3158 Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Proposed Rules

Issued in Washington, DC, January 13, that foreign carrier applicants for a being the primary criterion. Under the 2005. statement of authorization include Department’s regulations, ‘‘fifth- Edie Parish, historical data relative to the applicant’s freedom’’ charters include all charters Acting Manager, Airspace and Rules. U.S.-home country operations to allow operated between the U.S. and a third- [FR Doc. 05–1157 Filed 1–19–05; 8:45 am] the Department to readily evaluate country point, either via the foreign BILLING CODE 4910–13–P levels of third- and fourth-freedom carrier’s home country or absent any versus fifth-, sixth-, and seventh- nexus to the foreign carrier’s home freedom operations. This data will allow country. Because almost all charter DEPARTMENT OF TRANSPORTATION the Department to satisfy any concerns flights processed by the Department we might have as to the applicant’s under Part 212 are conducted as point- Office of the Secretary reliance on fifth-, sixth- and seventh- to-point services, in practice the ‘‘no freedom operations. These proposed nexus’’ case represents the norm. 14 CFR Part 212 modifications will ensure that the On March 4, 2002, NACA, on behalf Department has the most current of its member carriers (Air Transport [Docket No. OST–2002–11741] information on the state of reciprocity International, American Trans Air, RIN 2105–AD38 for each foreign carrier applicant for Express.Net Airlines, Falcon Air fifth-, sixth-, or seventh-freedom charter Express, Gemini Air Cargo, Champion Charter Rules for Foreign Direct Air authority. Air, Miami Air International, North Carriers DATES: Comments should be received by American Airlines, Omni Air International, Ryan International AGENCY: Office of the Secretary. March 22, 2005. Late-filed comments will be considered to the extent Airlines, USA 3000 Airlines, and World ACTION: Notice of proposed rulemaking. practicable. Airways, Inc.) filed a petition for rulemaking in which it requested that SUMMARY: The Department seeks ADDRESSES: To make sure your the Department change certain comment on a proposal to revise its comments and related material are not provisions of 14 CFR Parts 200 and 212. rules on charter operations. This entered more than once in the docket, NACA asserted that the current proposal arises from a petition filed by please submit them (marked with definition of fifth-freedom passenger the National Air Carrier Association docket number OST–2002–11741) by charters in Part 212 is inaccurate, and (NACA). NACA seeks to make changes only one of the following means: most of what the Department authorizes to the definitions and standards the (1) By mail to the Dockets and Media as fifth-freedom charters are in fact Department uses to determine whether Management, U.S. Department of seventh-freedom operations because to grant or deny foreign air carrier Transportation, M–30, Room PL–401, they involve no nexus with the foreign requests to conduct certain types of 400 7th Street SW., Washington, DC carrier’s home country. NACA asserted international charter flights. 20590. that a true ‘‘fifth-freedom’’ charter (2) By hand delivery to room PL–401 The Department grants NACA’s would involve an airline carrying traffic on the Plaza level of the Nassif Building, petition, and proposes to make some, that originates and terminates in a 400 7th Street SW., Washington, DC but not all of the changes sought by country other than its home country, NACA. The Department proposes to 20590, between 9 a.m. and 5 p.m., provided the flight originates, make revisions to definitions relating to Monday through Friday, except Federal terminates or changes gauge in the home charter types, and to modify the holidays. The telephone number is 202– country of the airline. Similarly, true Department’s current charter 366–9329. ‘‘sixth-freedom’’ charters, according to (3) Electronically through the Web application form so as to require NACA, involve the right of an airline to Site for the Docket Management System updated reciprocity information as well carry traffic that originates and at http://dms.dot.gov. [Comments must as numbers of U.S.-homeland services terminates in a country other than its be filed in Docket OST–2002–11741, vs. U.S.-non-homeland services. The home country, provided the flight Department does not anticipate U.S. Department of Transportation, 400 operates via the home country of the adopting NACA’s requests to impose a 7th Street SW., Washington, DC 20590.] airline. NACA asserts that most foreign Due to security procedures in effect reciprocity standard that ensures countries do not provide U.S. carriers since October 2001 on mail deliveries, substantially equivalent opportunities reciprocal ‘‘seventh-freedom’’ passenger mail received through the Postal Service for U.S. carriers in the homeland of the charter rights, and thus, the Department may be subject to delays. Commenters applicant, or to accord U.S. carriers a should scrutinize more closely the should consider using an express mail right of ‘‘first refusal’’ over foreign ‘‘seventh-freedom’’ charters it approves. firm to ensure the timely filing of any carrier requests to conduct certain U.S.- Finally, NACA states that U.S. charter originating charter operations. comments not submitted electronically carriers have been adversely affected Specifically, the Department proposes or by hand. financially by competition from foreign to clarify the definition of ‘‘fifth freedom FOR FURTHER INFORMATION CONTACT: carriers, particularly since the events of charter’’ by adding definitions of ‘‘sixth- Gordon H. Bingham, Office of September 11, 2001, and that foreign and seventh-freedom charters.’’ The International Aviation (X–40), U.S. carriers have been dumping their excess Department also proposes modifications Department of Transportation, 400 7th capacity into U.S. charter markets. to OST Form 4540 (Foreign Air Carrier Street, SW., Washington, DC 20590; To remedy its concerns, NACA Application for Statement of (202) 366–2404. proposes changes to the definitions and Authorization). Specifically, the SUPPLEMENTARY INFORMATION: Under standards the Department uses in Department proposes to require an current Department charter regulations determining whether to grant or deny updated reciprocity statement by foreign in 14 CFR Part 212, foreign air carriers foreign air carrier requests to conduct carriers for a statement of authorization must obtain prior Department approval certain types of international charter to allow us to ensure that our for all ‘‘fifth-freedom’’ charters. The flights. Specifically, NACA requests that reciprocity standards have been standard for grant of such authority is a we (1) add to and amend the Part 212 satisfied and are properly supported. public interest test, with reciprocity on definitions concerning charter types so The Department also proposes to require the part of the applicant’s home country as to ensure, inter alia, that what it

VerDate jul<14>2003 12:10 Jan 19, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\21JAP1.SGM 21JAP1 Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Proposed Rules 3159

regards as seventh-freedom passenger adopting a ‘‘first refusal’’ policy would actually exists in a foreign carrier’s operations are identified as such; (2) promote U.S. charter viability. They home country. They point out that the amend the existing Part 212 reciprocity believe that (1) NACA’s proposals, if Department’s existing reciprocity test standard so that prior approval requires adopted, will remove the anomaly requires nothing more than the apparent a finding of ‘‘substantially equivalent’’ under which seventh-freedom passenger willingness of a foreign government to reciprocity in the charter market of the charter flights by foreign carriers are grant fifth-freedom charter rights to U.S. applicant’s home country; (3) alter the defined and regulated by the carriers, regardless of the size of the Department’s methodology for Department as fifth-freedom charter market or the existence of meaningful measuring fifth-freedom traffic so that it flights; (2) the Department’s approval of charter opportunities in the market. more accurately reflects the realities in large seventh-freedom charter programs They believe that NACA’s proposal will the marketplace and provides the (which the supporters believe are often bring clarity to the standards for Department with a better basis for indistinguishable from scheduled demonstrating reciprocity which they resolving ‘‘undue reliance’’ issues; and service) is contrary to the Department’s believe should be based on measurable (4) accord U.S. carriers a right of ‘‘first longstanding policy of not granting traffic volumes or ‘‘substantial refusal’’ with respect to U.S.-originating scheduled seventh-freedom scheduled equivalency’’. fifth-freedom (seventh-freedom) rights to foreign carriers; (3) the Other commenters suggest that foreign passenger charter flights. Department’s definition of fifth-freedom carriers enjoy a cost advantage over U.S. On March 21, 2002, the Department charter flights is inconsistent with carriers because foreign carriers enjoy published a Notice in the Federal definitions used by our foreign trading lower safety and security requirements Register (67 FR 55, March 21, 2002) partners for similar charter services and and that cost and time burdens inviting interested parties to comment should be corrected; (4) U.S. carriers are associated with the disparate safety and on NACA’s petition. Comments to the placed at a competitive disadvantage security requirements place U.S. carriers petition were due May 6, 2002, and when the Department provides at a competitive disadvantage. reply comments were due by June 4, economic opportunities to foreign Comments Filed in Opposition to 2002. carriers that exceed rights the U.S. has NACA’s Petition Comments of Interested Parties negotiated for U.S. carriers; and (5) the Department should revise filing NACA’s petition is opposed by the The Department received a large procedures for its T–100 reporting data Air Transport Association (ATA); three number of comments in response to to more accurately measure levels of trade associations (Airports Council NACA’s petition. A complete summary foreign carrier third- and fourth-freedom International-North America, United of those comments follow. operations versus levels of fifth-freedom States Airports for Better International Air Service, and the Washington Comments Filed in Support for NACA’s operations. Airports Task Force); seven U.S. Petition Commenters supporting NACA’s petition also share NACA’s view that indirect air carriers (Cuba Travel Comments in support of NACA’s the Department should give U.S. charter Services, Marazul Charters, Inc., TNT petition were filed by eight NACA- carriers ‘‘first refusal’’ rights to assist the Vacations, Suntrips, Inc., Vacation member carriers and approximately ability of U.S. carriers to compete Express, GWV Travel, and the Apple 1,600 employees from two NACA- commercially and to remain viable Companies); Atlas Air, Inc. (a U.S. all- member carriers. Other comments in supporters of the Civil Reserve Air Fleet cargo carrier); Port of Portland (a U.S. support of NACA’s petition were filed (CRAF) program. They also believe that airport operator); eleven foreign direct by the International Brotherhood of current DOT practice favors U.S. air carriers (Condor Flugdienst, Grupo Teamsters (IBT), the Air Line Pilots scheduled carriers by subjecting U.S. TACA representing six foreign carriers Association (ALPA) and the Aviation charter carriers to competition by from Latin America; Skyservice Suppliers Association, MLT Vacations foreign carrier charter operators while Airlines, Inc., Lineas Aereas Allegro, Inc. (a U.S. indirect air carrier), Eagle protecting U.S. scheduled carriers S.A. de C.V., Antonov Design Bureau, Aircraft Supply and AAR Aircraft against competition by not allowing and JMC Airlines Limited); and one Services(aircraft sales and service seventh-freedom scheduled operations individual. companies), and P&C Engineering by foreign carriers. They believe that Those opposing NACA’s petition Consultants. Sen. Ernest F. Hollings (D– because comparable rights for U.S. maintain that U.S. charter carriers SC), Rep. John L. Mica (R–FL), Rep. carriers may not be available in the provide the majority of flights in the William O. Lipinski (D–IL), Rep. Jerry home country of an applicant foreign U.S.-origin charter market in spite of the Moran (R–KS), Rep. Jim Ryun (R–KS), carrier, ‘‘first refusal’’ would place U.S. number of U.S-originating charter flights Rep. Todd Tiahart (R–KS), Rep. Brad charter carriers on an equal footing with by foreign carriers authorized by the Carson (D–OK), and Rep. John Sullivan U.S. scheduled carriers. They also state Department. They state that based on (R–OK), have written the Department that ‘‘first refusal’’ would not interfere charter approval numbers offered by urging us to review NACA’s with foreign carrier third and fourth- NACA, Department approvals of U.S.- recommendations and, if warranted, freedom charter services, and will allow originating charter flights by foreign make changes to our charter rules that foreign carriers to conduct U.S.- carriers (with no home country nexus) give foreign airlines an unfair originating seventh-freedom charters since 1999, amount to less than seven competitive advantage over U.S. where no U.S. carrier lift is available. flights per day throughout the U.S. TNT carriers. Senator Hollings requests that The IBT believes that ‘‘first refusal’’ Vacations states that over the past we support the changes proposed by should be extended to cover U.S.- several years it has been increasingly NACA. originating seventh-freedom all-cargo difficult to locate lift at rates enabling it NACA’s supporters argue, generally, charter flights as well. to offer charter packages at prices that the Department’s current charter Many of the commenters agree with competitive with vacation packages regulations undermine the ability of NACA that the Department’s reciprocity available through scheduled service. U.S. carriers to compete commercially; test does not go far enough because it TNT states that the ‘‘saving grace’’ has that limited fifth-freedom opportunities does not take into account whether a been the competition provided by non- exist for U.S. carriers abroad; and that commercially viable charter market U.S. carriers in both home country- and

VerDate jul<14>2003 12:10 Jan 19, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\21JAP1.SGM 21JAP1 3160 Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Proposed Rules

non-home country markets. TNT further ‘‘indispensable’’ role in supporting U.S. these programs would, in ACI–NA’s states that NACA-member carriers have public charter programs and that view, be damaging to the traveling received over $90 million in taxpayer adoption of NACA’s petition would public, tour operators, U.S. airports and support under compensation legislation have a ‘‘chilling’’ effect on the the local economies they serve. USA– related to the events of September 11, willingness of foreign carriers to invest BIAS, on behalf of 14 U.S. airports, 2001, and now, through NACA’s time or resources in bidding for U.S. states that NACA’s petition looks only at petition, seek to impose additional tour operator charter contracts. GWV the narrow mercantile needs of its financial burdens on the traveling adds that if the Department adopts members and ignores the greater good public in the form of higher NACA’s recommendations, and that international mobility brings to the international charter prices. substitutes its judgment for the business U.S. economy, U.S. cities, U.S. ATA, the principal trade association judgment of GWV and other tour businesses and the traveling public. of the U.S. scheduled airline industry operators, it should also be prepared to USA–BIAS states that it sees no need for (representing 21 U.S. carrier members assume the financial consequences and the ‘‘hyper-regulatory’’ approach sought and 4 foreign carrier associate costs that could result from such a by NACA, suggesting that the members), believes that adoption of change. Department possesses ample tools under NACA’s recommendations would Many of the commenters believe that its existing regulatory framework to effectively re-regulate international the regulatory modifications NACA assess the public interest. ACI–NA, charter services, a result its membership seeks are not necessary and can be USA–BIAS and WATF all believe that opposes. ATA supports the current U.S. better addressed by the Department fifth-freedom charter services provide policy of placing maximum reliance on through vigorous enforcement of U.S. airports with an opportunity to competitive forces to determine price, existing regulations rather than by obtain new or competitive international level and quality of air transportation amending the current regulatory air services and oppose any new services. ATA (as well as other structure. They also suggest that regulations that would add restrictions commenters), opposes NACA’s efforts to NACA’s concerns can be resolved to the ability of foreign air carriers to add new operating restrictions to charter through, among other things, provide new services on international services, whether by redefining routes. Department efforts to ensure that foreign definitions or by any other means, WATF states that history has governments do not impede the ability believing that any restrictions adopted demonstrated that the people and the of U.S. carriers to operate charter by the United States will be applied economy of the United States benefit reciprocally to U.S. carriers around the services, and by monitoring foreign from a free and open air service market, world. ATA contends that NACA’s carrier services to ensure that they do rather than from arrangements which request for commercial equivalency is not place undue reliance on non-home confer commercial benefits on a specific inconsistent with U.S. reliance on country (fifth-freedom) charter class of U.S. carrier. WATF further competition and should be rejected, operations. Atlas, as well as others, states that it would be ‘‘a gross irony’’ arguing that U.S. aviation policy is suggest that we should reject both for the United States to accept the intended to open foreign markets to NACA’s call for an ‘‘equivalency test’’— offending aspects of the NACA petition competition, not to guarantee reciprocal which Atlas believes would preclude as it strives to negotiate ever more access to similarly-sized markets for foreign carriers from small countries liberal air service agreements with U.S. carriers. It argues that the from operating any third-country foreign governments. Department’s resources should not be charters—as well as its request to give The Port of Portland expresses its used to protect U.S. carriers from U.S. carriers ‘‘first refusal,’’ which interest in expanding international air foreign competition merely because a would invite foreign governments to services at its airport and is opposed to particular home country market is apply a similar retaliatory policy against any initiative to make the addition of small, but should be used to open U.S. carrier charter operations. Airports new international services more restricted markets to both U.S. charter Council International-North America difficult, noting that Portland enjoyed and scheduled carriers. It states that (ACI–NA), United States Airports for the charter services of a foreign carrier NACA’s request for ‘‘first refusal’’ is Better International Air Service (USA– passenger charter program to Cancun inconsistent with longstanding BIAS), and the Washington Airports during the past winter season. Portland Department policy and U.S. efforts to Task Force (WATF) strongly oppose supports the strong opposition to liberalize the global aviation market, NACA’s request. ACI–NA, on behalf of NACA’s request set forth in the and, like Atlas Air, believes that 53 U.S. participating airports, opposes comments of Atlas and Condor, a vigorous enforcement of the public NACA’s petition, arguing that it would foreign carrier from Germany. interest factors currently used by the be detrimental to a wide range of U.S. As noted above, eleven foreign Department are sufficient to ensure fair interests. ACI–NA maintains that carriers filed in opposition to NACA’s treatment of U.S. carriers without NACA’s request for commercial petition. Condor Flugdienst (Germany), having to resort to ‘‘first refusal’’. equivalency focuses only on airline Grupo TACA (representing six foreign GWV states that while U.S. carriers benefits and ignores the interests of carriers from Latin America), Skyservice have long been an integral part of its airports and their local economies, and Airlines, Inc. (Canada), Lineas Aereas charter programs, it has been unable to the traveling and shipping public. Allegro (Mexico), Antonov Design obtain sufficient and competitively Similarly, ACI–NA, like many of the Bureau (Ukraine), and JMC Airlines priced lift from U.S. carriers ‘‘alone’’ to commenters opposing NACA’s petition, Limited (United Kingdom). All believe meet its operational needs. GWV further rejects NACA’s call for ‘‘first refusal,’’ that NACA’s proposal is anticompetitive stated that charter operators develop stating that implementation of such a and, if adopted, would deprive the charter markets to serve a particular practice would take away a charterer’s Department of its ability to consider the leisure market at the most economical ability to negotiate the service which needs of all aviation and aviation- cost, and adds that careful selection of best meet its needs, and ultimately related entities. aircraft, schedules and competitive rates result in the loss of U.S.-originating Condor Flugdienst (Condor) states are vital to a charter program’s success. charter programs because they would be that if the Department adopts NACA’s In that regard, foreign carriers play an priced out of the market. The loss of recommendations, the Department will

VerDate jul<14>2003 12:10 Jan 19, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\21JAP1.SGM 21JAP1 Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Proposed Rules 3161

be retreating from its support of Lineas Aereas Allegro S.A. de C.V resources scarcer and cause charter liberalization as the cornerstone of U.S. (Allegro) states that the Department’s prices to escalate, especially in aviation policy by urging trading charter policy is well-founded and Caribbean markets where some partners to embrace open skies and applied responsibly, and therefore, it is countries have no carrier able to provide move away from ‘‘balance’’ as a guide not necessary to redefine the various third/fourth-freedom competition for trading opportunities. Condor states charter types as NACA requests. Allegro against large U.S. scheduled and charter that NACA should be careful of what it further states that NACA’s ‘‘equivalency carriers. They also argue that NACA’s asks for, noting that if ‘‘economic test’’ would be burdensome to proposal would have a ‘‘chilling’’ effect balance’’ is scrutinized, there is large implement and could effectively on competition because non-U.S. category of traffic where non-U.S. prevent foreign carriers from operating carriers will not expend time or carriers are unable to compete because any fifth-freedom charter flights in U.S. resources pursuing U.S.-third country such arrangements are prohibited under markets. Allegro also believes that the traffic when such opportunities could FAA rules (specifically, the wet leasing relief sought by NACA only considers be lost to a less competitive bidder of aircraft to U.S. carriers). Condor the effect of its request on U.S. charter under a ‘‘first refusal’’ policy, ultimately believes that the ability to wet lease carriers rather than the aviation industry diminishing the ability of indirect air aircraft is of greater value than the as a whole. Allegro states that NACA’s carriers (tour operators) to select the seventh-freedom charter flight issue suggestion that foreign carrier services direct air carrier which best meets their NACA raises, and is particularly unfair to and from the United States do not needs. given that U.S. carriers face no similar meet U.S. safety standards is unfounded Reply Comments restrictions from foreign regulatory and that NACA provides no empirical authorities when they wet lease aircraft data to support its claim. Allegro also Reply comments were filed by NACA, to foreign carriers. Condor also believes disagrees with NACA’s suggestion that the Transportation Trades Department that NACA would be concerned if the Department should revise the of the AFL–CIO (TTD), Amerijet foreign governments were to apply a requirements for traffic data submitted International, Inc. (a U.S. all-cargo strict ‘‘reciprocity’’ test with respect to by foreign carriers, believing that carrier), three foreign air carriers such wet-lease services against U.S. instead of relying on T–100 data, the (Antonov, Air 2000 Limited, and carriers. Department would be better served by Allegro), the Apple Companies and 15 Grupo TACA argues that changing the comparing the actual number of third/ ARC-accredited travel agencies. name of what the Department defines as fourth-freedom flights with the number of fifth-freedom charter flights during a Reply Comments in Support of NACA’s fifth-freedom charters to seventh- Petition freedom charters would neither alter the specified time period. Antonov Design Bureau (Antonov) nature of the subject charter operations NACA believes that some of the believes that the Department’s rules nor would it impair the underlying commenters did not understand that the require that the Department’s actions on justification for the Department’s proposed changes are narrow in scope, foreign carrier charter flight requests to granting them. Grupo TACA states that while other commenters ‘‘vastly and from the U.S. to points other than NACA’s efforts to create a commercial exaggerate’’ the impact its proposed the operator’s home country are equivalency test would effectively changes would have if adopted. NACA reviewed and based on reciprocity and states that its petition does not seek to prevent airlines from smaller countries defined public interest principles, and re-regulate or restrict competition and is from participating in the charter that NACA’s distinction of ‘‘fifth’’ intended to create fair and equal business while at the same time facing versus ‘‘seventh’’ is a distinction regulatory treatment of U.S. charter and daily competition in their home without a difference. countries from large U.S. scheduled and JMC Airlines Limited (JMC) states that scheduled passenger carriers with charter carriers. NACA’s petition is contrary to the regard to seventh-freedom operations by Skyservice Airlines, Inc. (Skyservice), interests of the traveling public and is foreign carriers. NACA states that the a foreign air carrier from Canada, states designed to eliminate competition by Department has established a that the liberal and pro-competitive disqualifying non-U.S. carriers from ‘‘dichotomy’’ of regulatory treatment by environment between the United States conducting fifth-freedom charter flights. giving the larger and stronger U.S. and Canada has benefited carriers of JMC believes that by adopting NACA’s scheduled carriers preferential both sides, noting that during calendar petition, the Department would regulatory treatment over the smaller years 1999–2001, the Canadian effectively lose the ability to consider and weaker U.S. charter carriers by Transport Authority (CTA) approved the interests and needs of other approving virtually all foreign carrier requests by U.S. carriers to operate a beneficiaries of charter services when seventh-freedom charter requests, while total of 371 fifth-freedom charter flights considering fifth-freedom charter at the same time enforcing a strict policy (passenger and cargo) to and from requests by non-U.S. carriers. against allowing foreign carriers to Canada. Skyservice believes that these The U.S. indirect air carriers operate seventh-freedom scheduled services have benefited both the mentioned above oppose NACA’s flights. traveling and shipping public in both petition, believing it would have severe NACA states that it does not believe the United States and Canada and repercussions for their industry and the that foreign governments will take should not be overlooked in the context traveling public, in the form of higher retaliatory action against U.S. carriers if of NACA’s petition. Skyservice also charter prices and reduced service its proposals are adopted, nor does it questions NACA’s ‘‘equivalency’’ test options. They believe that NACA’s believe that all of its concerns can be and asks if the Canada market would petition is designed to carve out an resolved through vigorous enforcement qualify as ‘‘substantially equivalent,’’ exclusive market for NACA members of existing rules, as many of the and if not, which nation would. and reduce competition by barring commenters state. NACA maintains that Skyservice disagrees with NACA’s foreign carriers from U.S. charter failure to correct existing policies could contention that foreign carriers enjoy markets through NACA’s ‘‘first refusal’’ have serious financial consequences on cost or regulatory advantages over U.S. or ‘‘equivalency test.’’ If adopted, U.S. charter carriers and result in carriers. NACA’s proposal would make scarce possible national security concerns if

VerDate jul<14>2003 12:10 Jan 19, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\21JAP1.SGM 21JAP1 3162 Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Proposed Rules

U.S. charter carrier contributions to eliminate competition and either carriers with a right of ‘‘first refusal’’ for CRAF are diminished. increase prices or reduce the availability certain U.S.-originating passenger The TTD, on behalf of the 34 of charter vacation packages, to the charter flights. In other words, ‘‘first transportation unions it represents, detriment of the U.S. travel agent refusal’’ in that context would mean the supports NACA’s petition and states community. The agencies further right to prevent a foreign carrier from that the Department’s practice of support the Department’s longstanding operating any U.S.-originating fifth- granting foreign carrier seventh-freedom policy of letting the market set the price freedom passenger charter (under our charter requests weakens U.S. charter and quality of charter transportation existing definition) that a U.S. carrier carriers through lost revenues, and, services. wants to operate. therefore is a threat to the viability of Antonov notes that while only NACA After carefully examining the U.S. charter carrier industry. TTD members and certain labor interests comments and information in the supports NACA’s request that the filed in support of NACA’s request, record, we have tentatively determined Department subject foreign carrier groups such as tour operators, U.S. that it is in the public interest to make charter requests to a substantial airports and cities with interests closely modifications to Part 212 that would reciprocity test as well as granting U.S. aligned with the needs of consumers improve our ability to assess the merits carriers ‘‘first refusal’’ rights on foreign and the traveling public oppose NACA’s of applications filed under that Part. carrier seventh-freedom charter petition. Antonov concurs with the Background requests. TTD believes that by adopting comments filed in opposition to NACA’s recommendations the NACA’s request, and agrees with Our bilateral aviation agreements do Department will establish a meaningful comments of USA–BIAS, Suntrips Inc., not cover the passenger charter services standard for reforming current Vacation Express, and ATA, which that are at issue in this proceeding; 1 regulations which TTD believes unfairly Antonov believes are representative of therefore, U.S. and foreign carriers penalize U.S. charter carriers and their the aviation community which stands to operate these services only at the employees. lose the most if NACA’s petition is discretion of the U.S and foreign Amerijet International, Inc. (Amerijet) adopted. governments. The Department’s also supports NACA’s proposal and Like Antonov, Allegro states that an regulations require foreign airlines to believes that a review of the analysis of the comments filed in apply for permission to operate fifth- Department’s charter regulations should response to NACA’s petition suggests freedom charters (14 CFR 212.9), and be undertaken to insure that their that NACA’s petition enjoys little establish a ‘‘public interest’’ standard impact is consistent with the goals of support outside its membership and the for considering these foreign carrier the Department and the Congress. employees of some of its members, requests (§ 212.11(a)). Amerijet contends that the Department while a much broader cross-section of Reciprocity on the part of the has abandoned its longstanding policy the aviation community opposes applicant’s home country is the primary of not allowing foreign carriers to place NACA’s petition. Allegro believes that criterion for approval (§ 212.11(b)(2)). undue reliance on fifth-freedom NACA’s petition is anticompetitive and The Department also examines other services, and suggests that the NACA’s would ultimately reduce competition factors that may be relevant in specific petition serves to strengthen that policy. between U.S. and foreign carriers in the cases (for example, the extent of the Amerijet further states that following U.S. charter market to the detriment of applicant’s reliance on fifth-freedom the events of September 11, Congress the U.S. traveling public. operations in relation to its third- and made it clear that the U.S. carrier Air 2000 Limited (Air 2000) states fourth-freedom services). In making its industry requires a level of protection, that NACA’s petition is contrary to public interest determination, the and argues that that is all NACA and its international aviation policy and the Department’s approach consistently has supporters are seeking in this interests of U.S. shippers, airports and been to look not only to the interests of proceeding. the traveling public. Air 2000 further U.S. charter carriers, but also to states that NACA’s equivalency test consider the needs and concerns of Reply Comments in Opposition to would disadvantage U.S. airlines and other parties affected by its decision, NACA’s Petition U.S. workers, its ‘‘first refusal’’ proposal notably the tour operator (frequently a The Apple Companies, ARC- is anti-consumer and anticompetitive, U.S. company), and members of the accredited travel agencies, and three and revision of the definitions of the traveling public (often U.S. citizens). foreign air carriers are unanimous in freedoms of the air would lead to The Department’s longstanding policy their reply comments in opposition to protecting only U.S. charter carriers has been to give charterers the NACA’s petition. from foreign carrier competition. maximum flexibility possible to choose The Apple Companies state that the the airline services that best meet their parties supporting NACA’s petition Overview needs. The Department repeatedly has represent a narrow sector of the In its petition, NACA maintained that rejected according U.S. carriers a right industry; that those opposing NACA’s foreign air carrier charter flights of ‘‘first refusal’’. petition are unanimous in their view generate more benefit to the foreign NACA asserts that the Department has that current regulatory mechanisms are carrier industry than the U.S. carrier permitted foreign airlines to operate an sufficient to protect the public interest industry. It asserted that these flights excessive number of fifth-freedom and that the overall interests of U.S. now threaten the survival of some of its passenger charter flights under Part 212, aviation would be severely damaged by members and weaken their ability to and that our actions have harmed its NACA’s protectionist and serve the national defense. members and undermined their ability anticompetitive proposal; and, that NACA proposes a number of remedies to serve the national defense. NACA foreign carrier fifth-freedom charter to address this situation, including; operations represent a small portion of revision of the definition of fifth- 1 A number of our agreements state the parties all Public Charter flights operated freedom charters; adoption of a new, will give favorable consideration to such charters on the basis of comity and reciprocity. While this annually in the United States. more restrictive reciprocity standard; certainly reflects a spirit sympathetic to approval, The travel agencies believe that the and, creation of an amendment to our it does not formally bind the parties to such a changes proposed by NACA will regulations that would provide U.S. result.

VerDate jul<14>2003 12:10 Jan 19, 2005 Jkt 205001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\21JAP1.SGM 21JAP1 Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Proposed Rules 3163

also maintains that the effects of the require that each successive request and bad policy for the Department to events of September 11, 2001, have entail a new effort to secure the needed continue to call all passenger charter aggravated that harm and adverse verification. Under normal flights that serve countries other than impact on national defense, and that circumstances, we would consider 90 the carrier’s home country as ‘‘fifth- foreign governments do not provide days a reasonable period to rely on a freedom’’ charters.4 NACA members with reciprocal charter previously-filed verification of While we could point to various opportunities. NACA has proposed reciprocity, and our amendment to OST commenters who contend that the several changes to Department rules to Form 4540 would so indicate. Of course, charter community is so familiar with meet its concerns. Specifically, it asks if intervening events give cause to doubt our longstanding regulatory the Department to: the continuing validity of such nomenclature as to render confusion • Add to and amend the Part 212 verification, we will expect applicants unlikely, we nevertheless conclude that definitions concerning charter types so to seek a new verification, even if their even a limited degree of confusion is as to ensure, inter alia, that what it subsequent request is submitted within best avoided. Accordingly, we propose regards as seventh-freedom passenger 90 days of a previous verification. to expand the definitions in § 212.2 to operations are identified as such; Alternatively, we may advise them of expressly differentiate between fifth-, • Amend the existing Part 212 our inability to complete the processing sixth-, and seventh-freedom charters. reciprocity standard so that prior of their application absent a new Vision 100—Century of Aviation approval requires a finding of reciprocity verification. Reauthorization Act ‘‘substantially equivalent’’ reciprocity in Second, we propose to amend OST the charter market of the applicant’s Form 4540 to require applicants to Our proposed revisions to Part 212 are home country; provide additional information consistent with Section 820 of the • Alter the Department’s regarding the extent to which they are recently signed Vision 100-Century of methodology for measuring fifth- relying on fifth-freedom charter services Aviation Reauthorization Act (the Act). freedom traffic so that, in NACA’s view, to and from the United States in relation Specifically, Section 820 of the Act it more accurately reflects the realities to their overall services to and from the provides the sense of Congress that the in the marketplace and provides the U.S. As noted earlier, although this Department should ‘‘formally define Department with a better basis for relationship is an important public ‘Fifth Freedom’ and ‘Seventh Freedom’ resolving ‘‘undue reliance’’ issues; and interest consideration in our consistently for both scheduled and • Accord U.S. carriers a right of ‘‘first determination of the merits of charter passenger and cargo traffic.’’ As refusal’’ with respect to certain U.S.- applications for fifth-freedom charter noted above, we are proposing to originating fifth-freedom (seventh- authority, a number of commenters have expand the definitions in Part 212 to freedom) passenger charter flights. expressed concern that some differentiate between fifth-, sixth-, and applications for such authority do not seventh-freedom charters. The revisions Discussion contain facts that adequately address we propose will apply to both passenger Proposed Modifications to OST Form this issue. In response to those and cargo services and will standardize 4540 and Amendments to Part 212 concerns, we propose to amend OST the definitions used by the Department Form 4540 to expressly require that in for both scheduled and charter services. We are proposing two changes to Part Box 13 designated for ‘‘Other Other Issues 212 that are intended to improve our information requested by DOT,’’ (or, at ability to assess the merits of the applicant’s preference, in a cover While we are proposing the changes applications filed under that Part. We letter or attachment) applicants shall outlined above in response to NACA’s believe that these changes will enhance specify the number of third- and fourth- petition, we have concluded that the the Department’s decision-making freedom flights they have provided over record does not provide justification for process without imposing an undue the preceding calendar year.2 This adopting other changes proposed by burden on applicants or affecting the information should be presented with NACA, as they would in our view public benefits that our rules now sufficient clarity for any commenting significantly reduce other important provide. parties and the Department to readily public benefits now provided by our First, we propose to amend the evaluate the proposed services against fifth-freedom charter rules. Therefore, application form for charter applications the historical data. Failure to provide we do not anticipate adopting NACA’s (OST Form 4540) as regards the the necessary information would be proposal to require a finding of information to be provided on expected to affect the processing of the ‘‘substantially equivalent reciprocity’’ in reciprocity. Specifically, we will add a application. the charter market of the applicant’s note to the reciprocity section of OST We also propose revisions to our home country, or to accord U.S. carriers Form 4540 to establish, as an express definitions. NACA asserts that many of ‘‘first refusal’’ for U.S.-originating fifth- requirement for approval, that the the flights fitting our definition of fifth- freedom (seventh-freedom) passenger applicant explicitly provide evidence freedom charters in § 212.2 in fact charter flights. As more fully discussed that it has verified that its home country would be understood throughout the below, we believe that the adoption of government would accord reciprocal world as ‘‘seventh-freedom’’ charter either of these changes would not be in treatment to comparable U.S. carrier flights because ‘‘they do not carry the public interest. requests. We will also require that the paying passengers to, from, or via the Part 212 allows U.S. tour operators to applicant provide the date of such homeland of the carrier.’’ 3 NACA hire foreign airlines that meet the verification and with whom the argues that it is misleading, confusing requirements of that Part to provide verification was made. This verification foreign air transportation for the tour must come from an official of the 2 We are not, however, adopting NACA’s proposal operators. While U.S. tour operators rely government of the homeland of the that we make methodological changes regarding our primarily on U.S. airlines for air service, applicant. T–100 traffic data. We traditionally have based our they also use the option provided by our undue reliance determinations on flights rather Because we recognize that some than traffic, and NACA has presented no persuasive rules to use the services of foreign applicants may file multiple requests reason to alter that approach. within a limited period, we will not 3 NACA Petition, at 4. 4 Id., at 5.

VerDate jul<14>2003 12:10 Jan 19, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\21JAP1.SGM 21JAP1 3164 Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Proposed Rules

carriers in third-, fourth-, and fifth- services around the world and because disagree with this contention. The freedom markets. The tour operators those services are operated completely international aviation industry is still have demonstrated that this option at the discretion of foreign governments. heavily regulated. Most governments enhances their ability to compete with The essence of NACA’s position is believe that charter service and airlines and cruise ship operators in the that our rules permit foreign airlines to scheduled service are in separate highly competitive discretionary travel conduct business in markets that should product markets; therefore, they have markets. We also recognize that tour be reserved only for U.S. airlines; created different opportunities and have operators have made an important however, the business which NACA is imposed different restrictions on each contribution to competition by offering referring to involves the provision of class of service. Thus, while most attractive price and service alternatives service to tour operators, many of which nations permit U.S. airlines to operate to the marketplace. are U.S. companies. Most of the tour charter flights between their home By contrast, it is likely that the operators participating in this countries and third countries, they changes proposed by NACA would proceeding commented that there is no prohibit U.S. airlines from providing inhibit competition in markets served need to make major changes to our fifth- scheduled service between their home by U.S. tour operators. This is especially freedom rules, and that those changes countries and third countries. Our rules true to the extent that they would proposed by NACA would be harmful to reflect the realities of the still-regulated prevent tour operators from using both their interests and competition. We international aviation system. While we foreign airlines by requiring, for believe that the weight of the evidence would prefer to have a situation that example, the latter to obtain NACA’s supports that position. imposes no restrictions on international permission before they may provide NACA maintains that competition aviation services, we note the existing transportation for U.S. tour operators in from the foreign charter operators hired situation has provided U.S. charter certain fifth-freedom and seventh- by U.S. tour operators has harmed airlines with advantages that are not freedom markets. NACA members and has undermined afforded to U.S. scheduled airlines. In calendar year 2001, the Department their ability to serve the national authorized foreign airlines to provide defense. Our data shows, however, that Regulatory Analyses and Notices 1490 roundtrip fifth-freedom charters on the number of fifth-freedom charter All comments received before the behalf of U.S. tour operators, or fewer flights authorized by the Department close of business on the comment than five roundtrip fifth-freedom amount to a small percentage of the closing date indicated above will be charters per day.5 Yet, this relatively flights that NACA members operate. In considered and will be available for small number of authorizations is calendar year 2001, for example, that examination in the docket at the above important to a number of foreign number was less than 6% of the total address. Comments received after the airlines and their home countries. In number of civilian charters that NACA comment closing date will be these circumstances, our rules promote carriers operated and reported to the considered to the extent practicable. In good aviation relations with other Department. It is likely that those addition to late comments, the nations and support a liberal aviation authorizations had a smaller impact on Department will also continue to file environment that has benefited our NACA members than Department relevant information in the docket as it citizens and airline industry overall. records indicate, considering that: (1) It becomes available after the comment This point is illustrated by the fact that is likely the foreign airlines did not use period closing date, and interested in 2001 we authorized airlines from all of the authorizations for which they persons should continue to examine the Mexico and Central America to provide obtained Department authority; (2) docket for new material. 512 fifth-freedom roundtrip charters, NACA members operated a large while U.S. airlines were providing number of military charters that are not Executive Order 12866 (Regulatory nearly 140,000 flights—and carrying reported to us; and, (3) NACA members Planning and Review) and DOT two-thirds of the cargo and passenger have benefited from the extensive fifth- Regulatory Policies and Procedures traffic—in the U.S.-Mexico/U.S.-Central freedom opportunities provided by This rule is a significant regulation America aviation markets.6 other governments. under Executive Order 12866 and DOT’s Furthermore, as the Air Transport NACA maintains that the rules have Regulatory Policies and procedures Association (ATA), airlines, and other created a large aviation trade deficit because of public interest. The NPRM concerned parties have pointed out, with other nations because our fifth- was reviewed by the Office of NACA’s proposal could invite freedom charter markets are Management and Budget under retaliation against U.S. airlines by significantly larger. We disagree. As Executive Order 12866. The rule will foreign governments because it could noted above, our charter rules have not impose any new costs on applicant remove valuable fifth-freedom charter supported a liberal aviation carriers. It simply would clarify the opportunities now enjoyed by their environment that has allowed U.S. types of charters being conducted. The airlines. U.S. airlines providing airlines to capture traffic and revenues change to OST Form 4540 is minor and scheduled service would be vulnerable far in excess of the traffic and revenues will require no additional burden on the to retaliation because of the huge stake that have been achieved by foreign applicant carriers. they have in the bilateral aviation airlines operating fifth-freedom flights, markets that would be affected. Also, and has permitted our airlines to take Executive Order 13132 (Federalism such action would expose U.S. airlines advantage of the extensive fifth-freedom Assessment) providing wet-lease services to foreign and wet-lease opportunities provided by The Department has analyzed this airlines to a serious risk of harm because other governments. rulemaking action in accordance with they are major providers of wet-lease NACA also contends that the rules the principles and criteria set forth in discriminate against its members Executive Order 13132 and has 5 Foreign air carrier applications for statements of because our rules prohibit ‘‘all 7th determined that it does not have authorization under 14 CFR Part 212 are on file in freedom scheduled passenger flights by sufficient federalism implications to the Department’s Foreign Air Carrier Licensing Division, Room 6412, 400 7th Street, SW., foreign carriers,’’ while permitting what warrant consultation with State and Washington, DC 20590. NACA refers to as seventh-freedom local officials. The Department 6 Form T–100 data on file with the Department. charter flights by foreign carriers. We anticipates that any action taken will

VerDate jul<14>2003 12:10 Jan 19, 2005 Jkt 205001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\21JAP1.SGM 21JAP1 Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Proposed Rules 3165

not preempt a State law or State requirement to the Office of Information For the reasons set forth in the regulation or affect the States’ ability to and Regulatory Affairs of the OMB for preamble, the Department proposes to discharge traditional State government review, and reinstatement, with change amend Part 212 as follows: functions. of a previously approved collection for which approval has expired. PART 212—CHARTER RULES FOR Regulatory Flexibility Act OST Form 4540 is a required U.S. AND FOREIGN DIRECT AIR The Regulatory Flexibility Act (5 Application for Statement of CARRIERS U.S.C. 601, et seq.) requires an agency Authorization for foreign air carriers to to review regulations to assess their file with the Department prior to 1. The authority citation for 14 CFR impact on small entities unless the engaging in certain charter operations to Part 212 continues to read as follows: agency determines that a rule is not and from the United States. The Authority: 49 U.S.C. 40101, 40102, 40109, expected to have a significant impact on Department grants the authorization to 40113, 41101, 41103, 41504, 41702, 41708, a substantial number of small entities. the foreign air carrier. Foreign air 41712, 46101. The Department will analyze any action carriers file this form as often as 2. Amend § 212.2 by adding, in that might be proposed for the purpose necessary whenever they have charter alphabetical order among the existing of the Regulatory Flexibility Act. flights required by Part 212. This form definitions, a definition of ‘‘Sixth The Department certifies that this rule is required for all foreign air carriers freedom charter’’ after ‘‘Single entity will not have a significant economic seeking Department authority to charter,’’ and a definition of ‘‘Seventh impact on a substantial number of U.S. conduct certain types of charter flights, freedom charter’’ after ‘‘Part charter.’’ small businesses. Because the rule is and does not require a significant applicable to foreign air carriers, the amount of time and is not burdensome § 212.2 Definitions. proposed changes in the NPRM will not to complete. * * * * * have a significant impact on small OMB Number: 2106–0035. Sixth-freedom charter means a charter entities within the meaning of 5 U.S.C. Title: 14 CFR Part 212—Charter Rules flight carrying traffic that originates and 601, et seq. for U.S. and Foreign Direct Air Carriers. terminates in a country other than the Burden hours: 1000. Regulation Identifier (RIN) country of the foreign air carrier’s home Affected public: Business or other for- country, provided the flight operates via A regulation identifier (RIN) is profit. the home country of the foreign air Cost: $400,000.00. assigned to each regulatory action listed carrier. in the Unified Agenda of Federal Description of Paperwork: The Regulations. The Regulatory Information proposed changes to the rulemaking and * * * * * Service Center publishes the Unified the form are intended to improve the Seventh-freedom charter means a Agenda in April and October of each Department’s ability to assess the merits charter flight carrying traffic that year. The RIN contained in the heading of applications filed under Part 212, and originates and terminates in a country of this document can be used to cross- will ensure that the Department has the other than the foreign air carrier’s home reference this action with the Unified most current information on the state of country, where the flight does not have Agenda. reciprocity for each foreign carrier a prior, intermediate, or subsequent stop applicant for charter authority filed in the foreign air carrier’s home country. Unfunded Mandates Reform Act under Part 212. These proposed changes * * * * * The changes proposed would not will also enhance the Department’s 3. In § 212.9, revise paragraph (b)(1) to impose any unfunded mandates for the decision-making process without read as follows: purpose of the Unfunded Mandates imposing an undue burden on Reform Act of 1995. applicants or affecting the public § 212 Prior authorization requirements. benefits that the Department’s rules now * * * * * Paperwork Reduction Act provide. The collection of historical (b) * * * Under the Paperwork Reduction Act data relative to the applicant’s U.S.- (1) Fifth-, sixth-and/or seventh- of 1995, 44 U.S.C. 3501–3520, Federal home country operations will allow the freedom charter flights to or from the agencies must obtain approval from the Department to satisfy any concerns it United States; Office of Management and Budget might have as to the applicant’s reliance * * * * * (OMB) for each collection of on fifth-, sixth- and seventh-freedom information they conduct, sponsor, or operations. Issued this 10th day of January, 2005, in require through regulations. This rule Washington, DC. contains information collection List of Subjects in 14 CFR Part 212 Karan K. Bhatia, requirements. As required by the Air carriers, Air transportation, Assistant Secretary for Aviation and Paperwork Reduction Act, the Charter flights, Reporting and International Affairs. Department will submit this recordkeeping requirements. BILLING CODE 4910–62–P

VerDate jul<14>2003 12:10 Jan 19, 2005 Jkt 205001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\21JAP1.SGM 21JAP1 3166 Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Proposed Rules

VerDate jul<14>2003 12:10 Jan 19, 2005 Jkt 205001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4725 E:\FR\FM\21JAP1.SGM 21JAP1 EP21JA05.000 Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Proposed Rules 3167

[FR Doc. 05–1107 Filed 1–19–05; 8:45 am] BILLING CODE 4910–62–C

VerDate jul<14>2003 12:10 Jan 19, 2005 Jkt 205001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\21JAP1.SGM 21JAP1 EP21JA05.001 3168 Federal Register / Vol. 70, No. 13 / Friday, January 21, 2005 / Proposed Rules

DEPARTMENT OF HOMELAND the comment period. We may change other hours. Vessel traffic includes SECURITY this proposed rule in view of them. tugboats, barges, derrick barges, sailboats and motorized recreational Public Meeting Coast Guard boats including large yachts. The We do not now plan to hold a public majority of vessels pass through the 33 CFR Part 117 meeting. But you may submit a request dual bascule spans during hours other for a meeting by writing to the Aids to than the proposed closure times. [CGD13–04–047] Navigation and Waterways Management First Avenue South is a heavily RIN 1625–AA09 Branch at the address under ADDRESSES traveled commuter arterial that serves explaining why one would be Boeing Company plants and other Drawbridge Operation Regulations; beneficial. If we determine that one industrial facilities in south Seattle. Duwamish Waterway, Seattle, WA would aid this rulemaking, we will hold Currently, the dual bascule spans need one at a time and place announced by not open for the passage of vessels from AGENCY: Coast Guard, DHS. a later notice in the Federal Register. 6 a.m. to 9 a.m. and from 3 p.m. to 6 ACTION: Notice of proposed rulemaking. p.m. Monday through Friday. Vessels of Background and Purpose 5000 gross tons or more and vessels SUMMARY: The Coast Guard proposes to The dual First Avenue South bascule enroute to tow such vessels may request temporarily change the operating bridges provide 32 feet of vertical an opening at any time. regulations for the First Avenue South clearance above mean high water for the However, under this proposal, dual drawbridges across the Duwamish central 100 feet of horizontal distance in between June 1 and October 1, 2005, Waterway, mile 2.5, at Seattle, the channel spans. When the drawspans from Sunday to Friday, the draws need Washington. The proposed change are open there is unlimited vertical not be opened for the passage of any would enable the bridge owner to keep clearance for the central 120 feet of the vessels from 9 p.m. to 5 a.m. the bridges closed during night hours spans. An adjacent, parallel bascule Furthermore, Vessels of 5000 gross tons for a 4-month period. This would bridge was constructed and completed or more and vessels enroute to tow such facilitate painting the structure while in 1999. Drawbridge openings are vessels must provide one-hour notice properly containing debris and paint. provided for recreational vessels, large for openings during the current DATES: Comments and related material barges, and floating construction weekday closed periods. Vessels of this must reach the Coast Guard on or before equipment. size infrequently ply this reach of the March 22, 2005. The operating regulations currently in waterway. The dual spans open an ADDRESSES: You may mail comments effect for these drawbridges at 33 CFR average of four times a day. Draw logs and related material to Commander 117.1041 provide that the spans need show that up to 25% of openings have (oan), 13th Coast Guard District, 915 not open for the passage of vessels from happened during the proposed hours of Second Avenue, Seattle, WA 98174– 6 a.m. to 9 a.m. and from 3 p.m. to 6 closure. Many of these vessels could 1067 where the public docket for this p.m. Monday through Friday, except on schedule movements to avoid these rulemaking is maintained. Comments all Federal holidays but Columbus Day. periods. The draws must open at any time for a and material received from the public, Regulatory Evaluation as well as documents indicated in this vessel of 5,000 gross tons and over, a preamble as being available in the vessel towing such a vessel or en route This proposed rule is not a docket, will become part of this docket to take in tow a vessel of that size. ‘‘significant regulatory action’’ under and will be available for inspection or The proposed temporary rule would section 3(f) of Executive Order 12866, copying at the Aids to Navigation and enable the bridge owner to paint the Regulatory Planning and Review, and Waterways Management Branch structure after preparing the surfaces of does not require an assessment of between 7:30 a.m. and 4 p.m., Monday the steel truss beneath the roadway. All potential costs and benefits under through Friday, except Federal holidays. of this work must be accomplished section 6(a)(3) of that Order. The Office within a containment system that of Management and Budget has not FOR FURTHER INFORMATION CONTACT: permits no material to fall into the reviewed it under that Order. It is not Austin Pratt, Chief, Bridge Section, waterway. This containment system ‘‘significant’’ under the regulatory (206) 220–7282. would have to be removed or partially policies and procedures of the SUPPLEMENTARY INFORMATION: dismantled for drawspan openings. Department of Homeland Security. Request for Comments Therefore, the bridge owner has We expect the economic impact of requested periods in which the work this proposed rule to be so minimal that We encourage you to participate in may proceed without frequent a full Regulatory Evaluation under the this rulemaking by submitting interruption. regulatory policies and procedures of comments and related material. If you DHS is unnecessary. do so, please include your name and Discussion of Proposed Rule We reached this conclusion based on address, identify the docket number for This proposed rule would allow the the fact that most vessels will be able to this rulemaking [CGD13–04–047], bridge to remain closed to navigation plan transits to avoid the closed periods. indicate the specific section of this from 9 p.m. to 5 a.m. Sunday through Most commercial vessel owners have document to which each comment Friday from June 1 to October 1, 2005. indicated that they can tolerate the applies, and give the reason for each One-hour notice would be required for proposed hours by working around comment. Please submit all comments openings during the currently them. Saturdays will enjoy normal and related material in an unbound established weekday closed periods operations, lessening inconvenience to format, no larger than 81⁄2 by 11 inches, discussed below. sailboats. suitable for copying. If you would like Preliminary analysis indicates that to know they reached us, please enclose most vessel operators will not be Small Entities a stamped, self-addressed postcard or inconvenienced by the hours of Under the Regulatory Flexibility Act envelope. We will consider all temporary closure. Others would (5 U.S.C. 601–612), we have considered comments and material received during receive enough notice to plan trips at whether this proposed rule would have

VerDate jul<14>2003 12:10 Jan 19, 2005 Jkt 205001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\21JAP1.SGM 21JAP1