priority seats have been assigned to other passengers who do not have qualifying disabilities, you must reassign the seats of the other passengers to accommodate the passenger with a disability entitled to the seating accommodation. (§ 382.83(a)(2)(iii)).
If a passenger with a disability who is entitled to a seating accommodation does
A passenger with an immobilized leg requests a bulkhead seat and checks in 2 hours before the standard check-in time for the general public. Your carrier employs the “priority” seating method and has designated two of the six bulkhead seats on the aircraft as priority seating. The four non-priority bulkhead seats have been previously assigned to passengers without any disabilities. One of the two priority bulkhead seats has already been assigned to a passenger traveling with a small service animal who requested the seating accommodation and checked in at least 1 hour before the standard check-in time for the general public. The second priority bulkhead seat has been assigned to a passenger who also checked in 2 hours before the flight and who uses an aisle chair to board but prefers the bulkhead seat to a seat in a row with a movable armrest. What should you do?
The passenger who uses the aisle chair to board should have received notice that he has been assigned a “priority” seat. Because that passenger does not have a fused or immobilized leg or is not traveling with a service animal, the passenger is not automatically entitled to a “priority” bulkhead seat. (However, that passenger would be entitled to a “priority” seat in a row with a movable armrest if he or she requested such a seat and checked in at least 1 hour before the standard check-in time for the flight.) The passenger using the aisle chair to board should have been notified that you might have to reassign his seat if a passenger with a service animal or a passenger with an immobilized leg requests a “priority” bulkhead seating accommodation and checks in at least 1 hour before the standard check-in time for the flight. Therefore, the passenger using the aisle chair should be reassigned to a seat in a row with a movable armrest and the passenger with the immobilized leg should be assigned to the second “priority” bulkhead seat.
If a carrier does not provide seat assignments until the day of the flight, the carrier must use the priority seating method for passengers with a disability who meet one of the four criteria described in § 382.81. (§ 382.83(b)).
If your carrier does not provide advance seat assignments including the ability to pay for a seat in advance,
If your carrier wishes to use a method of assigning seats to passengers with disabilities other than one of the methods provided for in Subpart F of Part 382, it must receive written approval from DOT. (§ 382.83(d)).
Carriers are also required to provide seating accommodations for passengers who self-identify as having a disability other than one involving any of the four criteria discussed above, and who need a particular seat to “readily access and use” the carrier's services. (§ 382.85). (This is referred to as the catchall category). Carriers should evaluate a passenger's request for a seating accommodation covered by the catchall category based on a case-by-case analysis of the nature of the passenger's specific disability and the extent to which that disability necessitates the requested seating accommodation for the passenger to readily access the aircraft.
For example, if a passenger self-identified as being deaf or diabetic and requested a bulkhead seat assignment, a carrier would not be required to assign such a passenger to a bulkhead seat because the passenger is able to readily able to use a seat other than in a bulkhead row. On the other hand, a very large non-ambulatory passenger boarding with an aisle wheelchair whose size makes it very difficult for
When a passenger with a disability, which does not meet one of the four specific criteria described in § 382.81 makes a reservation more than 24 hours before the scheduled departure time of a flight and the carrier uses the block seating method, the carrier is
A passenger with arthritis in his spine, making his back extremely stiff, calls a week before his flight and asks you, the reservation agent, for a bulkhead seat. He explains that it is much easier and less painful for him to access a bulkhead seat because he has to be lowered into the seat with assistance from another person, and that this process is much more difficult, if not impossible, in any row other than a bulkhead row. The aircraft has six bulkhead seats, two of which are “blocked” under your carrier's reservation system for passengers traveling with service animals or passengers with a fused or immobilized leg. One of the four remaining bulkhead seats is unassigned when he calls. What should you do?
Although your carrier normally reserves such seats for its frequent flier passengers, you must assign the remaining bulkhead seat to the passenger with arthritis in his spine because the seat was unassigned at the time of his request and he has a reasonable argument that he needs the bulkhead seat to readily access the aircraft.
If your carrier uses the priority seating method, you must assign a passenger with a disability (which does not meet one of the four specific criteria described in § 382.81) 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. Your carrier may require the passenger to check in 1 hour before the standard check-in time for the flight. If this passenger with a disability is assigned to a designated priority bulkhead seat, the passenger is subject to being reassigned to another seat if necessary to provide a seating accommodation to a passenger with a disability entitled to and who requests a required seating accommodation described above. (§ 382.85(a)(2)).
The same passenger, with arthritis in his spine, from the previous example, calls your carrier, asking for a bulkhead seat, but your carrier uses the “priority” seating method. The aircraft has six bulkhead seats, two of which are “priority” seats for passengers traveling with service animals or passengers with immobilized legs. At the time of the call, all four of the other “non-priority” bulkhead seats have been assigned to other passengers, but the two priority seats are unassigned. What should you, as a reservation agent, do?
You should assign the passenger with arthritis in his spine one of the two unassigned “priority” seats, but you must notify him that he may have his” priority” seat reassigned if another passenger who is specifically entitled to a “priority” seat requests one. On the day of the flight, a passenger with a service animal and a passenger with a fused leg arrive more than 1 hour before the standard check-in time for the same flight and request bulkhead seats. In this instance, you would inform the passenger with arthritis in his spine that his “priority” seat must be assigned to one of those passengers and that he must be moved to another seat. As a matter of good customer service, he may be assigned an aisle seat because it would be easier for him to access, or you could ask a passenger with a bulkhead seat who does not have a disability if he or she would mind trading seats with the passenger.
If your carrier does not provide advance seat assignments including the ability to pay for an advance seating assignment,
If your carrier does not assign seats to passengers until the day of the flight, it must use the priority seating method for passengers with a disability. (§ 382.85(c)).
As a carrier, you—
• Must comply with all FAA and applicable foreign government safety requirements, including exit row seating requirements in 14 CFR 121.585, when responding to requests from passengers with a disability for seating accommodations. (§ 382.87(b)).
• Must not deny transportation to any passenger on a flight in order to provide a seat accommodation required by Subpart F to a passenger with a disability. (§ 382.87(e)).
• Cannot reassign the seat of a passenger with a disability who has received a seat assignment as required by Subpart F even if another passenger with a disability requests the same seat unless the first passenger agrees to the reassignment. (§ 382.87(d)) The only exception is when you assign a designated “priority” seat to a passenger with a disability who is not required to receive a seating accommodation specified in § 382.81. (§ 382.85(a)(2)(ii)).
• Are not required to provide more than one seat per ticket or a seat in a class of service other than the one the passenger has purchased to accommodate a passenger with a disability who requests a seating accommodation. (§ 382.87(f)).
A passenger with an economy/coach class ticket and an immobilized leg (with a full-leg cast) arrives more than 1 hour before the standard check-in time for his flight. He arrives at the check-in counter, explains his disability, and insists that he is entitled to a seat in first class to accommodate his extended leg. Your carrier uses the priority seating method for advance seat assignments. What should you do?
Because the passenger has identified himself as a passenger with a disability and requested a seat assignment to accommodate his disability, you must provide a bulkhead seat or other seat with more legroom than other seats on the side of the aisle that best accommodates him. While first class seats generally have more legroom than economy/coach class seats, you are not required to provide a seat in a class of service other than the one the passenger has purchased to accommodate the passenger. You should explain politely and respectfully that under the law, you must seat him in either a bulkhead seat or an aisle seat in economy/coach class on the side of the aircraft that would best accommodate his leg. At his subsequent request for a bulkhead seat in economy/coach class, you must arrange to move another passenger from the bulkhead seat in economy/coach class and give it to the passenger with the immobilized leg unless the seats have already been assigned to passengers entitled to retain those seats under the rules discussed above. Although you are not required to do so, you may choose to seat him in a first class seat that would accommodate his immobilized leg.
As previously noted, some carriers now offer passengers the option of paying an extra fee for obtaining advance seat assignments for preferred seats that provide, for example, greater legroom than other seats in the same class of service. Such policies are permitted, provided that carriers also reserve (that is, block or prioritize) an adequate number of seats to comply with DOT rules providing seating accommodations for qualified individuals with disabilities at no extra cost to such passengers, as discussed above.
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. (§ 382.93) This obligation exists regardless of your preboarding policies for other passengers (for example, families traveling with small children). You are not obligated to make a general announcement about preboarding in the gate area for passengers with disabilities if you do not make preboarding announcements for other passengers. However, as a matter of general nondiscrimination principles, if a passenger self-identifies as needing preboarding and if you make a preboarding announcement in the gate area for other passengers you would have to make such an announcement for passengers with a disability.
If a passenger with a disability requests assistance getting on or off an aircraft, or you or the airport operator offer assistance, and the passenger consents to the type of boarding or deplaning assistance offered, you must
The type of assistance you must offer includes the services of personnel and the use of wheelchairs, accessible motorized carts, ramps, or mechanical lifts as required under Part 382. (§ 382.95(a)). Be mindful that a wheelchair is not required or desired in all cases. A wheelchair may not be an appropriate assistive device in a particular situation. For example, a passenger with a vision impairment may request a sighted guide rather than a wheelchair, and requiring such a passenger to accept wheelchair service that is neither requested nor required to accommodate the passenger's disability would violate DOT's rule. (§ 382.11(a)(2)).
You must train employees to proficiency in the use of the boarding assistance equipment and procedures regarding the safety and dignity of passengers receiving boarding assistance. (§ 382.141(a)(1)(iii) and (b)) See Chapter 8: Personnel Training, for additional information on employee/contractor training requirements.
As a carrier operating aircraft with 19 or more passenger seats at U.S. commercial service airports with 10,000 or more annual enplanements, you must provide boarding and deplaning assistance to passengers with a disability using lifts or ramps if level-entry loading bridges or accessible passenger lounges are not available. (§ 382.95(b)). U.S. carriers have been required to provide level-entry boarding at such U.S. airports for many years, and foreign carriers have been required to provide it no later than May 13, 2011. See Appendix II for a discussion of the agreements carriers must have with airports for the provision of lifts where level-entry loading bridges are not available. (§ 382.99).
However, boarding assistance using a lift is not required on:
• Aircraft with fewer than 19 passenger seats;
• Float planes;
• The following 19-seat capacity aircraft models that are unsuitable for boarding assistance using a lift: the Fairchild Metro, the Jetstream 31 and 32, the Beech 1900 (C and D Models), and the Embraer EMB–120; or
• Any other aircraft model the DOT determines to be unsuitable for boarding and deplaning assistance by lift, ramp, or other suitable device. (§ 382.97(a) through (c)).
As a carrier at a U.S. airport that you own, lease, or control, you must ensure that there is an accessible route (one meeting the requirements of the Americans with Disabilities Act Accessibility Guidelines (ADAAG)) between the gate and boarding area whenever an accessible passenger lounge to and from an aircraft or other means of level-entry boarding and deplaning is not available. An “accessible route” essentially means that a passenger should be able to travel from the gate area to the tarmac level while remaining in a wheelchair, and does not include stairs, steps, or escalators. (§ 382.51(a)(2)).
As a carrier, you may require that a passenger seeking boarding and deplaning assistance using a lift or ramp check in for the flight 1 hour before the standard check-in time for the flight. However, if the passenger checks in after this time you must make a reasonable effort to accommodate the passenger and provide the boarding assistance using a lift or ramp if it would not delay the flight. (§ 382.99(d)).
When level-entry boarding and deplaning assistance is not required, you must still provide assistance to passengers with a disability in boarding and deplaning aircraft. (§ 382.101). For example, boarding and deplaning assistance using lifts is not required at smaller U.S. airports (that is, airports with less than 10,000 annual enplanements) or at any foreign airports; when severe weather or unexpected mechanical breakdowns prevent the use of a lift; or when you are using one of the unsuitable aircraft listed in the previous discussion. (§ 382.101(a), (b), (c), and (e)).
Boarding assistance must be provided by any available means to which the passenger consents. In such situations, you should present the various options available to the passenger. However, as discussed below, you must never physically hand-carry the passenger even if the passenger consents unless this is the only way to evacuate the passenger in the event of an emergency. (§ 382.101). If the passenger does not consent to the available means of boarding assistance, you should contact a Complaints Resolution Official (CRO).
You may not leave a passenger unattended 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
Under no circumstance, except for emergency evacuations, should you hand-carry a passenger with a disability to provide boarding or deplaning assistance. Hand-carrying is defined as directly picking up the passenger's body in the arms of one or more carrier personnel to move the passenger from the tarmac level to the aircraft door for boarding or, vice versa, for deplaning. (§ 382.101).
Transferring a passenger from a wheelchair to a boarding chair or a boarding chair to an aircraft seat is not considered hand-carrying a passenger, and is often required for passengers who are unable to conduct such transfers without assistance.
A woman asks for assistance in boarding a flight with 30 passenger seats. General boarding for passengers is by a set of stairs on the tarmac. When she arrives at the gate and asks for boarding assistance, she is provided a boarding wheelchair, but you inform her that the mechanical lift is not working. The passenger tells you to physically pick her up and carry her up the stairs and onto the aircraft because she really needs to make the flight. What should you do?
Under the law, you must never physically hand-carry the passenger onto the aircraft. Hand-carrying is only appropriate in the case of an emergency evacuation. Even though the law states that a passenger with a disability must consent to the type of boarding assistance and she has requested to be hand carried, you must not hand-carry her onto the aircraft. Instead, you should contact a CRO for advice about options for alternative means of boarding the passenger. You and the CRO should explain to the passenger that, under the law, you are not permitted to physically hand-carry her onto the aircraft. In addition, you should explore other available options for assisting this passenger with boarding the aircraft, including carrying the passenger onto the aircraft in a boarding wheelchair or arranging for another flight with a working lift or a loading bridge. If the passenger consents to being carried onto the aircraft in the boarding wheelchair, you may do so. Regardless, you should notify the appropriate personnel that the mechanical lift is not functioning properly and arrange for repair as quickly as possible.
If a passenger with a disability requests transportation between gates to make a connecting flight, you must provide, or ensure the provision of, such assistance. If the arriving flight and departing flight are operated by different carriers, the carrier that operated the arriving flight has this responsibility. (§ 382.91(a)). Chapter 4: Assisting Air Travelers with Disabilities at the Airport, has a more detailed discussion of the assistance a carrier must provide to passengers with a disability who are moving within the airport terminal.
At some foreign airports, the airport operators rather than the carriers are responsible for providing boarding, deplaning, or connecting assistance for passengers. If the airport operator provides this assistance rather than carriers, you, as a carrier, may rely on the services provided by the airport operator. However, if the boarding, deplaning, or connecting services the airport operator provides are not sufficient to meet Part 382, you must supplement those services to ensure the assistance requirements are met. If you believe you are not legally permitted to supplement the airport operator's services, you may apply for a conflict of laws waiver under § 382.9. (§ 382.105).
You should be familiar with the regulatory requirements for storage and treatment of assistive devices used by passengers with a disability, including ventilators and respirators; spillable and nonspillable batteries; canes; and wheelchairs. (Part 382, Subpart I).
You must allow passengers with a disability to bring the following mobility aids and assistive devices into the aircraft cabin consistent with FAA, PHMSA, Transportation Security Administration (TSA or applicable foreign government requirements concerning safety, security, and hazardous materials:
• Manual wheelchairs, including folding or collapsible wheelchairs;
• Other mobility aids, such as canes, crutches and walkers; and
• Other assistive devices, such as prescription medications and the devices needed to administer them (such as syringes or auto-injectors); vision-enhancing devices; and portable oxygen concentrators (POCs), ventilators, and respirators that use nonspillable batteries as long as they comply with applicable safety, security and hazardous materials rules. (§ 382.121(a)(1) through (a)(3)).
Carriers are not required to permit passengers to bring electric wheelchairs, Segways, or scooters into the aircraft cabin.
You must not count mobility aids and other assistive devices brought on board the aircraft by a passenger with a disability toward your airline's limit for passenger carry-on baggage. (§ 382.121(b)). Wheelchairs and other assistive devices that cannot be stowed in the cabin must be stowed in the baggage compartment with priority over other cargo and baggage. (§ 382.125(a) and (b)). In addition, because carriers cannot charge for facilities, equipment, or services required under Part 382, no charges may be imposed for assistive devices brought into the cabin or checked or if a wheelchair or other assistive device exceeds the normal weight limit on checked baggage. (§ 382.31(a)).
Chapter 3: Assisting Air Travelers with Disabilities Planning a Trip, above, also discusses a carrier's obligations with regard to mobility aids and assistive devices.
A passenger with a disability who takes advantage of preboarding may stow his or her folding wheelchair in the aircraft's priority storage space (discussed above in Section A,
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-serve basis with respect to other passengers' items. (§ 382.123(a)(3)).
If a passenger's wheelchair exceeds the dimensions of the priority storage space while folded but otherwise fully assembled but will fit if the wheels or other components are removed without the use of tools, you must remove those components and stow the wheelchair in
The rule currently prohibits the use of the “seat-strapping” method of carrying a wheelchair in any aircraft you ordered after May 13, 2009, or which is delivered after May 13, 2011. (§ 382.123(c)). There is currently DOT rulemaking pending regarding the use of the “seat-strapping” method and whether this practice should be permitted. (76 FR 32107)
You must stow mobility aids, including wheelchairs, and other assistive devices in the baggage compartment with priority over other cargo and baggage 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. (§ 382.125(a)). You need to transport only those items that fit into the baggage compartment and can be transported consistent with FAA, PHMSA, TSA, or applicable foreign government requirements on stowage of items in the baggage compartment. (§ 382.125(b)). DOT recognizes there may be some circumstances in which it is not practical to stow an electric wheelchair or some other assistive device in the baggage compartment, and you are not required to do so if it would constitute an undue burden. (§ 382.13(c)). For example, some larger scooters may not fit in smaller aircraft.
If other passengers' items are removed from the aircraft to accommodate assistive devices, you must use your best efforts to ensure that the items are delivered to the passenger's destination on your next flight. The “next flight” may be a flight within 1 or 2 hours for domestic destinations or a matter of days with respect to some international destinations. (§ 382.125(b)).
When a passenger's wheelchair, other mobility aids, or other assistive devices cannot be stowed in the cabin as carry-on baggage, you must ensure these items are timely checked and returned as close as possible to the door of the aircraft so that the passenger with a disability can use his or her own equipment, where possible, consistent with Federal regulations concerning transportation security and the transportation of hazardous materials. (§ 382.125(c)(1)). If, on the other hand, a passenger with a disability requests that these items be returned at the baggage claim area instead of at the door of the aircraft, you must do so. (§ 382.123(c)(2)). To ensure the timely return of a passenger's wheelchair, other mobility aids, or other assistive devices, they must be among the first items retrieved from the baggage compartment. (§ 382.125(d)).
A passenger with multiple sclerosis is one of many passengers on a flight who is informed that the flight is cancelled because of mechanical problems. It is late at night and the carrier has announced that the passengers will be provided a hotel room for the night and rescheduled on a flight leaving the following morning. The passenger with multiple sclerosis approaches you when she hears the announcement and explains that she needs access to her checked luggage because it contains her syringes and medication for her multiple sclerosis, which she must take on a daily basis. What should you do?
The passenger's syringes and medication would be considered assistive devices. (§§ 382.3 and 382.121(a)(3)). Because the passenger requested the return of her assistive device, you must return it to her if no extenuating circumstances prohibit the return of the items, for example, the carrier placed the baggage on an earlier flight to the passenger's final destination. (§ 382.125(c)). As a matter of customer service, you may also advise such passengers (for example, through the carrier's Web site or other consumer information materials) that your carrier recommends to all of its passengers who require such medication or other items for medical necessity to bring a carry-on bag containing the medication or other items on board. Such medication carry-on bags would not be counted toward the passenger's carry-on baggage allowance.
As a carrier, you must accept a passenger's battery-powered wheelchair or other similar mobility device, including the battery, as checked baggage unless baggage compartment size and aircraft airworthiness considerations prohibit it. (§ 382.127(a)).
You must not require that the battery be removed and separately packaged if the—
• Manufacturer has labeled the battery on a wheelchair or other similar mobility device as nonspillable, or
• For a spillable battery, the battery-powered wheelchair can be loaded, stored, secured, and unloaded in an upright position.
However, you must remove and package separately any battery that (1) is inadequately secured to a wheelchair or (2) if the battery is spillable and it is contained in a wheelchair that cannot be loaded, stowed, secured and unloaded in an upright position consistent with DOT hazardous materials regulations. Whenever your carrier is required to remove and provide hazardous material packaging for a battery, your carrier may require a passenger to provide up to 48 hours' advance notice and check in 1 hour before the standard check-in time. (§ 382.27(c)(5)). A damaged or leaking battery should not be transported. (§ 382.127(c)).
Finally, you must not disconnect the battery on a wheelchair or other mobility device if the battery is nonspillable and it is completely enclosed within a case or compartment integral to the design of the device unless you are required to do so under FAA, PHMSA, or foreign government safety regulations. (§ 382.127(e)).
When it is necessary to detach a battery from a wheelchair or other
If the physical size of a cargo compartment does not permit you to safely carry a wheelchair, other mobility aid, or assistive device upright without the risk of serious damage to the wheelchair, aid, or device, or the carriage of such a mobility aid in a small baggage compartment causes a load imbalance that violates weight and balance safety requirements, you may legitimately decline transportation of the item on the flight. However, you should assist the passenger in identifying a flight using an aircraft that can accommodate the wheelchair, aid, or device.
You must permit passengers with a disability to provide written instructions concerning the disassembly and reassembly of their wheelchairs, other mobility aids and other assistive devices. (§ 382.129(a)). When you disassemble these items, you must reassemble them and ensure their prompt return to the passenger with a disability. In addition, you must return a wheelchair, other mobility aid or other assistive device to the passenger in the same condition in which you received it. (§ 382.129(b)).
You must permit a passenger with a disability to use the following passenger-supplied electronic respiratory assistive devices in the passenger cabin
• Ventilators;
• Respirators;
• Continuous positive airway pressure (CPAP) machines; and
• FAA-approved POCs.
You must allow such devices to be used in the cabin during air transportation if they—
• Meet applicable FAA requirements for medical portable electronic devices,
• Display a manufacturer's label indicating such compliance (see Note on labeling below), and
• The device can be stowed and used in the cabin consistent with applicable TSA, FAA, and PHMSA regulations. (§ 382.133(a)(1) and (a)(2))
Carrier personnel should inspect the device's label at the departure gate to ensure the device is labeled properly and that the passenger has an adequate number of batteries (that is, 150 percent of the maximum expected duration of the flight) for the flight and that they are properly packaged.)
You must permit passengers with a disability to use the electronic respiratory assistive devices listed above (ventilator, respirator, CPAP machine, or POC of a kind equivalent to an FAA-approved POC for U.S. carriers) during flight in the passenger cabin of aircraft, originally designed with a maximum passenger seating capacity of more than 19 seats during operations to, from or within the United States. However, this requirement does not apply to foreign operations that are equivalent to on-demand air taxi operations by U.S. carriers. (§ 382.133(b)).
You must permit the use of such devices if they—
• Meet requirements for medical portable electronic devices established by your foreign government (or if no such requirements exist you may apply applicable FAA requirements for U.S. carriers),
• Have a manufacturer's label indicating such compliance (see Note on labeling below), and
• The device can be stowed and used in the cabin consistent with TSA, FAA and PHMSA regulations and the safety and security regulations of your foreign government. (§ 382.133(b)(1) through (b)(3)).
Carrier personnel should inspect the device's label at the departure gate to ensure the device is labeled properly and that the passenger has an adequate number of batteries for the flight and that they are properly packaged.
Since the issuance of revised Part 382 on May 13, 2008, some carriers have denied passengers the use of POCs onboard the aircraft because the devices did not have a manufacturer's label indicating that the device complies with the standards of RTCA/DO–160 or other applicable FAA or foreign requirements for portable medical electronic devices, even though the POC has been approved by the FAA for in-flight use. The DOT strongly encourages carriers to allow passengers to use any such FAA-approved POC if the conditions in Special Federal Aviation Regulation No. 106 (SFAR 106) for use of portable oxygen concentrator systems onboard aircraft are followed even if the device has not been labeled.
Chapter 3, Assisting Air Travelers with Disabilities Planning a Trip, also discusses passenger-supplied electronic respiratory assistive devices. Specifically, Chapter 3 discusses the information a carrier must provide during the reservation process to passengers with a disability who wish to use such devices during a flight and the conditions a passenger must meet to bring the device on the aircraft.
On domestic U.S. flights the baggage liability limits (14 CFR Part 254, Domestic Baggage Liability Limits), do
Baggage liability limits for international travel, including flights of U.S. carriers, are governed by the Montreal Convention and other international agreements instead of 14 CFR part 254.
You also must not require a passenger with a disability to sign a waiver of liability for damage to or loss of a wheelchair or other assistive device, although you may make notes about preexisting damage or the condition of these items to the same extent you do this for other checked baggage. (§ 382.35(b)).
A passenger with a battery-powered wheelchair with a spillable battery arrived for his domestic flight and carrier personnel determined that the wheelchair could not be loaded, stored, secured, and unloaded in an upright position in the cargo compartment of the aircraft. Therefore, the appropriate personnel removed the battery and stored the battery and wheelchair as checked baggage. When the passenger arrives at his destination and the battery is reconnected, it is done incorrectly and the entire electronic circuit board of the wheelchair is severely damaged, rendering the wheelchair temporarily unusable. What should you do?
As a matter of good customer service, you should apologize to the passenger for the problem and the resulting inconvenience. In addition, you should explain to the passenger that the carrier will compensate him for the damaged wheelchair in an amount based on the original purchase price of the device. If, for example, the passenger provides you with documentation that the original cost of the wheelchair was $10,000 and verification that it cost $2,900 to be repaired, the carrier would pay the passenger or the repair company $2,900 to cover the cost of the wheelchair repair. Repair costs in excess of the original cost of the wheelchair need not be paid. The passenger could also recover from the carrier reasonable costs associated with the rental of a wheelchair during the repair period or while awaiting a new wheelchair.
You must provide certain services within the aircraft cabin when requested by a passenger with a disability or when offered to and accepted by a passenger with a disability. Specifically, you must provide assistance:
• Moving to and from a seat as part of boarding and deplaning;
• Preparing for eating, such as opening packets and identifying food;
• If there is an on-board wheelchair, using the on-board wheelchair to enable the passenger to move to and from the lavatory (if requested, this could involve transferring the passenger from a seat to an aisle chair);
• Moving a passenger who is semi-ambulatory to and from the lavatory, without lifting or carrying the individual;
• Ensuring effective communication with passengers with vision or hearing impairments so that these passengers have timely access to information you provide to other passengers, such as information about weather, on-board services, flight delays, and connecting gates at the next airport; and
• Stowing and retrieving carry-on items, including mobility aids and other assistive devices stowed in the cabin (a passenger must self-identify as an individual with a disability needing such assistance). (§ 382.111).
A passenger using an aisle chair for boarding asks for help storing her carry-on item in the overhead compartment because, as is apparent, her disability prevents her from being able to reach up to the overhead compartment. What should you do?
You must either assist the passenger directly or indicate that you will find the appropriate employee to assist her in stowing her carry-on bag in the overhead compartment.
A passenger who walks onto the plane for an evening flight with a rolling carry-on bag asks for help lifting his bag and putting it in the overhead storage compartment. What should you do?
Because he has not identified himself as, and it is not obvious that he is, a passenger with a disability, you may want to ask for further clarification. Because, under the law, normally you cannot ask a passenger if he has a disability, you might ask, “Is there any particular reason you need assistance sir?” or “Are you unable to lift it yourself?” If, for example, the passenger explains that he has multiple sclerosis and his muscles are particularly fatigued at the end of the day and, therefore, he needs help lifting things, you must either assist the passenger directly or indicate that you will find the appropriate employee to assist him in stowing his carry-on bag. If, on the other hand, the passenger states that he is merely tired and does not feel like lifting the bag, he may be considered not to be a passenger with a disability and, therefore, you are not obligated to assist him. You may politely decline to assist him, depending on your carrier's policies regarding assistance with stowing carry-on items for passengers.
You are
• Help with actual eating, for example, feeding the passenger;
• Assistance within the restroom or at the passenger's seat with elimination functions; or
• Provision of medical services. (§ 382.113(a) through (c)).
You cannot require that a passenger with a disability sit on a blanket or wear badges or other special identification. (§ 382.33(b)(3) and (b)(4)).
You must ensure that passengers with a disability who identify themselves as needing visual or hearing assistance have
You must provide information on—
• Flight safety,
• Procedures for takeoff and landing,
• Flight delays,
• Schedule or aircraft changes that affect the travel of passengers with a disability,
• 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, and
• Emergencies (for example, fire or bomb threat).
(§ 382.119(b)).
You may need to provide passengers with information not included on this list. In addition, if you use audio-visual displays to convey this information to passengers with hearing impairments you must provide high-contrast captioning as previously discussed in Section A, Aircraft Accessibility, of this chapter. (§ 382.69).
The FAA requires that you provide a safety briefing to all passengers before each takeoff. (§§ 121.571 and 135.117). With regard to passengers with a disability you must not require that the passenger demonstrate he or she has listened to, read, or understood the information presented, except to the extent that you impose such a requirement on all passengers with
Under certain circumstances, you must provide individual safety briefings to a passenger with a disability. (§ 382.115(a)). FAA regulations require you to conduct an individual briefing for each passenger who may need assistance to move expeditiously to an emergency exit. (§§ 121.571(a)(3) and (4) and 135.117(b)). You must brief the passenger and the attendant, if any, on the routes to the appropriate exit and on the most appropriate time to move toward the exit in the event of an emergency. In addition, you must ask the passenger and the attendant, if any, the most appropriate manner of assisting the passenger. You may offer an individual briefing to any other passenger. (§ 382.115(b)). When you conduct an individual safety briefing for a passenger with a disability, you must do so as inconspicuously and discreetly as possible. (§ 382.115(d)).
If you present safety briefings to passengers using audio-visual displays, you must ensure that the presentation is accessible to passengers with hearing impairments. (§ 382.115(e)). The accessibility requirements for onboard audio-visual safety presentations are discussed in Section A, Aircraft Accessibility of this chapter. (§ 382.69).
Carriers providing service using aircraft with 19 or more passenger seats must designate one or more CROs. (§ 382.151(a)). CROs are individuals trained as the carrier's experts in ensuring that carrier personnel correctly implement the Air Carrier Access Act (ACAA) requirements and Part 382. Each CRO must be trained and thoroughly familiar with (1) the rights of passengers with disabilities under Part 382 and (2) the carrier's procedures with respect to passengers with a disability. The primary purpose of having a CRO is to resolve a passenger's problem as quickly as possible without using formal Department of Transportation (DOT) enforcement procedures and before a violation occurs.
A CRO must have the authority to resolve complaints by passengers with a disability on behalf of the carrier. Therefore, CROs must have the power to overrule decisions of other carrier personnel, except that they are not required to have the authority to countermand a safety decision made by the pilot-in-command. (§ 382.151(e)).
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 either in person or by telephone or Text Telephones (TTY) at each airport serving flights you operate that begin or end at a U.S. airport. Part 382 recognizes that, in some cases, carriers operate flights infrequently and it is not necessary to have a CRO available during those times the carrier is not operating flights at that airport. (§ 382.151(b)).
A foreign carrier may fly from Dulles International Airport to a foreign airport only at 5 p.m. on Mondays and Thursdays. On other days and on Monday and Thursday mornings, the foreign carrier would not have to make a CRO available at Dulles.
If the CRO is available by telephone, it must be at no cost to the passenger. In addition, if a telephone link to the CRO is used, a TTY service or a similarly effective technology must be available to passengers with hearing impairments. You must ensure that CRO services are available in the languages in which you provide services to the general public. (§ 382.151(b)).
If a passenger with a disability, or someone on behalf of a passenger with a disability, complains or raises a concern with you about discrimination, accommodations, or services with respect to passengers with a disability, and you do not immediately resolve the issue to the customer's satisfaction or provide a requested accommodation, you must immediately inform the passenger of the right to contact a CRO. You must then contact a CRO on the passenger's behalf or provide the passenger with the means to contact the CRO such as by providing a telephone, a phone card plus the location and/or phone number of the CRO. The requirement to provide this information applies to your carrier's reservation agents, contractors, and Web sites when a passenger with a disability using those services complains or raises a concern about a disability related issue. (§ 382.151(c)). Carriers are responsible for making a passenger aware of the availability of a CRO anytime a disability-related concern is raised even if a passenger does not specifically ask to speak with a CRO.
A passenger with a disability states that he wishes to carry-on and stow his personal folding wheelchair in the cabin as he has done on several similar flights on your carrier in the same market and on the same aircraft type. As the ticket agent, you inform the passenger that you are unsure if wheelchairs can be stowed in the cabin, but state “We have a CRO available that will be able to provide guidance. The CRO is our carrier's expert in disability related questions or concerns.”
When a passenger with a disability makes a complaint directly to a CRO during the course of the trip (for example, over the telephone or in person at an airport), the CRO must promptly take action to resolve the problem as follows:
• If a passenger complains about a disability-related issue to a CRO
• If a passenger complains about a disability-related issue or alleges that a violation of Part 382 already has occurred and the CRO agrees that a violation has occurred, the CRO must provide the complaining passenger with a written statement summarizing the facts and the steps, if any, the carrier proposes to take in response to the violation. (§ 382.153(b)). Note, some carriers use their legal department to provide a written response.
• If a passenger alleges a violation of Part 382 but the CRO determines that no violation has occurred, the CRO still must provide a written statement including a summary of the facts and the reasons for that determination. (§ 382.153(c)).
In both instances discussed above, the written statement responding to the passenger's complaint must either be provided in person to the passenger at the airport or it must be forwarded to the passenger within 30 calendar days of the complaint. The written statement must
Generally, as a carrier, you must respond to written complaints from passengers with a disability. Written complaints may be received by letter, facsimile, email, electronic instant messaging, and short message service (SMS) via the Internet. (§ 382.155(a)). In regards to complaints received through Facebook and Twitter, in the context of consumer complaints, the Department allows carriers to not respond to those complaints provided the carrier clearly indicates on the its primary page on Facebook and/or Twitter that it will not reply to consumer complaints on that site and directs the consumer to the carrier's mailing address and email or Web site location for filing written complaints. The Enforcement Office will adopt this policy for disability-related complaints as well. However, you are not required to respond to a written complaint postmarked or transmitted more than 45 days after the date of the incident, except complaints referred to you by DOT. (§ 382.155(c)).
You must provide your response in writing to the complaining passenger within 30 days of receiving his or her written complaint. Your response must describe how you resolved the complaint and must specifically admit or deny that a violation of Part 382 occurred. (§ 382.155(d)). As a matter of good customer service, you should provide all information regarding written complaints in a polite and respectful manner.
Depending on your carrier's determination, the response to a written complaint must include the following:
• If your carrier agrees that a violation has occurred, you must provide a written statement to the complaining passenger summarizing the facts and stating what steps, if any, your carrier proposes to take in response to the violation. (§ 382.155(d)(1)).
• If your carrier denies a violation occurred, the written response must include a summary of the facts and your carrier's reasons under Part 382 for making the determination. (§ 382.155(d)(2)).
As with the response to oral complaints, the response to a written complaint must inform the complaining passenger about his or her right to pursue DOT enforcement action under the law. (§ 382.155(d)(3)).
Each employee/contractor dealing with the traveling public should be trained to proficiency, as appropriate to the duties of the employee/contractor, on the legal requirements and the carrier's policies concerning the provision of air travel to passengers with disabilities. (§ 382.141). These employees/contractors must receive training on awareness about and appropriate responses to individuals with physical, sensory, mental, and emotional disabilities, including how to distinguish among the differing abilities of individuals with a disability. (§ 382.141(a)(2)). A discussion of employee/contractor training requirements can be found in Chapter 8: Personnel Training; and Appendix II on Airline Management Related Issues.
You should be familiar with your carrier's established procedures and the CRO's duties and responsibilities with respect to resolving a complaint raised by a passenger with a disability. You should convey this information to passengers with a disability under the appropriate circumstances.
When resolving complaints from a passenger with a disability, you should:
• Request assistance from a CRO immediately or assist the passenger with a disability in doing so, if the passenger requests to speak with a “supervisor” or “manager” about a disability-related issue.
• Contact a CRO if you are having
• Carry the information about how to contact a CRO with you at all times. Remember, a U.S. carrier must make a CRO available, in person or by telephone, at each airport the carrier serves during all times the carrier is operating at that airport. A foreign carrier must make a CRO available, in person or by telephone, at each airport serving flights the carrier operates that begin or end at a U.S. airport. (§ 382.151(b)).
When you receive a complaint from a passenger with a disability, there are certain requirements under the law with which you, your carrier, and a CRO must comply. Even if you call a CRO, it is important to be able to assess the situation firsthand through observation, communication, and information gathering because a CRO is not always available onsite and may only be involved in resolving the complaint by telephone.
Having a consistent process for handling these complaints will assist you in meeting your legal obligations and providing good customer service. Learning what the particular problem is, finding the applicable rule, regulation, or policy that addresses the situation, and remedying the situation by taking positive action are important aspects of the process.
The ACCESS
To ensure that you can appropriately resolve a complaint from a passenger with a disability, you should:
• Familiarize yourself with this manual, the full text of Part 382 at
• Work as quickly as possible to ensure prompt service and, at the same time, respect the needs of passengers with a disability.
• Be aware of your carrier's procedures for addressing complaints. You should take the time necessary to resolve the complaint while maintaining flight schedules. If an unfamiliar situation presents itself or you have any doubts or questions, you should contact your immediate supervisor or a CRO for prompt resolution of the issue.
• Make reasonable attempts to keep the passenger with a disability informed about your or other carrier personnel's progress with respect to resolving a complaint.
• Do not argue with a passenger with a disability who presents a complaint.
• Listen carefully and actively, evaluate appropriate options under Part 382 and your carrier's policy, and communicate the basis for the action taken (or not taken) to the passenger with a disability in a respectful and polite manner to ensure effective complaint resolution.
• Assess the situation firsthand through observation, communication, and information gathering even if you call a CRO, because a CRO is not always available on site and may only be involved in resolving the complaint by telephone.
As a carrier covered by Part 382 that conducts passenger operations with at least one aircraft having a designated seating capacity of more than 60 passengers on flights to, from, or in the United States, you must categorize, record, and report annually to the DOT written disability-related complaints you receive. (§ 382.157). This requirement applies to foreign carriers only with respect to disability-related complaints associated with any flight segment beginning or ending in the United States. (§ 382.157(b)).
As a carrier, you must have a system for categorizing and recording disability-related complaints by the passenger's type of disability and the nature of the passenger's complaint. (§ 382.157(c)) In addition, you must submit an annual report on the last Monday of January of every year summarizing the disability-related complaints you received during the previous year. This annual report must be submitted online using the form specified at the Web site address
The recording and reporting responsibilities discussed above apply to carriers in a codeshare relationship. As carrier in such a relationship, you must record and report disability-related complaints concerning services you provide. In addition, you must forward to your codeshare partner any disability-related complaints you receive from or on behalf of passengers regarding difficulties encountered in connection with service provided by your codesharing partner. As a codeshare carrier, you must report disability-related complaints even 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.
Each carrier, including those carriers in a codeshare relationship, must record and report disability-related complaints forwarded to it by another carrier or governmental agency with respect to difficulties encountered in connection with services you provide. (§ 382.157(f)(1) and (f)(2), and (g)).
Finally, each carrier must retain correspondence and records of action on all disability-related complaints for 3 years after receiving the complaint or creating the record of action. You must make these records available to the DOT on request. (§ 382.157(e)).
When assisting and interacting with individuals with disabilities, you should use language that reflects a positive view of them. You should focus on the person first, not the disability, and avoid language that reinforces myths, stereotypes, and discrimination.
This chart lists some currently acceptable terminology and terminology you should avoid when addressing or referring to an individual with a disability.
It may not be apparent whether a person is an individual with a disability. You should provide an opportunity for an individual with a disability to self-identify by asking if the individual needs assistance and, if so, how best you can assist with those needs. Be mindful that you cannot require an individual with a disability to accept special services, including preboarding. (§ 382.11(a)(2)). Below are examples of physical, mental, and psychological impairments.
• Orthopedic impairment;
• Deafness (profound hearing loss);
• Hard of hearing (mild to profound hearing loss);
• Vision impairment and blindness;
• Speech disorder;
• Cerebral palsy;
• Epilepsy;
• Muscular dystrophy;
• Multiple sclerosis;
• Cancer;
• Heart disease;
• Diabetes; and
• Human Immunodeficiency Virus (HIV).
(§ 382.3).
• Mental retardation;
• Organic brain syndrome;
• Emotional or mental illness; and
• Specific learning disabilities.
(§ 382.3).
The first section below provides general tips for interacting with an individual with a disability. This section is followed by tips for interacting with individuals with one or more of a provided list of examples of disabilities.
This information will help you provide services, facilities, and other accommodations to passengers with disabilities in a respectful and helpful manner. Some of the tips relate to specific requirements under Part 382, but most suggest ways to interact with passengers with disabilities that would constitute good customer service and demonstrate an appropriate level of sensitivity. However, carriers should be aware that § 382.141(a)(3) requires carriers to train employees who deal with the traveling public to recognize requests for communication accommodations from individuals with vision or hearing impairments and to use the most common, readily available methods for communicating with these individuals such as writing notes and clearly enunciating. The tips below should be read and followed with the above qualification in mind.
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It is always important to keep these tips in mind when assisting and communicating with passengers with disabilities. Although as a practical matter, you need to be aware of different considerations depending on the passenger's type of disability.
Below are five basic types of disabilities with a list of considerations to keep in mind when you are communicating and accommodating passengers with each type of disability. Although these five types of disabilities are specifically discussed, you must consider each passenger with a disability as an individual with individual needs. It is important for you to communicate with each passenger about that particular passenger's needs under the circumstances and avoid making assumptions about the passenger's needs.
Five examples of types of disabilities addressed below are—
• Vision impairments;
• Hearing or severe hearing and vision impairments;
• Mobility disabilities;
• Difficulty speaking; and
• Disabilities that are not apparent (for example, a cognitive or emotional disability, diabetes, etc.).
• Only offer assistance if it seems appropriate. Ask the person if you can be of assistance and, if so, how you can help.
• Identify yourself by name and job responsibility first.
• Always communicate using words rather than relying on gestures, facial expressions, or other nonverbal communication. For example, tell the passenger the gate number and the directions to the gate. If you are handing a boarding pass to a passenger with a vision impairment, explain that you have the person's boarding pass and that you would like to place it directly in the person's hand. Always communicate in words that describe what you are doing (for example, waiting to receive confirmation of a reservation), and identify any items you are giving to the passenger (for example, a credit card, ticket, or voucher).
• Make sure a passenger with a vision impairment is made aware of all relevant information as it becomes available to other passengers. (§ 382.53 and 382.119). For example, if a boarding time is changed and the new boarding time is posted visually at the gate, you must inform the person orally. You should advise the passenger when you are leaving the area and answer any questions the person has before you leave.
• If individual safety briefings are required, you must conduct them discreetly with respect for the privacy of an individual with a vision impairment. (§ 382.115(d)).
• If a person uses a term relating to vision impairments that you are not familiar with or that you do not understand, ask the individual what his or her needs are. If you need additional information, you should contact the Complaints Resolution Official (CRO) to discuss how best to proceed. Be aware that your carrier may provide additional training to educate you about the different types of disabilities to enhance your ability to accommodate passengers with disabilities.
• Keep in mind that the special service request (SSR) field of the passenger name record (PNR) may contain information concerning a passenger who is visually impaired.
• Never take the arm of an individual with a vision impairment without asking first. In addition to the fact that the passenger might not need or want assistance, grabbing the passenger's arm could cause the passenger to lose his or her balance. Also, if you do not ask whether the passenger needs assistance, the passenger could perceive your forcing assistance upon him or her as a lack of respect because you did not give that passenger the option of receiving or declining the assistance. Once you ask if you can offer your arm, let the person take it. You may direct the individual's arm to a railing or the back of a chair to assist with seating.
• Walk approximately a half step ahead of the person if you are serving as a guide through the terminal. Inform a person with a vision impairment about any approaching obstacles, such as escalators, moving walkways, or revolving doors, and alternative routing to avoid these obstacles if the person desires. For example, when approaching a moving walkway you might say, “We are approaching a moving walkway; it is approximately 50 feet in front of us. If you would like we can use the moving walkway or avoid the walkway. Which would you prefer?” Never assume that a person with a vision impairment cannot use these devices because of his or her disability. Instead, offer the individual the freedom and flexibility to choose which devices and facilities he or she would like to use. Describe the environment in detail as you proceed and ask the person if he or she would like you to point out airport amenities such as restaurants, shops, automated teller machines, restrooms, airline club lounges, displays, or other terminal facilities. Note any obstacles and their location in your path. If you need to provide a warning, be as specific as possible. Offer to orient the person to the gate or other terminal area in case he or she would like to walk around. For example, you could say, “All even numbered gates are on our right when walking from security and odd numbered gates are on the left.”
• When you are done guiding the person to his or her destination, ask if any other assistance is needed. You should not inform other passengers or carrier personnel that an individual with a vision impairment needs additional assistance unless the individual has requested you to do so.
• Be aware that many people with vision impairments prefer to walk rather than use mobility devices, such as wheelchairs or electric carts. You may not require an individual with a vision impairment to use a wheelchair and, if requested, you must provide a walking guide for that individual.
• Never pet or distract a service animal accompanying an individual with a vision impairment unless the individual specifically told you it is all right to do so.
• Do not separate passengers with vision impairments from their service animals unless the individual specifically told you it is acceptable to do so.
• Do not move a person's cane or assistive device if the person has placed it on the ground near a seat. If you ask and receive permission, you may help the passenger collect things if needed (for example, carry-on items or jackets.)
• Do not lean on a passenger's assistive device.
• Do not use a passenger's assistive device unless you have specific permission from the passenger.
• Do not disassemble a passenger's assistive device unless disassembly is necessary for stowage on the aircraft.
• Remember that individuals with hearing impairments have various ways of communicating. Depending on the nature of their disability, these individuals may communicate using, for example, sign language, speech/lip reading, Text Telephones (TTY), a hearing aid, or an implant. A person's hearing impairment may go unnoticed unless the person self-identifies.
• When you speak, look directly at the person with a hearing impairment. The person may use speech/lip reading as a method of communicating. You should use normal lip movement and a normal tone of voice when speaking to the person. You should not shout because shouting distorts the sound, words, and lip movement. Sometimes you may need to rephrase your message because many words have the same lip movement, for example, the numbers 15 and 50. If you write a note, you should make the message short and simple. If the person with a hearing impairment uses an interpreter, you should look directly at the person with a hearing impairment and not the interpreter when speaking with the person with a hearing impairment.
• Identify yourself by name and job responsibility first.
• If individual safety briefings are required, conduct them discreetly with respect for the privacy of the person with the hearing or vision and hearing impairment. (§ 382.115(d)).
• Make sure a passenger with a vision or hearing impairment receives all relevant information as it becomes available to all passengers. For example,
• If a person uses a term relating to hearing or hearing and vision impairments that you are not familiar with or that you do not understand, ask the person to tell you what his or her needs are. If you need additional information, you should contact the CRO to discuss how best to proceed.
• An individual with both hearing and vision impairments may communicate through “finger spelling”, which is an alternative to sign language. This method involves “writing” with your fingertip on the palm of the person's hand. You should use the fleshy part of your fingertip, not your nail. Always use all upper case letters and use the same reference point for each letter. You should hold the person's hand the same way each time, so the top and bottom letter falls in the same place. Make sure the words you print are “right side up” for the person receiving the message. You should write as large as possible and start in the upper left for a “W” and finish in the upper right. Use the entire palm area for each letter. Use one stroke for both the letter “I” and the number “1”. It will be obvious which you intend from the context of what you are spelling. When you finish a word, “wipe it off” using the palm of your hand. This action indicates that you have finished one word and you are beginning a new word.
• Keep in mind that the SSR field of the PNR may contain information concerning a passenger with a hearing or hearing and vision impairment.
• Touch the person gently and offer your arm. Let the person take the back of your elbow near your body so that he or she can feel the change in gait as you approach different barriers and prepare for them. Do not take or grab the arm of a person with both hearing and vision impairments (particularly the arm with which the person is holding a cane or guide dog harness) and do not push him or her along.
• If the person has a guide dog, go to the side opposite the service animal and offer your arm (usually the person's right side). Remember that a person with both hearing and vision impairments cannot hear you. Therefore, you must convey information regarding obstacles, such as stairs, tactually.
• Individuals with both hearing and vision impairments often have poor balance so it is helpful to offer a steady hand to aid in orientation. You must never leave an individual with both hearing and vision impairments in an open space. You should place his or her hand on a wall, post, railing, or whatever sturdy, stationary object that is available.
• Never pet or distract a service animal accompanying a person who has a disability unless the person specifically tells you it is all right to do so.
• Do not separate passengers with hearing or hearing and vision impairments from their service animals unless the passenger specifically tells you it is all right to do so.
• If a person uses a term to describe a mobility disability that you are not familiar with or that you don't understand, ask the person to tell you what he or she needs. If you need additional information, you should contact the CRO to discuss how best to proceed.
• If individual safety briefings are required, conduct them discreetly with respect for the privacy of the person with a mobility disability. (§ 382.115(d)).
• When having a long conversation with a person who is using a wheelchair, you should sit nearby so that you are closer to eye level.
• Be aware of the types of wheelchairs and assistive devices used by people with mobility disabilities when traveling. You must be able to provide information to people about the different types of wheelchairs, services, and other equipment provided or accommodated by your carrier on the particular flight.
• Understand the proper function and storage of the different types of wheelchairs, mobility aids, and assistive devices. Ask the person with the mobility disability the best way to handle the device.
• Consider keeping information handy about businesses providing wheelchair repair in the area in case a person with a mobility disability needs the information.
• If you must transfer a person with a mobility disability from an aisle chair to a seat on the aircraft, or perform any other kind of transfer, explain the transfer procedures and listen to any instructions or preferences from the person before undertaking the transfer.
• You must never physically hand-carry a person with a mobility disability from the tarmac to the aircraft door (even if both of you are willing) except in an emergency evacuation situation. (§ 382.101). Note, however, that hand-carrying a passenger and lifting a passenger from his or her wheelchair onto a boarding chair and from a boarding chair onto his or her aircraft seat are not synonymous. Carriers are required to transfer passengers into and out of aircraft seats for boarding, deplaning, and in-flight use of the lavatory.
• When providing transportation between gates, ask the person with the mobility disability if he or she would prefer you to push the wheelchair. If the answer is “yes,” you should use elevators and avoid escalators and moving walkways. When maneuvering through the terminal, say, “Excuse
• Be aware that carriers are not permitted to charge passengers with disabilities for services or equipment required by Part 382. (§ 382.31). However, if a passenger with a disability voluntarily offers to tip you for providing a service, you should consult your carrier's policy to determine whether you can accept the tip. Soliciting tips is prohibited.
• Never pet or distract a service animal accompanying a person who has a mobility disability unless the person specifically tells you it is all right to do so.
• Do not separate passengers with a mobility disability from their service animals unless the passenger specifically tells you it is all right to do so.
• Ask the person how he or she prefers to communicate.
• A pencil and paper may be okay for short conversations.
• If you do not understand something that is said, tell the person that you do not understand and ask the person to repeat the statement.
• Be patient. An individual with a speaking impairment may need extra time to communicate.
• Allow the individual to speak without attempting to finish his or her sentence.
• To obtain information quickly, you should ask short questions that require brief “yes” or “no” answers.
• Do not shout.
• You should remember that difficulty speaking does not indicate a lack of intelligence.
• Do not make assumptions about the needs of people if their behavior appears to be unusual to you. Cognitive disabilities may cause people to reason, draw conclusions, or respond more slowly. Individuals with cognitive disabilities may appear easily distracted. Depending upon the disability, the person may understand materials in written form or through a verbal explanation. They may also find the background noise of a busy airport terminal extremely distracting.
• Disregard any speech impairments or physical tics by being patient and aware of your own body language and facial expressions that could convey your own discomfort.
• If individual safety briefings are required, conduct them discreetly with respect for the privacy of the person with a disability that is not apparent. (§ 382.115(d)). Similarly, if you are concerned that an individual is not medically stable enough for air travel, conduct the inquiry in a discreet manner and involve the CRO, if necessary.
• If a person with a disability that is not apparent uses a term to describe the disability that you are not familiar with or that you do not understand, ask the person to tell you what he or she needs. If you need additional information, you should contact the CRO to discuss how best to proceed.
• Be aware that people who have disabilities that are not apparent may travel with emotional support, psychiatric service, or other service animals.
• Never pet or distract a service animal accompanying a person with a disability that is not apparent unless the person specifically tells you it is all right to do so.
• Do not separate passengers from their service, emotional support, or psychiatric service animals unless the passenger specifically tells you it is all right to do so.
Thorough training of carrier personnel who interact with passengers with disabilities is vital to ensure good service to those passengers and required to comply with the Air Carrier Access Act (ACAA). (§ 382.141). As a U.S. or foreign carrier that operates aircraft with 19 or more passenger seats, you must provide the training for all personnel who deal with the traveling public, as appropriate to the duties of each employee. (§ 382.141(a)). Foreign carriers must provide such training only in connection with flights that begin or end at a U.S. airport, as appropriate to the duties of each employee. (§ 382.143(b)).
You also must ensure training to proficiency
• Part 382 requirements and other applicable Federal regulations affecting the provision of air travel to passengers with a disability;
• Your procedures, consistent with Part 382, 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
• 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. (§ 382.141(a)(1)(i) through (a)(1)(iii)).
You also must train employees with respect to awareness and appropriate responses to passengers with a disability, including persons with physical, sensory, mental, and emotional disabilities, such as how to distinguish among the differing abilities of individuals with a disability. (§ 382.141(a)(2)).
You must train employees to recognize requests for communication accommodation from individuals with vision or hearing impairments 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. However, training in sign language is not required. (§ 382.141(a)(3)).
You must train employees to recognize requests for communication accommodation from passengers who are both deaf and blind 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. (§ 382.141(a)(3)).
Refresher training is intended to assist employees in maintaining proficiency by reminding them of the ACAA requirements and carrier procedures for implementing these requirements.
Employees performing the CRO function must receive annual refresher training concerning Part 382 and their duties. (§ 382.143(a)(1) for U.S. carriers and § 382.143(b)(1) for foreign carriers).
You must ensure that all personnel who are required by Part 382 to receive training receive refresher training on the matters covered by § 382.141(a), 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 3 years. The program must describe how employee proficiency will be maintained. (§ 382.141(a)(5)).
You must provide, or ensure that your contractors provide, training to your contractors' employees concerning
You must train CROs on the requirements of Part 382 and the duties of CROs. (§ 382.141(a)(7)). CROs must be trained to be experts on all aspects of Part 382. See Chapter 6: Assisting Air Travelers with Disabilities with their Complaints for information on CROs and their duties under Part 382. As previously noted, you must provide annual refresher training to employees performing the CRO function. (§ 382.143(a)(1) for U.S. carriers and § 382.143(b)(1) for foreign carriers).
When developing your training programs you must consult with organizations representing persons with disabilities in your home country. If such organizations are not available in your home country, you may consult with individuals with disabilities and/or international organizations representing individuals with disabilities. (§ 382.141(a)(4)).
You must have trained personnel employed on May 13, 2009, one time in the changes resulting from the amendment of Part 382, which was issued on that date. (§ 382.141(a)(8)).
You must provide training to your crewmembers that meets the requirements of § 382.141(a) before they assume their duties. (§ 382.143(a)(3) and (b)(3)). For U.S. carriers this requirement applies to crewmembers subject to the training requirements of 14 CFR parts 121 or 135. You also must provide refresher training appropriate to the crewmember's duties every 3 years. (§ 382.141(a)(5)).
You must provide training to your CROs concerning the requirements of Part 382 and the duties of a CRO before they assume their duties. You also must provide annual refresher training to your CROs. (§ 382.143(a)(1) and (b)(1)).
You must provide training for other personnel, including contractors, that meets the requirements of § 382.141(a) within 60 days after the date they assume their duties. (§ 382.143(a)(4) and (b)(4)) You also must provide refresher training to such personnel appropriate to their duties every 3 years. (§ 382.141(a)(5)).
The Department of Transportation (DOT) has developed a Model Training Program on the ACAA and Part 382. You can view the training program module at
Both U.S. and foreign carriers that operate aircraft with fewer than 19 passenger seats must provide training for flight crewmembers and appropriate personnel to ensure they comply with Part 382 and are familiar with the following:
• Part 382 requirements and other applicable Federal regulations affecting the provision of air travel to passengers with a disability;
• Your procedures, consistent with Part 382, 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
• 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. (§ 382.141(b)).
You also must train employees with respect to awareness and appropriate responses to passengers with a disability, including persons with physical, sensory, mental, and emotional disabilities, such as how to distinguish among the differing abilities of individuals with a disability. (§ 382.141(b)). Although carriers operating only aircraft with fewer than 19 passengers seats are not specifically required to designate or train a CRO, it would be a good idea to train one or more in-house experts on all of the requirements of Part 382, so that other employees within your carrier have a person to contact to discuss difficult or complex disability-related questions or situations.
As a U.S. or foreign carrier that operates aircraft with 19 or more passenger seats, you must maintain records of the procedures you use to comply with Part 382, including those portions of manuals and other instructional materials concerning Part 382 compliance, and individual employee training records.
Specifically, as such a carrier, you must include procedures for implementing Part 382 requirements in the manuals, guidance, or instructional materials you provide to your personnel and contractors who provide service to passengers, including pilots, flight attendants, reservation and ticket counter personnel, gate agents, ramp and baggage handling personnel, and passenger service office personnel.
You do not need to submit these manuals, guidance, or instructional materials or a certification of compliance to DOT for review. However, you must retain these materials for DOT review if DOT requests to review them. (§ 382.145(a)).
As a U.S. or foreign carrier, you also must retain individual employee training records for 3 years demonstrating that all persons required to receive initial and refresher training have done so. (§ 382.145(b)).
There are some commonly used accommodations, facilities, and services that carriers are required to make available to passengers with disabilities. This Appendix provides a list of tips and general guidelines for air travelers with disabilities regarding these commonly used accommodations, facilities, and services. Therefore, the “you” referred to in this appendix is an air traveler with a disability.
Know what to ask carrier personnel. Be clear and specific. You can ask for, and carrier personnel must be able to provide, the following information on the accessibility of the specific aircraft the carrier expects to use for your flight:
• The specific location of seats, if any, with movable armrests (by row and seat number);
• The specific location of seats the carrier does not make available to passengers with a disability (for example, exit row seats);
• Any aircraft-related, service-related or other limitations on the carrier's ability to accommodate passengers with a disability including limitations on the availability of level-entry boarding at any airport involved with the flight. Carriers 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;
• Any limitations on the availability of storage facilities in the cabin or cargo compartment for mobility aids or other assistive devices, including the storage of a passenger's manual folding wheelchair in the cabin as provided for in §§ 382.67 and 382.123;
• Whether the aircraft has an accessible lavatory; and
• The types of services to passengers with a disability that are not available on the flight. (§ 382.41).
Generally, passengers with a disability are not required to provide advance notice that they will be traveling on a flight. However, it is best to provide detailed information about the accommodations you need in advance of travel to assist carrier personnel in providing accommodations in a correct and timely manner.
In addition, there are some accommodations that passengers with a disability may need or want that carriers may reasonably require time to arrange. For certain accommodations or services, carriers may legally require advance notice and passengers with a disability to check in before the general public. Carriers may require that a passenger with a disability provide 48 hours' advance notice and check-in 1 hour before the check-in time for the general public to receive the following services and accommodations, some of which are required and some of which are optional:
• Transportation of an electric wheelchair on an aircraft with fewer than 60 passenger seats;
• Accommodation of 10 or more passengers with a disability who make reservations and travel as a group;
• Use of passenger-supplied ventilator, respirator, continuous positive airway pressure (CPAP) machine, or Federal Aviation Administration (FAA)-approved portable oxygen concentrator (POC);
• Transportation of an emotional support or psychiatric service animal in the cabin;
• Transportation of any service animal on a flight segment scheduled to take 8 or more hours;
• Provision of hazardous materials packaging for batteries or other assistive devices that are required to have such packaging;
• Provision of an on-board wheelchair on an aircraft with more than 60 passenger seats that does not have an accessible lavatory; and
• Accommodation of a passenger with both severe vision and hearing impairments.
• Carriage of an incubator;
• Hook-up for a respirator, ventilator, CPAP machine or POC to the aircraft's electrical supply;
• Accommodation for a passenger traveling in a stretcher; and
• Carrier-supplied supplemental oxygen (for international flights, carriers may require 72 hours' advance notice and check in 1 hour before the check-in time for the general public).
(§ 382.27).
If you are making a connection, you may want to investigate whether your trip involves more than one carrier. If so, contact each carrier to determine whether it is able to accommodate your needs fully. Keep in mind that carriers may provide optional accommodations on mainline flights
Although you are generally not required to (1) self-identify as a passenger with a disability or (2) accept services offered by carrier personnel that are not needed to accommodate your disability, most carriers assume that assistance is not needed unless requested. Therefore, it is incumbent upon you to notify carrier personnel of your desire for assistance. In addition, self-identifying as needing assistance and providing specific guidance to carrier personnel as to the assistance requested allows carrier personnel to assist you better. For example, if you need assistance with transportation from the ticket counter (check-in) to the gate area (boarding), it would be best to notify the carrier of such request before arriving at the airport and to self-identify as requiring such assistance to carrier personnel once you have arrived at the airport. In addition, clear instructions to carrier personnel, such as your need for assistance from the ticket counter to the gate but your ability to walk the short distance from the gate to your aircraft seat, will help the carrier ensure that you obtain the assistance you need. Finally, if you use a personal wheelchair, you may want to ask carrier personnel to remove footrests (if possible) and other removable parts and to stow them in the cabin to reduce the potential for damage to the wheelchair while it is stowed in the cabin or in the cargo compartment.
When communicating to carrier personnel about your need for boarding assistance, be as specific as possible about the type or level of boarding assistance you require. For example, if you are completely immobile, ask carrier personnel to provide a wheelchair to transport you to and from the gate, a lift (if necessary), and assistance transferring from an aisle chair to a seat. If you are able to walk short distances, but cannot walk up and down stairs, ask carrier personnel to provide a wheelchair for longer distances to and from the aircraft and a lift (if necessary). If you can walk up and down stairs and can walk shorter distances but have difficulty walking longer distances, ask carrier personnel to provide a wheelchair or electric cart for longer distances to and from the aircraft.
Carrier personnel are not permitted to physically hand-carry a passenger with a disability on or off an aircraft, except in the case of an emergency evacuation. (§ 382.101). (Note the regulations do not prohibit carrier personnel from transferring a passenger from an aisle chair into his or her aircraft seat.) Keep in mind that if none of the options for boarding a particular flight is acceptable to you, you may have to wait for another flight or alter your travel plans.
Carriers recommend that you carry on board the aircraft medicine or other assistive devices, such as syringes, that you may need in the case of a flight cancellation or a missed flight. At times, passengers can be separated unexpectedly from checked baggage. If you decide to carry medication or other assistive devices with you on board, the carrier must not count these items toward your carry-on baggage limit. (§ 382.121(b)). While not specifically required, it is recommended that a carrier permit you to keep your assistive device near you on board when it does not interfere with carry-on baggage safety requirements.
Bring photocopies of instructions about the assembly and disassembly of wheelchairs and other assistive devices when you travel. You can provide this information to carrier personnel who stow or check your wheelchair or assistive device. It may also be a good idea to attach a laminated set of brief instructions to your wheelchair or assistive device in the event that it is disassembled or reassembled in a secure area to which you do not have access.
Traveling with photocopies of receipts, warranties, or other product information concerning a wheelchair or assistive device may be useful if the item is lost or damaged in transit. This information might help with locating a repair option or processing a claim for liability against the carrier responsible for the loss or damage.
You may require an individual safety briefing if your disability prevents you from understanding the safety briefing or if otherwise required by applicable safety rules. Carriers should provide the safety briefing in a manner accessible to you and as inconspicuously and discreetly as possible. (§ 382.115). Keep in mind that you may need to provide information to carrier personnel to ensure that the individual safety briefing is accessible to you.
Carriers must provide the following services within the aircraft cabin as requested by or on behalf of a passenger with a disability, or when offered by carrier personnel and accepted by a passenger with a disability:
• Assistance moving to and from seats, as part of boarding and deplaning;
• Assistance in preparation for eating, such as opening packages and identifying food;
• 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 (this requires airline in-flight personnel to transfer passengers, on request, from an aircraft seat into an aisle wheelchair in most instances);
• Assistance to a semi-ambulatory person in moving to and from the lavatory, without lifting or carrying the person;
• Assistance in stowing and retrieving carry-on items, including mobility aids and other assistive devices stowed in the cabin (see also (§ 382.91(d)). To receive such assistance, a passenger must self-identify as being an individual with a disability needing the assistance; and
• 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 (for example, information about weather, on-board services, flight delays, and connecting gates at the next airport). (§ 382.111).
Carrier personnel are prohibited from physically hand-carrying you on or off an aircraft except in an emergency evacuation. (§ 382.101). Additionally, carrier personnel are not required to provide extensive special assistance to you. For example, carrier personnel are not required to——
• Provide you with medical services,
• Assist you in actual eating,
• Assist you within the restroom, or
• Assist you with elimination functions at your seat. (§ 382.113).
Carriers 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. (§ 382.93). Although you are not required to preboard, taking advantage of this opportunity may assist you in securing a suitable seating accommodation when a carrier does not provide advance seat assignments. In this situation, you may pre-board before all other passengers and select a seat that best meets your needs.
Preboarding may also allow you to secure priority storage space for your wheelchair or assistive device or allow easier access to overhead compartments if you are stowing your assistive device or parts of your wheelchair onboard the aircraft.
You should keep in mind that carriers are obligated to take the safety of
When requesting a particular seat assignment, you should be as specific as possible about the type of seat that will meet your needs as a passenger with a disability. This information will help carrier personnel provide you with the most appropriate seating accommodations. For example, instead of asking for an “accessible” seat, it is more helpful to provide some details about your specific needs, such as a bulkhead seat or an aisle seat with a movable armrest. In addition, carriers may request enough information about the nature of your disability to determine if you are entitled to a particular seating accommodation if you have not initially self-identified as having a condition qualifying you for a disability-related seating accommodation. For example, a carrier may ask if you require an aisle chair to board if you have requested a seat in a row with a movable armrest.
You should be aware that some carriers have begun charging an extra fee for occupying certain seats. Such fees are generally not prohibited, if the carrier fully complies with the Part 382 seating requirements at no added cost to a qualified individual with a disability. For more information on this topic, see Chapter 5, Section B, Seating Assignments and Accommodations.
Generally, advance notice is not required from passengers with a disability traveling with a service animal on flights of less than 8 hours, other than an emotional support or psychiatric service animal. However, to guarantee your seat assignment, depending on whether the carrier provides advance seat assignments and the type of seating method it uses, the carrier may have a policy requiring passengers with a service animal to:
• Request a particular seat assignment no later than 24 hours in advance of the scheduled departure of the flight, and
• Check in at least 1 hour before the standard check-in time for the flight.
Carriers are obligated to make a good faith effort to accommodate you and your service animal regardless of whether you comply with the carrier's advance seat assignment
In addition, if you are traveling with an emotional support or psychiatric service animal in the aircraft cabin or with any type of service animal on a flight segment scheduled to take 8 hours or more, the carrier may require you to provide 48 hours' advance notice and to check in 1 hour before the check in time for the other passengers. (§ 382.27(c)(8)(9)). You should be aware that foreign carriers are not required to carry service animals other than dogs (except as noted in § 382.7(c) for codeshare flights with a U.S. carrier.).
Keep in mind that requesting your seat assignment well in advance of the flight may permit you to secure the specific seat assignment you would like with the least amount of waiting, inconvenience, or stress to you.
Carriers also may require that passengers traveling with emotional support or psychiatric service animals present current documentation (that is, no older than 1 year from the date of the passenger's scheduled initial flight)
• The passenger has a recognized mental or emotional disability;
• The passenger needs the service animal as an accommodation for air travel and/or activity at the passenger's destination;
• The provider of the letter is a licensed mental-health professional and the passenger is under the individual's professional care; and
• The date and type of mental health professional's license and the state or other jurisdiction in which the license was issued. (§ 382.117(e)(1) through (e)(4)).
For more information on traveling with service animals see Chapter 3: Assisting Air Travelers With Disabilities Planning a Trip, Section D, Service Animals and Appendix III Guidance Concerning Service Animals.
Knowledge of the Air Carrier Access Act (ACAA) and its implementing regulations (14 CFR part 382) is important so that you understand your rights and responsibilities, are able to ask the right questions, and share the most useful information with carriers. Some passengers with disabilities bring a copy of the regulations with them when they travel to have the primary resource readily available. Carriers must maintain a copy of Part 382 at each airport they serve and make the copy available for review upon request. (§ 382.45).
Be aware that if you have a disability-related complaint or concern and carrier personnel do not immediately resolve the issue or provide the accommodation, the carrier must make a Complaints Resolution Official (CRO) available to you. This requirement applies to carriers providing scheduled service or nonscheduled service using aircraft with 19 or more passenger seats. A U.S. carrier must make a CRO available at each airport it serves during all times it is operating at that airport. Foreign carriers must make a CRO available at each airport serving flights that begin or end at a U.S. airport. (§ 382.151(b)). The CRO can be made available in person or by telephone, and must be provided at no cost to the passenger.
If you have a hearing impairment, the carrier must permit you to communicate with a CRO using a Text Telephone (TTY) or a similarly effective technology. Furthermore, the carrier must make the CRO service available to you in the languages it makes services available to the general public. (§ 382.151(b)).
If you make a written complaint, it is helpful to (1) State whether a CRO was contacted when the matter arose, (2) provide the name of the CRO and the date of the contact, if available, and (3) enclose any written response received from the CRO. (§ 382.155(b)).
DOT posts useful information for all consumers, including air travelers with disabilities, on its Web site at
The following Web links also are available to air travelers with disabilities:
• A list of frequently asked questions and answers (
• The full text of Part 382 (
• A list of recent DOT enforcement orders related to the ACAA (
• A listing of conflict of law waiver determinations (
• A listing of equivalent alternative determinations (
The DOT toll-free telephone hotline system is used to provide general information to consumers about the rights of air travelers with disabilities, respond to requests for consumer information, and assist air travelers with time-sensitive, disability-related issues. The hours for the hotline are 9 a.m. to 5 p.m. eastern time, Monday through Friday except federal holidays. Air travelers with a disability-related service concern or issue may call the hotline at 1–800–778–4838 (voice) or 1–800–455–9880 (TTY) to receive assistance. Air travelers who would like the DOT to investigate a complaint about a disability issue must submit their complaint in writing or the web. (
Always check carrier resources such as Web sites and contact the carrier's reservation personnel when seeking information about services and equipment when accessing air transportation.
Consumers with disabilities who have concerns about the airport screening process or other aviation security issues may call the TSA toll-free at 1–855–787–2227 or email that agency at
Appendix III highlights provisions of the Air Carrier Access Act (ACAA) and the implementing regulations in Part 382 that are the specific responsibility of carrier management as opposed to personnel who deal with the traveling public. Cross references to chapters of and other appendixes to this manual are provided for more detailed explanations of these requirements. In this appendix, the word “you” refers to carrier management and “your carrier” refers to the carrier you manage.
You must ensure that your carrier (either directly or indirectly through its contractual, licensing, or other arrangements) does not discriminate against qualified individuals with a disability by reason of such disability in the provision of air transportation. (§ 382.11(a)(1)). In addition, you are responsible for ensuring that not only your own employees comply with the ACAA and Part 382, but also employees of any company or entity performing functions on behalf of your carrier. (§ 382.15).
Specifically, you must ensure that your carrier does not:
• Require a passenger with a disability to accept special services, such as pre-boarding not requested by the passenger. (§ 382.11(a)(2)).
• Exclude a qualified individual with a disability from or deny that individual the benefit of air transportation or related services that are available to other individuals, even if there are separate or different services available for passengers with a disability, except as provided by Part 382. (§ 382.11(a)(3)).
• Take actions adverse to passengers with a disability if they or someone on their behalf assert their rights under the ACAA or Part 382. (§ 382.11(a)(4)).
• Limit the number of passengers with a disability who travel on a flight.
You should be aware that your carrier must modify 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. This requirement is in addition to your carrier's general nondiscrimination obligation, and is in addition to its duty to make specific accommodations under Part 382. Your carrier is not required to make modifications that would constitute an undue burden or would fundamentally alter its program. (§ 382.13(c)).
You must ensure that your carrier does not refuse to provide transportation to a passenger with a disability based on his or her disability unless specifically permitted by Part 382. (§ 382.19(a)). Your carrier must not refuse transportation to a passenger with a disability because the person's disability results in appearance or involuntary behavior that may offend, annoy, or inconvenience others. (§ 382.19(b)).
Neither the ACAA nor Part 382 requires you to disregard applicable Federal Aviation Administration (FAA) or other government safety regulations. (§ 382.7(g)).
Your carrier may refuse to provide transportation to
Your carrier may deny boarding to a passenger who wishes to use a passenger-supplied electronic respiratory assistive devices onboard the aircraft, if the passenger does not comply with the conditions for acceptance of such devices as required in Part 382. (§ 382.133(f)(3)). The specific requirements concerning the evaluation and use of passenger-supplied electronic respiratory assistive devices onboard the aircraft and the carriers who must comply with these requirements are discussed in Chapter 3, Section B, Information about the Aircraft; Chapter 5, Section D, Stowing and Treatment of Assistive Devices, and below in this appendix under the topic Services and Equipment: Passenger-supplied Electronic Respiratory Assistive Devices.
When your carrier refuses to provide transportation to a passenger on his or her originally-scheduled flight on a basis relating to the individual's disability, your carrier must provide the passenger with a written statement of the reason within 10 calendar days of the refusal of transportation. The statement must include the specific basis for your carrier's refusal to transport the passenger. (§ 382.19(d)).
Unless otherwise specified under Part 382, your carrier cannot impose charges for providing facilities, equipment, or services that it is required to provide under Part 382 to passengers with a disability. (§ 382.31).
If you are an indirect air carrier that provides facilities or services for other carriers that are covered by §§ 382.17 through .157, you must do so in a manner consistent with those regulations. (§ 382.11(b)).
You should be aware that your carrier must ensure that your contractors comply with Part 382 when providing services to the public (including airports where applicable) on behalf of your carrier just as if your carrier was performing the function itself. In addition, your carrier must include an assurance of compliance with Part 382 in its contracts with those contractors. This assurance must commit the contractor to comply with all applicable provisions of Part 382 that are performed on your carrier's behalf and require the contractor to implement directives issued by your Complaints Resolution Officials (CRO). Noncompliance with this assurance is a material breach of the contract on the contractor's behalf. (§ 382.15(a) and (b)).
If you are a U.S. carrier, you must also include an assurance of compliance in your carrier's contracts or agreements of appointment with U.S. travel agents. Your carrier is not required to include such an assurance in contracts with foreign travel agents. (§ 382.15(c)).
You must monitor a contractor's performance to ensure the contractor complies with Part 382 and you must enforce the assurances in your carrier's contracts with those contractors. It is not a defense against a Department of Transportation (DOT) enforcement action that your carrier's noncompliance with Part 382 resulted from a contractor's action or nonaction. (§ 382.15(d) and (e)).
You should be aware that all terminal facilities and services owned, leased, or controlled by your carrier at a U.S. airport, including parking and ground transportation, must be 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 certain requirements applying to places of public accommodation. (§ 382.51(a)(1)). The requirements are those of the Americans with Disabilities Act (ADA) Accessibility Guidelines (ADAAG) as incorporated in Department of Justice (DOJ) ADA regulations implementing Title III of that law.
In addition, your carrier must ensure that intra- and inter-terminal transportation systems, such as moving sidewalks, shuttle vehicles, and people movers, that are owned, leased, or controlled by your carrier, comply with the applicable DOT ADA rules (49 CFR parts 37 and 38)). (§ 382.51(a)(3)).
Your carrier must ensure that there is an accessible route (one meeting the requirements of the ADAAG) between the gate and boarding area when an accessible passenger lounge or level-entry boarding and deplaning is not available to and from an aircraft. For example, there must be an accessible path on the tarmac between the gate and the aircraft when level-entry boarding is not available. (§ 382.51(a)(2)).
Contracts and leases between your carrier and airport operators concerning the use of airport facilities must describe your airport accessibility responsibility under Part 382 and that of the airport operator under applicable section 504 and ADA rules of the DOT and DOJ. (§ 382.51(a)(4)).
Your carrier must ensure that passengers with a disability can readily use all terminal facilities your carrier owns, leases, or controls at a foreign airport. (§ 382.51(b)). This requirement applies to foreign carriers only at terminal facilities that serve flights covered by § 382.7.
Be aware that your carrier must ensure that a passenger with a disability is able to move readily through the terminal facilities to get to or from the gate and any other area from which passengers board aircraft your carrier uses for such flights. This includes the tarmac between the gate and the aircraft when an accessible passenger lounge to and from an aircraft or level-entry boarding to and deplaning from an aircraft is not available. (§ 382.51(b)(1)). Your carrier may meet this obligation through any combination of facility accessibility, auxiliary aids, equipment, the assistance of personnel, or other means consistent with ensuring the safety and dignity of the passenger. (§ 382.51(b)(2)).
You must ensure that your carrier does not subject passengers with disabilities to restrictions that do not apply to other passengers except as otherwise permitted by Part 382. Restrictions your carrier may not impose on passengers with disabilities include the following—
(1) Restricting the movements of individuals with disabilities within terminals;
(2) Requiring passengers with disabilities to remain in a holding area or other location
(3) Mandating separate treatment for individuals with disabilities except as required or permitted under Part 382 or other applicable Federal requirements;
(4) Making passengers sit on blankets on the aircraft; or
(5) Making passengers with disabilities wear badges or other special identification. (§ 382.33).
See Chapter 4, Section A, Accessibility of Terminal Facilities and Services, for more information on this topic.
You should be aware that if your carrier provides a telephone reservation and information service to the public, you must make that service available to individuals who use a text telephone (TTY) (by your own TTY, voice relay (chat screen), or other available technology) to permit individuals with hearing impairments to obtain this information. (§ 382.43(a)).
A foreign carrier must have met the TTY requirements that apply to U.S. carriers by May 13, 2010. (§ 382.43(a)(5)). However, these requirements apply only with respect to information and reservation services for flights covered by § 382.7. TTY services apply only with respect to flights for which reservation telephone calls from the United States are accepted.
The TTY requirements do not apply to carriers in any country in which the telecommunications infrastructure does not readily permit compliance. (§ 382.43(b)).
See also Chapter 3, Section E, Accommodations for Air Travelers with Hearing Impairments, and Chapter 4, Section D, Accommodations for Air Travelers with Vision or Hearing Impairments.
Your carrier's reservation and other administrative systems must ensure that when a passenger provides the required advance notice for services and accommodations, the notice is communicated, clearly and on time, to the personnel responsible for providing the requested service or accommodation. (§ 382.27(e)). See Chapter 3, Section A, Advance Notice.
You should be aware that U.S and foreign carriers (except on-demand air taxi operators) are required to permit passengers with a disability to use a passenger-supplied electronic respiratory assistive device onboard aircraft under specified conditions. (§ 382.133). Chapter 3, Section A, Advance Notice, and Section B, Information about the Aircraft, discuss advance notice requirements and the information your carrier must provide during the reservation process to a passenger with a disability who wishes to use such devices during a flight.
You should be aware that regardless of your carrier's policies with respect to pets, your carrier must permit a service animal used by a passenger with a disability to accompany the passenger on his or her flight. (§ 382.117(a)). A foreign carrier is only required to carry dogs as service animals (§ 382.117(f)) except on codesharing flights with U.S. carriers.
At a U.S. airport facility that you own, lease, or control and in cooperation with the airport operator and in consultation with local service animal training organizations, your carrier must provide animal relief areas for service animals that accompany passengers departing, connecting, or arriving at such airports on your flights. (§ 382.51(a)(5)).
See Chapter 3, Section D, Service Animals and Appendix III, Guidance Concerning Service Animals. See also, Chapter 5, Section B, Seating Assignments and Accommodations.
When ordering, purchasing, or leasing aircraft, you should consider that Part 382 requires the following features on an aircraft:
• Movable or removable aisle armrests (aircraft with 30 or more passenger seats) (§ 382.61);
• Priority space in the passenger cabin for a passenger's manual, folding wheelchair (aircraft with 100 or more passenger seats) (§ 382.67);
• Accessible lavatories (aircraft with more than one aisle in which lavatories are provided) (§ 382.63);
• On-board wheelchairs (aircraft with more than 60 passenger seats and an accessible lavatory) (§ 382.65); and
• In-flight audio-visual services (§ 382.69).
Your carrier must maintain aircraft accessibility features in proper working order. (§ 382.71(a)). In addition, any replacement or refurbishing of the aircraft cabin must not reduce existing accessibility to a level below that required under Part 382 for new aircraft. (§ 382.71(b)).
These aircraft accessibility requirements and the compliance deadlines for both U.S. and foreign carriers are discussed in detail in Chapter 5, Section, A, Aircraft Accessibility.
You should be aware that, under certain circumstances, your carrier must provide certain seating accommodations if a passenger self-identifies as a passenger with a disability and the type of seating accommodation exists on the aircraft. (§§ 382.81 and 382.85). If your carrier provides advance seat assignments, it may employ either the block seating method or the priority seating method. Each method requires some advance notice on the part of the passenger with a disability to guarantee the seating accommodation. (§§ 382.83 and 382.85).
You should select an adequate reservation system to meet your carrier's needs, ensure proper administration of the reservation system, and provide employee training with respect to the reservation system and the requirements under Part 382 for providing seating accommodations for passengers with disabilities. If your carrier wishes to use a method of providing seat assignments to passengers with disabilities other than the methods provided for in Subpart E of Part 382, it must receive written approval from DOT. (§ 382.83(d)).
If your carrier does not provide advance seat assignments, passengers who identify themselves as passengers with a disability in need of a seating accommodation must be allowed to pre-board before all other passengers, including other passengers entitled to pre-board, and select the seat assignment that best meets their needs. (§§ 382.83(c) and 382.85(b)). You should note that your carrier must offer preboarding to passengers with a disability who self-identify at the gate as needing additional time or assistance. (§ 382.93(c)).
Your carrier is not required to provide more than one seat per ticket or a seat in a class of service other than the one the passenger has purchased to accommodate a passenger with a disability in need of a seat assignment to accommodate his or her disability. (§ 382.87(f)).
Your carrier must comply with all FAA and applicable foreign government safety requirements, including exit-seating requirements, when responding to requests from passengers with a disability for seating accommodations. (§ 382.87(b)).
See Chapter 5, Section B, Seating Assignments and Accommodations, for more information on this topic.
You should be aware that all passengers including those with disabilities are subject to TSA security screening requirements at U.S. airports. Passengers at foreign airports, including those with disabilities, may be subject to security screening measures required by the law of the country where the airport is located. (§ 382.55(a)).
If your carrier wants to go beyond mandated security screening procedures, it must conduct the security screening of a passenger with a disability in the same manner as any other passenger. (§ 382.55(b)).
See Chapter 4, Section B, Security Screening for Air Travelers with a Disability.
If a passenger with a disability requests assistance getting on or off an airplane, or your carrier or the airport operator offers such assistance, and the passenger consents to the type of boarding or deplaning assistance offered, assistance must be promptly provided. The type of assistance offered must include the services of personnel and the use of wheelchairs, accessible motorized carts, ramps, or mechanical lifts as required under Part 382. (§ 382.95(a)).
You should be aware that a carrier operating aircraft with 19 or more passenger seats at U.S. commercial service airports with 10,000 or more annual enplanements must provide boarding and deplaning assistance to passengers with a disability using lifts or ramps if level-entry loading bridges or accessible passenger boarding lounges are not
• Aircraft with fewer than 19 passenger seats;
• Float planes;
• The following 19-seat capacity aircraft models that are unsuitable for boarding assistance using a lift: the Fairchild Metro, the Jetstream 31 and 32, the Beech 1900 (C and D Models), and the Embraer EMB–120; or
• Any other aircraft model the DOT determines to be unsuitable for boarding and deplaning assistance by lift; ramp, or other suitable device. (§ 382.97).
You should be aware that, although U.S. and foreign carriers must provide or ensure the provision of boarding and deplaning assistance at foreign airports on covered flights, level-entry boarding is not required. However, whenever level-entry boarding and deplaning assistance is not required, your carrier must still assist passengers with a disability in boarding and deplaning the aircraft if any such means is available. (§ 382.101).
Your carrier must train employees in the use of the boarding assistance equipment and procedures regarding the safety and dignity of passengers receiving boarding assistance. (§ 382.141(a)(1)(iii) and (b)).
See Chapter 5, Section C, Boarding and Deplaning Assistance, for more information on this topic. See also Chapter 8: Personnel Training, for additional information on employee/contractor training requirements.
The written agreement with a U.S. airport must specify that accessible boarding and deplaning for passengers with a disability will actually be provided before May 13, 2011. (§ 382.99(c)).
All carriers and airport operators are jointly and severally (individually) responsible to implement the agreements completely and in a timely manner. You must make the agreements available to DOT upon request. (§ 382.99(f) and (g)).
You should be aware that at foreign airports where the airport operator has the responsibility for boarding, deplaning, or connecting assistance, U.S. and foreign carriers can rely on the airport operator's services to meet Subpart G of Part 382. (§ 382.105). However, if the services provided by the airport operator are not sufficient to meet these requirements, your carrier must supplement the airport operator's services. If your carrier believes it is legally prohibited from supplementing the airport operator's services, it may apply for a conflict of law waiver under § 382.9.
Your carrier must allow passengers with a disability to stow the following mobility aids and assistive devices inside the aircraft cabin provided they can be stowed consistent with FAA, PHMSA, TSA or applicable foreign government requirements concerning safety, security, and hazardous materials:
• Manual wheelchairs, including folding or collapsible wheelchairs;
• Other mobility aids, such as canes, crutches and walkers; and
• Other assistive devices for stowage or use in the cabin, such as prescription medications and the devices needed to administer them; vision-enhancing devices; and portable oxygen concentrators (POC), ventilators, and respirators that use nonspillable batteries if they comply with applicable safety, security and hazardous materials rules. (§ 382.121(a)).
The requirements concerning the in-flight use of passenger-supplied electronic devices that assist with respiration are discussed later in this appendix. (§ 382.133).
Your carrier is not required to permit passengers to bring electric wheelchairs into the aircraft cabin.
You should be aware that certain aircraft must have priority space in the cabin to stow at least one typical adult-sized folding, collapsible, or break-down manual wheelchair. (§ 382.67(a)). See Chapter 5, Section A, Aircraft Accessibility, for more information about this requirement, including the aircraft to which it applies.
Your carrier must not count mobility aids and other assistive devices brought on board the aircraft by a passenger with a disability toward the limit for passenger carry-on baggage. (§ 382.121(b)).
When required, on-board wheelchairs must be equipped with specific features and be designed to be compatible with the maneuvering space, aisle width, and seat height of the aircraft on which they are to be used, and to easily be pushed, pulled, and turned in the cabin environment by carrier personnel. (§ 382.65)(c)). See Chapter 5, Section A, Aircraft Accessibility, for more information about this requirement, including the aircraft to which it applies.
Know that your carrier must stow mobility aids, including wheelchairs, and other assistive devices in the baggage compartment with priority over other cargo and baggage 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. (§ 382.125(a) and (b)). Except as otherwise provided in Part 382, your carrier may not charge for facilities, equipment, or services required under Part 382 to be provided to passengers with a disability. Therefore, your carrier cannot charge for a wheelchair or other mobility or assistive device that exceeds the weight limit on checked baggage. (§ 382.31(a)) and 382.121(b).
However, DOT recognizes there may be some circumstances in which it is not practical to stow an electric wheelchair or some other assistive device in the baggage compartment, and you are not required to do so if it would constitute an undue burden. (§ 382.13(c)). Only devices that fit and meet all applicable hazardous materials and other safety regulations need be carried.
When a passenger's wheelchair, other mobility aids, or other assistive devices cannot be stowed in the cabin as carry-on baggage, a carrier must ensure these items are timely checked and returned as close as possible to the door of the aircraft (unless the passenger requests the items be returned at the baggage claim area) so that the passenger with a disability can use his or her own equipment, where possible, consistent with Federal regulations concerning transportation security and the transportation of hazardous materials. (§ 382.125(c)(1) and (c)(2)).
To ensure the timely return of a passenger's wheelchair, other mobility aids or other assistive devices, they must be among the first items retrieved from the baggage compartment. (§ 382.125(d)).
A carrier must accept a passenger's battery-powered wheelchair or other similar mobility device, including the battery, as checked baggage unless baggage compartment size and aircraft airworthiness considerations prohibit it. (§ 382.127(a)).
Check-in and advance notice requirements (for passengers with battery-powered mobility devices)
Your carrier must not require that the battery be removed and separately packaged if the—
• Manufacturer has labeled the battery on a wheelchair or other similar mobility device as nonspillable, or
• For a spillable battery, the battery-powered wheelchair can be loaded, stored, secured, and unloaded in an upright position.
However, your carrier must remove and package separately any battery that (1) is inadequately secured to a wheelchair or (2) if the battery is spillable and it is contained in a wheelchair that cannot be loaded, stowed, secured and unloaded in an upright position consistent with DOT hazardous materials regulations. A damaged or leaking battery should not be transported. (§ 382.127(c)).
Finally, your carrier must not disconnect the battery on a wheelchair or other mobility device if the battery is nonspillable and it is completely enclosed within a case or compartment integral to the design of the device unless required to do so under FAA, PHMSA, or applicable foreign government safety regulations. (§ 382.127(e)).
When it is necessary to detach a battery from a wheelchair or other mobility device, a carrier must provide packaging for the battery, if requested, and package the battery consistent with appropriate hazardous materials regulations. However, your carrier is not required to use packaging materials or devices you do not normally use for this purpose. (§ 382.127(d)). Your carrier must not charge for such packaging. (§ 382.31(a)). Your carrier also must not drain batteries. (§ 382.127(f)).
You should be aware that, subject to the conditions below, your carrier must permit a passenger with a disability to use the following passenger-supplied electronic respiratory assistive devices in the passenger cabin during
• FAA-approved POC,
• Continuous positive airway pressure (CPAP) machines;
• Respirators; and
• Ventilators.
Your carrier must allow such devices to be used in the cabin during air transportation if they—
• Meet applicable FAA requirements for medical portable electronic devices,
• Display a manufacturer's label indicating such compliance, and
• Can be stowed and used in the cabin consistent with applicable TSA, FAA, and PHMSA regulations. (§ 382.133(a)(1) and (a)(2)).
A foreign carrier must permit passengers with a disability to use the electronic respiratory assistive devices listed above (a POC of a kind equivalent to an FAA-approved POC for U.S. carrier, CPAP machine, respirator, or ventilator,) in the passenger cabin of aircraft originally designed with a maximum passenger seating capacity of more than 19 seats during operations to, from or within the United States. (§ 382.133(b)).
Your carrier must permit onboard use of such devices if they—
• Meet requirements for medical portable electronic devices established by your foreign government (or if no such requirements exist you may apply applicable FAA requirements for U.S. carriers),
• Have a manufacturer's label indicating such compliance, and
• The device can be stowed and used in the cabin consistent with TSA, FAA and PHMSA regulations and the safety and security regulations of your foreign government. (§ 382.133(b)(1) through (b)(3)).
For more information on this topic see Chapter 5, Section E, Services and Information Provided in the Cabin. For a discussion about the specific information your carrier must provide during the reservation process to a passenger with a disability who wishes to use a passenger-supplied electronic respiratory assistive device during a flight see Chapter 3, Section B, Information about the Aircraft.
On domestic U.S. flights the baggage liability limits (14 CFR part 254, Domestic Baggage Liability Limits) do not apply to loss, damage, or delay concerning wheelchairs, other mobility aids, or other assistive devices. Rather, the basis for calculating the compensation for lost, damaged, or delayed mobility aids, including wheelchairs, or other assistive devices must be the original price of the device. (§ 382.131).
Baggage liability limits for international travel, including flights of U.S. carriers, are governed by the Montreal Convention and other international agreements instead of 14 CFR part 254.
Your carrier also must not require a passenger with a disability to sign a waiver of liability for damage to or loss of a wheelchair or other assistive device, although your personnel may make notes about preexisting damage or conditions of these items to the same extent you do this for other checked baggage. (§ 382.35(b)).
Your carrier must ensure that passengers who identify themselves as persons needing visual or hearing assistance receive
Foreign carriers must make the same information available to passengers who identify themselves as needing visual or hearing assistance at each gate, ticketing area, and customer service desk that you own, lease, or control at any U.S. airport. At foreign airports, a foreign carrier 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 United States. (§ 382.53(a)(2)).
See Chapter 4, Section D, Accommodations for Air Travelers with Vision or Hearing Impairments.
You should be aware that your carrier must ensure that passengers with a disability who identify themselves as needing visual or hearing assistance have
In addition, if your carrier uses
If your carrier presents safety briefings to passengers using audio-visual displays, the presentation must be accessible to passengers with hearing impairments. (§ 382.115(e)).
See Chapter 5, Section E, Services and Information Provided in the Cabin and Section F, Safety Briefings.
Carriers providing service using aircraft with 19 or more passenger seats must designate one or more CROs to handle disability-related complaints. (§ 382.151(a)). A U.S. carrier must make a CRO available at each airport it serves during all times it operates at that airport. A foreign carrier must make a CRO available at each airport serving flights it operates that begin or end at a U.S. airport. 382.151(b).
You should be aware that your carrier must respond to both oral and written complaints from passengers with a disability.
• If your carrier agrees that a violation has occurred, it must provide a written statement to the complainant summarizing the facts and stating what steps, if any, your carrier proposes to take in response to the violation. (§ 382.155(d)(1)).
• If your carrier denies that a violation occurred, the written response must include a summary of the facts and your carrier's reasons under Part 382 for making its determination. (§ 382.155(d)(2)).
• Information about the complainant's right to pursue DOT enforcement action under Part 382. (§ 382.155(d)(3)).
A carrier covered by Part 382 that conducts passenger operations with at least one aircraft having a designated seating capacity of more than 60 passengers on flights to, from, or in the United States must categorize, record, and report annually to DOT the written disability-related complaints received by your carrier. (§ 382.157). This requirement applies to foreign carriers only with respect to disability-related complaints associated with any flight segment beginning or ending in the United States. (§ 382.157(b)).
Your carrier must have a system for categorizing and recording disability-related complaints by the passenger's type of disability and the nature of the passenger's complaint. (§ 382.157(c)). In addition, your carrier must submit an annual report on the last Monday in January of every year summarizing the disability-related complaints received during the previous year. This annual report must be submitted online using the form specified at the Web site address
The recording and reporting responsibilities discussed above also apply to carriers in a codeshare relationship. (§ 382.157(f)).
See Chapter 6: Assisting Air Travelers with Disabilities with Their Complaints.
You should be aware that proper training of carrier personnel is critical to compliance with the ACAA and Part 382. The training requirements in Part 382 vary with aircraft size. A carrier operating aircraft with 19 or more passenger seats must train all personnel who deal with the traveling public, as appropriate to the duties of each employee, to proficiency in certain specific areas such as applicable regulations and carrier procedures on providing air travel for passengers with disabilities, and provide training in other areas such as appropriate communications as outlined in Part 382. (§ 382.141(a)). Your carrier must provide, or ensure that your contractor's provide, training to contract employees who deal directly with the traveling public that is tailored to the employees' functions. (§ 382.141(a)(6)). Your carrier must consult with organizations representing persons with disabilities in your home country when developing your training programs and your policies and procedures. (§ 382.141(a)(4)).
A carrier operating aircraft with fewer than 19 passenger seats must provide training for its flight crewmembers and appropriate personnel to ensure that those personnel are familiar with applicable regulations, carrier procedures, and appropriate communication in providing air travel to passengers with a disability and that they comply with Part 382. (§ 382.141(b)).
Chapter 8: Personnel Training, contains a detailed discussion of carrier personnel and contractor training program requirements, including refresher training, as well as the recordkeeping requirements and schedule associated with this training.
ORDER: 8400.10
APPENDIX: 4
BULLETIN TYPE: Flight Standards Information Bulletin for Air Transportation (FSAT)
BULLETIN NUMBER: FSAT 04–01A
BULLETIN TITLE: Location and Placement of Service Animals on Aircraft Engaged in Public Air Transportation.
EFFECTIVE DATE: 6/24/04
AMENDED DATE: 7/23/04
TRACKING: N/A
APPLICABILITY: This bulletin applies to operations under part 121 and 135.
This amended bulletin adds further guidance about “unusual service animals” in paragraphs 4 D and E.
1. PURPOSE. This bulletin clarifies the Federal Aviation Administration (FAA) Flight Standards Service's safety and enforcement policy regarding the location and placement of service animals, as defined by the Department of Transportation (DOT) in Title 14 of the Code of Federal Regulations (14 CFR) part 382, Nondiscrimination on the Basis of Disability in Air Travel, for all aircraft operated under 14 CFR parts 121 and 135. This bulletin supplements information contained in Federal Aviation Administration (FAA) Advisory Circular (AC) 120–32, Air Transportation of Handicapped Persons.
2. BACKGROUND.
A. As early as 1977, the FAA recognized the need for guidance regarding the placement and location of service animals on aircraft. AC 120–32 discusses the placement of “guide dogs” and states that “They should be seated in the first row seat of a section next to the bulkhead where there is more room for the dog”. This guidance was issued well before DOT Part 382 was published in 1990. Collaboration among the FAA, the DOT and members of the disabled community during the development of DOT Part 382 ensured that its requirements would be consistent with the AC previously published by the FAA.
B. Flight Standards has recently received questions from air carriers, aviation safety inspectors, airline industry representatives and people with service animals regarding compliance with DOT Part 382 Nondiscrimination on the Basis of Disability in Air Travel as it pertains to the location and placement of service animals on aircraft engaged in public air transportation.
C. On May 9, 2003, DOT issued revised guidance regarding the carriage of service animals affecting all transportation modes, including aviation. If the FAA believes that additional FAA rulemaking or guidance is necessary, the FAA will undertake them, as appropriate. One example of this type of activity is the issuance of this FSAT, which contains Flight Standards' safety and enforcement policy regarding the placement and location of service animals accompanying persons with disabilities on aircraft.
3. SAFETY REVIEW.
A. A review of all available reports regarding commercial aircraft accidents with at least one fatality, in operations under part 121, that occurred between 1/1/1990 and 1/1/2004, contained in the National Transportation Safety Board (NTSB) reporting system, found no references to either a service animal's presence on the aircraft or its placement or location on the aircraft, to have negatively impacted an aircraft evacuation or a particular individual's emergency egress from an aircraft.
B. A review of NTSB Safety Report “Survivability of Accidents Involving Part 121 U.S. Air Carrier Operations, 1983 Through 2000(NTSB/SR–01/01), also found no references to either a service animal's presence on the aircraft or its placement or
C. Similarly, a review of the NTSB Safety Study, “Emergency Evacuation of Commercial Airplanes (NTSB/SS–00/01),” found no references to either a service animal's presence on the aircraft or their placement or location on the aircraft, to have negatively impacted an aircraft evacuation or a particular individual's emergency egress from an aircraft.
4. GUIDANCE. The variety of service animals, as well as the services these animals perform, has certainly become larger in scope since the FAA's policy was first published in 1977. However, after a comprehensive review of available NTSB data, the FAA sees no safety issue that compels the FAA to change its long standing safety and enforcement policy regarding placement and location of service animals on aircraft. Therefore, consistent with DOT part 382 requirements:
A. Placement. A service animal may be placed at the feet of a person with a disability at any bulkhead seat or in any other seat as long as when the animal is seated/placed/curled up on the floor, no part of the animal extends into the main aisle(s) of the aircraft, the service animal is not at an emergency exit seat and the service animal does not extend into the foot space of another passenger seated nearby who does not wish to share foot space with the service animal.
B. Placement of lap held service animals. Lap held service animals (such as a monkey used by a person with mobility impairments) are discussed in the preamble to DOT Part 382 Nondiscrimination on the Basis of Disability in Air Travel, issued in 1990 (FR Vol. 55, No. 44 361990, pg. 8042). They are service animals that need to be in a person's lap to perform a service for that person. This service animal may sit in that person's lap for all phases of flight including ground movement, take off and landing provided that the service animal is no larger than a lap-held child (a child who has not reached his or her second birthday).
C. Documentation. One type of service animal is an animal used for emotional support. The presence of such an animal is found to be medically necessary for the passenger traveling with the animal. Under DOT rules, and outlined clearly in DOT Guidance Concerning Service Animals, published on May 9, 2003, an air carrier may require documentation regarding the medical need for the presence of an emotional support animal as a condition of permitting the animal to accompany the passenger in the cabin as a service animal.
D. Unusual Service Animals. On May 9, 2003, the Department of Transportation issued Guidance Concerning Service Animals in Air Transportation. Unusual service animals pose unavoidable safety and/or public health concerns and airlines are not required to transport them. Snakes, other reptiles, ferrets, rodents, and spiders certainly fall within this category of animals. The release of such an animal in the aircraft cabin could result in a direct threat to the health or safety of passengers and crewmembers. For these reasons, airlines are not required to transport these types of service animals in the cabin, and carriage in the cargo hold will be in accordance with company policies on the carriage of animals generally.
E. Other unusual animals such as miniature horses, pigs and monkeys should be evaluated on a case-by-case basis. Factors to consider are the animal's size, weight, state and foreign country restrictions, and whether or not the animal would pose a direct threat to the health or safety of others, or cause a fundamental alteration (significant disruption) in the cabin service. If none of these factors apply, the animal may accompany the passenger in the cabin. In most other situations, the animal should be carried in the cargo hold in accordance with company policy.
F. This safety and enforcement policy has been coordinated with AGC–220, Operations and Air Traffic Law Branch.
5. REFERENCES.
A. 14 CFR Part 382, Nondiscrimination on the Basis of Disability in Air Travel, as amended
B. DOT Guidance Concerning Service Animals, May 9, 2003
C. Advisory Circular 120–32, Air Transportation of Handicapped Persons
D. DOT Part 382 Nondiscrimination on the Basis of Disability in Air Travel, including preamble, issued 1990, (FR Vol 55, No. 44 361990, pg. 8042)
E. NTSB Accident Database & Synopses
F. NTSB Safety Report (NTSB/SR–01/01) “Survivability of Accidents Involving Part 121 U.S. Air Carrier Operations, 1983 Through 2000”
G. NTSB Safety Study (NTSB/SS–00/01), “Emergency Evacuation of Commercial Airplanes”
6. ACTION.
A. Each Principal Operations Inspector (POI) and Aviation Safety Inspector—Cabin Safety should make the information contained in this FSAT known to the director of safety or the director of operations, respectively, of each assigned operator under part 121 or part 135.
B. This information may be conveyed by hard copy of this FSAT or by referring the director of safety or the director of operations, as applicable, to the following FAA public web site:
7. PROGRAM TRACKING AND REPORTING SUBSYSTEM (PTRS). Document the conveyance of the information contained in this FSAT for each air carrier affected:
A. Use PTRS code 1385.
B. Enter “FST0401A” in the National Use Field (without the quotes).
C. Once the POI has accomplished the ACTION in paragraph 6, close out the PTRS.
8. INQUIRIES. This bulletin was developed by AFS–200. Any questions concerning this bulletin should be directed to Nancy Claussen, Flight Standards Service, at (602) 379–4864, ext. 268.
9. EXPIRATION. This bulletin will remain in effect until further notice.
Federal Energy Regulatory Commission, DOE.
Notice of proposed rulemaking.
Under section 215 of the Federal Power Act, the Federal Energy Regulatory Commission (Commission) proposes to approve a modification to the currently-effective definition of “bulk electric system” developed by the North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization. The revised definition of “bulk electric system” removes language allowing for regional discretion in the currently-effective bulk electric system definition. The revised definition establishes a bright-line threshold that includes all facilities operated at or above 100 kV. The modified definition also identifies specific categories of facilities and configurations as inclusions and exclusions to provide clarity in the definition of “bulk electric system.”
The Commission also proposes to approve: (1) NERC's contemporaneously filed revisions to its Rules of Procedure, which creates an exception procedure to add elements to, or remove elements from, the definition of “bulk electric system” on a case-by-case basis; (2) NERC's proposed form entitled “Detailed Information To Support an Exception Request” that entities will use to support requests for exception from the “bulk electric system” definition; and (3) NERC's proposed implementation plan for the revised “bulk electric system” definition.
Comments are due September 4, 2012.
Comments, identified by docket number, may be filed in the following ways:
•
•
1. Under section 215 of the Federal Power Act (FPA),
(a) Removes the basis for regional discretion in the current bulk electric system definition;
(b) Establishes a bright-line threshold so that the “bulk electric system” will be facilities operated at 100 kV or higher, if they are Transmission Elements, or connected at 100 kV or higher, if they are Real Power or Reactive Power resources; and
(c) Contains specific inclusions (I1–I5) and exclusions (E1–E4) to provide clarity in the definition that the facilities described in these configurations are included in or excluded from the “bulk electric system.”
2. The Commission also proposes to approve:
(a) NERC's contemporaneously filed revisions to its Rules of Procedure, which creates an exception procedure to add elements to, and remove elements from the definition of “bulk electric system” on a case-by-case basis;
(b) NERC's proposed form entitled “Detailed Information to Support an Exception Request” that entities will use to support requests for exceptions from the “bulk electric system” definition; and
(c) NERC's proposed implementation plan for the revised “bulk electric system” definition.
3. NERC's proposed revision to the definition of “bulk electric system” removes regional discretion and establishes a 100 kV bright-line threshold. Further, we believe that NERC's proposal offers additional clarity to the definition of bulk electric system by creating specific inclusions and exclusions within the definition, which provide granularity with regard to common types of facilities and facility configurations and whether they are part of the bulk electric system.
4. We believe that the proposed “core” definition, including the inclusions and the exclusions, as well as the exception process should produce consistency in identifying bulk electric system elements across the reliability regions. In addition, it appears that NERC's proposed exception process to add elements to, and remove elements from, the definition of the bulk electric system adds transparency and uniformity to the process.
5. Although it is rare that the Commission would address Rules of Procedure changes in a rulemaking docket, we will do so in this instance because of the interplay between NERC's modified bulk electric system definition and the newly developed case-specific exception process set forth in NERC's proposed Rules of Procedure change. While we propose to approve NERC's petitions, we also seek comment from NERC and interested parties on certain aspects of NERC's petitions to understand the application of the proposed “core” definition, including the application of the inclusions and exclusions, and the proposed exception process to ensure consistent implementation.
6. Section 215 of the FPA requires a Commission-certified ERO to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval. Once approved, the Reliability Standards may be enforced by the ERO, subject to Commission oversight, or by the Commission independently.
7. On March 16, 2007, in Order No. 693, pursuant to section 215(d) of the FPA, the Commission approved 83 of 107 proposed Reliability Standards, six of the eight proposed regional differences, and the NERC Glossary, which includes NERC's definition of bulk electric system.
As defined by the Regional Reliability Organization, the electrical generation resources, transmission lines, interconnections with neighboring systems, and associated equipment, generally operated at voltages of 100 kV or higher. Radial transmission facilities serving only load with one transmission source are generally not included in this definition.
8. In approving NERC's definition of bulk electric system, the Commission stated that “at least for an initial period, the Commission will rely on the NERC definition of bulk electric system and NERC's registration process to provide as much certainty as possible regarding the applicability to and the responsibility of specific entities to comply with the Reliability Standards.”
9. On November 18, 2010, the Commission revisited the definition of “bulk electric system” in Order No. 743, which directed NERC, through NERC's Reliability Standards Development Process, to revise its definition of the term “bulk electric system” to ensure that the definition encompasses all facilities necessary for operating an interconnected transmission network. The Commission also directed NERC to address the Commission's technical and policy concerns. Among the concerns were inconsistency in application of the definition and a lack of oversight and exclusion of facilities from the bulk electric system that are required for the operation of the interconnected transmission network. In Order No. 743, the Commission stated that the best way to address these concerns is to eliminate the Regional Entity discretion to define bulk electric system without NERC or Commission review, maintain a bright-line threshold that includes all facilities operated at or above 100 kV except defined radial facilities, and adopt an exemption process and criteria for removing from the bulk electric system facilities that are not necessary for operating the interconnected transmission network.
10. In Order No. 743–A the Commission reaffirmed its determinations in Order No. 743. In addition, the Commission clarified that the issue the Commission directed NERC to rectify was the discretion the Regional Entities have under the current definition to define the bulk electric system in their regions without any oversight from the Commission or NERC.
11. The Commission further clarified that the statement in Order No. 743, “determining where the line between `transmission' and `local distribution' lies * * * should be part of the exemption process the ERO develops” was intended to grant discretion to NERC, as the entity with technical expertise, to develop criteria to determine how to differentiate between local distribution and transmission facilities in an objective, consistent, and transparent manner.
12. On January 25, 2012, NERC submitted two petitions pursuant to the directives in Order No. 743: (1) NERC's proposed revision to the definition of “bulk electric system” which includes provisions to include and exclude
13. In Docket No. RM12–06–000, NERC filed a petition requesting Commission approval of a revised definition of “bulk electric system” in the NERC Glossary (NERC BES Petition). As explained below, the definition consists of a “core” definition and a list of facilities configurations that will be included or excluded from the “core” definition. NERC also requests approval of the proposed “Detailed Information to Support an Exception Request” form as satisfying the requirement in Order No. 743 that NERC develop “technical criteria” to address exception requests.
14. NERC proposes the following “core” definition of bulk electric system:
Unless modified by the [inclusion and exclusion] lists shown below, all Transmission Elements operated at 100 kV or higher and Real Power and Reactive Power resources connected at 100 kV or higher. This does not include facilities used in the local distribution of electric energy.
15. NERC states that the core definition eliminates regional discretion and establishes a clear, bright-line based on a 100 kV threshold. NERC states that the core definition places within the bulk electric system “all Transmission Elements operated at 100 kV or above, and all Real Power and Reactive Power resources connected at 100 kV or above,” while establishing an express exclusion for facilities used in the local distribution of electrical energy.
16. NERC also explains that, while the current definition includes the phrase “associated equipment,” and the revised definition does not, “associated equipment” is included in the revised definition by the use of the term “Transmission Elements” included in the revised core definition. NERC states that the NERC Glossary defines “Transmission” as “[a]n interconnected group of lines and associated equipment for the movement or transfer of electric energy between points of supply and points at which it is transformed for delivery to customers or is delivered to other electric systems;”
17. NERC states that the revised definition satisfies the Commission's directives and addresses the technical and policy concerns expressed in Order Nos. 743 and 743–A. According to NERC, the explicit basis of authority for Regional Entity discretion in the current definition is eliminated. In addition, NERC states that the core definition establishes specific threshold criteria rather than general guidelines of facilities operated or connected at or above 100 kV. Further, NERC states that the core definition in combination with the specific inclusions and exclusions provides a detailed set of criteria that can be applied on a uniform, consistent basis across all regions, eliminates ambiguity, and eliminates the potential for discretion and subjectivity in determining what facilities are part of or not part of the bulk electric system.
18. NERC states that, as part of the revised definition, NERC developed inclusions and exclusions to eliminate discretion in application of the revised “bulk electric system” definition. NERC states that the inclusions address five specific facilities configurations to provide clarity that the facilities described in these configurations are included in the bulk electric system (unless the facilities are excluded based on one of the specific exclusions).
Inclusions:
I1—Transformers with the primary terminal and at least one secondary terminal operated at 100 kV or higher unless excluded under Exclusion E1 or E3.
I2—Generating resource(s) with gross individual nameplate rating greater than 20 MVA or gross plant/facility aggregate nameplate rating greater than 75 MVA including the generator terminals through the high-side of the step-up transformer(s) connected at a voltage of 100 kV or above.
I3—Blackstart Resources identified in the Transmission Operator's restoration plan.
I4—Dispersed power producing resources with aggregate capacity greater than 75 MVA (gross aggregate nameplate rating) utilizing a system designed primarily for aggregating capacity, connected at a common point at a voltage of 100 kV or above.
I5—Static or dynamic devices (excluding generators) dedicated to supplying or absorbing Reactive Power that are connected at 100 kV or higher, or through a dedicated transformer with a high-side voltage of 100 kV or higher, or through a transformer that is designated in Inclusion I1.
19. NERC explains that the facilities described in inclusions I1, I2, I4, and I5 are each operated or connected at or above 100 kV. NERC states that inclusion I3 encompasses blackstart resources identified in a transmission operator's restoration plan, which are necessary for the operation of the interconnection transmission system and should be included in the bulk electric system regardless of their size (MVA) or the voltage at which they are connected. NERC states that the inclusions will further reduce the potential for the exercise of discretion and subjectivity to exclude such configurations from the bulk electric system.
20. According to NERC, inclusion I1 includes transformers with the primary terminal and at least one secondary terminal operated at 100 kV or higher unless excluded under exclusion E1 or E3 (discussed later). NERC states that
21. Inclusion I2 addresses generating resources with a gross individual nameplate rating greater than 20 MVA or a gross plant/facility aggregate nameplate rating greater than 75 MVA. According to NERC, inclusion I2 includes in the bulk electric system the generator terminals through the high-side of the step-up transformers connected at a voltage of 100 kV or above. NERC states that this inclusion mirrors the text of the NERC Registry Criteria (Appendix 5B of the NERC Rules of Procedure) for generating units.
22. As noted above, inclusion I3 includes blackstart resources identified in the transmission operator's restoration plan in the bulk electric system.
23. Inclusion I4 includes dispersed power producing resources with gross aggregate capacity nameplate rating greater than 75 MVA which utilize a system designed primarily for aggregating capacity, connected at a common point at a voltage of 100 kV or above. NERC states that this inclusion was added to accommodate the effects of variable generation on the bulk electric system.
24. Inclusion I5 addresses static or dynamic devices (excluding generators) dedicated to supplying or absorbing reactive power that are connected at 100 kV or higher, or through a dedicated transformer with a high-side voltage of 100 kV or higher, or through a transformer that is designated in inclusion I1. NERC states that this inclusion is the technical equivalent of inclusion I2 for reactive power devices.
25. NERC states that the four exclusions identify facilities configurations that should not be included in the bulk electric system.
Exclusions:
E1—Radial systems: A group of contiguous transmission Elements that emanates from a single point of connection of 100 kV or higher and:
(a) Only serves Load. Or,
(b) Only includes generation resources, not identified in Inclusion I3, with an aggregate capacity less than or equal to 75 MVA (gross nameplate rating). Or,
(c) Where the radial system serves Load and includes generation resources, not identified in Inclusion I3, with an aggregate capacity of non-retail generation less than or equal to 75 MVA (gross nameplate rating).
E2—A generating unit or multiple generating units on the customer's side of the retail meter that serve all or part of the retail Load with electric energy if: (i) The net capacity provided to the BES does not exceed 75 MVA, and (ii) standby, back-up, and maintenance power services are provided to the generating unit or multiple generating units or to the retail Load by a Balancing Authority, or provided pursuant to a binding obligation with a Generator Owner or Generator Operator, or under terms approved by the applicable regulatory authority.
E3—Local networks (LN): A group of contiguous transmission Elements operated at or above 100 kV but less than 300 kV that distribute power to Load rather than transfer bulk-power across the interconnected system. LN's emanate from multiple points of connection at 100 kV or higher to improve the level of service to retail customer Load and not to accommodate bulk-power transfer across the interconnected system. The LN is characterized by all of the following:
(a)
(b) Power flows only into the LN and the LN does not transfer energy originating outside the LN for delivery through the LN; and
(c)
E4—Reactive Power devices owned and operated by the retail customer solely for its own use.
26. Exclusion E1 provides detailed criteria for determining which facilities are properly excluded from the bulk electric system as radial facilities, which NERC states is intended to enhance the clarity of the radial facilities exclusion. NERC explains that criteria “b” and “c” of exclusion E1 identify the maximum amount of generation allowed on the radial facility while still qualifying for the radial facilities exclusion (aggregate capacity less than or equal to 75 MVA). NERC indicates that this exclusion addresses the circumstances of small utilities (including municipal utilities and cooperatives). According to NERC, “the maximum amount of generation allowed on the radial facility is sufficient to allow small utilities to continue to provide service options that support reliability of the interconnected transmission network, while not operating to exclude larger generators from the [bulk electric system].”
27. With respect to the “normally open switch” note at the end of exclusion E1, NERC explains that this note is intended to address a common network configuration “in which two separate sets of facilities that, each standing alone, would be recognized as radial systems and not included in the bulk electric system are connected by a `normally open switch'—i.e., a switch that is set to the open position—for reliability purposes.”
28. NERC states that subjecting two sets of radial facilities that are normally unconnected to each other because the switch between them is open to the Reliability Standards during the limited time periods when the switch is closed for maintenance-related or outage-related circumstances would be fundamentally impractical and unworkable (from both the entity's perspective and the ERO's perspective).
29. According to NERC, exclusion E2 excludes a generating unit or units on the customer's side of the retail meter that serves all or part of the retail load subject to two conditions. First, the net capacity provided by the generating unit does not exceed 75 MVA. Second, standby, back-up, and maintenance power services are provided to the generating unit or the retail load by a balancing authority, or pursuant to a binding obligation with a generator owner or generator operator, or under terms approved by the applicable regulatory authority. NERC states that these generating units are not necessary for the operation of the interconnected transmission network and, therefore, do not need to be included in the definition because they serve a single retail load, provide a limited amount of capacity to the bulk electric system, and are fully backed up by other resources.
30. NERC explains that exclusion E3, the “local network” exclusion, encompasses local networks of transmission elements operated at between 100 kV and 300 kV “that distribute power to load rather than transfer bulk power across the interconnected system.”
31. Exclusion E4 encompasses reactive power devices owned and operated by a retail customer solely for its own use. NERC explains that exclusion E4 is the technical equivalent of exclusion E2 for reactive power devices.
32. In Order No. 743, the Commission directed NERC to develop a set of technical criteria to use in addressing requests for exceptions to the definition of the bulk electric system.
33. The Detailed Information Form specifies that all exception requests include a one-line breaker diagram identifying the element for which the exception is requested and data and studies to support the submittal. NERC states that the studies should be based on an Interconnection-wide base case to reflect the electrical characteristics and system topology. The studies should clearly document all assumptions used, address key performance measures of bulk electric system reliability through steady state power flow, and contain a transient stability analysis as necessary to support the entity's request. NERC notes that the applicant remains responsible for providing sufficient information and argument to justify the exception request.
34. According to NERC, the information that an applicant may submit in support of an exception request is not limited to the Detailed Information Form. Rather, an applicant is expected to submit all relevant data, studies and other information that supports the exception request. Further, the Regional Entity and NERC may ask an applicant to provide other data and studies in addition to the Detailed Information Form.
35. NERC requests that the revised definition “should be effective on the first day of the second calendar quarter after receiving applicable regulatory approval, or, in those jurisdictions where no regulatory approval is required, the revised [bulk electric system definition] should go into effect on the first day of the second calendar quarter after its adoption by the NERC Board.
36. NERC also requests that compliance obligations for all elements newly-identified to be included in the bulk electric system based on the revised definition should begin twenty-four months after the applicable effective date of the revised definition. NERC notes that the Commission stated
37. In Docket No. RM12–7–000, NERC filed proposed revisions to its Rules of Procedure for the purpose of adopting a procedure for entities to obtain an exception from the definition of bulk electric system (NERC ROP Petition). NERC states that the proposed exception process, which is a mechanism to add elements to, and remove elements from, the bulk electric system, addresses the concerns raised in Order No. 743 with respect to the current processes for determining what facilities are part of the bulk electric system and what facilities are not.
38. NERC states that proposed section 509 establishes a procedure, which is contained in a new Appendix 5C to the Rules of Procedure, for an entity to request that an element that falls outside of the definition of the bulk electric system be treated as part of the bulk electric system and for an entity to request that an element that falls within the definition of the bulk electric system not be treated as part of the bulk electric system:
An Element is considered to be (or not be) part of the Bulk Electric System by applying the BES Definition to the Element (including the inclusions and exclusions set forth therein). Appendix 5C sets forth the procedures by which (i) an entity may request a determination that an Element that falls within the definition of Bulk Electric System should be exempted from being considered a part of the Bulk Electric System, or (ii) an entity may request that an Element that falls outside the definition of the Bulk Electric System should be considered a part of the Bulk Electric System.
NERC explains that the exception process is “not intended to be used to resolve ambiguous situations,” i.e. the exception process is only available after an initial determination has been made regarding whether an element is part of or not part of the bulk electric system through the application of the definition to the element.
39. NERC explains that proposed Appendix 5C sets forth the detailed procedures for obtaining an exception to include an element in, or remove an element from, the bulk electric system.
40. According to NERC, if the Regional Entity denies the exception request based on the initial screening but the applicant believes the exception request is proper and complete, the applicant may appeal the rejection directly to NERC.
41. NERC explains that the proposed exception process will allow NERC to provide consistent determinations on exception requests submitted from different regions involving the same or similar facts and circumstances, and will allow NERC to take into account the aggregate impact on the bulk electric system of approving or disapproving all of the exception requests. Finally, the exception process includes provisions for reporting information that may alter the status of an approved exception, verifying whether an exception continues to be warranted, and revoking an exception that is no longer warranted.
42. The proposed exception process includes provisions for obtaining exceptions both for inclusion in and exclusion from the bulk electric system. NERC identifies the entities that are eligible to submit exception requests. Specifically, the owner of an element may submit a request to include the element in, or remove it from, the bulk
43. Finally, NERC states that an exception request will be subject to review to verify continuing justification for the exception.
44. NERC states that the exception process establishes a process that (1) Balances the need for effective and efficient administration with due process and clarity of expectations; (2) promotes consistency in determinations and eliminates Regional discretion by having all decisions on Exception Requests made at NERC; (3) provides for involvement of persons with applicable technical expertise in making decisions on ception Requests; and (4) should alleviate concerns about a “one-size-fits-all” approach.
45. NERC has also proposed to modify its Rules of Procedure to add a procedure for an entity to challenge the NERC decision on an exception request. The entity must file the challenge with the Compliance Committee within 30 days of the date of the NERC decision. The Compliance Committee must issue its decision within 90 days after the submission of the challenge, which the Compliance Committee may extend. NERC states that the Compliance Committee decision will be the final NERC decision on the exception request. In addition, the entity may appeal the final NERC decision to the Commission within 30 days following the date of the Compliance Committee`s decision, or within such time period as the Commission's legal authority permits.
46. In Order No. 743, the Commission stated that NERC should maintain a list of exempted facilities that can be made available to the Commission upon request.
47. NERC also notes that Regional Entities will maintain lists of elements within their regions for which exceptions have been granted, in order to monitor compliance with the requirement to submit periodic certifications pursuant to section 11.3 of Appendix 5C.
48. Pursuant to section 215(d) of the FPA we propose to approve NERC's revised definition of bulk electric system, including the specific inclusions and exclusions set forth in the definition, as just, reasonable, not unduly discriminatory or preferential, and in the public interest. As discussed below, we believe that NERC's proposal satisfies the directives of Order No. 743 to develop modifications to the currently-effective definition of bulk electric system to ensure that the definition encompasses all facilities necessary for operating an interconnected transmission network and remove the Regional Entity discretion that currently allows for regional variations without review or oversight. We also believe NERC's proposed definition satisfies the Commission's technical concerns in Order No. 743 through the use of a bright-line 100 kV threshold, with specific inclusions and exclusions within the definition, for identifying bulk electric system elements and the establishment of an exception process for facilities that are not necessary for operating the interconnected transmission network. Further, we believe NERC's proposed definition improves clarity and transparency. Below, we discuss the proposed “core” bulk electric system definition as well as each bright-line inclusion and exclusion of the proposed definition.
49. While proposing to approve NERC's modified definition, we also seek additional explanation and comments regarding potential applications of the “core” definition, as well as the inclusions and exclusions. We believe that a common understanding of the proposed bulk electric system definition (1) promotes consistent application of the definition in identifying bulk electric system elements and facilities and (2) provides up-front clarity so as to minimize the need for future clarifications either formally through NERC's standards clarification process or case-specific in a compliance setting. Thus, we seek comment from NERC and other interested persons regarding the scenarios and applications of the NERC proposal, discussed below. Although we propose to approve the definition in this rulemaking, the responses to our questions are also intended to guide the Commission as to whether other action may be necessary, for example, directing NERC to develop a further modification to the core definition, inclusions or exclusions pursuant to section 215(d)(5) of the FPA.
50. Further, pursuant to section 215(f) of the FPA, we propose to approve the revisions to the NERC Rules of Procedure that establish an exception process to determine case-specific exceptions to the bulk electric system definition. NERC's proposal meets the section 215(f) standard of review for changes to the Rules of Procedure. The
51. In Order No. 743, the Commission stated that NERC should maintain a list of facilities included or excluded from the bulk electric system pursuant to the exception process.
52. Below, the Commission discusses (A) the “core” bulk electric system definition; (B) proposed inclusions and exclusions in the definition; (C) the case-specific exception process; (D) the Detailed Information Form; and (E) NERC's implementation plan.
53. The bulk electric system “core” definition developed by NERC states as follows:
Unless modified by the lists shown below, all Transmission Elements operated at 100 kV or higher and Real Power and Reactive Power resources connected at 100 kV or higher. This does not include facilities used in the local distribution of electric energy.
54. In Order No. 743, the Commission found that “the current definition of bulk electric system is insufficient to ensure that all facilities necessary for operating an interconnected electric energy transmission network are included under the `bulk electric system' rubric.”
55. It appears that NERC's proposal satisfies the objectives set forth in Order No. 743. The “core” definition, quoted above, establishes the fundamental threshold for inclusion of facilities in the bulk electric system as those that are operated at 100 kV or higher, if they are transmission elements, or are connected at 100 kV or higher, if they are real power or reactive power resources. The core definition also establishes a 100 kV criterion as a bright-line threshold, rather than as a general guideline as in the current definition, i.e., the phrase “generally operated at” in the current definition is eliminated. As NERC explains, the core definition also continues to capture equipment associated with the facilities included in the bulk electric system.
56. Further, consistent with Order No. 743, NERC's proposed “bulk electric system” definition eliminates the phrase “as defined by the Regional Reliability Organization * * *.” As a result, NERC's proposed definition will apply nation-wide. Thus, we believe NERC's proposal adequately addresses the concerns articulated in Order No. 743 regarding unfettered regional discretion and the need for a consistent approach satisfies the concerns regarding the elimination of inconsistencies across regions. The Commission seeks comment on whether the revised definition adequately eliminates subjectivity and regional variation as required in Order No. 743.
57. Below, we seek comment regarding the exclusion of facilities used in local distribution.
58. In Order No. 743, the Commission acknowledged that “Congress has specifically exempted `facilities used in the local distribution of electric energy' ” from the Bulk-Power System definition and that, because such facilities are exempted from the Bulk-Power System, they also are excluded from the bulk electric system.
We agree * * * that the Seven Factor Test could be relevant and possibly is a logical starting point for determining which facilities are local distribution for reliability purposes, while also allowing NERC flexibility in
59. In addressing what constitutes local distribution, NERC explains that the second sentence in the core definition, which excludes “facilities used in the local distribution of electric energy,” is consistent with section 215(a)(1)(B) of the FPA and the Commission's regulations at 18 CFR 39.1 and as recognized in Order No. 743–A.”
In Order 743a, the Commission made it clear that facilities that are used in the local distribution of electric energy will be excluded from the Bulk Electric System. * * * In response to this facet of the Order, in developing the BES definition, the SDT has followed this guidance. Exclusion E3 was specifically designed to capture for exclusion those high voltage non-radial facilities being used for the local distribution of energy.
The exclusion characteristics in items a, b, and c * * * serve to ensure that facilities excluded under the local network exclusion (E3) are not necessary for the reliable operation of the interconnected electric transmission network and are instead used in the local distribution of energy.
60. The Commission seeks comment from NERC and the public regarding how the proposed definition is responsive to the Commission's directives in Order Nos. 743 and 743–A. Specifically, the Commission seeks comment on how NERC's proposal adequately differentiates between local distribution and transmission facilities in an objective, consistent, and transparent manner.
61. Along with the core definition, NERC's proposal provides specific inclusions and exclusions. The inclusions and exclusions provide added clarity regarding which elements are part of the bulk electric system as compared to the existing definition. For example, the inclusion of generating resources, blackstart resources and dispersed power producing resources provide additional information and granularity that assist in the identification of bulk electric system facilities or elements. However, we also have questions about how some of the inclusions and exclusions will be applied by NERC, Regional Entities and users, owners and operators of the Bulk-Power System. Through the responses to these questions we seek to better understand potential applications of the inclusions and exclusions, their effect on identifying the facilities or elements for bulk electric system reliability, and whether possible gaps exist.
62. Inclusion I1 provides “[t]ransformers with the primary terminal and at least one secondary terminal operated at 100 kV or higher unless excluded under [the radial system or local network exclusion].” NERC explains that:
Transformers operating at 100 kV or higher are part of the existing definition, but since transformers have windings operating at different voltages, and multiple windings in some circumstances, clarification was required to explicitly identify which transformers are included in the BES. Inclusion I1 includes in the BES those transformers operating at 100 kV or higher on the primary winding and at least one secondary winding, so as to be in concert with the core definition.
63. We believe that inclusion I1, with NERC's explanation, is a reasonable approach to identifying transformers that are appropriately included as part of the bulk electric system. However, circumstances may warrant inclusion of a particular transformer—through the proposed case-specific exception process—where a transformer is operated at 100 kV or higher on the primary winding but all secondary terminals are operated below 100 kV. The joint NERC and Commission staff report on the September 8, 2011, Arizona-Southern California blackout discusses how a 92 kV networked system experienced parallel flows from bulk electric system elements through two 230/92 kV transformers.
64. Inclusion I2 provides:
Generating resource(s) with gross individual nameplate rating greater than 20 MVA or gross plant/facility aggregate nameplate rating greater than 75 MVA including the generator terminals through the high-side of the step-up transformer(s) connected at a voltage of 100 kV or above.
65. We believe that Inclusion I2 provides useful granularity regarding the inclusion of generation resources as part of the bulk electric system. However, we seek comment regarding several aspects of inclusion I2. NERC's Registry Criteria thresholds for generators provides for the registration of “[i]ndividual generating unit > 20 MVA (gross nameplate rating) and is directly connected to the Bulk Power System” or “[g]enerating plant/facility > 75 MVA (gross aggregate nameplate rating) or when the entity has responsibility for any facility consisting of one or more units that are connected to the Bulk Power System at a common bus with total generation above 75 MVA gross nameplate rating.”
66. Inclusion I3 identifies as part of the bulk electric system “Blackstart Resources identified in a Transmission Operator's restoration plan.” NERC explains that blackstart resources are “vital” for the reliable operation of the bulk electric system and are included “regardless of their size (MVA) or the voltage at which they are connected.”
67. We agree with NERC that inclusion of blackstart resources in the definition is vital to reliability and is an improvement to the definition. We seek clarification whether the term “restoration plan” refers to the system restoration plans required in the Emergency Preparedness and Operations (EOP) Reliability Standards or included in a Commission approved tariff.
68. NERC states that first posting of the revised definition included “cranking paths” for blackstart resources due to a concern about “the possibility of having Blackstart Resources without a `guaranteed' path” to the [bulk electric system].”
69. Inclusion I4 identifies as part of the bulk electric system:
Dispersed power producing resources with aggregate capacity greater than 75 MVA (gross aggregate nameplate rating) utilizing a system designed primarily for aggregating capacity, connected at a common point at a voltage of 100 kV or above.
70. NERC explains that this inclusion is intended “to accommodate the effects of variable generation” on the bulk
71. We believe that inclusion I4 provides useful granularity in the bulk electric system definition. To better understand the application of inclusion I4, we seek comment whether this provision includes as part of the bulk electric system the individual elements (from each energy-producing resource at the site through the collector system to the common point at a voltage of 100 kV or above) used to aggregate the capacity and any step-up transformers used to connect the system to a common point at a voltage of 100 kV or above.
72. Inclusion I5 identifies as part of the bulk electric system:
Static or dynamic devices (excluding generators) dedicated to supplying or absorbing Reactive Power that are connected at 100 kV or higher, or through a dedicated transformer with a high-side voltage of 100 kV or higher, or through a transformer that is designated in Inclusion I1.
73. The Commission agrees with NERC that this inclusion adds clarity to the application of the bulk electric system definition by providing specific criteria for reactive power devices. For cases where the reactive power device is connected through a transformer designated in inclusion I1, we seek comment on whether both the reactive power device and the transmission elements connecting the reactive power device to the transformer are included as part of the bulk electric system pursuant to inclusion I5.
74. NERC states that the proposed definition identifies four facilities configurations that should not be included in the bulk electric system: (1) Radial systems, (2) behind-the-meter generating units, (3) local networks, and (4) retail customer reactive power devices.
75. We agree that the proposed definition's exclusions provide clarity and granularity. For example, the exclusion of generating units on the customer's side of the retail meter that serves all or part of the retail load (exclusion E2) and the exclusion for reactive power devices owned and operated by a retail customer for its own use (exclusion E4) provide reasonable limitations on bulk electric system elements. While we believe that the exclusions provide added clarity, we also seek comment on certain aspects of exclusions E1 and E3 to ensure a more complete understanding of their application.
76. Exclusion E1 provides as follows:
Radial systems: A group of contiguous transmission Elements that emanates from a single point of connection of 100 kV or higher and:
(a) Only serves Load. Or,
(b) Only includes generation resources, not identified in Inclusion I3, with an aggregate capacity less than or equal to 75 MVA (gross nameplate rating). Or,
(c) Where the radial system serves Load and includes generation resources, not identified in Inclusion I3, with an aggregate capacity of non-retail generation less than or equal to 75 MVA (gross nameplate rating).
77. As stated above, the radial exclusion applies to “a group of contiguous
78. NERC stated that it developed exclusion E1 to provide enhanced clarity as compared to the existing definition.
79. Figure 1 below depicts facilities configurations in which all of the 230 kV and 69 kV transmission elements emanate from a single point of connection of 100 kV or higher. The Commission seeks comment on whether each of the radial systems shown in figure 1, the 230 kV elements above each transformer to the point of connection to each 230 kV line, respectively, are excluded from the bulk electric system pursuant to exclusion E1.
80. Another scenario shown in figure 2 below depicts a configuration containing a 115 kV loop, with the configuration emanating from two points of connection of 100 kV or higher. We seek comment whether, in this configuration, the 115 kV and 230 kV elements above Transformers 1 and 2 to the points of connection to the two 230 kV lines would be excluded from the bulk electric system pursuant to exclusion E1. Is the configuration shown in figure 2 more appropriately analyzed pursuant to the “local network” exclusion E3 and, if so, what if any elements operated at or above 100 kV would be excluded pursuant to exclusion E3?
81. The Commission agrees with NERC that `radial systems' only serving load and emanating from a single point of connection of 100 kV or higher should be excluded from the bulk electric system. The Commission is concerned that the exclusion could allow elements operating at 100 kV or higher in a configuration that emanates from two or more points of connection to be deemed “radial” even though the configuration remains contiguous through elements that are operated below 100 kV. For example, figure 3 below depicts a configuration with two points of connection of 100 kV or higher that are contiguous through a 69 kV loop. We seek comment on how to evaluate the configuration in figure 3 vis-à-vis the radial system definition and whether it is appropriate to examine the elements below 100 kV to determine if the configuration meets the exclusion E1 definition for radial systems. In other words, does figure 3 depict a system emanating from two points of connection at 230 kV and, therefore, the 230 kV elements above the transformers to the points of connection to the two 230 kV lines would not be eligible for the exclusion E1 notwithstanding the connection below 100 kV?
Condition (b) of exclusion E1 provides that a radial system is excluded if it “[o]nly includes generation resources, not identified in Inclusion I3, with an aggregate capacity less than or equal to 75 MVA (gross nameplate rating).” Proposed Condition (c) of exclusion E1, excludes radial systems “[w]here the radial system serves Load and includes generation resources, not identified in Inclusion I3, with an aggregate capacity of non-retail generation less than or equal to 75 MVA (gross nameplate rating).”
82. NERC states that Conditions (b) and (c) are “intended to address the circumstances of small utilities (including municipal utilities and cooperatives).”
83. Because Condition (b) describes generation connected to a radial system with no load and Condition (c) describes generation connected to a radial system with generation and load, it appears that the power generated on these radial systems would, by design, be delivered or injected to the bulk electric system and transported to other markets. In this circumstance, it appears that a line 100 kV or above connected to a generator with a capacity 75 MVA or below would not be included in the bulk electric system. The Commission seeks comment on the appropriateness of excluding such radials.
84. Proposed exclusion E1 includes a “note” stating that a “normally open switching device between radial systems, as depicted on prints or one-line diagrams for example, does not affect this exclusion.” NERC states that this note is intended to address a common network configuration in which two separate sets of facilities that, each standing alone, would be recognized as radial systems but are connected by a switch that is set to the open position for reliability purposes.
85. NERC explains that these switches are installed by entities to provide greater reliability to their end-use customers. For example, when the entity schedules maintenance activities on a radial line or an unscheduled outage occurs that impacts a single point of supply to the radial line which could cause the disruption of power supply to the end-use customers served by the line, the switch allows the entity to use another feed on the connected radial line.
86. Figure 4 below illustrates a configuration with a normally open switch.
NERC states that “[t]he concept that two sets of radial facilities that are normally unconnected to each other should be subject to * * * applicable Reliability Standards during the limited time periods when they are connected by the closing of the normally open switch in the maintenance-related or outage-related circumstances described above would be fundamentally impractical and unworkable (from both the entity's perspective and the ERO's perspective), and would misapprehend this very common, reliability-driven facilities configuration.”
87. NERC states that “a normally open switch” will be identified in documents such as prints or one-line diagrams and that “[t]he concept and usage of the `normally open switch' in such configuration is well understood in the electric utility industry.”
88. Exclusion E2 excludes “[a] generating unit or multiple generating units on the customer's side of the retail meter * * *.” The Commission believes that this is an appropriate exclusion that provides additional clarity and granularity to the definition of bulk electric system.
89. As noted above, we believe that a common understanding of the exclusions promotes consistent application of the definition in identifying bulk electric system elements. In particular, as discussed in greater detail below, we seek comment on the following issues with respect to the application of exclusion E3: (1) Whether generation resources are excluded by this exclusion; (2) how the exclusion applies to a looped lower voltage system; (3) whether the 300 kV ceiling is appropriate for the application of the exclusion; (4) whether the prohibition for generation produced inside a local network is not transporting power to other markets outside the local network applies in both normal and emergency operating conditions.
90. Exclusion E3 defines the term local networks as:
A group of contiguous transmission Elements operated at or above 100 kV but less than 300 kV that distribute power to Load rather than transfer bulk-power across the interconnected system. LN's emanate from multiple points of connection at 100 kV or higher to improve the level of service to retail customer Load and not to accommodate bulk-power transfer across the interconnected system.
91. NERC states the design and operation of local networks is such that at the point of connection with the interconnected transmission network is similar to that of a radial facility, in particular that power always flows in a direction from the interconnected transmission network into the local network.
92. Similar to our discussion of the definition of `radial systems' in
93. NERC states in the LN Technical Paper, that “Exclusion E3 was specifically designed to capture for exclusion those high voltage non-radial facilities being used for the local distribution of energy.”
Their [local network] design and operation is such that at the point of connection with the interconnected electric transmission network, their effect on that network is similar to that of a radial facility, particularly in that flow always moves in a direction that is from the BES into the facility. Any distribution of parallel flows into the local network from the BES, as governed by the fundamentals of parallel electric circuits, is negligible, and, more importantly, is overcome by the Load served by the local network, thereby ensuring that the net actual power flow direction will always be into the local network at all interface points. The presence of a local network is not for the operability of the interconnected electric transmission network; neither will the local network's separation or retirement diminish the reliability of the interconnected electric transmission network.”
94. We seek further explanation and comment on the statement above that “neither will the local network's separation or retirement diminish the reliability of the interconnected electric transmission network.” While a radial facility emanates from one point of connection to the interconnected transmission network, a local network by definition has multiple points of connection to the interconnected transmission network. Thus, regarding a local network, a contingency situation may arise where one of the multiple connections to the interconnected transmission network separates, while other local network connections maintain connectivity with the bulk electric system. We seek comments to better understand how an entity with a candidate local network would analyze such contingencies to determine potential impacts to the reliable operation of the interconnected transmission network.
95. As stated above, exclusion E3 defines local networks as “[a] group of
The configuration in figure 5 depicts a group of elements that are contiguous through a 69 kV loop. We seek comment whether the configuration in figure 5 qualifies as a local network and, in particular, whether the configuration satisfies the condition that a local network consists of “a group of
96. NERC states the selection of a 300 kV cap for the applicability of an
97. Exclusion E3 criterion (a) provides that the local network and its underlying elements do not include the blackstart resources identified in inclusion I3 and do not have an aggregate capacity of non-retail generation greater than 75 MVA gross nameplate rating. In addition, criterion (a) does not limit the amount of generation besides “non-retail generation” connected to the local network. The Commission agrees with NERC that “local networks” do not include blackstart resources and agrees with the limits on the connected generation imposed by this exclusion.
98. Exclusion E3 criterion (b) specifies that to be eligible for the exclusion, power can only flow into the local network and the local network does not transfer energy originating outside the local network for delivery through the local network. Thus, it appears that, pursuant to criterion (b), generation produced inside a local network is not transporting power to other markets outside the local network. The Commission understands that criterion (b) applies in both normal and emergency operating conditions.
99. Exclusion E3 criterion (c) specifies a “local network” does not contain a monitored facility of a permanent flowgate in the Eastern Interconnection, a major transfer path within the Western Interconnection, or a comparable monitored facility in the ERCOT or Quebec Interconnections, and is not a monitored facility included in an interconnection reliability operating limit. The Commission believes that this is an appropriate criterion.
100. Exclusion E4 excludes from the bulk electric system “Reactive Power devices owned and operated by the retail customer solely for its own use.” NERC explains that exclusion E4 is the technical equivalent of Exclusion E2 for reactive power devices and that the currently effective bulk electric system definition is unclear as to how these devices are to be treated. We believe that this is an appropriate exclusion that provides additional clarity and granularity to the definition of bulk electric system.
101. In sum, we propose to approve NERC's revised definition of the term bulk electric system, including the specific inclusions and exclusions. We believe that NERC's proposal provides a reasonable basis for the identification of bulk electric system elements and appears to improve upon the currently effective definition by: (1) Removing the language that provides for regional discretion, (2) removing the language “generally operated at * * *” so as to create a clear 100 kV threshold; and (3) providing additional clarity and granularity. Above, we have asked for comment on a series of questions regarding the applicability of the “core” definition and specific inclusions and exclusions. We believe that comments on these questions will assist in providing further clarity and understanding of the NERC proposal. We further note that although we propose to approve the definition in this rulemaking, the responses to our questions are intended to guide the Commission as to whether other action is necessary, for example, by directing NERC to develop a further modification to the definition or inclusions/exclusions pursuant to section 215(d)(5) of the FPA.
102. As described above, in Docket No. RM12–7–000, NERC submitted proposed revisions to its Rules of Procedure that provide procedures for requesting and receiving case-specific exception from the definition of bulk electric system.
103. Pursuant to FPA section 215(f), we propose to find that the exception process is just, reasonable, not unduly discriminatory or preferential, and in the public interest and satisfies the requirements of section 215(c). Further, we believe that the proposal satisfies the statement in Order No. 743 that NERC establish an exception process for excluding facilities that are not necessary for the reliable operation of the interconnected transmission network from the definition of the bulk electric system.
104. NERC explains that it was not feasible to develop a single set of technical criteria that would be applicable to all exception requests so it developed the Detailed Information Form to ensure that a consistent baseline of technical information is provided for NERC to make a decision on all exception requests. This information and the proposed exception process allows NERC to provide consistent determinations on exception requests submitted from different
105. NERC and the industry should be commended for the development of the 100 kV threshold, the identified inclusions and exclusions, and the exception process. Together, this package of important reforms will bring valuable improvements to the process of identifying those facilities that are necessary for the operation of the interconnected transmission network, and thus should be included in the definition of bulk electric system. For these reasons, we propose to approve NERC's proposals, as discussed above.
106. The Commission seeks input from NERC and the industry, however, as to additional reforms that may be needed to the definition or to the Rules of Procedure to ensure that, over the long term, the facilities necessary to the reliability of the interconnected transmission network are captured in its definition. In particular, we note that while establishing a “bright-line” threshold of 100 kV has significant advantages, it may not capture all facilities that are necessary for the operation of the interconnected transmission network that fall below that threshold. As the Commission indicated in Order No. 743 and Order No. 743–A, its goal is that the definition of bulk electric system should include all facilities necessary for the operation of the interconnected transmission network, except for local distribution. Although the Commission indicated that one way to meet this goal was to establish a 100 kV “bright-line” threshold, the Commission also made clear that the “bright-line” threshold would be a “first step or proxy” in determining which facilities should be included in the bulk electric system.
107. Recent events reinforce the Commission's statements in Order Nos. 743 and 743–A with respect to ensuring that sub-100 kV facilities, as appropriate, are included in the bulk electric system. The September 2011 Blackout Report concluded that certain sub-100 kV facilities, which were not designated as bulk electric system facilities, contributed to the cascading blackout affecting San Diego, California.
108. The NERC proposals at issue in this NOPR take steps to address the treatment of sub-100 kV facilities, as well as other facilities, necessary for the operation of the interconnected transmission network, through the exception process, which provides an avenue for Regional Entities, planning authorities, reliability coordinators, transmission operators, transmission planners, balancing authorities, and owners of system elements to submit a request to include a facility in the bulk electric system. We believe that regional entities, reliability coordinators, transmission owners, transmission operators, balancing authorities and other registered entities need to evaluate their sub-100 kV facilities, as well as other facilities, that are necessary to operate the interconnected transmission network in an “appropriate and consistent” manner to determine their potential impacts on bulk electric system reliability and, based on that review, seek to include those facilities in the bulk electric system through this proposed exception process.
109. The Commission expects that these entities will use the exception process as contemplated to include sub-100 kV facilities, and other facilities, necessary for the operation of the interconnected transmission network in the bulk electric system. Nonetheless, we note that relying on these entities alone may, in certain limited circumstances, have the potential to leave out sub-100 kV facilities necessary for the operation of the interconnected transmission network. For example, NERC or the Commission may, in the performance of their statutory functions and general oversight of reliability matters, discover additional sub-100 kV facilities that should be included. The joint NERC–FERC September 2011 Blackout Report, as noted above, is a prime example of this possibility. In addition, while we recognize that the owners and operators of the power grid take their reliability obligations seriously, there may be instances when not all of the facilities necessary for the operation of the interconnected transmission network are included in the bulk electric system.
110. Thus, while we propose to approve the package of reforms submitted by NERC, we seek comment
111. In addition to general comments on the discussion above, we seek comments on the role NERC should have in initiating the designation of (or directing others to initiate the designation of) sub-100 kV facilities, or any other facilities, necessary for the operation of the interconnected transmission network for inclusion in the bulk electric system. The exception process as proposed does not provide that NERC may initiate an exception request. Given its statutory functions to develop and enforce Reliability Standards and its continent-wide perspective, NERC has technical understanding that may provide valuable assistance in the identification of bulk electric system facilities and elements. For example, NERC conducts disturbance assessments, oversees compliance monitoring and conducts seasonal assessments, all of which provide information and understanding regarding the operations of the bulk electric system. The Commission seeks comment on the role NERC should have in designating sub-100 kV facilities, and other facilities, for inclusion in the bulk electric system, directing Regional Entities or others to conduct such reviews, or itself nominating an element to be included in the bulk electric system.
112. We also seek comment on the role the Commission should have with respect to the designation of sub-100 kV facilities, or other facilities, necessary for the operation of the interconnected transmission network for inclusion in the bulk electric system. As noted above, there may be circumstances (like the September 2011 Blackout Report) where the Commission, through the performance of its statutory functions, may conclude that certain sub-100 kV facilities not already included in the bulk electric system are necessary for the operation of the interconnected transmission network and thus should be included in the bulk electric system. While, as noted above, we expect that regional entities and others will take affirmative steps to review and include sub-100 kV elements and facilities, and other facilities, necessary for the operation of the interconnected transmission system in the bulk electric system, we seek comment as to how the Commission, if necessary, could ensure that such facilities are considered for inclusion in the bulk electric system. We also seek comment on instances when the Commission itself should designate (or direct others to designate) sub-100 kV facilities, or other facilities, necessary for the operation of the interconnected transmission grid for inclusion in the bulk electric system.
113. NERC's proposed exception process provides that “[t]he Regional Entity shall not recommend Disapproval of the Exception Request in whole or in part without first submitting the Exception Request for review to a Technical Review Panel and receiving its opinion * * *”
114. We see value in the Regional Entity receiving the independent opinion of a qualified technical review panel. NERC, however, does not explain why the proposed rules only require a technical review panel to provide an opinion where the Regional Entity recommends disapproval of an exception request. We seek comment from NERC explaining whether it considered obtaining the opinion of a technical panel for all Regional Entity recommendations and, if so, why the review is only required when a Regional Entity disapproves a request. Further, we seek comment on whether NERC should modify the exception process to require Regional Entities to submit all proposed determinations to a technical review panel regardless of the recommendation and receive the panel's opinion on each request.
115. Section 8 of the proposed exception process sets forth the procedures for NERC's review of a Regional Entity's recommendation. The NERC President will appoint a team of at least three persons with the technical background to evaluate an exception request. The members of the review team must have no financial, contractual, employment or other interest in the submitting entity or owner that would present a conflict of interest and must be free of any conflicts of interest in accordance with NERC policies.
116. We support NERC's proposal to use staff resources, supplemented by contractors as necessary, to make up the exception request review teams. We believe that consistent appointment of the same NERC staff and contractor resources, based on subject matter expertise, will promote a more uniform and consistent review of the Regional Entities' exception request recommendations.
117. As described above, NERC developed the Detailed Information Form that the Regional Entity and NERC can use in evaluating whether or not the elements that are the subject of an exception request are necessary for operating the interconnected transmission network. The Detailed Information Form encompasses a wide range of potential configurations and appears to ensure that a consistent baseline of technical information is provided with all exception requests, in addition to the specific information and arguments provided by the submitting entity in support of its exception request. The information that the applicant may submit in support of an exception request will not be limited to the Detailed Information Form. The applicant will be expected to submit all relevant data, studies and other information that supports its exception request. Further, NERC may ask the
118. We believe that this information will provide consistency with respect to the technical information provided with all exception requests and is an equally efficient and effective approach to developing a substantive set of technical criteria for granting and rejecting exception requests. Accordingly, we propose to approve the Detailed Information Form included in NERC's filing.
119. As noted above, NERC requests that the revised definition “should be effective on the first day of the second calendar quarter after receiving applicable regulatory approval, or, in those jurisdictions where no regulatory approval is required, the revised [bulk electric system definition] should go into effect on the first day of the second calendar quarter after its adoption by the NERC Board.
120. NERC also requests that compliance obligations for all elements newly-identified to be included in the bulk electric system based on the revised definition should begin twenty-four months after the applicable effective date of the revised definition. While the Commission stated in Order Nos. 743 and 743–A that the transition period should not exceed 18 months from the date of Commission approval of the revised definition, the Commission also stated that it could approve a longer transition period based on specific justification.
121. In Order No. 743, the Commission stated that “a Commission staff audit would review the application of the exemption criteria developed by NERC in NERC's or a Regional Entity's determination to approve an exemption for a particular facility.” The Commission also stated that “to facilitate such audits, the ERO should maintain a list of exempted facilities that can be made available to the Commission on request. NERC can decide how best to maintain the list, including determining whether or not to post it on the NERC Web site.”
122. NERC states that the proposed exception process does not include provisions for NERC to maintain a list of facilities that have received exceptions, as this is an internal administrative matter for NERC to implement that does not need to be embedded in NERC Rules of Procedure.
123. We understand that NERC is continuing to develop the details on how it will maintain the list of facilities that have received exceptions. However, we also consider the maintenance of this list of facilities an important feature for tracking exceptions.
124. While NERC states that it will maintain a list of facilities that have received an exception pursuant to the case-specific exception process, the petition does not indicate whether NERC will track an entity's “declassification” of current bulk electric system facilities based on the entity's self-application of the bulk electric system definition. It appears that, in some circumstances, the appropriate Regional Entity would receive a request that an entity be removed from the NERC Compliance Registry. For example, if an entity determines that its entire system satisfies the exclusion E1 for radial systems, the entity could apply to the appropriate Regional Entity to be removed from the NERC Compliance Registry. However, in other circumstances, it is not clear what, if any, notification an entity would provide to NERC or a Regional Entity when the entity self-determines that an element is no longer part of the bulk electric system. For example, a large utility with hundreds or thousands of transmission lines may initially determine that a configuration on its system does not qualify for the exclusion E3 local network exclusion, but subsequently determines that the configuration can be excluded. NERC's petition does not indicate whether an entity in such circumstance is obligated to inform NERC or the appropriate Regional Entity of that self-determination. It appears that NERC and the Regional Entities would need this information for their compliance programs, for audit purposes, and to understand the contours of the bulk electric system within a particular region. Accordingly, we seek comment on whether NERC's proposal should be modified to include an obligation for the registered entity to inform NERC or the Regional Entity of the entity's self-determination through application of the definition and specific exclusions E1 through E4 that an element is no longer part of the bulk electric system.
125. The following collection of information contained in this Proposed Rule is subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995.
126. In Order No. 693, the Commission approved NERC's definition of the term bulk electric system and the associated information requirements.
127. In Order No. 743, the Commission directed NERC to develop a revised “bulk electric system” definition. The Commission explained that, by directing NERC to develop a revised definition, “the Commission is maintaining the status quo (i.e., the current bulk electric system definition) until the Commission approves a revised definition. Thus, the Commission's action does not add to or increase entities' reporting burden.”
128. The immediate NOPR proposes to approve the revision to the definition of “bulk electric system” developed by NERC and an exception process to include or exclude specific elements in the definition of “bulk electric system” on a case-by-case basis. The Commission is basing its burden estimate below on the revised definition of “bulk electric system” developed by NERC.
129. The proposal in this NOPR would result in entities reviewing systems and creating qualified asset lists, submitting exception requests where appropriate, and certain responsible entities having to comply with requirements to collect and maintain information in mandatory Reliability Standards with respect to certain facilities for the first time.
130.
131. First, we request comment on the estimated number of entities that will have an increased reporting burden associated with the identification of new bulk electric system elements as a result of the modified definition. NERC states in its filing that “[i]t was not the intent nor the expectation of either the [standard drafting team] or NERC to either expand or reduce the scope of the [bulk electric system], or (with the likely exception of the NPCC Region) to increase or decrease the number of Elements included in the [bulk electric system], through the revised [bulk electric system] definition as compared to the current [bulk electric system] definition.”
132. We reviewed Compliance registry information for the NPCC Region to determine the number and types of registered entities in the U.S. portion of the NPCC Region.
We expect that transmission owners and distribution providers, and some generator owners, are most likely to identify new elements. Based on this, we estimate a range from 66 to 155 affected entities in the NPCC region, and for OMB reporting purposes identify below a median number of 111 affected entities in the NPCC region. Further, consistent with NERC's explanation, we do not expect a significant number of registered entities outside of the NPCC region to identify new elements under the revised bulk electric system definition. Accordingly, we estimate a total of 75 entities outside of the NPCC Region having new “implementation plan and compliance” related reporting burdens. We seek comment on these estimates to assist the Commission in arriving at final estimates.
133. Second, we seek comment on the reporting burden associated with exception requests. NERC indicates that “there is currently not a basis for estimating the numbers of Exceptions Requests that will be submitted * * *.”
134. Third, as indicated above, our estimates are based in part on an expectation that transmission owners, generator owners and distribution providers will experience more significant reporting burdens than other categories of registered entities. We seek comment on this expectation, and whether and to what extent other categories of registered entities (in addition to transmission owners, generator owners and distribution providers) may have a public reporting burden.
135. We estimate that the increased Public Reporting Burden for this Proposed Rule is as follows:
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136. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, email:
137. Comments concerning the information collections proposed in this NOPR and the associated burden estimates, should be sent to the Commission in this docket and may also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs [Attention: Desk Officer for the Federal Energy Regulatory Commission]. For security reasons, comments should be sent by email to OMB at the following email address:
138. The Regulatory Flexibility Act of 1980 (RFA)
139. The Commission estimates that of the 418 small entities affected there are 50 within the NPCC region that would have to comply with the Proposed Rule. The Commission assumes that the Proposed Rule would affect more small entities in the NPCC Region than those outside NPCC as it is assumed that there are more elements in NPCC that would be added to the bulk electric system based on the new definition than elsewhere. The Commission estimates the first year affect on small entities within the NPCC region to be $39,414.
140. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
141. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due September 4, 2012. Comments must refer to Docket Nos. RM12–6–000 and RM12–7–000, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments.
142. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at
143. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.
144. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.
145. In addition to publishing the full text of this document in the
146. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
147. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at 202–502–6652 (toll free at 1–866–208–3676) or email at
Electric power; Electric utilities; Reporting and recordkeeping requirements.
By direction of the Commission. Commissioner Clark voting present.