name for a type of goods, the mark is no longer distinctive and the rights to it are lost. The owner of trademark rights must be vigilant to ensure that this does not occur. For instance, the Rollerblade company introduced a new product of roller skates where the wheels are arranged in a single line (offering performance similar to the blade on an ice skate) rather than side by side. Initially, Rollerblade was the only company selling this type of skates, and the name Rollerblade became widely known. When com- peting producers of this new skate emerged on the marketplace, the consuming public often used the word rollerblade to describe the type of skates, no matter which company was making and selling them. Further, the public often called the activity of using such skates, no matter the manufacturer, rollerblading. The Rollerblade company spent millions of dollars in advertising and lawsuits to ensure that the trademark Rollerblade was not used to describe a product whose proper generic name is in-line skates. To protect its rights to the trademark, the Roller- blade company must actively oppose any use by competitors or consumers of the words roller- blade or rollerblading to describe generic in-line skates and the activity of in-line skating. Registrants forfeit rights t o their marks i f they use them deceptively, use them in fraudulent trades, or abandon them. Re gistra nts abandon their marks by failing to renew within ten years or by deliberately transferring rights with consent. Trademark Infringement Once they have established their trademarks, owners have the duty to guard against INFRINGE- MENT and to be vigilant to preserve and protect their rights. The Lanham Act aids owners in protecting their rights and protects consumers from being tricked or confused by misleading marks. The six most common causes of action in infringement lawsuits are: (1) infringing on a plaintiff’s registered trademark; (2) undermin- ing a plaintiff’s unregistered mark in a manner that affects commerce; (3) violating common- law trademark infringement standards and UNFAIR COMPETITION principles; (4) violating state deceptive trade practice laws; (5) diluting a plaintiff’s trademark; and (6) misappropriating a plaintiff’s mark. Trademark infringement claims generally involve the issues of likelihood of confusion, counterfeit marks, and dilution of marks. Likelihood of confusion occurs in situations where consumers are likely to be confused or misled about marks being used by two parties. To constitute infringement, this confusion must be probable, no t merely possible. The com- plaining party must show that because of the similar marks, many consumers are likely to be confused or misled about the source of the products that bear these marks. In a likelihood of confusion CAUSE OF ACTION, the DEFENDANT can defend on the basis that confusion is not likely or that although confu- sion may be likely, the PLAINTIFF has behaved improperly regarding the mark or the mark is somehow defective. The Lanham Act defines a counterfeit mark as being “identical with, or substantially indistin- guishable from, a registered mark.” All counter- feits are infringements. The product or service bearing the counterfeit mark must be of the same type of product or service bearing the protected mark. The defendant must have knowingly produced or trafficked a counterfeit mark. Dilution is lessening the individuality or impact of a mark. The usefulness of a trademark depends on its recognizability and individuality. In cases of dilution, the challenged mark does not necessarily have to be used on product s in direct competition with the products of the complaining party, nor is it necessary that the mark causes confusion. The co mplaining party only needs to show that the strength and impact of the regi stered mark is somehow lessened by the presence of similar mark s. A trademark owner uses its mark as a means of recognition and as a symbol representing its goodwill, and when similar marks flood the marketplace, this message is considered to be diluted. The product or service thus becomes psychologically less identif iable and less distinguishable. Trade- mark law prohibits this dilution and prevents the infringing party from unfairly profiting from an association with an established name. To establish an infringement cause of action based on dilution, the plaintiff must initially show that its trademark is genuinely unique. Similar to the standard for confusion, dilution because of the defendant’s conduct must be likely or probable, rather than merely possible. The defendant in an infringement case can invoke any of several AFFIRMATIVE DEFENSES.An AFFIRMATIVE DEFENSE is a response that attacks the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 78 TRADEMARKS plaintiff’s LEGAL RIGHT to bring an action, as opposed to attacking the truth of the claim. The defendant can argue that the plaintiff aban- doned the trademark or that the mark is generic. Defendants may claim that they made “fair use” of the mark, in that their purpose for using the mark did not unfairly compete with the plaintiff. Another affirmative defense is that the plaintiff has “unclean hands” from acting in an unfair or deceptive manner. The defendant can charge that the plaintiff engaged in trademark misuse and used the mark in a manner that went against the PUBLIC POLICY that allowed the trademark to be granted in the first place. The defendant may charge the plaintiff with fraudulent use of a trademark. The defendant can argue that the plaintiff violated ANTITRUST LAWS, which are designed to protect commerce and trade against unlawful restraints, price fixing, and monopolies. Finally, the defendant can offer the affirmative defense of LACHES, which provides that the party that unreasonably delays in asserting legal rights forfeits them. Trademark Rights versus Publicity Rights Every person enjoys the legal ri ght to control the commercial value of his or her identity (i.e., name, face, likeness, voice) and to prevent others from exploiting that value for profit without permission. TORT LAW calls this right the “right of publicity” and defines infringement as any nonconsensual use of a person’s identity that is likely to damage its commercial value. Falsity or deception is no t an element of a claim for infringement. Rather, to trigger infringe- ment of the right of publicity, the plaintiff’s In the King’sName A B lthough Elvis Presley died in 1977, his name and likeness have been t rademarked by Elvis Presley Enterprises (EPE). EPE earns millions of dollars each year through a licensi ng program that grants licensees the right to manufacture and sell Elvis Presley merchandise worldwide. EPE also operates two restaurants and an ice cream parlor at Graceland, the Elvis Presley home in Memphis, Tennessee, which Presley fans consider to be a shrine to the king of rock and roll. In 1995 EPE f iled suit in federal court, alleging that a Houston, Texas, nightcl ub operating under the name “The Velvet Elvis” infringed on EPE’s trademarks (Elvis Presley Enterprises, Inc. v. Capece, 950 F. Supp. 783 [S.D. Texas 1996]). The name of the nightclub comes from a black velvet painting of Presley that hangs in the back l ounge of the bar. Newspaper advertisements for the club depicted images and likenesses of Presley and made explicit references to the singer, including “The King Lives,”“Viva la Elvis,” and “El vis has not left the bu ilding.” The court r uled that the name “The Velvet Elvis” did not create the likelihood of confusion as to the “Elvis” trademarks held by EPE. The court agreed with the club owner that the bar was m eant to parody 1960s popular culture. Replete with lava lamps, beaded curtains, vinyl furniture, and black velvet nude paintings, the bar was a humorous jab at the culture that created the Presley myth. E ven if EPE operated its own “Elvis” nightclub, the H ouston bar w ould not create confusion as to the EPE trademarks. The court noted that the typical customers of The Velvet Elvis were young profes- sionals ranging in age from their early 20s to their late 30s. The majority of Presley fans were middle- aged white women. The court also ruled, however, that the use of Presley’s name and likeness in advertisements infringed on the EPE trademarks. The advertise- ments did not indicate that the nightclub was a parody of 1960s popular culture, and therefore they created the likelihood of confusion as to the sponsorship of the nightclub. The court ordered the owner of The Velvet Elvis not to display in his advertisements the image of Elvis or make direct re ferences to his identity as a celebrity or to emphasize the word Elvis in the name The Velvet Elvis. Apart from this remedy, the court dismissed all other relief sought by EPE. The nightclub could continue, in the wo rds found on its menu, as “TheKingofDiveBars.” GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TRADEMARKS 79 identity must be identifiable from the defen- dant’s unauthorized commercial use, whatever form that use might take. Courts and commentators of ten compare trademark rights to publicity rights because each set of rights is a form of intellectual property that grants owners the exclusive power to commercially exploit their property. But the right of publicity is only analogous to the law of trademarks and not identical. The key to the right of publicity is the commercial value of a human identity, while the key to the law of trademarks is the use of a word or symbol in such a way that it identifie s and distinguishes a commercial source. Thus, while a trademark identifies and distinguishes a commercial source of goods and services, the persona protected by right of publicity law identifies a single human being. Nor should the right of publicity be confused with the right of privacy. Courts recognize that the two rights are clearly separable and rest on quite different legal policies: The right to privacy protects against intrusion upon an individual’s private self-esteem and dignity, while the right of publicity protects against commercial injury caused by the nonconsensual commercial APPRO- PRIATION of an individual’spersonality.Damages for invasion of privacy are usually measured by the mental and physical distress suffered by the plaintiff. By contrast, damages for infringement of the right to publicity are measured by the loss in business value of the plaintiff’s identity. Put simply, publicity rights protect against an injury to the pocketbook, while privacy rights protect against an injury to the psyche. The right of publicity is not absolute. The use of a name or likeness incidental to the dissemination of a news story in which a person is properly and fairly presented is not actionable as a violation of the right of publicity. However, according to some authorities, the right of publicity can extend to the publication of one’s name or picture in nonadvertising portions of a magazine or broadcast. FURTHER READINGS Dinwoodie, Graeme B., and Mark D. Janis. 2004. Trade- marks and Unfair Competition: Law & Policy. New York: Aspen. Kuney, George W., and Donna C. Looper. 2009. Mastering Intellectual Property. Durham, N.C.: Carolina Academic Press. McJohn, Stephen M. 2009. Intellectual Property: Examples and Explanations. 3d ed. New York: Aspen. Trademarks A to Z. 2004. Mechanicsburg: Pennsylvania Bar Institute. Trademarks throughout the World. 2003. 4th ed. St. Paul, Minn.: West. CROSS REFERENCES Copyright; Patent and Trademark Office; Service Mark. TRADING STAMPS AND COUPONS Trading stamps and coupons are any type of tickets, certificates, or order blanks that can be offered in exchange for money or something of value, or for a reduction in price when a particular item is purchased. U.S. businesses attempt to attract customers by using advertising, promising low prices, and claiming to offer high-q uality goods and services. Another way of attracting business is by offering potential customers incentives, such as trading stamps, coupons, and price rebates. Though trading stamps have declined in popularity since the 1960s, the idea of awarding some type of credit for purchasing goods and services has survived. When commercial airlines award their passengers with frequent-flier miles, they are offering a variation on the trading stamp concept. Trading stamps became popular during the Great Depression of the 1930s. They are printed stamps that can be saved and pasted into booklets until the individual collecting them has a sufficient number to exchange them for a particular item of merchandise. A trading stamp company negotiates agreements that allow retail merchants to give stamps to customers in proportion to how much they spend at the merchant’s store. When the books are filled, they can be offered in exchange for merchandise provided by the trading stamp company through a catalog or at a redemption center. In effect, the customer receives an additional benefit for the price she pays for merchandise. The merchant receives the benefit of the advertising done by the trading stamp company. The merchant also expects to attract more customers than a merchant who charges the same price for goods but does not offer stamps. The trading stamp company earns money by selling the stamps to the retailer. In the heyday of trading stamp collection, various trading stamp companies competed for this lucrative market, which drew much of its business from grocery stores. The largest and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 80 TRADING STAMPS AND COUPONS most famous was the Sperry and Hutchinson (S&H) Company, which offered S&H Green Stamps. S&H filed lawsuits in the 1960s to prevent its stamps from being brokered by persons and companies other than licensed retailers. Though the lawsuits were unsuccess- ful, the downfall of trading stamps came from retail merchandisers who offered consumers price discounts large enough to lure them from merchants who offered stamps. In addition, in the burgeoning consumer economy of the 1960s and 1970s, merchandise was easily affordable, and consumers were no longer willing to defer their purchases while they collected stamps. Though trading stamps have virtually disap- peared, the concept is still used. For example, airline frequent-flier miles allow the customer who flies commercial airlines to accumulate miles toward free tickets. The airlines believe that a person will prefer to “earn” miles by flying with one company. Computer technology has also spurred experiments with recording points elec- tronically when a person makes a retail purchase. Whether the points are measured in stamps or miles, the law recognizes them as tokens of legal obligations. The points are not merchan- dise in and of themselves, but they do represe nt a promise by the company offering the incen- tive to redeem them for something of value. Ownership of the stamps, miles, or points remains with the offering company. This arrangement gives the company the ability to control the manner in which the rights represented by the incentives can be transferred. Merchandise coupons are a popular way to attract business to a particular store or to a particular product. Coupons can be printed and distributed in advertising circulars, newspapers, and magazines or be enclosed with packaging for a product. A coupon gives rise to legal obligations based upon its terms. In general, the coupon constitutes proof of a promise by a manufacturer to give something of value to an individual who purchases the product of the manufacturer and presents the coupon for redemption. The coupon may be in the form of a rebate to be mailed to the purchaser from the manufacturer. To obtain a cash rebate, the purchaser mustusually sendinthe rebate coupon and a sales slip as proof of purchase of the product, but individual companies may impose different requirements. A number of coupons offer a discount that is granted at the time of purchase. The coupon informs the merchant that it may be returned to the manufacturer for the face value of the coupon plus a small service charge for each coupon returned. The merchant is required to submit proof that a sufficient amount of stock was purchased to have made the sales claimed. The promise of the manufacturer on the coupon constitutes a UNILATERAL CONTRACT that is enforceable as soon as a retail merchant accepts the offer of the manufacturer. The manufac- turer has the right to req uire proof of purchase as a condit ion to performing the contract. The obligations that are created by advertis- ing coupons may be enforceable by criminal penalties as well as by contract law. In many jurisdictions misuse of coupons is a form of business FRAUD. For example, a merchant who returns thousands of coupons to a manufac- turer and claims a refund without ever having sold the product may be guilty of a criminal offense in some jurisdictions. Laws that apply to trading stamps and coupons also generally apply to gift certificates and gift cards. Some plaintiffs have brought suit claiming that companies should be liable based on their practices related to gift cards. For instance, in Marilao v. McDonald’s Corp. (No. 09-CV-01014-H, 2009 WL 2032069 [S.D. Cal. June 25, 2009]), a PLAINTIFF brought a CLASS ACTION against McDonald’s, arguing that the restaurant chain violated California’s UNFAIR COMPETITION law by refusing to redeem a gift card for cash. The court disagreed, finding that California law allows McDonald’s to require the holder of the gift card to use the gift card for purchases. FURTHER READINGS Gellhorn, Ernest. 1983. “Trading Stamps, S&H, and the FTC’s Unfairness Doctrine.” Duke Law Journal. (Nov.). Menkes, Bruce N. 2007. “Developments in the Law of Gift Cards.” Consumer Finance Law Quarterly Report. (Winter). CROSS REFERENCES Consumer Fraud; Consumer Protection. TRANSCRIPT A generic term for any kind of copy, particularly an official or certified representation of the record of what took place in a court during a trial or other legal proceeding. A transcript of record is the printed record of the proceedings and pleadings of a case, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TRANSCRIPT 81 required by the appellate court for a review of the history of the case. TRANSFER To remove or convey from one place or person to another. The removal of a case from one court to another court within the same system where it might have been instituted. An act of the parties, or of the law, by which the title to property is conveyed from one person to another. Transfer encompasses the sale and every other method, direct or indirect, of (1) dispos- ing of property or an interest therein or possession thereof; or (2) fixing a lien (a charge against property to secure a debt) absolutely or conditionally, voluntarily or involuntarily, with or without judicial proceedings, in the form of a conveyance, sale, payment, pledge, lien, mort- gage, gift, or otherwise. The term transfer has a general meaning and can include the act of giving property by will. Transfer is the comprehensive term used by the UNIFORM COMMERCIAL CODE (UCC)—a body of law adopted by the states that governs mercantile transactions—to describe the act that passes an interest in an instrument (a written legal document) from one person to another. TRANSFER OF ASSETS The transfer of assets is the conveyance of something of value from one person, place, or situation to another. The law recognizes that persons are gener- ally entitled to transfer their assets to whomever they wish and for whatever reason. The most common means of transfer are wills, trusts, and gifts. Some individuals, however, attempt to transfer property and money to qualify for government-funded nursing care or to avoid paying creditors or the INTERNAL REVENUE SERVICE. These types of transfers are generally prohibited by state and federal laws. If a creditor can show that a transfer was made in bad faith and for the purpose of avoiding a lawful debt, the transfer will be voided. A will is a common way of transferring assets. The testator, the person writing and signing the will, states in writing how the assets of his estate shall be divided and transferred upon his death. The estate of the testator is subject to inheritance taxes, but the remainder is transferred to the heirs and beneficiaries in the will. If a person dies INTESTATE, without writing a will, state statutes direct how the asset s shall be divided and transferred among family members. For persons who have substan tial assets, the transfer may be accomplished by using a trust. There are many types of trusts, some of which are part of a will and go into effect upon the death of the testator. Instead of being trans - ferred directly to persons, the assets are transferred to a trustee, who distributes funds based on the terms in the trust documents. The use of a trust generally reduces inheritance taxes. Individuals may also transfer assets to a trust while living to reduce their INCOME TAX burden. Income earned by the trust will be taxed to the trust, which usually is in a lower tax bracket than the person transferring the assets. The trust must benefit others, however, not just the person transferring the assets. A trust may be subject to limitations. A common type of trust is known as a SPENDTHRIFT TRUST . A person who establishes a SPENDTHRIFT trust empowers a trustee to manage trust funds for a BENEFICIARY , who is often someone who is unable to control his or her spending. The person creating a trust must also have the capacity to do so. Thus, if a person attempting to create a trust is under the age of 18, the trust may be voidable. Living persons may also make gifts to others. An INTER VIVOS gift, which takes effect during the lifetime of the donor and the donee, is irrevocable when made. Federal tax law permits a person to give up to $10,000 yearly to each recipient without having to pay any gift tax or file a gift TAX RETURN. All gifts in excess of the annual exclusions are taxable. Other types of transfers of assets have become popular in the United States. Some middle-class older persons, faced with the high cost of nursing home care and wanting to leave their property to their children, transfer all their assets to their children. By doing so, the older person can meet income and net asset guide- lines to qualify for government-subsidized nursing home care. State and federal govern- ments have sought to prevent this practice because it takes funds away from those who are truly indigent. A growing trend is transferring assets to avoid paying court judgments. Companies offer GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 82 TRANSFER asset-protection plans that seek to insulate, for example, a doctor from the possibility of paying a large MALPRACTICE damages award. By transfer- ring assets to a foreign country, the plan makes it difficult to ascertain the amount of the doctor’s assets. Also, collecting on a judgment in a foreign court is often impossible. A more radical device is transferring assets outside the United States to a foreign trust, which manages the assets and distributes funds to the beneficiaries. The foreign trustee controls the assets and is not subject to a lawsuit seeking collection of a judgment against the transferee. Critics charge that besides allowing a person to avoid paying a debt, foreign trusts encourage income TAX EVASION. Defenders of asset protec- tion contend that the purpose of foreign trusts is to avoid lawsuits, not taxes. FURTHER READINGS Boyle, F. Ladson, and Jonathan G. Blattmachr. 2007. Blattmachr on Income Taxation of Estates and Trusts. 15th ed. New York City: Practising Law Institute. Scott, Austin Wakeman, William Franklin Fratcher, and Mark Ascher. 2006. Scott and Ascher on Trusts. 5th ed. New York: Aspen. CROSS REFERENCES Spendthrift Trust; Trust. TRANSFER TAX A charge imposed by the federal and state governments upon the passing of title to real property or a valuable interest in such property, or on the transfer of a decedent’s estate by inheri- tance, devise, or bequest. The states also impose transfer tax on deeds used to convey real property, typically as a percentage of the consideration paid. Some states, such as New Hampshire, levy the tax on both the buyer and the seller. Certain govern- mental entities may be exempt from such a tax, and certain types of property, such as agricul- tural land, may carry higher tax rates. TRANSITORY ACTION A lawsuit, such as one to collect a debt, that can be commenced in any place (for example, any county of a state) where personal SERVICE OF PROCESS can be made on the defendant. The plaintiff has a choice of where to lay venue. Common examples of transitory actions are lawsuits brought to recover damages in breach of contract or TORT actions. Transitory actions are distinguishable from local actions, which can be brought only where the subject matter of the controversy exists. For example, the typical type of local action is one in which title to real property will be directly affected by the judgment of the court. Such actions generally must be tried in the county where the particular property is located. TRANSNATIONAL CORPORATION Any corporation that is registered and operates in more than one country at a time; also called a “multinational corporation.” A transnational corporation (TNC) or multi- national corporation (MNC) has its headquarters in one country and operates wholly or partially owned subsidiaries in one or more other countries. The subsidiaries report to the central headquarters. The growth in the number and size of transnational corporations since the 1950s has generated controversy because of their eco- nomic and political power and the mobility and complexity of their operations. Some critics argue that transnational corporations exhibit no loyalty to the countries in which they are incorporated but act solely in their own best interests. U.S. corporations have various motives for establishing a corporate presence in other coun- tries. One possible motive is a desire for growth. A corporation may have reached a plateau, meeting domestic demands, and may anticipate little additional growth. A new foreign market might provide opportunities for new growth. Other corporations desire to escape the protectionist policies of an importing country. Through direct foreign investment, a corporation can bypass high tariffs that prevent its goods from being competitively priced. For example, when the European Common Market (the predecessor of the European Union) placed tariffs on goods produced by outsiders, U.S. corporations responded by setting up European subsidiaries. Two other motives are more controversial. One is preventing competition. The most certain method of preventing actual or potential competition from foreign businesses is to acquire those businesses. Another motive for establishing subsidiaries in other nations is to reduce costs, mainly through the use of cheap foreign labor in developing countries. A trans- national corporation can hold down costs by GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TRANSNATIONAL CORPORATION 83 shifting some or all of its production facilities abroad. Transnational corporations with headquar- ters in the United States have played an increasingly dominant role in the world econ- omy. This dominance is most pronounced in the developing countries that rely primarily on a narrow range of exports, usually primary goods. A transnational corporation has the ability to disrupt traditional economies, impose monop- olistic practices, and assert a political and economic agenda on a country. Another concern with transnational corpora- tions is their ability to use foreign subsidiaries to minimize their tax liability. The INTERNAL REVENUE SERVICE (IRS) must analyze the movement of goods and services between a transnational company’s domestic and foreign operations and then assess whether the transfer price that was assigned on paper to each transaction was fair. IRS studies indicate that U.S. transnational corpora- tions have an incentive to set their transfer prices so as to shift income away from the United States and its higher corporate tax rates and to shift deductible expenses into the United States. Foreign-owned corporations doing business in the United States have a similar incentive. Critics argue that these tax incentives also motivate U.S. transnational corporations to move plants and jobs overseas. Largest Transnational Companies According to the World Investment Report from the UN Conference on Trade and Development, dated October of 2009, GE, an American conglomerate, holds foreign assets worth $420 billion, more than any other non-financial firm. However, Vodafone and Total hold more than 85% of their assets in foreign countries, far more than GE’s 53%. Six of the ten biggest transna- tional corporations are from the oil or power industries; two are carmakers, one of which, Toyota, is the only Asian company on the list. The firms vary greatly in other ways. For example, Exxon Mobil had foreign sales of $269 billion in 2007, almost three times Ford’s. But whereas Ford had 135,000 employees abroad, Exxon had just 51,000. Fears of Nationalizing Most countries have some fear about national- izing public transnational companies because of revenue losses. However, it is becoming more common to do so. Transnation al corporations raise concern in relation to recent global trends because they are active in some of the most dynamic sectors of national economies, such as TELECOMMUNICATIONS, information technology, electronic consumer goods, footwear, apparel, shipping, banking and finance, insurance, and SECURITIES trading. They bring new jobs , capital, and technology. Some corporations make real efforts to meet international standards by improving working conditions and raising local standards of living. Some transnational corpo- rations, however, do not respect minimum international HUMAN RIGHTS standards and can thus be implicated in ab uses such as employing child workers, discriminating against certain groups of employees, failing to provide safe and healthy working conditions, attempting to repress independent trade unions, discouraging the right to bargain collectively, limiting the broad dissemination of appropriate technology and INTELLECTUAL PROPERTY, and dumping toxic wastes. Some of these abuses disproportionately affect developing countrie s, children, minori- ties, and women who work in unsafe and poorly paid production jobs, as well as indigenous communities and other vulnerable groups. TRANSNATIONAL LAW All the law—national, international, or mixed— that applies to all persons, businesses, and gover- nments that perform or have influence across state lines. Transnational law regulates actions or events that t ransc end national frontiers. It involves indi- viduals, corpora tions, states, or other groups —not just the official relations between governments of states. An almost infinite variety of transnational situations might arise, but there are rules or law bearing upon each. Since applicable lega l rules might conflict with each other, “choice of law” is determined by rules of conflict of laws or private international law. The choice, usually between rules of different national laws, is made by a national court. In other types of situations, the choice might be between a rule of national law and a rule of “public international law,” in which case the choice is made by an international tribunal or some nonjudicial decision-maker, such as an appointed body. CROSS REFERENCE International Law. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 84 TRANSNATIONAL LAW TRANSPORTATION DEPARTMENT The U.S. Department of Transportation (DOT) establishes overall transportation policy for the United States. Under the DOT umbrella are 10 administrations whose jurisdictions include highway planning, develop ment, and construc- tion; urban mass transit; railroads; aviation; and the safety of ports, highways, and oil and gas pipelines. Decisions made by the department in conjunction with appropriate state and local officials can significantly affect other programs such as land planning, energy conservation, scarce resource utilization, and technological change. The DOT was established by Congress in 1966 (49 U.S.C.A. § 102) “to assure the coordinated, effective administration of the transportation programs of the Federal Govern- ment” and to develop “national transportation policies and programs conducive to the provi- sion of fast, safe, efficient, and convenient transportation at the lowest cost consistent therewith.” The department became operational in April 1967 with elements transferred from eight other major departments and agencies. The DOT consists of the office of the secretary and 11 operating agencies, the heads of which report directly to the secretary and have highly decentralized authority. Office of the Secretary of Transportation The DOT is administered by the secretary of transportation, who is the principal adviser to the president in all matters relating to federal transportation programs. The secretary admin- isters the department with the assistance of a deputy secretary of transportation, an associate deputy secr etary, the assistant secretaries, a general counsel, the inspector general, and several directors and chairpersons. Federal Aviation Administration The FEDERAL AVIATION ADMINISTRATION (FAA), formerly the Federal Aviation Agency, was U.S. Department of Transportation Secretary Deputy Secretary General Counsel Under Secretary for Policy Office of Drug and Alcohol Policy and Compliance Chief of Staff Assistant Secretary for Transportation Policy Executive Secretariat Office of Civil Rights Board of Contract Appeals Assistant Secretary for Aviation and International Affairs Office of Small and Disadvantaged Business Utilization Office of Intelligence and Security Office of the Chief Information Officer Office of Public Affairs Assistant Secretary for Budget and Programs/ Chief Financial Officer Assistant Secretary for Governmental Affairs Assistant Secretary for Administration Office of Inspector General Federal Highway Administra- tion Federal Railroad Administra- tion National Highway Traffic Safety Administra- tion St. Lawrence Seaway Development Corporation Research and Innovative Technology Administra- tion Federal Aviation Administra- tion Federal Transit Administra- tion Maritime Administra- tion Federal Motor Carrier Safety Administra- tion Pipeline and Hazardous Materials Safety Administra- tion ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION TRANSPORTATION DEPARTMENT 85 established by the Federal Aviation Act of 1958 (49 U.S.C.A. § 106) and became a component of the DOT in 1967. The FAA is charged with regulating air commerce in ways that best promote its development and safety and fulfill the requirements of national defense; control- ling the use of the navigable airspace of the United States by regula ting both civil and military operations in that airspace in the interest of safety and efficiency; promoting, encouraging, and developing civil AERONAUTICS; and consolidating research and development with respect to air navigation facilities. The FAA is responsible for installing and operating air nav igation facilities; developing and operating a common system of air traffic control and navigation for both civil and military aircraft; and developing and imple- menting programs and regulations to contro l aircraft noise, sonic booms, and other environ- mental effects of civil aviation. In addition, the FAA operates a network of airport traffic control towers, air route traffic control centers, and flight service stations. It develops air traffic rules and regulations and allocates the use of the airspace. It also provides for the security control of air traffic to meet national defense requirements. The FAA is responsible for the location, construction or installation, maintenance, op- eration, and quality assurance of federal visual and electronic aids to air navigation. It operates and maintains voice/data communications equipment, radar facilities, computer systems, and visual display equipment at flight service stations, airport traffic control towers, and air route traffic control centers. The FAA maintains a national plan of airport requirements, administers a grant pro- gram for the development of public use airports to assure and improve safety and to meet current and future airport capacity needs, evaluates the environmental impacts of airport development, and administers an airport noise compatibility program with the goal of reducing incompatible uses around airports. It also develops standards and technical guidance on airport planning, design, safety, and operations and provides grants to assist public agencies in airport system and master planning and airport development and improvement. A system for registering aircraft and record- ing documents that affect title or interest in the aircraft, aircraft engines, propellers, appliances, and spare parts is provided by the FAA. Under the Federal Aviation Act of 1958 and the International Aviation Facilities Act (49 U.S. C.A. § 1151), the FAA promotes aviation safety and civil aviation abroad by exchanging aero- nautical information with foreign aviation authorities; certifying foreign repair stations, air personnel, and mechanics; negotiating bilateral airworthiness agreements to facilitate the import and export of aircraft and compo- nents; and providing technical assistance and training in all areas of the agency’s expertise. An important function of the FAA is regulation and promotion of the U.S. commer- cial space transportation industry. It licenses the private-sector launching of space payloads on expendable launch vehicles and commercial space launch facilities. The FAA also sets insurance requirements for the protection of persons and property and ensures that space transportation activities comply with U.S. domestic and foreign policy. Federal Highway Administration The Federal Highway Administration (FHWA) became a component of the DOT in 1967. It administers the highway transportation programs of the DOT under Title 23 of the U.S. CODE, along with other pertinent legislation. FHWA oversees highway transportation in its broadest scope, seeking to coordinate highways with other modes of transportation to achieve the most effective balance of transportation systems and facilities. FHWA administers the federal aid highway program, which provides funding tostates to assist in constructing highways and making highway and traffic operations more efficient. This pro- gram provides for improvement of approximately 159,000 miles of the National Highway System, which includes the 43,000-mile DWIGHT D . EISEN- HOWER system of interstate and defense highways and other public roads. The federal government generally provides 90 percent of the funding for the construction and preservation of the interstate system, and the relevant states provide 10 percent. For projects not on the interstate system and most projects on other roads, 80 percent of the fund- ing comes from the federal government and 20 percent from the states. The Highway Bridge Replacement and Rehabilitation Program also falls under the FHWA. The program assists in the inspection, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 86 TRANSPORTATION DEPARTMENT analysis, and rehabilitation or replacement of bridges on public roads. In addition, it admin- isters an emergency program to assist in the repair or reconstruction of federal aid highways and certain federal roads that have serious damage over a wide area from natural disasters or catastrophic failures. The Congestion Mitigation and Air Quality Improvement (CMAQ) Program provides funding to reduce AIR POLLUTION. Transportation improvement projects and programs that re- duce transportation-related emissions are eligi- ble for funding. Funds can be used for highway, transit, and other transportation purposes. FHWA is responsible for several highway- related safety programs, including a state and community safety program jointly administered with the National Highway Traffic Safety Administration (NHTSA) and a highway safety construction program to eliminate road hazards and imp rove rail-highway crossing safety. These safety construction programs fund activities that remove, relocate, or shield roadside obstacles; identify and correct hazardous locations; elimi- nate or reduce hazards at railroad crossings; and improve signs, pavement markings, and signals. Under the provisions of the Surface Trans- portation Assistance Act of 1982 (23 U.S.C.A. § 101), FHWA is authorized to establish and maintain a national network for trucks, review state programs regulating truck size and weight, and assist in obtaining uniformity among the states in commercial motor carrier registration and taxation reporting. FHWA works coopera- tively with states and private industry to achieve uniform safety regulations, inspections and fines, licensing, registration, and taxation. Federal Motor Carrier Safety Administration Congress created the Federal Motor Carrier Safety Administration (FMCSA) with the pas- sage of the Motor Carrier Safety Improvement Act of 1999. FMCSA has several goals, including reduction of damage caused during crashes involving large trucks and buses regulated by the agency. FMCSA develops and enforces regulations that balance motor carrier safety with industry efficiency. It also seeks to use safety information systems to focus on high risk carriers. Educa- tional messages are targeted to carriers, com- mercial drivers, and the public. FMCSA partners include enforcement agencies at the federal, state, and local level; the motor carrier industry; safety groups; and organized labor. The Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C.A. § 2701) authorizes FMCSA to establish natio nal standards for a single commercial vehicle driver’s license for state issuance, a national information system clear- inghouse for commercial driver’s license infor- mation, knowledge and skills tests for licensing commercial vehicle drivers, and disqualification of drivers for serious traffic offenses, including alcohol and drug abuse. FMCSA administers the Motor Carrier Safety Assistance Program, a partnership between the federal government and the states, under the provisions of sections 401–404 of the Surface Transportation Assis- tance Act of 1982 (49 U.S.C.A. §§ 2301–2304). Federal Railroad Administration The purpose of the Federal Railroad Adminis- tration (FRA) is to promulgate and enforce rail safety regulations, administer railroad financial assistance programs, co nduct research and development in support of improved railroad safety and national rail transportation policy, provide for the rehabilitation of Northeast Corridor rail passenger service , and consolidate government support of rail transportation activities. FRA administers and enforces the federal laws and related regulations designed to pro- mote safety on railroads and exercises jurisd ic- tion over all areas of rail safety, such as track maintenance, inspection standards, equipment standards, and operating practices. It also administers and enforces regulations enacted pursuant to railroad safety legislation for locomotives, signals, safety appliances, power brakes, hours of service, transportation of explosives and other dangerous articles, and the reporting and investigation of railroad accidents. Railroad and related industry equip- ment, facilities, and records are inspected, and required reports are reviewed. In addition, FRA educates the public about safety at highway-rail grade crossings and the danger of trespassing on rail property. National Highway Traffic Safety Administration NHTSA was established by the Highway Safety Act of 1970 (23 U.S.C.A. § 401). NHTSA carries out programs concerning the safety GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TRANSPORTATION DEPARTMENT 87 . printed record of the proceedings and pleadings of a case, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION TRANSCRIPT 81 required by the appellate court for a review of the history of the case. TRANSFER To. BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION TRANSPORTATION DEPARTMENT 85 established by the Federal Aviation Act of 1958 (49 U.S.C.A. § 106 ) and. body. CROSS REFERENCE International Law. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 84 TRANSNATIONAL LAW TRANSPORTATION DEPARTMENT The U.S. Department of Transportation (DOT) establishes