7306 Federal Register / Vol. 75, No. 32 / Thursday, February 18, 2010 / Notices 

1Operating Limitations at New York LaGuardia 

Airport, 71 FR 77,854 (Dec. 27, 2006); 72 FR 63,224 

(Nov. 8, 2007) (transfer, minimum usage, and 

withdrawal amendments); 72 FR 48,428 (Aug. 19, 

2008) (reducing the reservations available for 

unscheduled operations); 74 FR 845 (Jan. 8, 2009) 

(extending the expiration date through Oct. 24, 

2009); 74 FR 2,646 (Jan. 15, 2009) (reducing the 

peak-hour cap on scheduled operations to 71); 74 

FR. 51,653 (Oct. 7, 2009) (extending the expiration 

date through Oct. 29, 2011). 

2 14 CFR part 93, subparts K and S. 

3The parties would also exchange terminal 

facilities at LaGuardia, and Delta would transfer 

two foreign route authorities to US Airways. 

4 280 operating authorizations at LaGuardia and 

84 slots at Reagan National. 

5 14 CFR Section 93.221. 

DSC certifies that the projected 

annual revenues as a result of the 

proposed transaction will not exceed 

those that would qualify it as a Class III 

carrier. 

DSC states that it expects the 

transaction to be consummated no 

earlier than 30 days after the filing of 

the notice. The earliest this transaction 

can be consummated is March 4, 2010, 

the effective date of the exemption (30 

days after the exemption was filed). 

If the verified notice contains false or 

misleading information, the exemption 

is void ab initio. Petitions to revoke the 

exemption under 49 U.S.C. 10502(d) 

may be filed at any time. The filing of 

a petition to revoke will not 

automatically stay the effectiveness of 

the exemption. Stay petitions must be 

filed no later than February 25, 2010 (at 

least 7 days before the exemption 

becomes effective). 

An original and 10 copies of all 

pleadings, referring to STB Finance 

Docket No. 35351, must be filed with 

the Surface Transportation Board, 395 E 

Street, SW., Washington, DC 20423– 

0001. In addition, a copy of each 

pleading must be served on Thomas F. 

McFarland, Thomas F. McFarland, P.C., 

208 South LaSalle Street, #1890, 

Chicago, IL 60604–1112. 

Board decisions and notices are 

available on our Web site at 

http:www.stb.dot.gov. 

Decided: February 12, 2010. 

By the Board, Rachel D. Campbell, 

Director, Office of Proceedings. 

Andrea Pope-Matheson, 

Clearance Clerk. 

[FR Doc. 2010–3059 Filed 2–17–10; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

[Docket No. FAA–2010–0109] 

Petition for Waiver of the Terms of the 

Order Limiting Scheduled Operations 

at LaGuardia Airport 

ACTION: Notice of a petition for waiver 

and solicitation of comments on grant of 

petition with conditions. 

SUMMARY: Delta Air Lines and US 

Airways submitted a joint waiver 

request from the prohibition on 

purchasing operating authorizations 

(‘‘slots’’ or ‘‘slot interests’’) at LaGuardia 

Airport (LGA). The carriers requested 

the waiver to allow them to 

consummate a transaction in which 

Delta would transfer 42 pairs of slot 

interests to US Airways at Ronald 

Reagan Washington National Airport 

(DCA), international route authorities to 

Sa ̃o Paulo and Tokyo; and terminal 

space at the Marine Air Terminal at 

LGA. US Airways would transfer 125 

pairs of slot interests to Delta at LGA, 

and would lease an additional 15 pairs 

of LGA slot interests with a purchase 

option, together with terminal space in 

LGA’s Terminal C. We have evaluated 

the proposed transaction and tentatively 

determined that, while the proposed 

transaction has a number of benefits, a 

grant of the waiver in its entirety would 

result in a substantial increase in market 

concentration that would harm 

consumers. Accordingly, while we have 

tentatively decided to grant Delta Air 

Lines’ and US Airways’ joint waiver 

request in part, we have tentatively 

determined that the public interest 

would best be served by creating new 

and additional competition at the 

airports to counterbalance the potential 

harm to consumers. To achieve that 

goal, our proposed waiver would 

require the divestiture of 14 pairs of slot 

interests at DCA and 20 pairs of slot 

interests at LGA to new entrant and 

limited incumbent carriers. 

DATES: Comments on the FAA’s 

proposed grant of the petition for waiver 

with conditions must clearly identify 

the docket number and must be received 

on or before March 22, 2010. 

ADDRESSES: You may send comments 

identified by Docket Number FAA– 

2010–0109 using any of the following 

methods: 

• Government-wide docketing system: 

Go to http://www.regulations.gov and 

follow the instructions for sending your 

comments electronically. 

• Mail: Send comments to the Docket 

Management Facility; US Department of 

Transportation, 1200 New Jersey 

Avenue, SE., West Building Ground 

Floor, Room W12–140, Washington, DC 

20590. 

• Fax: Fax comments to the Docket 

Management Facility at (202) 493–2251. 

• Hand Delivery: Bring comments to 

the Docket Management Facility in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

Privacy Considerations: We will post 

all comments we receive, without 

change, to http://www.regulations.gov, 

including any personal information you 

provide. Using the search function of 

our docket Web site, anyone can find 

and read the comments received into 

any of our dockets, including the name 

of the individual sending the comment 

(or signing the comment for an 

association, business, labor union, etc). 

You may review the Department of 

Transportation’s complete Privacy Act 

Statement in the Federal Register at 65 

FR 19,477–78 (Apr. 11, 2000). 

Reviewing the Docket: To read 

background documents or comments 

received in this matter, go to http:// 

www.regulations.gov at any time or go to 

the Docket Management Facility in 

Room W12–140 on the ground floor of 

the West Building at 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Rebecca MacPherson, Assistant Chief 

Counsel for Regulations, by telephone at 

(202) 267–3073 or by electronic mail at 

Rebecca.macpherson@faa.gov. 

SUPPLEMENTARY INFORMATION: The FAA 

currently limits the number of 

scheduled and unscheduled operations 

during peak hours at LaGuardia Airport 

by virtue of an order that the FAA 

published in December 2006 and 

subsequently amended (Order).1 The 

High Density Rule (HDR) 2 limits 

scheduled and unscheduled operations 

at Ronald Reagan Washington National 

Airport. Because of the operating 

limitations, slots at LaGuardia and at 

Reagan National Airports are a scarce 

resource. 

Two air carriers, Delta and US 

Airways, have proposed an exchange of 

slot interests at these two airports.3 This 

exchange, which could potentially 

impact as many as 182 round-trip 

operations 4 at the two airports, would 

qualify as a purchase under both the 

Order and the HDR.5 The carriers 

consider the slot interest exchanges to 

be part of an integrated transaction 

because the sale of US Airways’ slot 

interests to Delta at LGA is conditioned 

upon the purchase by US Airways of 

Delta’s slot interests at DCA. 

The Order currently does not allow 

for the purchase and sale of slot 

interests at LaGuardia. Instead, it 

contains a provision that limits carriers 

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Federal Register / Vol. 75, No. 32 / Thursday, February 18, 2010 / Notices 7307 

6 74 FR at 51,654 (ordering paragraph A.5). 

to leases and trades to another carrier 

for the duration of the Order, which 

presently expires October 29, 2011.6

The only way for a carrier to sell or 

purchase a slot interest at LaGuardia is 

through a waiver of the Order. 

We reviewed this transaction as a 

result of the request by the parties for a 

waiver to the Order. Our ultimate 

decision with respect to the waiver 

request will be limited in scope. Our 

proposed grant of the waiver would 

transfer to Delta the same interests in 

the transferred US Airways’ slots at 

LaGuardia that US Airways currently 

holds, under the terms of the Order. The 

waiver will not grant either carrier, or 

any transferee of divested slots, an 

interest in the slots that will extend 

beyond the term of the existing Order. 

Our proposed waiver does not limit the 

existing rights of any other carrier to 

dispose of its interests in slots at either 

affected airport. 

The proposed transaction is unique in 

scope and scale. We have evaluated the 

competitive impact of the transaction in 

this case because of its size and scope 

and its anticipated impact on two of our 

country’s most congested and 

prominent airports. We are proposing 

conditional divestitures in this case 

because of the unusual size of the 

transaction, which dramatically 

enhances the respective market position 

of Delta at LaGuardia and US Airways 

at Reagan National Airport, the reduced 

competitive incentives that the carriers 

would have at the respective airports, 

and the potential for use of the 

transferred slot interests in an 

anticompetitive manner. We have not 

determined that an analysis of the 

impact of a transaction on competition 

or the imposition of targeted remedies is 

appropriate or necessary for future 

transfers of slot interests, and our 

tentative conclusions in this matter 

should not be interpreted to impose 

such a requirement. Our tentative 

waiver should not be read to prejudice 

or predetermine any long-term policy 

decisions relating to congestion 

management at either of the affected 

airports. 

The FAA is authorized to grant an 

exemption from the Order when the 

Administrator determines the 

‘‘exemption is in the public interest.’’ 49 

U.S.C. 40109. See Starr v. Federal 

Aviation Administration, 589 F.2d 307, 

311 (7th Cir. 1978). The Order (as well 

as the HDR) was issued pursuant to the 

FAA’s authority to ‘‘develop plans for 

the use of the navigable airspace’’ and 

‘‘assign by regulation or order the use of 

the airspace necessary to ensure the 

safety of aircraft and the efficient use of 

airspace.’’ 49 U.S.C. 40103(b)(1). 

Further, the Administrator is authorized 

to ‘‘modify or revoke an assignment 

when required in the public interest.’’ 

Id. The FAA has tentatively decided to 

grant the carriers’ waiver request, 

subject to the conditions described in 

this Notice. 

In considering what is in the public 

interest in this instance, the FAA is 

guided by the policy goals prescribed 

for the Secretary in 49 U.S.C. 

40101(a)(4), (6), (10–13) and the procompetition policies followed by 

Congress in adopting legislation on 

matters such as slot exemptions and 

airport grant programs. See, e.g., Delta 

Air Lines v. CAB, 674 F2d 1 (D.C. Cir. 

1982); Congestion and Delay Reduction 

Rule at Chicago O’Hare International 

Airport, 71 FR 51,382, 51,388–90 (Aug. 

29, 2006) (O’Hare Rule). These procompetitive policies derive from the 

Airline Deregulation Act of 1978 and 

direct the Secretary to consider, as in 

the public interest, placing maximum 

reliance on airline competition and 

opportunities for new entrant airlines. 

In our O’Hare Rule, we relied on these 

pro-competitive policies in granting 

preferential treatment to new entrant 

and limited incumbent airlines in 

assigning new or withdrawn slots 

(termed ‘‘arrival authorizations’’). Id.; 14 

CFR 93.30. We noted that the ‘‘courts 

have approved the Secretary’s reliance 

on the pro-competition policies in 

allocating slots under the HDR. 

Northwest Airlines v. Goldschmidt, 645 

F.2d 1309, 1315 (8th Cir. 1980).’’ And, 

in response to the congestion caused by 

AIR–21 slot exemptions at LaGuardia, 

we issued orders that allocated those 

slot exemptions and ‘‘took into account 

the need to promote competition.’’ See 

66 FR 41,294 (Aug. 7, 2001) and 67 FR 

65,826 (Oct. 28, 2002). 

The pro-competitive policies of the 

Airline Deregulation Act emphasize the 

interests of the traveling public in 

having available ‘‘low-priced services,’’ 

‘‘entry into air transportation markets by 

new and existing air carriers,’’ ‘‘actual 

and potential competition,’’ and in 

avoiding ‘‘unfair * * * or 

anticompetitive practices in air 

transportation,’’ and ‘‘unreasonable 

industry concentration, excessive 

market domination [or] monopoly 

powers * * * in air transportation,’’ 49 

U.S.C. 40101(a)(4), (6), (9), (10), (11), 

(12) and (13). See Morales v. Trans 

World Airlines, Inc., 504 U.S. 374, 378 

(1992) (Congress enacted the Airline 

Deregulation Act in 1978, which 

loosened its economic regulation of the 

airline industry after determining that 

‘‘ maximum reliance on competitive 

market forces’ would best further 

‘efficiency, innovation, and low prices’ 

as well as ‘variety [and] quality * * * 

of air transportation.’ ’’); American 

Airlines v. Wolens, 513 U.S. 219, 230 

(1995); Air Transport Ass’n of America, 

Inc. v. Cuomo, 520 F.3d 218, 222 (2d 

Cir. 2008). 

In addition to the pro-competitive 

policies of the Airline Deregulation Act, 

Congress also directed the Secretary to 

consider, as being in the public interest, 

matters that maintain and improve the 

health of the aviation industry such as 

‘‘[encouraging] efficient and wellmanaged air carriers to earn adequate 

profits and attract capital,’’ ‘‘developing 

and maintaining a sound regulatory 

system that is responsive to the needs of 

the public,’’ and ‘‘promoting, 

encouraging, and developing civil 

aeronautics and a viable, privatelyowned United States air transport 

industry.’’ 49 U.S.C. 40101(a)(6)(B), (7), 

and (14). Furthermore, service to small 

communities is another important 

public interest factor. 49 U.S.C. 

40101(a)(11) and (16). 

The carriers assert that their petition 

should be granted because it would 

benefit each of the carriers (e.g., it 

would facilitate Delta building a 

domestic hub at LGA and US Airways 

enhancing its network at DCA), would 

produce more efficiencies at LGA (e.g., 

Delta plans to use jet aircraft in place of 

US Airways’ turboprops), would 

provide new and enhanced service to 

small communities, and would benefit 

consumers through enhanced network 

connectivity by Delta at LGA and US 

Airways at DCA. The FAA has 

evaluated the potential impact on air 

traffic operations at the respective 

airports, and it believes there will be 

little to no impact on the agency’s 

ability to manage traffic at either airport. 

Based on our review of the petition, we 

tentatively find that much of the request 

meets the public interest standards of 

ensuring the efficiency of use of the 

navigable airspace and warrants a 

waiver. Additionally, the transaction 

would satisfy the public interest 

objectives related to promoting a viable 

domestic airline industry, encouraging 

well-managed carriers, and attracting 

capital and protecting service to small 

communities. 

We also tentatively find that it would 

further the pro-competitive public 

interest factors to condition the waiver 

on making certain slot interests 

available to new entrant and limited 

incumbent carriers, as explained more 

fully below. Our waiver would require 

Delta and US Airways, respectively, to 

divest 14 pairs of slot interests at DCA 

and 20 pairs of slot interests at LGA. 

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7308 Federal Register / Vol. 75, No. 32 / Thursday, February 18, 2010 / Notices 

The divestiture of the respective DCA 

and LGA slot interests would occur 

through sales to U.S. or Canadian 

carriers that have, as of the date of any 

final decision granting a waiver, less 

than five percent of the total slot interest 

holdings at DCA or LGA respectively, 

do not code share on flights to or from 

DCA or LGA with any carrier that has 

five percent or more slot interest 

holdings, and are not subsidiaries, 

either partially or wholly-owned, of a 

company whose combined slot interest 

holdings are equal to or greater than five 

percent at DCA or LGA, respectively. 

Thus, a carrier having less than five 

percent of slot interest holdings at DCA 

and not involved in a code-share 

relationship at DCA with a carrier 

holding five percent or more of the DCA 

slot interests as of the date of any final 

decision granting a waiver would be 

eligible to purchase divested DCA slots, 

even though that carrier has five percent 

or more of the LGA slot interest 

holdings, and vice versa. 

We are including both Canadian and 

U.S. air carriers in the class of new 

entrant and limited incumbent carriers 

eligible to purchase the divested slots. 

The Air Transport Agreement between 

the U.S. and Canada provides generally 

that the U.S. Government treats 

Canadian airlines in the same way as it 

treats U.S. airlines, for purposes of slot 

allocation at slot-regulated airports. 

The ‘‘public interest’’ standard 

provides the Administrator with broad 

powers to condition waivers. The 

Administrator is expressly authorized to 

‘‘take action [he] considers necessary to 

carry out [the Air Commerce and Safety 

part of Title 49 U.S.C.]’’ and to prescribe 

orders as appropriate. 49 U.S.C. 

40113(a), 46105(a). It is not uncommon 

for federal agencies to condition grants 

of waivers or exemptions upon meeting 

certain public interest requirements. 

Winter v. Natural Resources Defense 

Council, 129 S.Ct. 365, 371 (2008) (Navy 

granted an exemption from the Marine 

Mammal Protection Act for training 

exercises conditioned on adopting 

mitigation procedures); Clifford v. Pen ̃ a, 

77 F.3d 1414, 1416 (D.C. Cir. 1996) 

(waiver of Merchant Marine Act for 

domestic ship operator to operate new 

foreign flag vessels conditioned on 

certain operating requirements); 

National Small Shipments Traffic 

Conference, Inc. v. C.A.B., 618 F.2d 819 

(D.C. Cir. 1980) (CAB has broad 

discretion to grant exemptions to 

promote price competition). 

Furthermore, in carrying out the 

Secretary’s airline economic regulatory 

oversight, the Department previously 

has found that the public interest may 

require conditions upon the approval of 

a transaction, including divestitures of 

slots and/or other assets, such as route 

authority. See, e.g., U.S.-U.K. Alliance 

Case, DOT Order 2002–1–12 (January 

25, 2002) (tentative grant of conditional 

approval and antitrust immunity to an 

alliance of domestic and foreign air 

carriers, based in part on a finding that 

the divestiture by American Airlines 

and British Airways of London 

Heathrow Airport slots and access to 

necessary ground facilities to U.S. 

competitors, was required in the ‘‘public 

interest’’); Joint Application of American 

Airlines, Inc. and Trans World Airlines, 

Inc. for Approval of Transfer of 

Certificates (U.S.-London Routes), DOT 

Order 91–4–46 (April 24, 1991) (finding 

that the ‘‘public interest’’ permits the 

approval of the transfer of certain TWA 

route authority, by sale, to American 

and requires the disapproval of other 

route authority transfers contemplated 

by TWA’s agreement with American); 

Pacific Division Transfer Case, DOT 

Order 85–11–67 (October 31, 1985) 

(approval of United’s acquisition of Pan 

American’s Pacific route authority on 

the condition that the ‘‘public interest’’ 

may require that United surrender its 

Seattle/Portland-Tokyo/Osaka authority 

should the Department so order in a 

future proceeding). 

Further, the Department has amended 

route certificates to delete authority 

upon a finding that the ‘‘public 

convenience and necessity’’ so requires. 

See Central Zone-Caracas/Maracaibo 

Venezuela Service Case, DOT Order 83– 

4–49 (March 9, 1983); AmericanEastern/Continental Route Transfer, 

DOT Order 90–5–5 (April 26, 1990). The 

conditions we tentatively adopt on our 

waiver of the slot transaction are based 

on our concerns that approving the 

waiver in full would hinder competition 

at the two airports and disadvantage the 

traveling public. 

Entry is constrained at both DCA and 

LGA. The HDR adopted at DCA limits 

hourly instrument flight operations by 

air carriers, commuters and other 

airlines, as prescribed in 14 CFR part 93, 

subpart K; allocation of DCA slots is 

governed by 14 CFR part 93, subpart S; 

and nonstop flight operations at DCA 

are limited by a 1,250 mile perimeter 

under 49 U.S.C. 49109 and 14 CFR part 

93, subpart T. See City of Houston v. 

Federal Aviation Administration, et al., 

679 F.2d 1184 (5th Cir. 1982). The HDR 

notes that ‘‘slots do not represent a 

property right but represent an 

operating privilege subject to absolute 

FAA control. Slots may be withdrawn at 

any time to fulfill the Department’s 

operational needs * * *.’’ 14 CFR 

93.223. As noted, the FAA Order 

addressing congestion at LGA also caps 

flights at that airport; LaGuardia is also 

constrained by a locally imposed 1,500 

mile perimeter. See Western Air Lines v. 

Port Authority of N.Y. and N.J., 817 F.2d 

222 (2d Cir. 1987). 

It is well-accepted that the secondary 

slot market at the slot-controlled 

airports has not resulted in robust entry 

by new entrants or expansion by limited 

incumbents. See Airport Business 

Practices and Their Impact on Airline 

Competition, FAA/OST Task Force 

Study, at 32 (Oct. 1999); Secretary’s 

Task Force on Competition in the U.S. 

Domestic Airline Industry (1990) at 2–27 

noting incumbent carriers have the 

potential to exert market power in slot 

pricing, creating a barrier to entry. The 

Government Accountability Office 

(GAO) also found that new entrant air 

carriers were unable to gain access to 

the slot-controlled airports in a 

predictable manner and with sufficient 

slots to provide meaningful competitive 

service and that incumbent carriers 

tended to hoard excess slots which they 

may lease to related airlines. Airline 

Competition: Industry Operating and 

Marketing Practices Limit Market Entry, 

GAO/RCED–90–147 (Aug. 29, 1990). 

The congressionally-created National 

Commission to Ensure a Strong 

Competitive Airline Industry also found 

that the HDR limited competition. A 

Report to the President: Change, 

Challenge and Competition (Aug. 1993). 

Congress attempted to redress the 

problems faced by new entrants in 

accessing slots at reasonable prices by 

directing the Department to grant 

exemptions from the HDR (but not at 

DCA) to new entrant airlines and only 

‘‘when in the public interest, and the 

circumstances exceptional.’’ 49 U.S.C. 

41714(c). The GAO subsequently 

expressed concern that the HDR limited 

competition and erected barriers to 

entry, even given the ‘‘exceptional 

circumstances’’ criteria for slot 

exemptions. Barriers to Entry Continue 

to Limit Competition in Several Key 

Domestic Markets (GAO/RCED 97–4, 

Oct. 1996). Congress directed a study by 

the National Academy of Sciences, 

National Research Council’s 

Transportation Research Board that 

found ‘‘many fundamental concerns’’ 

with the slot rules including slothoarding by incumbent airlines (who 

use the slots to build networks and 

realize economies of scope) to restrict 

entry and expansion by competitors, 

and it found that the slot-controlled 

airports are among the highest-priced in 

the country. Entry and Competition in 

the U.S. Airline Industry: Issues and 

Opportunities at 11, 113 (TRB, 1999). In 

2000, Congress directed a multi-year 

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7 Includes Northwest and Comair. 

8See, e.g., Oster, Jr., Clinton V. & Strong, John S. 

(2001) at 24. ‘‘Predatory practices in the U.S. Airline 

Industry.’’ Working Paper, US DOT. 9See, e.g., Kamita, ‘‘Analyzing the Effects of 

Temporary Antitrust Immunity: The AlohaHawaiian Immunity Agreement,’’ Journal of Law 

and Economics (2009); Peters, ‘‘Evaluating the 

Performance of Merger Simulation: Evidence from 

the U.S. Airline Industry,’’ 49 Journal of Law and 

Economics at 627 (2006); Joskow, Werden, and 

Johnson, ‘‘Entry, Exit and Performance in Airline 

Markets, 12 International Journal of Industrial 

Organization at 457 (1994); Borenstein, ‘‘The 

Evolution of U.S. Airline Competition,’’ 6 Journal of 

Economic Perspectives at 45 (1992); Borenstein, 

‘‘Hubs and High Fares: Airport Dominance and 

Market Power in the U.S. Airline Industry,’’ 20 

Rand Journal of Economics at 344 (1989); 

Brueckner, Dyer and Spiller, ‘‘Fare Determination in 

Hub and Spoke Networks,’’ 23 Rand Journal of 

Economics at 309 (1992); Morrison and Winston, 

‘‘Enhancing Performance in the Deregulated Air 

Transportation System,’’ 1989 Brookings Papers: 

Microeconomics at 61 (1989); Oster, Jr., Clinton V. 

& Strong, John S., ‘‘Predatory practices in the U.S. 

Airline Industry.’’ At Working Paper, US DOT at 6 

(January 2001); Gimeno, 20(2) ‘‘Reciprocal Threats 

in Multimarket Rivalry: Staking out ‘Spheres of 

Influence’ in the U.S. Airline Industry,’’ Strategic 

Management Journal 101 at 110. 

phase out of the HDR at John F. 

Kennedy International, LaGuardia, and 

O’Hare International Airports. 49 U.S.C. 

41715. It found that the HDR constituted 

a barrier to improved service 

particularly by new entrant airlines and 

for service to smaller airports, harmed 

the traveling public by reducing 

competition, and inflated prices. H.R. 

Rep. No. 106–167 (1999). However, as 

noted in the LGA Order, it was 

necessary to impose quotas on flights 

there to reduce delays and congestion. 

And, although Congress, in 2000 and 

2003, loosened the slot controls slightly 

at DCA (by directing the Secretary to 

grant ‘‘beyond-perimeter’’ and ‘‘withinperimeter’’ exemptions, 49 U.S.C. 

41718), the number of slot exemptions 

operated by new entrant low-cost 

carriers pales in comparison to those 

operated by the dominant incumbent 

airlines. 

If the proposed transaction were 

approved as presented to the 

Department, the transaction would lead 

to significantly increased concentration 

at DCA for US Airways and at LGA for 

Delta, regardless of whether the measure 

is calculated in numbers of departures 

or slots. Based on February 2010 

schedules, US Airways would raise its 

share of departures at DCA from 47 to 

58 percent. US Airways’ share of slot 

interests at DCA (including regional 

affiliates) would increase from 44 

percent to 54 percent, making it by far 

the dominant carrier. American, with its 

affiliates, would be a distant second at 

14.5 percent. 

As a result of the transaction, Delta 

would ascend to a dominant position at 

LGA, raising its share of departures from 

26 percent to 51 percent. Delta’s share 

of slot interests at LGA would more than 

double, growing from 24 percent to 49 

percent.7 LGA would transition from an 

airport with three competing carriers of 

similar size to one dominant carrier 

(Delta). 

Stated another way, US Airways and 

its affiliates at DCA and Delta at LGA 

would become three times, and almost 

two-and-one-half times, respectively, 

the size of their closest competitor, a 

factor that limits the extent to which 

other incumbent competitors can exert 

competitive pressure and discipline 

fares. That limitation is further 

compounded here by the fact that lowcost carriers—those creating the most 

competitive impact—have only a 3.3 

percent share of slot interest holdings at 

DCA and a 6.8 percent share of slot 

interest holdings at LGA. Studies of the 

domestic U.S. airline industry 

demonstrate that entry by low-fare 

carriers dramatically lowers fares and 

increases the volume of passengers 

carried in a market.8

Overall, consumers at these airports 

may be harmed by the loss of nonstop 

service, the loss of a nonstop 

competitor, or the transfer of nonstop 

monopoly service to a more dominant 

carrier. While the carriers have made 

public some of their new intended 

services, including new service to small 

communities, they have not released all 

intended service changes. 

However, it is apparent that if the 

proposed transaction is approved, the 

carriers will increase the number of 

markets they serve on a monopoly or 

dominant basis. As the two carriers 

reposition at LGA and DCA, there is no 

assurance that all markets currently 

being served by the departing carrier 

will be maintained by the new carrier. 

Further, in a number of instances the 

departing carrier served a market on a 

monopoly or dominant basis—so that if 

the new carrier opts to serve that market 

it will similarly be on a monopoly or 

dominant basis. Here, to argue that 

simply replacing one carrier in a 

specific market with another has a 

neutral overall impact ignores the 

greater economic dominance that would 

result from the transaction. 

The Department tentatively concludes 

that the proposed transaction is likely to 

result in higher fares for consumers in 

certain domestic markets subject to the 

perimeter rules at both DCA and LGA. 

Numerous economic studies of the 

domestic U.S. airline industry have 

shown that reducing the number of 

nonstop carriers in a market, especially 

in short-haul markets like those here, 

directly affects the level of fares.9 If the 

slot transaction was to be approved as 

proposed and US Airways and Delta 

were to increase their presence at DCA 

and LGA respectively, the competitive 

environment would become 

significantly more concentrated. The 

carriers would likely rely on their 

increased dominance to maintain or 

enhance their premium fare structure in 

markets served at both airports. 

Furthermore, slot restrictions at both 

airports substantially hinder 

proportional increases in competition 

by other carriers, and higher fares will 

be sustainable due to the carriers’ 

increased market power at both airports. 

This tentative conclusion is supported 

by an analysis of the carriers’ past 

behavior in similar markets at both 

airports. 

Even today, before the transaction is 

implemented, US Airways and Delta 

charge higher relative fares where they 

operate monopoly or dominant routes 

from airports where they have a strong 

presence. This is especially true at DCA 

and LGA. US Airways, holding the 

highest current share of slot interests 

and departures at DCA, charged on 

average 124 percent of the Standard 

Industry Fare Level (SIFL), a cost-based 

index that the Department has used 

historically to assist in its evaluation of 

pricing. However, in markets where it 

held a 95 to 100 percent share of 

nonstop departures, US Airways 

charged substantially more. Delta, 

having a less strong position at LGA 

than US Airways at DCA, tends to price 

more competitively, averaging only 89 

percent of the index figures with its 

current slot interest holdings. While we 

anticipate that Delta’s increased market 

share after the transaction would permit 

it to increase the percent of SIFL 

associated with its service at LGA, our 

findings of relatively higher existing 

levels of competition at LGA influenced 

our tentative determination to require 

fewer divestitures proportionately at 

LGA than at DCA. 

In comparison, at Washington Dulles 

International Airport (IAD), the average 

of all carriers’ fares vs. SIFL is 77 

percent, and at Thurgood Marshall 

Baltimore-Washington Airport (BWI) the 

figure is 65 percent. The fares of the 

largest carrier at IAD, United Airlines, 

average 90 percent of SIFL, while those 

of the largest carrier at BWI, Southwest 

Airlines, average 65 percent. 

At Newark Liberty International 

(EWR), the average of all carriers’ fares 

vs. SIFL is 71 percent, and at JFK the 

figure is 57 percent. The fares of the 

largest carrier at EWR, Continental 

Airlines, average 71 percent of SIFL, 

while those of the largest carrier at JFK, 

JetBlue, average 57 percent. The NYC/ 

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7310 Federal Register / Vol. 75, No. 32 / Thursday, February 18, 2010 / Notices 

10See, e.g., Gimeno, 20(2) ‘‘Reciprocal Threats in 

Multimarket Rivalry: Staking out ‘Spheres of 

Influence’ in the U.S. Airline Industry,’’ Strategic 

Management Journal 101 at 110. 

Washington airports that have the 

largest proportion of low-cost carriers 

consistently provide lower fares. 

The Department also considered 

whether the three airports in the New 

York area, and the three in the 

Washington area, effectively constitute 

the same market for all passengers, such 

that if fares are perceived to be rising 

too high at one airport, the harm would 

be mitigated by consumers simply 

shifting to the other two. Department 

analysts, evaluating passenger ticket 

data that contained actual fare 

information, looked at whether the three 

airports at New York and the three in 

Washington were effective substitutes 

for each other, and concluded that they 

were not. In analyzing both overlap and 

all markets at the airports, they found 

that yields (i.e., revenue per passenger 

mile) were substantially different among 

the airports. Specifically, they found 

that the average yield in all markets at 

BWI is 48 percent less than DCA, and 

the average yield in all markets at Dulles 

is 37 percent less than DCA. (Yield at 

DCA is 27 cents per mile, vs.17 cents at 

Dulles and 14 cents at BWI.) Similarly, 

the average yield at JFK is 28 percent 

less than at LGA, and Newark is 9 

percent less than at LGA. (Yield at LGA 

is 20.5 cents per mile, vs. 18.7 cents at 

EWR and 14.7 cents at JFK.) If the 

airports were effective economic 

substitutes for all passengers, we would 

expect to see a greater self-equalizing of 

yields and the yield spreads would not 

differ so significantly. 

The Department also found that the 

differences in the level of yields at area 

airports tended to correlate with the 

level of low cost carrier operations. 

Thus, passengers pay more for nonstop 

service of equivalent distance at DCA 

and LGA than at alternative airports that 

have sizable LCC competition. For 

example, for trips out to 1000 miles, 

passengers at LGA pay 23% more on 

average than those at JFK ($147 vs. $120 

each way). Passengers at DCA pay 64% 

on average more than those at BWI 

($184 vs. $113 each way). 

Under their proposal, Delta and US 

Airways are not committing to any 

particular markets for defined periods. 

They would be free, as is any other 

carrier, to discontinue routes that are 

being proposed and to initiate new 

routes elsewhere. Thus, they could, if 

they so chose, use their added slot 

interests to target smaller competitors, 

for example by increasing their 

roundtrips in competitive markets and 

‘‘sandwiching’’ competitor flights. With 

relatively few slot interests of their own, 

competitors—especially the low-cost 

carriers at DCA that are tied to specific 

markets through slot exemption 

awards—may be unable to successfully 

respond. 

The competitive harm resulting from 

this transaction as proposed would 

occur not just at the city-pair level, but 

at the network or airport level as well, 

especially given our conclusion that 

alternative airports are not perfect 

substitutes for service at DCA and LGA. 

An appropriate remedy for this 

transaction must address this broader 

competitive harm, given (1) that Delta 

and US Airways are currently the 

number one and number two 

competitors at DCA and that Delta is the 

most likely potential carrier to compete 

with US Airways in any market out of 

DCA; (2) the absolute regulatory cap on 

operations/entry at both airports; and (3) 

the dramatic increase in dominance of 

US Airways at DCA and Delta at LGA 

that would result from the transaction. 

The combination of increased airport 

concentration, an increase in the 

number of monopoly or dominant 

markets in which increased pricing 

power can be exercised, and the 

potential for use of transferred slot 

interests in an anticompetitive manner 

underlie our proposal here for a limited 

number of divestitures. 

At DCA, we are proposing to require 

a divestiture of 14 pairs of slot interests. 

We project that, in the ‘‘bundles’’ (that is, 

pairs of slot interests) proposed, this 

would enable new entrant/limited 

incumbent competitors to initiate and/ 

or increase service in one large market 

or multiple smaller markets. It would 

limit the increase in US Airways’ share 

of slot interests at DCA to a total of 50.8 

percent, and increase the new entrant/ 

limited incumbent share to 6.5 percent. 

At LGA, we are proposing that 20 

pairs of slot interests be divested. With 

the authorization bundles as proposed, 

we project that these would enable 

limited incumbents to strengthen their 

existing presence in up to three markets 

and/or allow new entrants to initiate 

new service in up to four new markets. 

Such a divestiture would limit the 

increase in Delta’s share of slot interests 

to 45.3 percent, and increase the new 

entrant/limited incumbent share to 10.3 

percent. The proposed slot interest 

divestitures at LGA and at DCA would 

allow the parties to realize almost all of 

their purported benefits while providing 

opportunities for greater competition at 

those airports and reducing the 

likelihood that increased concentration 

of slot interests will reduce competition 

at those airports. 

Our proposed divestiture of 14 pairs 

of slot interests at DCA would be a 

condition of our waiver of the LGA 

Order and is not an amendment to the 

HDR that is effective at DCA. We are 

tentatively requiring this divestiture to 

address our concerns with the merits of 

the waiver application before us. The 

waiver application itself conditions a 

sale of Delta’s DCA slot interests with a 

sale of US Airways’ LGA slot interests. 

The waiver request states: 

The transfer of the [280 LaGuardia 

Operating Authorizations to Delta] is an 

integral part of a beneficial and efficiencyenhancing transaction * * *. For its part, US 

Airways will acquire 84 Delta slots at DCA 

* * *. (at 1). 

Proposed Remedies 

The FAA proposes to remedy the 

anticompetitive effects of the proposed 

slot interest exchange waiver request by 

requiring Delta and US Airways to 

dispose of 14 pairs of slot interests at 

DCA and 20 pairs of slot interests at 

LGA to U.S. or Canadian air carriers 

having fewer than five percent of total 

slot holdings at DCA and/or LGA, do 

not code share to or from DCA or LGA 

with any carrier that has five percent or 

more slot holdings, and are not 

subsidiaries, either partially or whollyowned, of a company whose combined 

slot interest holdings are equal to or 

greater than five percent at LGA and/or 

DCA. Carriers that would not qualify 

include those who are involved in a 

code-share relationship at DCA/LGA 

with carrier(s) that also would not 

qualify as of the date of the Notice. 

Use of a five percent standard for 

purposes of this transaction is proposed 

because carriers having slot interest 

holding shares above that point have a 

minimum level of competitive service 

sufficient to affect pricing in the 

market.10 Restricting eligibility to these 

‘‘less than 5 percent’’ carriers would 

assist new or small non-aligned carriers 

in defending themselves against 

increasingly dominant competitors, 

which, with the benefit of additional 

slot interests, could pursue 

anticompetitive strategies such as 

significantly increasing existing services 

in any new entrant/limited incumbent/ 

low-cost/non-aligned carrier market. 

These new or limited incumbent 

carriers offer the prospect of increased 

efficiencies and innovations to the 

markets, such as through better 

utilization of ground staff, equipment, 

and facilities. They could also increase 

throughput at these constrained airports 

by adding more seats per departure than 

proposed by US Airways and Delta, 

which are relying on regional affiliates 

for a large proportion of their proposed 

new flying at DCA and LGA. Moreover, 

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Federal Register / Vol. 75, No. 32 / Thursday, February 18, 2010 / Notices 7311 

11See, e.g., Oster, Jr., Clinton V. & Strong, John 

S. (2001). ‘‘Predatory practices in the U.S. Airline 

Industry.’’ Working Paper, US DOT. 

new entrants and those limited 

incumbents at the respective airports 

could bring alternative business models 

and new competition to the slot 

constrained airports so long as they 

have a sufficient number of slot interests 

to establish sustainable patterns of 

service.11

Based on FAA slot holding data, 

incumbent carriers at DCA that would 

qualify under these limitations are 

AirTran and Spirit. At LGA, incumbent 

carriers that would qualify are AirTran, 

JetBlue, Southwest, and Spirit. In 

addition, of course, any U.S. or 

Canadian carrier not currently holding 

slot interests at the respective airports 

and otherwise meeting the criteria 

would be eligible under our proposal. 

We propose that the slot interests be 

sold by the carriers and that the 

proceeds of the sales be collected and 

retained by the carriers. We are 

tentatively selecting this method, rather 

than one whereby the FAA would 

withdraw the slots and reallocate them 

by lottery (or similar means) to new 

entrant and limited incumbent carriers. 

Through a sale, the petitioning carriers 

may maximize the value of the slot 

interests as they initially intended. The 

carriers at LGA hold a possessory slot 

interest that may be leased in a 

secondary market for a period of time, 

and at DCA they may sell their slot 

interests also in the secondary market. 

By proposing to allow divestitures of the 

slot interests through sales, we are 

permitting the carriers to monetize their 

interests. 

In order to achieve our goal of 

affording consumers the opportunity to 

realize new competitive service at LGA 

and DCA, we propose to place a 60-day 

time limit on US Airways’ and Delta’s 

sales of the slot interests. Should the 

carriers not succeed in selling those slot 

interests within the 60-day time period, 

we propose to withdraw them from 

Delta and US Airways and hold them in 

abeyance while we consider options for 

their future use. 

We also propose precluding the 

carriers purchasing the slot interests 

acquired pursuant to this proceeding 

from re-selling, or leasing, them to any 

carriers that are not eligible under the 

terms of the final action we take in this 

proceeding. This restriction will help to 

ensure that the traveling public will 

receive the benefits of the service and 

price competition provided by the new 

entrant/limited incumbent carrier that 

purchased the slot interests. 

Additionally, these slot interests will be 

subject to the same minimum usage 

requirements as provided in the LGA 

Order and HDR, however, we propose to 

waive the use or lose requirements for 

a period of up to six months in order for 

the new entrant/limited incumbent to 

start up service at new markets or add 

service to existing markets. Our waiver 

would assure an eligible purchaser of a 

slot interest at LGA that we would 

waive the LGA Order prohibition 

against a purchase of a slot interest at 

the time of the sale, in order to facilitate 

the completion of the transaction. We 

would entertain requests by the 

purchaser to accommodate slides to 

assist the carrier’s schedule. We seek 

comment on the conditions described 

above. 

We also seek comment on the means 

by which the carriers may sell the slot 

interests to the new entrant/limited 

incumbent carriers described above. 

One option is for the carriers to engage 

in private sales of the slot interests. 

Under this option, the FAA would 

require biweekly reports of the efforts to 

sell the slot interests, the identity of 

carriers contacted, the prices offered, 

and the terms (if any) reached. 

Another option would be to permit 

the sale of the slot interests to the new 

entrant/limited incumbent carriers on a 

cash-only basis, through a website 

managed by the FAA, in which the FAA 

would specify a bid closing date and 

time and the purchasers’ identities 

would not be revealed. The FAA would 

forward the highest qualifying bid to the 

selling carrier. The FAA would require 

the selling carrier to accept the 

forwarded bid or to reject it within three 

business days. 

A third option would allow the 

carriers to provide notice of the 

availability of the slot interests to the 

new entrant/limited incumbent carriers 

through a website managed by the FAA. 

The FAA would provide an opening 

date, closing date and time by which 

offers for the slot interests must be 

received. US Airways and Delta would 

be able to negotiate the consideration 

and other terms of the sale with the 

eligible purchaser. Once the sale was 

consummated, the carriers would 

provide the FAA with information 

concerning the terms of the sale as well 

as other offers received and names of 

bidders. 

We request comments on these 

variations of the ‘‘bulletin board’’ 

approach. 

We also propose to bundle the 

package of slot interests for sale so as to 

enable an eligible carrier to purchase 

sufficient slots to operate competitive 

service, with times spread across the 

day. The slot interests to be divested 

must be air carrier slot interests, and 

slot times at DCA were chosen based on 

the divested slot interests as a total 

percentage relative to the transaction. 

Fourteen pairs of slot interests 

constitute 33.3 percent of slots involved 

in the transaction, and that percentage 

was spread amongst Delta’s planned slot 

divestitures (by hour) to US Airways as 

evenly as possible across the hours 

between 0700 and 2159. Slot interests in 

the 0600, 2200, and 2300 hours are 

currently available from the FAA and 

therefore were not included in the list 

of slots to be divested. At DCA, we 

propose that the carriers bundle the 

pairs of slot interests as follows: 

Bundle Number of slots 

A ................................ 8 pairs. 

Bundle A slot times: 0700 (2), 0800 (1), 1000 

(2), 1100 (1), 1200 (1), 1300 (1), 1400 (2), 

1500 (1), 1600 (2), 1900 (1), 2000 (1) 

2100 (1) 

B ................................ 6 pairs. 

Bundle B slot times: 0700 (1), 0900 (2), 1100 

(1), 1200 (1), 1300 (2), 1700 (1), 1800 (1) 

1900 (1); 2000 (1), 2100 (1) 

Slot interest times at LGA were 

chosen based on the divested slot 

interests as a total percentage relative to 

the transaction. Twenty pairs of slot 

interests constitute 14.29 percent of 

slots involved in the transaction, and 

that percentage was spread across US 

Airways’ planned slot divestitures (by 

hour) to Delta as evenly as possible 

across the hours between 0600 and 

2159. 

At LGA we propose the following 

bundling of 20 pairs of slot interests: 

Bundle Number of slots 

A ................................ 8 pairs. 

Bundle A slot interests: 0600D (1), 0700D 

(1), 0800A, 0800D (total of 2 in 0800), 

0900A (1), 1000D (1), 1100A (1), 1200D 

(1), 1300A (1), 1400D (1), 1500A (1), 

1600D (1), 1700A (1), 1800D (1), 2000A 

(1), 2100A (1) 

B ................................ 4 pairs. 

Bundle B slot interests: 0700D (1); 0900A 

(1); 1000D (1); 1300A (1), 1400D (1), 

1700A, 1700D (total of 2 in 1700), 2000A 

C ................................ 4 pairs. 

Bundle C slot interests: 0600D (1), 0800A 

(1), 0900D (1), 1100A (1), 1200D (1), 

1500A (1), 1600D (1), and 2000A (1) 

D ................................ 4 pairs. 

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7312 Federal Register / Vol. 75, No. 32 / Thursday, February 18, 2010 / Notices 

Bundle Number of slots 

Bundle D slot interests: 0700D (1), 1000A 

(1), 1100D (1), 1300A (1), 1400D (1), 

1800A (1), 1900D (1), and 2100A (1) 

Operating authorizations at LGA are designated as arrivals (A) or departures (D), 

and defined on the half hour at LGA (e.g., 

0700 to 0729; 0730 to 0759), but information on the transaction provided by Delta 

was specific only to hourly increments. 

The bundles are structured so as to 

permit eligible carriers to enter or add 

frequencies in markets with sufficient 

operations to effectively compete. We 

do not propose to require the purchasers 

of the slot interests to operate in specific 

markets or types of markets, as this 

would deprive the acquiring carriers of 

the flexibility to deploy their assets 

based on prevailing market conditions. 

However, we would propose to prohibit 

purchasers from alienating slot interests 

acquired pursuant to this proceeding to 

any carriers who are not eligible under 

the terms of our final action in this 

proceeding. 

The agency has placed a copy of the 

waiver request and the January 29, 2010 

letter from Delta’s senior vice president 

and general counsel in the docket along 

with other public correspondence on 

this matter. The FAA invites all 

interested members of the public to 

comment on the waiver request, the 

proposed grant of the waiver, the 

proposed conditions to the waiver, and 

the proposed divestiture remedies. We 

also seek comment on alternative 

divestiture remedies to ensure value to 

the selling carriers and expedited sale so 

that the traveling public may realize the 

benefits of the competition to be 

produced by the new entrant/limited 

incumbent carriers. 

Issued in Washington, DC, on February 

9th, 2010. 

James W. Whitlow, 

Acting Chief Counsel. 

[FR Doc. 2010–3109 Filed 2–12–10; 4:15 pm] 

BILLING CODE 4910–13–P 

TENNESSEE VALLEY AUTHORITY 

Meeting of the Regional Resource 

Stewardship Council 

AGENCY: Tennessee Valley Authority 

(TVA). 

ACTION: Notice of meeting. 

SUMMARY: The TVA Regional Resource 

Stewardship Council (RRSC) will hold a 

meeting on Thursday, March 4, and 

Friday, March 5, 2010, to consider 

various matters. 

The RRSC was established to advise 

TVA on its natural resource stewardship 

activities. Notice of this meeting is given 

under the Federal Advisory Committee 

Act (FACA), 5 U.S.C. App. 2. 

The management of the Tennessee 

Valley reservoirs and the lands adjacent 

to them has long been integral 

components of TVA’s mission. As part 

of implementing the TVA 

Environmental Policy, TVA is 

developing a Natural Resource Plan 

(NRP) and Environmental Impact Study 

(EIS) under the process established by 

the National Environmental Policy Act 

(NEPA) that will help prioritize 

techniques for the management of 

TVA’s sustainable land use activities, 

natural resource management activities, 

recreation and water resource protection 

and improvement activities. TVA would 

like to utilize the RRSC as a key 

stakeholder group throughout the EIS 

period to advise TVA on the issues, 

tradeoffs, and focus of environmental 

stewardship activities. At the March 

meeting, TVA will be seeking advice 

from the Council on issues regarding the 

scope of the study and the preliminary 

draft alternatives that will support the 

Draft EIS and direction of the study. 

TVA will also be seeking 

recommendations and advice on the 

NRP objectives and activities that 

complement the use of public lands 

with the protection of these natural 

resources. 

The meeting agenda includes the 

following: 

1. Introductions. 

2. Natural Resource Plan Background, 

Components of the Plan, Preliminary 

Draft Alternatives. 

3. RRSC Discussion Topic: Natural 

Resource Plan scope, preliminary draft 

alternatives included in the components 

of the NRP (e.g., Natural Resource 

Management, Reservoir Lands Planning, 

Water Resources, and Recreation) and 

uncertainties impacting the 

development of various portfolios and 

scenarios. 

4. Public Comments. 

5. Council Discussion and Advice. 

The TVA RRSC will hear opinions 

and views of citizens by providing a 

public comment session. The public 

comment session will be held at 10 a.m., 

EST, on Friday, March 5. Persons 

wishing to speak are requested to 

register at the door by 9 a.m. on Friday, 

March 5 and will be called on during 

the public comment period. Handout 

materials should be limited to one 

printed page. Written comments are also 

invited and may be mailed to the 

Regional Resource Stewardship Council, 

Tennessee Valley Authority, 400 West 

Summit Hill Drive, WT–11 B, Knoxville, 

Tennessee 37902. 

DATES: The meeting will be held on 

Thursday, March 4 from 8:30 a.m. to 

4:30 p.m., and Friday, March 5, from 8 

a.m. to 12 noon, EST. 

ADDRESSES: The meeting will be held at 

the Auditorium of the TVA 

Headquarters at 400 West Summit Hill 

Drive, Knoxville, Tennessee 37902, and 

will be open to the public. Anyone 

needing special access or 

accommodations should let the contact 

below know at least a week in advance. 

FOR FURTHER INFORMATION CONTACT: Beth 

Keel, 400 West Summit Hill Drive, WT– 

11 B, Knoxville, Tennessee 37902, (865) 

632–6113. 

Dated: February 10, 2010. 

Original signed by: 

Anda A. Ray, 

Senior Vice President and Environmental 

Executive, Environment and Technology, 

Tennessee Valley Authority. 

[FR Doc. 2010–3050 Filed 2–17–10; 8:45 am] 

BILLING CODE 8120–08–P 

TENNESSEE VALLEY AUTHORITY 

No FEAR Act Notice 

Summary: 5 CFR part 724.202 

requires that each Federal agency 

provide notice to its employees, former 

employees, and applicants for 

employment about the rights and 

remedies available under the 

Antidiscrimination Laws and 

Whistleblower Protection Laws 

applicable to them within 60 calendar 

days after September 18, 2006, and 

annually thereafter. Each agency must 

publish the initial notice in the Federal 

Register. 

No FEAR Act Notice 

On May 15, 2002, Congress enacted 

the Notification and Federal Employee 

Antidiscrimination and Retaliation Act 

of 2002, which is now known as the No 

FEAR Act. One purpose of the Act is to 

require that Federal agencies be 

accountable for violations of 

antidiscrimination and whistleblower 

protection laws. Public Law 107–174, 

Summary. In support of this purpose, 

Congress found that ‘‘agencies cannot be 

run effectively if those agencies practice 

or tolerate discrimination.’’ Public Law 

107–174, Title I, General Provisions, 

section 101(1). 

The Act also requires this agency to 

provide this notice to Federal 

employees, former Federal employees 

and applicants for Federal employment 

to inform you of the rights and 

protections available to you under 

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