21692 Federal Register / Vol. 75, No. 79 / Monday, April 26, 2010 / Notices 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.8

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–9550 Filed 4–23–10; 8:45 am] 

BILLING CODE 8011–01–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

[Docket No. DOT–OST–2007–0022] 

Denial of Airlines’ Temporary 

Exemption Requests from DOT’s 

Tarmac Delay Rules for JFK, EWR, 

LGA and PHL Operations 

AGENCY: Office of the Secretary (OST), 

Department of Transportation (DOT). 

ACTION: Notice. 

SUMMARY: On March 30, 2010, the 

Department published a notice in the 

Federal Register seeking comment on 

separate requests by five airlines for a 

temporary exemption from a 

requirement that U.S. carriers adopt 

contingency plans for lengthy tarmac 

delays. These plans must include an 

assurance that a carrier will not permit 

an aircraft to remain on the tarmac for 

more than three hours in the case of 

domestic flights and for more than a set 

number of hours as determined by a 

carrier in the case of international 

flights without providing passengers an 

opportunity to deplane, with certain 

exceptions for safety, security, or Air 

Traffic Control (ATC) related reasons. 

The requests cover operations at John F. 

Kennedy International Airport (JFK), 

Newark Liberty International Airport 

(EWR), LaGuardia Airport (LGA), and 

Philadelphia International Airport 

(PHL). The carriers contend that without 

the requested exemption covering seven 

months in 2010 during which runway 

construction is expected to be underway 

at JFK, large numbers of flights will 

have to be canceled at the New York 

area airports and affected passengers 

will face significant inconveniences and 

delays before being re-accommodated. 

The Department received approximately 

135 comments on these exemption 

requests, primarily from individual 

consumers. After fully considering the 

comments submitted, the Department is 

issuing this notice to announce its 

decision denying each of these 

exemption requests as not being in the 

public interest since the concerns raised 

by the carriers can be resolved through 

more careful flight scheduling. The 

notice also points out that if totally 

unexpected situations occur appropriate 

prosecutorial discretion can be applied 

with respect to potential enforcement 

action. 

FOR FURTHER INFORMATION CONTACT: 

Livaughn Chapman or Blane A. Workie, 

Office of the Assistant General Counsel 

for Aviation Enforcement and 

Proceedings, U.S. Department of 

Transportation, 1200 New Jersey Ave., 

SE., Washington, DC 20590–0001; 202– 

366–9342 (phone), 202–366–7152 (fax), 

livaughn.chapman@dot.gov or 

blane.workie@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: 

Background 

On December 30, 2009, the 

Department published a final rule titled 

‘‘Enhancing Airline Passenger 

Protections’’ that sets forth numerous 

measures geared toward strengthening 

protections afforded to air travelers. 74 

FR 68983. One of these provisions, 

which takes effect April 29, 2010, 

requires U.S. certificated and commuter 

air carriers that operate scheduled 

passenger service or public charter 

service using any aircraft with a design 

capacity of 30 or more passenger seats 

to adopt, implement, and adhere to 

contingency plans for lengthy tarmac 

delays at each large and medium hub 

U.S. airport at which they operate 

scheduled or public charter air service. 

For domestic flights, the rule requires 

covered U.S. carriers to provide 

assurance that they will not permit an 

aircraft to remain on the tarmac for more 

than three hours, with two safety/ 

security and an ATC-related exceptions: 

(1) Where the pilot-in-command 

determines that an aircraft cannot leave 

its position on the tarmac to deplane 

passengers due to a safety-related or 

security-related reason (e.g. weather, a 

directive from an appropriate 

government agency); and (2) where ATC 

advises the pilot-in-command that 

returning to the gate or another 

disembarkation point elsewhere in order 

to deplane passengers would 

significantly disrupt airport operations. 

For international flights departing from 

or arriving at a U.S. airport, the rule 

requires covered U.S. carriers to provide 

assurance that the carriers will not 

permit an aircraft to remain on the 

tarmac for more than a set number of 

hours, as determined by the carriers, 

before deplaning passengers, with the 

same safety, security, and ATC 

exceptions. 14 CFR §§ 259.4(b)(1) and 

(b)(2). For all flights, carriers must 

provide adequate food and water no 

later than two hours after the aircraft 

leaves the gate (in the case of a 

departure) or touches down (in the case 

of an arrival) if the aircraft remains on 

the tarmac, unless the pilot-in-command 

determines that safety or security 

requirements preclude such service. 

Carriers must also ensure that lavatory 

facilities are operable and medical 

attention is provided if needed while 

the aircraft remains on the tarmac. 

Pursuant to 49 U.S.C. 46301, violations 

of 14 CFR Part 259 subject a carrier to 

civil penalties of up to $27,500 per 

violation. 

On March 4, 2010, JetBlue requested 

an exemption from the requirements not 

to permit an aircraft to remain on the 

tarmac for more than three hours in the 

case of domestic flights and for more 

than a set number of hours as 

determined by a carrier in the case of 

international flights without providing 

passengers an opportunity to deplane 

for its JFK operations for the time period 

that operations at JFK are disrupted by 

the closure of the main runway at that 

airport, i.e., March 1 through December 

1, 2010. JetBlue’s request for an 

exemption during this period was 

followed by a similar request by Delta 

Air Lines for its JFK operations and a 

request by American Airlines that the 

Department grant an exemption for all 

carrier operations at JFK. Continental 

next requested that the Department 

extend any relief it grants carriers 

operating at JFK to carriers operating at 

the Newark and LaGuardia Airports. On 

March 22, 2010, US Airways also filed 

a request for a similar exemption for its 

operations at the Philadelphia Airport. 

The carriers argue collectively that 

without the requested exemptions large 

numbers of flights will have to be 

canceled at the New York area airports 

and affected passengers will have to face 

significant inconveniences and delays 

before being re-accommodated. The 

basic rationale presented by Continental 

and US Airways in support of 

exemptions for their operations at 

Newark, LaGuardia and Philadelphia 

airports is that the delays and delay 

mitigation strategies at JFK resulting 

from the runway construction will affect 

the former airports by causing delays to 

spill over. 

On March 30, 2010, the Department 

published a notice in the Federal 

Register seeking comment on whether it 

should act on the requests by JetBlue, 

Delta, American, Continental, and US 

Airways by means of one of the 

following four measures: (1) Deny each 

exemption request; (2) grant one or more 

of the exemption requests in their 

entirety; (3) grant a limited temporary 

exemption for operations at one or more 

of the airports by allowing the three 

hour limit to be raised to four hours 

during the two specific heavy 

construction periods (April 29 thru June 

30, 2010, and September 16 thru 


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September 29, 2010) planned for JFK’s 

Bay Runway; or (4) deny each 

exemption request, but direct the 

Aviation Enforcement Office to consider 

the runway closure and unexpected bad 

weather in deciding whether to pursue 

an enforcement case against a carrier for 

a lengthy tarmac delay incident that 

occurs at one or more of the airports. 

The comment period closed on April 9, 

2010. 

Comments Received 

The Department received 

approximately 135 comments in 

response to the notice, primarily from 

individual consumers. Nearly all of the 

comments from individual consumers 

and advocacy organizations support 

denying the request. The comments 

from airlines, airline associations and 

airports are mixed—a few support 

giving priority or preferential treatment 

to exemption requests for operations at 

JFK while most assert that all carriers 

operating at JFK, LGA, EWR and 

possibly PHL should receive equal relief 

from the tarmac delay rule. The 

commenters’ specific positions are set 

forth below. 

In supplementary comments, JetBlue 

contends that unlike the requests made 

by Continental and US Airways, 

JetBlue’s request is limited to operations 

at JFK, and is carefully limited to the 

time period that JFK operations will be 

disrupted by the Bay Runway 

reconstruction. JetBlue argues that 

Continental and US Airways have 

‘‘chosen to try to jump on the 

bandwagon and bootstrap what they 

claim are related situations at LGA, 

EWR and PHL in an attempt to obtain 

relief’’ from the three hour rule. 

Continental states that the Department 

should focus its attention on the closure 

of the Bay Runway, and requests that 

the Department select Option 2, granting 

the requests of JetBlue, American and 

Delta in their entirety, and extending 

the same relief to all New York area 

airports (i.e., JFK, LGA and EWR). 

Continental takes no position on 

whether relief should be extended to 

carriers at PHL. 

JetBlue maintains that Options 3 and 

4 do not go far enough in relieving 

carriers at JFK from potential unforeseen 

and unintended adverse circumstances. 

JetBlue states that it would not dismiss 

Option 4; however, it argues that Option 

4 leaves carriers with uncertainty as to 

when and how the rule will be applied, 

and leaves the application of the rule to 

judgment after the fact. 

JetBlue argues further that any 

exemption issued by the Department 

should apply to both domestic and 

international flights. JetBlue argues that 

the three hour rule already exempts 

foreign air carriers, and that it is 

impractical for a carrier such as JetBlue 

to use different tarmac delay limits for 

its domestic and international flights. 

JetBlue argues that the only realistic 

way to put U.S. carriers on an equal 

footing with foreign air carriers is to 

exempt both domestic and international 

flights while the Bay Runway is closed. 

American argues that while it does 

not oppose relief at other airports, such 

as EWR, LGA, and PHL, the 

Department’s first priority should be to 

address the operational disruption that 

is widely anticipated will result from 

the runway closure and construction at 

JFK during the peak summer travel 

period into November. American states 

that at a minimum, the Department 

should grant a temporary exemption for 

operations at JFK by raising the threehour limit to four hours for the period 

April 29, 2010, through November 15, 

2010. In addition, American maintains 

that the Department should recommend 

to the Aviation Enforcement Office that 

it take into account the special 

circumstances at JFK as well as 

unexpected bad weather in deciding 

whether to pursue a case against a 

carrier for a lengthy tarmac delay 

incident at JFK. 

In its supplemental comments, 

Continental continues to assert that all 

three New York metropolitan airports 

share airspace and arrival and departure 

corridors, and delays or delay mitigating 

strategies at JFK will adversely affect air 

carriers and passengers at EWR and 

LGA. Continental argues that the 

Department has long treated the New 

York/New Jersey airports as a single 

point, and states that if relief is granted 

to any carrier at any New York area 

airport, all carriers at all New York area 

airports should receive the same relief. 

Similarly, US Airways continues to 

argue that the Philadelphia-New York 

City airspace is an intertwined web, 

with components that cannot be 

considered in isolation, and maintains 

that action at one airport creates ripple 

effects throughout the NY/NJ/PHL 

airspace. US Airways supports the grant 

of waivers to carriers operating at 

airports in the NY/NJ/PHL airspace, but 

argues that waivers must either be 

granted or denied to all carriers as a 

whole. US Airways argues that granting 

an exemption to only certain airports or 

carriers would be contrary to accepted 

existing practice, and would provide an 

unfair advantage to certain operators at 

the expense of others. US Airways 

maintains that fundamental fairness 

dictates that the Department treat all 

carriers equally and provide a level 

playing field, regardless of the 

Department’s decision to grant or deny 

the requested exemptions. 

United Airlines (United) states that it 

takes no position on whether the 

Department should grant exemptions 

from the tarmac delay rule at any or all 

of the airports for which exemptions 

have been sought. However, United also 

urges the Department to extend the 

same relief, if any, to all carriers at a 

given airport, not just to carriers that 

have formal exemption requests 

pending. United argues that the 

problems caused by runway closures, 

particularly when combined with 

adverse weather conditions, will affect 

all carriers operating at an airport, 

including those operating a limited 

number of flights, and opposes any 

selective relief at any given airport. In 

addition, while United maintains that it 

also takes no position with regard to 

Option 4, it states that if the Department 

were to adopt this approach, such 

enforcement policy guidance should not 

be limited to the instant case, but made 

applicable to any future case where the 

temporary closures of any airport 

movement area, whether due to ongoing 

construction or other causes, could lead 

to or exacerbate airside congestion and 

delays in flight operations, especially 

during adverse weather conditions. 

Spirit Airlines (Spirit) supports a 

blanket exemption from the tarmac 

delay rules for all carriers operating at 

JFK, LGA, and EWR. Spirit argues that 

requiring carriers to comply with the 

new rules during the closure and 

construction of the Bay Runway likely 

will exacerbate the already difficult 

situation at JFK by necessitating flight 

cancellation due to long taxi-out and 

taxi-in times caused by the construction, 

as well the possibility of flight crew 

exceeding legally permitted crew time 

and increased operational difficulties 

for airports. Spirit argues that it and 

other small carriers with few flights will 

face unique operational challenges 

because flight cancellations by such 

carriers will make it difficult for 

passengers to reach their destinations. 

Spirit maintains that, unlike legacy 

carriers that have many slots and can 

cut back schedules during peak 

construction periods, Spirit, with only a 

few flights, is not in a position to scale 

back service. Spirit argues that granting 

the requested relief will not encourage 

carriers to ignore the intent of the rules, 

but rather will provide flexibility to 

carriers in borderline delay situations in 

order to mitigate potential harm to 

consumers when facing extraordinary 

adverse conditions resulting from 

runway closure and construction. In 

addition, Spirit argues that Option 3 

would not be an effective way to 


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21694 Federal Register / Vol. 75, No. 79 / Monday, April 26, 2010 / Notices 

alleviate the problems associated with 

the runway reconstruction, and argues 

that enforcement should not be left to 

the discretion of the Aviation 

Enforcement Office. 

The Air Carrier Association of 

America (ACAA) asserts that all carriers 

operating at JFK, LGA, EWR, and PHL 

should receive equal relief from the 

tarmac delay rule. The ACAA argues 

that if the Department approves tarmac 

delay exemptions for carriers operating 

at these airports, it should waive the 

tarmac delay requirements for all 

carriers at JFK, LGA, EWR, and PHL and 

for all carriers at any other airport where 

an exemption from the tarmac delay 

rule is granted. In addition, ACAA 

suggests that the Department also look 

into the impact that significant delays at 

JFK, LGA, EWR, and PHL will have on 

other airports in the New YorkPhiladelphia area and on airports in 

other parts of the country. 

The Port Authority supports Option 4, 

stating that the Department should deny 

the blanket requests and that the 

Aviation Enforcement Office should 

consider the runway closure together 

with the unexpected circumstances 

such as weather conditions that would 

preclude full use of the remaining JFK 

runways in deciding whether to pursue 

an enforcement case against a given 

carrier. The Port Authority states that 

because airline schedules have already 

been reduced and use-or-lose penalties 

for schedule reductions at JFK have 

been suspended by the FAA with the 

support of the Port Authority, important 

passenger protections should not be 

waived on a wholesale basis because of 

the Bay Runway reconstruction. 

Comments were also submitted by the 

City of Philadelphia (Philadelphia), the 

owner and operator of PHL. 

Philadelphia agrees with Continental’s 

comment that delays and delay 

mitigation strategies at one New York 

Area airport adversely affect and 

inconvenience air carriers and 

passengers at other New York Area 

airports. Philadelphia states that at 

certain times, the efficiency of aircraft 

operations at PHL is closely tied to that 

of those at EWR, JFK, and LGA. 

Philadelphia argues that exemption 

from the application of the tarmac 

delays rules for carriers at only one 

selected major airport within the New 

York Air Route Traffic Control Center 

(New York ARTCC) would be 

fundamentally unfair and provide a 

competitive and operational advantage 

for operations at those selected points. 

Philadelphia states that each of the 

airports are subjected to the same 

airspace, shared departure and arrival 

routes and common control by the New 

York ARTCC, and their interdependence 

of operations dictates that they be 

treated in a similar and fair manner. 

Philadelphia states that it does not wish 

to opine on the four options proposed 

by the Department, but believes that 

equal treatment of airports and the 

carriers operating at these airports 

should be paramount in the 

Department’s ultimate decision. 

Philadelphia argues that, should the 

Department grant the individual or 

collective requests of carriers for 

exemptions from the tarmac delays rules 

at JFK, EWR and LGA, fundamental 

fairness and the public interest dictate 

that carriers operating at PHL be 

similarly exempted. 

Comments were also submitted to the 

Department by U.S. Senators Barbara 

Boxer and Olympia J. Snowe. In a joint 

submission, they argue that granting the 

requested exemptions is unnecessary 

and would undermine important 

consumer protections for the flying 

public. They further contend that the 

exemption requested by these airlines 

would render the rule ineffective and 

maintain an unacceptable status quo. 

They state that, while the requested 

exemption may appear to be targeted 

toward the closure of JFK’s main 

runway, allowing an exemption would 

create a dangerous precedent. They 

reason that construction and other 

disruptions at airports frequently cause 

minor delays throughout America’s 

airports, and that nothing exceptional or 

unexpected exists about this particular 

case that warrants a blanket exemption. 

They maintain that, in the ordinary 

course, airlines modify flight schedules 

to account for construction and other 

disruptions, and this time should be no 

different. They argue that it has been 

clear for a decade that airlines refuse to 

hold themselves accountable to the 

voluntary standards they agreed to and 

that Federal action to compel airlines to 

recognize passengers’ rights is not only 

long overdue, but the only means 

available to ensure these rights are 

protected. 

In additional comments, 

FlyersRights.org argues that the 

petitioning airlines are trying to nullify 

the three hour rule so they can continue 

to over-schedule flights at congested 

airports without risk of penalty. 

FlyersRights.org argues that the 

petitioning carriers are seeking 

regulatory relief from the consequences 

of their chronic over-scheduling of daily 

flights in excess of runway capacity. 

The organization states that when 

airport capacity is temporarily reduced 

due to runway construction, carrier 

schedules must be reduced and carriers 

must use larger aircraft to make up the 

difference for the reduction in the 

frequency of flights. FlyersRights.org 

maintains that over-scheduling exists 

because the FAA has not required the 

airlines serving JFK to reduce their 

scheduled operations at that airport to 

avoid multi-hour departure delays 

before takeoff during the Bay Runway 

reconstruction period, and that a grant 

of the exemption requests would set a 

bad precedent. FlyersRights.org argues 

that the Department has existing 

regulatory authority to consider 

mitigating factors in deciding whether 

to pursue an enforcement case where a 

violation of the three hour rule exists, 

and to negotiate the amount of any civil 

penalty. Therefore, FlyersRights.org 

argues no exemptions should be 

granted. 

Approximately 125 individuals 

submitted comments on the carriers’ 

requests for exemption. All but two of 

these consumers oppose the carriers’ 

requests for an exemption from the three 

hour tarmac delay rule. Many 

consumers who oppose the carriers’ 

requests support the position taken by 

FlyersRights.org, and many argue that 

the government must step in to protect 

the public because airlines too often 

mistreat and take advantage of their 

customers. One commenter, who 

supports the carriers’ request for an 

exemption, argues that management 

science supports not having the tarmac 

delay rule at all, and that the rule 

regarding fines for three hour tarmac 

delays may negatively impact the flying 

public. The commenter suggests that the 

Department revoke the option of 

imposing a fine from its final ruling. 

Decision 

After carefully taking into account all 

of the information available to us at this 

time and fully considering the 

comments we received, the Department 

finds that inadequate justification exists 

for granting JetBlue, Delta, American, 

Continental, and US Airways the 

requested exemption from the tarmac 

delay requirements in 14 CFR 

259.4(b)(1) and (b)(2) for their 

operations at JFK, LGA, EWR, and PHL 

airports, during the period of time that 

work affecting JFK’s Bay Runway is 

scheduled to take place, or until work 

on that runway is complete. In these 

exemption requests, it was incumbent 

on the petitioners to demonstrate that 

the requested actions are necessary and 

in the public interest. They have failed 

to meet this burden and we are not 

convinced that it is in the public 

interest to grant the carriers the 

requested exemptions from the 

requirements of 14 CFR 259.4(b)(1) and 

(b)(2). 


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JetBlue maintains in its petition and 

the other petitioning carriers appear to 

agree that granting relief from 14 CFR 

259.4(b)(1) and (b)(2) is critical so that 

the purpose of the tarmac delay rule— 

enhancing passenger protections—is not 

undermined by unforeseen 

circumstances. JetBlue argues that a 

rigid and inflexible application of the 

rule will cause carriers to cancel flights 

rather than risk substantial penalties to 

the detriment of passengers who want to 

reach their destinations. 

We find this argument flawed and 

unpersuasive. JetBlue’s argument 

suggests that it would better serve the 

public interest to hobble the very 

protections that the tarmac delay rule 

affords consumers by permitting carriers 

to force passengers to remain on an 

aircraft for more than three hours (as 

opposed to giving consumers the option 

to deplane after three hours, or 

permitting them to choose some other 

form of transportation, or not to travel 

at all). We strongly disagree. We cannot 

lose sight of the fact that passengers on 

flights delayed on the tarmac have a 

right to know that they will not be ‘‘held 

hostage’’ for an unreasonable length of 

time on the tarmac. 

It is also important to note that the 

Department’s Federal Aviation 

Administration (FAA) predicts that the 

delays resulting from the runway 

closure at JFK will be workable, i.e., 

similar to those seen during peak 

summer months. The FAA expects that 

flights can be rerouted or rescheduled in 

a way that will allow the other three 

runways to absorb the extra traffic. 

Airlines have already taken steps to 

adjust their schedules and operations to 

help mitigate the expected delays and 

they should further adjust them, if 

necessary. We believe that the concerns 

raised by the petitioning carriers can be 

resolved through further adjustment of 

schedules as appropriate, and that the 

public interest would be better served 

by keeping the full protections of the 

tarmac delay rule in place. In addition, 

we note that since 14 CFR 259.4(b)(2) 

permits U.S. carriers to establish any 

tarmac delay limit for their international 

flights that they choose, we believe 

there is no substantial reason to grant an 

exemption from this provision of the 

rule. Moreover, while in the event of a 

violation, as always, the Department’s 

Aviation Enforcement Office will 

consider a number of factors including, 

for example, the harm to consumers 

caused by the violation and the specific 

impact of the runway closure in 

determining whether to pursue an 

enforcement case and the civil penalty 

it would seek in such an enforcement 

proceeding, it is incumbent on carriers 

to adjust their schedules to reflect the 

reality of the runway construction. 

Therefore, based on the foregoing, we 

find that granting the requested 

exemption from the tarmac delay rule is 

not in the public interest, and we deny 

the requests of JetBlue, Delta, American, 

Continental, and US Airways, for an 

exemption from the requirements of 14 

CFR 259.4(b)(1) and (b)(2) for their 

operations at JFK, LGA, EWR, and PHL 

airports, during the period of time that 

work affecting JFK’s Runway 13R/31L is 

scheduled to take place, or until work 

on that runway is complete. 

Issued this April 22, 2010, at Washington, 

DC. 

Ray LaHood, 

Secretary of Transportation. 

[FR Doc. 2010–9716 Filed 4–23–10; 8:45 am] 

BILLING CODE 4910–9X–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

[Docket No. DOT–OST–2010–0076] 

Interim Notice of Funding Availability 

for the Department of Transportation’s 

National Infrastructure Investments 

Under the Transportation, Housing and 

Urban Development, and Related 

Agencies Appropriations Act for 2010; 

and Request for Comments 

AGENCY: Office of the Secretary of 

Transportation, DOT. 

ACTION: Interim notice of funding 

availability, request for comments. 

SUMMARY: This interim notice 

announces the availability of funding 

and requests proposals for the 

Department of Transportation’s National 

Infrastructure Investments. In addition, 

this interim notice announces selection 

criteria and pre-application and 

application requirements for the 

National Infrastructure Investments. 

On December 16, 2009, the President 

signed the Transportation, Housing and 

Urban Development, and Related 

Agencies Appropriations Act for 2010 

(Div. A of the Consolidated 

Appropriations Act, 2010 (Pub. L. 111– 

117, Dec. 16, 2009)) (‘‘FY 2010 

Appropriations Act’’). The FY 2010 

Appropriations Act appropriated $600 

million to be awarded by the 

Department of Transportation (‘‘DOT’’) 

for National Infrastructure Investments. 

This appropriation is similar, but not 

identical to the appropriation for the 

Transportation Investment Generating 

Economic Recovery, or ‘‘TIGER 

Discretionary Grant’’, program 

authorized and implemented pursuant 

to the American Recovery and 

Reinvestment Act of 2009 (the 

‘‘Recovery Act’’). Because of the 

similarity in program structure, DOT is 

referring to the grants for National 

Infrastructure Investments under the FY 

2010 Appropriations Act as ‘‘TIGER II 

Discretionary Grants’’. As with the 

TIGER program, funds for the TIGER II 

program are to be awarded on a 

competitive basis for projects that will 

have a significant impact on the Nation, 

a metropolitan area or a region. Through 

this notice, DOT is soliciting 

applications for TIGER II Discretionary 

Grants. Because the TIGER II 

Discretionary Grant program is a new 

program, this interim notice requests 

comments on the proposed selection 

criteria and guidance for awarding 

funds. DOT will take all comments into 

consideration and may publish a 

supplemental notice revising some 

elements of this notice. If substantive 

changes to this notice are necessary, 

DOT will publish a supplemental 

Federal Register notice by no later than 

May 28, 2010. In the event that this 

solicitation does not result in the award 

and obligation of all available funds, 

DOT may decide to publish an 

additional solicitation(s). DOT is 

particularly interested in receiving 

comments on its intention to conduct a 

multi-agency evaluation and award 

process with the Department of Housing 

and Urban Development (‘‘HUD’’) for 

DOT’s TIGER II Planning Grants (as 

defined below in Section VII (TIGER II 

Planning Grants)), and HUD’s 

Community Challenge Planning Grants, 

which were also authorized under the 

FY 2010 Appropriations Act. HUD is 

authorized to use $40 million for 

‘‘Community Challenge Planning 

Grants’’ to foster reform and reduce 

barriers to achieve affordable, 

economically vital, and sustainable 

communities. This multi-agency 

approach for planning awards would be 

consistent with DOT and HUD’s 

participation in the ‘‘Partnership for 

Sustainable Communities’’ with the U.S. 

Environmental Protection Agency 

(‘‘EPA’’) to help American families in all 

communities—rural, suburban and 

urban—gain better access to affordable 

housing, more transportation options, 

lower transportation costs, and a cleaner 

environment. 

DOT and HUD believe there is great 

value in issuing a joint solicitation for 

the two planning grant programs in 

order to better align transportation, 

housing, economic development, and 

land use planning and to improve 

linkages between the three Partnership 

agencies’ programs. DOT and HUD also 

believe this proposal has the potential to 


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