Agricultural Marketing Service
Animal and Plant Health Inspection Service
Natural Resources Conservation Service
Inspector General Office, Health and Human Services Department
International Trade Administration
National Oceanic and Atmospheric Administration
Navy Department
Federal Energy Regulatory Commission
Presidential Documents
Trade Representative, Office of United States
Centers for Disease Control and Prevention
Food and Drug Administration
Indian Health Service
Inspector General Office, Health and Human Services Department
Coast Guard
Federal Emergency Management Agency
Transportation Security Administration
Fish and Wildlife Service
Land Management Bureau
National Indian Gaming Commission
National Park Service
Federal Bureau of Investigation
Prisons Bureau
Employment and Training Administration
Occupational Safety and Health Administration
Trade Representative, Office of United States
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Maritime Administration
Pipeline and Hazardous Materials Safety Administration
Surface Transportation Board
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Department of Commerce.
Final rule.
The Department of Commerce (Department) removes its regulations implementing the government-wide common rule on nonprocurement debarment and suspension, currently codified at Title 15, and adopts the Office of Management and Budget's (OMB) guidance at Title 2 of the Code of Federal Regulations (CFR) published as interim final guidance in the
This rule is effective January 22, 2007.
For further information, please contact Gary Johnson at (202) 482–1679 or by e-mail at
On August 31, 2005, the Office of Management and Budget (OMB) issued an interim final guidance that implemented its Guidance for Governmentwide Debarment and Suspension (Nonprocurement), codified in Part 180 of title 2 of the Code of Federal Regulations (70 FR 51862, August 31, 2005). In addition to restating and updating its guidance on nonprocurement debarment and suspension, the interim final guidance requires all federal agencies to adopt a new approach to federal agency implementation of the guidance. OMB requires each agency to issue a brief rule that: (1) Adopts the guidance, giving it regulatory effect for that agency's activities; and (2) states any agency-specific additions, clarifications, and exceptions to the government-wide policies and procedures contained in the guidance. That guidance also requires agencies to implement the OMB guidance by February 28, 2007.
On November 15, 2006, OMB issued a final rule (71 FR 66431) revising its government-wide guidance on nonprocurement debarment and suspension. The revisions were necessary to conform a few unintended changes in the content of the interim final guidelines to the substance of the Federal agencies' most recent update to the common rule (68 FR 66534, November 26, 2003). The revisions also made needed technical corrections.
Pursuant to the requirements in OMB's final guidance, the Department of Commerce (Department) in this action: (1) Removes 15 CFR Part 26; (2) revises the Department's debarment and suspension common rule to implement OMB's guidance and includes specific provisions to the Department; (3) co-locates the Department's part with OMB's guidance in 2 CFR along with other agencies' regulations in that title; and (4) revises references in 15 CFR Part 14 to include the citation to the Department's regulations located in Title 2, Part 1326.
This regulatory action implements the OMB's initiative to streamline and consolidate all federal regulations on nonprocurement debarment and suspension into one part of the CFR, and does not intend to modify any of the Department's current policy.
Public comment on this action was solicited as a proposed rule in a
This regulatory action has been determined to be not significant for purposes of E.O. 12866.
The Chief Counsel for Regulation at the Department of Commerce certified to the Chief Counsel for Advocacy at the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. The factual basis for the certification is found in the proposed rule and is not repeated here. No comments were received on the economic impacts of this rule therefore a final Regulatory Flexibility Act analysis was not prepared.
This regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year.
This regulatory action will not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the Paperwork Reduction Act unless that collection displays a currently valid OMB Control Number.
This regulatory action does not have Federalism implications, as set forth in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
Administrative practice and procedure, Debarment and suspension,
Administrative practice and procedure, Debarment and suspension, Grant programs, Reporting and recordkeeping requirements.
5 U.S.C. 301; Sec. 2455, Pub. L. 103–355, 108 Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235.
This part adopts the Office of Management and Budget (OMB) guidance in Subparts A through I of 2 CFR part 180, as supplemented by this part, as the Department of Commerce policies and procedures for nonprocurement debarment and suspension. It thereby gives regulatory effect to the OMB guidance as supplemented by this part. This part satisfies the requirements in section 3 of Executive Order 12549, “Debarment and Suspension” (3 CFR 1986 Comp., p. 189), Executive Order 12689, “Debarment and Suspension” (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Public Law 103–355, 108 Stat. 3327).
This part and, through this part, pertinent portions of the OMB guidance in Subparts A through I of 2 CFR part 180 (see table at 2 CFR 180.100(b)) apply to you if you are a—
(a) Participant or principal in a “covered transaction” (see Subpart B of 2 CFR part 180 and the definition of “nonprocurement transaction” at 2 CFR 180.970, as supplemented by by Subpart B and § 1326.970 of this part).
(b) Respondent in a Department of Commerce suspension or debarment action.
(c) Department of Commerce debarment or suspension official;
(d) Department of Commerce grants officer, agreements officer, or other official authorized to enter into any type of nonprocurement transaction that is a covered transaction;
The Department of Commerce policies and procedures that you must follow are the policies and procedures specified in each applicable section of the OMB guidance in Subparts A through I of 2 CFR part 180, as that section is supplemented by the section in this part with the same section number. The contracts that are covered transactions, for example, are specified by section 220 of the OMB guidance (
Within the Department of Commerce, the Secretary of Commerce or designee has the authority to grant an exception to let an excluded person participate in a covered transaction, as provided in the OMB guidance at 2 CFR 180.135.
(a) For purposes of the Department of Commerce, a transaction that the Department needs to respond to a national or agency-recognized emergency or disaster includes the Fisherman's Contingency Fund.
(b) For purposes of the Department of Commerce, an incidental benefit that results from ordinary governmental operations includes:
(1) Export Promotion, Trade Information and Counseling, and Trade policy.
(2) Geodetic Surveys and Services (Specialized Services).
(3) Fishery Products Inspection Certification.
(4) Standard Reference Materials.
(5) Calibration, Measurement, and Testing.
(6) Critically Evaluated Data (Standard Reference Data).
(7) Phoenix Data System.
(8) The sale or provision of products, information, and services to the general public.
(c) For purposes of the Department of Commerce, any other transaction if the application of an exclusion to the transaction is prohibited by law includes:
(1) The Administration of the Anti-dumping and Countervailing Duty Statutes.
(2) The export Trading Company Act Certification of Review Program.
(3) Trade Adjustment Assistance Program Certification.
(4) Foreign Trade Zones Act of 1934, as amended.
(5) Statutory Import Program.
In addition to the contracts covered under 2 CFR 180.220(b) of the OMB guidance, this part applies to a
You as a participant must include a term or condition in lower-tier transactions requiring lower-tier participants to comply with Subpart C of the OMB guidance in 2 CFR Part 180, as supplemented by this subpart.
To communicate to a participant the requirements described in 2 CFR 180.435 of the OMB guidance, you must include a term or condition in the transaction that requires the participant's compliance with subpart C of 2 CFR part 180, as supplemented by Subpart C of this part, and requires the participant to include a similar term or condition in lower-tier covered transactions.
For purposes of the Department of Commerce, nonprocurement transaction includes the following:
(a) Joint project Agreements under 15 U.S.C. 1525.
(b) Cooperative research and development agreements.
(c) Joint statistical agreements.
(d) Patent licenses under 35 U.S.C. 207.
(e) NTIS joint ventures, 15 U.S.C. 3704b.
5 U.S.C. 301: OMB Circular A–110 (64 FR 54926, October 8, 1999).
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
This document makes a correction to Airworthiness Directive (AD) 2006–23–02, which was published in the
The effective date of this AD (2006–23–02) remains December 13, 2006.
Chris B. Morgan, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Wichita, Kansas 67209; telephone: (316) 946–4154; facsimile: (316) 946–4107.
On October 26, 2006, the FAA issued AD 2006–23–02, Amendment 39–14814 (71 FR 65390, November 8, 2006), which applies to certain RAC Models C90A, B200, B200C, B300, and B300C airplanes. AD 2006–23–02 requires you to inspect the flight controls for improper assembly or damage, and if any improperly assembled or damaged flight controls are found, take corrective action. We proposed in the NPRM “unless already done” credit if the actions were already accomplished. However, we inadvertently left that language out of paragraph (e) of AD 2006–23–02.
This correction is needed to allow credit for already completed actions required by this AD. This document corrects that paragraph by inserting the phrase “unless already done” in paragraph (e) of AD 2006–23–02 as was proposed in the NPRM.
Action is taken herein to correct this reference in AD 2006–23–02 and to add this AD correction to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13).
The effective date remains December 13, 2006.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued by the aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
This AD requires actions that are intended to address the unsafe condition described in the MCAI.
This AD becomes effective January 10, 2007.
The Director of the Federal Register approved the incorporation by reference of Stemme F&D Service Bulletin Document Number A31–10–077, Am.-Index: 01.a, dated October 6, 2006, listed in this AD as of January 10, 2007.
We must receive comments on this AD by January 22, 2007.
You may send comments by any of the following methods:
•
•
•
•
•
You may examine the AD docket on the Internet at
Greg Davison, Glider Program Manager, Small Airplane Directorate, FAA, 901 Locust, Room 301, Kansas City, Missouri, 64106; telephone: (816) 329–4130; fax: (816) 329–4090.
The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. The streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and
This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No.: 2006–0310–E, dated October 11, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
A leaking brass fuel connection (part no. 10AB–75) was found during maintenance check.
This brass fuel connection was for the first time introduced with the SB A31–10–061, “Additional Measures—Fire Protection S10–VT” and with the SB A31–10–063, “Additional Measures—Fire Protection for S10 and S10–V” (US mandatory). These brass connections were used later in serial production as spare parts.
The leaking brass connector was in accordance with design modification index 01.a. It was installed starting February 2002 until April 2002. A modified version of the hose connector was introduced in April 2002 after the old version resulted to be susceptible to improper assembly and maintenance. The modified version has design modification index 02.a and its installation has been proved to avoid any possible leakage.
The MCAI requires inspections on both sides of the fuel connection between the wing and the fuselage to identify any installed brass hose connector having design modification index 01.a and replacing those connectors with the modified version of connectors having design modification index 02.a. You may obtain further information by examining the MCAI in the AD docket.
Stemme GmbH & Co. KG has issued Stemme F&D Service Bulletin A31–10–077 Am.-Index: 01.a, dated October 6, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might have also required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD. These requirements take precedence over those copied from the MCAI.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because a leaking brass fuel connection (part no. 10AB–75) was found during maintenance check. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective January 10, 2007.
(b) None.
(c) This AD applies to the following model and serial number gliders, certificated in any category.
(d) The mandatory continuing airworthiness information (MCAI) states:
A leaking brass fuel connection (part no. 10AB–75) was found during maintenance check.
(e) Prior to further flight as of January 10, 2007 (the effective date of this AD), unless already done, do the following actions.
(1) Inspect both sides of the connection between the wing and the fuselage to identify any installed brass hose connector having design modification index 01.a.
(2) Replace connectors identified as design modification index 01.a with the modified version of connectors having design modification index 02.a.
(3) Do the actions required in this AD in accordance with the requirements of Stemme F&D Service Bulletin A31–10–077 Am.-Index: 01.a, dated October 6, 2006.
This AD differs from the MCAI and/or service information as follows: No differences.
(f) The following provisions also apply to this AD:
(1)
(2)
(3)
(g) Refer to European Aviation Safety Agency (EASA) AD No.: 2006–0310–E, dated October 11, 2006, and Stemme F&D Service Bulletin A31–10–077 Am.-Index: 01.a, dated October 6, 2006, for related information.
(h) You must use Stemme F&D Service Bulletin A31–10–077 Am.-Index: 01.a, dated October 6, 2006, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact STEMME GmbH & Co. KG, Flugplatzstraβe F2, Nr. 7, D–15344 Strausberg, Germany; telephone: + 49.33 41/36 12–0; fax: +49.33 41/36 12–30; e-mail:
(3) You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment adopts miscellaneous amendments to the required IFR (instrument flight rules) altitudes and changeover points for certain Federal airways, jet routes, or direct routes for which a minimum or maximum en route authorized IFR altitude is prescribed. This regulatory action is needed because of changes occurring in the National Airspace System. These changes are designed to provide for the safe and efficient use of the navigable airspace under instrument conditions in the affected areas.
Donald P. Pate, Flight Procedure Standards Branch (AMCAFS–420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954–4164.
This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.
The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Navigation (air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44719, 44721.
Securities and Exchange Commission.
Final rule; extension of compliance dates; request for comment on Paperwork Reduction Act burden estimates.
We are extending further for smaller public companies the dates that were published on September 29, 2005, in Release No. 33–8618 [70 FR 56825], for their compliance with the internal control reporting requirements mandated by Section 404 of the Sarbanes-Oxley Act of 2002. Under the extension, a non-accelerated filer is not required to provide management's report on internal control over financial reporting until it files an annual report for its first fiscal year ending on or after December 15, 2007. If we have not issued additional guidance for management on how to complete its
We also are adopting amendments that provide for a transition period for a newly public company before it becomes subject to the internal control over financial reporting requirements. Under the new amendments, a company will not become subject to these requirements until it either had been required to file an annual report for the prior fiscal year with the Commission or had filed an annual report with the Commission for the prior fiscal year. A newly public company is required to include a statement in its first annual report that the annual report does not include either management's assessment on the company's internal control over financial reporting or the auditor's attestation report.
A company that does not meet the definition of either an accelerated filer or a large accelerated filer is not required to comply with the requirement to provide the auditor's attestation report on internal control over financial reporting until it files an annual report for its first fiscal year ending on or after December 15, 2008. Furthermore, until this type of company becomes subject to the auditor attestation report requirement, the registered public accounting firm retained by the company need not comply with the obligation in Rule 2–02(f) of Regulation S–X. Rule 2–02(f) requires every registered public accounting firm that issues or prepares an accountant's report that is included in an annual report filed by an Exchange Act reporting company (other than a registered investment company) containing an assessment by management of the effectiveness of the company's internal control over financial reporting to attest to, and report on, such assessment.
• Use the Commission's Internet comment form (
• Send an e-mail to
• Use the Federal Rulemaking Portal (
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
All submissions should refer to File Number S7–06–03. This file number should be included on the subject line if e-mail is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
Sean Harrison, Steven G. Hearne, or Katherine Hsu, Special Counsels, Office of Rulemaking, Division of Corporation Finance, at (202) 551–3430, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–3628.
On June 5, 2003,
Under the compliance dates that we originally established, companies meeting the definition of an “accelerated filer” in Exchange Act Rule 12b–2
In February 2004, we extended the compliance dates for accelerated filers to fiscal years ending on or after November 15, 2004, and for non-accelerated filers and for foreign private issuers to fiscal years ending on or after July 15, 2005.
In March 2005, we approved a further one-year extension of the compliance dates for non-accelerated filers and for all foreign private issuers filing annual reports on Form 20–F or 40–F in view of the efforts by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) to provide more guidance on how the COSO framework on internal control can be applied to smaller public companies.
Most recently, in September 2005, we again extended the compliance dates for the internal control over financial reporting requirements applicable to companies that are non-accelerated filers.
Since we granted that extension last year, a number of events related to internal control over financial reporting assessments have occurred. Most recently, on July 11, 2006, COSO and its Advisory Task Force issued
In addition, on April 23, 2006, the SEC Advisory Committee on Smaller Public Companies submitted its final report to the Commission.
In April 2006, the U.S. Government Accountability Office (GAO) issued a report entitled
Finally, on May 10, 2006, the Commission and the PCAOB sponsored a roundtable to elicit feedback from companies, their auditors, board members, investors, and others regarding their experiences during the accelerated filers' second year of compliance with the internal control over financial reporting requirements.
On May 17, 2006, the Commission and the PCAOB each announced a series of actions that they intended to take to improve the implementation of the Section 404 internal control over financial reporting requirements.
• Issuance of a concept release
• Consideration of additional guidance from COSO;
• Revisions to Auditing Standard No. 2;
• Reinforcement of auditor efficiency through PCAOB inspections and Commission oversight of the PCAOB's audit firm inspection program;
• Development, or facilitation of development, of implementation guidance for auditors of smaller public companies;
• Continuation of PCAOB forums on auditing in the small business environment; and
• Provision of an additional extension of the compliance dates of the internal control reporting requirements for non-accelerated filers.
Consistent with this announcement, on August 9, 2006, we proposed to extend further the date for complying with the internal control over financial reporting requirements for domestic and foreign non-accelerated filers.
Furthermore, in a separate release also issued on August 9, 2006, we adopted an extension of the date for complying with the auditor attestation requirement for foreign private issuers that meet the Exchange Act definition of an accelerated filer, but not a large accelerated filer, and that file their annual reports on Form 20–F or 40–F, so that such issuers would not be subject to the auditor attestation requirement until a year after they first begin complying with the management report requirement.
We received letters from a total of 36 commenters on the proposed extension of the internal control over financial reporting compliance dates for non-accelerated filers.
We are adopting the extension of the compliance dates substantially as proposed. In response to public comment, we are adding a requirement that a non-accelerated filer clearly disclose in management's report that management's assessment of internal control has not been attested to by the auditor, if it is providing only management's report during its first year of compliance with the Section 404 requirements.
Some commenters suggested that the Commission broaden the scope of relief so that the extended compliance dates would still cover companies that currently are non-accelerated filers even if they become accelerated filers or large accelerated filers before December 15, 2008.
Pursuant to the extension, a non-accelerated filer must begin to provide management's report on internal control over financial reporting in an annual report it files for its first fiscal year ending on or after December 15, 2007.
We estimate that fewer than 15% of all non-accelerated filers will have a fiscal year ending between July 15, 2007 and December 15, 2007.
The extension of the date for complying with the management report requirement permits non-accelerated filers to complete only management's report on internal control over financial reporting in the first year of compliance. As noted in the Proposing Release, we have several reasons for deferring the implementation of the auditor attestation report requirement for an additional year after the implementation of the management report requirement. First, we believe that the deferred implementation affords non-accelerated filers and their auditors the benefit of anticipated changes by the PCAOB to Auditing Standard No. 2, subject to Commission approval, as well as any implementation guidance that the PCAOB plans to issue for auditors of smaller public companies. We will consider further postponing this date after we consider the anticipated revisions to Auditing Standard No. 2.
Second, we believe that the deferred implementation of the auditor attestation requirement should save non-accelerated filers the full potential costs associated with the initial auditor's attestation to, and report on, management's assessment of internal control over financial reporting during the period that changes to Auditing Standard No. 2 are being considered and implemented, and the PCAOB is formulating guidance that will be specifically directed to auditors of smaller companies. Public commenters previously have asserted that the internal control reporting compliance costs are likely to be disproportionately higher for smaller public companies than larger ones, and that the auditor's fee represents a large percentage of those costs. Furthermore, we have learned from public comments, including our roundtables on implementation of the internal control
One commenter that opposed the 17-month extension of the compliance date for the auditor attestation requirement noted that there is anecdotal evidence that smaller companies have not taken advantage of the previous extensions for non-accelerated filers.
Several commenters supported the sequential implementation of the management assessment and auditor attestation requirements, which we are adopting.
We received some comments noting that the different schedules for implementing the two requirements on internal control over financial reporting might cause confusion to investors and the capital markets.
This annual report does not include an attestation report of the company's registered public accounting firm regarding internal control over financial reporting. Management's report was not subject to attestation by the company's registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the company to provide only management's report in this annual report.
In the Proposing Release, we indicated that we had issued a separate release to extend the date by which a foreign private issuer that is an accelerated filer (but not a large accelerated filer) and that files its annual report on Form 20–F or 40–F must begin to comply with the auditor attestation report portion of the Section 404 requirements. We requested comment on whether we should consider taking additional actions specifically with respect to foreign private issuers. Like non-accelerated filers, these foreign private issuers will provide only management's report during their first year of compliance with the internal control over financial reporting requirements.
One commenter noted that disagreements over whether management failed to report a material
Nevertheless, as noted in the Proposing Release, we acknowledge that a company that files only a management report during its first year of compliance with the Section 404 requirements may become subject to more second-guessing as a result of separating the management and auditor reports than under the current requirements. For example, management may conclude that the company's internal control over financial reporting is effective when only management's report is filed in the first year of compliance, but the auditor may come to a contrary conclusion in its report filed in the subsequent year, and as a result, the company's previous assessment may be called into question. To further address this, we proposed a temporary amendment whereby the management report included in the non-accelerated filer's annual report during the first year of compliance would be deemed “furnished” rather than “filed.”
Almost all of the commenters remarking on this aspect of the proposal supported it.
We also are extending the compliance date to permit a non-accelerated filer to omit the portion of the introductory language in paragraph 4 as well as language in paragraph 4(b) of the certification required by Exchange Act Rules 13a–14(a) and 15d–14(a)
Finally, we are clarifying that, until a non-accelerated filer becomes subject to the auditor attestation report requirement, the registered public accounting firm retained by the non-accelerated filer need not comply with the obligation in Rule 2–02(f) of Regulation S–X. Rule 2–02(f) requires every registered public accounting firm that issues or prepares an accountant's report that is included in an annual report filed by an Exchange Act reporting company (other than a registered investment company) containing an assessment by management of the effectiveness of the company's internal control over financial reporting to attest to, and report on, such assessment.
The extended compliance periods do not, in any way, alter requirements regarding internal control that already are in effect with respect to non-accelerated filers, including, without limitation, Section 13(b)(2) of the Exchange Act
In the Proposing Release, we also proposed to add a transition period for newly public companies before they become subject to compliance with the internal control over financial reporting requirements. Under the rules existing prior to the amendments, after all Exchange Act reporting companies have been phased-in and are required to comply fully with the internal control reporting provisions, any company undertaking an initial public offering or registering a class of securities under the Exchange Act for the first time would have been required to comply with those provisions as of the end of the fiscal year in which it became a public company.
For many companies, preparation of the first annual report on Form 10–K, 10–KSB, 20–F or 40–F is a comprehensive process involving the audit of financial statements, compilation of information that is responsive to many new public disclosure requirements and review of the report by the company's executive officers, board of directors and legal counsel. Requiring a newly public company and its auditor to complete the management report and auditor attestation report on the effectiveness of the company's internal control over financial reporting within the same timeframe imposes an additional burden on newly public companies.
The Proposing Release also specifically recognized the burden that preparing the reports imposed on companies, including foreign companies, that become subject to Section 15(d) after filing a registration statement under the Securities Act of 1933
Specifically, we proposed that a newly public company would not need to comply with our internal control over financial reporting requirements in the first annual report that it files with the Commission.
We received 22 comment letters addressing our proposal on newly public companies.
After consideration of the public comments that were received, we are adopting the newly public company amendments substantially as proposed. We are therefore amending the rules to provide that a newly public company does not need to comply with our internal control over financial reporting requirements in the first annual report that it files with the Commission.
Two commenters objected to the proposed relief, noting the importance of the internal control over financial reporting requirements to the Sarbanes-Oxley Act reforms.
One commenter sought clarification on the transition period,
The amendments also permit a newly public company, during the transition period, to omit the portion of the
One commenter suggested that if the Commission decides to provide for a transition period, prominent disclosure by the company and the auditor should be required indicating that the company is not yet required to comply with and there has been no management assessment or audit of the company's internal control over financial reporting.
As discussed in the Proposing Release, we submitted a request for approval of the “collection of information” requirements contained in the amendments to the Office of Management and Budget (“OMB”) in accordance with the Paperwork Reduction Act of 1995 (“PRA”)
The titles for the collections of information are:
(1) “Regulation S–B” (OMB Control No. 3235–0417);
(2) “Regulation S–K” (OMB Control No. 3235–0071);
(3) “Form 10–K” (OMB Control No. 3235–0063);
(4) “Form 10–KSB” (OMB Control No. 3235–0420);
(5) “Form 20–F” (OMB Control No. 3235–0288); and
(6) “Form 40–F” (OMB Control No. 3235–0381).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information such as Form 10–K or Form 20–F unless it displays a currently valid OMB control number.
The amendments to Regulation S–B, Regulation S–K, Form 10–K, Form 10–KSB, Form 20–F and Form 40–F adopted in this release require non-accelerated filers and foreign private issuers that are accelerated filers (but not large accelerated filers) to include a statement in management's report on the company's internal control over financial reporting in the annual report in which the company is not required to include the auditor attestation requirement. The statement should disclose that the annual report does not contain a report by the company's registered public accounting firm on management's report of the company's internal control over financial reporting, and management's report was not subject to attestation by the accounting firm pursuant to temporary rules of the Commission that permit the company to provide only management's report in the annual report. The amendments we are adopting also require newly public companies to provide a similar statement in their first annual report to reflect the transition schedule we are adopting for those companies. We are requesting comment in this release with regard to the collections of information requirements for these amendments.
The requirements are designed to avoid investor confusion regarding application of the internal control over financial reporting requirements to non-accelerated filers for their fiscal years ending on or after December 15, 2007 but before December 15, 2008; to foreign private issuers that are accelerated filers (but not large accelerated filers) for their fiscal years ending on or after July 15, 2006 but before July 15, 2007; and to newly public companies for the first annual report that they are required to file. The requirements are mandatory. The respondents to the collection of information requests here will be: (1) Non-accelerated filers that do not file an auditor's attestation report for a fiscal year ending on or after December 15, 2007 but before December 15, 2008; (2) foreign private issuers filing on Form 20–F or Form 40–F that are accelerated filers (but not large accelerated filers) that do not file an auditor's attestation report for a fiscal year ending on or after July 15, 2006 but before July 15, 2007; and (3) newly public companies that do not comply with the internal control over financial reporting requirements in the first annual report filed with the Commission in accordance with the new rules.
Form 10–K prescribes information that registrants must disclose annually to the market about its business. Form 10–KSB prescribes information that registrants that are “small business issuers” as defined under our rules must disclose annually to the market about its business. Form 20–F is used by foreign private issuers to either register a class of securities under the Exchange Act or provide an annual report required under the Exchange Act. Form 40–F is used by foreign private issuers to file reports under the Exchange Act after having registered securities under the Securities Act and by certain Canadian registrants.
For the purposes of the Paperwork Reduction Act, we estimate that, over a 3-year period, the annual incremental burden imposed by the disclosure amendments will average 15 minutes per form. We have based our estimates of the effects that these additional disclosure requirements would have on the Forms 10–K, 10–KSB, 20–F and 40–F primarily based on our review of the most recently completed PRA submissions for those collections of information, and those requirements in those Regulations and Forms.
For purposes of the PRA, we estimate that the amendments affecting the Form 10–K collection of information requirements will increase the annual paperwork burden by approximately 1,289 hours of company personnel time and a cost of approximately $171,294 for the services of outside
For purposes of the PRA, we estimate that the amendments affecting the Form 10–KSB collection of information requirements will increase the annual paperwork burden by approximately 980 hours of company personnel time and a cost of approximately $130,709 for the services of outside professionals. Based on our research into the number of non-accelerated filers in 2004 and 2005, we estimate that all (4,819) of the annual reports filed on Form 10–KSB would be filed by non-accelerated filers that could be subject to the additional disclosure requirement that we are adopting for non-accelerated filers. This estimate is based on the assumption that the number of annual responses on Form 10–KSB is 4,819.
For purposes of the PRA, we estimate that the amendments affecting the Form 20–F collection of information requirements will increase the annual paperwork burden by approximately 36 hours of company personnel time and a cost of approximately $42,809 for the services of outside professionals.
For purposes of the PRA, we estimate that the amendments affecting the Form 40–F collection of information requirements will increase the annual paperwork burden by approximately 27 hours of company personnel time and a cost of approximately $8,002 for the services of outside professionals. Based on recent research into the percentage of total foreign private issuers that are non-accelerated filers, we estimate that 40% (or 88) of the annual reports filed on Form 40–F would be filed by non-accelerated filers that could be subject to the additional disclosure requirement that we are adopting for non-accelerated filers. Based on our review into the percentages of foreign private issuers that were accelerated filers (but not large accelerated filers) in 2005, we estimate that 21% (or 46) of the annual reports filed on 40–F would be accelerated filers and not large accelerated filers. These estimates are based on the assumption that the number of annual responses on Form 40–F is 220.
We solicit comment on the expected effects of the amendments on Regulations S–B and S–K, Form 20–F and Form 40–F under the PRA. In particular, we solicit comment on:
• How accurate are our burden and cost estimates for Forms 10–K, 10–KSB, 20–F and 40–F;
• Whether the amendments are necessary to avoid investor confusion regarding the internal control over financial reporting requirements for non-accelerated filers and newly public companies;
• Whether there are ways to enhance the quality, utility, and clarity of the information to be collected; and
• Whether there are ways to minimize the burden of the additional disclosure requirements on non-accelerated filers and newly public companies.
Any member of the public may direct to us any comments concerning these burden and cost estimates and any suggestions for reducing the burdens and costs. Persons who desire to submit comments on the collections of information requirements should direct their comments to the OMB, Attention: Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, or send an e-mail to
The extension of the compliance dates is intended to make implementation of the internal control reporting requirements more efficient and cost-effective for non-accelerated filers. First, the extension postpones for 5 months (from fiscal years ending on or after July 15, 2007 until fiscal years ending on or after December 15, 2007) the date by which non-accelerated filers must begin to include a report by management assessing the effectiveness of the company's internal control over financial reporting. Based on our estimates, we believe that fewer than 15% of all non-accelerated filers have a fiscal year ending between July 15, 2007 and December 15, 2007.
We believe that the following benefits will flow from an additional postponement of the dates by which non-accelerated filers must comply with the internal control reporting requirements:
• Auditors of non-accelerated filers will have more time to conform their initial attestation reports on management's assessment of internal control over financial reporting to the changes to the auditing attestation standard and other actions that the PCAOB determines to take;
• Non-accelerated filers will save opportunity costs associated with their initial audit of internal control over financial reporting while changes to the auditing standard are being considered and implemented and the PCAOB is developing, or facilitating the development of, additional guidance that will be specifically directed to auditors of smaller public companies;
• Management of non-accelerated filers are able to begin the process of assessing the effectiveness of internal control over financial reporting before their auditors attest to such assessment (and investors can begin to see and evaluate the results of their initial efforts); and
• Non-accelerated filers with a fiscal year ending between July 15, 2007 and December 15, 2007 have additional time to consider the management guidance to be issued by the Commission and the recently issued COSO guidance on understanding and applying the COSO framework, before planning and conducting their first internal control assessment.
Many public commenters on the Proposing Release and on previous occasions have asserted that the internal control reporting compliance costs are likely to be disproportionately higher for smaller public companies than larger ones, and that the audit fee represents a large percentage of those costs.
Additionally, we have previously learned from public comments, including our roundtables on implementation of the internal control reporting provisions,
We also are adopting amendments that provide for a transition period before a newly public company is required to comply with Section 404 requirements. We think that the benefits of the transition period for newly public companies include the following:
• Companies that are going public are able to concentrate on their initial securities offering without the additional burden of becoming subject to the Section 404 requirements soon after the offering;
• Newly public companies are able to prepare their first annual report without the additional burden of having to comply with the Section 404 requirements at the same time;
• The quality of newly public companies' first compliance efforts may improve due to the additional time that the companies have to prepare to satisfy the Section 404 requirements; and
• The transition period reduces the incentive that the previous rules created for a company that plans to go public to time its initial public offering to defer compliance with the Section 404 requirements for as long as possible after the offering.
The comments that we received generally supported the transition period for newly public companies and our rationale for adopting the amendments. Several commenters agreed that the Section 404 requirements act as a barrier to becoming a public company and increase the cost of going public.
One commenter offered a study on companies with internal control deficiencies disclosures and their cost of capital, which we have considered in our analysis.
We also are adopting a requirement that requires a newly public company to disclose in the first annual report that it files that it has not included either management's report on internal control or the auditor's attestation report. Our intention is that this requirement will provide clarity to investors and the capital markets regarding the Section 404 requirements of a newly public company.
Under the extension, investors in companies that are non-accelerated filers will have to wait longer to review an attestation report by the companies' auditor on management's assessment of internal control over financial reporting. The extension may create a risk that, without the auditor's attestation to management's assessment process, some issuers may conclude that the company's internal control over financial reporting is effective without conducting an assessment that is as thorough, careful and as appropriate to the issuers' circumstances as they would conduct if the auditor were involved.
We received many comments on these potential costs. Several commenters believed that management's assessment of internal control would provide useful disclosure to investors even without the auditor's attestation report;
Some commenters questioned whether the sequential implementation of the management report requirement and the auditor attestation requirement would cause confusion to investors and the capital markets.
Another potential cost of the extension in the form of increased litigation risk may be created by the phasing-in of the auditor's attestation report on management's assessment if, in year one, management concludes that the company's internal control over financial reporting is effective, but the auditor comes to a contrary conclusion the following year, thereby calling into question management's earlier conclusion. We have mitigated the risk by adopting an amendment that the management report be furnished to, rather than filed with, the Commission in the first year of compliance.
A potential cost of the transition period for newly public companies is that investors may be subject to uncertainty as to the effectiveness of a newly public company's internal control over financial reporting for a longer period of time than under previous requirements. One commenter argued that the safeguard provided by the Section 404 requirements could be of increased importance for newly public companies and their investors, because those companies are often less sophisticated and lack the market following that provide safeguards.
The additional disclosure requirements that we are adopting for non-accelerated filers and foreign private issuers that are accelerated filers (but not large accelerated filers) during the year that they are only required to provide management's report on internal control and for newly public companies during the transition period may increase costs for companies, but we believe the increase should be minimal.
Section 23(a)(2) of the Exchange Act
We expect that the extension of compliance dates will increase efficiency and enhance capital formation, and thereby benefit investors, by providing more time for non-accelerated filers to prepare for compliance with the Section 404 requirements and by affording these filers the opportunity to consider implementation guidance that is specifically tailored to smaller public companies. We further expect a more gradual phase-in of the management assessment and auditor attestation report requirements over a two-year period, rather than requiring non-accelerated filers to fully comply with both requirements in their first compliance year, to make the implementation process more efficient and less costly for non-accelerated filers. Some commenters on the Proposing Release argued that the sequential implementation of the management report requirement and auditor attestation requirement could make the application of the revised Auditing Standard No. 2 less efficient.
It is possible that a competitive impact could result from the differing treatment of non-accelerated filers and larger companies that already have been complying with the Section 404 requirements, but we do not expect that the extension will have any measurable effect on competition. We did not receive any comments specifically addressing the effect of the extension on competition.
The transition period for newly public companies should also increase efficiency and enhance capital formation by enabling these companies to concentrate on the initial securities offering process, if they are becoming subject to the Exchange Act reporting requirements by virtue of a public securities offering, and to prepare their first annual reports without the additional burden of complying with the Section 404 requirements. The provision of additional time for newly public companies to prepare for compliance with the internal control over financial reporting requirements may lead to increased quality of the companies' initial compliance efforts.
In addition, the previous requirements would have provided an incentive for private companies to time their public offerings so as to maximize the length of time that they would have after going public before having to comply with the Section 404 requirements. The amendments we are adopting today that allow newly public companies to defer compliance with these requirements until they file their second annual report with the Commission reduce this incentive. As a result, capital formation should be enhanced by allowing companies to time their offerings to raise capital rather than to avoid a compliance requirement. In reducing regulatory burdens for newly public companies, we may also increase the attractiveness of the U.S. markets to foreign companies.
This Final Regulatory Flexibility Analysis has been prepared in accordance with the Regulatory Flexibility Act
The Commission and the PCAOB plan a series of actions that will result in the issuance of new guidance to aid companies and auditors in performing their evaluations of internal control over financial reporting. These amendments are designed to provide additional time for non-accelerated filers and newly public companies to comply with the internal control over financial reporting requirements as modified. We believe that the additional time will enhance the quality of public company disclosure concerning internal control over financial reporting.
For non-accelerated filers, we expect that extending the implementation of the management report requirement for five months will provide sufficient time for the Commission to issue final guidance to assist in management's performance of a top-down, risk-based and scalable assessment of controls over financial reporting. We are deferring the implementation of the auditor attestation report requirement for an additional year after the implementation of the management report requirement for the following reasons:
• To afford non-accelerated filers and their auditors the benefit of any changes or additional guidance regarding application of the COSO Framework;
• To both save and postpone costs associated with the auditor's attestation during the period that changes to Auditing Standard No. 2 are being considered and implemented;
• To enable management more time to prepare and gain efficiencies in the review and evaluation of the effectiveness of internal control over financial reporting; and
• To provide the Commission with additional time to consider public comment on the questions we raised on management guidance related to the appropriate role of the auditor in evaluating management's internal control assessment process.
For newly public companies, we expect that the transition period which eliminates the requirement to provide management's report and the auditor's attestation report in the first annual report filed with the Commission will alleviate some of the burdens of going public. The implementation of the transition period will:
• Provide additional time and defer costs for a newly public company, allowing it to focus on its assessment of internal control over financial reporting without the additional focus of the initial public offering; and
• Allow companies, including foreign issuers, that become subject to Section 15(d) after filing a Securities Act registration statement but who may then be eligible to terminate their periodic filing obligations after filing just one annual report, to avoid the cost of preparing internal control reports.
In the Proposing Release, we requested comment on the number of small entity issuers that may be affected, the existence or nature of the potential impact and how to quantify the impact of the amendments. One commenter provided some data on general costs of compliance related to the Section 404 requirements.
Exchange Act Rule 0–10(a)
Our amendments are designed to alleviate reporting and compliance burdens. The compliance date extension for non-accelerated filers postpones the date by which non-accelerated filers with a fiscal year end between July 15, 2007 and December 15, 2007 must begin to comply with the internal control over financial reporting requirements. In addition, for non-accelerated filers, the amendments eliminate the requirement to include an auditor's report on internal control over financial reporting in the annual report during the initial year of compliance with the internal control over financial reporting requirements. During this year, however, non-accelerated filers are required to provide a statement in their annual reports, explaining that the annual report does not include the auditor's attestation report.
The transition for newly public companies also alleviates reporting and compliance burdens by relieving a newly public company from compliance with our internal control over financial reporting requirements in the first annual report that it files with the Commission. This amendment provides all newly public companies with at least one annual reporting period before they are required to conduct the first assessment of internal control over financial reporting and allows companies that are not required to file a second annual report to exit the system without filing management or auditor reports regarding internal control over financial reporting. During the transition period, however, newly public companies are required to provide a statement in their annual reports explaining that the annual report does not include either management's report on internal control or the auditor's attestation report.
The Regulatory Flexibility Act directs us to consider significant alternatives that would accomplish our stated objectives, while minimizing any significant adverse impact on small entities. In connection with the
• Establishing different compliance or reporting requirements or timetables that take into account the resources available to small entities;
• Clarifying, consolidating or simplifying compliance and reporting requirements under the rules for small entities;
• Using performance rather than design standards; and
• Exempting small entities from all or part of the requirements.
We have considered a variety of reforms to achieve our regulatory objectives and, where possible, have taken steps to minimize the effects of the rules and amendments on small entities without proposing a complete and permanent exemption for small entities from coverage of the Section 404 requirements. The amendments establish a different compliance and reporting timetable for non-accelerated filers and provide additional time for newly public companies to prepare to comply with the internal control over financial reporting requirements.
We received some comments suggesting alternatives to the amendments that we are adopting. For example, one commenter recommended that the Commission explore ways to provide further flexibility to smaller companies.
The amendments described in this release are being adopted under the authority set forth in Sections 12, 13, 15 and 23 of the Exchange Act.
Accountants, Accounting, Reporting and recordkeeping requirements, Securities.
Reporting and recordkeeping requirements, Securities, Small businesses.
Reporting and recordkeeping requirements, Securities.
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z–2, 77z–3, 77aa(25), 77aa(26), 78c, 78j–1, 78
The additions and revision read as follows:
(b) Paragraph (a) of this temporary section will expire on December 31, 2007.
(c) The requirements of § 210.2–02(f) shall not apply to a registered public accounting firm that issues or prepares an accountant's report that is included in an annual report filed by a registrant that is neither a “large accelerated filer” nor an “accelerated filer,” as those terms are defined in § 240.12b–2 of this chapter, for a fiscal year ending on or after December 15, 2007 but before December 15, 2008.
(d) Paragraph (c) of this temporary section will expire on June 30, 2009.
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z–2, 77z–3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, 77sss, 78
The addition reads as follows:
1. A small business issuer need not comply with paragraphs (a) and (b) of this Item until it either had been required to file an annual report pursuant to section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 78m or 78o(d)) for the prior fiscal year or had filed an annual report with the Commission for the prior fiscal year. A small business issuer that does not comply shall include a statement in the first annual report that it files in substantially the following form: “This annual report does not include a report of management's assessment regarding internal control over financial reporting or an attestation report of the company's registered public accounting firm due to a transition period established by rules of the Securities and Exchange Commission for newly public companies.”
This is a special temporary section that applies only to an annual report filed by the small business issuer for a fiscal year ending on or after December 15, 2007 but before December 15, 2008.
(a)
(1) A statement of management's responsibility for establishing and maintaining adequate internal control over financial reporting for the small business issuer;
(2) A statement identifying the framework used by management to evaluate the effectiveness of the small business issuer's internal control over financial reporting as required by paragraph (c) of § 240.13a–15 or § 240.15d–15 of this chapter; and
(3) Management's assessment of the effectiveness of the small business issuer's internal control over financial reporting as of the end of the small business issuer's most recent fiscal year, including a statement as to whether or not internal control over financial reporting is effective. This discussion must include disclosure of any material weakness in the small business issuer's internal control over financial reporting identified by management. Management is not permitted to conclude that the small business issuer's internal control over financial reporting is effective if there are one or more material weaknesses in the small business issuer's internal control over financial reporting.
(4) A statement in substantially the following form: “This annual report does not include an attestation report of the company's registered public accounting firm regarding internal control over financial reporting. Management's report was not subject to attestation by the company's registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the company to provide only management's report in this annual report.”
(b)
1. A small business issuer need not comply with paragraph (a) of this Item until it either had been required to file an annual report pursuant to section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 78m or 78o(d)) for the prior fiscal year or had filed an annual report with the Commission for the prior fiscal year. A small business issuer that does not comply shall include a statement in the first annual report that it files in substantially the following form: “This annual report does not include a report of management's assessment regarding internal control over financial reporting or an attestation report of the company's registered public accounting firm due to a transition period established by rules of the Securities and Exchange Commission for newly public companies.”
2. The small business issuer must maintain evidential matter, including documentation, to provide reasonable support for management's assessment of the effectiveness of the small business issuer's internal control over financial reporting.
(c) This temporary Item 308T, and accompanying note and instructions, will expire on June 30, 2009.
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z–2, 77z–3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78
The addition reads as follows:
1. A registrant need not comply with paragraphs (a) and (b) of this Item until it either had been required to file an annual report pursuant to section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 78m or 78o(d)) for the prior fiscal year or had filed an annual report with the Commission for the prior fiscal year. A registrant that does not comply shall include a statement in the first annual report that it files in substantially the following form: “This annual report does not include a report of management's assessment regarding internal control over financial reporting or an attestation report of the company's registered public accounting firm due to a transition period established by rules of the Securities and Exchange Commission for newly public companies.”
This is a special temporary section that applies only to a registrant that is neither a “large accelerated filer” nor an “accelerated filer” as those terms are defined in § 240.12b–2 of this chapter and only with respect to an annual report filed by the registrant for a fiscal year ending on or after December 15, 2007 but before December 15, 2008.
(a)
(1) A statement of management's responsibility for establishing and maintaining adequate internal control over financial reporting for the registrant;
(2) A statement identifying the framework used by management to evaluate the effectiveness of the registrant's internal control over financial reporting as required by paragraph (c) of § 240.13a–15 or § 240.15d–15 of this chapter; and
(3) Management's assessment of the effectiveness of the registrant's internal
(4) A statement in substantially the following form: “This annual report does not include an attestation report of the company's registered public accounting firm regarding internal control over financial reporting. Management's report was not subject to attestation by the company's registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the company to provide only management's report in this annual report.”
(b)
1. A registrant need not comply with paragraph (a) of this Item until it either had been required to file an annual report pursuant to section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 78m or 78o(d)) for the prior fiscal year or previously had filed an annual report with the Commission for the prior fiscal year. A registrant that does not comply shall include a statement in the first annual report that it files in substantially the following form: “This annual report does not include a report of management's assessment regarding internal control over financial reporting or an attestation report of the company's registered public accounting firm due to a transition period established by rules of the Securities and Exchange Commission for newly public companies.”
2. The registrant must maintain evidential matter, including documentation, to provide reasonable support for management's assessment of the effectiveness of the registrant's internal control over financial reporting.
(c) This temporary Item 308T, and accompanying note and instructions, will expire on June 30, 2009.
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j–1, 78k, 78k–1, 78
(a) * * * The principal executive and principal financial officers of an issuer may omit the portion of the introductory language in paragraph 4 as well as language in paragraph 4(b) of the certification that refers to the certifying officers' responsibility for designing, establishing and maintaining internal control over financial reporting for the issuer until the issuer becomes subject to the internal control over financial reporting requirements in § 240.13a–15 or 240.15d–15.
The revisions read as follows:
(a) Every issuer that has a class of securities registered pursuant to section 12 of the Act (15 U.S.C. 78
(c) The management of each such issuer that either had been required to file an annual report pursuant to section 13(a) or 15(d) of the Act (15 U.S.C. 78m(a) or 78o(d)) for the prior fiscal year or previously had filed an annual report with the Commission for the prior fiscal year, other than an investment company registered under section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a–8), must evaluate, with the participation of the issuer's principal executive and principal financial officers, or persons performing similar functions, the effectiveness, as of the end of each fiscal year, of the issuer's internal control over financial reporting. * * *
(d) The management of each such issuer that either had been required to file an annual report pursuant to section 13(a) or 15(d) of the Act (15 U.S.C. 78m(a) or 78o(d) for the prior fiscal year or had filed an annual report with the Commission for the prior fiscal year, other than an investment company registered under section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a–8), must evaluate, with the participation of the issuer's principal executive and principal financial officers, or persons performing similar functions, any change in the issuer's internal control over financial reporting, that occurred during each of the issuer's fiscal quarters, or fiscal year in the case of a foreign private issuer, that has materially affected, or is reasonably likely to materially affect, the issuer's internal control over financial reporting. * * *
(a) * * * The principal executive and principal financial officers of an issuer may omit the portion of the introductory language in paragraph 4 as well as language in paragraph 4(b) of the certification that refers to the certifying officers' responsibility for designing, establishing and maintaining internal control over financial reporting for the issuer until the issuer becomes subject to the internal control over financial reporting requirements in § 240.13a–15 or 240.15d–15 of this chapter.
The revisions read as follows:
(a) Every issuer that files reports under section 15(d) of the Act (15 U.S.C. 78o(d)), other than an Asset Backed Issuer (as defined in § 229.1101 of this chapter), a small business investment company registered on Form N–5 (§§ 239.24 and 274.5 of this chapter), or a unit investment trust as defined in section 4(2) of the Investment Company Act of 1940 (15 U.S.C. 80a–4(2)), must maintain disclosure controls and procedures (as defined in paragraph (e) of this section) and, if the issuer either had been required to file an annual report pursuant to section 13(a) or 15(d) of the Act (15 U.S.C. 78m(a) or 78o(d)) for the prior fiscal year or had filed an annual report with the Commission for the prior fiscal year, internal control over financial reporting (as defined in paragraph (f) of this section).
(c) The management of each such issuer that either had been required to file an annual report pursuant to section 13(a) or 15(d) of the Act (15 U.S.C. 78m(a) or 78o(d)) for the prior fiscal year or had filed an annual report with the Commission for the prior fiscal year, other than an investment company registered under section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a–8), must evaluate, with the participation of the issuer's principal executive and principal financial officers, or persons performing similar functions, the effectiveness, as of the end of each fiscal year, of the issuer's internal control over financial reporting. * * *
(d) The management of each such issuer that previously either had been required to file an annual report pursuant to section 13(a) or 15(d) of the Act (15 U.S.C. 78m(a) or 78o(d)) for the prior fiscal year or previously had filed an annual report with the Commission for the prior fiscal year, other than an investment company registered under section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a–8), must evaluate, with the participation of the issuer's principal executive and principal financial officers, or persons performing similar functions, any change in the issuer's internal control over financial reporting, that occurred during each of the issuer's fiscal quarters, or fiscal year in the case of a foreign private issuer, that has materially affected, or is reasonably likely to materially affect, the issuer's internal control over financial reporting. * * *
15 U.S.C. 78a
The additions and revision read as follows.
The text of Form 20–F does not, and this amendment will not, appear in the Code of Federal Regulations.
1. An issuer need not comply with paragraphs (b) and (c) of this Item until it either had been required to file an annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 78m(a) or 78o(d)) for the prior fiscal year or had filed an annual report with the Commission for the prior fiscal year. An issuer that does not comply shall include a statement in the first annual report that it files in substantially the following form: “This annual report does not include a report of management's assessment regarding internal control over financial reporting or an attestation report of the company's registered public accounting firm due to a transition period established by rules of the Securities and Exchange Commission for newly public companies.”
This is a special temporary section that applies instead of Item 15 only to: (1) an issuer that is an “accelerated filer,” but not a “large accelerated filer,” as those terms are defined in § 240.12b–2 of this chapter and only with respect to an annual report that the issuer is required to file for a fiscal year ending on or after July 15, 2006 but before July 15, 2007; or
(2) an issuer that is neither a “large accelerated filer” nor an “accelerated filer” as those terms are defined in § 240.12b–2 of this chapter and only with respect to an annual report that the issuer is required to file for a fiscal year ending on or after December 15, 2007 but before December 15, 2008.
(a)
(b)
(1) A statement of management's responsibility for establishing and maintaining adequate internal control over financial reporting for the issuer;
(2) A statement identifying the framework used by management to evaluate the effectiveness of the issuer's internal control over financial reporting as required by paragraph (c) of § 240.13a–15 or 240.15d–15 of this chapter;
(3) Management's assessment of the effectiveness of the issuer's internal control over financial reporting as of the end of the issuer's most recent fiscal year, including a statement as to whether or not internal control over financial reporting is effective. This discussion must include disclosure of any material weakness in the issuer's internal control over financial reporting identified by management. Management
(4) A statement in substantially the following form: “This annual report does not include an attestation report of the company's registered public accounting firm regarding internal control over financial reporting. Management's report was not subject to attestation by the company's registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the company to provide only management's report in this annual report.”
(c)
(d) This temporary Item 15T, and accompanying note and instructions, will expire on June 30, 2009.
1. An issuer need only comply with paragraph (b) of this Item until it either had been required to file an annual report pursuant to section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 78m(a) or 78o(d)) for the prior fiscal year or had filed an annual report with the Commission for the prior fiscal year. An issuer that does not comply shall include a statement in the first annual report that it files in substantially the following form: “This annual report does not include a report of management's assessment regarding internal control over financial reporting or an attestation report of the company's registered public accounting firm due to a transition period established by rules of the Securities and Exchange Commission for newly public companies.”
2. The registrant must maintain evidential matter, including documentation, to provide reasonable support for management's assessment of the effectiveness of the issuer's internal control over financial reporting.
The addition and revision read as follows:
The text of Form 40–F does not, and this amendment will not, appear in the Code of Federal Regulations.
(6) * * *
1. An issuer need not comply with paragraphs (c) and (d) of this Instruction until it either had been required to file an annual report pursuant to the requirements of section 13(a) or 15(d) of the Exchange Act (15 U.S.C. 78m(a) or 78o(d)) for the prior fiscal year or had filed an annual report with the Commission for the prior fiscal year. An issuer that does not comply shall include a statement in the first annual report that it files in substantially the following form: “This annual report does not include a report of management's assessment regarding internal control over financial reporting or an attestation report of the company's registered public accounting firm due to a transition period established by rules of the Securities and Exchange Commission for newly public companies.”
3T. Paragraphs (c)(4) and (d) of this General Instruction B.6 do not apply to: (1) an issuer that is an “accelerated filer,” but not a “large accelerated filer,” as those terms are defined in § 240.12b–2 of this chapter and only with respect to an annual report that the issuer is required to file for a fiscal year ending on or after July 15, 2006 but before July 15, 2007; or (2) an issuer that is neither a “large accelerated filer” nor an “accelerated filer,” as those terms are defined in § 240.12b–2 of this chapter, with respect to an annual report that the issuer is required to file for a fiscal year ending on or after December 15, 2007 but before December 15, 2008. Management's report on internal control over financial reporting that is included in an annual report filed by the type of issuer and within the period set forth in (1) or (2) above in this Instruction 3T shall not be deemed to be filed for purposes of Section 18 of the Exchange Act or otherwise subject to the liabilities of that section, unless the issuer specifically states that the report is to be considered “filed” under the Exchange Act or incorporates it by reference into a filing under the Securities Act or the Exchange Act. An issuer to which this instruction applies should provide a statement in substantially the following form: “This annual report does not include an attestation report of the company's registered public accounting firm regarding internal control over financial reporting. Management's report was not subject to attestation by the company's registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the company to provide only management's report in this annual report.”
This temporary Instruction 3T will expire on June 30, 2009.
The addition reads as follows:
The text of Form 10–Q does not, and this amendment will not, appear in the Code of Federal Regulations.
(a) If the registrant is neither a large accelerated filer nor an accelerated filer as those terms are defined in § 240.12b–2 of this chapter, furnish the information required by Items 307 and 308T of Regulation S–K (17 CFR 229.307 and 229.308T) with respect to a quarterly report that the registrant is required to file for a fiscal year ending on or after December 15, 2007 but before December 15, 2008.
(b) This temporary Item 4T will expire on June 30, 2009.
The addition reads as follows:
The text of Form 10–QSB does not, and this amendment will not, appear in the Code of Federal Regulations.
(a) Furnish the information required by Items 307 and 308T of Regulation S–B (17 CFR 228.307 and 228.308T) with respect to a quarterly report that the small business issuer is required to file for a fiscal year ending on or after December 15, 2007 but before December 15, 2008.
(b) This temporary Item 3A(T) will expire on June 30, 2009.
The addition reads as follows:
The text of Form 10–K does not, and this amendment will not, appear in the Code of Federal Regulations.
(a) If the registrant is neither a large accelerated filer nor an accelerated filer as those terms are defined in § 240.12b–2 of this chapter, furnish the information required by Items 307 and 308T of Regulation S–K (17 CFR 229.307 and 229.308T) with respect to an annual report that the registrant is required to file for a fiscal year ending on or after December 15, 2007 but before December 15, 2008.
(b) This temporary Item 9A(T) will expire on June 30, 2009.
The addition reads as follows:
The text of Form 10–KSB does not, and this amendment will not, appear in the Code of Federal Regulations.
(a) Furnish the information required by Items 307 and 308T of Regulation S–B (17 CFR 228.307 and 228.308T) with respect to an annual report that the small business issuer is required to file for a fiscal year ending on or after December 15, 2007 but before December 15, 2008.
(b) This temporary Item 8A(T) will expire on June 30, 2009.
By the Commission.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is establishing January 1, 2010, as the uniform compliance date for food labeling regulations that are issued between January 1, 2007, and December 31, 2008. FDA periodically announces uniform compliance dates for new food labeling requirements to minimize the economic impact of label changes. On March 14, 2005, FDA established January 1, 2008, as the uniform compliance date for food labeling regulations that issued between March 14, 2005, and December 31, 2006.
This rule is effective December 21, 2006. Submit written or electronic comments by March 6, 2007.
You may submit comments, identified by Docket No. 2000N–1596, by any of the following methods:
Submit electronic comments in the following ways:
• Federal eRulemaking Portal:
• Agency Web site:
Submit written submissions in the following ways:
• FAX: 301–827–6870.
• Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
To ensure more timely processing of comments, FDA is no longer accepting comments submitted to the agency by e-mail. FDA encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal or the agency Web site, as described in the
Louis B. Brock, Center for Food Safety and Applied Nutrition (HFS–24), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301–436–2378.
FDA periodically issues regulations requiring changes in the labeling of food. If the effective dates of these labeling changes were not coordinated, the cumulative economic impact on the food industry of having to respond separately to each change would be substantial. Therefore, the agency periodically has announced uniform compliance dates for new food labeling requirements (see, e.g., the
The agency has determined under 21 CFR 25.30(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 is not required.
FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601–612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104–4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive order.
The establishment of a uniform compliance date does not in itself lead to costs or benefits. We will assess the costs and benefits of the uniform compliance date in the regulatory impact analyses of the labeling rules that take effect at that date.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant economic impact of a rule on small entities. Because the final rule does not impose compliance costs on small entities, the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $115 million, using the most current (2003) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.
This action is not intended to change existing requirements for compliance dates contained in final rules published before January 1, 2007. Therefore, all final FDA regulations published in the
The agency generally encourages industry to comply with new labeling regulations as quickly as feasible, however. Thus, when industry members voluntarily change their labels, it is appropriate that they incorporate any new requirements that have been published as final regulations up to that time.
In rulemaking that began with publication of a proposal on April 15, 1996 (61 FR 16422), and ended with a final rule on December 24, 1996, FDA provided notice and an opportunity for comment on the practice of establishing uniform compliance dates by issuance of a final rule announcing the date. Receiving no comments objecting to this practice, FDA finds any further rulemaking unnecessary for establishment of the uniform compliance date. Nonetheless, under 21 CFR 10.40(e) (1), FDA is providing an opportunity for comment on whether this uniform compliance date should be modified or revoked.
Interested persons may submit to the Division of Dockets Management (see
The new uniform compliance date will apply only to final FDA food labeling regulations that require changes in the labeling of food products and that publish after January 1, 2007, and before December 31, 2008. Those regulations will specifically identify January 1, 2010, as their compliance date. All food products subject to the January 1, 2010, compliance date must comply with the appropriate regulations when initially introduced into interstate commerce on or after January 1, 2010. If any food labeling regulation involves special circumstances that justify a compliance date other than January 1, 2010, the agency will determine for that regulation an appropriate compliance date, which will be specified when the final regulation is published.
Indian Health Service, HHS.
Final rule; change of address.
The Indian Health Service is revising its regulations governing contracts under the Indian Self-Determination and Education Assistance Act to reflect a change of address due to a move for the Civilian Board of Contract Appeals (CBCA).
This rule change is effective December 21, 2006.
Hankie Ortiz, Director, Division of Regulatory Affairs, Records Access, and Policy Liaison, Indian Health Service, 801 Thompson Avenue, Suite 450, Rockville, Maryland 20852, Telephone (301) 443–1116.
Regulations promulgated by the Indian Health Service to govern the administration of contracts under the Indian Self-Determination and Education Assistance Act reference an address for the Interior Board of Contract Appeals (IBCA). Effective January 6, 2007, the Interior Board of Contract Appeals will be consolidated
IHS has determined that the public notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. 553(b) do not apply to this rulemaking. The changes being made relate solely to matters of agency organization, procedure and practice. They therefore satisfy the exemption from notice and comment in 5 U.S.C. 553(b)(A).
IHS has reviewed this rule under the following statutes and Executive Orders governing rulemaking procedures: The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501
Administrative practice and procedure, Buildings and facilities, Claims, Government contracts, Government property management, Grant programs—Indians, Health care, Indians, Indians—business and finance.
25 U.S.C. 450f
Coast Guard, DHS.
Final rule.
The Coast Guard is changing the regulations governing six bridges across Bayou Lafourche, south of the Gulf Intracoastal Waterway (GIWW), and one bridge across Bayou Lafourche, north of the GIWW, in Lafourche Parish, Louisiana. The Lafourche Parish Council has requested that the six bridges below the GIWW remain closed to navigation at various times on weekdays during the school year and the one bridge north of the GIWW open on four hours advanced notification at night. These closures will facilitate the safe, efficient movement of staff, students and other residents within the parish.
This rule is effective January 22, 2007.
Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of dockets [CGD08–06–034] and [CGD08–06–034] and are available for inspection or copying at the office of the Eighth Coast Guard District, Bridge Administration Branch, 500 Poydras Street, New Orleans, Louisiana 70130–3310, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The Bridge Administration Branch maintains the public docket for this rulemaking.
David Frank, Bridge Administration Branch, telephone 504–671–2128.
On September 20, 2006, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulation; Bayou Lafourche, LA,” in the
Additionally, on September 20, 2006, we published another notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulation; Bayou Lafourche, LA,” in the
The U.S. Coast Guard, at the request of the Lafourche Parish Council, is modifying the existing operating schedules of six bridges across Bayou Lafourche south of the Gulf Intracoastal Waterway in Lafourche Parish, Louisiana. The six bridges include: Golden Meadow Vertical Lift Bridge, mile 23.9; the Galliano Pontoon Bridge, mile 27.8; the South Lafourche (Tarpon) Vertical Lift Bridge, mile 30.6; the Cote Blanche Pontoon Bridge, mile 33.9; the Cutoff Vertical Lift Bridge, mile 36.3; and the Larose Pontoon Bridge, mile 39.1. The modification of the existing regulations allows these bridges to remain closed to navigation from 7 a.m. to 8:30 a.m.; from 2 p.m. to 4 p.m.; and from 4:30 p.m. to 5:30 p.m., Monday through Friday from August 15 through May 31. At all other times, the bridges shall open on signal for the passage of vessels.
Presently, the draws of these bridges shall open on signal; except that, from August 15 through May 31, the draw need not open for the passage of vessels Monday through Friday except Federal holidays from 7 a.m. to 8 a.m.; from 2 p.m. to 4 p.m.; and from 4:30 p.m. to 5:30 p.m.
The existing regulations for the bridges went into effect on January 27, 2006. The original request by the petitioner was that the bridges be closed to navigation from 7 a.m. to 8:30 a.m.; however, due to a clerical error, the rule was codified with the morning hours of
Additionally, the U. S. Coast Guard, at the request of the Lafourche Parish Council, is modifying the existing operating schedule of the Valentine Pontoon Bridge across Bayou Lafourche, mile 44.7, in Lafourche Parish, Louisiana. The majority of the bridge's openings occur between the hours of 6 a.m. and 6 p.m. The bridge owner will continue to open the bridge on signal during these hours and will open the bridge on signal if at least four hours advance notification is given between the hours of 6 p.m. and 6 a.m. Presently, the draw of the bridge opens on signal for the passage of traffic.
Several large shipyards are located on Bayou Lafourche upstream of the Valentine Bridge. No letters of objection to the advanced notification requirement were received regarding the proposed changes. Additionally, no letters of objections were received from any waterway users regarding the advanced notification requirements.
No letters were received with regards to either NPRM; therefore no changes to the proposed regulations were made.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
This rule allows vessels ample opportunity to transit this waterway with proper notification before and after the peak vehicular traffic periods or with advanced notification. Based upon the vehicle traffic surveys, the public at large is better served by the additional closure times.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.
No comments were received from any small entities with regards to any effects that the modification of the regulations will have on them.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104–121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
No small entities requested Coast Guard assistance and none was given.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Commandant Instruction M16475.lD, and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2–1, paragraph (32)(e) of the Instruction, from further environmental documentation. Under figure 2–1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule
33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05–1(g); section 117.255 also issued under the authority of Pub. L. 102–587, 106 Stat. 5039.
(a) The draws of the following bridges shall open on signal; except that, from August 15 through May 31, the draw need not open for the passage of vessels Monday through Friday except Federal holidays from 7 a.m. to 8:30 a.m.; from 2 p.m. to 4 p.m.; and from 4:30 p.m. to 5:30 p.m.:
(b) The draw of the Valentine bridge, mile 44.7 at Valentine, shall open on signal; except that, from 6 p.m. to 6 a.m., the draw shall open on signal if at least four hours advance notification is given. During the advance notification period, the draw shall open on less than four hours notice for an emergency and shall open on demand should a temporary surge in water traffic occur.
Environmental Protection Agency (EPA).
Final rule.
In 1994, EPA promulgated national emission standards for hazardous air pollutants (NESHAP) for the synthetic organic chemical manufacturing industry. This rule is commonly known as the hazardous organic NESHAP (HON) and established maximum achievable control technology standards to regulate the emissions of hazardous air pollutants from production processes that are located at major sources.
The Clean Air Act directs EPA to assess the risk remaining (residual risk) after the application of the maximum achievable control technology standards and to promulgate additional standards if required to provide an ample margin of safety to protect public health or prevent an adverse environmental effect. The Clean Air Act also requires us to review and revise maximum achievable control technology standards, as necessary, every 8 years, taking into account developments in practices, processes, and control technologies that have occurred during that time.
On June 14, 2006, EPA proposed two options regarding whether to amend the current emission standards for synthetic organic chemical manufacturing industry units. This action finalizes one of those options, and reflects our decision not to impose further controls and not to revise the existing standards based on the residual risk and technology review. It also amends the existing regulations in certain aspects.
This final rule is effective on December 21, 2006.
The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to make hand deliveries or visit the Public Reading Room to view documents. Consult EPA's
For further information contact Mr. Randy McDonald, U.S. EPA, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (E143–01), Research Triangle Park, NC 27711, telephone (919)541–5402, fax (919) 541–0246, e-mail
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by the final rule.
Section 307(d)(7)(B) of the CAA further provides a mechanism for us to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW, Washington, DC 20460, with a copy to both the person(s) listed in the preceding
Section 112 of the CAA establishes a two-stage regulatory process to address emissions of HAP from stationary sources. In the first stage, after EPA has identified categories of sources emitting one or more of the HAP listed in CAA section 112(b), CAA section 112(d) calls for us to promulgate national performance or technology-based emission standards for those sources. For “major sources” that emit or have the potential to emit any single HAP at a rate of 10 tons or more per year or any combination of HAP at a rate of 25 tons or more per year, these technology-based standards must reflect the maximum reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts) and are commonly referred to as maximum achievable control technology (MACT) standards. We first published the MACT standard for SOCMI on April 22, 1994, at 59 FR 19402 (codified at 40 CFR part 63, subparts F, G, H, and I). EPA is then required to review these technology-based standards and to revise them “as necessary, taking into account developments in practices, processes, and control technologies,” no less frequently than every 8 years, under CAA section 112(d)(6).
The second stage in standard-setting is described in CAA section 112(f). This provision requires, first, that EPA prepare a Report to Congress discussing (among other things) methods of calculating risk posed (or potentially posed) by sources after implementation of the MACT standards, the public health significance of those risks, the means and costs of controlling them, actual health effects to persons in proximity to emitting sources, and recommendations as to legislation regarding such remaining risk. EPA prepared and submitted this report (Residual Risk Report to Congress, EPA–453/R–99–001) in March 1999. The Congress did not act on any of the recommendations in the report, thereby triggering the second stage of the standard-setting process, the residual risk phase.
CAA Section 112(f)(2) requires us to determine, for each CAA section 112(d) source category, whether the MACT standards protect public health with an ample margin of safety. If the MACT standards for HAP “classified as a known, probable, or possible human carcinogen do not reduce lifetime cancer risks to the individual most exposed to emissions from a source in the category or subcategory to less than 1-in-1 million,” EPA must promulgate residual risk standards for the source category (or subcategory) as necessary to provide an ample margin of safety to protect public health. EPA may also adopt more stringent standards, if necessary, to prevent an adverse environmental effect (defined in CAA section 112(a)(7) as “any significant and widespread adverse effect * * * to wildlife, aquatic life, or natural resources * * *.”), after considering cost, energy, safety, and other relevant factors.
On June 14, 2006 (71 FR 34422), we proposed two options regarding whether to revise the current emission standards for new and existing SOCMI process units. The first proposed option would have imposed no further controls, based on a proposed finding that the existing standards protect public health with an ample margin of safety and prevent adverse environmental effects. Moreover, under the first option, we proposed that no further tightening of current standards was “necessary” in
The second proposed option would have required further reductions of organic HAP at certain process units, based on a proposed finding that additional controls were reasonable in order to protect public health with an ample margin of safety. This option was also based on a proposed finding that, in order to further reduce risks, tightening of current standards was “necessary” after taking into account developments in practices, processes, and control technologies. The second option would have applied additional controls for equipment leaks and controlled some storage vessels and process vents that are not required to be controlled under the current rule. The proposed changes under Option 2 are summarized in the table below:
We conclude in this rulemaking that there is no need to revise the HON rule under the provisions of either section 112(f) or 112(d)(6) of the CAA. This conclusion essentially reflects our decision to select Option 1 from the proposal, except for certain minor technical amendments we are adopting that are discussed later.
We are adopting no changes to the current HON rule under CAA section 112(f) because the current level of control called for by the existing MACT both reduces HAP emissions to levels that present an acceptable level of risk and protects public health with an ample margin of safety. The finding regarding an “ample margin of safety” is based on a consideration of the additional costs of further control (as represented by Option 2) and the relatively small reductions in health risks that are achieved by that alternative.
As explained at proposal, we judge that the level of risk from the current HON rule is acceptable for the following reasons. The maximum individual lifetime cancer risk is estimated to be 100-in-1 million, and this level of risk occurs at only two facilities. There are no people with estimated cancer risks greater than 100-in-1 million resulting from exposure to HON HAP emissions, which is the presumptively acceptable level of maximum individual lifetime cancer risk under the 1989 Benzene NESHAP criteria. The HON process units at 32 facilities are estimated to pose cancer risks greater than 10-in-1 million, with 9,000 people estimated to be exposed in this risk range. The HON process units at the remaining 206 facilities are estimated to pose cancer risks of 10-in-1 million or less. For the exposed population, total annual cancer incidence is estimated at 0.14 cases per year. The Hazard Index (HI) values (representing long-term noncancer public health risks) barely exceed 1, with only 20 people estimated to be exposed to HI levels greater than 1. We also found minimal concern for noncancer effects from short-term inhalation exposures from HAP. The lifetime cancer risk and noncancer adverse health effects estimated from multipathway exposure are also well below levels generally held to be of concern. Finally, after considering costs, energy, safety, and other relevant factors, it is not necessary to tighten HON requirements in order to prevent adverse environmental effects, or to account for developments in practices, processes, and control technologies.
In determining that the current HON rule protects public health with an ample margin of safety, we have determined that the estimated annual costs of Option 2 ($6 million per year) would be unreasonable given the minor associated improvements in health risks. Baseline cancer incidence under the current HON rule is estimated at 0.14 cases per year. Proposed Option 2 would reduce incidence by about 0.05 cases per year. Statistically, this level of risk reduction means that Option 2 would prevent one cancer case every 20 years. At proposal we estimated costs to be $13 million per year for Option 2. Based on public comments, we revised one of the Option 2 control requirements and the costing procedure for equipment leaks and this resulted in a revised cost estimate $6 million per year. Even at the $6 million per year cost, we consider the cost of Option 2 to be unreasonable given the level of incidence reduction achieved. The changes in the distribution of risks do not warrant the additional costs. The maximum individual cancer risk under Option 2 would be reduced from 100-in-1 million to 60-in-1 million. The cancer risks for 450,000 people would be shifted to levels below 1-in-1 million. Further, changes in the distribution of risk—that is, the aggregate change in risk across the population—reduces risk by only 0.05 cancer cases per year. This result suggests that Option 2 would yield very small changes in individual risk for most of the affected population. For this reason, the estimates of the shift in risk distribution do not serve as particularly effective measures of the change in health risk. Finally, the maximum HI is barely above 1.0 and would be reduced from above 1.0 to below 1.0 for only 20 people. We conclude that this degree of additional public health protection is not warranted in light of the costs to industry of compliance with proposed Option 2. Consequently, we have determined that it is not reasonable to impose any additional controls to provide an ample margin of safety to protect public health.
In the technology review, we did not identify any significant developments in practices, processes, or control technologies since promulgation of the original standards in 1994. We concluded that imposing additional controls under proposed Option 2 would achieve, at best, minimal emission and risk reductions. Option 2 would reduce organic HAP emissions by 1,700 tons per year, reduce cancer incidence by 0.05 cases per year, and reduce HI below 1 for about 20 individuals. We estimate that no one is currently exposed to emissions from HON sources causing cancer risks exceeding 100-in-1 million, the presumptively acceptable level for individual lifetime cancer risk under the Benzene NESHAP. (The relationship
While we are making no changes to the control requirements of the existing standards based on the residual risk and technology review, we are publishing three technical amendments under CAA section 112(d)(2) designed to clarify provisions of the existing rule and provide for effective implementation. At proposal, we solicited comments on a list of rule clarifications. After considering public comments, we have decided not to adopt some of the proposed changes at this time. We may consider some of these proposed changes again in the future, in which case we intend to provide an additional opportunity to comment on them. However, we are finalizing one minor change on which we solicited comments. We are also making two minor changes for which we did not solicit comments but which were recommended by commenters. We are also clarifying in this preamble that liquid streams generated from control devices (e.g., scrubber effluent) are wastewater. No rule changes are necessary for this clarification.
The revised rule clarifies the requirement to redetermine Group status for wastewater streams if process or operational changes occur that could reasonably be expected to change the wastewater stream from a Group 2 to a Group 1 stream. Examples of such process changes include, but are not limited to, changes in production capacity, production rate, feedstock type, or catalyst type; or whenever there is replacement, removal, or addition of recovery equipment. Although 40 CFR 63.100(m) generally applies to Group 2 wastewater streams becoming Group 1, this change clarifies requirements for redetermining group status for wastewater by including provisions analogous to those in 40 CFR 63.115(e), which requires redetermination of total resource effectiveness index value (TRE) for process vents due to process or operational changes.
In the final rule we have removed MEK from Tables 2 and 4 of 40 CFR part 63, subpart F and tables 9, 34, and 36 of 40 CFR part 63, subpart G. MEK was removed from the HAP list on December 19, 2005 (70 FR 75047). At that time, MEK was not removed from various applicability tables in the HON, 40 CFR part 63, subparts F and G.
In the final rule we have decided to waive all notification and reporting requirements for owners or operators of facilities where railcars, tank trucks, or barges, which are part of the vapor balancing control option, are reloaded or cleaned. We are also allowing off-site reloading and cleaning operations to comply with monitoring, recordkeeping, and reporting provisions of any other applicable 40 CFR part 63 standards in lieu of the monitoring, recordkeeping, and reporting in the HON. These provisions have been added to other MACT standards because the vapor balancing provisions provide owners and operators flexibility in meeting the requirements of the MACT standards without sacrificing the level of emission reductions being achieved. Further, making these changes provide consistency between similar emission sources being controlled under similar rules.
These amendments reflect a logical outgrowth of our proposed rule, and are reasonable decisions made in response to public comments we received regarding these issues.
The proposal provided a 60-day comment period ending August 14, 2006. We received comments from 34 commenters. Commenters included State agencies, industry, industry trade groups, environmental groups, and individuals. We have summarized the significant comments below. A complete summary of comments and our responses can be found in the public docket for the promulgated rule, EPA–HQ–OAR–2005–0475.
While the emissions data obtained through the industry questionnaire cannot be proven to be proportional to the emissions from the entire source category, EPA does have whole-facility emissions data for 226 facilities (the entire source category is estimated at 238 facilities) in the National Emissions Inventory (NEI), and we performed a screening-level risk assessment using these data to determine if there were HON facilities posing greater public health risks than those included in the industry data. Although the NEI data were for the whole facility (and not just the HON emission points), we used NEI data codes (MACT codes, Standard Industrial Classification codes, and Source Classification Codes) to judge whether risks estimated using the NEI data could be attributed to the HON source category. We found that the highest risks from using the NEI data were of the same order of magnitude as those estimated using the industry data. Based on this general corroboration with the NEI data, we concluded that the industry data were the most detailed and comprehensive data available that were specific to the source category, and that the data were appropriate for use in conducting the residual risk assessment.
EPA did use a factor of 2.3 to estimate population risk associated with facilities not included in the industry data. This factor is simply the ratio of the total number of HON facilities to the number of facilities in the industry data, and reflects our expectation, based on further comparison to the NEI data, that on average, the population densities around the facilities not in the industry data are similar to the densities around the facilities that were in the industry data. We estimate that there are 61.6 million people living within the 50-kilometer modeling radius of the 105 HON facilities included in the industry data. An estimated 82.8 million people live within the 50-kilometer modeling radius of the 226 HON facilities modeled using the NEI data. Accordingly, the sources in the industry-supplied data are located near 75 percent of the total exposed population, but represent 44 percent of the total number of facilities in the industry. This comparison indicates that many of the facilities not in the industry data are located in less densely populated areas or in the same areas as the facilities included in the industry data. Therefore, the population densities around the modeled facilities appear to be representative.
In the risk assessment, EPA showed that facilities with overlapping modeling domains (facility “clusters”) did not lead to significantly higher estimated risks to the individual most exposed because such risks are generally driven by the nearest facility. However, facility clusters did increase the numbers of individuals within certain cancer risk ranges. Although the total population around all facilities in the source category is not a factor of 2.3 greater than the total population around the facilities in the industry data, the additional facilities would increase the risks to some of the same segments of the population, resulting in higher risk to individuals in the population.
Under that test, there is no single risk level establishing what constitutes an ample margin of safety. Rather, the Benzene NESHAP approach codified in CAA sections 112(f)(2)(A) and (B) is deliberately flexible, requiring consideration of a range of factors (among them estimates of quantitative risk, incidence, and numbers of exposed persons within various risk ranges; scientific uncertainties; and weight of evidence) when determining acceptability of risk (the first step in the ample margin of safety determination (54 FR 38045, September 14, 1989). Determination of an ample margin of safety, the second step in the process, requires further consideration of these factors, plus consideration of technical feasibility, cost, economic impact, and other factors (54 FR 38046, September 14, 1989). As we stated in our “Residual Risk Report to Congress” (EPA–453/R–99–001) issued under CAA section 112(f)(1), we do not consider the 1-in-1 million individual cancer risk level as a “bright line” mandated level of protection for establishing residual risk standards, but rather as a trigger point to evaluate whether additional reductions are necessary to provide an ample margin of safety to protect public health. This interpretation is supported by the language in the preamble to the Benzene NESHAP, which was
The Report to Congress was intended, among other things, to explain how EPA would implement CAA section 112(f) by investigating the methods available for assessing public health risks after the technology-based standards were applied and explaining any uncertainties in the methods. Congress also asked us to make recommendations for changes to the CAA section 112(f) as a result of the investigation. A plain reading of the CAA section 112(f)(2)(A) indicates that if, based on the report, Congress judged that residual risk standards were unnecessary or that the analytical methods for implementing the provisions were inadequate, then Congress would enact revisions to CAA section 112(f). The choice by Congress not to respond to the report clearly indicates that we should proceed with our general approach as explained in our Report to Congress.
We consequently believe that the commenter's bright line approach is not supported by the statute, and is incorrect as a matter of law. It is true that the Senate version of CAA section 112(f) mandated elimination of lifetime risks of carcinogenic effects greater than 1-in-10 thousand to the individual in the population most exposed to emissions of a carcinogen. (See “A Legislative History of the Clean Air Act Amendments of 1990,” pages 7598 and 8518.) However, this version of the legislation was not adopted. We believe that the rejected Senate version of CAA section 112(f) shows that Congress considered mandating a level of risk reduction and chose not to do so.
In any event, EPA has concluded that the flexible approach to risk acceptability and ample margin of safety set forth in the Benzene NESHAP is reasonable and appropriate in light of the complex judgments EPA must make under CAA section 112(f).
The court decision cited by the commenter,
Another commenter rejected EPA's interpretation that the term “revise as necessary” allows EPA to import into its 8-year evaluation the consideration of cost and risk. The commenter maintained that emission standards adopted under CAA section 112(d)(2) themselves were the product of a technology-driven evaluation that did not incorporate cost as a factor in the initial stages, and did not permit consideration of risk at all. The commenter continued that EPA has illegally substituted a risk/cost analysis for the requirement to perform an analysis of the technical feasibility of emission controls to establish the level of control of the best performing HON sources.
In response to the commenter who claimed we may not consider risks or costs at all under CAA section 112(d)(6), we continue to interpret the use of the phrase “as necessary” in that section as conferring discretion on the agency to exercise its judgment as to what factors may drive an evaluation of available practices, processes, and control technologies. The ambiguous term “as necessary” inherently requires an EPA comparison between control measures and some goal or end. As the first rounds of both CAA section 112(f) residual risk and CAA section 112(d) technology review occur 8 years following MACT, it is reasonable to interpret these duties as being compatible with and informative of each other, and for the ultimate goal of revising standards as needed to protect public health with an ample margin of safety as influencing what we determine is generally “necessary,” in terms of whether to impose further technological controls under CAA section 112(d)(6).
Several commenters agreed with EPA that, for this source category, the use of 1999 actual emissions data rather than allowable emissions do not lead to an underestimating of risk. The commenters pointed out that the conservatism of the health benchmark values and the exposure estimates outweigh any potential underestimation of emission levels based on using actual emissions, and added that EPA emission data based on actual emissions is conservatively high since the Toxics Release Inventory shows a reduction in emissions since 1999.
The preamble to the proposed HON residual risk standards included a discussion of actual versus allowable emissions from HON emission points (71 FR 34428). We explained that, for this source category, using available data on actual emissions enabled us to approximate allowable emissions, and that basing the analysis on actual
We concluded that there is no reason to believe that there is either a substantial amount of overcontrol of Group 1 sources or voluntary control of Group 2 sources such that actual emissions are not a reasonable approximation of allowable emissions. Rather, actual emissions appear to reflect the results of our prior application of MACT (allowing for process variability), and no evidence in the record suggests that sources could make changes that significantly increase their emissions and risks but still comply with MACT control requirements. Consequently, basing the risk analysis on actual emissions in this case enabled us to determine the remaining risks to public health and the environment after application of the specific MACT standards applicable to HON sources.
EPA acknowledges that population subgroups, including children, may have the potential for risk greater than the general population due to greater relative exposure and/or greater susceptibility to the toxicant. With respect to exposure, the risk assessment implicitly accounts for this greater potential for exposure by assuming lifetime (rather than simply childhood) exposure, which would tend to yield higher estimates of risks. The exposure assessment described the maximum modeled lifetime exposure of residents near HON facilities. The exposed population was conservatively presumed to be exposed to airborne concentrations at their residence continuously, 24 hours per day for a full lifetime, including childhood.
With regard to children's potentially greater susceptibility to non-cancer toxicants emitted by HON facilities, the assessment relied on Agency (or comparable) hazard identification and dose-response values which have been developed to be protective for all subgroups of the general population, including children. For example, a review
On the issue of cancer dose-response values, our revised cancer guidelines and new supplemental guidance recommend applying default adjustment factors to account for exposures occurring during early-life exposure to those chemicals thought to cause cancer via a mutagenic mode of action. For these chemicals, the supplemental guidance indicates that, in lieu of chemical-specific data on which age or life-stage specific risk estimates or potencies can be determined, default “age dependent adjustment factors” can be applied when assessing cancer risk for early-life exposures to chemicals which cause cancer through a mutagenic mode.
Although we are not yet certain whether or not a childhood potency adjustment is needed, the estimated risks must also be considered in the context of the full set of assumptions used for this risk assessment. For example, we used a health-protective assumption of a 70-year exposure duration in our risk estimates; however, using the national average residency time of 12 years would reduce the estimate of risk by roughly a factor of 6. Our unit risk estimates for HAP are considered a plausible upper-bound estimate; actual potency is likely to be lower and some of which could be as low as zero. After considering these and other factors, we continue to consider the risks from emissions after application of the current HON rule to be acceptable (within the meaning of the Benzene NESHAP decision framework discussed at 69 FR 48339–48340, 48347–48348, August 9, 2004). As mentioned in the recently published cancer guidelines, we will continue to develop and present, to the extent practicable, an appropriate central estimate and appropriate lower and upper-bound estimates of cancer potency. Development of new methods or estimates is a process that will require independent peer review.
However, under section 7(a)(2) of the ESA and the implementing regulations promulgated by the Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the Services), an action agency such as EPA has a duty to initiate consultation with the services only where it determines that its action may have an impact (either beneficial or adverse) on listed threatened or endangered species or on their designated critical habitat. Where the action agency determines that its action will have no such effect, the consultation duty is not triggered. For the HON residual risk rulemaking, based on the ecological risk analysis we discuss below, EPA has determined that its action has no effect, either adverse or beneficial, on listed species or their critical habitat.
We conducted a screening-level ecological risk analysis to assess the affects of persistent and bioaccumulative toxic HAP emissions on aquatic and terrestrial receptors. Only two HAP, hexachlorobenzene and anthracene, were estimated to pose any potential for exposures via routes beyond direct inhalation. All ecological hazard quotient (HQ) values are well below levels of concern, with the highest HQ being 0.05 from benthic/sediment exposure by aquatic life to anthracene. The highest hexachlorobenzene HQ is 0.02 from surface water exposure by aquatic life. HQ values of equal to or less than 1.0 are indicative of no effect. EPA concluded that these levels are not high enough to constitute “significant and widespread” adverse environmental effects as defined in CAA section 112(a)(7), and that there is not an effect on threatened or endangered species or on their critical habitat within the meaning of the ESA, as implemented at 50 CFR 402.14(a). Therefore, EPA concluded that a consultation with the Services regarding endangered species was not necessary. The statement regarding communities being unaffected by other toxic chemicals or environmental stressors was meant to convey that the assessment considered only the contribution of HON emissions to media concentrations.
However, in response to the comments, we re-evaluated Option 2. Before rejecting the option overall, we decided to modify Option 2 to eliminate the high cost sources. We also re-evaluated the assumptions used in the cost analysis to reflect a range of likely costs rather than the most costly results.
At proposal, we estimated that sources having any amount of Table 38 HAP would be required to meet Option 2. We re-analyzed the costs of controlling process vents and equipment leaks assuming a trigger level of 5 percent Table 38 HAP. Additionally, we analyzed the impacts of reducing the TRE from a value of 4 from proposal to a value of 2. At proposal we calculated repair costs for leaking valves on a monthly basis. For the re-analysis, we assumed there would be no additional costs of repairing leaking valves because the frequency of repair would not change from the current HON when sources successfully repair valves on their existing schedule. At proposal, we calculated the annual cost of valve monitoring assuming all sources would have to monitor monthly. This assumption would provide the highest cost estimates. For the re-analysis, we calculated the annual cost of valve monitoring assuming that half of the sources would be able to conduct quarterly monitoring and half would still conduct monthly monitoring.
The resulting total annual cost for a re-evaluated Option 2 was estimated to be $6 million, less than half the $13 million annual cost of Option 2, as proposed. After considering these lower annual costs, EPA decided that the cost of further control still was not justified considering the small reduction in health risk resulting from HAP emission reductions achieved by Option 2.
We are also clarifying in this preamble that liquid streams generated from control devices (e.g., scrubber effluent) are wastewater. We notified the public at proposal that we intended to incorporate this clarification in the rule. However, commenters affirmed that the regulatory text already clarifies this and additional rule language is unnecessary. Therefore, no rule clarification language was added.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Office of Management and Budget (OMB) deems the final rule to be a “significant regulatory action” because it raises novel legal and policy issues. Accordingly, EPA submitted the final rule to OMB for review. Changes made in response to OMB recommendations have been documented in the docket.
This action does not impose any new information collection burden. The action does not require any further control of sources and the amendatory changes are estimated to have at most minor costs. However, OMB has previously approved the information collection requirements contained in the existing regulations, 40 CFR part 63, subparts F, G, and H, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501,
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of the final rule on small entities, small
For sources subject to the final rule, the relevant NAICS and associated employee sizes are as follows:
After considering the economic impacts of the final rule on small entities, EPA has determined that this action will not have a significant economic impact on a substantial number of small entities. This action finalizes our decision not to impose further controls and not to revise the existing rule. Consequently, there are no impacts on any small entities.
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if EPA publishes with the final rule an explanation why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed, under section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
EPA has determined that the final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, the final rule is not subject to the requirements of sections 202 and 205 of the UMRA. This action finalizes our decision not to impose further controls and not to revise the existing rule. Consequently, there are not costs associated with this action. In addition, today's final decision does not significantly or uniquely affect small governments because it contains no requirements that apply to such governments or impose obligations upon them. Therefore, today's final decision is not subject to section 203 of UMRA.
Executive Order 13132 (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
The final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. None of the affected SOCMI facilities are owned or operated by State governments. Thus, Executive Order 13132 does not apply to the final rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have Tribal implications.” The final rule does not have tribal implications, as specified in Executive Order 13175. No tribal governments own SOCMI facilities subject to the HON. Thus, Executive Order 13175 does not apply to the final rule.
Executive Order 13045 (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
The final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by the final rule present a disproportionate risk to children. This conclusion is based on our assessment of the information on the effects on human health and exposures associated with SOCMI operations.
The final rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this final decision is not likely to have any adverse energy impacts.
As noted in the proposed rule, section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995, Public Law 104–113; 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency does not use available and applicable VCS.
The final rule does not involve technical standards beyond those already provided under the current rule. Therefore, EPA did not consider the use of any VCS.
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, requires Federal agencies to consider the impact of programs, policies, and activities on minority populations and low-income populations. According to EPA guidance, agencies are to assess whether minority or low-income populations face risks or a rate of exposure to hazards that are significant and that “appreciably exceed or is likely to appreciably exceed the risk or rate to the general population or to the appropriate comparison group” (EPA, 1998).
The Agency has recently reaffirmed its commitment to ensuring environmental justice for all people, regardless of race, color, national origin, or income level. To ensure environmental justice, we assert that we shall integrate environmental justice considerations into all of our programs and policies, and, to this end, have identified eight national environmental justice priorities. One of the priorities is to reduce exposure to air toxics. At proposal, EPA requested comment on the implications of environmental justice concerns relative to the two options proposed since some HON facilities are located near minority and low-income populations. We received one comment regarding environmental justice concerns that is addressed in the response to comments document.
The Congressional Review Act, 5 U.S.C. 801,
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401,
(g) * * *
(7) * * *
(ii) If complying with paragraph (g)(6)(i) of this section, comply with the requirements for closed vent system and control device specified in §§ 63.119 through 63.123. The notification and reporting requirements in § 63.122 do not apply to the owner or operator of the offsite cleaning or reloading facility.
(iv) After the compliance dates specified in § 63.100(k) at an offsite reloading or cleaning facility subject to paragraph (g) of this section, compliance with the monitoring, recordkeeping, and reporting provisions of any other subpart of this part 63 constitutes compliance with the monitoring, recordkeeping, and reporting provisions of paragraph (g)(7)(ii) or paragraph (g)(7)(iii) of this section. You must identify in your Notification of Compliance Status report required by § 63.152(b), the subpart to the part 63 with which the owner or operator of the reloading or cleaning facility complies.
(c) * * *
(3) The owner or operator of a Group 2 wastewater shall re-determine group status for each Group 2 stream, as necessary, to determine whether the stream is Group 1 or Group 2 whenever process changes are made that could reasonably be expected to change the stream to a Group 1 stream. Examples of process changes include, but are not limited to, changes in production capacity, production rate, feedstock type, or whenever there is a replacement, removal, or addition of recovery or control equipment. For purposes of this paragraph (c)(3), process changes do not include: Process upsets; unintentional, temporary process changes; and changes that are within the range on which the original determination was based.
(d) * * *
(3) The owner or operator of a Group 2 wastewater shall re-determine group status for each Group 2 stream, as necessary, to determine whether the stream is Group 1 or Group 2 whenever process changes are made that could reasonably be expected to change the stream to a Group 1 stream. Examples of process changes include, but are not limited to, changes in production capacity, production rate, feedstock type, or whenever there is a replacement, removal, or addition of recovery or control equipment. For purposes of this paragraph (d)(3), process changes do not include: Process upsets; unintentional, temporary
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason retention limit adjustment.
NMFS has determined that the daily Atlantic bluefin tuna (BFT) retention limits for the Atlantic tunas General category should be adjusted to provide reasonable opportunity to harvest the General category January time-period subquota. Therefore, NMFS increases the daily BFT retention limits for the entire month of January, including previously scheduled Restricted Fishing Days (RFDs), to provide enhanced commercial General category fishing opportunities in all areas while minimizing the risk of an overharvest of the General category BFT quota.
The effective dates for the BFT daily retention limits are provided in Table 1 under
Brad McHale, 978–281–9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971
The 2006 BFT fishing year began on June 1, 2006, and ends May 31, 2007. The final initial 2006 BFT specifications and General category effort controls were published on May 30, 2006 (71 FR 30619). These final specifications divided the General category quota among three subperiods (June through August, the month of September, and October through January) in accordance with the 1999 Highly Migratory Species Fishery Management Plan (1999 FMP) (May 29, 1999; 64 FR 29090), and implementing regulations at § 635.27. The final initial 2006 BFT specifications increased the General category retention limit to three fish for the June though August time-period, as well as established the following General category RFD schedule: all Saturday and Sundays from November 18, 2006, through January 31, 2007, and Thursday November 23, 2006, and Monday December 25, 2006, inclusive.
Due to the large amount of available quota and the low catch rates, NMFS extended the three-fish retention limit through September (71 FR 51529, August 30, 2006), October (71 FR 58287, October 3, 2006), November (71 FR 64165, November 1, 2006), and December (71 FR 68752, November 28, 2006) to enhance fishing opportunities while minimizing the risk of exceeding available quota. On October 2, 2006, NMFS published a final rule (71 FR 58058) implementing the Consolidated Highly Migratory Species Fishery Management Plan (HMS FMP). The HMS FMP revised the General category time-period subquota allocation scheme by dividing the coastwide General category into the following five distinct time-periods; June through August, September, October through November, December, and January of the following year. The effective date of these time-periods and their associated subquota was November 1, 2006.
Pursuant to this action and the final initial 2006 BFT specifications, noted above, the daily BFT retention limits for Atlantic tunas General category are as follows:
Under § 635.23(a)(4), NMFS may increase or decrease the General category daily retention limit of large medium and giant BFT over a range from zero (on RFDs) to a maximum of three per vessel to allow for a reasonable opportunity to harvest the quota for BFT. As part of the final specifications on May 30, 2006 (71 FR 30619), NMFS adjusted the commercial daily BFT retention limit, in all areas, for those vessels fishing under the General category quota, to three large medium or giant BFT, measuring 73 inches (185 cm) or greater curved fork length (CFL), per vessel per day/trip. This retention limit, which was to remain in effect through August 31, 2006, inclusive, was extended through September, October, November, and December via separate actions published in the
The total General category time-period subquota allocations for the 2006 fishing year equal 1,163.3 metric tons (mt). As of December 11, 2006, 114.9 mt has been landed in the General category, resulting in an available balance of 1048.4 mt, and catch rates remain at less than 1.0 mt per day. If catch rates remain at current levels and January RFDs remain as scheduled, approximately 43.0 mt would be landed through January 31, 2007. This projection would bring the cumulative time-period subquota landings to approximately 157.9 mt, resulting in an underharvest of approximately 1,005.4 mt. The October 2, 2006, final rule (71 FR 58058) established stand-alone General category time-periods for the months of December and January. Each of these time-periods are allocated a portion of the coastwide General category, thereby ensuring fishing opportunities are provided in years where high catch rates are experienced. In combination with the subquota rollover from previous time-periods, scheduled RFDs, current catch rates, and the daily retention limit reverting to one large medium or giant BFT per vessel per day on January 1, 2007, NMFS anticipates the full January time-period subquota will not be harvested. In the past, however, the fishery has had the capability of increasing landings rates dramatically in winter months, particularly off southern states. If the fishery was to perform at these past levels with high landings rates (although not witnessed during the winter of 2005/2006), it may alleviate concern of excessive roll-overs from one fishing year to the next, but raises the possibility of unprecedented, and potentially unsustainable, catch rates during the winter fishery.
The final initial 2006 BFT specifications scheduled a number of RFDs for the month of January, including all Saturdays and Sundays. These RFDs were designed to provide for an extended late season, south Atlantic BFT fishery for the commercial handgear fishermen in the General category. For the reasons referred to above, NMFS has determined that the scheduled January RFDs are no longer required to meet their original purpose, and may in fact exacerbate low catch rates. Therefore, NMFS determined that an increase in the General category daily BFT retention limit on those previously established RFDs for the month of January is warranted. NMFS has selected these days in order to give adequate advance notice to fishery participants. While catch rates have continued to be low so far this season, NMFS recognizes that they may increase at any time late in the season.
Therefore, based on a review of dealer reports, daily landing trends, available quota, revised time-periods, and the availability of BFT on the fishing grounds, NMFS has determined that an increase in the General category daily BFT retention limit effective from January 1 through January 31, 2007, inclusive of previously scheduled RFDs for the month of January, is warranted. Thus, the General category daily retention limit of three large medium or giant BFT per vessel per day/trip (see Table 1) is extended through January 31, 2007, including all Saturdays and Sundays of January as well.
Under the current regulations for the Atlantic HMS, the 2006 General category BFT season will close on January 31, 2007. Therefore, fishing for, retaining, possessing, or landing large medium or giant BFT, measuring 73 inches curved fork length, or greater, under the General category quota, must cease at 11:30 p.m., local time, January 31, 2007. Persons aboard vessels permitted in the Atlantic Tunas General category may catch and release or tag and release BFT of all size classes while the General category is closed. All BFT should be released, or tagged and released, with a minimum of injury.
This adjustment is intended to provide a reasonable opportunity to harvest the U.S. landings quota of BFT while maintaining an equitable distribution of fishing opportunities, to help achieve optimum yield in the General category BFT fishery, to collect a broad range of data for stock monitoring purposes, and to be consistent with the objectives of the HMS FMP.
NMFS selected the daily retention limits and their duration after examining current and previous fishing year catch and effort rates, taking into consideration public comment on the annual specifications and inseason management measures for the General category received during the 2006 BFT quota specifications rulemaking process, and analyzing the available quota for the 2006 fishing year. NMFS will continue to monitor the BFT fishery closely through dealer landing reports, the Automated Landings Reporting System, state harvest tagging programs in North Carolina and Maryland, and the Large Pelagics Survey. Depending on the level of fishing effort, NMFS may determine that additional retention limit adjustments are necessary prior to January 31, 2007.
Closures or subsequent adjustments to the daily retention limits, if any, will be published in the
The Assistant Administrator for NMFS (AA), finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:
NMFS has recently become aware of increased availability of large medium and giant BFT in close proximity to shores of southern Atlantic states, as derived from fishing reports and landings data from dealers. This increase in abundance provides the potential to increase General category landings rates if fishery participants are authorized to harvest three large medium or giant BFT per day. Although landings to date have been low (i.e., averaging less than one mt per day) there is the potential for increased availability of BFT during the winter to allow for an increase in fishery landing rates. The regulations implementing the HMS FMP provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Adjustment of retention limits, including waiving previously scheduled RFDs in the month of January, is also necessary to avoid excessive quota underharvests. Affording prior notice and opportunity for public comment to implement these retention limits is impracticable as it would preclude NMFS from acting promptly to allow harvest of BFT that are still available on the fishing grounds. Analysis of available data shows that the General category BFT retention limit may be increased for the Atlantic tuna General and HMS Charter/Headboat permit holders with minimal risks of exceeding the International Commission for the Conservation of Atlantic Tunas allocated quota.
Delays in increasing the retention limits would be contrary to the public interest. Limited opportunities to harvest the respective quotas may have negative social and economic impacts to U.S. fishermen that either depend on catching the available quota designated in the HMS FMP, or depend on multiple BFT retention limits to attract individuals to book charters. For both
Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, and because this action relieves a restriction (i.e., current default retention limit is one fish per vessel/trip but this action increases that limit and allows retention of more fish), there is also good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.
This action is being taken under 50 CFR 635.23(a)(4) and is exempt from review under Executive Order 12866.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure of commercial fishery.
NMFS announces that the summer flounder commercial quota available to New Jersey has been harvested. Vessels issued a commercial Federal fisheries permit for the summer flounder fishery may not land summer flounder in New Jersey for the remainder of calendar year 2006, unless additional quota becomes available through a transfer from another state. Regulations governing the summer flounder fishery require publication of this notification to advise New Jersey that the quota has been harvested and to advise vessel permit holders and dealer permit holders that no commercial quota is available for landing summer flounder in New Jersey.
Effective 0001 hours, December 21, 2006, through 2400 hours, December 31, 2006.
Douglas Potts, Fishery Management Specialist, (978) 281–9341
Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.100.
The initial total commercial quota for summer flounder for the 2006 calendar year was set equal to 14,154,000 lb (6,420 mt) (70 FR 77061, December 29, 2005). The percent allocated to vessels landing summer flounder in New Jersey is 16.72499 percent, resulting in a commercial quota of 2,367,255 lb (1,073,787 kg). The 2006 allocation was reduced to 2,331,554 lb (1,057,593 kg) due to research set-aside.
Section 648.101(b) requires the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor state commercial quotas and to determine when a state's commercial quota has been harvested. NMFS then publishes a notification in the
The regulations at § 648.4(b) provide that Federal permit holders agree, as a condition of the permit, not to land summer flounder in any state that the Regional Administrator has determined no longer has commercial quota available. Therefore, effective 0001 hours, December 21, 2006, further landings of summer flounder in New Jersey by vessels holding summer flounder commercial Federal fisheries permits are prohibited for the remainder of the 2006 calendar year, unless additional quota becomes available through a transfer and is announced in the
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Securities and Exchange Commission.
Request for additional comment.
The Commission is reopening the comment period on its June 2006 request for comment regarding amendments to investment company (“fund”) governance provisions. The purpose of the additional comment period is to permit public comment on two papers prepared by the Office of Economic Analysis on this topic that will be made public by including them in the comment file. The comments the Commission receives will be used to inform our further consideration of the matter.
Comments must be received on or before 60 days after publication of the second of the two staff economic papers in the public comment file. When the second of the two staff economic papers in the public comment file is published, the Commission will publish a document announcing the comment deadline.
To help us process and review your comments more efficiently, comments should be sent by one method only.
• Use the Commission's Internet comment form (
• Send an e-mail to
• Use the Federal eRulemaking Portal (
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549.
Jonathan Sokobin, Deputy Chief Economist, Office of Economic Analysis, (202) 551–6600 or Vincent Meehan, Staff Attorney, or Penelope Saltzman, Branch Chief, Office of Regulatory Policy, (202) 551–6792, Division of Investment Management, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549.
In June 2006, the Commission requested additional comment
To that end, the Commission invites comment on any aspect of the two staff economic papers that will be published shortly after the issuance of this release. Specifically, our staff economists have reviewed existing relevant economic literature related to conflicts of interest that advisers have with regard to mutual funds they advise, as well as literature related to mutual fund governance, independent chairmen, and board independence. Our staff economists also have performed an analysis of the statistical properties of mutual fund returns and potential limitations inherent in any empirical analysis designed to identify a relationship between those returns and fund governance. We will include their papers in the public comment file, and we request comment on them. In addition, in order to facilitate our assessment of the economic implications of the fund governance provisions and any alternative approaches available to us, we also seek comment on any other extant analyses, and we request that commenters provide us their best assessment of these.
By the Commission.
National Indian Gaming Commission, Interior.
Notice of extension of comment period.
This notice extends the period for comments on proposed Class II technical standards published in the
The comment period for the proposed technical regulations is extended from December 15, 2006, to January 31, 2007.
Michael Gross, Senior Attorney, at 202/632–7003; fax 202/632–7066 (these are not toll-free numbers).
Congress established the National Indian Gaming Commission (NIGC or Commission) under the Indian Gaming Regulatory Act of 1988 (25 U.S.C. 2701
Bureau of Prisons, Justice.
Proposed rule.
The Bureau of Prisons (Bureau) is revising its regulations on procedures for reductions in sentence (RIS) for medical reasons. 28 CFR Part 571, Subpart G, is currently entitled “Compassionate Release (Procedures for the Implementation of 18 U.S.C. 3582(c)(1)(A)(i) and 4205(g)).” We are revising these regulations to (1) more accurately reflect our authority under these statutes and our current policy, (2) clarify procedures for RIS consideration, and (3) describe procedures for RIS consideration of D.C. Code offenders, for whom the Bureau has responsibility under the National Capital Revitalization and Self-Government Improvement Act of 1997 (D.C. Revitalization Act), D.C. Official Code § 24–101(b). The new Subpart G will be entitled “Reduction in Sentence for Medical Reasons.”
Comments due by February 20, 2007.
Regulations Unit, Office of General Counsel, Bureau of Prisons, 320 First Street, NW., Washington, DC 20534. Our e-mail address is
Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone (202) 353–8248.
The Bureau is revising its regulations on procedures for reductions in sentence (RIS) for medical reasons. 28 CFR Part 571, Subpart G, is currently entitled “Compassionate Release (Procedures for the Implementation of 18 U.S.C. 3582(c)(1)(A) and 4205(g)).”
Title 18 of the United States Code, section 3582(c)(1)(A)(i) states that a court, on motion of the Director of the Bureau, may reduce a term of imprisonment if “extraordinary and compelling reasons warrant such a reduction.” Based on the Bureau's experience in implementing this statute and resultant policy decisions, we clarify through these proposed regulations the specific criteria that the Bureau will consider for a RIS.
It is important to note we do not intend this regulation to change the number of RIS cases recommended by the Bureau to sentencing courts. It is merely a clarification that we will only consider inmates with extraordinary and compelling medical conditions for RIS, and not inmates in other, non-medical situations which may be characterized as “hardships,” such as a family member's medical problems, economic difficulties, or the inmate's claim of an unjust sentence.
In this regulation, we explain that an inmate may be a candidate for RIS consideration if Bureau medical staff, or a Bureau-selected doctor consulting on his/her case, conclude with reasonable medical certainty that the inmate has one of the following two conditions:
• A terminal illness with a life expectancy of one year or less; or
• A profoundly debilitating medical condition that:
(1) May be physical or cognitive in nature;
(2) is irreversible and cannot be remedied through medication or other measures; and
(3) has eliminated or severely limited the inmate's ability to attend to fundamental bodily functions and personal care needs without substantial assistance from others, including personal hygiene and toilet functions, basic nutrition, medical care, and physical safety.
If an inmate has such a medical condition, we will not automatically give that inmate a RIS recommendation. Instead, as is our current practice, we will carefully consider whether the inmate is a danger to society, and other relevant considerations which focus on potential risks to public safety and the nature of the offense, before recommending a RIS. These considerations may include but are not limited to: Potential impact on victims or witnesses, criminal history, inmate's age and length of sentence, and the previous existence of the medical condition.
Previously, this subpart was entitled “Compassionate Release.” We are changing the title of subpart G to read “Reduction in Sentence for Medical Reasons.” The Bureau has received letters and Administrative Remedy appeals from inmates who mistakenly believe that we will consider circumstances other than the inmate's medical condition for reducing a sentence. Such is not the Bureau's practice. We believe this title more accurately describes our criteria and procedures.
In this section, we state that the purpose of this part is to describe the procedures used to assess whether an inmate in Bureau custody is appropriate for a reduction in sentence.
This section describes the statutes that allow the Director to make a motion to the sentencing court requesting a RIS. In addition to previous authority, 18 U.S.C. 3582(c)(1)(A)(i) and 4205(g), we added the District of Columbia (D.C.) Code § 24–101, §§ 24–461 through 24–465, § 24–467, and § 24–468.
Under the D.C. Revitalization Act, enacted August 5, 1997, the Bureau is responsible for the care and custody of “the felony population sentenced pursuant to the District of Columbia Official Code” (D.C. Code offenders). (D.C. Official Code § 24–101(b)). D.C. Code offenders in Bureau custody are subject to Federal laws and Bureau regulations as long as they are “consistent with the sentence imposed.”
Under the D.C. Revitalization Act, we must follow the D.C. Code when reviewing a RIS for D.C. Code offenders in Bureau custody. We therefore add the relevant D.C. Code provisions to this regulation.
In this section, we clarify what extraordinary and compelling circumstances may warrant a RIS. We explain that an inmate may be a candidate for RIS consideration if
In each of these conditions, inmates may be unable to care for themselves. We may find that such inmates are not likely to pose a danger to the public or the community if released. We may find that issues of confinement, punishment, and rehabilitation may no longer be principal considerations. These types of conditions, viewed in totality, may be extraordinary and compelling circumstances warranting a RIS.
This section instructs inmates to request a RIS in writing at the institution. This does not change any previous substantive requirements. We currently have this requirement in 28 CFR 571.61(a).
This section also explains what the RIS request should include. This does not change any previous substantive requirements, which are currently in 28 CFR 571.61(a)(1) and (2).
This section allows inmates who are too ill to make written requests to make their requests verbally to staff or to have someone else make a request on their behalf. We intend this regulation to be more permissive, and allow more ways for ill inmates to make this request.
This section simply explains that Bureau medical staff or a Bureau-selected doctor consulting on an inmate's case at the institution must first conclude that an inmate has a medical condition as described in § 571.62. If an inmate is medically eligible for RIS consideration under § 571.62, Bureau staff at the institution must then determine that the inmate will not pose a danger to society. If both these threshold requirements are met, staff will then carefully assess other relevant factors before determining that a RIS is appropriate in the inmate's case. In assessing other relevant factors, Bureau staff will be guided by national Bureau policy statements on this subject.
This section also explains that staff at the institution, the Warden, the Regional Office, and the Central Office of the Bureau all review inmate RIS requests. This is merely a codification of currently existing practice, and will notify inmates and the public that a RIS request is reviewed by all three levels of the Bureau before approval.
This section explains that, if the Director determines that a RIS is appropriate, he/she will ask the United States Attorney's Office in the district where the inmate was sentenced to submit the Director's motion to the sentencing court on the Bureau's behalf. A RIS can only occur if the court grants the motion under 18 U.S.C. 3582(c)(1)(A)(i) or § 4205(g). If the court grants a motion under § 4205(g), release also depends on a decision by the Parole Commission to grant parole. This does not change any previous substantive language.
For D.C. Code offenders, a RIS can only occur if the United States Parole Commission grants medical or geriatric parole under D.C. Official Code §§ 24–463 through 24–465 to inmates in Bureau custody for offenses that were committed before August 5, 2000, or the court grants a motion under D.C. Official Code § 24–468 for inmates in Bureau custody for offenses that were committed on or after August 5, 2000.
This section explains how the Warden, Regional Director, and General Counsel will notify inmates if they deny a RIS request and how inmates may appeal that decision. This does not change any previous substantive language. We currently have similar language in 28 CFR 571.63(a)(4).
We note that D.C. Code offenders, as described below, may appeal RIS decisions or any other Bureau action or inaction through the Bureau's Administrative Remedy Program.
We add these sections to comply with the D.C. Revitalization Act. The D.C. Revitalization Act makes the Bureau responsible for “the felony population sentenced pursuant to the District of Columbia Code” (D.C. Code offenders). (D.C. Official Code § 24–101(b)) D.C. Code offenders in Bureau custody are subject to Federal laws and Bureau regulations as long as they are “consistent with the sentence imposed.”
The D.C. Code contains specific provisions that govern D.C. Code sentences regarding RIS based on medical reasons. Because the Bureau is now responsible for the custody of D.C. Code felony offenders, we add regulations stating the eligibility requirements that D.C. Code offenders in Bureau custody must meet to be considered for RIS. The process described in §§ 571.62 through 571.67 will otherwise be followed.
In this section, we describe the ways in which D.C. Code offenders who committed a felony before August 5, 2000, and were sentenced to an indeterminate (parolable) sentence, might be eligible for a reduction in sentence, which is described in the D.C. Code as “medical parole” and “geriatric parole.” This section also describes inmates who are excluded from RIS eligibility: D.C. Code offenders (1) whose physical or medical condition existed at the time of sentencing; or (2) who were convicted of first degree murder (D.C. Official Code §§ 22–2101, 2106), an armed crime of violence or dangerous crime (D.C. Official Code § 22–4502), possession of a firearm while committing a crime of violence or dangerous crime (D.C. Official Code § 22–4504(b), or armed or unarmed carjacking (D.C. Official Code § 22–2803).
In this section, we describe RIS eligibility for D.C. Code offenders who committed a felony on or after August 5, 2000, and were sentenced to terms of imprisonment not subject to parole. Such inmates may be eligible for a reduction in sentence if they: (1) meet the medical conditions described in § 571.62, or (2) are 65 years of age or older, have a chronic infirmity, illness, or disease related to aging, and release under supervision would not endanger public safety. This section also describes inmates who are excluded from RIS eligibility: D.C. Code offenders (1) whose physical or medical condition
Under this section, D.C. Code offenders with indeterminate (parolable) sentences may request a reduction in sentence either by following the procedures in §§ 571.63 and 571.64, or by sending an application directly to the Parole Commission. D.C. Code offenders with determinate (non-parolable) sentences may request a reduction in sentence only by following the procedures in §§ 571.63 and 571.64.
This section makes it clear that the Bureau will use the same procedures to assess a D.C. Code offender's application for a reduction in sentence as it uses for federal offenders.
Aside from provisions concerning D.C. Code offenders, this is not a substantive change from the current § 571.64. An inmate is not eligible for a RIS if he/she is (a) a state prisoner housed in a Bureau facility, (b) a federal offender who committed an offense before November 1, 1987, and serving a non-parolable sentence, or (c) a military prisoner housed in a Bureau facility.
We make minor changes to this section to conform with changes to our regulations on RIS for medical reasons.
This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review”, section 1(b), Principles of Regulation. The Director, Bureau of Prisons has determined that this regulation is not a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this regulation has not been reviewed by the Office of Management and Budget.
This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, we determine that this regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This regulation pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.
This regulation will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This regulation is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This regulation will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Prisoners.
Under the rulemaking authority vested in the Attorney General in 5 U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we propose to amend 28 CFR parts 571 and 572, chapter V, subchapter D, as follows.
1. Revise the authority citation for 28 CFR part 571 to read as follows:
5 U.S.C. 301; 18 U.S.C. 3565; 3568–3569 (Repealed in part as to offenses committed on or after November 1, 1987), 3582, 3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 4161–4166 and 4201–4218 (Repealed as to offenses committed on or after November 1, 1987), 5006–5024 (Repealed October 12, 1984, as to offenses committed after that date), 5031–5042; 28 U.S.C. 509, 510; U.S. Const., Art. II, Sec. 2; 28 CFR 1.1–1.10; D.C. Official Code § 24–101, §§ 24–461—24–465, § 24–467, and § 24–468.
2. Revise subpart G of part 571 to read as follows:
The purpose of this subpart is to describe the criteria and procedures used to assess whether an inmate in Bureau of Prisons (Bureau) custody is appropriate for a reduction in sentence.
(a) Pursuant to 18 U.S.C. 3582(c)(1)(A)(i), the Director of the
(b) 18 U.S.C. 4205(g)(Repealed as to offenses committed on or after November 1, 1987) provides that the court, on the Director's motion, may make an inmate serving a parolable sentence immediately eligible for parole consideration.
(c) The District of Columbia Official Code (D.C. Official Code) § 24–101, §§ 24–461—24–465, § 24–467, and § 24–468, collectively authorize the Bureau to determine whether a RIS may be warranted for D.C. Code offenders in Bureau custody.
An inmate may be considered for a RIS if Bureau medical staff, or a Bureau-selected doctor consulting on his/her case, conclude with reasonable medical certainty that the inmate suffers from:
(a) A terminal illness with a life expectancy of one year or less; or
(b) A profoundly debilitating medical condition that:
(1) May be physical or cognitive in nature;
(2) Is irreversible and cannot be remedied through medication or other measures; and
(3) Has eliminated or severely limited the inmate's ability to attend to fundamental bodily functions and personal care needs without substantial assistance from others, including personal hygiene and toilet functions, basic nutrition, medical care, and physical safety.
(a) You may request a reduction in sentence (RIS) in writing at your institution.
(b) The RIS request should include:
(1) A statement explaining the medical condition(s) that create the extraordinary or compelling circumstances for a RIS; and
(2) A proposed release plan, including information about where you will live, receive medical treatment, and how you will support yourself and pay for medical care.
If an inmate is too ill to make a request in writing, that inmate may make the request verbally to Bureau staff, or someone else may submit a written request for that inmate.
(a)
(1) Bureau medical staff at the institution level must first conclude that you have a qualifying medical condition as described in § 571.62 or, for D.C. Code offenders who committed a felony before August 5, 2000, as described in § 571.68.
(2) If you are medically eligible for RIS consideration, Bureau staff at the institution level will carefully assess the public safety concerns and the totality of the circumstances before determining that you are, in fact, appropriate for a RIS, including a review of the impact a RIS will have on any victims.
(b)
(c)
(d)
If the Director determines that your situation makes you appropriate for a RIS under 18 U.S.C. 3582(c)(1)(A)(i) or § 4205(g), or for D.C. Code offenders, D.C. Official Code §§ 24–461–465, 467–468, the Director will request the U.S. Attorney's Office in the district where you were sentenced to submit a RIS motion to the sentencing court on the Bureau's behalf. A RIS can only occur if the court grants the motion or if the Parole Commission grants the application for certain D.C. Code offenders. If the court grants a motion under § 4205(g), release also depends on a decision by the Parole Commission to grant you parole.
If the Warden, the Regional Director, or the Director determines that a RIS is not appropriate and denies your RIS request, you will receive a written notice stating the reason(s) for denial.
(a) If the Warden or Regional Director denies the RIS request, you may appeal the denial through the Administrative Remedy Program (28 CFR part 542, subpart B).
(b) If the Director denies the RIS request, you may not appeal the denial through the Administrative Remedy Program.
(a) If you are a D.C. Code offender who committed a felony before August 5, 2000, and you were sentenced to an indeterminate (parolable) term of imprisonment, you may be eligible for:
(1)
(i)
(ii)
(2)
(b)
(1) The physical or medical condition existed at the time of sentencing, or
(2) The conviction was for first degree murder (D.C. Official Code §§ 22–2101, 2106), an armed crime of violence or dangerous crimes (D.C. Official Code § 22–4502), possession of a firearm during the commission of a crime of violence or dangerous crime (D.C. Official Code § 22–4504(b), or armed or unarmed carjacking (D.C. Official Code § 22–2803).
(a) If you are a D.C. Code offender who committed a felony on or after August 5, 2000, and you were sentenced to a determinate (non-parolable) term of
(1) You meet the medical conditions described in § 571.62; or
(2) You are 65 years of age or older, have a chronic infirmity, illness, or disease related to aging, and releasing you under supervision would not endanger public safety.
(b)
(1) The physical or medical condition was known to the court at the time of sentencing, or
(2) You are serving a term of imprisonment imposed pursuant to the District of Columbia Official Code §§ 22–2803(c) (carjacking), or 22–2104(b) (first degree murder).
(a)
(b)
Other than applying different eligibility requirements (described in § 571.69), in evaluating a RIS request by a D.C. Code offender who committed a felony before August 5, 2000, the Bureau will follow the same criteria and procedures set forth for federal prisoners in §§ 571.62 through 571.67.
You are NOT eligible for a reduction in sentence if you are:
(a) A state prisoner housed in a Bureau facility; or
(b) A federal offender who committed an offense before November 1, 1987, and serving a non-parolable sentence; or
(c) A military prisoner housed in a Bureau facility.
3. Redesignate §§ 571.71 and 571.72 as §§ 571.81 and 571.82, respectively.
4. Revise the authority citation for 28 CFR part 572 to read as follows:
5 U.S.C. 301; 18 U.S.C. 4001, 4042, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 4205, 5015 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 1.1–1.10.
5. Revise § 572.40 in Subpart E to read as follows:
18 U.S.C. 4205(g), repealed effective November 1, 1987, remains the controlling law for inmates who committed offenses before that date. 18 U.S.C. 3582(c)(1)(A) is the controlling law for inmates who committed offenses on or after November 1, 1987. Procedures for a RIS under either statute are in 28 CFR part 571, subpart G.
Occupational Safety and Health Administration (OSHA), Department of Labor.
Advance Notice of Proposed Rulemaking (ANPRM).
OSHA routinely conducts reviews of its existing safety and health standards to improve and update them. As part of this ongoing process, OSHA is issuing this ANPRM to initiate Phase III of the Standards Improvement Project (SIPs III). SIPs III is the third in a series of rulemaking actions intended to improve and streamline OSHA standards by removing or revising individual requirements within rules that are confusing, outdated, duplicative, or inconsistent. These revisions maintain or enhance employees' safety and health, while reducing regulatory burdens where possible.
OSHA has already identified a number of provisions that are potential candidates for inclusion in SIPs III. These candidates include recommendations received from the public in other rulemakings. The purpose of this notice is to invite comment on these recommendations, as well as provide an opportunity for commenters to suggest other candidates that might be appropriate for inclusion in this rulemaking. OSHA will use the information received in response to this notice to help determine the scope of SIPs III.
Comments must be submitted by the following dates:
You may submit comments and additional material, identified by OSHA Docket No. S–778B, by any of the following methods:
OSHA wants to improve confusing, outdated, duplicative, or inconsistent requirements in its standards. Improving OSHA standards will help employers better understand their obligations, which will lead to increased compliance, ensure greater safety and health for employees, and reduce compliance costs. In addition, this action will allow OSHA to recognize newer and more flexible ways of achieving the intent of the standards.
OSHA's effort to improve standards began in the 1970s, not long after the first set of standards was issued. In 1973, OSHA issued proposals to clarify and update rules that had originally been adopted by the Agency as “initial” standards. In 1978, OSHA published the Selected General and Special (Cooperage and Laundry Machinery, and Bakery Equipment) Industry Safety and Health Standards: Revocation (43 FR 9831). Commonly known as the Standards Deletion Project, this was a comprehensive final rule revoking hundreds of unnecessary and duplicative requirements in the General Industry Standards (part 1910). Another rulemaking in 1984 titled the Revocation of Advisory and Repetitive Standards (49 FR 5318) resulted in the removal of many repetitive and unenforceable requirements. These rulemaking actions were primarily directed at removing standards that were: (1) Not relevant to employee safety; that is, the standards addressed public safety issues; (2) duplicative of other standards found elsewhere in the general industry standards; (3) otherwise considered a “nuisance” standard; that is, one having no merit or employee safety and health benefits; or (4) unenforceable due to legal considerations.
In 1996, in response to a Presidential Memorandum on Improving Government Regulations, OSHA began another series of rulemaking improvement actions. Patterned after the earlier rulemaking actions, the new effort was designed to identify and then revise or eliminate standards that were confusing, outdated, duplicative, or inconsistent. This effort also included standards that could be rewritten in plain language. In the first action, Miscellaneous Changes to General Industry and Construction Standards (61 FR 37849), otherwise known as the Standards Improvement Project (SIPs I), OSHA focused on revising standards that were out of date, duplicative, or inconsistent.
The final rule on SIPs I was published on June 18, 1998 (63 FR 33450). Changes made in SIPs I included reducing the frequency of a medical testing requirement and eliminating an unnecessary or obsolete medical test required in both the coke oven and inorganic arsenic standards; changing the emergency-response provisions of the vinyl chloride standard; eliminating the public safety provisions of the temporary labor camp standard; and eliminating unnecessary cross-references in the textile industry standards. All of these improvements were made without reducing employee safety and health protection.
In 2002, OSHA published a proposed rule for Phase II of the Standards Improvement Project (SIPs II) (67 FR 66494). In that notice, OSHA proposed to revise a number of provisions in health and safety standards that had been identified by commenters during SIPs I or that the Agency had identified as standards in need of improvement.
In the final rule on SIPs II, published on January 5, 2005 (70 FR 1111), the Agency revised a number of health standards to reduce regulatory burden, facilitate compliance, and eliminate unnecessary paperwork without reducing health protections. The improvements made by SIPs II addressed issues such as employee notification of the use of chemicals in the workplace, frequency of exposure monitoring, and medical surveillance.
In addition to the SIPs initiatives, OSHA has a related but separate rulemaking process, the Consensus Update Project initiated on November 24, 2004 (69 FR 68283), to update OSHA standards that are based on, or reference national consensus standards. Many of OSHA's rules were adopted under a two-year statutory authority that allowed the new Agency to incorporate existing national consensus standards into its body of regulations without notice and comment rulemaking. National consensus standards are generally updated on a regular cycle, and thus the rules initially adopted by OSHA are often out-of-date. To update these rules based on the updated consensus standards requires rulemaking. OSHA is using a number of different rulemaking approaches to update as many of these rules as possible.
The rules that are addressed in SIPs rulemakings are not simply consensus standards updates. Some of the suggestions that were received in previous SIPs rulemakings are currently being addressed in either specific rulemaking projects for updating of the rule involved (e.g., a complete revision of the explosives standard is currently on the regulatory agenda), or will be addressed in the consensus standards update process. Therefore, it is likely that any comments or suggestions related exclusively to consensus standards that are submitted in response to this request will be considered under the consensus standards update project rather than the SIPs rulemaking.
OSHA has identified numerous standards as potential candidates for improvement in SIPs III based on the Agency's review of its standards, suggestions and comments from the public, or recommendations from the Office of Management and Budget (OMB). The OMB recommendations were based on comments they received on Regulatory Reform of the U.S. Manufacturing Sector (2005).
Because the Agency has identified numerous candidate standards for improvement and stakeholders have encouraged the Agency to continue this effort, OSHA has determined to proceed with Phase III of SIPs. As already noted, SIPs III will proceed at the same time that the Agency updates consensus standards in a separate project. In SIPs III, OSHA's objective is to modify individual provisions of standards by removing or revising requirements of standards that are confusing, outdated, duplicative, or inconsistent without reducing employees' safety and health or imposing any additional economic burden. As in the earlier rulemakings, the Agency seeks help from the public to identify standards that are in need of improvement based on this objective. While commenters may suggest extensive changes or major reorganization of some standards, suggestions that require a large-scale revision of a standard may not be appropriate for this rulemaking. The Agency will determine whether such large-scale changes are addressed in SIPs III, in the Consensus Update Project, or in a future rulemaking dedicated to the specific issues raised by commenters.
OSHA requests the public to identify standards that are in need of improvement because they are confusing, outdated, duplicative, or inconsistent. In addition, the agency is considering the following changes in SIPs III. When commenting on the issues below, OSHA requests that you reference the issue number, explain your rationale, and provide, if possible, data and information to support your comments.
On May 19, 2004, OSHA received a petition from the International Code Council (ICC) to revise Subpart E—Exit Routes. This standards development organization proposed that OSHA consider allowing employers to demonstrate compliance with the egress provisions of Subpart E by following its International Building Code (IBC) and International Fire Code (IFC), just as OSHA currently permits employers to demonstrate compliance by following the egress provisions of the National Fire Protection Association (NFPA) 101, Life Safety Code (2000 edition). The IBC and IFC are not currently referenced by OSHA.
The preamble to OSHA's 2002 plain language update of Subpart E (67 FR 67949–67965) explains that OSHA declined to extend recognition to the building codes
Some jurisdictions in the country adopt the ICC codes for building construction and fire prevention purposes, while NFPA codes are used in other jurisdictions. OSHA believes employees, employers, the building industry, and code officials may all benefit from OSHA allowing either alternative. Therefore, OSHA is considering the recognition of the combined egress provisions of the IBC and IFC as an alternative equivalent to Subpart E.
1. Do the combined egress provisions of the IBC and IFC offer equivalent protection to OSHA's Subpart E?
2. Are there other alternative national building codes that OSHA should consider?
3. Would allowing the use of the IBC and IFC as an equivalent to Subpart E help employers reduce cost?
On December 1, 2001, the National Marine Manufacturers Association petitioned OSHA to update § 1910.107 to reference portions of the 1995 edition of NFPA 33-Standard for Spray Application Using Flammable or Combustible Materials. This edition of NFPA 33 was the first to include a composites manufacturing chapter. This chapter includes less stringent provisions than previous editions of NFPA 33 that formed the basis for § 1910.107. These less stringent 1995 provisions presumed a lower degree of hazard in the process of composites spraying. Subsequently, OSHA staff witnessed field tests at the request of the industry to demonstrate the hazard level; these tests were inconclusive.
OSHA received a second petition on August 17, 2004, from the American Composite Manufacturers Association (ACMA). ACMA petitioned OSHA to adopt certain sections of the “current” versions of NFPA 33 as well as NFPA 30—Flammable and Combustible Liquids Code. At that time, the current versions of those NFPA standards were the 2003 editions. NFPA 33 retained the specific provisions for composites spraying through its 2003 edition. ACMA noted in their petition, that the newer NFPA standards “* * * reflect significant advances in understanding the hazards presented by many of the covered operations.” They further noted “* * * NFPA 33 now contains fire protection standards specifically designed for composites manufacturing operations which recognize the inherently lower degree of hazard inherent in these operations.”
On June 17, 2004, ACMA testified on this issue to the Subcommittee on Regulatory Reform and Oversight of the Small Business Committee, U.S. House of Representatives. Additionally, the National Association of Manufacturers and the National Marine Manufacturers Association subsequently submitted a reform nomination
OSHA is considering whether or not NFPA 30 and NFPA 33 are equivalent to the existing provisions in § 1910.106 and § 1910.107. As mentioned above, OSHA had attended a presentation to demonstrate that the new NFPA provisions were equivalent, however the demonstration did not prove to be conclusive. In addition, there is a lack of data that OSHA can rely on to draw conclusions. With this, OSHA cannot conclude at this time that NFPA 30 and NFPA 33 provide protection for employees equivalent to § 1910.106 and § 1910.107. OSHA hopes that commenters can provide data to help
As mentioned above, OSHA intends to update its standards that reference outdated consensus standards. As part of that process, it is anticipated that § 1910.106 and § 1910.107 will be updated in their entirety sometime in the future. In this ANPRM, however, OSHA is exploring the idea of amending § 1910.106 and § 1910.107, at this time, to allow employers to comply with the 2003 editions of NFPA 30 and 33 until the more extensive revision is completed. Making this change now, as part of the SIPs III effort, would allow employers engaged in composites manufacturing operations to follow the newer provisions of the NFPA 33. However, the Agency is concerned that the new NFPA 33 may not provide employee protection equivalent to the existing standard. OSHA believes additional information regarding the equivalency of the employee protection afforded by the newer requirements for composite spraying is needed. While OSHA's
4. Are the provisions in the 2003 edition of NFPA 30 as protective or more protective of employees' safety and health than the equivalent provisions in § 1910.106? Should OSHA revise § 1910.106 to be consistent with these provisions? Please submit specific available information or data supporting your comments.
5. Are the provisions in the 2003 edition of NFPA 33 as protective or more protective of employees' safety and health than the equivalent provisions in § 1910.107? Should OSHA revise § 1910.107 to be more consistent with these provisions? Please submit specific available information or data supporting your comments.
In 1994, OSHA revised the general industry safety standards regarding personal protective equipment (PPE) “to be more consistent with the current consensus regarding good industry practices, as reflected by the latest editions of the pertinent American National Standards Institute (ANSI) standards” (59 FR 16334). The revision includes a requirement for employers to perform a hazard assessment that would provide the information necessary for the employer to select the appropriate PPE for employees and to verify compliance by way of a written certification. As part of this revision the Agency added paragraphs § 1910.132(d), (e), and (f) as well as non-mandatory appendices A and B to Subpart I—Personal Protective Equipment. Appendix A contains a list of references and is provided for information purposes. Appendix B—Guidelines for Hazard Assessment and Personal Protective Equipment Selection was added to the subpart to provide specific guidance to employers and employees regarding eye, face, head, foot, and hand hazards.
In the final rule, OSHA determined that it was not necessary for employers to prepare and retain a formal written hazard assessment. However, in order to verify compliance the employer is required to prepare a written certification that would include the following: The person certifying that the evaluation had been performed; the dates of the hazard assessment; and a statement identifying the document as the certification of the hazard assessment required by the standard.
The ship repair, shipbuilding, and shipbreaking (
OSHA is concerned that the hazard assessment provisions in § 1910.132(d) and § 1915.152 lack specific documentation of the hazard assessment required to be performed by the employer, and are thus not sufficiently protective of employees' safety and health. Currently, employers in both industries are not required to document or post the results of the hazard assessment. Employers are only required to include the name of the person certifying, the date(s) of the hazard assessment, and in the General Industry standard § 1910.132, a statement that the document is a certification that the hazard assessment has been performed.
The Agency is interested in making the hazard assessment process more effective. One method the Agency is considering is to require employers to include the results of the hazard assessment (the hazards identified and the PPE needed to address those hazards) in a certification and to post the certification for review by employees. Another method being considered to increase effectiveness of the hazard assessment in § 1910.132 and § 1915.152 is to revise the respective Appendices and make them mandatory, adding a requirement to post the results of the assessment.
OSHA believes that all industries could benefit from doing a hazard assessment and in the interest of making rules consistent across all industries, we have included some questions on Construction (part 1926), Marine Terminals (part 1917), and Longshoring (part 1918) standards where there is no explicit requirement for a written PPE hazard assessment. There may be ways to revise these standards, such as a performance-based assessment, that are both feasible and not overly burdensome. OSHA is seeking answers to these questions and suggestions for effective alternatives.
OSHA is seeking comments on other options that the Agency should consider that would assure that employers conduct thorough hazard assessments and select the appropriate equipment to protect employees.
6. OSHA has identified posting requirements in many other standards to ensure employee notification. Are there other methods to inform employees of the hazard assessment results, such as additional training to inform employees of the findings, that are equally as effective or more effective?
7. Would adding a posting requirement to § 1910.132 and § 1915.152 be more or less protective
8. Are there other approaches to conducting hazard assessments for PPE that are more effective than Appendix B in § 1910.132 and Appendix A in § 1915.152?
9. Should similar revisions be considered for Construction (Part 1926), Marine Terminals (Part 1917), and Longshoring (Part 1918) standards?
Paragraph (o)(2) of this standard states “Appendix D of this section is non-mandatory;” however, paragraph (k)(6) of the standard specifies that the “basic advisory information on respirators, as presented in Appendix D of this section, shall be provided by the employer * * * to employees who wear respirators when such use is not required by this section or by the employer”. [Emphasis added.] The phrase “shall be provided” in paragraph (k)(6) mandates the employer to provide the “basic advisory information” in the appendix to the designated employees. Appendix D is also marked as “Mandatory” in the standard. Therefore, OSHA is considering removing paragraph (o)(2) from the standard and revising the preceding paragraph (o)(1) to include Appendix D among the list of mandatory appendices, which was OSHA's original intent.
10. Have employers understood that the requirement to provide Appendix D information to employees who voluntarily use respirators is a mandatory requirement?
11. Is the information contained in Appendix D appropriate for alerting employees to considerations related to voluntary respirator use?
12. To what extent, if any, would deleting paragraph (o)(2) and clarifying that Appendix D is mandatory increase the burden on employers?
The definition of potable drinking water in OSHA's current sanitation standard, § 1910.141, makes reference to U.S. Public Health Service Drinking Water Standards published in 42 CFR part 72. There are other agencies that have provisions relating to safe drinking water, such as the Food and Drug Administration (FDA) at Title 21 of the CFR, referring to the Environmental Protection Agency (EPA) at Title 40, specifically the Office of Water.
13. What is the appropriate updated reference that would provide an adequate definition for potable water? Are there other references or definitions for drinking water from other agencies or authoritative sources that OSHA should consider?
14. Are there other instances where a citation to another Federal Standard referenced in an OSHA standard is no longer correct?
In 1996, OSHA consolidated 13 similar standards for regulating carcinogenic chemicals into a single standard, § 1910.1003 (See 61 FR 9228, March 7, 1996). OSHA did not intend to make substantive changes to any of the 13 standards under that action. Where language among the 13 standards differed, the Agency attempted to design the regulatory text of the single rule to maintain the same substantive requirements of each standard. Four of these 13 standards, covering employee exposures to methyl chloromethyl ether, bis-chloromethyl ether, ethyleneimine, and beta-propiolactone, had a provision in former paragraph (c)(4)(iv) of each standard that provided respirator requirements that differed from those provided in the other nine standards. Specifically, this provision required employers to ensure that employees involved in handling any of these four carcinogenic chemicals wear full-facepiece, supplied-air respirators of the continuous-flow or pressure-demand type rather than half-mask respirators permitted under the other nine standards. The Agency inadvertently omitted this provision from the consolidated standard, thereby appearing to change the respirator requirement for those four substances. That was not intended; therefore, OSHA is considering reinstating the former respirator-use requirement in paragraph (c)(4)(iv) of § 1910.1003 for the four substances.
15. What types of respirators are currently being used to protect employees from exposure to these four chemicals?
16. If OSHA reinstates the requirements for full-facepiece air-supplied respirators, does the respirator-use requirement conflict with OSHA's Respiratory Protection Standard (§ 1910.134)?
17. Would the reinstated respirator use requirement be more or less protective than the protection offered by OSHA's Respiratory Protection Standard? Please provide any data or rationale to support your answer.
18. How would reinstating the respirator use requirement change the economic or paperwork burden?
The Agency's substance-specific standards usually require that employers initiate or implement protective actions, including exposure monitoring, medical surveillance, and exposure controls, at specific airborne concentrations of a toxic substance.
In several provisions of the lead standards (§ 1910.1025 and § 1926.62), the airborne concentrations at which protective actions must occur vary slightly. A number of provisions in the lead standards trigger actions at airborne concentrations, which are “above the AL,” and “at or above the PEL.” The terminology in the lead standards for these airborne concentrations is inconsistent and can be confusing. For example, § 1910.1025(d)(6)(iii) currently states that “[t]he employer shall continue monitoring at the required frequency until at least two consecutive measurements, taken at least 7 days apart, are below the PEL but at or above the action level[.]” OSHA is considering revising this to state “[t]he employer shall continue monitoring at the required frequency until at least two consecutive measurements, taken at least 7 days apart, are at or below the PEL but at or above the action level[.]” [Emphasis added.]
Similar issues arise with respect to the blood lead levels that trigger medical removal protection or return to work in the lead standards. OSHA is considering changing these terminologies in the lead standard(s) to make these internally consistent and consistent with each other. Table 1 describes the revisions being considered.
19. Would making the provisions of the lead standards more consistent with each other assist employers in complying with these standards?
20. Are there any increases to the economic or paperwork burden as a result of making the suggested changes? If increases are identified, please explain the impact.
21. Are there similar changes needed in other standards that would increase their consistency? Please explain the rationale for your suggestions.
Paragraph (m)(3) of the 1,3-butadiene standard (§ 1910.1051) for general industry requires employers to establish and maintain fit-testing records for employees who use respirators to reduce toxic exposures. However, paragraph (h)(2)(i) states that “employers must implement a respiratory protection program in accordance with OSHA's respiratory-protection standard § 1910.134 (b) through (d) * * * and (f) through (m).” The requirements to establish and maintain fit-testing records specified in paragraph (m)(2) of the respiratory-protection standard are essentially the same as the applicable recordkeeping requirements in paragraph (m)(3) of the 1,3-butadiene standard.
The Agency inadvertently failed to delete the recordkeeping provision in the 1,3-butadiene standard when it replaced many of the respiratory-protection requirements of health standards with the reference to the respiratory-protection standard in § 1910.134 (see 63 FR 1293–1294). OSHA believes that having two similar recordkeeping provisions is redundant and confusing. Therefore, the Agency is considering removing paragraph (m)(3) from the 1,3-butadiene standard for general industry.
22. To what extent, in any, does removing paragraph (m)(3) from 1,3-butadiene standard reduce protection?
23. Does removing this paragraph reduce employers' and employees' understanding of their obligations to keep respirator fit-test records?
24. Are there similar changes that can be made in other standards that would increase their consistency? Please explain the rationale for your suggestions.
The introductory paragraph to OSHA's respiratory-protection standard (§ 1910.134) specifies that the standard applies to ship repair, shipbuilding, and ship breaking (i.e. shipyards) (Part 1915), general industry (Part 1910), marine terminals (Part 1917), longshoring (Part 1918), and construction (Part 1926). Three of these parts, general industry, shipyards, and construction, contain standards regulating employee exposure to asbestos, with each of these standards having a paragraph entitled “Respirator program.” These paragraphs specify the requirements for an employer's respirator program with respect to asbestos exposure. In the final rulemaking for the respiratory-protection standard, the Agency updated these paragraphs in the asbestos standards for general industry and construction
Similarly, the Agency is considering removing paragraphs (h)(3)(ii), (h)(3)(iii), and the entirety of paragraph (h)(4) from the shipyard standard, which address filter changes, washing faces and facepieces to prevent skin irritation, and fit testing, respectively. OSHA believes this is appropriate because the continuing-use provisions specified in paragraph (g)(2)(ii) duplicate paragraphs (h)(3)(ii) and (h)(3)(iii) of the asbestos standard for shipyards. Also, the fit-testing requirements provided in paragraph (f) of the respiratory-protection standard either meet or exceed the provisions specified in (h)(4) of the shipyard asbestos standard except that the frequency of fit-testing is different. The current Shipyard asbestos standard at § 1915.1001 (4)(i) requires quantitative and qualitative fit-testing be performed initially and at least every six months thereafter. The Respirator standard at § 1910.134 (f)(2) requires employees wearing a tight-fitting respirator be fit-tested prior to initial use, whenever a different facepiece is used and at least annually thereafter.
By adding the reference to § 1910.134 (respirator standard) in § 1915.1001(h)(3)(i) of the shipyard
25. Would revising § 1915.1001(h)(3)(i) to be consistent with similar provisions in the asbestos standard for general industry and construction create additional compliance requirements?
26. Does this change maintain the same level of employee protection? Would making the recommended changes increase the economic or paperwork burden?
27. Besides altering the frequency of fit testing, how would making the recommended change to delete paragraphs (h)(3)(ii) through (h)(4)(ii) affect the requirements of the standard?
Many of OSHA's health standards are over 20 years old. Since their promulgation, there have been many technological advances, including changes in medical testing and industrial hygiene sampling. The Agency is interested in determining whether any of these new medical tests or industrial hygiene sampling technologies should be permitted for use in its health standards. The Agency is also interested in determining whether these tests or technologies would accomplish the identified task required by the standard as well as or better than the technologies identified in the current medical and sampling requirements.
28. Are there newer medical tests that would provide equivalent or better diagnostic results than the tests contained in OSHA's standards? For example, are there updated medical tests that could replace chest x-rays for diagnosing asbestos related diseases or Beta-2 microglobulin in urine for diagnosing kidney disease related to cadmium exposure?
29. Are there newer methods to determine personal exposures to hazards? For example, are there newer methods using passive sampling for different chemical exposures or an updated method to determine exposure to cotton dust better than the vertical elutriator cotton dust sampler?
Training is an essential part of every employer's safety and health program for protecting employees from injury and illness. Many OSHA standards specifically require that employers train employees in the safety and health aspects of their jobs. Other OSHA standards establish employers' responsibility to limit certain job assignments to employees who are “competent” or “qualified,” meaning that they have had specialized training.
In SIPs II, OSHA changed the notification and timing requirements in some health standards to make them more consistent across different health standards (67 FR 66493). OSHA did this to reduce regulatory confusion and facilitate compliance but without diminishing employee protection. Similarly, the Agency believes bringing consistency to its training requirements would achieve the same goals.
30. How could the Agency modify the training requirements in various OSHA safety and health standards to promote compliance with the training requirements?
31. How should training content and frequency of retraining be addressed to improve employees' safety and health? Please identify changes that could be made to improve the training process.
32. Would making training requirements uniform among various standards facilitate employers' compliance with OSHA regulations? Please explain.
33. To what extent, if any, do other agencies' training requirements overlap with OSHA's?
The original Commercial Diving Operations standard included a requirement in paragraph § 1910.411 that employers provide medical exams to dive team members. This paragraph was removed by a 1979 court decision [Taylor Diving and Salvage vs. U.S. Department of Labor (599 F.2d 622)(5th Cir., 1979)]. However, the current standard still includes a reference to paragraph § 1910.411 in paragraph (b)(3)(i) of § 1910.440, which requires employers to keep dive team medical records for five years. Since there is no longer a requirement for team medical exams, the requirement to keep such records for five years makes no sense. Therefore, OSHA intends to propose removing paragraph (b)(3)(i) of § 1910.440.
34. Is there any reason why this paragraph should not be deleted? Please explain.
35. Are there references in other standards that need to be updated?
Hazardous Ships' Stores (46 CFR 147) contains the following definition for ships' stores:
A definition of ships' stores is not contained in Marine Terminals (29 CFR 1917.2), Safety and Health Regulations for Longshoring (29 CFR 1918.2), and Gear Certification (29 CFR 1919.2), even though these OSHA standards contain the term. OSHA is considering adding the definition of ships' stores in 47 CFR 147 to these OSHA standards.
36. Is there any reason why this definition should not be added to the OSHA standards listed? If so, please explain your rationale for why this definition should not be added. Is there an alternative definition that OSHA should consider?
37. Are there other definitions that could be added to these or other standards to improve consistency?
In addition to solicitation of comment on the specific recommendations noted above, OSHA invites comment on other standards that are in need of improvement because they are confusing, outdated, duplicative, or inconsistent with similar standards. It would be helpful if you could provide information supporting your recommended changes. Please describe the reasons why you believe these regulations are confusing, outdated, duplicative or inconsistent and provide specific language that you believe will improve the standard.
38. Are there any standards that can be updated to make them more protective of employees' safety or health and at the same time reduce the compliance burden on employers?
39. Are there any standards that can be updated to be more protective of employees' safety or health without imposing any additional compliance burden on the employer?
40. Are there any other standards that need to be changed to reduce or eliminate inconsistencies between standards?
OSHA invites comments on all aspects of this advance notice of proposed rulemaking (ANPRM). Throughout this document, OSHA has invited comment on specific issues and requested information and data about practices at your establishment and in your industry. OSHA will carefully review and evaluate these comments, information and data, as well as all other information in the rulemaking record, to determine how to proceed.
You may submit comments and additional materials (1) electronically at
Because of security-related procedures, the use of regular mail may cause a significant delay in the receipt of submissions. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger or courier service, please contact the OSHA Docket Office at (202) 693–2350 (TTY (877) 889–5627).
Submissions are posted without change at:
Electronic copies of this
This document was prepared under the direction of Edwin G. Foulke, Jr., Assistant Secretary for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. It is issued pursuant to sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), 29 CFR 1911, and Secretary's Order 5–2002 (67 FR 65008).
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Agricultural Marketing Service, USDA.
Notice.
The Agricultural Marketing Service (AMS) of the Department of Agriculture (USDA) is establishing voluntary United States Standards for Grades of Pea Pods. The standards will provide industry with a common language and uniform basis for trading, thus promoting the orderly and efficient marketing of pea pods.
Cheri L. Emery, Standardization Section, Fresh Products Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Ave., SW., Room 1661, South Building, Stop 0240, Washington, DC 20250–0240, (202) 720–2185, fax (202) 720–8871, or e-mail
The United States Standards for Grades of Pea Pods are available either from the above address or by accessing the AMS, Fresh Products Branch Web site at:
Section 203(c) of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621–1627), as amended, directs and authorizes the Secretary of Agriculture, “To develop and improve standards of quality, condition, quantity, grade and packaging and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.” AMS is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities and provides copies of official standards upon request. The United States
AMS established the voluntary United States Standards for Grades of Pea Pods using the procedures that appear in part 36, title 7 of the Code of Federal Regulations (7 CFR part 36).
AMS developed a proposed U.S. Standards for Grades of Pea Pods. The proposal would establish U.S. Fancy and U.S. No. 1 “Grades,” “Tolerances,” and “Application of Tolerances” sections. Additionally, this proposal defines: “Injury,” “Damage,” “Serious Damage,” and basic requirements.
On January 24, 2006, a notice was published in the
A request was received from a packer/shipper of pea pods, expressing the need for additional time to review the proposed U.S. Standards. The packer/shipper requested an extension to the comment period to allow them the opportunity to submit comments. After reviewing the request, AMS reopened and extended the comment period by publishing a notice in the
AMS received one other response to the proposed standards. The comment was from an industry group representing about 90 percent of the fresh vegetables produced in California and Arizona. The association expressed support for the development of the standards for pea pods.
The comments are available by accessing the AMS, Fresh Products Branch Web site at:
Based on the comment received, specifically concerning the development of the standards and information gathered, AMS believes the standards will provide a common language for trading and promote the orderly and efficient marketing of pea pods. The official grades of pea pod lots covered by these standards will be determined by the procedures set forth in the Regulations Governing Inspection, Certification, and Standards of Fresh Fruits, Vegetables, and Other Products (Sec. 51.1 to 51.61).
The United States Standards for Grades of Pea Pods will be effective 30 days after publication of this notice in the
Authority: 7 U.S.C. 1621–1627.
Agricultural Marketing Service, USDA.
Notice.
The U.S. Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) is publishing this notice to inform accredited certifying agents and producers and handlers certified to the National Organic Program (NOP) of AMS' intention to release notices of noncompliance, and the identity of each entity which has been suspended or revoked, as well as the reasons for these actions. The release of these materials complies with the Freedom of Information Act (FOIA) in which any information that is not protected from disclosure by a FOIA exemption must be provided to the public.
Mark Bradley, Associate Deputy Administrator, National Organic Program, 1400 Independence Avenue, SW., Room 4008–S, Ag Stop 0268, Washington, DC, 20250–0268; Telephone: (202) 720–3252; Fax: (202) 205–7808; e-mail:
This notice is issued under the FOIA as amended, 5 U.S.C. 552, and the Organic Foods Production Act (OFPA) of 1990, as amended, 7 U.S.C. 6501
On April 12, 2006, AMS received a FOIA request for notices of noncompliance and records of suspension and revocation of certification and accreditation issued pursuant to the NOP. The Agency maintains the records sought by the FOIA requester pursuant to its administration of the OFPA.
The FOIA provides for any person to request and access federal agency records except for those records, or portions of records, which are protected by one of the nine exemptions under the FOIA. The records collected and maintained under the OFPA are not statutorily exempt from disclosure, and therefore in accordance with the FOIA and USDA's FOIA implementing regulations, 7 CFR part 1, AMS is required to release responsive records, or portions of responsive records, that are not protected from disclosure by any FOIA exemption.
Pursuant to 7 CFR 205.662, accredited certifying agents are obligated to issue noncompliance notifications, notices of suspension, and notices of revocation regarding NOP certification when circumstances warrant such action. Likewise, pursuant to 7 CFR 205.665, the NOP is obligated to issue notifications of noncompliance and notices of suspension and revocation of accreditation as warranted.
Some of the information contained in these notification letters, in particular those issued to certified operations, may contain confidential business information. Therefore, the agency will conduct a thorough review of those notification documents issued since implementation of the NOP on October 21, 2002, pursuant to 7 CFR 205.662 and 205.665, and in accordance with 5 U.S.C. 552(b)(4), withhold confidential commercial or financial information. Examples of the information which may appear in responsive records and that is subject to withholding include: Product formulations; supply sources; amount paid or owed in certification fees; sales volumes; yield quantities; amount of acreage planted to a specific crop or designated as pasture; the number of livestock units; the identity of an entity for which a private label is produced.
Animal and Plant Health Inspection Service, USDA.
Notice of meeting.
We are giving notice of a meeting of the General Conference Committee of the National Poultry Improvement Plan.
The meeting will be held on January 24, 2007, from 1 p.m. to 5 p.m.
The meeting will be held at the Georgia World Congress Center, 285 Andrew Young International Boulevard, NW., Atlanta, GA.
Mr. Andrew R. Rhorer, Senior Coordinator, National Poultry Improvement Plan, VS, APHIS, 1498 Klondike Road, Suite 101, Conyers, GA 30094, (770) 922–3496.
The General Conference Committee (the Committee) of the National Poultry Improvement Plan (NPIP), representing cooperating State agencies and poultry industry members, serves an essential function by acting as liaison between the poultry industry and the Department in matters pertaining to poultry health. In addition, the Committee assists the Department in planning, organizing, and conducting the NPIP Biennial Conference.
Topics for discussion at the upcoming meeting include:
1. H5/H7 low pathogenic avian influenza program for commercial layers, broilers, and turkeys;
2. Compartmentalization of notifiable avian influenza free zones;
3. National animal identification program for poultry; and
4. Cleaning, disinfection, and bird disposal costs for commercial poultry flocks.
The meeting will be open to the public. However, due to time constraints, the public will not be allowed to participate in the discussions during the meeting. Written statements on meeting topics may be filed with the Committee before or after the meeting by sending them to the person listed under
This notice of meeting is given pursuant to section 10 of the Federal Advisory Committee Act.
1.
The recommended plan for the Cape Cod Watershed involves works of improvement to be installed under authorities administered by NRCS. This areawide planning Project
The Cape Cod Watershed plan was prepared under the authority of the Watershed Protection and Flood Prevention Act (Public Law 566, 83rd Congress, 68 Stat. 666, as amended) by the Cape Cod Conservation District, Barnstable County Commissioners, the 15 towns of Barnstable County, and the Massachusetts Executive Office of Environmental Affairs. The scoping meeting, held during May 2005, established the NRCS, U.S. Department of Agriculture, as lead agency.
2.
The interdisciplinary environmental evaluation of the Cape Cod Water Resources Restoration Project was conducted by the sponsoring local organizations, cooperating agencies, and the NRCS. Information was obtained from many groups and agencies. An inventory and evaluation of environmental and socioeconomic conditions were prepared by Massachusetts NRCS and EA Engineering, Science, and Technology under a contract with NRCS. Reviews were held with the U.S. Environmental Protection Agency, U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, National Oceanic and Atmospheric Administration, National Park Service, Massachusetts Executive Office of Environmental Affairs, State Historic Preservation Officer, and the Tribal Historic Preservation Officer of the Wampanoag Tribe of Gay Head (Aquinnah). Inputs from these reviews were included in the EIS.
A public meeting was held on May 18, 2005, to solicit public participation in the environmental evaluation, to assure that all interested parties had sufficient information to understand how their concerns are affected by water resource problems, to afford local interests the opportunity to express their views regarding the plans that can best solve these problems, and to provide all interests an opportunity to participate in the plan selection. More than 400 parties were notified by mail of the joint public meetings. Meeting notes are on file at the NRCS State Office.
Testimony and recommendations were received relative to the following subjects:
a. Support for projects to treat stormwater runoff as a means for improving water quality and keeping shellfish beds open for recreational and commercial use.
b. Support for projects to restore fish passageways on local streams.
c. Support for projects to restore tidal flushing to salt marshes with restricted tidal openings.
A draft Environmental Impact Statement (EIS) was prepared in August 2006 and made available for public review. The recommendations and comments obtained from the public meeting held during Project planning and assessment were considered in the preparation of the draft EIS.
The draft EIS was distributed to agencies, conservation groups, organizations, and individuals for comment. Copies were also placed in the libraries of all 15 towns in the watershed, and the draft EIS was made available on the Massachusetts NRCS Web site. The draft EIS was filed with the Environmental Protection Agency on August 3, 2006, and notices of the availability of the draft EIS for public review were published in the
Existing data and information pertaining to the Project's probable environmental consequences were obtained with assistance from other scientists and engineers. Documentary information as well as the views of interested Federal, State, and local agencies and concerned individuals and organizations having special knowledge of, competence over, or interest in the Project's environmental impacts were sought. This process continued until it was felt that all the information necessary for a comprehensive, reliable assessment had been gathered.
A complete picture of the Project's current and probable future environmental setting was assembled to determine the proposed Project's impact and identify unavoidable adverse environmental impacts that might be produced. During these phases of evaluation, it became apparent that there are legitimate conflicts of scientific theory and conclusions leading to differing views of the Project's environmental impact. In such cases, after consulting with persons qualified in the appropriate disciplines, those theories and conclusions appearing to be the most reasonable, and having scientific acceptance were adopted.
The consequences of a full range of reasonable and viable alternatives to specific improvements were considered, studied, and analyzed. In reviewing these alternatives, all courses of action that could reasonably accomplish the Project purposes were considered. Attempts were made to identify the economic, social, and environmental values affected by each alternative. Both structural and nonstructural alternatives were considered.
The alternatives considered reasonable alternatives to accomplish the project's objectives were (1) Water Resources Restoration Alternative, (2) No Action Alternative.
3.
a. The Cape Cod Water Resources Restoration Project will employ reasonable and practicable means that are consistent with the National Environmental Policy Act while permitting the application of other national policies and interests. These means include, but are not limited to, a Project planned and designed to minimize adverse effects on the natural environment while accomplishing an authorized Project purpose. Project features designed to preserve existing environmental values for future generations include: (1) Replacement of inadequately sized or failed culverts with larger culverts or bridges to restore tidal flushing to salt marshes; (2) reconstruction of failed fish passageways, replacement of collapsed or improperly aligned curves, or removing restrictions at bridges to provide full access to upstream spawning and nursery areas for anadromous fish; and (3) installation of catch basins and infiltration systems or other cost-effective alternatives to treat stormwater runoff, reduce bacteria loading to tidal receiving waters, and help keep shellfish beds open.
b. The Cape Cod Water Resources Restoration Project was planned using a systematic interdisciplinary approach involving integrated uses of the natural and social sciences and environmental design arts. All conclusions concerning the environmental impact of the Project and overall merit of existing plans were based on a review of data and information that would be reasonably expected to reveal significant environmental consequences of the proposed Project. These data included studies prepared specifically for the Project and comments and views of all interested Federal, State, and local agencies and individuals. The results of this review constitute the basis for the conclusions and recommendations. The Project will not affect any cultural resources eligible for inclusion in the National Register of Historic Places. Nor will the Project affect any species of fish, wildlife, or plant or their habitats that have been designated as endangered or threatened.
c. In studying and evaluating the environmental impact of the Cape Cod Water Resources Restoration Project, every effort was made to express all significant environmental values quantitatively and to identify and give appropriate weight and consideration of nonquantifiable environmental values.
d. Wherever legitimate conflicts of scientific theory and conclusions existed and conclusions led to different views, persons qualified in the appropriate environmental disciplines were consulted. Theories and conclusions appearing to be most reasonable scientifically acceptable, or both, were adopted.
e. Every possible effort has been made to identify those adverse environmental effects that cannot be avoided if the Project is constructed.
f. The long-term and short-term resource uses, long-term productivity, and the irreversible and irretrievable commitment of resources are described in the final EIS.
g. All reasonable and viable alternatives to Project features and to the Project itself were studied and analyzed with reference to national policies and goals, especially those expressed in the National Environmental Policy Act and the Federal water resource development legislation under which the Project was planned. Each possible course of action was evaluated as to its possible economic, technical, social, and overall environmental consequences to determine the tradeoffs necessary to accommodate all national policies and interests. Some alternatives may tend to protect more of the present and tangible environmental amenities than the proposed Project will preserve. However, no alternative or combination of alternatives will afford greater protection of the environmental values while accomplishing the other Project goals and objectives.
h. I conclude, therefore, that the proposed Project will be the most effective means of meeting national goals and is consistent in serving the public interest by including provisions to protect and enhance the environment. I also conclude that the recommended plan is the environmentally preferable plan.
4.
Natural Resources Conservation Service (NRCS), USDA.
Notice of determination.
The Natural Resources Conservation Service (NRCS) is providing public notice that the Secretary of Agriculture has determined the cost-share payments made under the Commonwealth of Massachusetts' Small Renewables Initiative Program are primarily for the purpose of protecting or restoring the environment. NRCS was assigned technical and administrative responsibility for reviewing the Commonwealth of Massachusetts' Program and making appropriate recommendations for the Secretary's determination of primary purpose. This determination is in accordance with Section 126 of the Internal Revenue Code of 1954, as amended (26 U.S.C. 126), and permits recipients of cost-share payments to exclude from gross income to the extent allowed by the Internal Revenue Service.
Mr. Philip F. Holahan, Deputy Executive Director and General Counsel, Massachusetts Technology Collaborative, 75 North Drive, Westborough, Massachusetts 01581 or Branch Chief, Environmental Improvement Programs, Natural Resources Conservation Service, 1400 Independence Avenue, SW., Washington, DC 20250.
Under section 126(a)(10) of the Internal Revenue Code, gross income does not include the “excludable portion” of payments received under any program of a State under which payments are made to individuals primarily for the purpose of protecting or restoring the environment. In general, a cost-share payment for selected conservation practices is exempt from Federal taxation, if it meets three tests: (1) It was for a capital expense, (2) it does not substantially increase the operator's annual income from the property for which it is made, and (3) the Secretary of Agriculture certified that the payment was made primarily for conserving soil and water resources, protecting or restoring the environment, improving forests, or providing habitat for wildlife.
The Secretary of Agriculture evaluates a conservation program on the basis of criteria set forth in 7 CFR part 14, and makes a “primary purpose” determination for the payments made under the program. The objective of the determinations made under part 14 is to provide maximum conservation, environmental, forestry improvement, and wildlife benefits to the general public from the operation of applicable programs. Final determinations are made on the basis of program, category of practices, or individual practices. Following a primary purpose determination by the Secretary of Agriculture, the Secretary of the Treasury determines if the payments made under the conservation program substantially increase the annual income derived from the property benefited by the payments.
The Massachusetts Technology Park Corporation uses the Small Renewables Initiative Program to offer cost-share incentives for the installation of small renewable energy systems, totaling not more that 10kw of capacity per installation. The objectives of the program are met through a market-based incentive structure that is designed to provide a level of support that will promote the installation of renewables, and encourage a paradigm shift toward increased adoption of renewable energy technologies and energy-efficient, high-performance design elements in Massachusetts buildings. By promoting renewable energy sources, the Small Renewables Initiative Program reduces the negative environmental impacts generally associated with more traditional methods of electricity generation.
As provided for by Section 126 of the Internal Revenue Code, the Secretary examined the authorizing legislation, regulations, and operating procedures regarding the identified programs. In accordance with the criteria setout in 7 CFR part 14, the Secretary has determined the cost-share payments made under the Commonwealth of Massachusetts' Small Renewables Initiative Program are primarily for the purpose of protecting and restoring the environment.
A “Record of Decision” has been prepared and is available upon request from the Branch Chief, Environmental Improvement Programs, Natural Resources Conservation Service, 1400 Independence Avenue, SW., Washington, DC 20250.
Signed in Washington, DC.
Import Administration, International Trade Administration, Department of Commerce.
On January 3, 2006, the Department of Commerce initiated and the International Trade Commission instituted a sunset review of the antidumping duty order on silicon metal from Brazil. As a result of the review, the International Trade Commission determined that revocation of the order on silicon metal from Brazil would not be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time. Therefore, the Department of Commerce is revoking this antidumping duty order.
February 16, 2006.
Janis Kalnins or Minoo Hatten, Office 5, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482–1392 and (202) 482–1690, respectively.
The merchandise covered by this order is silicon metal from Brazil containing at least 96.00 percent but less than 99.99 percent silicon by weight. Also covered by this order is silicon metal from Brazil containing between 89.00 and 96.00 percent silicon by weight but which contains more aluminum than the silicon metal containing at least 96.00 percent but less than 99.99 percent silicon by weight. Silicon metal is currently provided for under subheadings 2804.69.10 and 2804.69.50 of the Harmonized Tariff Schedule (HTS) as a chemical product, but is commonly referred to as a metal. Semiconductor grade silicon (silicon metal containing by weight not less than 99.99 percent silicon and provided for in subheading 2804.61.00 of the HTS) is not subject to the order. Although the
On February 16, 2001, the Department of Commerce (the Department) published the continuation of the antidumping duty order on silicon metal from Brazil resulting from the first sunset review of this order.
As a result of the determination by the ITC that revocation of this antidumping duty order is not likely to lead to continuation or recurrence of material injury to an industry in the United States, the Department is revoking the order on silicon metal from Brazil, pursuant to section 751(d) of the Act. Pursuant to section 751(d)(2) of the Act and 19 CFR 351.222(i)(2)(i), the effective date of revocation is February 16, 2006 (i.e., the fifth anniversary of the date of publication in the
This five–year sunset review and notice are in accordance with section 751(d)(2) and published pursuant to section 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (“Department”) and the International Trade Commission (“ITC”) that revocation of the antidumping duty order on silicon metal from the People's Republic of China (“PRC”) would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States, the Department is publishing this notice of continuation of the antidumping duty order.
December 21, 2006.
FOR INFORMATION CONTACT: Michael Quigley or Juanita Chen, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone: (202) 482–4047 or (202) 482–1904.
On January 3, 2006, the Department initiated sunset reviews of the antidumping duty orders on silicon metal from the PRC and Brazil pursuant to section 751(c) of the Tariff Act of 1930, as amended (“Act”).
The merchandise covered by this order is silicon metal containing at least 96.00 but less than 99.99 percent of silicon by weight. All of the foregoing are constructed of steel and are enameled or glazed with vitreous glasses. The merchandise is currently classifiable under subheadings 2804.69.10 and 2804.69.50 of the Harmonized Tariff Schedule of the United States (“HTSUS”) as a chemical product, but is commonly referred to as a metal. HTSUS items numbers are provided for convenience and customs purposes. The written description of the scope remains dispositive.
In response to a request from petitioners, on February 3, 1993, the Department clarified that silicon metal, with a high aluminum content and a silicon content of at least 89.00 percent but less than 99.99 percent, is within the scope of the order.
As a result of the determinations by the Department and the ITC that revocation of the antidumping duty
The effective date of continuation of this order will be the date of publication in the
This five-year (sunset) review and notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
December 21, 2006.
Scot Fullerton or Mike Quigley, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482–1386 and (202) 482–4047, respectively.
The Department received timely requests from Shanghai Jinneng International Trade Co., Ltd. (“Shanghai Jinneng”) and Jiangxi Gangyuan Silicon Industry Co., Ltd. (“Jiangxi Gangyuan”) in accordance with 19 CFR 351.214(c) for new shipper reviews of the antidumping duty order on silicon metal from the People's Republic of China. On July 25, 2006, the Department found that the requests for review with respect to Shanghai Jinneng and Jiangxi Guangyuan met all of the regulatory requirements set forth in 19 CFR 351.214(b) and initiated these new shipper antidumping duty reviews covering the period June 1, 2005, through May 30, 2006.
Section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (“the Act”), and 19 CFR 351.214(i)(1) require the Department to issue the preliminary results of a new shipper review within 180 days after the date on which the new shipper review was initiated and final results of a review within 90 days after the date on which the preliminary results were issued. The Department may, however, extend the deadline for completion of the preliminary results of a new shipper review to 300 days if it determines that the case is extraordinarily complicated.
The Department has determined that the review is extraordinarily complicated as the Department must gather additional publicly available information on surrogate values to use for a highly complex and technical process involving specialized inputs, evaluate the complex corporate structures of both respondents, issue additional supplemental questionnaires, and conduct verifications of both respondents. Based on the timing of the case and the additional information that must be gathered and verified, the preliminary results of this new shipper review cannot be completed within the statutory time limit of 180 days. Accordingly, the Department is extending the time limit for the completion of the preliminary results of the new shipper reviews of Shanghai Jinneng and Jiangxi Guangyuan by 120 days from the original January 14, 2007, deadline. The preliminary results for both new shipper reviews will now be due May 14, 2007, in accordance with section 751(a)(2)(B)(iv) of the Act and 19 CFR 351.214(i)(2). The final results will, in turn, be due 90 days after the date of issuance of the preliminary results, unless extended.
This notice is published pursuant to sections 751(a)(2)(B)(iv) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
December 21, 2006.
Maura Jeffords or Eric Greynolds, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW, Washington, DC 20230, telephone: (202) 482–3146 or 6071, respectively.
Section 702 of the Trade Agreements Act of 1979 (as amended) (“the Act”) requires the Department of Commerce (“the Department”) to determine, in consultation with the Secretary of Agriculture, whether any foreign government is providing a subsidy with respect to any article of cheese subject to an in–quota rate of duty, as defined in section 702(h) of the Act, and to publish an annual list and quarterly updates of the type and amount of those subsidies. We hereby provide the Department's quarterly update of subsidies on articles of cheese that were imported during the period July 1, 2006, through September 30, 2006.
The Department has developed, in consultation with the Secretary of Agriculture, information on subsidies (as defined in section 702(h) of the Act) being provided either directly or indirectly by foreign governments on articles of cheese subject to an in–quota rate of duty. The appendix to this notice lists the country, the subsidy program or programs, and the gross and net amounts of each subsidy for which information is currently available. The Department will incorporate additional programs which are found to constitute subsidies, and additional information on the subsidy programs listed, as the information is developed.
The Department encourages any person having information on foreign government subsidy programs which benefit articles of cheese subject to an
This determination and notice are in accordance with section 702(a) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that Dr. Doug Peterson (Permit Holder and Principal Investigator), Warnell School of Forest Resources (Fisheries Division), University of Georgia, Athens, GA 30602 (File No. 1420–01) has been issued a modified permit to conduct scientific research on shortnose sturgeon (
The permit and related documents are available for review upon written request or by appointment in the following offices:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713–2289; fax (301)713–0376; and
Southeast Region, NMFS, 263 13
Malcolm Mohead or Brandy Hutnak, (301)713–2289.
On November 10, 2005, notice was published in the
Dr. Peterson is authorized to conduct a study of shortnose sturgeon in the Altamaha River, Georgia, to collect information on the status of the population of shortnose sturgeon in the Altamaha River and Estuary. The goals and methods employed in the modification will be consistent with the original permit and provide critical data on stock status, life history, and survival rates as well as to identify specific habitat requirements of the various life stages of shortnose sturgeon in the Altamaha River.
In his initial application, Dr. Peterson's request for an annual take of 200 adults and juvenile shortnose sturgeon was based on previous studies that suggested the Altamaha River population contained less than 1,000 total individuals. After 2 years of study, Dr. Peterson made two revised estimates supporting 5,000 and 6,320 individuals respectively in the Altamaha River. Therefore, to obtain a more meaningful population estimate with a reasonable confidence interval, Dr. Peterson is authorized to increase the number of shortnose to be marked and released annually to 1,000, an increase of 800 sturgeon. Additionally, 12 adult shortnose sturgeon annually (from the 1000 per year above) are permitted in the take for sex ratio determination by laparoscopic methods and for performing blood work. The remaining adult and juvenile fish (up to 30 total) scheduled to receive an internal radio-sonic tracking transmitter, are also authorized to be examined laparoscopically for sex ratio verification. Lastly, the annual incidental lethal take of adult or juvenile sturgeon is increased from 0 to 2 animals.
Issuance of this permit, as required by the ESA, was based on a finding that such permit (1) was applied for in good faith, (2) will not operate to the disadvantage of the endangered species which is the subject of this permit, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of initiation of a status review under the Endangered Species Act (ESA); request for information.
We, NMFS, announce the initiation of a status review for the Atlantic white marlin (
Information regarding the status of and threats to the Atlantic white marlin must be received by February 20, 2007.
You may submit information on the Atlantic white marlin by any one of the following methods:
• Fax: 727–824–5309, Attention: Dr. Stephania Bolden
• Mail: Information on paper, disk or CD-ROM should be addressed to the Assistant Regional Administrator for Protected Resources, NMFS Southeast Regional Office, 263 13
• E-mail:
Dr. Stephania Bolden, NMFS, Southeast Regional Office (727) 824–5312, or Ms. Marta Nammack, NMFS, Office of Protected Resources (301) 713–1401.
We conducted a status review of the Atlantic white marlin under the ESA and published a 12-month determination that listing was not warranted (67 FR 57204; September 9, 2002). As a result of subsequent litigation and a settlement agreement with the Center for Biological Diversity, we agreed to initiate a status review following the 2006 stock assessment by the International Commission for the Conservation of Atlantic Tunas (ICCAT); the 2006 ICCAT white marlin stock assessment can be found at
To support this status review, we are soliciting information relevant to the status of and threats to the species, including, but not limited to, information on the following topics: (1) historical and current abundance and distribution of the species and congeners throughout the species range; (2) potential factors for the species' decline throughout the species range; (3) rates of capture and release of the species from both recreational and commercial fisheries; (4) post-release mortality; (5) life history information (size/age at maturity, growth rates, fecundity, reproductive rate/success, etc.); (6) morphological and molecular information to assist in determining taxonomy of this species and congeners; (7) threats to the species, particularly: (a) present or threatened destruction, modification, or curtailment of habitat or range; (b) over-utilization for commercial, recreational, scientific, or educational purposes; (c) disease or predation, (d) inadequacy of existing regulatory mechanisms, or (e) other natural or manmade factors affecting its continued existence; and (8) any ongoing conservation efforts for the species. See
16 U.S.C. 1531
Department of the Navy, DoD.
Notice.
Pursuant to Section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969, as implemented by the Council on Environmental Quality regulations (40 CFR parts 1500–1508), and Presidential Executive Order 12114 (Environmental Effects Abroad of Major Federal Actions), the Department of the Navy (DON) announces its intent to prepare an Environmental Impact Statement (EIS)/Overseas Environmental Impact Statement (OEIS) to evaluate the potential environmental effects associated with conducting naval readiness activities in the Southern California (SOCAL) Range Complex (to include the San Clemente Island (SCI) Range Complex). DON proposes to support current, emerging, and future military activities in the SOCAL and SCI Range Complexes as necessary to achieve and sustain Fleet readiness, including military training; research, development, testing, and evaluation (RDT&E) of systems, weapons, and platforms; and investment in range resources and range infrastructure, all in furtherance of our statutory obligations under Title 10 of the United States Code governing the roles and responsibilities of the DON.
On August 17, 1999, DON initiated the NEPA process for an EIS/OEIS evaluating the impacts of DON activities at the SCI Range Complex by publishing a Notice of Intent in the
1. Wednesday, January 29, 2007, 6 p.m.–8 p.m., Cabrillo Marine Aquarium Library, 3720 Stephen M. White Drive, San Pedro, CA.
2. Tuesday, January 30, 2007, 6 p.m.–8 p.m., Oceanside Civic Center Library, 330 North Coast Highway, Oceanside, CA.
3. Wednesday, January 31, 2007, 6 p.m.–8 p.m., Coronado Public Library, 640 Orange Avenue, Coronado, CA.
Each meeting will consist of an information session staffed by DON representatives, to be followed by a presentation describing the proposed action and alternatives. Written comments from interested parties are encouraged to ensure that the full range of relevant issues is identified. Members of the public can contribute oral or written comments at the scoping meetings, or written comments by mail or fax, subsequent to the meetings. Additional information concerning the scoping meetings is available at:
Ms. Diori Kreske, Naval Facilities Engineering Command Southwest, 2585 Callaghan Hwy., San Diego, CA 92136–5198; telephone 619–556–8706.
The SOCAL Range Complex is a suite of land ranges and training areas, surface and subsurface ocean ranges and operating areas, and military airspace that is centrally managed and controlled by DON agencies. The complex geographically encompasses near-shore and offshore surface ocean operating areas and extensive military Special Use Airspace generally located between Marine Corp Base Camp Pendleton to the north and San Diego to the south. It extends more than 600 miles to the southwest in the Pacific Ocean covering approximately 120,000 square nautical miles of ocean area. The SCI Range Complex is geographically encompassed by the SOCAL Range Complex. The SCI Range Complex consists of land ranges and training areas on San Clemente Island and certain near-island ocean operating areas and ranges.
Collectively, the components of the SOCAL Range Complex provide the space and resources needed to execute training events across the training continuum, from individual skills training to complex joint exercises. The mission of the SOCAL Range Complex is to support DON, Marine Corps, and joint (multi-service) training by maintaining and operating range facilities and by providing range services and support to the Pacific Fleet, U.S. Marine Corps Forces Pacific, and other forces and military activities. The Commander, Fleet Forces Command and Commander, U.S. Pacific Fleet are responsible for operations, maintenance, training, and support of this national training asset.
Naval transformation initiatives determine current, emerging, and future requirements for training access to the SOCAL Range Complex. Moreover, recent world events have placed the U.S. military on heightened alert in the defense of the U.S., and in defense of allied nations. At this time, the U.S. military, and specifically the U.S. Navy, is actively engaged in anti-terrorism efforts around the globe. Title 10 U.S. Code Section 5062 directs the Chief of Naval Operations to maintain, train, and equip all naval forces for combat so that they are capable of winning wars, deterring aggression, and maintaining freedom of the seas. To achieve this level of readiness, naval forces must have access to ranges, operating areas (OPAREAs), and airspace where they can develop and maintain skills for wartime missions and conduct RDT&E of naval weapons systems. As such, DON ranges, OPAREAs, and airspace must be maintained and/or enhanced to accommodate necessary training and testing activities in support of national security objectives.
The proposed action, therefore, responds to DON's need to: (1) Maintain baseline operations at current levels; (2) accommodate future increases in operational training tempo in the SOCAL and SCI Range Complexes as necessary to support the deployment of naval forces; (3) achieve and sustain readiness in ships and squadrons so that the DON can quickly surge significant combat power in the event of a national crisis or contingency operation and consistent with Fleet Readiness Training Plan; (4) support the acquisition, testing, training, and introduction into the Fleet of advanced platforms and weapons systems; and, (5) implement investments to optimize range capabilities required to adequately support required training. DON will meet these needs and maintain the long-term viability of the SOCAL Range Complex, while protecting human health and the environment.
Three alternatives will be evaluated in the EIS/OEIS, including: (1) The No Action Alternative, comprised of baseline operations and support of existing range capabilities; (2) Alternative 1 comprised of the No Action Alternative plus additional operations on upgraded/-modernized existing ranges; and (3) Alternative 1 plus new ranges, new dedicated capabilities, additional increased tempo (beyond Alternative 1) to optimize training in support of future contingencies. The analysis will address potentially significant direct, indirect, and cumulative impacts on biological resources, land use, air quality, water quality, water resources, and socioeconomics, as well as other environmental issues that could occur with the implementation of the DON's proposed actions and alternatives.
The DON is initiating the scoping process to identify community concerns and local issues to be addressed in the EIS/OEIS. Federal, State, and local agencies, and interested parties are encouraged to provide oral and/or written comments to the DON that identify specific issues or topics of environmental concern that should be addressed in the EIS/OEIS. Written comments must be postmarked by February 8, 2007, and should be mailed to: Naval Facilities Engineering Command Southwest, 2585 Callaghan Hwy., San Diego, CA 92136–5198; Attention: Ms. Diori Kreske, telephone 619–556–8706.
Department of Education.
Notice of proposed information collection requests.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
An emergency review has been requested in accordance with the Act (44 U.S.C. Chapter 3507 (j)), since public harm is reasonably likely to result if normal clearance procedures are followed. Approval by the Office of Management and Budget (OMB) has been requested by January 22, 2007. A regular clearance process is also beginning. Interested persons are invited to submit comments on or before February 20, 2007.
Written comments regarding the emergency review should be addressed to the Office of Information and Regulatory Affairs, Attention: Rachael Potter, Desk Officer, Department of Education, Office of Management and Budget; 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503 or faxed to (202) 395–6974.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Director of OMB provide interested Federal agencies and the
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before January 22, 2007.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Rachel Potter, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503 or faxed to (202) 395–6974.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
United States Election Assistance Commission.
Notice of public teleconference meetings for the working subcommittees of the Technical Guidelines Development Committee.
Tuesday, January 9, 2007, 10:30 a.m. EST; Thursday, January 11, 2007, 11 a.m. EST; Friday, January 12, 2006, 11 a.m. EST: Tuesday, January 23, 2007, 10:30 a.m. EST; Friday, January 26, 2007, 11 a.m. EST; Thursday, February 1, 2007, 11 a.m. EST; Tuesday, February 6, 2007, 10:30 a.m. EST; Friday, February 9, 2007, 11 a.m. EST; Thursday, February 15, 2007, 11 a.m. EST; Tuesday, February 20, 2007, 10:30 a.m. EST; Friday, February 23, 2007, 11 a.m. EST; Thursday, March 1, 2007, 11 a.m. EST; Friday, March 2, 2007, 11 a.m. EST; Tuesday, March 6, 2007, 10:30 a.m. EST; Friday, March 9, 2007, 11 a.m. EST; Thursday, March 15, 2007, 11 a.m. EDT; Friday, March 16, 2007, 11 a.m. EDT; Tuesday, March 20, 2007, 10:30 a.m. EDT.
Audio recordings of working subcommittee teleconferences are available upon conclusion of each meeting at:
The Technical Guidelines Development Committee (the “Development Committee”) was established to act in the public interest to assist the Executive Director of the U.S. Election Assistance Commission (EAC) in the development of voluntary voting system guidelines. The Committee held their first plenary meeting on July 9, 2004. At this meeting, the Development Committee agreed to a resolution forming three working groups: (1) Human Factors & Privacy; (2) Security & Transparency; and (3) Core Requirements & Testing to gather and analyze information on relevant issues. These working subcommittees propose resolutions to the TGDC on best practices, specifications and standards. Specifically, NIST staff and Committee members will meet via the above scheduled teleconferences to review and discuss progress on tasks defined in resolutions passed at Development Committee plenary meetings. The resolutions define technical work tasks for NIST that will assist the Committee in developing recommendations for voluntary voting system guidelines. The Committee met in its seventh plenary session on December 4–5, 2007. Documents and transcriptions of Committee proceedings are available at:
The Technical Guidelines Development Committee (the “Development Committee”) was established pursuant to 42 U.S.C. 15361, to act in the public interest to assist the Executive Director of the Election Assistance Commission in the development of the voluntary voting system guidelines. The information gathered and analyzed by the working subcommittees during their teleconference meetings will be reviewed at future Development Committee plenary meetings.
Allan Eustis 301–975–5099. If a member of the public would like to submit written comments concerning the Committee's affairs at any time before or after subcommittee teleconference meetings, written comments should be addressed to the contact person indicated above, or to
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR § 385.211 and § 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before January 22, 2007.
Submit your comments, referencing docket ID number EPA–HQ–OECA–2006–0445, to (1) EPA online using
For questions about this ICR, contact Zofia Kosim, Air Enforcement Division, Office Civil Enforcement, Mail Code 2242A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; phone number: (202) 564–8733; fax number: (202) 564–0068; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On June 21, 2006, (71 FR 35652), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments.
EPA has established a public docket for this ICR under docket ID number EPA–OECA–2006–0445, which is available for public viewing online at
Use EPA's electronic docket and comments system at
Environmental Protection Agency (EPA).
Notice of final action.
This notice announces that on November 22, 2006, the Environmental Appeals Board (EAB) of the EPA dismissed with predjudice a petition for review of a federal Prevention of Significant Deterioration (PSD) permit issued to City of Springfield, Illinois, by the Illinois Environmental Protection Agency (IEPA).
The effective date for the EAB's decision is November 22, 2006. Pursuant to Section 307(b)(1) of the Clean Air Act, 42 U.S.C. 7607(b)(1), judicial review of this permit decision, to the extent it is available, may be sought by filing a petition for review in the United States Court of Appeals for the Seventh Circuit within 60 days of
The documents relevant to the above action are available for public inspection during normal business hours at the following address: Environmental Protection Agency, Region 5, 77 West Jackson Boulevard (AR–18J), Chicago, Illinois 60604. To arrange viewing of these documents, call Constantine Blathras at (312) 886–0671.
Constantine Blathras, Air and Radiation Division, Air Programs Branch, Environmental Protection Agency, Region 5, 77 W. Jackson Boulevard (AR–18J), Chicago, Illinois 60604. Anyone who wishes to review the EAB decision can obtain it at
The IEPA, acting under authority of a PSD delegation agreement, issued a PSD permit to the City of Springfield on August 10, 2006, granting approval to construct a new 250 megawatt coal-fired electric generating unit at the City of Springfield's existing power plant in Sangamon County, Illinois. On September 12, 2006, the Sierra Club filed a petition for review of the conditions of the Prevention of Significant Deterioration Permit No. 167120AAO (Application No. 041 10050) which was issued to the City of Springfield, lllinois. On November 17, 2006, the Sierra Club voluntarily withdrew its petition for review in this matter and requested that the EAB enter an order dismissing its petition for review in this matter with prejudice. The Sierra Club requested dismissal because the parties had reached an agreement that obviated the need for further litigation. On November 22, 2006, the EAB granted the Sierra Club's motion and the petition for review was dismissed with prejudice.
Environmental Protection Agency (EPA).
Notice of Final 2006 Effluent Guidelines Program Plan.
EPA establishes national technology-based regulations known as effluent guidelines and pretreatment standards to reduce pollutant discharges from categories of industry discharging directly to waters of the United States or discharging indirectly through Publicly Owned Treatment Works (POTWs). The Clean Water Act (CWA) sections 301(d), 304(b), 304(g), and 307(b) require EPA to annually review these effluent guidelines and pretreatment standards.
Submit your comments, data and information for the 2007 annual review, identified by Docket ID No. EPA–HQ–OW–2006–0771, by one of the following methods:
(1)
(2) E-mail:
(3) Mail: Water Docket, Environmental Protection Agency, Mailcode: 4203M, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA–HQ–OW–2006–0771. Please include a total of 3 copies.
(4) Hand Delivery: Water Docket, EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID No. EPA–HQ–OW–2006–0771. Such deliveries are only accepted during the Docket's normal hours of operation and special arrangements should be made.
Key documents providing additional information about EPA's annual reviews and the final 2006 Effluent Guidelines Program Plan include the following:
• Interim Detailed Study Report for the Steam Electric Power Generating Point Source Category, EPA–821–R–06–015, DCN 3401;
• Final Report: Pulp, Paper, and Paperboard Detailed Study, EPA–821–R–06–016, DCN 3400;
• Final Engineering Report: Tobacco Products Processing Detailed Study, EPA–821–R–06–017, DCN 3395; and
• Technical Support Document for the 2006 Effluent Guidelines Program Plan, EPA–821–R–06–018, DCN 3402.
Mr. Carey A. Johnston at (202) 566–1014 or
The outline of this notice follows.
This notice simply provides a statement of the Agency's effluent guidelines review and planning processes and priorities at this time, and does not contain any regulatory requirements.
Do not submit this information to EPA through
When submitting comments, remember to:
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
This notice is published under the authority of the CWA, 33 U.S.C. 1251,
This notice presents EPA's 2006 review of existing effluent guidelines and pretreatment standards under CWA sections 301(d), 304(b), 304(g) and 307(b). It also presents EPA's evaluation of indirect dischargers without categorical pretreatment standards to identify potential new categories for pretreatment standards under CWA sections 304(g) and 307(b). This notice also presents the final 2006 Effluent Guidelines Program Plan (“final 2006 Plan”), which, as required under CWA section 304(m), identifies any new or existing industrial categories selected for effluent guidelines rulemaking and provides a schedule for such rulemaking. CWA section 304(m) requires EPA to biennially publish such a plan after public notice and comment. The Agency published the preliminary 2006 Plan on August 29, 2005 (70 FR 51042). This notice also provides EPA's preliminary thoughts concerning its 2007 annual reviews under CWA sections 301(d), 304(b), 304(g) and 307(b) and solicits comments, data and information to assist EPA in performing these reviews. Finally, after two public comment periods, this notice discusses how EPA incorporates elements from the draft Strategy for National Clean Water Industrial Regulations (Strategy) into its effluent guidelines reviews and planning.
The CWA directs EPA to promulgate effluent limitations guidelines and standards that reflect pollutant reductions that can be achieved by categories or subcategories of industrial point sources using specific technologies. See CWA sections 301(b)(2), 304(b), 306, 307(b), and 307(c). For point sources that introduce pollutants directly into the waters of the United States (direct dischargers), the effluent limitations guidelines and standards promulgated by EPA are implemented through National Pollutant Discharge Elimination System (NPDES) permits. See CWA sections 301(a), 301(b), and 402. For sources that discharge to POTWs (indirect dischargers), EPA promulgates pretreatment standards that apply directly to those sources and are enforced by POTWs and State and Federal authorities. See CWA sections 307(b) and (c).
EPA defines Best Practicable Control Technology Currently Available (BPT) effluent limitations for conventional, toxic, and non-conventional pollutants. Section 304(a)(4) designates the following as conventional pollutants: biochemical oxygen demand (BOD
In specifying BPT, EPA looks at a number of factors. EPA first considers the total cost of applying the control technology in relation to the effluent reduction benefits. The Agency also considers the age of the equipment and facilities, the processes employed, and any required process changes, engineering aspects of the control technologies, non-water quality environmental impacts (including energy requirements), and such other factors as the EPA Administrator deems appropriate. See CWA section 304(b)(1)(B). Traditionally, EPA establishes BPT effluent limitations based on the average of the best performances of facilities within the industry of various ages, sizes, processes, or other common characteristics. Where existing performance is uniformly inadequate, BPT may reflect higher levels of control than currently in place in an industrial category if the Agency determines that the technology can be practically applied.
The 1977 amendments to the CWA required EPA to identify effluent reduction levels for conventional pollutants associated with Best Conventional Pollutant Control Technology (BCT) for discharges from existing industrial point sources. In addition to considering the other factors specified in section 304(b)(4)(B) to establish BCT limitations, EPA also considers a two part “cost-reasonableness” test. EPA explained its methodology for the development of BCT limitations in 1986. See 51 FR 24974 (July 9, 1986).
For toxic pollutants and non-conventional pollutants, EPA promulgates effluent guidelines based on the Best Available Technology Economically Achievable (BAT). See CWA section 301(b)(2)(A), (C), (D) and (F). The factors considered in assessing BAT include the cost of achieving BAT effluent reductions, the age of equipment and facilities involved, the process employed, potential process changes, non-water quality environmental impacts, including energy requirements, and other such factors as the EPA Administrator deems appropriate. See CWA section
New Source Performance Standards (NSPS) reflect effluent reductions that are achievable based on the best available demonstrated control technology. New sources have the opportunity to install the best and most efficient production processes and wastewater treatment technologies. As a result, NSPS should represent the most stringent controls attainable through the application of the best available demonstrated control technology for all pollutants (i.e., conventional, non-conventional, and priority pollutants). In establishing NSPS, EPA is directed to take into consideration the cost of achieving the effluent reduction and any non-water quality environmental impacts and energy requirements.
Pretreatment Standards for Existing Sources (PSES) are designed to prevent the discharge of pollutants that pass through, interfere with, or are otherwise incompatible with the operation of publicly-owned treatment works (POTWs), including sludge disposal methods at POTWs. Pretreatment standards for existing sources are technology-based and are analogous to BAT effluent limitations guidelines.
The General Pretreatment Regulations, which set forth the framework for the implementation of national pretreatment standards, are found at 40 CFR part 403.
Like PSES, Pretreatment Standards for New Sources (PSNS) are designed to prevent the discharges of pollutants that pass through, interfere with, or are otherwise incompatible with the operation of POTWs. PSNS are to be issued at the same time as NSPS. New indirect dischargers have the opportunity to incorporate into their facilities the best available demonstrated technologies. The Agency considers the same factors in promulgating PSNS as it considers in promulgating NSPS.
Section 304(b) requires EPA to review its existing effluent guidelines for direct dischargers each year and to revise such regulations “if appropriate.” Section 304(m) supplements the core requirement of section 304(b) by requiring EPA to publish a plan every two years announcing its schedule for performing this annual review and its schedule for rulemaking for any effluent guideline selected for possible revision as a result of that annual review. Section 304(m) also requires the plan to identify categories of sources discharging non-trivial amounts of toxic or non-conventional pollutants for which EPA has not published effluent limitations guidelines under section 304(b)(2) or NSPS under section 306. See CWA section 304(m)(1)(B); S. Rep. No. 50, 99th Cong., 1st Sess. (1985); WQA87 Leg. Hist. 31 (indicating that section 304(m)(1)(B) applies to “non-trivial discharges.”). Finally, under section 304(m), the plan must present a schedule for promulgating effluent guidelines for industrial categories for which it has not already established such guidelines, providing for final action on such rulemaking not later than three years after the industrial category is identified in a final Plan.
In addition, CWA section 301(d) requires EPA to review every five years the effluent limitations required by CWA section 301(b)(2) and to revise them if appropriate pursuant to the procedures specified in that section. Section 301(b)(2), in turn, requires point sources to achieve effluent limitations reflecting the application of the best available technology economically achievable (for toxic pollutants and non-conventional pollutants) and the best conventional pollutant control technology (for conventional pollutants), as determined by EPA under sections 304(b)(2) and 304(b)(4), respectively. For nearly three decades, EPA has implemented sections 301 and 304 through the promulgation of effluent limitations guidelines, resulting in regulations for 56 industrial categories. See
Section 307(b) requires EPA to revise its pretreatment standards for indirect dischargers (“from time to time, as control technology, processes, operating methods, or other alternatives change.” See CWA section 307(b)(2). Section 304(g) requires EPA to annually review these pretreatment standards and revise them “if appropriate.” Although section 307(b) only requires EPA to review existing pretreatment standards “from time to time,” section 304(g) requires an annual review. Therefore, EPA meets its 304(g) and 307(b) review requirements by reviewing all industrial categories subject to existing categorical pretreatment standards on an annual basis to identify potential candidates for revision.
Section 307(b)(1) also requires EPA to promulgate pretreatment standards for pollutants not susceptible to treatment by POTWs or that would interfere with the operation of POTWs, although it does not provide a timing requirement for the promulgation of such new pretreatment standards. EPA, in its discretion, periodically evaluates indirect dischargers not subject to categorical pretreatment standards to identify potential candidates for new pretreatment standards. The CWA does not require EPA to publish its review of pretreatment standards or identification of potential new categories, although EPA is exercising its discretion to do so in this notice.
EPA intends to repeat this publication schedule for future pretreatment standards reviews (e.g., EPA will publish the 2007 annual pretreatment standards review in the notice
In its 2006 annual review, EPA reviewed all industrial categories subject to existing effluent limitations guidelines and pretreatment standards, representing a total of 56 point source categories and over 450 subcategories. This review consisted of a screening level review of all existing industrial categories based on the hazard associated with discharges from each category and other factors identified by EPA as appropriate for prioritizing effluent guidelines and pretreatment standards for possible revision. For categories prioritized based on the screening-level review, EPA conducted further review—a “detailed study” of two categories (i.e., Steam Electric Power Generation and Pulp, Paper, and Paperboard categories—and a less intensive “prioritized category review” of eleven categories—in order to determine whether it would be appropriate to identify these categories for effluent guidelines rulemaking. EPA also took a closer look at several stakeholder identified categories to determine whether they warranted additional review. Together, these reviews discharged EPA's obligations to annually review both existing effluent limitations guidelines for direct dischargers under CWA sections 301(d) and 304(b) and existing pretreatment standards for indirect dischargers under CWA sections 304(g) and 307(b).
Based on this review, and in light of the effluent guidelines rulemakings and detailed studies currently in progress based on prior annual reviews and other events, EPA is not identifying any existing categories for effluent guidelines rulemaking at this time. EPA does, however, intend to conduct more focused detailed reviews in the 2007 and 2008 annual reviews of the effluent guidelines for the following categories: Steam Electric Power Generating (Part 423), Coal Mining (Part 434), Oil and Gas Extraction category (Part 435) (only to assess whether to revise the limits to include Coal Bed Methane extraction as a new subcategory), and Hospitals (Part 460).
In view of the annual nature of its reviews of existing effluent guidelines and pretreatment standards, EPA believes that each annual review can and should influence succeeding annual reviews, e.g., by indicating data gaps, identifying new pollutants or pollution reduction technologies, or otherwise highlighting industrial categories for additional scrutiny in subsequent years. During its 2005 annual review, which concluded in September 2005, EPA started detailed studies of the existing effluent guidelines and pretreatment standards for two industrial categories: Pulp, Paper, and Paperboard (Part 430) and Steam Electric Power Generating (Part 423). In addition, EPA identified eleven other priority industrial categories as candidates for further study in the 2006 reviews based on the toxic discharges reported to the Toxics Release Inventory (TRI) and Permit Compliance System (PCS). EPA published the findings from its 2005 annual review with its preliminary 2006 Plan (August 29, 2005; 70 FR 51042), making the data collected available for public comment. Docket No. EPA–HQ–OW–2004–0032. EPA used the findings, data and comments on the 2005 annual review to inform its 2006 annual review. The 2006 review also built on the previous reviews by continuing to use the screening methodology, incorporating some refinements to assigning discharges to categories and updating toxic weighting factors used to estimate potential hazards of toxic pollutant discharges. In its 2006 reviews, EPA completed its detailed study of the Pulp and Paper industry. EPA intends to continue its detailed study of the Steam Electric industry in its 2007 annual review.
The first component of EPA's 2006 annual review consisted of a screening-level review of all industrial categories subject to existing effluent guidelines or pretreatment standards. As a starting point for this review, EPA examined screening-level data from its 2005 annual reviews. In its 2005 annual reviews, EPA focused its efforts on collecting and analyzing data to identify industrial categories whose pollutant discharges potentially pose the greatest hazard to human health or the environment because of their toxicity (i.e., highest estimates of toxic-weighted pollutant discharges). In particular, EPA ranked point source categories according to their discharges of toxic and non-conventional pollutants (reported in units of toxic-weighted pound equivalent or TWPE), based primarily on data from TRI and PCS. EPA calculated the TWPE using pollutant-specific toxic weighting factors (TWFs). Where data are available, these TWFs reflect both aquatic life and human health effects. For each facility that reports to TRI or PCS, EPA multiplies the pounds of discharged pollutants by pollutant-specific TWFs. This calculation results in an estimate of the discharged toxic-weighted pound equivalents, which EPA then uses to assess the hazard posed by these toxic and non-conventional pollutant discharges to human health or the environment. EPA repeated this process for the 2006 annual reviews using the most recent TRI data (2003). EPA also examined the potential usability of PCS data (2002) for evaluating nutrient discharges and discovered several complications in calculating the pollutant load attributed to nutrients. EPA intends to pursue means for improving the data review for nutrients discharges in future effluent guidelines reviews. The full description of EPA's methodology for the 2006 screening-level review is presented in the final Technical Support Document (TSD) for the 2006 Plan (
EPA is continuously investigating and solicits comment on how to improve its analyses. EPA made a few such improvements to the screening-level review methodology from the 2005 to the 2006 annual review. As part of the 2006 screening level review, EPA corrected the PCSLoads2002 and TRIReleases2002 databases, by addressing issues raised in comments (e.g., updating TWFs and average POTW pollutant removal efficiencies for a number of pollutants) and collecting additional information from individual facilities that report to TRI or PCS. EPA also started a process for conducting a peer review of its development and use of TWFs (
EPA also continued to use the quality assurance project plan (QAPP) developed for the 2005 annual review to document the type and quality of data needed to make the decisions in this annual review and to describe the methods for collecting and assessing those data (
Based on this methodology, EPA prioritized for potential revision industrial categories that offered the greatest potential for reducing hazard to human health and the environment. EPA assigned those categories with the lowest estimates of toxic-weighted pollutant discharges a lower priority for revision (i.e., industrial categories marked “3” in the “Findings” column in Table V–1).
In order to further focus its inquiry during the 2006 annual review, EPA did not prioritize for potential revision categories for which effluent guidelines had been recently promulgated or revised, or for which effluent guidelines rulemaking was currently underway (i.e., industrial categories marked “1” in the “Findings” column in Table V–1). For example, EPA excluded facilities that are associated with the Chlorine and Chlorinated Hydrocarbon (CCH) Manufacturing effluent guidelines rulemaking (formerly known as the “Vinyl Chloride and Chlor-Alkali Manufacturing” effluent guidelines rulemaking) currently underway, subtracting the pollutant discharges from these facilities in its 2006 hazard assessment of the Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF) and Inorganic Chemicals point source categories to which CCH facilities belong.
Additionally, EPA applied less scrutiny to industrial categories for which EPA had promulgated effluent guidelines or pretreatment standards within the past seven years. EPA chose seven years because this is the time it customarily takes for the effects of effluent guidelines or pretreatment standards to be fully reflected in pollutant loading data and TRI reports (in large part because effluent limitations guidelines are often incorporated into NPDES permits only upon re-issuance, which could be up to five years after the effluent guidelines or pretreatment standards are promulgated). Because there are 56 point source categories (including over 450 subcategories) with existing effluent guidelines and pretreatment standards that must be reviewed annually, EPA believes it is important to prioritize its review so as to focus on industries where changes to the existing effluent guidelines or pretreatment standards are most likely to be needed. In general, industries for which new or revised effluent guidelines or pretreatment standards have recently been promulgated are less likely to warrant such changes. However, in cases where EPA becomes aware of the growth of a new industrial activity within a category for which EPA has recently revised effluent guidelines or pretreatment standards, or where new concerns are identified for previously unevaluated pollutants discharged by facilities within the industrial category, EPA would apply more scrutiny to the category in a subsequent review. EPA identified no such instance during the 2006 annual review.
EPA also did not prioritize for potential revision at this time categories for which EPA lacked sufficient data to determine whether revision would be appropriate. For industrial categories marked “5” in Table V–1, EPA lacks sufficient information on the magnitude of the toxic-weighted pollutant discharges associated with these categories. EPA will seek additional information on the discharges from these categories in the next annual review in order to determine whether a detailed study is warranted. EPA typically performs a further assessment of the pollutant discharges before starting a detailed study of an industrial category. This assessment provides an additional level of quality assurance on the reported pollutant discharges and number of facilities that represent the majority of toxic-weighted pollutant discharges. EPA may also develop a preliminary list of potential wastewater pollutant control technologies before conducting a detailed study. See the appropriate section in the TSD for the 2006 Plan (DCN 3402) for EPA's data needs for these industrial categories. For industrial categories marked “4” in Table V–1, EPA has sufficient information on the toxic-weighted pollutant discharges associated with these categories to start a detailed study of these industrial categories in the 2007 annual review. EPA intends to use the detailed study to obtain information on hazard, availability and cost of technology options, and other factors in order to determine if it would be appropriate to identify the category for possible effluent guidelines revision. In the 2007 annual review, EPA will conduct detailed studies of four such categories.
As part of its 2006 annual review, EPA also considered the number of facilities responsible for the majority of the estimated toxic-weighted pollutant discharges associated with an industrial activity. Where only a few facilities in a category accounted for the vast majority of toxic-weighted pollutant discharges (i.e., categories marked “(2)” in the “Findings” column in Table V–1), EPA did not prioritize the category for potential revision. EPA believes that revision of individual permits for such facilities may be more effective than a revised national effluent guideline at addressing the hazard from the category because individual permit requirements can be better tailored to these few facilities and may take considerably less time to establish than a national effluent guideline. The Docket accompanying this notice lists facilities that account for the vast majority of the estimated toxic-weighted pollutant discharges for particular categories (
EPA received comments urging the Agency to encourage and recognize voluntary efforts by industry to reduce pollutant discharges, especially when the voluntary efforts have been widely adopted within an industry and the associated pollutant reductions have been significant. EPA agrees that industrial categories demonstrating significant progress through voluntary efforts to reduce hazard to human health or the environment associated with their effluent discharges would be a comparatively lower priority for effluent guidelines or pretreatment standards revision, particularly where such reductions are achieved by a significant majority of individual facilities in the industry. Although during this annual review EPA could not complete a systematic review of voluntary pollutant loading reductions, EPA's review did indirectly account for the effects of successful voluntary programs because any significant reductions in pollutant discharges should be reflected in discharge monitoring and TRI data, as well as any data provided directly by commenters, that EPA used to assess the toxic-weighted pollutant discharges.
EPA also received comment urging the Agency to consider the availability and affordability of pollution-control technology in prioritizing effluent guidelines for revision. As was the case in the 2004 annual review, EPA was unable to gather the data needed to perform a comprehensive screening-level analysis of the availability of treatment or process technologies to reduce toxic pollutant wastewater discharges beyond the performance of technologies already in place for all of the 56 existing industrial categories. However, EPA believes that its analysis of hazard is useful for assessing the effectiveness of existing technologies because it focuses on the amount and significance of pollutants that are still discharged following existing treatment. Therefore, by assessing the hazard associated with discharges from all existing categories in its screening-level review, EPA was indirectly able to assess the possibility that further significant reductions could be achieved through new pollution control technologies for these categories. In addition, EPA directly assessed the availability of technologies for certain industries that were prioritized for a more in-depth review as a result of the screening level analysis. See DCN 3400, DCN 3401, and Sections 6–18 of the TSD for the final 2006 Plan.
Similarly, EPA could not identify a suitable screening-level tool for comprehensively evaluating the affordability of treatment or process technologies because the universe of facilities is too broad and complex. EPA could not find a reasonable way to prioritize the industrial categories based on readily available economic data. In the past, EPA has gathered information regarding technologies and economic achievability through detailed questionnaires distributed to hundreds of facilities within a category or subcategory for which EPA has commenced rulemaking. Such information-gathering is subject to the requirements of the Paperwork Reduction Act (PRA), 33 U.S.C. 3501,
In summary, through its screening level review, EPA focused on those point source categories that appeared to offer the greatest potential for reducing hazard to human health or the environment, while assigning a lower priority to categories that the Agency believes are not good candidates for effluent guidelines or pretreatment standards revision at this time. This enabled EPA to concentrate its resources on conducting more in-depth reviews of certain industries prioritized as a result of the screening level analysis, as discussed below (
In addition to conducting a screening-level review of all existing categories, EPA did a detailed study of two categories prioritized for further review: The Pulp, Paper and Paperboard point source category and the Steam Electric Generating point source category. For these industries, EPA gathered and analyzed additional data on pollutant discharges, economic factors, and technology issues during its 2006 annual review. EPA examined: (1) Wastewater characteristics and pollutant sources; (2) the pollutants driving the toxic-weighted pollutant discharges; (3) treatment technology and pollution prevention information; (4) the geographic distribution of facilities in the industry; (5) any pollutant discharge trends within the industry; and (6) any relevant economic factors.
EPA relied on many different sources of data including: (1) The 2002 U.S. Economic Census; (2) TRI and PCS data; (3) contacts with reporting facilities to verify reported releases and facility categorization; (4) contacts with regulatory authorities (states and EPA regions) to understand how category facilities are permitted; (5) NPDES permits and their supporting fact sheets; (6) monitoring data included in facility applications for NPDES permit renewals (Form 2C data); (7) EPA effluent guidelines technical development documents; (8) relevant EPA preliminary data summaries or study reports; (9) technical literature on pollutant sources and control technologies; (10) information provided by industry including industry conducted survey and sampling data; and (11) stakeholder comments (
During its 2005 annual review, EPA started detailed studies for the Pulp, Paper, and Paperboard point source category (Part 430) and the Steam Electric Power Generating point source category (Part 423) because they represent the two industrial point source categories with the largest combined TWPE based on EPA's ranking approach. EPA continued these detailed studies during its 2006 annual review. EPA had planned to complete both of these detailed studies in its 2006 annual review, prior to publication of the final 2006 Plan. However, EPA was only able to complete the detailed study for the Pulp, Paper, and Paperboard category. See section V.B.2.a. EPA is continuing its detailed study of the Steam Electric Power Generating category during the 2007 and 2008 annual reviews. See section V.B.2.b.
In addition to identifying two categories for detailed studies during the 2005 review, EPA identified 11 additional categories with potentially high TWPE discharge estimates. For a listing of these categories and EPA's 2005 review of them, see Preliminary 2005 Review of Prioritized Categories of Industrial Dischargers, EPA 821–B–05–004. EPA continued its review of these categories during 2006, using the same types of data sources used for the detailed studies but in less depth. EPA did not conduct a detailed study for these categories at this time because EPA needed additional information regarding these industries to determine whether a detailed study would be warranted. See the appropriate section in the TSD for the 2006 Plan (DCN 3402) for EPA's data needs for these industrial categories. EPA typically performs a further assessment of the pollutant discharges before starting a detailed study of an industrial category. This assessment provides an additional level of quality assurance on the reported pollutant discharges and number of facilities that represent the majority of toxic-weighted pollutant discharges. EPA may also develop a preliminary list of potential wastewater pollutant control technologies before conducting a detailed study.
EPA's annual review process considers information provided by stakeholders regarding the need for new or revised effluent limitations guidelines and pretreatment standards. To that end, EPA established a docket for its 2005 annual review with the publication of the final 2004 Plan to provide the public with an opportunity to provide additional information to assist the Agency in its 2005 annual review. EPA's Regional Offices and stakeholders identified other industrial point source categories as potential candidates for revision of effluent limitations guidelines and pretreatment standards based on potential opportunities to improve implementation of these regulations or because of their pollutant discharges (
In its 2006 screening level review, EPA considered hazard—and the other factors described in section A.3.a. above—in prioritizing effluent guidelines for potential revision. See Table V–1 for a summary of EPA's findings with respect to each existing category; see also the Final 2006 TSD. Out of categories subject only to the screening level review in 2006, EPA is not identifying any for effluent guidelines rulemaking at this time, based on the factors described in section A.3.a above and in light of the effluent guidelines rulemakings and detailed studies in progress based on prior annual reviews and other events.
As a result of its 2005 screening-level review, EPA started detailed studies of two industrial point source categories with existing effluent guidelines and pretreatment standards: Pulp, Paper, and Paperboard (Part 430) and Steam Electric Power Generating (Part 423). During detailed study of these categories, EPA first investigated whether the pollutant discharges reported to TRI and PCS for 2002 accurately reflect the current discharges of the industry. EPA also performed an in-depth analysis of the reported pollutant discharges, and technology innovation and process changes in these industrial categories. Additionally, EPA considered whether there are industrial activities not currently subject to effluent guidelines or pretreatment standards that should be included with these existing categories, either as part of existing subcategories or as potential new subcategories. EPA used these detailed studies to determine whether EPA should identify in the final 2006 Plan one or both of these industrial categories for possible revision of their existing effluent guidelines and pretreatment standards.
Based on the information available to EPA at this time, EPA was able to complete its detailed study for the Pulp, Paper, and Paperboard category, finding that revision of the effluent guidelines for this category is not appropriate at this time for the reasons discussed below. However, EPA was unable to complete its detailed study for the Steam Electric Power Generating category. Consequently, EPA is continuing its study of the Steam Electric Power Generating category in its 2007 and 2008 annual reviews to determine whether to identify this category for effluent guidelines revision. EPA's reviews of these two categories are described below.
As a result of its 2005 screening-level review, EPA initiated a detailed study of the Pulp, Paper, and Paperboard point source category because it ranked highest in terms of toxic and non-conventional pollutant discharges among the industrial point source categories investigated in the screening-level analysis. Dioxins and dioxin-like compounds accounted for 91% of the combined TRI and PCS TWPE for this category in the 2005 screening-level analysis while polycyclic aromatic compounds (PACs), metals, and nitrates, not currently regulated by these effluent guidelines, accounted for an additional 7% of the category's total TWPE.
In the 2006 annual review, EPA obtained additional information and permits from States and industry including corrections for the TRI and PCS databases. All-in-all, EPA reviewed effluent discharge data for all 76 bleached papergrade kraft and sulfite mills, known collectively as the “Phase I” mills. EPA also reviewed effluent discharges for non-bleaching pulp mills, secondary (recycled) fiber mills, and paper and paperboard mills in eight subcategories (Subparts C and F through L), known collectively as the “Phase II” mills. EPA did not review in detail the three remaining dissolved kraft and dissolved sulfite mills (Subparts A and D), known as the “Phase III” mills. Because of the limited and declining number of facilities in Phase III, EPA believes that support to permit writers in establishing facility-specific effluent
The most recent changes to EPA's effluent limitations guidelines and pretreatment standards for this point source category, known as part of the “Cluster Rules,” were new limits for Phase I facilities in the Bleached Papergrade Kraft and Soda (Subpart B) and Papergrade Sulfite (Subpart E) subcategories (April 15, 1998; 63 FR 18504). EPA promulgated limits for dioxin, furan, chloroform, chlorinated phenolic compounds, and adsorbable organic halides (AOX). EPA provided reduced monitoring requirements for bleached papergrade kraft mills that employ totally chlorine free (TCF) bleaching and for certain segments of the Papergrade Sulfite subcategory. As part of the detailed study, EPA reviewed the implementation status of the Cluster Rules. Seven permits do not yet include Cluster Rule limits because the revised permits are either being contested or have not been reissued. Two permits allow for demonstration of compliance with the AOX limit at alternate monitoring locations (
EPA studied in detail how releases of dioxin and dioxin-like compounds are reported to PCS and TRI. Mills file Discharge Monitoring Reports (DMRs) with their permitting authority, usually the state, once a month or at other specified frequencies, as required by their permits. Each mill's NPDES permit specifies the pollutants to monitor and at what frequency. States enter mill-provided DMR data, both for bleach plant effluent monitoring and final effluent monitoring, into EPA's national PCS database. TRI requires that facilities report releases if they manufacture, process, or otherwise use more than 0.1 grams/year of dioxin and dioxin-like compounds. Mills report the mass discharged to surface waters (for facilities discharging directly to a receiving stream) or transferred to a POTW (for indirect dischargers). They are not, however, required to report releases less than 0.0001 gram/year (100 micrograms/year). Unlike NPDES permit compliance monitoring, TRI does not require facilities to measure waste stream pollutant concentrations. Instead, facilities may use emission factors, mass balances, or other engineering calculations to estimate releases. Facilities may estimate their releases using monitoring data collected prior to the year for which they are reporting discharges if they believe the data are representative of reporting year operations. Additionally, mills are only required to report to TRI the total mass of the 17 dioxin and dioxin-like compounds released to surface waters or POTWs but not the distribution of the 17 compounds, although they have different toxicities.
Only 15 mills report releases based on measured concentrations in their wastewater. EPA obtained mill-specific measured concentrations of the 17 dioxin and dioxin-like compounds from six out of the 15 mills that based their estimated 2002 discharges on measurements. For these six mills, all but 636 of the 226,444 TWPE for dioxin and dioxin-like compounds that they reported to TRI are based on measurements below the Method 1613B minimum level (ML). A method minimum level is the level or concentration at which the analytical system gives recognizable signals and an acceptable calibration point. The accuracy of concentrations measured below the Method 1613B ML is less certain than concentrations measured at or above the method ML. Traditionally in effluent guidelines rulemakings EPA establishes numerical effluent limits at or above the ML of the analytical method because individual measurements below the ML are not considered reliable enough for regulatory purposes.
NPDES permits require mills to monitor pollutants discharged and report the results to their state on a monthly basis or at other specified frequencies. The States, in turn, submit these data to PCS. Reporting of monitoring results measured at or below the method ML varies widely. These results may be reported as “0,” “non-detect,” “less than ML,” or a numeric value. The Cluster Rules require Phase I mills to monitor for the most toxic dioxin forms: 2,3,7,8-tetrachlorodibenzo-
NPDES permit monitoring data show that as of 2004, bleach plant effluent concentrations meet the guidelines established in EPA's 1998 rulemaking. These guidelines are very close to or at the analytical method ML. Furthermore, nearly all of data underlying the estimated releases of dioxin and dioxin-like compounds reported to TRI is based on pollutant concentrations below the Method 1623B MLs, so that TRI-reported discharges of dioxin and dioxin-like compounds for this category are highly uncertain. Therefore, EPA found that additional or revised national categorical limitations for dioxin and dioxin-like compounds are not warranted at this time.
Metals discharges reported to TRI and PCS ranked second after dioxin and dioxin-like compounds in contributing to this category's TWPE. EPA analyzed the concentrations of metals in mill final effluent reported to either TRI or PCS. EPA reviewed the metals that were most significant in terms of their contribution to the total category TWPE (i.e., manganese, aluminum, lead, zinc, mercury, copper, arsenic, cadmium, chromium). For the two national databases, the largest reported metals discharges, in terms of TWPE, are aluminum (92,205 TWPE reported in PCS) and manganese (303,729 TWPE reported in TRI). Facilities report only annual mass discharges (pounds/year) to TRI. PCS includes monitoring data for only those metals with permit requirements. EPA identified 32 mills with NPDES effluent limits or monitoring requirements for metals, which included one or more of the following metals: aluminum, arsenic,
In reviewing metals data for this industry EPA noted that the sources of metals in mill wastewaters vary by mill and by location. For example, some metals sources include source water, raw materials such as wood chips or pulp, and chemicals added for production processes or wastewater treatment. Metals concentrations in the final effluent were low, with most being near or below their method minimum level. Aluminum and manganese concentrations in the final effluent, while above their method minimum level, were at concentrations generally not considered treatable with end-of-pipe treatment technologies suitable for large mill effluent flows. EPA reviewed the facilities subject to metals permit limits; none of these mills operate an end-of-pipe treatment system designed to remove metals from wastewater. These facilities typically employ pollution prevention practices to maintain compliance with their metals permit limits.
EPA also reviewed metals pollution prevention technologies for mill wastewater through a review of NPDES permits and a literature search. Mills are adopting a number of pollution prevention technologies for preventing metals from entering their wastewaters, such as changing chemical purchasing practices and usage rates (
EPA found that it would not be appropriate to identify the Pulp, Paper, and Paperboard point source category (Part 430) for possible effluent guidelines revision to address metals for the following reasons: (1) Metals concentrations in the final effluent were low, with most being near or below their method minimum level; (2) end-of-pipe treatment technologies for metals removal have not been well demonstrated on mill wastewaters; and (3) pollution prevention technologies are site-specific and reflect the unique combinations of factors at each mill and are not readily adaptable industry-wide.
EPA also reviewed the pollutant loads associated with polycyclic aromatic compounds (PACs) for this industrial point source category. For the 2005 screening-level analysis, EPA calculated the percentage of each PAC present in mill wastewater based on information provided by the National Council for Air and Stream Improvement (NCASI). NCASI's TRI-reporting guidance includes a table listing the concentrations of PAC compounds found in wastewaters for several types of pulping (kraft, bisulfite, chemi-thermo-mechanical, thermo-mechanical) based on a 1990 study. EPA used this distribution to calculate an adjusted TWF for the Pulp, Paper, and Paperboard point source category PACs by summing the product of each chemical's TWF and its percentage relative to the total PACs in mill wastewaters. In the
EPA also investigated nitrogen (nitrate, nitrite, ammonia, total nitrogen) and phosphorus (phosphates) discharges from the Pulp, Paper, and Paperboard category. See DCN 3400. EPA requested additional information from the industry to confirm the reported discharges of nutrients. Wastewater discharged from pulp and paper processes typically does not contain sufficient nitrogen and phosphorus to operate a stable biological treatment system capable of reducing the organic (BOD
For the reasons discussed above, EPA is not identifying the Pulp, Paper, and Paperboard point source category (Part 430) as a candidate for effluent guidelines revisions at this time. As with all categories subject to existing effluent guidelines, EPA will continue to examine this industrial category in future annual reviews to determine if revision of existing effluent guidelines may be appropriate.
EPA began a detailed study of the Steam Electric Power Generating point source category in the 2005 review because it ranked second-highest in terms of toxic and non-conventional toxic weighted pollutant discharges among the industrial point source categories investigated in the screening level analyses. EPA's screening-level analysis during the 2005 annual review was based primarily on information reported to TRI, PCS, and the U.S. Department of Energy's Energy Information Administration (EIA) for the year 2002. For the screening-level review, EPA also obtained and reviewed additional information to supplement that data, including industry-compiled data on the likely source and magnitude of the reported toxic dischargers.
The effluent limitations guidelines and standards for the Steam Electric Power Generating point source category apply to a subset of all entities comprising the electric power industry. Specifically, facilities regulated by the effluent guidelines are “primarily engaged in the generation of electricity for distribution and sale which results primarily from a process utilizing fossil-type fuel (coal, oil, or gas) or nuclear fuel in conjunction with a thermal cycle employing the steam water system as the thermodynamic medium.” See 40 CFR 423.10. Steam electric power generating facilities are primarily classified within SIC codes 4911, 4931 and 4939.
Effluent guidelines for direct dischargers were first promulgated for
EPA's detailed study of the Steam Electric Power Generating point source category has generally focused on investigating the sources of the large toxic weighted pollutant discharges and the potential for pollution control technologies and practices to reduce these discharges. EPA intends to use this information to determine whether effluent limitations for parameters currently regulated by the effluent guidelines need to be revised, or whether effluent limitations for other parameters should be added to the effluent guidelines.
One key objective of the detailed study is to better quantify the pollutant concentrations and mass released in wastewater discharges from steam electric facilities, and to identify the sources of the pollutants contributing significantly to the toxic weighted loadings. Wastestreams of interest include cooling water, ash-handling wastes, coal pile runoff, wet air pollution control device wastes, water treatment wastes, boiler blowdown, maintenance cleaning wastes, and other miscellaneous wastes. In particular, EPA seeks to determine typical wastewater volumes and pollutant concentrations for the individual process streams using readily available data. EPA also seeks to collect information on any new technologies or process changes for flow or pollutant reductions. EPA's efforts to obtain these data in the 2005 annual review included soliciting information in the
Boron, aluminum and arsenic (three of the top five pollutants driving pollutant loadings) were not identified in previous effluent guidelines rulemakings as pollutants of concern. Further, previous effluent guidelines rulemakings specifically noted there was no correlation between total suspended solids, a pollutant parameter regulated by the effluent guidelines, and the effluent concentrations of these three pollutants. EPA notes that these three pollutants are mobile and there is some concern that they may be released from impoundment sludges/sediments to the liquid fraction and discharged directly to surface waters. EPA's Office of Research and Development (ORD) and the Office of Solid Waste (OSWER/OSW) are currently investigating the mobility of selenium, arsenic and mercury with respect to potential releases from landfills and liquid impoundments (
The current evaluation allowed EPA to identify targeted areas of concern for which EPA needs to collect additional data. The focus of further study will be narrower than the evaluation conducted for the 2006 annual review, and is expected to concentrate primarily on better characterizing pollutant sources and available pollution control technologies/practices for the pollutants responsible for the majority of the toxic weighted pollutant loadings from steam electric facilities. One aspect of this study will assess the significance of air-to-water cross media pollutant transfers (e.g., mercury and other metals, and nutrients) associated with air pollution controls. In conducting this additional study, EPA's Office of Water will coordinate its efforts with ongoing research and other activities being undertaken by other EPA offices, including ORD, OSWER/OSW, and the Office of Air Quality Planning and Standards (OAQPS) and Office of Atmospheric Programs (OAP) in the Office of Air and Radiation. The detailed study continuing in the 2007 and 2008 annual reviews will likely require new data generation such as wastewater sampling and/or an industry survey.
EPA also investigated certain activities not currently regulated by the steam electric effluent guidelines. Since 1982, there has been an increase in the amount of electricity supplied to the grid from facilities that use alternative fuel sources or which do not utilize the steam-water thermodynamic cycle to produce electricity. To address this, EPA evaluated processes and wastewater discharge characteristics for electric power generating facilities that use prime movers (engines) other than steam turbines (e.g., gas turbines); and steam electric power generating facilities using alternative fuel sources (i.e., non-fossil and non-nuclear fuels such as municipal waste, wood and agricultural wastes, landfill gas, etc.). EPA also reviewed available information for steam supply (i.e., non-electric generating) and certain other utility activities; and steam electric units co-located at manufacturing plants or other commercial facilities (also referred to as “industrial non-utilities”). Based on the information in the record, EPA found that revising the applicability of Part 423 to include these facilities is not warranted at this time (
During the 2005 annual review, EPA identified 11 categories with potentially high TWPE discharge estimates (i.e., industrial point source categories with existing effluent guidelines identified with “(5)” in the column entitled “Findings” in Table V–1, Page 51050 of the preliminary 2006 Plan). During the 2006 annual review EPA continued to collect and analyze hazard and technology-based information on these eleven industrial categories. EPA is not identifying any of these categories for an effluent guidelines rulemaking in this final 2006 Plan. The docket accompanying this notice presents a summary of EPA's findings on these eleven industrial categories (
EPA found that the following seven of these eleven industrial categories did not constitute a priority for effluent guidelines revision based on the hazard associated with their discharges (based on data available at this time): Fertilizer Manufacturing, Inorganic Chemicals, Nonferrous Metals Manufacturing, Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF), Petroleum Refining, Porcelain Enameling, and Rubber Manufacturing. EPA will continue to annually review these categories to assess whether revision of effluent guidelines for these categories
Following the publication of the findings of the 2004 and 2005 annual reviews in the final 2004 Plan and the preliminary 2006 Plan, EPA's Regional Offices and stakeholders identified the following three industrial point source categories as potential candidates for effluent guideline revision based on potential opportunities to improve efficient implementation of the national water quality program or because of the categories' pollutant discharges (
As described in the notice containing the preliminary 2006 Plan, EPA began an evaluation of options for promoting water conservation through the use of mass-based limits as part of its 2006 annual review of existing effluent guidelines. EPA strongly supports water conservation and encourages all sectors, including municipal, industrial, and agricultural, to achieve efficient water use. EPA does not intend for its regulations to present a barrier to efficient water use in any industrial sector.
In the preliminary 2006 Plan, EPA requested comment on whether it should consider a rulemaking or other ways to allow permitting authorities to retain mass-based limits for direct dischargers based on current wastewater flows when such flows are lowered due to water conservation, in order to facilitate the prospective adoption of water conservation technologies. EPA received comments from industry, POTWs, and a public interest group. Industry and POTWs support revising the regulations to allow the retention of current mass-based limits and expressed concern that lowering the mass-based permit limits to reflect the lower flows associated with water conservation will result in permit violations and thus discourage water conservation. The public interest group objected to retaining current mass-based limits when flows are lowered because of the potential for acute toxicity effects on aquatic life in receiving streams that could result from increased pollutant concentrations.
Only one facility provided the data requested by EPA in the preliminary 2006 Plan to evaluate the potential need for such a rulemaking. EPA was not able to draw any conclusion from this data as this facility concurrently upgraded its wastewater treatment with advanced treatment technology (ultrafiltration technology) and implemented water conservation practices to reduce wastewater flow rates to the ultrafiltration technology equipment (
EPA's record supports the finding that for a variety of industrial sectors, well-operated and designed treatment systems treat wastewater with varying influent pollutant concentrations to the same effluent concentrations across a wide range of flows (
After a careful review of public comments and available data, EPA does not agree with public commenters that the OCPSF effluent guidelines inhibit water conservation. Consequently, EPA does not believe that revisions to the mass-based limits guidance for the
With the publication of the final 2004 Plan and the preliminary 2006 Plan, EPA solicited public comment to inform its 2006 annual review of existing effluent guidelines and pretreatment standards. Stakeholders commented that EPA should revise the existing effluent limitations guidelines for the Coal Mining (Part 434) and Oil and Gas Extraction (Part 435) point source categories. Based on these comments, EPA conducted an initial screening level review of these two categories, and found that more information is needed in order to determine whether to identify these categories for effluent guidelines rulemaking, for the reasons discussed below.
EPA received public comment from States, industry, and a public interest group that urged EPA to consider revisiting the manganese limitations in the Coal Mining effluent guidelines (40 CFR Part 434). The State and industry commenters requested that EPA study whether additional flexibility is warranted for these manganese limitations. The public interest group commented that EPA should start a rulemaking and promulgate more stringent limitations for manganese, other metals, and other dissolved inorganic pollutants (e.g., chlorides, sulfates, TDS).
State and industry commentors cited the following factors in support of their comments: (1) New, more stringent coal mining reclamation bonding requirements on post-closure discharges; (2) low relative toxicity of manganese to aquatic communities as compared to other toxic metals in the coal mining discharges; and (3) treatment with chemical addition may complicate permit compliance, especially after a mine is closed. The public interest group referenced a study by EPA Region 5 on potential adverse impacts of the discharge of sulfates on aquatic life (
At this time, EPA does not have sufficient information to evaluate the merits of the factors cited by commenters. However, because of the potential for encouraging proper wastewater treatment, EPA will conduct a detailed study of the coal mining effluent guidelines in the 2007 and 2008 annual reviews. EPA will focus on issues related to manganese limits and pollutants not currently regulated by these regulations. EPA will re-evaluate these effluent guidelines taking into account, among other things, treatment technologies, toxicity of discharges, cost impacts to the industry, and bonding requirements. EPA has placed in the docket and solicits comment on a draft scope of work for this detailed study (
EPA received comments from public interest groups urging EPA to promulgate effluent guidelines for the coalbed methane (CBM) extraction industry. Because the product extracted by the CBM industry—coal bed natural gas—is virtually identical to the conventional natural gas extracted by facilities subject to the effluent guidelines for Oil and Gas Extraction (40 CFR 435),
In conducting this review, EPA found that it will need to gather more specific information as part of a detailed review of the coalbed methane industry in order to determine whether it would be appropriate to conduct a rulemaking to potentially revise the effluent guidelines for the Oil and Gas Extraction category to include limits for CBM. In particular, EPA needs more detailed information on the characteristics of produced water, as well as the technology options available to address such discharges. To aid in a better industrial profile of the CBM sector, EPA intends to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for their review and approval under the Paperwork Reduction Act (PRA), 33 U.S.C. 3501,
In its 2006 annual review, EPA reviewed all categories subject to existing effluent guidelines and pretreatment standards in order to identify appropriate candidates for revision. Based on this review, and in light of effluent guidelines rulemakings and detailed studies currently in progress based on previous annual reviews, EPA is not identifying any existing categories for effluent guidelines rulemaking. EPA is, however, identifying four existing categories (Steam Electric Power Generating, Coal Mining, Oil and Gas Extraction, and Hospitals) for detailed studies in its 2007 and 2008 annual reviews.
A summary of the findings of the 2006 annual review are presented in Table V–1. This table uses the following codes to describe the Agency's findings with respect to each existing industrial category.
(1) Effluent guidelines or pretreatment standards for this industrial category were recently revised or reviewed through an effluent guidelines rulemaking or a rulemaking is currently underway.
(2) National effluent guidelines or pretreatment standards are not the best tools for establishing technology-based effluent limitations for this industrial category because most of the toxic and non-conventional pollutant discharges are from one or a few facilities in this industrial category. EPA will consider assisting permitting authorities in identifying pollutant control and pollution prevention technologies for the development of technology-based effluent limitations by best professional judgment (BPJ) on a facility-specific basis.
(3) Not identified as a hazard priority based on data available at this time.
(4) EPA intends to start or continue a detailed study of this industry in its 2007 and 2008 annual reviews to determine whether to identify the category for effluent guidelines rulemaking.
(5) Incomplete data available to determine whether to conduct a detailed study or identify for possible revision. EPA typically performs a further assessment of the pollutant discharges before starting a detailed study of the industrial category. This assessment provides an additional level of quality assurance on the reported pollutant
As discussed in section V and further in section VIII, EPA is coordinating its annual reviews of existing effluent guidelines and pretreatment standards under CWA sections 301(d), 304(b), 307(b) and 304(g) with the publication of preliminary Plans and biennial Plans under section 304(m). Public comments received on EPA's prior reviews and Plans helped the Agency prioritize its analysis of existing effluent guidelines and pretreatment standards during the 2006 review. The information gathered during the 2006 annual review, including the identification of data gaps in the analysis of certain categories with existing regulations, in turn, provides a starting point for EPA's 2007 annual review. See Table V–1 above. In 2007, EPA intends to again conduct a screening-level analysis of all 56 categories and compare the results against those from previous years. EPA will also conduct more detailed analyses of those industries that rank high in terms of toxic and non-conventional discharges among all point source categories. Additionally, EPA intends to continue the detailed study of the Steam Electric Power Generating (Part 423) category and start detailed studies for the following categories: Coal Mining (Part 434), Oil and Gas Extraction (Part 435) (only to assess whether to include Coal Bed Methane extraction as a new subcategory), and Hospitals (Part 460). EPA specifically invites comment and data on all 56 point source categories.
All indirect dischargers are subject to general pretreatment standards (40 CFR 403), including a prohibition on discharges causing “pass through” or “interference.” See 40 CFR 403.5. All POTWs with approved pretreatment programs must develop local limits to implement the general pretreatment standards. All other POTWs must develop such local limits where they have experienced “pass through” or “interference” and such a violation is likely to recur. There are approximately 1,500 POTWs with approved pretreatment programs and 13,500 small POTWs that are not required to develop and implement pretreatment programs.
In addition, EPA establishes technology-based national regulations, termed “categorical pretreatment standards,” for categories of industry discharging pollutants to POTWs that may pass through, interfere with or otherwise be incompatible with POTW operations. CWA section 307(b). Generally, categorical pretreatment standards are designed such that wastewaters from direct and indirect industrial dischargers are subject to similar levels of treatment.
EPA has promulgated such pretreatment standards for 35 industrial categories. EPA evaluated various indirect discharging industries without categorical pretreatment standards to determine whether their discharges were causing pass through or interference, in order to determine whether categorical pretreatment standards may be necessary for these industrial categories.
Stakeholder comments and pollutant discharge information have helped EPA identify industrial sectors for this review. In particular, EPA has looked more closely at sectors that are comprised entirely or nearly entirely of indirect dischargers, and is grouping them into the following eight industrial categories: Food Service Establishments; Industrial Laundries; Photoprocessing; Printing and Publishing; Independent and Stand Alone Laboratories; Industrial Container and Drum Cleaning (ICDC); Tobacco Products; and Health Services Industry. EPA is including within the Health Services Industry the following activities: Independent and Stand Alone Medical and Dental Laboratories, Offices and Clinics of Doctors of Medicine, Offices and Clinics of Dentists, Nursing and Personal Care Facilities, Veterinary Care Services, and Hospitals and Clinics. EPA solicited comment on that grouping (
Documents discussing EPA's review of categories of indirect dischargers without categorical pretreatment standards are located in the docket (
For these eight industrial sectors, EPA evaluated the “pass through potential” of toxic pollutants and non-conventional pollutants through POTW operations. Historically, for most effluent guidelines rulemakings, EPA determines the “pass through potential” by comparing the percentage of the pollutant removed by well-operated POTWs achieving secondary treatment with the percentage of the pollutant removed by wastewater treatment options that EPA is evaluating as the bases for categorical pretreatment standards (January 28, 1981; 46 FR 9408).
For six industry sectors, however, EPA was unable to gather the data needed for a comprehensive analysis of the availability and performance (e.g., percentage of the pollutants removed) of treatment or process technologies that might reduce toxic pollutant discharges beyond that of technologies already in place at these facilities. Instead, EPA evaluated the “pass through potential” as measured by: (1) The total annual TWPE discharged by the industrial sector; and (2) the average TWPE discharge among facilities that discharge to POTWs.
EPA relied on a similar evaluation of “pass through potential” in its prior decision not to promulgate national categorical pretreatment standards for the Industrial Laundries industry. See 64 FR 45071 (August 18, 1999). EPA noted in this 1999 final action that, “While EPA has broad discretion to promulgate such [national categorical pretreatment] standards, EPA retains discretion not to do so where the total pounds removed do not warrant national regulation and there is not a significant concern with pass through and interference at the POTW.” See 64 FR 45077 (August 18, 1999). EPA solicited comment on this evaluation for determining the “pass through potential” for industrial categories comprised entirely or nearly entirely of indirect dischargers (
EPA's 2005 and 2006 reviews of these eight industrial sectors used pollutant discharge information from TRI, PCS, and other publicly available data to
EPA did not have enough information to determine whether there was pass through potential for the remaining industrial sector: Health Services Industries. EPA will continue to evaluate the pass through potential for this industrial sector. In particular, EPA plans to conduct a detailed study of the Health Services Industry in the 2007 and 2008 annual reviews. More information on this industry is provided in section VIII.D below.
For each of these eight industrial sectors EPA evaluated the “interference potential” of indirect industrial discharges. The term “interference” means a discharge which, alone or in conjunction with a discharge or discharges from other sources, both: (1) Inhibits or disrupts the POTW, its treatment processes or operations, or its sludge processes, use or disposal; and (2) therefore is a cause of a violation of any requirement of the POTW's NPDES permit (including an increase in the magnitude or duration of a violation) or of the prevention of sewage sludge use or disposal in compliance with applicable regulations or permits. See 40 CFR 403.3(i). To determine the “interference potential,” EPA generally evaluates the industrial indirect discharges in terms of: (1) The compatibility of industrial wastewaters and domestic wastewaters (e.g., type of pollutants discharged in industrial wastewaters compared to pollutants typically found in domestic wastewaters); (2) concentrations of pollutants discharged in industrial wastewaters that might cause interference with the POTW collection system (e.g., fats, oil, and grease discharges causing blockages in the POTW collection system, hydrogen sulfide corrosion in the POTW collection system), the POTW treatment system (e.g., high ammonia mass discharges inhibiting the POTW treatment system; high oil and grease mass discharges can also promote the growth of filamentous bacteria that inhibit the performance of POTWs using trickling filters), or biosolids disposal options; and (3) the potential for variable pollutant loadings to cause interference with POTW operations (e.g., batch discharges or slug loadings from industrial facilities interfering with normal POTW operations).
EPA relied on readily available information from the literature and stakeholders to evaluate the severity, duration, and frequency of interference incidents caused by industrial indirect discharges. As part of its evaluation, EPA reviewed data from its report to Congress on one type of interference incidents, blockages in the POTW collection system leading to combined sewer overflows (CSOs) and sanitary sewer overflows (SSOs). See Impacts and Controls of CSOs and SSOs, EPA 833–R–04–001, August 2004. With respect to Food Service Establishments, EPA noted that “grease from restaurants, homes, and industrial sources is the most common cause (47%) of reported blockages. Grease is problematic because it solidifies, reduces conveyance capacity, and blocks flow.” Other major sources of blockages are grit, rock, and other debris (27%), roots (22%), and roots and grease (4%).
Fats, oil, and grease (FOG) wastes are generated at food service establishments as byproducts from food preparation activities. FOG captured on-site is generally classified into two broad categories: Yellow grease and grease trap waste (
Additionally, food service establishments can install interceptor/collector devices (e.g., grease traps in sinks and dish washer drain lines) in order to accumulate grease on-site and prevent it from entering the POTW collection system. Proper design, installation, and maintenance procedures are critical for these devices to control and capture the FOG (
Information collected from control authorities and stakeholders indicate that a growing number of control authorities are using their existing authority (e.g., general pretreatment standards in Part 403 or local authority) to establish and enforce more FOG regulatory controls (e.g., numeric pretreatment limits, best management practices including the use of interceptor/collector devices) for food service establishments to reduce interferences with POTW operations (e.g., blockages from fats, oils, and greases discharges, POTW treatment interference from
EPA received comments from stakeholders indicating that even with current authority provided in the general pretreatment regulations; some POTWs have difficulty controlling interference from specific categories of indirect industrial dischargers (
EPA believes that the national pretreatment program already provides the necessary regulatory tools and authority to local pretreatment programs for controlling interference problems. Under the provisions of part 403.5(c)(1) and (2), in defined circumstances, a POTW must establish specific local limits for industrial users to guard against interference with the operation of the municipal treatment works.
Based on its review of current information, EPA has not identified interference potential from the eight industrial sectors that would warrant the development of national, categorical pretreatment standards.
One commenter on the preliminary 2004 Plan suggested that EPA consider developing effluent guidelines for the Tobacco Products industry due to the potential for facilities in this industrial sector to discharge nontrivial amounts of nonconventional and toxic pollutants. In particular, this commenter expressed concern over the quantity of toxics and carcinogens that may be discharged in wastewater associated with the manufacture of cigarettes. At the time of publication of the final 2004 Plan, EPA was unable to determine, based on readily available information, whether to identify the Tobacco Products industry as a potential new category in the Plan. In particular, EPA lacked information about whether Tobacco Products facilities discharge toxic and nonconventional pollutants in nontrivial amounts, whether the industry is composed entirely or almost entirely of indirect dischargers, and whether indirect dischargers in the industry caused pass-through or interference with POTWs. In order to better respond to these comments and determine whether to identify the tobacco products industrial sector as a potential new point source category, EPA conducted a detailed study of the pollutant discharges for this industrial sector. Based on this study, EPA is not identifying the Tobacco Products industry as a potential new category in this Plan, for the reasons discussed below.
This industrial sector is divided into the following four industry groups: (1) SIC code 2111 (Cigarettes)—establishments primarily engaged in manufacturing cigarettes from tobacco or other materials; (2) SIC code 2121 (Cigars)—establishments primarily engaged in manufacturing cigars; (3) SIC code 2131 (Smokeless and Loose Chewing Tobacco)—establishments primarily engaged in manufacturing chewing and smoking tobacco and snuff; and (4) SIC code 2141 (Reconstituted Tobacco and Tobacco Stemming and Re-drying)—establishments primarily engaged in the stemming and re-drying of tobacco or in manufacturing reconstituted tobacco. Based on information in the 2002 Economic Census and reported in 2004 to the U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB), EPA estimates there are 149 tobacco products facilities in the United States. The number of tobacco products processing facilities has been in decline as facilities consolidate. Of these facilities, EPA has identified 3 with active NPDES permits that discharge process wastewater directly to waters of the U.S. and at least 15 that discharge indirectly to POTWs. The remaining dischargers are either indirect dischargers or zero dischargers. As few tobacco products processing facilities discharge directly to waters of the U.S. (3 of the 149 facilities in this category), EPA determined that this category is almost entirely composed of indirect dischargers and therefore not subject to identification under section 304(m)(1)(B). EPA therefore proceeded to review this category in its review of indirect dischargers without categorical pretreatment standards to determine whether such standards were warranted under CWA sections 304(g) and 307(b).
In conducting its detailed study, EPA conducted outreach to the most significant dischargers in this category. These companies have provided extensive information on processes, pollutant discharges and existing permits. Based on information collected to date, EPA believes that primary processing at cigarette manufacturers and their related reconstituted tobacco operations is the main source of discharged wastewater pollution in this industrial sector. EPA conducted site visits at six cigarette manufacturing facilities with two of these facilities having dedicated reconstituted tobacco production lines.
In addition to collecting information on processes and wastewater generation, EPA also collected grab samples of wastewater during these site visits. EPA collected these wastewater samples to: (1) Further characterize wastewater generated and/or discharged at these facilities; and (2) evaluate treatment effectiveness, as applicable. For the sites visited, EPA also contacted states and POTWs to obtain existing permits and identify concerns. Finally, EPA reviewed and evaluated comments from the preliminary 2006 Plan regarding the tobacco products processing industry.
EPA identified at least 15 tobacco products processing facilities that discharge to POTWs. None of the indirect dischargers treat their wastewater prior to discharge to the local POTW. EPA's review of effluent data from indirect discharging tobacco products processing facilities demonstrates that such discharges are generally characterized by low concentrations of toxic and non-conventional pollutants—primarily metals. One exception is nicotine, with discharge concentrations ranging from 7,500 ug/L to 31,000 ug/L. Nicotine and metal discharges account for approximately 93% of the total annual TWPE associated with indirect tobacco products processing discharges. Source water appears to be the biggest contributor to metal discharges at indirect facilities.
EPA used the two part evaluation described above to identify whether there is a significant “pass-through potential” of toxic pollutants and non-conventional pollutants through POTW operations. Specifically, EPA compared toxic pollutant loadings currently discharged by Tobacco Products facilities to POTWs and surface waters (baseline loadings) to toxic pollutant loadings that would be discharged to POTWs and surface waters upon compliance with pretreatment standards based on biological treatment with nutrient removal (potential post-regulatory loadings). Based on information obtained in this study, POTWs achieve nicotine removals in excess of 96%. EPA found the annual incremental toxic pollutant removals per facility would be small, approximately 28.6 TWPE/facility. This is comparable to the incremental removals for Industrial Laundries (32 TWPE/facility), which EPA determined in a proposed rulemaking did not warrant the development of pretreatment standards for that industry. See August 18, 1999 (64 FR 45071). Accordingly, EPA has determined that there is not evidence of significant “pass-through potential” for indirect dischargers in this industry.
EPA evaluated possible negative effects of discharges from tobacco products processing facilities to POTWs. As explained above, nicotine and metals account for approximately 93% of the total annual TWPE associated with indirect discharges from this category. EPA compared the concentrations of metals found in indirect tobacco products processing discharges to those typically found in POTW influent. This comparison demonstrated that metals concentrations discharged by tobacco products processing facilities are lower than those found in typical POTW influent. These findings indicate that discharges from tobacco products processing should not inhibit or disrupt operations of the receiving POTWs. To verify this finding, EPA contacted POTWs receiving significant tobacco products processing discharges. All POTWs contacted indicated they had experienced no problem handling and treating such discharges (
As discussed above, EPA found that this industry was composed almost entirely of industry dischargers and therefore reviewed it in assessing whether to establish categorical pretreatment standards under CWA sections 304(g) and 307(b). In the context of this review, EPA also examined discharges from the three directly discharging facilities in this industry.
Biological treatment with or without nutrient removal is the most commonly employed wastewater treatment technology by the direct discharging facilities. Treatability data collected from tobacco products processing facilities demonstrate on-site wastewater treatment systems are highly efficient with BOD
Because EPA found that this industry is composed almost entirely of indirect dischargers, EPA did not identify it as a new category under section 304(m)(1)(B) and instead considered whether to adopt pretreatment standards for this industry under CWA sections 304(g) and 307(b). EPA has concluded that national pretreatment standards are not warranted for this industry at this time because the incremental toxic pollutant removal would be small and discharges from this industry do not cause significant pass through or interference at POTWs.
The Health Services industry includes establishments engaged in various aspects of human health (
In evaluating the health services industries to date, EPA has found little readily available information. Both PCS and TRI contain sparse information on health care service establishments. In 1989, EPA published a Preliminary Data Summary (PDS) for the Hospitals Point Source Category (
Based on preliminary information, EPA has found that nearly all health services establishments discharge indirectly to POTWs. The major source of concern for discharges from health care service establishments include mercury, silver, endocrine disrupting chemicals (EDCs), pharmaceuticals, and biohazards. While EPA has some information on mercury and silver discharges, EPA has little to no information on wastewater discharges of emerging pollutant concerns such as EDCs and pharmaceuticals.
EPA will conduct a more focused detailed review in the 2007 and 2008 annual reviews for the Health Services Industry. In this detailed study, EPA plans to better quantify pollutants—including EDCs—in wastewater discharged by health service facilities. EPA will also investigate whether there are technologies, process changes or pollution prevention alternatives that would significantly reduce discharges to POTWs. Finally, EPA will attempt to evaluate the pass-through and interference potential of such discharges.
In accordance with CWA section 304(m)(2), EPA published the preliminary 2006 Plan for public comment prior to this publication of the final 2006 Plan. See August 29, 2005 (70 FR 51042). The Agency received 61 comments from a variety of commenters including industry and industry trade associations, municipalities and sewerage agencies, environmental groups, other advocacy groups, two tribal governments, two private citizens, two Federal agencies, and seven State government agencies. Many of these public comments are discussed in this notice. The Docket accompanying this notice includes a complete set of all of the comments submitted, as well as the Agency's responses (
As noted in section IV.B, CWA section 304(m)(1)(A) requires EPA to publish a Plan every two years that establishes a schedule for the annual review and revision, in accordance with section 304(b), of the effluent guidelines that EPA has promulgated under that section. This final 2006 Plan announces EPA's schedule for performing its section 304(b) reviews. The schedule is as follows: EPA will coordinate its annual review of existing effluent guidelines under section 304(b) with its publication of the preliminary and final Plans under CWA section 304(m). In other words, in odd-numbered years, EPA intends to complete its annual review upon publication of the preliminary Plan that EPA must publish for public review and comment under CWA section 304(m)(2). In even-numbered years, EPA intends to complete its annual review upon the publication of the final Plan. EPA's 2006 annual review is the review cycle ending upon the publication of this final 2006 Plan.
EPA is coordinating its annual reviews under section 304(b) with publication of Plans under section 304(m) for several reasons. First, the annual review is inextricably linked to the planning effort, because the results of each annual review can inform the content of the preliminary and final Plans, e.g., by identifying candidates for ELG revision for which EPA can schedule rulemaking in the Plan, or by calling to EPA's attention point source categories for which EPA has not promulgated effluent guidelines. Second, even though not required to do so under either section 304(b) or section 304(m), EPA believes that the public interest is served by periodically presenting to the public a description of each annual review (including the review process employed) and the results of the review. Doing so at the same time EPA publishes preliminary and final plans makes both processes more transparent. Third, by requiring EPA to review all existing effluent guidelines each year, Congress appears to have intended that each successive review would build upon the results of earlier reviews. Therefore, by describing the 2006 annual review along with the final 2006 Plan, EPA hopes to gather and receive data and information that will inform its reviews for 2007 and 2008 and the 2008 Plan.
EPA is currently conducting rulemakings to potentially revise existing effluent guidelines and pretreatment standards for the following categories: Organic Chemicals, Pesticides and Synthetic Fibers (OCPSF) and Inorganic Chemicals (to address discharges from Vinyl Chloride and Chlor-Alkali facilities identified for effluent guidelines rulemaking in the final 2004 Plan, now termed the “Chlorine and Chlorinated Hydrocarbon (CCH) manufacturing” rulemaking) and Concentrated Animal Feeding Operations (rulemaking on BCT technology options for controlling fecal coliform). For a summary of the status of the current effluent guidelines rulemakings, their schedules, and a list of completed effluent guidelines rulemakings conducted by EPA since 1992, see the Docket accompanying this notice (
The final Plan must also identify categories of sources discharging non-trivial amounts of toxic or non-conventional pollutants for which EPA has not published effluent limitations guidelines under section 304(b)(2) or new source performance standards (NSPS) under section 306. See CWA section 304(m)(1)(B); S. Rep. No. 99–50, Water Quality Act of 1987, Leg. Hist. 31 (indicating that section 304(m)(1)(B) applies to “non-trivial discharges”). The final Plan must also establish a schedule for the promulgation of effluent guidelines for the categories identified under section 304(m)(1)(B), providing for final action on such rulemaking not later than three years after the identification of the category in a final
In order to identify industries not currently subject to effluent guidelines, EPA primarily used data from TRI and PCS. As discussed in the docket, facilities with data in TRI and PCS are identified by a four-digit SIC code (
First, section 304(m)(1)(B) specifically applies only to “categories of sources” for which EPA has not promulgated effluent guidelines. Because this section does not define the term “categories,” EPA interprets this term based on the use of the term in other sections of the Clean Water Act, legislative history, and Supreme Court case law, and in light of longstanding Agency practice. As discussed below, these sources indicate that the term “categories” refers to an industry as a whole based on similarity of product produced or service provided, and is not meant to refer to specific industrial activities or processes involved in generating the product or service. EPA therefore identifies in its biennial Plan only those new industries that it determines are properly considered stand-alone “categories” within the meaning of the Act—not those that are properly considered potential new subcategories of existing categories based on similarity of product or service.
The use of the term “categories” in other provisions of the CWA indicates that a “category” encompasses a broad array of industrial operations related by similarity of product or service provided. For example, CWA section 306(b)(1)(A) provides a list of “categories of sources” (for purposes of new source performance standards) that includes “pulp and paper mills,” “petroleum refining,” “iron and steel manufacturing,” and “leather tanning and finishing.” These examples suggest that a “category” is intended to encompass a diversity of facilities engaged in production of a similar product or provision of a similar service. See also CWA section 402(e) and (f) (indicating that “categories” are composed of smaller subsets such as “class, type, and size”). In the effluent guidelines program, EPA uses these factors, among others, to define “subcategories” of a larger industrial category.
The legislative history of later amendments to CWA section 304 indicates that Congress was aware that there was a distinction between “categories” and “subcategories” in effluent guidelines. See Leg. Hist: Senate Committee on Environment and Public Works, A Legislative History of the Clean Water Act of 1977, prepared by the Environmental Policy Division of the Congressional Research Service of the Library of Congress (Comm. Print 1978) at 455 (indicating that BAT calls for the examination of “each industry category or subcategory”). See also
Moreover, the distinction between a category and a subcategory has long been recognized by the Supreme Court. In
EPA's interpretation of the term “categories” is consistent with longstanding Agency practice. Pursuant to CWA section 304(b), which requires EPA to establish effluent guidelines for “classes and categories of point sources,” EPA has promulgated effluent guidelines for 56 industrial “categories.” Each of these “categories” consists of a broad array of facilities that produce a similar product or perform a similar service—and is broken down into smaller subsets, termed “subcategories,” that reflect variations in the processes, treatment technologies, costs and other factors associated with the production of that product that EPA is required to consider in establishing effluent guidelines under section 304(b). For example, the “Pulp, Paper and Paperboard point source category” (40 CFR part 430) encompasses a diverse range of industrial facilities involved in the manufacture of a like product (paper); the facilities range from mills that produce the raw material (pulp) to facilities that manufacture end-products such as newsprint or tissue paper. EPA's classification of this “industry by major production processes addresses many of the statutory factors set forth in CWA Section 304(b), including manufacturing processes and equipment (
Thus, EPA's first decision criterion asks whether a new industrial operation or activity in question is properly characterized as an industry “category” based on similarity of product produced or service provided, or whether it simply represents a variation (
As a practical matter, this approach makes sense. There are constantly new processes being developed within an industry category—new ways of making paper or steel, new ways of cleaning transportation equipment, new ways of extracting oil and gas, for example. These new processes are closely interwoven with the processes already covered by the existing effluent guideline for the category—they often generate similar pollutants, are often performed by the same facilities, and their discharges can often be controlled by the same treatment technology. Therefore, it is more efficient for EPA to consider industry categories holistically by looking at these new processes when reviewing and revising the effluent guideline for the existing category. The opposite approach could lead to a situation when EPA would do a separate effluent guideline every time a new individual process emerges without considering how these new technologies could affect BAT for related activities. In revising effluent guidelines, EPA often creates new subcategories to reflect new processes. For example, the effluent guidelines for the pesticides chemicals category (40 CFR part 455) did not originally cover refilling establishments because this process was developed after the limitations were first promulgated. When EPA revised the effluent guidelines for the Pesticides Chemicals category, EPA included refilling establishments as a new subcategory subject to the effluent limits for this category. The issue is not whether a guideline should be developed for a particular activity, but whether the analysis should occur in isolation or as part of a broader review.
To ensure appropriate regulation of such new subcategories prior to EPA's promulgation of new effluent guidelines for the industrial category to which they belong, under EPA's regulations at 40 CFR part 125.3(c), a permit writer is required to establish technology-based effluent limitations for these processes on a case by case, “Best Professional Judgment” (BPJ) basis, considering the same factors that EPA considers in promulgating categorical effluent limitations guidelines. These new processes are covered by these BPJ-based effluent guidelines until the effluent guidelines for the industrial category is revised to include limits for these new subcategories.
EPA's approach to addressing new industries is analogous to EPA's approach to addressing newly identified pollutants. When EPA identifies new pollutants associated with the discharge from existing categories, EPA considers limits for those new pollutants in the context of reviewing and revising the existing effluent guidelines for that category. For example, EPA revised effluent limitations for the bleached papergrade kraft and soda and papergrade sulfite subcategories within the Pulp, Paper, and Paperboard point source category (40 CFR 430) to add BAT limitations for dioxin, which was not measurable when EPA first promulgated these effluent guidelines and pretreatment standards and was not addressed by the pollutant control technologies considered at that time. See 63 FR 18504 (April 15, 1998).
In short, for the reasons discussed above, EPA believes that the appropriateness of addressing a new process or pollutant discharge is best considered in the context of revising an existing set of effluent guidelines. Accordingly, EPA analyzed similar industrial activities not regulated by existing regulations as part of its annual review of existing effluent guidelines and pretreatment standards.
The second criterion EPA considers when implementing section 304(m)(1)(B) also derives from the plain text of that section. By its terms, CWA section 304(m)(1)(B) applies only to industrial categories to which effluent guidelines under section 304(b)(2) or section 306 would apply, if promulgated. Therefore, for purposes of section 304(m)(1)(B), EPA would not identify in the biennial Plan any industrial categories composed exclusively or almost exclusively of indirect discharging facilities regulated under section 307. For example, based on its finding that the Tobacco Products industry consists almost exclusively of indirect dischargers, EPA did not identify this industry in the Plan but instead considered whether to adopt pretreatment standards for this industry in the context of its section 304(g) / 307(b) review of indirect dischargers. Similarly, EPA would not identify in the Plan categories for which effluent guidelines do not apply, e.g., POTWs regulated under CWA section 301(b)(1)(B) or municipal storm water runoff regulated under CWA section 402(p)(3)(B).
Third, CWA section 304(m)(1)(B) applies only to industrial categories of sources that discharge toxic or non-conventional pollutants to waters of the United States. EPA therefore did not identify in the Plan industrial activities for which conventional pollutants, rather than toxic or non-conventional pollutants, are the pollutants of concern. For example, EPA did not identify in this Plan the construction industry because its discharges consist almost entirely of conventional pollutants. See DCN 04112. Therefore, section 304(m)(1)(B) does not apply to this point source category. EPA mistakenly identified this industry under section 304(m)(1)(B) in the 2002 Plan, not realizing at that time that its discharge consisted almost entirely of conventional pollutants. EPA corrected this mistake by removing this industry
Finally, EPA interprets section 304(m)(1)(B) to give EPA the discretion to identify in the Plan only those potential new categories for which an effluent guideline may be an appropriate tool. Therefore, EPA does not identify in the Plan all potential new categories discharging toxic and non-conventional pollutants. Rather, EPA identifies only those potential new categories for which it believes that effluent guidelines may be appropriate, taking into account Agency priorities, resources and the full range of other CWA tools available for addressing industrial discharges.
This interpretation is supported by the Supreme Court's decision in
Congress specifically accorded EPA with the discretion to choose the appropriate tool for pressing the development of new technologies, authorizing EPA to develop technology-based effluent limitations using a site-specific BPJ approach under CWA section 402(a)(1), rather than pursuant to an effluent guideline. See CWA section 301(b)(3)(B). Significantly, section 301(b)(3)(B) was enacted contemporaneously with section 304(m) and its planning process, suggesting that Congress contemplated the use of both tools, with the choice of tools in any given 304(m) plan left to the Administrator's discretion. The Clean Water Act requirement that EPA develop an effluent guideline plan—when coupled with the broad statutory mandate to consider “appropriate” factors in establishing technology-based effluent limitations and the direction to establish such limitations either through effluent guidelines or site-specific BAT decision-making—cannot be read to constrain the Agency's discretion over what it includes in its plan.
Moreover, because section 304(m)(1)(C) requires EPA to complete an effluent guidelines rulemaking within three years of identifying an industrial category in a 304(m) Plan,
Like the land use plan at issue in
EPA first solicited public comment on the draft Strategy for National Clean Water Industrial Regulations (“Strategy”) on November 29, 2002 (67 FR 71165) and again on August 29, 2005 (70 FR 51042). EPA has used the draft Strategy and comments on the draft Strategy to shape the methodology for its annual reviews of existing effluent guidelines and pretreatment standards and effluent guidelines planning. In doing so, EPA has found that its effluent guidelines reviews and planning are an on-going and iterative process, and that its methodology for conducting these reviews and planning must continually be updated to reflect available data and tools and respond to public comments. Consequently, rather than publishing a “final” Strategy as a separate static document, EPA has chosen instead to use the
EPA first solicited public comments in the November 29, 2002,
After reviewing public comments on the draft Strategy and on the annual reviews described in the
In the initial screening analysis of existing effluent guidelines and pretreatment standards, EPA gives the most weight to the first factor—amount and toxicity of the pollutants in an industrial category's discharge—in deciding which effluent guidelines to review in more detail. This enables the Agency to set priorities for rulemaking in order to achieve the greatest environmental and health benefits. EPA's assessment of hazard also enables the Agency to indirectly assess the effectiveness of pollution control technologies and processes currently in use by an industrial category, based on the amount and toxicity of its discharges. This also helps the Agency to assess the extent to which additional regulation may contribute reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as specified in section 301(b)(2)(A).
The value of using a comparative risk approach to prioritize environmental actions has been noted by others including EPA's Science Advisory Board. See U.S. EPA (1993), A Guidebook to Comparing Risks and Setting Environmental Priorities, EPA 230–B–93–003. EPA's use of the first factor is similar to the use of a comparative risk analysis, which is “intended principally as a policy-development and broad resource-allocation tool.” See DCN 3576. To the extent possible with the available data, EPA has tried to incorporate risk as a factor in its reviews by using the approach to ranking point source categories outlined in the draft Strategy. However, there are limitations in the data and tools. In particular, EPA presently lacks on a national scale the detailed exposure assessment data and tools necessary to complete a risk assessment (e.g., analyze for each industrial facility the fate and transport of discharged pollutants in an actual waterbody, exposure pathways of pollutants to populations in a watershed, and uptake of the discharged pollutants) (
EPA has also given added weight to the fourth factor, implementation and efficiency considerations, in deciding which effluent guidelines to review in more detail. Here, EPA considers opportunities to eliminate inefficiencies or impediments to pollution prevention or technological innovation, or opportunities to promote innovative approaches such as water quality trading, including within-plant trading. For example, in the 1990s, industry requested in comments on the Offshore and Coastal Oil and Gas Extraction (40 CFR part 435) effluent guidelines rulemakings that EPA revise these effluent guidelines because they inhibited the use of a new pollution prevention technology (synthetic-based drilling fluids). EPA agreed that revisions to these effluent guidelines were appropriate for promoting synthetic-based drilling fluids as a pollution prevention technology and promulgated revisions to the Oil and Gas Extraction point source category. See 66 FR 6850 (Jan. 22, 2001). This factor might also prompt EPA, during an annual review, to decide against identifying an existing set of effluent guidelines or pretreatment standards for revision where the pollutant source is already efficiently and effectively controlled by other regulatory or non-regulatory programs.
As previously noted, current data limitations make it difficult to directly evaluate in the initial screening analysis the second factor—the availability of technology to reduce the pollutants remaining in the industrial category's wastewater. Similarly, EPA has not been able to find a tool to enable it to consider the third factor—economic achievability of candidate treatment technologies—in its initial screening analysis. EPA anticipates that over time more information related to the second and third factors will become available and may permit the Agency to incorporate these two factors into the initial screening analysis. For now, EPA assesses the second and third factors in conducting its detailed reviews of those industries that rank highest with respect to hazard. In its detailed reviews, EPA typically examines: (1) Wastewater characteristics and pollutant sources; (2) pollutants driving the total amount of toxic and non-conventional pollutant discharges; (3) treatment technology and pollution prevention information; (4) the geographic distribution of facilities in the industry; (5) any pollutant discharge trends within the industry; and (6) any relevant economic factors.
After consideration of public comment and further analyses based on all four factors, EPA prioritizes the categories for effluent guidelines rulemakings and publishes the rulemaking schedules in the final biennial plan issued in August of every even-numbered year. By using this multi-layered screening approach, the Agency concentrates its resources on those point source categories with the highest estimated hazard associated with toxic and non-conventional pollution (based on best available data), while assigning a lower priority to categories that the Agency believes are not good candidates for effluent guidelines or pretreatment standards revisions at that time.
Environmental Protection Agency (EPA).
Notice of Proposed NPDES General Permit Reissuance.
The Regional Administrator of Region 6 today proposes to reissue the National Pollutant Discharge Elimination System (NPDES) general permit for the Western Portion of the Outer Continental Shelf of the Gulf of Mexico (No. GMG290000) for discharges from existing and new dischargers and New Sources in the Offshore Subcategory of the Oil and Gas Extraction Point Source Category as authorized by section 402 of the Clean Water Act. The permit, previously reissued on October 7, 2004, and published in the
Comments must be received by February 20, 2007.
Comments should be sent to: Ms. Diane Smith, Water Quality Protection Division, U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202–2733.
Comments may also be submitted via e-mail to the following address:
Ms. Diane Smith, Region 6, U.S. Environmental Protection Agency (6WQ–CA), 1445 Ross Avenue, Dallas, Texas 75202–2733. Telephone: (214) 665–2145.
A copy of the proposed permit, and the fact sheet more fully explaining the proposal may be obtained from Ms. Smith. The Agency's current administrative record on the proposal is available for examination at the Region's Dallas offices during normal working hours after providing Ms. Smith 24 hours advance notice. Additionally, a copy of the proposed permit, fact sheet, and this
The permit contains limitations conforming to EPA's Oil and Gas extraction, Offshore Subcategory Effluent Limitations Guidelines at 40 CFR Part 435 and additional requirements assuring that regulated discharges will cause no unreasonable degradation of the marine environment, as required by section 403(c) of the Clean Water Act. Specific information on the derivation of those limitations and conditions is contained in the fact sheet.
Since this permit reissuance will not significantly change the reporting and application requirements which are required under the previous Western Gulf of Mexico Outer Continental Shelf (OCS) general permit (GMG290000), the paperwork burdens are expected to be nearly identical. When it issued the previous OCS general permit, EPA estimated it would take an affected facility three hours to prepare the request for coverage and 38 hours per year to prepare discharge monitoring reports. It is estimated that the time required to prepare the request for coverage and discharge monitoring reports for the reissued permit will be the same and will not be affected by this action.
However, the alternative to obtaining authorization to discharge under this general permit is to obtain an individual permit. The application and reporting burden of obtaining authorization to discharge under the general permit is expected to be significantly less than that under an individual permit.
NPDES general permits are not “rules” under the APA and thus not
EPA has determined that the proposed permit reissuance would not contain a Federal requirement that may result in expenditures of $100 million or more for State, local and tribal governments, in the aggregate, or the private sector in any one year.
The Agency also believes that the permit would not significantly nor uniquely affect small governments. For UMRA purposes, “small governments” is defined by reference to the definition of “small governmental jurisdiction” under the RFA. (See UMRA section 102(1), referencing 2 U.S.C. 658, which references section 601(5) of the RFA.) “Small governmental jurisdiction” means governments of cities, counties, towns, etc., with a population of less than 50,000, unless the agency establishes an alternative definition.
The permit, as proposed, also would not uniquely affect small governments because compliance with the proposed permit conditions affects small governments in the same manner as any other entities seeking coverage under the permit. Additionally, EPA does not expect small governments to operate facilities authorized to discharge by this permit.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than January 16, 2007.
Board of Governors of the Federal Reserve System, December 18, 2006.
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number, OMB number, and OS document identifier, to
Announcement of meeting.
This notice announces the first meeting of the American Health Information Community Personalized Healthcare Workgroup in accordance with the Federal Advisory Committee Act (Pub. L. 92–463, 5 U.S.C., App.)
January 4, 2007 from 1 p.m. to 4 p.m., EST.
Mary C. Switzer Building (330 C Street, SW., Washington, DC 20201), Conference Room 4090. (You will need a photo ID to enter a Federal building.)
At this inaugural meeting, the Workgroup members will be introduced and will introduced and will begin discussion of the charges to the group on making recommendations to the American Health Information Community.
The meeting will be available via internet access. Go to
Announcement of meeting.
This notice announces the 13th meeting of the American Health Information Community Biosurveillance Workgroup in accordance with the Federal Advisory Committee Act (Pub. L. 92–463, 5 U.S.C., App.).
January 5, 2007 from 12 to 3 p.m.
Mary C. Switzer Building (330 C Street, SW., Washington, DC 20201), Conference Room 4090 (please bring photo ID for entry to a Federal building).
The Workgroup will continue discussing the Biosurveillance Priority Area matrix.
The meeting will be available via internet access. For additional information, go to
Announcement of meeting.
This notice announces the sixth meeting of the American Health Information Community Confidentiality, Privacy and Security Workgroup in accordance with the Federal Advisory Committee Act (Pub. L. No. 92–463, 5 U.S.C., App.).
January 8, 2007, from 1 p.m. to 5 p.m. EST.
Mary C. Switzer Building (330 C Street, SW., Washington, DC 20201), Conference Room 4090. (Please bring photo ID for entry to a Federal building.)
The workgroup members will continue their discussion of Identity Proofing recommendations and work on prioritizing issues for future work.
The meeting will be available in Web cast at
Announcement of meeting.
This notice announces the 12th meeting of the American Health Information Community Chronic Care Workgroup in accordance with the Federal Advisory Committee Act (Pub. L. No. 92–463, 5 U.S.C., App.).
January 18, 2007, from 1 p.m. to 5 p.m.
Mary C. Switzer Building (330 C Street, SW., Washington, DC 20201), Conference Room 4090. (Please bring photo ID for entry to a Federal building.)
The Workgroup will continue discussing secure messaging.
The meeting will be available via internet access. For additional information, go to
Announcement of meeting.
This notice announces the 12th meeting of the American Health Information Community Electronic Health Records Workgroup in accordance with the Federal Advisory Committee Act (Pub. L. No. 92–463, 5 U.S.C., App.).
January 11, 2007 from 1 p.m. to 4 p.m.
Mary C. Switzer Building (330 C Street, SW., Washington, DC 20201), Conference Room 4090. [Please bring photo ID for entry to a Federal building.]
The workgroup will continue its discussion on the barriers and drivers of EHR adoption.
The meeting will be available via internet access. For additional information, go to
Announcement of meeting.
This notice announces the 13th meeting of the American Health Information Community Consumer Empowerment Workgroup in accordance with the Federal Advisory Committee Act (Pub. L. No. 92–463, 5 U.S.C., App.).
January 10, 2007, from 1 p.m. to 4 p.m. EST.
Marcy C. Switzer Building (330 C Street, SW., Washington, DC 20201), Conference Room 4090 (please bring photo ID for entry to a Federal building).
The Workgroup members will continue its discussion about potential recommendations to the AHIC addressing the broad charge to the Workgroup, and hear about recent research on interoperability issues.
The meeting will be available via internet access. For additional information, go to
Announcement of meeting.
This notice announces the fifth meeting of the American Health Information Community Quality Workgroup in accordance with the Federal Advisory Committee Act (Pub. L. No. 92–463, 5 U.S.C., App.).
January 9, 2007, from 1 p.m. to 5 p.m.
Mary C. Switzer Building (330 C Street, SW., Washington, DC 20201), Conference Room 4090. (You will need a photo ID to enter a Federal building.)
During the meeting, the Workgroup will continue their discussion on a core set of quality measures and on the specific charge to the Workgroup. The Workgroup members will continue discussion on their work to envision and describe a world in which quality measurement and reporting are automated and clinical decision support is used to improve performance on those quality measures. This shared vision will be used to inform potential recommendations to the AHIC addressing the broad and specific charges to the Workgroup.
The meeting will be available via internet access. For additional information, go to
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639–5960 or send an e-mail to
Well-Integrated Screening and Evaluation for Women Across the Nation (WISEWOMAN) Reporting System—EXTENSION—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
The WISEWOMEN program, which focuses on reducing cardiovascular disease risk factors among at-risk women, was in response to the Secretary of Health and Human Services' Continuous Improvement Initiative, asking for the development of programs that examine ways in which service delivery can be improved for select populations. Title XV of the Public Health Service Act, Section 1509 originally authorized the secretary of the Department of Health and Human Services to establish up to three demonstration projects. Through appropriations language, the CDC WISEWOMAN program is now allowed to fund up to 15 projects. Currently, WISEWOMAN funds 12 demonstration projects, which at full implementation are expected to screen approximately 30,000 women annually for cardiovascular disease risk factors. The program targets women already participating in the National Breast and Cervical Cancer Early Detection Program (NBCCEDP) and provides screening for select cardiovascular disease risk factors (including elevated cholesterol, hypertension and abnormal blood glucose levels), lifestyle interventions, and medical referrals as required in an effort to improve cardiovascular health among participants.
The CDC proposes to collect and analyze baseline and follow-up date (12 months post enrollment) for all participants. These data called the minimum data elements (MDE's), includes demographic and risk factor information about women served in each program and information concerning the number and type of intervention sessions attended. The MDE's will be reported to CDC in April and October each year. The MDE allows or an assessment of how effective WISEWOMAN is at reducing the burden of cardiovascular disease risk factors among participants. The CDC also proposes to collect programmatic data for all WISEWOMAN programs. Programmatic data includes information related to grantee management, public education and outreach professional education service delivery, cost, and an assessment of how well each program is meeting their stated objectives.
All required data will be submitted electronically to the contractor hired by CDC to conduct the WISEWOMAN evaluation. MDE and cost data will be submitted to RTI twice a year. All information collected as part of the WISEWOMAN evaluation will be used to assess the costs, effectiveness and cost-effectiveness of WISEWOMAN in reducing cardiovascular disease risk factors, for obtaining more complete health data among vulnerable populations, promoting public education of disease incidence and risk-factors, improving the availability of screening and diagnostic services for under-served women, ensuring the quality of services provided to women and developing strategies for improved interventions. Because certain demographic data are already collected as part of NBCCEDP, the additional burden on grantees will be modest.
There are no costs to the respondents other than their time. The total estimated annualized burden hours are 2,160.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “Procedures for Handling Post-Approval Studies Imposed by PMA Order.” The guidance provides a standard format and content for submitting post-approval studies. The guidance is issued to help ensure that sponsors provide adequate information about the conduct of post-approval studies and that the Center for Devices and Radiological Health (CDRH) can properly track and evaluate post-approval studies.
Submit written or electronic comments on this guidance at any time. General comments on agency guidance documents are welcome at any time.
Submit written requests for single copies of the guidance document entitled “Procedures for Handling Post-Approval Studies Imposed by PMA Order” to the Division of Small Manufacturers, International, and Consumer Assistance (HFZ–220), Center for Devices and Radiological Health, Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 240–276–3151. See the
Submit written comments concerning this guidance to the Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Steven H. Chasin, Center for Devices and Radiological Health (HFZ– 520), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 240–276–3421.
This guidance provides recommendations to sponsors and CDRH staff on expectations concerning format, content, and review of reports related to post-approval studies imposed by premarket approval application order to help ensure that the studies are conducted effectively and efficiently, and in a least burdensome manner. The guidance has been drafted in response to concerns by Congress, the Institute of Medicine, and FDA about the agency's ability to monitor and track these studies and industry's requests for more clarity about the agency's expectations. FDA received a few comments on the draft document (announced at 70 FR 54561, September 15, 2005) and has made minor changes to the guidance.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the agency's current thinking on post-approval studies. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Persons interested in obtaining a copy of the guidance may do so by using the Internet. To receive “Procedures for Handling Post-Approval Studies Imposed by PMA Order,” you may either send an e-mail request to
CDRH maintains an entry on the Internet for easy access to information including text, graphics, and files that may be downloaded to a personal computer with Internet access. Updated on a regular basis, the CDRH home page includes device safety alerts,
This guidance refers to previously approved collections of information found in FDA's regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR part 814 have been approved under OMB Control No. 0910–0231; the collections of information in 21 CFR part 822 have been approved under OMB Control No. 0910–0449.
Interested persons may submit to the Division of Dockets Management (See
This notice amends Part A (Office of the Secretary), chapter AF of the Statement of Organization, Functions, and Delegations of Authority for the Department of Health and Human Services (HHS) to reflect title changes and responsibilities within the Office of Inspector General's (OIG) Office of Evaluation and Inspections (OEI), Office of Management and Policy (OMP), Office of Investigations (OI), and Office of Audit Services (OAS). The statement of organization, functions, and delegations of authority conforms to and carries out the statutory requirements for operating OIG. Chapter AF was last published in its entirety on April 18, 2005 (70 FR 20147).
These organizational changes are primarily to realign the functions of OMP, OAS, OI, and OEI to better reflect the current work environment and priorities and to more clearly delineate responsibilities for the various activities within these offices.
As amended, sections AFC.00, AFC.10, AFC20, AFE.10, AFE.20, AFH10, AFH.20, and AFJ.20 of Chapter AF now reads as follows:
The Office of Management and Policy (OMP) provides mission support services to the Inspector General and other OIG components by formulating and executing the budget, developing policy, disseminating OIG information in the form of publications, managing information technology, human resources, executive resources and OIG space management. OMP also executes and maintains an internal quality assurance system, which includes quality control reviews of OMP processes and products, to ensure that OIG policies and procedures are followed effectively and function as intended.
The office is comprised of the following components.
A. Immediate Office
B. Budget Operations
C. Information Technology
D. Planning, Reporting, and Analysis
E. Administrative Services
This office is directed by the Deputy Inspector General for OMP who, aided by an Assistant Inspector General, is responsible for assuring that the OIG has the financial and administrative resources necessary to fulfill its mission. The Deputy Inspector General supervises the Directors for the Budget Division, Corporate Business Division, and Service and Support Division within the Office of Information Technology, Planning, Reporting and Analysis Division, and Administrative Services Division.
This office formulates and oversees the execution of the budget and confers with the Office of the Secretary, the Office of Management and Budget, and Congress on budget issues. It also issues quarterly grants to States for Medicaid Fraud Control Units and arranges internal control reviews for OIG, including the development of Government Performance and Results Act goals.
This office is directed by the Assistant Inspector General for Management and Policy who also serves as the Chief Information Officer for the Office of Inspector General. The office is responsible to support the Office of Inspector General and its components in completing their missions, by providing quality services for managing and processing information through the selected application of technology in a collaborative and secure manner. The office operates under the guidelines of Federal regulations, mandates, and directives for the development and operation of information technology systems. Organizational focus includes four key areas of (1) Technology planning and governance, (2) information assurance, (3) infrastructure and communications, and (4) systems and applications support. Technology projects provide a basic network infrastructure for a widely distributed organization across the nation, and mission-related technology to conduct the business of OIG.
This office is responsible for coordinating the development and preparation of the work plan, including coordinating strategic long-range planning, tactical planning, and the annual work plan organization and production. It compiles the
This office is responsible for overseeing emergency operations and national security classification policy. The office conducts management studies and analyzes, establishes, and coordinates general management policies for OIG and publishes those policies in the
The office serves as OIG liaison to the Office of the Secretary for personnel issues and other administrative policies and practices; including human resources (HR), training, facilities, asset management, executive resources, and the performance management system, in addition to equal employment opportunity and other civil rights matters. These functions support all components of the OIG organization, except the HR function, which services all OMP staff.
This office is comprised of the following components:
A. Immediate Office
B. Budget and Administrative Resources Division
C. Evaluation Planning and Support Division
D. Regional Operations
E. Technical Support Staff
F. Medicaid Oversight Staff
This office is directed by the Deputy Inspector General for OEI who, with the assistance of an Assistant Inspector General, is responsible for carrying out OIG's evaluations mission. The Deputy Inspector General supervises the Assistant Inspector General, the Director for Budget and Administrative Resources, and the Director of the Medicaid Fraud Unit Oversight Division. The Assistant Inspector General supervises the Directors of Evaluation and Planning and Support and Technical Support, as well as all Regional Operations.
This office develops OEI's evaluation and inspection policies, procedures and standards. It manages OEI's human and financial resources; develops and monitors OEI's management information systems; and conducts management reviews within the HHS/OIG and for other OIGs upon request. The office carries out and maintains an internal quality assurance system that includes quality assessment studies and quality control reviews of OEI processes and products to ensure that policies and procedures are effective, followed, and function as intended.
This office manages OEI's work planning process, and develops and reviews legislative, regulatory and program proposals to reduce vulnerabilities to fraud, waste, and mismanagement. It develops evaluation techniques and coordinates projects with other OIG and departmental components. It provides programmatic expertise and information on new programs, procedures, regulations, and statutes to OEI regional offices. This office maintains liaison with other components in the Department, follows up on implementation of corrective action recommendations, evaluates the actions taken to resolve problems and vulnerabilities identified, and provides additional data or corrective action options, where appropriate.
Regional Offices comprise OEI's offices in the field. The regional offices conduct extensive evaluations of HHS programs and produce the results in inspection reports. They conduct data and trend analyses of major HHS initiatives to determine the effects of current policies and practices on program efficiency and effectiveness. These offices recommend changes in program policies, regulations, and laws to improve efficiency and effectiveness and to prevent fraud, abuse, waste, and mismanagement. They analyze existing policies to evaluate options for future policy, regulatory, and legislative improvement.
The Medicaid Oversight Staff is responsible for overseeing the activities of the 49 State Medicaid Fraud Control Units (MFCUs). The division ensures the MFCUs' compliance with Federal grant regulations, administrative rules, and performance standards. The division is also responsible for certifying and recertifying the MFCUs on an annual basis.
The office is comprised of the following components:
A. Immediate Office
B. Financial Management and Regional Operations
C. Centers for Medicare and Medicaid Services Audits
D. Grants, Internal Activities, and Information Technology Audits
E. Audit Management and Policy
This office is directed by the Assistant Inspector General for Grants, Internal Activities, and Information Technology Audits. The office conducts and oversees audits of the operations and programs of the Administration for Children and Families, the Administration on Aging, and the Public Health programs, as well as Statewide cost allocation plans. It maintains an internal quality assurance system, including periodic quality control reviews, to provide reasonable assurance that applicable laws, regulations, policies, procedures, standards and other requirements are followed in its audit activities. The office reviews the design, development and maintenance of Department computer-based systems through the conduct of comprehensive audits of general and application controls in accordance with applicable requirements and develops and applies advanced computer-based audit techniques for use in detecting fraud, waste and abuse in HHS programs.
This office is directed by the Assistant Inspector General for Audit Management and Policy. The office manages OAS's human and financial resources by developing staff allocation plans, monitoring budget execution, overseeing recruiting and training, and participating in the development of administrative policies and procedures. It maintains a professional development program for office staff, which meets the requirements of Government auditing standards. The office evaluates audit work, including performing quality control reviews of audit reports, and coordinates the development of and monitors audit work plans. It operates and maintains an OAS-wide quality assurance program that includes the conduct of periodic quality control reviews. It develops audit policy, procedures, standards, criteria and instructions to be followed by OAS staff in conducting audits of departmental programs, grants, contracts or operations. Such policy is developed in accordance with GAGAS and other legal, regulatory and administrative requirements. The office tracks, monitors and reports on audit resolution and follow-up in accordance with OMB Circular A–50, “Audit Follow-up,” and the 1988 Inspector General Act Amendments. The office coordinates with other OIG components in developing input to the
The Assistant Inspector General for Investigative Operations, who supervises a headquarters staff and the Special Agents in Charge, directs this office.
4. The regional offices conduct investigations of allegations of fraud, waste, abuse, mismanagement, and violations of standards of conduct within the jurisdiction of OIG in their assigned geographic areas. They coordinate investigations and confer with HHS operating division, staff divisions, OIG counterparts, and other investigative and law enforcement
This office is directed by the Assistant Inspector General for Investigative Oversight and Support, who performs the general management functions of the Office of Investigations.
9. The office directs and manages extremely sensitive and complex investigations into alleged misconduct by OIG and Departmental employees, as well as criminal investigations into electronic and/or computer-related violations.
Coast Guard, DHS.
Request for comments.
In compliance with the Paperwork Reduction Act of 1995, this request for comments announces that the Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) to request a revision of a currently approved collection of information. The ICR is 1625–0086, Great Lakes Pilotage. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensures that we impose only paperwork burdens commensurate with our performance of duties.
Please submit comments on or before January 22, 2007.
To make sure that your comments and related material do not reach the docket [USCG–2006–25747] or OIRA more than once, please submit them by only one of the following means:
(1)(a) By mail to the Docket Management Facility, U.S. Department of Transportation (DOT), room PL–401, 400 Seventh Street, SW., Washington, DC 20590–0001. (b) By mail to OIRA, 725 17th Street, NW., Washington, DC 20503, to the attention of the Desk Officer for the Coast Guard.
(2)(a) By delivery to room PL–401 at the address given in paragraph (1)(a) above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366–9329. (b) By delivery to OIRA, at the address given in paragraph (1)(b) above, to the attention of the Desk Officer for the Coast Guard.
(3) By fax to (a) the Facility at (202) 493–2298 or by contacting (b) OIRA at (202) 395–6566. To ensure your comments are received in time, mark the fax to the attention of Mr. Nathan Lesser, Desk officer for the Coast Guard.
(4)(a) Electronically through the Web site for the Docket Management System (DMS) at
The Docket Management Facility maintains the public docket for this notice. Comments and material received from the public, as well as documents mentioned in this notice as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL–401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
Copies of the complete ICR is available through this docket on the Internet at
Mr. Arthur Requina, Office of Information Management, telephone (202) 475–3523 or fax (202) 475–3929, for questions on these documents; or Ms. Renee V. Wright, Program Manager, Docket Operations, (202) 493–0402, for questions on the docket.
The Coast Guard invites comments on the proposed collection of information to determine whether the collection is necessary for the proper performance of the functions of the Department. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the collections; (2) the accuracy of the estimated burden of the collections; (3) ways to enhance the quality, utility, and clarity of the information that is the subject of the collections; and (4) ways to minimize the burden of collections on respondents, including the use of automated collection techniques or other forms of information technology.
Comments to DMS or OIRA must contain the OMB Control Number of the ICRs addressed. Comments to DMS must contain the docket number of this request, [USCG 2006–25747]. For your comments to OIRA to be considered, it is best if OIRA receives them on or before January 22, 2007.
The Coast Guard and OIRA will consider all comments and material received during the comment period. We may change the documents supporting this collection of information or even the underlying requirements in view of them.
This request provides a 30-day comment period required by OIRA. The Coast Guard has already published the 60-day notice (71 FR 57986, October 2, 2006) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of New York (FEMA–1670–DR), dated December 12, 2006, and related determinations.
December 12, 2006.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646–2705.
Notice is hereby given that, in a letter dated December 12, 2006, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121–5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of New York resulting from severe storms and flooding during the period of November 16–17, 2006, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121–5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of New York.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act you may deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs. If Other Needs Assistance under Section 408 of the Stafford Act is later warranted, Federal funding under that program will also be limited to 75 percent of the total eligible costs. Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Director, under Executive Order 12148, as amended, Marianne C. Jackson, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of New York to have been affected adversely by this declared major disaster: Broome, Chenango, Delaware, Hamilton, Herkimer, Montgomery, Otsego, and Tioga Counties for Public Assistance.
All counties within the State of New York are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Washington (FEMA–1671–DR), dated December 12, 2006, and related determinations.
December 12, 2006.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646–2705.
Notice is hereby given that, in a letter dated December 12, 2006, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121–5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Washington
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act you may deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation and Other Needs Assistance will be limited to 75 percent of the total eligible costs. If Public Assistance is later requested and warranted, Federal funds provided under that program will also be limited to 75 percent of the total eligible costs. Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Director, under Executive Order 12148, as amended, Elizabeth Turner, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of Washington to have been affected adversely by this declared major disaster: Clark, Cowlitz, Grays Harbor, King, Lewis, Pierce, Skagit, Skamania, Snohomish, Thurston, and Wahkiakum Counties for Individual Assistance.
All counties within the State of Washington are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB Control number and should be sent to: Aneita Waites, Reports Liaison Officer, Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room 4116, Washington, DC 20410–5000.
Aneita Waites, (202) 708–0713, extension 4114, for copies of the proposed forms and other available documents. (This is not a toll-free number).
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
Office of the Secretary, HUD.
Notice.
In this notice, HUD announces the establishment of an Office of Hearings and Appeals within the Office of the Secretary.
Earnestine T. Pruitt, Deputy Assistant Secretary, Office of Administration, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 2158, Washington, DC 20410, telephone (202) 7080–1381 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877–8339.
HUD has established an Office of Hearings and Appeals within the Office of the Secretary, under the supervision of the Director of the Office of Hearings and Appeals. The Office of Hearings and Appeals consists of two separate divisions: the Office of Administrative Law Judges and the Office of Appeals. The Director of the Office of Hearings and Appeals shall supervise and manage the administrative activities of the Office of Administrative Law Judges and the Office of Appeals.
The Office of Administrative Law Judges shall have independent jurisdiction in deciding cases consistent with statutes and HUD regulations. The Office of Appeals shall have judicial review and jurisdiction of non-contract cases currently handled by the HUD Board of Contract Appeals in accordance with following regulatory sections in title 24 of the Code of Federal Regulations: §§ 17.150 through 17.170 20.4(b), 24.947, 25.3 and 26.2, and consistent with applicable statutes, regulations, agreements, or such other matters as may be assigned by the Secretary of HUD or the Secretary's designee.
The establishment of an Office of Hearings and Appeals facilitates operations within HUD relating to the implementation of section 847 of Title VIII of the National Defense Authorization Act of Fiscal Year 2006 (Public Law 109–613, approved January 6, 2006).
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (Fish and Wildlife Service) have sent an Information Collection Request (ICR) to OMB for review and approval. This ICR is scheduled to expire on December 31, 2006. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. However, under OMB regulations, we may continue to conduct or sponsor this information collection while it is pending at OMB.
You must submit comments on or before January 22, 2007.
Send your comments and suggestions on this ICR to the Desk Officer for the Department of the Interior at OMB–OIRA at (202) 395–6566 (fax) or
To request additional information about this ICR, contact Hope Grey at one of the addresses above or by telephone at (703) 358–2482.
We again invite comments concerning this information collection on:
(1) Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on respondents. Comments submitted in response to this notice are a matter of public record.
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (Fish and Wildlife Service) have sent an Information Collection Request (ICR) to OMB for review and approval. The ICR, which is summarized below, describes the nature of the collection and the estimated burden. This ICR is scheduled to expire on December 31, 2006. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. However, under OMB regulations, we may continue to conduct or sponsor this information collection while it is pending at OMB.
You must submit comments on or before January 22, 2007.
Send your comments and suggestions on this ICR to the Desk Officer for the Department of the Interior at OMB–OIRA at (202) 395–6566 (fax) or
To request additional information about this ICR, contact Hope Grey at one of the addresses above or by telephone at (703) 358–2482.
The information that we collect is unique to each wildlife shipment and enables us to (1) Accurately inspect the contents of the shipment; (2) enforce any regulations that pertain to the fish, wildlife, or wildlife products contained in the shipment; and (3) maintain records of the importation and exportation of these commodities. Additionally, since the United States is a member of CITES, we compile much of the collected information in an annual report that we provide to the CITES Secretariat in Geneva, Switzerland. This annual report on the number and types of imports and exports of fish, wildlife, and wildlife products is one of our treaty obligations under CITES. We also use the information obtained from FWS Form 3–177 as an enforcement tool and management aid to monitor the international wildlife market and detect trends and changes in the commercial trade of fish, wildlife, and wildlife products. Our Division of Scientific Authority and Division of Management Authority use this information to assess the need for additional protection for native species.
Businesses or individuals must file FWS Forms 3–177/3–177a with us at the time and port where they request clearance of the import or export of wildlife or wildlife products. In certain instances, they may file the forms with U.S. Customs and Border Protection. The information we collect includes:
(1) Name of the importer or exporter and broker.
(2) Scientific and common name of the fish or wildlife.
(3) Permit numbers (if permits are required).
(4) Description, quantity, and value of the fish or wildlife.
(5) Natural country of origin of the fish or wildlife.
In addition, certain information, such as the airway bill or bill of lading number, the location of the fish or wildlife for inspection, and the number of cartons containing fish or wildlife, assists our wildlife inspectors if a physical examination of the shipment is necessary. This information collection is part of a system of records covered by the Privacy Act (5 U.S.C. 552(a)).
We again invite comments concerning this information collection on:
(1) Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on respondents. Comments submitted in response to this notice are a matter of public record.
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (Fish and Wildlife Service) have sent an Information Collection Request (ICR) to OMB for review and approval. The ICR, which is summarized below, describes the nature of the collection and the estimated burden and cost. This ICR is scheduled to expire on December 31, 2006. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. However, under OMB regulations, we may continue to conduct or sponsor this information collection while it is pending at OMB.
You must submit comments on or before January 22, 2007.
Send your comments and suggestions on this ICR to the Desk Officer for the Department of the Interior at OMB–OIRA at (202) 395–6566 (fax) or
To request additional information about this ICR, contact Hope Grey at one of the addresses above or by telephone at (703) 358–2482.
The regulations at 50 CFR 20.134 outline the application and approval process for new types of nontoxic shot. When considering approval of a candidate material as nontoxic, we must ensure that it is not hazardous in the environment and that secondary exposure (ingestion of spent shot or its components) is not a hazard to migratory birds. To make that decision, we require each applicant to collect information about the solubility and toxicity of the candidate material. Additionally, for law enforcement purposes, a noninvasive field detection device must be available to distinguish candidate shot from lead shot. This information constitutes the bulk of an application for approval of nontoxic shot.
We again invite comments concerning this information collection on:
(1) Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on respondents. Comments submitted in response to this notice are a matter of public record.
Fish and Wildlife Service, Interior.
Notice of issuance of permits for endangered species and marine mammals.
The following permits were issued.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358–2281.
Division of Management Authority, telephone 703/358–2104.
Notice is hereby given that on the dates below, as authorized by the provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species and/or marine mammals.
Written data, comments or requests must be received by January 22, 2007.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358–2281.
Division of Management Authority, telephone 703/358–2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a renewal of their permit to export, import, and re-import live captive-born and wild specimens, biological samples, and salvaged material of black-footed ferret (
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species and/or marine mammals.
Written data, comments or requests must be received by January 22, 2007.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358–2281.
Division of Management Authority, telephone 703/358–2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests the re-issuance of their permits to re-export and re-import five female Asian elephants (
The public is invited to comment on the following applications for a permit to conduct certain activities with marine mammals. The applications were submitted to satisfy requirements of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
Fish and Wildlife Service, Interior.
Notice of issuance of permits for endangered species and marine mammals.
The following permits were issued.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358–2281.
Division of Management Authority, telephone 703/358–2104.
Notice is hereby given that on the dates below, as authorized by the provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species and/or marine mammals.
Written data, comments or requests must be received by January 22, 2007.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358–2281.
Division of Management Authority, telephone 703/358–2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import one male and one female captive born cheetah (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The public is invited to comment on the following application for a permit to conduct certain activities with marine mammals. The application was submitted to satisfy requirements of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
The applicant requests a permit to import a polar bear (
Fish and Wildlife Service, Interior.
Notice of issuance of permits for endangered species.
The following permits were issued.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358–2281.
Division of Management Authority, telephone 703/358–2104.
Notice is hereby given that on the dates below, as authorized by the provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species.
Written data, comments or requests must be received by January 22, 2007.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358–2281.
Division of Management Authority, telephone 703/358–2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to authorize interstate and foreign commerce, export, and cull of excess barasingha (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
Fish and Wildlife Service, Interior.
Notice of issuance of permits for endangered species.
The following permits were issued.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358–2281.
Division of Management Authority, telephone 703/358–2104.
Notice is hereby given that on the dates below, as authorized by the provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species.
Written data, comments or requests must be received by January 22, 2007.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358–2281.
Division of Management Authority, telephone 703/358–2104.
The public is invited to comment on the following application to import birds for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to export captive-hatched Andean condors (
The applicant requests a permit to import blood samples from red-back squirrel monkeys (
The applicant requests a permit to import one male and one female captive bred cheetah (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
Fish and Wildlife Service, Interior.
Notice of issuance of permits for marine mammals.
The following permits were issued.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358–2281.
Division of Management Authority, telephone 703/358–2104.
Notice is hereby given that on the dates below, as authorized by the provisions of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
Bureau of Land Management, Interior.
Notice of Filing of Plat of Survey; Maine.
The Bureau of Land Management (BLM) will file the plat of survey of the lands described below in the BLM-Eastern States, Springfield, Virginia, 30 calendar days from the date of publication in the
Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia 22153. Attn: Cadastral Survey.
This survey was requested by the Bureau of Indian Affairs.
The lands we surveyed are:
The plat of survey represents the dependent resurvey and survey of the boundaries of lands held in trust for the Penobscot Indian Nation in Township 2, Range 8, North of Waldo Patent Penobscot County, Maine and was accepted December 8, 2006. We will place a copy of the plat we described in the open files. It will be available to the public as a matter of information. If BLM receives a protest against this survey, as shown in the plat, prior to the date of the official filing, we will stay the filing pending our consideration of the protest.
We will not officially file the plat until the day after we have accepted or dismissed all protests and they have become final, including decisions on appeals.
Bureau of Land Management, Interior.
Notice of filing of plat of survey; North Carolina.
The Bureau of Land Management (BLM) will file the plat of survey of the lands described below in the BLM-Eastern States, Springfield, Virginia, 30 calendar days from the date of publication in the
Bureau of Land Management, 7450 Boston Boulevard, Springfield, Virginia 22153. Attn: Cadastral Survey.
This survey was requested by the Bureau of Indian Affairs.
The lands we surveyed are:
The plat of survey represents the dependent resurvey of Tract number 32 and a portion of Tract Number 35, and was accepted December 7, 2006. We will place a copy of the plat we described in the open files. It will be available to the public as a matter of information. If BLM receives a protest against this survey, as shown on the plat, prior to the date of the official filing, we will stay the filing pending our consideration of the protest.
We will not officially file the plat until the day after we have accepted or dismissed all protests and they have become final, including decisions on appeals.
National Park Service, Department of the Interior.
Notice of Availability of the Draft Environmental Impact Statement for the Ecological Restoration Plan, Bandelier National Monument.
Pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C), the National Park Service announces the availability of a Draft Environmental Impact Statement for the Ecological Restoration Plan for Bandelier National Monument, New Mexico.
The National Park Service will accept comments on the Draft Environmental Impact Statement from the public. Comments will be accepted for 60 days from the date the Environmental Protection Agency publishes the Notice of Availability. No public meetings are scheduled at this time.
Information will be available for public review and comment online at
John Mack, Chief of Resource Management, Bandelier National Monument, 15 Entrance Road, Los Alamos, New Mexico 87544, 505–672–3861, extension 540,
If you wish to comment, you may submit your comments by any one of several methods. You may mail comments to Superintendent Darlene Koontz, Bandelier National Monument, 15 Entrance Road, Los Alamos, New Mexico 87544. You may also comment via the Internet at
Under 28 CFR 50.7, notice is hereby given that on December 12, 2006, a proposed Consent Decree (Consent Decree) with Blue Tee Corp., in the case of
This Consent Decree resolves the United States' claims against Blue Tee Corp. under Sections 106 and 107 of CERCLA, 42 U.S.C. 9606 and 9607, at the Granby Subdistrict of the Newton County Mine Tailings Superfund Site in Newton County, Missouri (Granby Subdistrict). Under the terms of the Consent Decree Blue Tee shall: (1) Pay to the United States $198,645.11 for past response costs, (2) pay future response costs as defined in the consent decree, and (3) implement a removal action to provide a safe and permanent drinking water source for residents affected by releases and threatened releases of hazardous substances at and from the Granby Subdistrict.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044–7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, Western District of Missouri, Charles Evans Whittaker Courthouse, 400 East Ninth Street, Room 5510, Kansas City, Missouri 64106, and at the Environmental Protection Agency, Region 7, 901 N. 5th Street, Kansas City, Kansas 66101. During the public comment period, the Consent Decree may be examined on the following Department of Justice Web site:
Under 28 CFR 50.7, notice is hereby given that on December 14, 2006, a proposed Consent Decree (Consent Decree) with Southgate Development Co., Inc., in the case of
This Consent Decree resolves the United States' claims against Southgate Development Co., Inc., under Sections 106 and 107 of CERLA, 42 U.S.C. 9606 and 9607, at the Palermo Wellfield Superfund Site in Tumwater, Washington (“The Site”). Under the terms of the Consent Decree, Southgate shall: (1) Pay to the United States $1,095,000.00 for response costs, (2) pay $30,000 to the Palermo Wellfield Environmental Trust, and (3) assign to the Palermo Wellfield Environmental Trust certain claims under insurance policies previously issued to Southgate.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044–7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, Western District of Washington, 700 Stewart Street, Seattle, Washington 98101, and at the Environmental Protection Agency, Region 10, 1200 Sixth Avenue, Seattle, Washington 98101. During the public comment period, the Consent Decree may be examined on the following Department of Justice Web site:
60-day Notice of Information Collection Under Review: Revision of a currently approved collection; Law Enforcement Officers Killed or Assaulted.
The Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with established review procedures of the Paperwork Reduction Act of 1995.
All comments, suggestions, or questions regarding additional LEOKA information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to Mr. Gregory E. Scarbro, Unit Chief, Federal Bureau of Investigation, Criminal Justice Information Services (CJIS) Division, Module E–3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306, or facsimile to (304) 625–3566.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques of other forms of information technology,
(1)
(2)
(3)
(4)
This collection is needed to collect information on officers killed or assaulted in the line of duty committed throughout the United States. Data are tabulated and published in the annual Law Enforcement Officers Killed and Assaulted publication.
(5)
(6)
If additional information is required contact: Lynn Bryant, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, United States Department of Justice, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
The Department of Labor (DOL) has submitted the following public information collection requests (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35). A copy of each ICR, with applicable supporting documentation, may be obtained from
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Occupational Safety and Health Administration (OSHA), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202–395–7316/Fax: 202–395–6974 (these are not a toll-free numbers), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Department of Labor (DOL) has submitted the following public information collection requests (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35). A copy of each ICR, with applicable supporting documentation, may be obtained from RegInfo.gov at
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Occupational Safety and Health Administration (OSHA), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202–395–7316/Fax: 202–395–6974 (these are not toll-free numbers), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Office of the Secretary, Labor.
Notice of Reassignment of Functions of Office of Trade Agreement Implementation to Office of Trade and Labor Affairs; Notice of Procedural Guidelines.
The Secretary of Labor announces that the functions of the Office of Trade Agreement Implementation (OTAI) of the Bureau of International Labor Affairs (ILAB) have been reassigned to the newly established Office of Trade and Labor Affairs (OTLA). The OTLA will serve as the Contact Point for purposes of administering the labor chapters of the U.S.-Australia, U.S.-Bahrain, U.S.-Chile, U.S.-Morocco, U.S.-Singapore, and U.S.-Dominican Republic-Central America (CAFTA–DR) Free Trade Agreements, as well as labor provisions of other free trade agreements to which the United States may become a party to the extent authorized in such agreements, implementing legislation, or accompanying statements of administrative action. The OTLA will maintain the designation of the National Administrative Office and continue its function to administer Departmental responsibilities under the North American Agreement on Labor Cooperation. The address for this office is: Office of Trade and Labor Affairs, Bureau of International Labor Affairs, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S–5303, Washington, DC 20210. The telephone numbers are (office) 202–693–4887 and (facsimile) 202–693–4851.
In addition, this notice sets out revised procedural guidelines for the Department of Labor's receipt and review of public submissions on matters related to Free Trade Agreement (FTA) labor chapters and the North American Agreement on Labor Cooperation (NAALC), and describes functions of the OTLA.
Director, Office of Trade and Labor Affairs, Bureau of International Labor Affairs, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S–5303, Washington, DC 20210. Telephone: (202) 693–4887 (this is not a toll-free number). Facsimile: 202–693–4851. E-mail:
The Bureau of International Labor Affairs (ILAB) has undertaken a reorganization that combines all of ILAB's trade-related responsibilities into a new office, the Office of Trade and Labor Affairs (OTLA). The OTLA is comprised of three new divisions: the Trade Policy and Negotiations Division; the Economic and Labor Research Division; and the Trade Agreement Administration and Technical Cooperation Division. This reorganization will enhance coordination and synergy among the various ILAB organizational units conducting trade negotiations, research, reporting, and implementation of the labor provisions of free trade agreements. The OTLA will exercise all functional responsibilities formerly exercised by the OTAI.
The OTLA is responsible for implementing trade-related labor policy and coordinating international technical cooperation in support of the labor provisions in FTAs and the NAALC. The OTLA's functions include: (1) Coordinating the development and implementation of cooperative activities stipulated in the NAALC and FTA labor chapters; (2) Providing for the receipt and consideration of public submissions on matters related to the NAALC and FTA labor chapters; (3) Serving as the U.S. government contact point and resource for information on matters related to the NAALC and FTA labor chapters for the general public, the National Administrative Offices (NAOs) of Canada and Mexico, for the Secretariat of the Commission for Labor Cooperation and other such entities created under the FTA labor chapters.
The NAALC and the labor provisions in several recently concluded FTAs require that the OTLA provide for the receipt and review of submissions on labor law matters in the countries signatories to the Agreements. Further details concerning submissions, cooperative activities, and information available to the public appear in the body of the
On December 23, 2004, the Bureau of International Labor Affairs published a
The AFL–CIO commented that the U.S.-Jordan FTA was excluded from the list of agreements that will be administered by the OTLA and requested that this omission be remedied. The Agreement was excluded because the Department of Labor is not designated as the contact point for the labor provisions of the Jordan Agreement. The four FTAs (Morocco, Australia, Dominican Republic-Central America, and Bahrain) that became effective after the publication of the Department's December 2004 Notice have been added to the list of covered FTAs, and future FTAs will be covered by these procedures to the extent authorized in such agreements, implementing legislation, or accompanying statements of administrative action.
The AFL–CIO commented that the proposed guidelines are more restrictive than the current procedural guidelines for the NAALC, and could reduce the number of meritorious complaints that are accepted. In this regard, the AFL–CIO contends that the proposed procedural guidelines may exceed the Department's authority because they expand the grounds upon which the OTLA may reject a submission, narrow the class of acceptable submissions, and lack “broad direction to accept most submissions.” For example, the AFL–CIO commented that Section F.2 of the proposed guidelines adds new requirements for including copies of relevant laws and regulations in submissions, and improperly requires a statement of whether the issue affects trade between the parties.
It is not the Department's intent to limit the acceptance of public submissions under the new procedural guidelines. The criteria for evaluating submissions in section F.2 are intended to encourage the submission of relevant information to improve the OTLA's ability to consider and review submissions. Moreover, section F.2
The AFL–CIO commented that section C.7 of the proposed guidelines limits the basis for consultations by restricting consultations to “any matter arising under a labor chapter or the NAALC,” instead of “any matter relating to another Party's labor laws, administration, or labor market conditions.” The AFL–CIO notes, correctly, that Article 21.1 of the NAALC allows consultations regarding “any matter relating to another Party's labor laws, administration, or labor market conditions.” The intent of section C.7 was to allow for consultations regarding any matter for which consultations are expressly contemplated under the labor chapters of existing and future FTAs. Therefore, in response to the AFL–CIO's comment, the OTLA has revised section C.1 and C.7 to make clear that the basis for consultations under the NAALC has not changed.
The AFL–CIO commented that section F.2(e) of the proposed guidelines unnecessarily requires a submission to address whether or not the violation alleged in the submission reflects something other than a reasonable exercise of discretion or a bona fide decision regarding the allocation of resources. The AFL–CIO contends that this factor is irrelevant to many submissions, and burdensome to document inasmuch as it requires submitters to demonstrate a negative. The Department concurs with the AFL–CIO, and therefore this criterion has been omitted from the final notice.
Finally, the AFL–CIO commented that section G.2 of the proposed guidelines “eliminates the presumption in favor of acceptance” of a submission, and is likely to result in the rejection of meritorious submissions. The AFL–CIO also commented that the proposed guidelines are likely to create confusion and produce inconsistent rulings by the OTLA because of the broad range of factors to be considered before the OTLA may accept or reject submissions. The AFL–CIO contends it is not clear how the OTLA will weigh the G.2 factors in considering whether to accept or reject a submission.
Section G.2 clearly sets forth the criteria to be considered by the OTLA in deciding whether to accept a submission. The purpose of the change to section G.2 was to combine all the factors to be considered by the OTLA when deciding to accept or reject a submission; it was not intended as a functional change in how the OTLA reviews submissions for acceptance. The change to section G.2 was intended to eliminate any perception that the OTLA's review process resulted in the automatic acceptance of submissions. Under the procedural guidelines established in 1994, acceptance of submissions under the NAALC was always conditioned on whether a submission raised issues relevant to labor law matters in the territory of another party and whether a review would further the objectives of the Agreement. Further, submissions were always subject to rejection on several grounds (
The U.S. Chamber of Commerce (“Chamber”) commented generally that the submission process is subject to abuse by labor organizations seeking to put public pressure on an employer. The Chamber proposed that the Department establish additional requirements to be met before a submission is accepted by the OTLA: (1) That the OTLA decline a submission based on a single incident; (2) that the OTLA decline a submission that has not been fully adjudicated in the country of jurisdiction; (3) that there should be no presumption that a submission should be accepted; (4) that the OTLA decline to identify a submission by the name of the employer; (5) that the OTLA establish a presumption against holding a public hearing on a submission; and, (6) that the OTLA adopt procedures to prevent the submission process from being used to interfere with an ongoing labor dispute.
The OTLA declines to adopt the Chamber's proposal that it decline a submission based on a single incident, or because it has not been fully adjudicated in the country of jurisdiction. Submission of evidence of a single incident does not preclude the possibility that, upon further investigation, a pattern or practice of non-compliance might be found; indeed it may be difficult for a submitter to compile evidence of multiple instances of non-compliance. As to the proposed exhaustion requirement, neither the NAALC nor the FTA labor chapters require submitters to exhaust their domestic remedies before filing a submission with a Party's contact point. Further, the scope of public submissions under an FTA or the NAALC is not limited to matters that may come before an adjudicatory body. Moreover, allegations that a Party's administrative, quasi-judicial, judicial, and labor tribunal proceedings are not fair, equitable, or transparent may form the basis of a submission asserting that Party's failure to meet its commitments under the NAALC or an FTA. Finally, to accept the Chamber's proposal to require full adjudication in the country of origin would provide a means for a government party to veto, through inaction, the OTLA's consideration of a particular submission.
The Chamber of Commerce supports the Department's revision of section G.2 as an effective means of eliminating any presumption that a submission will be accepted. As explained above in response to the AFL–CIO's comments, the change in section G.2 was not intended as a functional change in how the OTLA reviews submissions for acceptance. A review of the disposition of public submissions to the OTLA since 1994 indicates that, in practice, the OTLA has not read the guidelines to create a presumption that a submission will be accepted.
In response to the Chamber's comment that a submission not be identified by the name of the employer, the OTLA notes that submissions have not been identified by employer name since 2001. The OTLA currently uses the geographical location of the subject of the submission to identify the submission.
Concerning public hearings, the OTLA's experience is that hearings can be effective means of gathering information and testimony from witnesses. A public hearing is also an important means of assuring transparency in the OTLA's functioning. In section H.3 of both the current and proposed guidelines, the OTLA retains the flexibility to hold a public hearing as a means of acquiring information relevant to its review of a submission. In addition, in the proposed guidelines, holding a public hearing is mentioned as one of many potential means for the public to submit relevant information. Therefore, the Department finds it inadvisable to create a presumption against holding a public hearing, and the guidelines will retain the flexibility for the OTLA to hold public hearings in appropriate cases.
The Chamber recommended that the Department adopt further guidelines to ensure that the submission process not be used to intervene or interfere with labor disputes. As the contact point on the labor chapters of an FTA and the NAALC, the OTLA must provide for the receipt of public submissions on any matter relating to a labor chapter of an FTA or the NAALC. In the past, submissions have often referred to an ongoing labor dispute, and, in some instances, information about a labor dispute has provided useful context for the alleged violations and facilitated the OTLA's review of the allegations. In the context of the review process, however, the OTLA's role is not to assess the merits of the labor dispute, but to assist in the resolution of issues related to a Party's obligations under the NAALC or the labor chapter of an FTA. The proposed guidelines do not alter the focus of the review, which continues to be on assessing government action or inaction and not on the behavior of particular employers or workers.
The Mexican NAO commented that proposed section C.1, which “encourages” public input and provides for the receipt of communications relating to the NAALC or a labor chapter of an FTA, exceeds the authority given to the OTLA by Article 16.3 of the NAALC to merely “provide for the submission and receipt” of public communications. The word “encourage” in the first sentence of section C.1 of the proposed guidelines referred to the receipt of input from the public on a broad range of issues related to a labor chapter of an FTA or the NAALC. It did not refer to the receipt of submissions, which specifically deal with possible violations of a labor chapter of an FTA or the NAALC, and was not intended to encourage the filing of submissions against Parties. However, to clarify any possible ambiguities in the language of section C.1, the section has been revised to state that the OTLA shall “receive and consider” public communications on matters relating to a labor chapter of an FTA and the NAALC, and the objective of encouraging public comments on labor issues has been moved to section C.3.
Mexico also commented that consultations with foreign government representatives of NAALC Parties should be undertaken only through the NAO of the party against whom a submission was filed. The language of section C.1 has been revised to clarify that consultations with a foreign government shall take place with foreign government officials, the designated contact point (in the case of the NAALC, the Mexican or Canadian NAO), and non-government representatives, as appropriate.
In addition to addressing the public comments on the proposed procedural guidelines, the Department has determined it is appropriate to reconsider whether the time frames for OTLA action on submissions contained in the proposed guidelines are realistic. Section G.1 of the proposed guidelines provides that OTLA must decide whether to accept a submission for review within 60 days of the receipt of the submission, the same time period as provided in section G.1 of the current procedural guidelines. 59 FR 16660 (1994). In addition, section H.7 of the proposed guidelines provides that OTLA must issue a public report on a submission “[w]ithin 120 days of the acceptance of a submission for review, unless circumstances require an extension of time of up to 60 additional days * * *,” the same time period provided in section H.8 of the current procedural guidelines. 59 FR 16660 (1994). These time periods are not mandated by any statute or other authority, and are matters of agency procedure. Experience under the current guidelines has demonstrated that these periods of time for accepting submissions and issuing final reports are not always sufficient, for example, in cases where significant supplemental materials are provided by the submitters, where issues are particularly complex, or where on-site investigations are conducted outside of the United States.
Upon further consideration, OTLA has determined that the guidelines should provide additional flexibility in the time periods for accepting submissions and preparation of public reports, to establish a more realistic timeframe. Accordingly, section G.1 has been revised to allow extension of the 60-day period for accepting submissions, and section H.7 has been revised to allow an initial period of 180 days to issue a public report, and to remove the 60-day limitation on an extension of time. OTLA believes these revisions strike an appropriate balance between the need to resolve submissions promptly, and the need for careful research, investigation, and analysis in deciding whether to accept a submission and in preparation of public reports in cases that often present complex legal and factual issues.
Article 15.1 of the NAALC requires the Parties to establish a National Administrative Office (NAO) at the Federal government level and to notify the other Parties of its location. Article 15.2 requires each Party to designate a Secretary for its NAO, who shall be responsible for its administration and management. Pursuant to the NAALC, the Secretary of Labor established the U.S. NAO in 1994 (59 FR 16660 (Apr. 1, 1994) and is responsible for its administration. To clarify that the Secretary of Labor has the authority to designate the Secretary of the NAO and retains flexibility in making the designation, Section A.3 of the Guidelines has been revised to indicate that the Director of the OTLA shall be the Secretary of the NAO unless the Secretary of Labor directs otherwise.
The attached notice reassigns the functions of the Office of Trade Agreement Implementation to the Office of Trade and Labor Affairs and sets out revised procedural guidelines pertaining to public submissions, superseding the Revised Notice of Establishment and Procedural Guidelines published on April 7, 1994 (59 FR 16660) and the Notice of Renaming the National Administrative Office as the Office of Trade Agreement Implementation; Designation of the Office as the Contact Point for Labor Provisions of Free Trade Agreements; and Request for Comments on Procedural Guidelines published on December 23, 2004 (69 FR 77128).
The Notice Is Set Out Below.
1. The Office of Trade and Labor Affairs is designated as the contact point as required by Article 15.4.2 and Annex 15–A of the U.S.-Bahrain FTA, Article 18.4.3 and Annex 18.5 of the U.S.-Chile FTA, Article 17.4.2 and Annex 17A of the U.S.-Singapore FTA, Article 16.4.1 and Annex 16–A of the U.S.-Morocco FTA, Article 18.4.2 of the U.S.-Australia FTA, and Article 16.4.3 and Annex 16.5 of the U.S.-Dominican Republic-Central America FTA (CAFTA–DR).
2. The Office of Trade and Labor Affairs is designated as the contact point for labor chapters of other FTAs to which the United States may become a party to the extent provided for in such agreements, implementing legislation, or accompanying statements of administrative action.
3. The Office of Trade and Labor Affairs retains the functions of, and designation as, the National Administrative Office to administer Departmental responsibilities under the North American Agreement on Labor Cooperation. Unless the Secretary of Labor directs otherwise, the Director of the Office of Trade and Labor Affairs retains the functions of, and designation as, the Secretary of the National Administrative Office under Article 15 of the North American Agreement on Labor Cooperation.
As used herein:
1. The OTLA shall receive and consider communications from the public on any matter related to the NAALC or a labor chapter of an FTA. The OTLA shall consider the views expressed by the public; consult, as appropriate, with foreign government officials, the designated contact point, and non-government representatives; and provide appropriate and prompt responses.
2. The OTLA shall provide assistance to the Secretary of Labor on all matters concerning a labor chapter of an FTA or the NAALC, including the development and implementation of a labor cooperation program.
3. The OTLA shall serve as a contact point with agencies of the United States government, counterparts from another Party, the public, governmental working or expert groups, business representatives, labor organizations, and non-governmental organizations concerning matters under a labor chapter or the NAALC. The OTLA encourages comments on relevant labor issues from the public at large and will consider them as appropriate.
4. The OTLA shall promptly provide publicly available information pursuant to Article 16.2 of the NAALC as requested by the Secretariat of the Commission for Labor Cooperation, the National Administrative Office of another Party, or an Evaluation Committee of Experts.
5. The OTLA shall receive, determine whether to accept for review, and review submissions on another Party's commitments and obligations arising under a labor chapter or the NAALC, as set out in Sections F, G, and H.
6. The OTLA may initiate a review of any matter arising under a labor chapter or the NAALC.
7. The OTLA may request, undertake, and participate in consultations with another Party pursuant to Parts One, Four and Five of the NAALC, or pursuant to the consultation provisions of FTAs, such as Article 15.6 of the U.S.-Bahrain FTA, Article 18.6 of the U.S.-Chile FTA, Article 17.6 of the U.S.-Singapore FTA, Article 18.6 of the U.S.-Australia FTA, Article 16.6 of the U.S.-Morocco FTA, and Article 16.6 of the CAFTA–DR, and respond to requests for such consultations made by another Party.
8. The OTLA shall assist a labor committee or the Commission for Labor Cooperation on any relevant matter.
9. The OTLA shall, as appropriate, establish working or expert groups; consult with and seek advice of non-governmental organizations or persons; prepare and publish reports as set out in Section J and on matters related to the implementation of a labor chapter pursuant to Article 15.4.3 and 15.4.5 of the U.S.-Bahrain FTA, Article 18.4.4 and 18.4.6 of the U.S.-Chile FTA, Article 17.4.3 and 17.4.5 of the U.S.-Singapore FTA, Article 16.4.4 and 16.4.6 of the CAFTA–DR, Article 18.4.3 of the U.S.-Australia FTA, Article 16.4.2 and 16.4.4 of the U.S.-Morocco FTA, or
10. The OTLA shall consider the views of any advisory committee established or consulted to provide advice in administering a labor chapter or the NAALC.
11. In carrying out its responsibilities under the labor chapters and the NAALC, the OTLA shall consult with the Office of the United States Trade Representative, the Department of State, and other appropriate entities in the U.S. government.
1. The OTLA shall conduct at all times its activities in accordance with the principles of cooperation and respect embodied in the FTAs and the NAALC. In its dealings with a contact point of another Party and all persons, the OTLA shall endeavor to the maximum extent possible to resolve matters through consultation and cooperation.
2. The OTLA shall consult with the contact point of another Party during the submission and review process set out in Sections F, G and H in order to obtain information and resolve issues that may arise.
3. The OTLA, on behalf of the Department of Labor and with other appropriate agencies, shall develop and implement cooperative activities under a labor cooperation program. The OTLA may carry out such cooperative activities through any means the Parties deem appropriate, including exchange of government delegations, professionals, and specialists; sharing of information, standards, regulations and procedures, and best practices; organization of conferences, seminars, workshops, meetings, training sessions, and outreach and education programs; development of collaborative projects or demonstrations; joint research projects, studies, and reports; and technical exchanges and cooperation.
4. The OTLA shall receive and consider views on cooperative activities from worker and employer representatives and from other members of civil society.
1. The OTLA shall maintain public files in which submissions, transcripts of hearings,
2. Information submitted by a person or another Party to the OTLA in confidence shall be treated as exempt from public inspection if the information meets the requirements of 5 U.S.C. 552(b) or as otherwise permitted by law. Each person or Party requesting such treatment shall clearly mark ”submitted in confidence” on each page or portion of a page so submitted and furnish an explanation as to the need for exemption from public inspection. If the material is not accepted in confidence it will be returned promptly to the submitter with an explanation for the action taken.
3. The OTLA shall be sensitive to the needs of an individual's confidentiality and shall make every effort to protect such individual's interests.
1. Any person may file a submission with the OTLA regarding another Party's commitments or obligations arising under a labor chapter or Part Two of the NAALC. Filing may be by electronic e-mail transmission, hand delivery, mail delivery, or facsimile transmission. A hard copy submission must be accompanied by an electronic version in a current PDF, Word or Word Perfect format, including attachments, unless it is not practicable.
2. The submission shall identify clearly the person filing the submission and shall be signed and dated. It shall state with specificity the matters that the submitter requests the OTLA to consider and include supporting information available to the submitter, including, wherever possible, copies of laws or regulations that are the subject of the submission. As relevant, the submission shall address and explain to the fullest extent possible whether:
(a) The matters referenced in the submission demonstrate action inconsistent with another Party's commitments or obligations under a labor chapter or the NAALC, noting the particular commitment or obligation;
(b) there has been harm to the submitter or other persons, and, if so, to what extent;
(c) the matters referenced in the submission demonstrate a sustained or recurring course of action or inaction of non-enforcement of labor law by the other Party;
(d) the matters referenced in the submission affect trade between the parties;
(e) relief has been sought under the domestic laws of the other Party, and, if so, the status of any legal proceedings; and
(f) the matters referenced in the submission have been addressed by or are pending before an international body.
1. Within 60 days after the filing of a submission, unless circumstances as determined by the OTLA require an extension of time, the OTLA shall determine whether to accept the submission for review. The OTLA may communicate with the submitter during this period regarding any matter relating to the determination.
2. In determining whether to accept a submission for review, the OTLA shall consider, to the extent relevant, whether:
(a) The submission raises issues relevant to any matter arising under a labor chapter or the NAALC;
(b) a review would further the objectives of a labor chapter or the NAALC;
(c) the submission clearly identifies the person filing the submission, is signed and dated, and is sufficiently specific to determine the nature of the request and permit an appropriate review;
(d) the statements contained in the submission, if substantiated, would constitute a failure of the other Party to comply with its obligations or commitments under a labor chapter or the NAALC;
(e) the statements contained in the submission or available information demonstrate that appropriate relief has been sought under the domestic laws of the other Party, or that the matter or a related matter is pending before an international body; and
(f) the submission is substantially similar to a recent submission and significant, new information has been furnished that would substantially differentiate the submission from the one previously filed.
3. If the OTLA accepts a submission for review, it shall promptly provide written notice to the submitter, the relevant Party, and other appropriate persons, and promptly publish in the
4. If the OTLA declines to accept a submission for review, it shall promptly provide written notice to the submitter stating the reasons for the determination.
1. Following a determination by the OTLA to accept a submission for review, the OTLA shall conduct such
2. Except for information exempt from public inspection pursuant to Section E, information relevant to a review shall be placed in a public file.
3. The OTLA shall provide a process for the public to submit information relevant to the review, which may include holding a public hearing.
4. Notice of any such hearing under paragraph 3 shall be published in the
5. Any hearing shall be open to the public. All proceedings shall be conducted in English, with simultaneous interpretation provided as the OTLA deems necessary.
6. Any hearing shall be conducted by an official of the OTLA or another Departmental official, assisted by staff and legal counsel, as appropriate. The public file shall be made part of the hearing record at the commencement of the hearing.
7. Within 180 days of the acceptance of a submission for review, unless circumstances as determined by the OTLA require an extension of time, the OTLA shall issue a public report.
8. The report shall include a summary of the proceedings and any findings and recommendations.
1. The OTLA may make a recommendation at any time to the Secretary of Labor as to whether the United States should request consultations with another Party pursuant to Article 15.6.1 of the U.S.-Bahrain FTA, Article 18.6.1 of the U.S.-Chile FTA, Article 17.6.1 of the U.S.-Singapore FTA, Article 18.6.1 of the U.S. Australia FTA, Article 16.6.1 of the U.S. Morocco FTA, Article 16.6.1 of the CAFTA–DR, pursuant to the labor provisions of any other FTA, or consultations with another Party at the ministerial level pursuant to Article 22 of the NAALC. As relevant and appropriate, the OTLA shall include any such recommendation in the report prepared in response to a submission.
2. If, following any such consultations, the matter has not been resolved satisfactorily, the OTLA shall make a recommendation to the Secretary of Labor concerning the convening of a labor committee in accordance with an FTA, or the establishment of an Evaluation Committee of Experts in accordance with Article 23 of the NAALC, as appropriate.
3. If the mechanisms referred to in paragraph 2 are invoked and the matter subsequently remains unresolved, and the matter concerns whether a Party is conforming with an obligation under a labor chapter, such as Article 16.2.1.a of the CAFTA–DR, Article 18.2.1.a of the U.S.-Chile FTA, or Part Two of the NAALC, that is subject to the dispute settlement provisions of an FTA or the NAALC, the OTLA shall make a recommendation to the Secretary of Labor concerning pursuit of dispute resolution under such provisions.
4. Before making such recommendations, OTLA shall consult with the Office of the United States Trade Representative, the Department of State, and other appropriate entities in the U.S. government
1. The OTLA shall publish periodically a list of submissions presented to it, including a summary of the disposition of such submissions.
2. The OTLA shall obtain and publish periodically information on public communications considered by the other Parties.
3. The OTLA may undertake reviews and publish special reports on any topics under its purview on its own initiative or upon request from the Secretary of Labor.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974, (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on April 7, 2005, applicable to workers of Charleston Hosiery, Inc., Fort Payne, Alabama. The notice was published in the
At the request of a company official, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of socks.
The subject firm originally named Charleston Hosiery, Inc. was renamed Renfro Charleston, LLC on November 16, 2006 due to a change in ownership. The State agency reports that workers wages at the subject firm are being reported under the Unemployment Insurance (UI) tax account for Renfro Charleston, LLC, Fort Payne, Alabama. Accordingly, the Department is amending the certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of Charleston Hosiery, Inc. who were adversely affected by increased company imports.
The amended notice applicable to TA–W–56,770 is hereby issued as follows:
All workers of Charleston Hosiery, currently known as Renfro Charleston, LLC, Fort Payne, Alabama, who became totally or partially separated from employment on or after March 7, 2004, through April 7, 2007, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on November 13, 2006 in response to a worker petition filed the Colorado Department of Labor and Employment on behalf of workers of Employment Solutions employed at Water Pik, Inc, Loveland, Colorado.
The workers of Employment Solutions employed at Water Pik, Inc,
Therefore, this investigation is terminated.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on November 21, 2006 in response to a petition filed on behalf of workers of Ford Motor Company, St. Louis Assembly Plant, Hazelwood, Missouri.
The petitioning group of workers is covered by an earlier petition filed on November 24, 2006 (TA–W–60,478) that is the subject of an ongoing investigation for which a determination has not yet been issued. Further investigation in this case would duplicate efforts and serve no purpose; therefore the investigation under this petition has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on November 15, 2006, in response to a worker petition filed by a company official on behalf of workers at Hi Specialty America, Division of Hitachi Metals America, Ltd., Irwin, Pennsylvania.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on October 25, 2006, applicable to workers of Kentucky Derby Hosiery Company, Inc., Plant 6, also known as Lynne Plant, Mount Airy, North Carolina and Kentucky Derby Hosiery Company, Inc., Plant 7, also known as Forest Drive Plant, including on-site leased workers from Ablest Staffing and Randstand Temporary Services, Mount Airy, North Carolina. The notice was published in the
At the request of a company official, the Department reviewed the certification for workers of the subject firm. The workers produce socks.
New information shows that Gildan purchased the Kentucky Derby Hosiery Company, Inc. on December 1, 2006. The subject firm is currently known as Kentucky Derby Hosiery/Gildan, Plant 6, also known as Lynne Plant, and Plant 7, also known as Forest Drive Plant, Mount Airy, North Carolina.
Workers separated from employment at Plant 6 and Plant 7 of the subject firm have their wages reported under a separate unemployment insurance (UI) tax account for Kentucky Derby Hosiery/Gildan.
Accordingly, the Department is amending the certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of Kentucky Derby Hosiery Company, Inc., Plant 6, also known as Lynne Plant and Plant 7, also known as Forest Drive Plant, who were adversely affected by a shift in production to the Dominican Republic, Costa Rica and Honduras.
The amended notice applicable to TA–W–60,206 and TA–W–60,206A are hereby issued as follows:
All workers of Kentucky Derby Hosiery Company, Inc., currently known as Kentucky Derby Hosiery/Gildan, Plant 6, also known as Lynne Plant, Mount Airy, North Carolina (TA–W–60,206) and Kentucky Derby Hosiery Company, Inc., currently known as Kentucky Derby Hosiery/Gildan, Plant 7, also known as Forest Drive Plant, including on-site leased workers from Ablest Staffing and Randstand Temporary Staffing, Mount Airy, North Carolina (TA–W–60,206A), who became totally or partially separated from employment on or after October 2, 2005, through October 25, 2008, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 8, 2006, in response to a petition filed on behalf of workers of Lee Middleton Original Dolls, Inc., Belpre, Ohio.
The petition has been deemed invalid. The petition contained petitioner information for three workers but was not signed by all three workers.
Consequently, the investigation has been terminated.
Petitions have been filed with the Secretary of Labor under Section 221 (a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221 (a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than January 2, 2007.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than January 2, 2007.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C–5311, 200 Constitution Avenue, NW., Washington, DC 20210.
By application of November 1, 2006, a petitioner representative requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA). The denial notice was signed on September 29, 2006 and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) if it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) if in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The TAA petition, which was filed by a State agency representative on behalf of workers at QPM Aerospace, Inc., Portland, Oregon engaged in the production of aircraft precision machine parts, was denied based on the findings that during the relevant time periods, the subject company did not separate or threaten to separate a significant number or proportion of workers, as required by Section 222 of the Trade Act of 1974.
In the request for reconsideration, the petitioner states that there were seven workers laid off from the subject firm during the relevant time period.
For companies with a workforce of over fifty workers, a significant proportion of worker separations or threatened separations is five percent. Significant number or proportion of the workers in a firm or appropriate subdivision with a workforce of fewer than 50 workers is at least three workers. In determining whether there were a significant proportion of workers separated or threatened with separations at the subject company during the relevant time periods, the Department requested employment figures for the subject firm for 2004, 2005, January–August 2005 and January–August 2006. A careful review of the information provided in the initial investigation revealed that there were layoffs at the subject during the relevant time period, however, overall employment has increased during the relevant time period.
A review of the initial investigation also revealed that the subject company sales and production increased from 2004 to 2005, and also increased during January through August of 2006 when compared with the same period in 2005, and that the subject company did not shift production abroad.
As employment levels, sales and production at the subject facility did not decline in the relevant period, and the subject firm did not shift production to a foreign country, criteria (a)(2)(A)(I.A), (a)(2)(B)(II.A), (a)(2)(A)(I.B), and (a)(2)(B)(II.B) have not been met.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 11, 2006 in response to a petition filed on behalf of workers at Senco Products, Plant 1, Cincinnati, Ohio (TA–W–60,572) and Senco Products, Plant 2, Cincinnati, Ohio (TA–W–60,572A).
The petitioning workers are covered by a certification of eligibility to apply for worker adjustment assistance and alternative trade adjustment assistance issued on December 12, 2006 (TA–W–60,250 and TA–W–60,250A). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
By application of October 20, 2006 a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility for workers and former workers of the subject firm to apply for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA). The denial notice was signed on October 3, 2006 and
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) if it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) if in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The TAA petition, filed on behalf of workers at Short Bark Industries, Tellico Plains, Tennessee engaged in production of cut pieces for camouflage clothing was denied because the “contributed importantly” group eligibility requirement of Section 222 of the Trade Act of 1974 was not met. The “contributed importantly” test is generally demonstrated through a survey of the workers' firm's customers. The survey revealed no imports of cut pieces for camouflage clothing in 2004, 2005 and January through August of 2006 when compared with the same period in 2005. The subject firm did not import cut pieces for camouflage clothing in the relevant period nor did it shift production to a foreign country.
In the request for reconsideration, the petitioner alleges that the layoffs at the subject firm are attributable to a shift in production to Honduras and Puerto Rico.
Two company officials were contacted regarding the above allegations. The company officials stated that the subject firm did not shift production from the subject facility to Honduras. The officials stated that the subject firm exported cut pieces for camouflage clothing abroad to a customer with the foreign facility for further production. This ceased its business with the subject firm in order to perform all the cutting abroad. The Short Bark Industries decided not to pursue the cutting business any longer and sold some of the machinery from the subject firm to the customer. Both of the officials confirmed that there is no affiliation between Short Bark Industries, Tellico Plains, Tennessee and its major customer.
Contact with an official of the subject firm's customer confirmed that all production for this customer was exclusively for export purposes. As trade adjustment assistance is concerned exclusively with whether imports impact layoffs of petitioning worker groups, the above-mentioned allegations regarding agreements between the subject firm and their foreign customer base are irrelevant.
The official also confirmed that some of the production was shifted from the subject facility to a plant in Puerto Rico during the relevant time period.
In the request for reconsideration, the petitioner seems to imply that a shift of production to Puerto Rico on the part of the company constitutes a shift of production to a country included in Caribbean Basin Economic Recovery Act. The petitioner seems to conclude that this shift to Puerto Rico is responsible for separations at the subject facility.
Puerto Rico is a U.S. Territory and therefore any movement of production to this region would not constitute a shift of production to a foreign source.
The petitioner provided the name of the former supervisor who according to the petitioner is currently in Honduras training workers.
The official confirmed this statement and added that this supervisor in question is now employed by subject firm's customer and is working in Honduras on behalf of this customer.
The petitioner also provided a name of the subject firm's employee who is allegedly currently making patterns for the Honduras plant.
The Department contacted this employee to verify the above information. The employee stated that he is still employed by Short Bark Industries and that he does not make markers or patterns for the Honduras plant.
The petitioner attached an article, with no reference to the source or the date of the article. The article is a short biography on the founder of Short Bark Industries, and refers to the activities of the subject firm from 1991 to 2003.
In its investigation, the Department considers events and facts that occurred within a year prior to the date of the petition. Thus, the period between 1991 and 2003 is outside of the relevant period as established by the current petition date of November 9, 2006.
The officials of the subject firm confirmed directly that Short Bark Industries did not shift production from the subject firm to any facility abroad in the relevant period.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
Pursuant to 29 CFR 90.18(C) an application for administrative reconsideration was filed with the Director of the Division of Trade Adjustment Assistance for workers at United Auto Workers, Local 969, Columbus, Ohio. The application did not contain new information supporting a conclusion that the determination was erroneous, and also did not provide a justification for reconsideration of the determination that was based on either mistaken facts or a misinterpretation of facts or of the law. Therefore, dismissal of the application was issued.
By application dated November 27, 2006, the Carpenter's Industrial Council, United Brotherhood of Carpenters and Joiners of America (Union), requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, applicable to workers of the subject firm. The Department's determination was issued on October 19, 2006. The Department's
The denial was based on the Department's findings that, during the relevant period, the subject company did not import lumber studs or shift production of lumber studs overseas and that the subject company's major declining customers had negligible imports of green df studs during the surveyed periods.
The Union alleges that the Weyerhaeuser Company purchased a softwood lumber production facility in Canada, inferring that the firm has increased imports of lumber or articles like or directly competitive with lumber produced at the subject facility.
The Department has carefully reviewed the Union's request for reconsideration and has determined that the Department will conduct further investigation.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the Department of Labor's prior decision. The application is, therefore, granted.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Public Law 104–13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 60 calendar days from the date of this publication.
All comments should be addressed to Mr. Walter Kit, National Aeronautics and Space Administration, Washington, DC 20546–0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., JE000, Washington, DC 20546, (202) 358–1350,
In response to NASA's change in mission, i.e., to explore the solar system, NASA is reexamining approaches to structuring, sizing, and managing its programs by benchmarking best practices in select successful programs in corporate America.
Approximately 50% of the data collection will be electronic.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 30 calendar days from the date of this publication.
All comments should be addressed to Desk Officer for NASA; Office of Information and Regulatory Affairs; Office of Management and Budget; Room 10236; New Executive Office Building; Washington, DC 20503.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., JE000, Washington, DC 20546, (202) 358–1350,
Pursuant to 35 U.S.C. 209, applicants for a license under a patent or patent application must submit information in support of their request for a license. NASA uses the submitted information to grant the license.
The current paper-based system is used to collect the information. It is deemed not cost effect to collect the information using a Web site form since the applications submitted vary significantly in format and volume.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 60 calendar days from the date of this publication.
All comments should be addressed to Mr. Walter Kit, Mail Code JE000, National Aeronautics and Space Administration, Washington, DC 20546–0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., Mail Code JE000, Washington, DC 20546, (202) 358–1350,
Information collection is required to evaluate bids and proposals from offerors to award contracts for required goods and services in support of NASA's mission.
NASA collects this information electronically where feasible, but information may also be collected by mail or fax.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 60 calendar days from the date of this publication.
All comments should be addressed to Mr. Walter Kit, Mail Code JE000, National Aeronautics and Space Administration, Washington, DC 20546–0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., Mail Code JE000, Washington, DC 20546, (202) 358–1350,
Information collection is required to evaluate bids and proposals from offerors to award Purchase Orders and to use bank cards for required goods and services in support of NASA's mission.
NASA collects this information electronically where feasible, but information may also be collected by mail or fax.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 60 calendar days from the date of this publication.
All comments should be addressed to Mr. Walter Kit, Mail Code JE000, National Aeronautics and Space Administration, Washington, DC 20546–0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., Mail Code JE000, Washington, DC 20546, (202) 358–1350,
Information collection is required to evaluate bids and proposals from offerors to award contracts with an estimated value less than $500,000 for required goods and services in support of NASA's mission.
NASA collects this information electronically where feasible, but information may also be collected by mail or fax.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 30 calendar days from the date of this publication.
All comments should be addressed to Desk Officer for NASA; Office of Information and Regulatory Affairs; Office of Management and Budget; Room 10236; New Executive Office Building; Washington, DC, 20503.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., JE000, Washington, DC 20546, (202) 358–1350,
NASA grants patent licenses for the commercial application of NASA-owned inventions. Each licensee is required to report annually on its activities in commercializing its licensed inventions(s) and on any royalties due. NASA attorneys use this information to determine if a licensee is achieving and maintaining practical application of the licensed inventions as required by its license agreement.
The current paper-based system is used to collect the information. It is deemed not cost effective to collect the information using a Web site form since the reports submitted vary significantly in format and volume.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 60 calendar days from the date of this publication.
All comments should be addressed to Mr. Walter Kit, Mail Code JE000, National Aeronautics and Space Administration, Washington, DC 20546–0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., Mail Code JE000, Washington, DC 20546, (202) 358–1350,
Information collection is required to effectively manage and administer contracts with an estimated value more than $500,000 for required goods and services in support of NASA's mission.
NASA collects this information electronically where feasible, but information may also be collected by mail or fax.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 30 calendar days from the date of this publication.
All comments should be addressed to Desk Officer for NASA; Office of Information and Regulatory Affairs; Office of Management and Budget; Room 10236; New Executive Office Building; Washington, DC 20503.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., JE000, Washington, DC 20546, (202) 358–1350,
The LIST System form is used primarily to support services at GSFC dependent upon accurate locator type information. The Personal Identifiable Information (PII) is maintained, protected, and used for mandatory security functions. The system also serves as a tool for performing short and long-term institutional planning.
Approximately 46% of the data is collected electronically by means of the data entry screen that duplicates the Goddard Space Flight Center form GSFC 24–27 in the LISTS system. The remaining data is keyed into the system from hardcopy version of form GSFC 24–27.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 30 calendar days from the date of this publication.
All comments should be addressed to Desk Officer for NASA; Office of Information and Regulatory Affairs; Office of Management and Budget; Room 10236; New Executive Office Building; Washington, DC 20503.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., JE000, Washington, DC 20546, (202) 358–1350,
The analysis of the Effective Messaging Research survey will position NASA to effectively communicate Agency messages.
All survey responses will be collected by telephone and tabulated electronically.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Aeronautics and Space Administration.
Notice of Intent to Grant Exclusive License.
This notice is issued in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(i). NASA hereby gives notice of its intent to grant an exclusive license in the United States to practice the invention described and claimed in U.S. Patent No. 6,027,954, Gas Sensing Diode and Method of Manufacturing; U.S. Patent No. 6,291,838, Gas Sensing Diode Comprising SiC; and U.S. Patent No. 6,763,699, Gas Sensors Using SiC Semiconductors and Method of Fabrication to Makel Engineering, Inc., having its principal place of business in Chico, California. The patent rights in these inventions have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. The prospective exclusive license will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7.
The exclusive license may be granted unless, within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. Competing applications completed and received by NASA within fifteen (15) days of the date of this published notice will also be treated as objections to the grant of the contemplated exclusive license.
Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Objections relating to the prospective license may be submitted to Patent Counsel, Office of Chief Counsel, NASA Glenn Research Center, MS 500–118, 21000 Brookpark Rd., Cleveland, OH 44135, telephone (216) 433–8878, facsimile (216) 433–6790.
Kent Stone, Patent Attorney, Office of Chief Counsel, NASA Glenn Research Center, MS 500–118, 21000 Brookpark Road, Cleveland, OH 44135, telephone (216) 433–8878, facsimile (216) 433–6790. Information about other NASA inventions available for licensing can be found online at
Notice is hereby given that the U.S. Nuclear Regulatory Commission (NRC)
The purpose of this notice is to inform the public that the FEIS is available for public inspection in the NRC Public Document Room (PDR) located at One White Flint North, 11555 Rockville Pike (First Floor), Rockville, Maryland 20852, or from the Publicly Available Records component of NRC's Agencywide Documents Access and Management System (ADAMS), and will also be placed directly on the NRC Web site at
Jack Cushing, Environmental Projects Branch 1, Division of Site and Environmental Reviews, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001. Mr. Cushing may be contacted by telephone at 301–415–1424, or by e-mail at
For the Nuclear Regulatory Commission.
Notice is hereby given that the U.S. Nuclear Regulatory Commission (NRC or the Commission) has corrected the public scoping comment period for the plant-specific supplement to the “Generic Environmental Impact Statement (GEIS),” NUREG–1437, regarding the renewal of operating licenses NPF–14 and NPF–22 for an additional 20 years of operation at the Susquehanna Steam Electric Station (SSES), Units 1 and 2.
The application for renewal was received on September 13, 2006, pursuant to 10 CFR Part 54. A notice of Receipt and Availability of the license renewal application (LRA), was published in the
The purpose of this notice is to inform the public that the NRC has corrected the end of the comment period on the environmental scope of the SSES license renewal review from December 18, 2006, to January 2, 2007.
Any interested party may submit comments on the environmental scope of the SSES license renewal review for consideration by the NRC staff. To be certain of consideration, comments on the scoping process to the GEIS must be received by January 2, 2007. Comments received after the due date will be considered if it is practical to do so, but the NRC staff is able to assure consideration only for comments received on or before this date. Written comments on the environmental scope of the SSES license renewal review should be sent to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, Mailstop T–6D59, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001.
Comments may also be delivered to the NRC, Room T–6D59, Two White Flint North, 11545 Rockville Pike, Rockville, Maryland, from 7:45 a.m. until 4:15 p.m. on Federal workdays. Electronic comments may be sent via the Internet to the NRC at
Alicia Mullins, License Renewal and Environmental Impacts Program, Division of Regulatory Improvement Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Ms. Mullins may also be contacted at (301) 415–1224, or by e-mail at
For the Nuclear Regulatory Commission.
Notice is hereby given that the U.S. Nuclear Regulatory Commission (NRC, Commission) has published a draft plant-specific supplement to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS), NUREG–1437, regarding the renewal of operating licenses DPR–28 for an additional 20 years of operation for the Vermont Yankee Nuclear Power Station (Vermont Yankee). Vermont Yankee is located in the town of Vernon, Vermont, in Windham County on the west shore of the Connecticut River. Possible alternatives to the proposed action (license renewal) include no action and reasonable alternative energy sources.
The draft Supplement 30 to the GEIS is publicly available at the NRC Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, or from the NRC's Agencywide Documents Access and Management System (ADAMS). The ADAMS Public Electronic Reading Room is accessible at
Any interested party may submit comments on the draft supplement to the GEIS for consideration by the NRC staff. To be considered, comments on the draft supplement to the GEIS and the proposed action must be received by March 7, 2007; the NRC staff is able to assure consideration only for comments received on or before this date. Comments received after the due date will be considered only if it is practical to do so. Written comments on the draft supplement to the GEIS should be sent to: Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, Mailstop T–6D59, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001.
Comments may be hand-delivered to the NRC at 11545 Rockville Pike, Room T–6D59, Rockville, Maryland, between 7:30 a.m. and 4:15 p.m. on Federal workdays. Electronic comments may be submitted to the NRC by e-mail at
The NRC staff will hold a public meeting to present an overview of the draft plant-specific supplement to the GEIS and to accept public comments on the document. The public meeting will be held on January 31, 2007, at the Latchis Theatre, 50 Main Street, Brattleboro, Vermont. There will be two sessions to accommodate interested parties. The first session will convene at 1:30 p.m. and will continue until 4:30 p.m., as necessary. The second session will convene at 7 p.m. with a repeat of the overview portions of the meeting and will continue until 10 p.m., as necessary. Both meetings will be transcribed and will include:
(1) A presentation of the contents of the draft plant-specific supplement to the GEIS, and (2) the opportunity for interested government agencies, organizations, and individuals to provide comments on the draft report. Additionally, the NRC staff will host informal discussions one hour prior to the start of each session at the same location. No comments on the draft supplement to the GEIS will be accepted during the informal discussions. To be considered, comments must be provided either at the transcribed public meeting or in writing. Persons may pre-register to attend or present oral comments at the meeting by contacting Mr. Richard L. Emch, Jr., the Senior Project Manager, at 1–800–368–5642, extension 1590, or via e-mail at
Mr. Richard L. Emch, Jr., Environmental Branch B, Division of License Renewal, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Mail Stop O–11F1, Washington, DC, 20555–0001. Mr. Emch may be contacted at the aforementioned telephone number or e-mail address.
For the Nuclear Regulatory Commission,
The ACRS Subcommittee on Materials, Metallurgy, and Reactor Fuels will hold a meeting on January 19, 2007, Room T–2B3, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review the NRC staff's proposed technical basis for supporting a revision to the technical acceptance criteria for fuel during a LOCA. The Subcommittee will hear presentations by and hold discussions with representatives of the NRC staff, their contractors, representatives of the nuclear industry, and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official, Mr. Ralph Caruso (telephone 301/415–8065) five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted.
Further information regarding this meeting can be obtained by contacting the Designated Federal Official between 7:15 a.m. and 5 p.m. (ET). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes to the agenda.
The ACRS Subcommittee on Power Uprates will hold a meeting on January 16–17, 2007 at 11545 Rockville Pike, Rockville, Maryland, Room T–2B3.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review the proposed 5% power uprate for the Browns Ferry Nuclear Plant, Unit 1. The Subcommittee will hear presentations by and hold discussions with representatives of the NRC staff, the Tennessee Valley Authority (the licensee), and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official, Mr. Ralph Caruso (Telephone: 301–415–8065) five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted.
Further information regarding this meeting can be obtained by contacting the Designated Federal Official between 7:15 a.m. and 5 p.m. (ET). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes to the agenda.
Office of the United States Trade Representative.
Notice.
In accordance with relevant provisions of the Harmonized Tariff Schedule of the United States (HTS), the Office of the United States Trade Representative (USTR) is providing notice of its determination of the trade surplus in certain sugar and syrup goods and sugar-containing products of Chile, Morocco, El Salvador, Guatemala, Honduras, and Nicaragua. As described below, the level of a country's trade surplus in these goods relates to the quantity of sugar and syrup goods and sugar-containing products for which the United States grants preferential tariff treatment under (i) The United States—Chile Free Trade Agreement (Chile FTA), in the case of Chile; (ii) the United States—Morocco Free Trade Agreement (Morocco FTA), in the case of Morocco; and (iii) the Dominican Republic—Central America—United States Free Trade Agreement (CAFTA–DR), in the case of El Salvador, Guatemala, Honduras, and Nicaragua.
December 21, 2006.
Inquiries may be mailed or delivered to Leslie O'Connor, Director of Agricultural Affairs, Office of Agricultural Affairs, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508.
Leslie O'Connor, Office of Agricultural Affairs, 202–395–6127.
U.S. Note 12(a) to subchapter XI of HTS chapter 99 provides that USTR is required to publish annually in the
U.S. Note 12(b) to subchapter XI of HTS chapter 99 provides duty-free treatment for certain sugar and syrup goods and sugar-containing products of Chile entered under subheading 9911.17.05 in an amount equal to the lesser of Chile's trade surplus or the specific quantity set out in that note for that calendar year.
U.S. Note 12(c) to subchapter XI of HTS chapter 99 provides preferential tariff treatment for certain sugar and syrup goods and sugar-containing products of Chile entered under subheading 9911.17.10 through 9911.17.85 in an amount equal to the amount by which Chile's trade surplus exceeds the specific quantity set out in that note for that calendar year.
During calendar year (CY) 2005, the most recent year for which data is available, Chile's imports of the sugar and syrup goods and sugar-containing products described above exceeded its exports of those goods by 287,203 metric tons according to data published by its customs authority, the Servicio Nacional de Aduana. Based on this data, USTR determines that Chile's trade surplus is negative. Therefore, in accordance with U.S. Note 12(b) and U.S. Note 12(c) to subchapter XI of HTS chapter 99, goods of Chile are not eligible to enter the United States duty-free under subheading 9911.17.05 or at preferential tariff rates under subheading 9911.17.10 through 9911.17.85 in CY2006 or CY2007.
U.S. Note 12(a) to subchapter XII of HTS chapter 99 provides that USTR is required to publish annually in the
U.S. Note 12(b) to subchapter XII of HTS chapter 99 provides duty-free treatment for certain sugar and syrup goods and sugar-containing products of Morocco entered under subheading 9912.17.05 in an amount equal to the lesser of Morocco's trade surplus or the specific quantity set out in that note for that calendar year.
U.S. Note 12(c) to subchapter XII of HTS chapter 99 provides preferential tariff treatment for certain sugar and syrup goods and sugar-containing products of Morocco entered under subheading 9912.17.10 through 9912.17.85 in an amount equal to the amount by which Morocco's trade surplus exceeds the specific quantity set out in that note for that calendar year.
During CY2005, the most recent year for which data is available, Morocco's
U.S. Note 25(b)(i) to subchapter XXII of HTS chapter 98 provides that USTR is required to publish annually in the
U.S. Note 25(b)(ii) to subchapter XXII of HTS chapter 98 provides duty-free treatment for certain sugar and syrup goods and sugar-containing products of each CAFTA–DR country entered under subheading 9822.05.20 in an amount equal to the lesser of that country's trade surplus or the specific quantity set out in that note for that country and that calendar year.
During CY2005, the most recent year for which data is available, El Salvador's exports of the sugar and syrup goods and sugar-containing products described above exceeded its imports of those goods by 293,500 metric tons according to data published by the Salvadoran Central Bank. Based on this data, USTR determines that El Salvador's trade surplus is 293,500 metric tons. Therefore, in accordance with U.S. Note 25(b)(ii) to subchapter XXII of HTS chapter 98, the aggregate quantity of goods of El Salvador that may be entered duty-free under subheading 9822.05.20 in CY2007 is 24,480 metric tons (
During CY2005, the most recent year for which data is available, Guatemala's exports of the sugar and syrup goods and sugar-containing products described above exceeded its imports of those goods by 891,159 metric tons according to data published by the World Trade Atlas. Based on this data, USTR determines that Guatemala's trade surplus is 891,159 metric tons. Therefore, in accordance with U.S. Note 25(b)(ii) to subchapter XXII of HTS chapter 98, the aggregate quantity of goods of Guatemala that may be entered duty-free under subheading 9822.05.20 in CY2007 is 32,640 metric tons (
During CY2005, the most recent year for which data is available, Honduras' exports of the sugar and syrup goods and sugar-containing products described above exceeded its imports of those goods by 56,955 metric tons according to data published by the Central Bank of Honduras. Based on this data, USTR determines that Honduras' trade surplus is 56,955 metric tons. Therefore, in accordance with U.S. Note 25(b)(ii) to subchapter XXII of HTS chapter 98, the aggregate quantity of goods of Honduras that may be entered duty-free under subheading 9822.05.20 in CY2007 is 8,160 metric tons (
During CY2005, the most recent year for which data is available, Nicaragua's exports of the sugar and syrup goods and sugar-containing products described above exceeded its imports of those goods by 208,257 metric tons according to data published by the World Trade Atlas. Based on this data, USTR determines that Nicaragua's trade surplus is 208,257 metric tons. Therefore, in accordance with U.S. Note 25(b)(ii) to subchapter XXII of HTS chapter 98, the aggregate quantity of goods of Nicaragua that may be entered duty-free under subheading 9822.05.20 in CY2007 is 22,440 metric tons (
Office of Personnel Management (OPM).
Notice.
The Office of Personnel Management (OPM) is assigning new, unique code numbers to charitable organizations that participate in the Combined Federal Campaign (CFC). The number of participating charitable organizations is increasing and will soon exceed the number of codes available under the current CFC coding procedure. In addition, the assignment of new, unique code numbers will allow OPM to improve the efficiency and effectiveness of the CFC by assisting in future promotion of the use of electronic giving technology and future revision to geographic restrictions to donor giving.
The Office of Personnel Management's Office of the CFC Operations (OCFCO) will issue new code numbers to charities and provide them to local campaigns and charities no later than March 30, 2007.
Mark W. Lambert, Senior Compliance Officer for the Office of CFC Operations, by telephone at (202) 606–2564; by fax at (202) 606–0902; or by e-mail at
Currently, the CFC coding procedure is based on a four-digit number. Charitable organizations that are approved to participate in the CFC as national or international organizations are assigned a four-digit code by OPM. Local CFCs assign a four-digit code to organizations approved to participate in that local CFC. OPM informs local CFCs of which four-digit codes were not used for national and international organizations and that are, therefore, available for local use. There are approximately 2,000 participating national and international organizations and an estimated additional 20,000 local organizations. With a four-digit coding procedure, there are only 9,999 available codes. Charitable organizations in different
In recently issued CFC regulations, set forth at 5 CFR Part 950, the OPM Director has the authority, upon implementation of appropriate electronic technology, to remove the restriction that limits donors to contributing only to local charities within their geographic campaign area, based on their official duty station. A first step in implementing electronic technology that would allow donors to contribute to local organizations in other campaign areas is to make sure that each organization has its own unique code. Being able to identify all participating charitable organizations by a unique code will also allow OPM to better monitor compliance with CFC eligibility standards and sanctions compliance requirements. In order to be eligible to participate in the CFC, each charitable organization must be determined to be a tax-exempt public charity under section 501(c)(3) of the Internal Revenue Code. In order to demonstrate compliance with this eligibility standard, each charitable organization must provide a copy of its IRS determination letter. However, many of the IRS determination letters provided by charitable organizations are dated at the time of the initial IRS determination. That determination could have been made many years prior to the current CFC to which the charitable organization is applying for participation. To ensure that each charitable organization meets the 501(c)(3) eligibility standard, OPM will compare the applicant organization against an IRS database to determine that the charitable organization is still recognized as a 501(c)(3) tax-exempt public charity by the IRS. The newly assigned unique codes will assist OPM in identifying each charitable organization against the IRS database. In addition, OPM requires each charitable organization participating in the CFC to complete a certification that it is in compliance with all statutes, Executive orders, and regulations restricting or prohibiting U.S. persons from engaging in transactions and dealings with countries, entities or individuals subject to economic sanctions administered by the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC). Currently, OPM checks each participating national and international organization against the OFAC list of sanctioned organizations and requests local campaigns to do the same. The newly assigned unique codes will assist OPM in performing this check against the OFAC list for all national, international, and local, organizations participating in the CFC and relieve a burden from the local campaigns.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (the “Act”) for exemption from sections 12(d)(1)(A) and (B) of the Act and under sections 6(c) and 17(b) of the Act for an exemption from section 17(a) of the Act.
Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090; Applicants, 7501 Wisconsin Avenue, Suite 1000, Bethesda, MD 20814.
John Yoder, Senior Counsel, at (202) 551–6878, or Michael W. Mundt, Senior Special Counsel, at (202) 551–6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Public Reference Desk, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–0102 (telephone (202) 551–5850).
1. The Trusts are open-end management investment companies registered under the Act and are each comprised of separate series (“Funds”) that pursue distinct investment objectives and strategies. Shares of certain Funds of ProFunds and Access One Trust are sold publicly to retail investors, and shares of other such Funds are sold to insurance company separate accounts funding variable life and variable annuity contracts. The Funds of the ETF Trust (“ETF Funds”) rely on an order from the Commission that allows the ETF Funds to operate as exchange-traded funds and to redeem their shares in large aggregations (“Creation Units”).
2. Applicants request relief to permit registered management investment companies and unit investment trusts registered under the Act that are not part of the same “group of investment companies,” within the meaning of section 12(d)(1)(G)(ii) of the Act, as the Trusts (such management investment companies are “Investing Management Companies,” such unit investment trusts are “Investing Trusts,” and Investing Management Companies and Investing Trusts are collectively “Funds of Funds”), to acquire shares of the Funds in excess of the limits in section 12(d)(1)(A) of the Act, and to permit a Fund, any principal underwriter for a Fund, and any broker or dealer registered under the Securities Exchange Act of 1934 (“Broker”) to sell shares of a Fund to a Fund of Funds in excess of the limits of section 12(d)(1)(B) of the Act. Applicants request that the relief apply to: (1) Each open-end management investment company or unit investment trust registered under the Act that currently or subsequently is part of the same “group of investment companies,” within the meaning of section 12(d)(1)(G)(ii) of the Act, as the Trusts and is advised or sponsored by the Advisers or any entity controlling, controlled by, or under common control with the Advisers (such open-end management investment companies are “Open-end Funds,” such unit investment trusts are “UIT Funds,” and both Open-end Funds and UIT Funds are “Funds”); (2) each Fund of Funds that enters into a Participation Agreement (as defined below) with a Fund to purchase shares of the Funds; and (3) any principal underwriter to a Fund or Broker selling shares of a Fund.
3. Each Investing Management Company will be advised by an investment adviser within the meaning of section 2(a)(20)(A) of the Act and registered as an investment adviser under the Advisers Act or exempt from registration (“Fund of Funds Adviser”). A Fund of Funds Adviser may contract with an investment adviser which meets the definition of section 2(a)(20)(B) of the Act (a “Subadviser”). Each Investing Trust will have a sponsor (“Sponsor”).
4. Applicants state that the Funds will offer the Funds of Funds simple and efficient investment vehicles to achieve their asset allocation or diversification objectives. Applicants state that the Funds also provide high quality, professional investment program alternatives to Funds of Funds that do not have sufficient assets to operate comparable funds.
1. Section 12(d)(1)(A) of the Act, in relevant part, prohibits a registered investment company from acquiring shares of an investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter, and any broker or dealer from selling its shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies generally.
2. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Applicants seek an exemption under section 12(d)(1)(J) of the Act to permit Funds of Funds to acquire shares of the Funds in excess of the limits in section 12(d)(1)(A) of the Act, and a Fund, any principal underwriter for a Fund and any Broker to sell shares of a Fund to a Fund of Funds in excess of the limits of section 12(d)(1)(B) of the Act.
3. Applicants state that the proposed arrangement and conditions will adequately address the policy concerns underlying sections 12(d)(1)(A) and (B) of the Act, which include concerns about undue influence by a fund of funds over underlying funds, excessive layering of fees, and overly complex fund structures. Accordingly, applicants believe that the requested exemption is consistent with the public interest and the protection of investors.
4. Applicants believe that neither the Fund of Funds nor a Fund of Funds Affiliate would be able to exert undue influence over the Funds.
5. Applicants do not believe that the proposed arrangement will involve excessive layering of fees. The board of directors or trustees of each Investing Management Company, including a majority of the directors or trustees who are not “interested persons” (within the meaning of section 2(a)(19) of the Act) (“Disinterested Trustees”), will find that the advisory fees charged to the Investing Management Company are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Open-end Fund in which the Investing Management Company may invest. In addition, a Fund of Funds Advisor, trustee or Sponsor of a Fund of Funds will waive fees otherwise payable to it by the Fund of Funds, as applicable, in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Open-end Fund under rule 12b–1 under the Act) received from a Fund by the Fund of Funds Advisor, trustee or Sponsor or an affiliated person of the Fund of Funds Adviser, trustee or Sponsor, other than advisory fees paid to the Fund of Funds Adviser, trustee or Sponsor, or its affiliated person by an Open-end Fund, in connection with the investment by the Fund of Funds in the Fund. Applicants also state that with respect to registered separate accounts that invest in a Fund of Funds, no sales load will be charged at the Fund of Funds level or at the Fund level. Other sales charges and service fees, as defined in Rule 2830 of the Conduct Rules of the National Association of Securities Dealers, Inc. (“NASD”), if any, will only be charged at the Fund of Funds level or at the Fund level, not both. With respect to other investments in a Fund of Funds, any sales charges and/or service fees charged with respect to shares of the Fund of Funds will not exceed the limits applicable to a fund of funds as set forth in Rule 2830 of the NASD Conduct Rules.
6. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that no Fund may acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by section 12(d)(1)(E) of the Act, an exemptive order that allows the Fund to purchase shares of an affiliated money market fund for short-term cash management purposes or rule 12d1–1 under the Act. Applicants also represent that to ensure that the Funds of Funds comply with the terms and conditions of the requested relief from section 12(d)(1) of the Act, a Fund of Funds must enter into a participation agreement between a Trust, on behalf of the relevant Funds, and the Funds of Funds (“Participation Agreement”) before investing in a Fund beyond the limits imposed by section 12(d)(1)(A). The Participation Agreement will require the Fund of Funds to adhere to the terms and conditions of the requested order. The Participation Agreement will include an acknowledgment from the Fund of Funds that it may rely on the requested order only to invest in the Funds and not in series of any other registered investment company. The Participation Agreement will further require each Fund of Funds that exceeds the 5% or 10% limitations in sections 12(d)(1)(A)(ii) and (iii) of the Act to disclose in its prospectus that it may invest in the Funds, and to disclose, in “plain English,” in its prospectus the unique characteristics of the Fund of Funds investing in the Funds, including but not limited to the expense structure and any additional expenses of investing in the Funds. Each Fund of Funds also will comply with the disclosure requirements set forth in Investment Company Act Release No. 27399 (June 20, 2006).
7. Applicants also note that a Fund may choose to reject a direct purchase by a Fund of Funds. To the extent that a Fund of Funds purchases shares of an ETF Fund in the secondary market, the ETF Fund would still retain its ability to reject purchases of its shares through its decision to enter into the Participation Agreement prior to any investment by a Fund of Funds in excess of the limits of section 12(d)(1)(A).
1. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and any affiliated person of the company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the other person.
2. Applicants seek relief from section 17(a) to permit a Fund that is an affiliated person of a Fund of Funds because the Fund of Funds holds 5% or more of the Fund's shares to sell its shares to and redeem its shares from a Fund of Funds.
3. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (i) The terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (ii) the proposed transaction is consistent with the policies of each registered investment company involved; and (iii) the proposed transaction is consistent with the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any person or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
4. Applicants submit that the proposed arrangement satisfies the standards for relief under sections 17(b) and 6(c) of the Act. Applicants state that the terms of the arrangement are fair and
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. The members of a Fund of Funds Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. The members of a Subadviser Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of a Fund, the Fund of Funds Advisory Group or the Subadviser Group, each in the aggregate, becomes a holder of more than 25% of the outstanding voting securities of a Fund, it (except for any member of the Fund of Funds Advisory Group or Subadviser Group that is a separate account) will vote its shares of the Fund in the same proportion as the vote of all other holders of the Fund's shares. This condition does not apply to the Subadviser Group with respect to a Fund for which the Subadviser or a person controlling, controlled by, or under common control with the Subadviser acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act (in the case of an Open-end Fund) or as the sponsor (in the case of a UIT Fund). A registered separate account will seek voting instructions from its contract holders and will vote its shares in accordance with the instructions received and will vote those shares for which no instructions were received in the same proportion as the shares for which instructions were received. An unregistered separate account will either (i) Vote its shares of the Fund in the same proportion as the vote of all other holders of the Fund's shares; or (ii) seek voting instructions from its contract holders and vote its shares in accordance with the instructions received and vote those shares for which no instructions were received in the same proportion as the shares for which instructions were received.
2. No Fund of Funds or Fund of Funds Affiliate will cause any existing or potential investment by the Fund of Funds in shares of a Fund to influence the terms of any services or transactions between the Fund of Funds or a Fund of Funds Affiliate and the Fund or a Fund Affiliate.
3. The board of directors or trustees of an Investing Management Company, including a majority of the Disinterested Trustees, will adopt procedures reasonably designed to assure that the Fund of Funds Adviser and any Subadviser are conducting the investment program of the Investing Management Company without taking into account any consideration received by the Investing Management Company or a Fund of Funds Affiliate from a Fund or a Fund Affiliate in connection with any services or transactions.
4. Once an investment by a Fund of Funds in the securities of an Open-end Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the board of trustees of the Open-end Fund (“Board”), including a majority of the Disinterested Trustees, will determine that any consideration paid by the Open-end Fund to a Fund of Funds or a Fund of Funds Affiliate in connection with any services or transactions: (a) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Open-end Fund; (b) is within the range of consideration that the Open-end Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (c) does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between an Open-end Fund and its investment adviser(s), or any person controlling, controlled by, or under common control with such investment adviser(s).
5. No Fund of Funds or Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to an Open-end Fund or sponsor to a UIT Fund) will cause a Fund to purchase a security in any Affiliated Underwriting.
6. The Board of an Open-end Fund, including a majority of the Disinterested Trustees, will adopt procedures reasonably designed to monitor any purchases of securities by the Open-end Fund in an Affiliated Underwriting once an investment by a Fund of Funds in the securities of the Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board of the Open-end Fund will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Fund of Funds in the Open-end Fund. The Board of the Open-end Fund will consider, among other things, (i) Whether the purchases were consistent with the investment objectives and policies of the Open-end Fund; (ii) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (iii) whether the amount of securities purchased by the Open-end Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board of the Open-end Fund will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities in Affiliated Underwritings are in the best interests of shareholders.
7. The Open-end Fund will maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by a Fund of Funds in the securities of the Open-end Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the determinations of the Board of the Open-end Fund were made.
8. Before investing in a Fund in excess of the limits in section 12(d)(1)(A) of the Act, the Fund of Funds and the Fund will execute a Participation Agreement stating, without limitation, that their boards of directors or trustees and their investment advisers, or sponsors and trustees, as applicable, understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. At the time of its investment in shares of an Open-end Fund in excess of the limit in section 12(d)(1)(A)(i), a Fund of Funds will notify the Open-end Fund of the investment. At such time, the Fund of Funds will also transmit to the Open-end Fund a list of the names of each Fund of Funds Affiliate and Underwriting Affiliate. The Fund of
9. Before approving any advisory contract under section 15 of the Act, the board of directors or trustees of each Investing Management Company, including a majority of the Disinterested Trustees, will find that the advisory fees charged under such advisory contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Open-end Fund in which the Investing Management Company may invest. These findings and their basis will be recorded fully in the minute books of the appropriate Investing Management Company.
10. A Fund of Funds Adviser, or trustee or Sponsor of a Fund of Funds, as applicable, will waive fees otherwise payable to it by the Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Open-end Fund under rule 12b–1 under the Act) received from a Fund by the Fund of Funds Adviser, trustee, or Sponsor, or an affiliated person of the Fund of Funds' Adviser, trustee or Sponsor, other than any advisory fees paid to the Fund of Funds' Adviser, trustee or Sponsor or its affiliated person, by an Open-end Fund, in connection with the investment by the Fund of Funds in the Fund. Any Subadviser will waive fees otherwise payable to the Subadviser, directly or indirectly, by the Investing Management Company in an amount at least equal to any compensation received from a Fund by the Subadviser, or an affiliated person of the Subadviser, other than any advisory fees paid to the Subadviser or its affiliated person by an Open-end Fund, in connection with the investment by the Investing Management Company in the Fund made at the direction of the Subadviser. In the event that the Subadviser waives fees, the benefit of the waiver will be passed through to the Investing Management Company.
11. With respect to registered separate accounts that invest in a Fund of Funds, no sales load will be charged at the Fund of Funds level or at the Fund level. Other sales charges and service fees, as defined in Rule 2830 of the Conduct Rules of the NASD, if any, will only be charged at the Fund of Funds level or at the Fund level, not both. With respect to other investments in a Fund of Funds, any sales charges and/or service fees charged with respect to shares of the Fund of Funds will not exceed the limits applicable to a fund of funds as set forth in Rule 2830 of the NASD Conduct Rules.
12. No Fund will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by section 12(d)(1)(E) of the Act, an exemptive order that allows a Fund to purchase shares of an affiliated money market fund for short-term cash management purposes or rule 12d1–1 under the Act.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange is proposing amendments to Rule 638 concerning mediation. The amendments are, in part, housekeeping in nature as they remove references relating to an expired mediation pilot program and reposition certain provisions of the rule. In addition, the proposed amendments codify certain existing mediation procedures. The text of the proposed rule change is available on the NYSE's Web site (
In its filing with the Commission, the NYSE included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The NYSE has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Mediation is offered by the Exchange to parties, on a voluntary basis, both before and after an arbitration claim has been filed. A neutral, impartial individual, who serves as the mediator, facilitates discussion of the issues in an attempt to reach a settlement. The mediator does not render a decision.
In 1998, the Exchange adopted, on a pilot basis, Rule 638 to provide for mandatory mediation in all intra-industry disputes and voluntary mediation in all customer disputes for claims of $500,000 or more. As an incentive for parties to use mediation, the pilot program provided for the Exchange to pay the mediator's fee, up to $500 for a single mediation session of up to four hours. In December 2000, the pilot was amended to lower the threshold for customer disputes to $250,000. The Exchange's experience with the pilot led to the conclusion that mediation is most successful when parties enter into it of their own accord. For this reason, the pilot was allowed to expire on January 31, 2003. Thereafter, the Exchange adopted the current mediation rules that provide for voluntary mediation pending arbitration, as well as prior to arbitration.
The proposal would remove references to the expired pilot program. The proposed amendments would also codify certain existing mediation procedures, including that: (1) The
In addition, the proposed rule would clarify that any party may withdraw from mediation at any time prior to the execution of a settlement agreement upon written notification to all other parties, the mediator, and the Director of Arbitration. It also would clarify that parties may select a mediator on their own or request a list of potential mediators from the Exchange, and that, upon request of any party, the Director of Arbitration would send the parties a list of five potential mediators together with the mediators' biographical information described in Rule 608. At that time, any party to the mediation would be able to request additional names from the Director of Arbitration. The proposed rule also would provide that the parties shall advise the Exchange as to the name of the agreed-upon mediator. In addition, it would clarify that once the parties agree to mediate, the Exchange would facilitate the mediation, if requested, by contacting the mediator selected and by assisting in making necessary arrangements, as well as that parties to mediation may use the Exchange meeting facilities in New York, when available, without charge.
The proposed changes are consistent with Section 6(b)(5)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
(a) By order approve the proposed rule change, or
(b) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice is hereby given that Gefus SBIC, L.P., 375 Park Avenue, Suite 2401, New York, NY 10152, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and Section 107.730, Financings which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and Regulations (13 CFR 107.730 (2006)). Gefus SBIC, L.P. proposes to provide equity security financing to Patton Surgical Inc. 1000 Westbank Drive, Suite 5A200 Austin, TX 78746. The financing is contemplated for operating expenses and for general corporate purposes.
The financing is brought within the purview of § 107.730(a)(1) of the Regulations because Admiral Bobby R. Inman, an Associate of Gefus SBIC, L.P.,
Notice is hereby given that any interested person may submit written comments on the transaction to the Associate Administrator for Investment, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416.
Notice is hereby given that Housatonic Equity Investors SBIC, L.P., 44 Montgomery Street, Suite 4010, San Francisco, CA 94104, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and Section 107.730, Financings which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and Regulations (13 CFR 107.730 (2006)). Housatonic Equity Investors SBIC, L.P. provided equity security financing to ArchivesOne, Inc., 200 Commercial Street, Watertown, CT 06795. The financing is contemplated for operating expenses and general corporate purposes.
The financing is brought within the purview of § 107.730(a)(1) of the Regulations because Housatonic Equity Investors, L.P., an Associate of Housatonic Equity Investors SBIC, L.P., owns more than ten percent of ArchivesOne, Inc.. Therefore, ArchivesOne, Inc. is also considered an Associate of Housatonic Equity Investors SBIC, L.P. as defined at 13 CFR 107.50 of the SBIC Regulations.
Notice is hereby given that any interested person may submit written comments on the transaction to the Associate Administrator for Investment, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Alaska (FEMA—1669—DR), dated 12/08/2006.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, Tx 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 12/08/2006, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage is 10760.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Missouri dated 12/15/2006.
12/15/2006.
Submit completed loan applications to : U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage is 10750 B and for economic injury is 10751 0.
The States which received an EIDL Declaration # are Missouri, Illinois, Kentucky, Tennessee.
Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of New York (FEMA–1670–DR), dated 12/12/2006.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth , TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 12/12/2006, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage is 10759.
U.S. Small Business Administration.
Notice of intent to Waive the Nonmanufacturer Rule for Demountable Cargo Containers Manufacturing (Dry Freight Containers/Connex Boxes).
The U.S. Small Business Administration (SBA) is considering granting a request for a waiver of the Nonmanufacturer Rule for Demountable Cargo Containers Manufacturing (Dry Freight Containers/Connex Boxes). According to the request, no small business manufacturers supply these classes of products to the Federal government. If granted, the waiver would allow otherwise qualified regular dealers to supply the products of any domestic manufacturer on a Federal contract set aside for small businesses; service-disabled veteran-owned small businesses or SBA's 8(a) Business Development Program.
Comments and source information must be submitted by January 5, 2007.
You may submit comments and source information to Sarah Ayers, Program Analyst, U.S. Small Business Administration, Office of Government Contracting, 409 3rd Street, SW., Suite 8800, Washington, DC 20416.
Sarah Ayers, Program Analyst, by telephone at (202) 205–6413; by FAX at (202) 205–6390; or by e-mail at
Section 8(a)(17) of the Small Business Act (Act), 15 U.S.C. 637(a)(17), requires that recipients of Federal contracts set aside for small businesses, service-disabled veteran-owned small businesses, or SBA's 8(a) Business Development Program provide the product of a small business manufacturer or processor, if the recipient is other than the actual manufacturer or processor of the product. This requirement is commonly referred to as the Nonmanufacturer Rule. The SBA regulations imposing this requirement are found at 13 CFR 121.406(b). Section 8(a)(17)(b)(iv) of the Act authorizes SBA to waive the Nonmanufacturer Rule for any “class of products” for which there are no small business manufacturers or processors available to participate in the Federal market.
As implemented in SBA's regulations at 13 CFR 121.1202(c), in order to be considered available to participate in the Federal market for a class of products, a small business manufacturer must have submitted a proposal for a contract solicitation or received a contract from the Federal government within the last 24 months. The SBA defines “class of products” based on six digit coding system. The coding system is the Office of Management and Budget North American Industry Classification System (NAICS).
The SBA is currently processing a request to waive the Nonmanufacturer Rule for Demountable Cargo Containers, Manufacturing, (Dry Freight Containers/Connex Boxes) North American Industry Classification System (NAICS) code 336212.
The public is invited to comment or provide source information to SBA on the proposed waivers of the Nonmanufacturer Rule for this class of NAICS code within 15 days after date of publication in the
Pursuant to section 561 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act,
This Determination shall be reported to the Congress and published in the
Maritime Administration, DOT.
Notice of availability; Request for Comments.
The Coast Guard and the Maritime Administration (MARAD) announce the availability of material supplementing the Final Environmental Impact Statement (FEIS) for the Northeast Gateway Liquefied Natural Gas Deepwater Port License Application. The supplementary material corrects omissions in the FEIS.
To allow sufficient time for public review and comment on this supplemental material we are extending the public comment period until December 26, 2006. All other scheduled dates remain unchanged. The Federal and State Agency and Governor comment period also end December 26, 2006 and the MARAD Record of Decision is due by February 7, 2007.
If you have questions about the supplementary material, you may contact Roddy Bachman, U.S. Coast Guard, at 202–372–1451 or
On October 26, 2006, the Coast Guard and MARAD notice of availability for the Northeast Gateway Liquefied Natural Gas Deepwater Port License FEIS appeared in the
The corrections are to incorporate additional Whale Center of New England data into the FEIS. The following corrections to the FEIS apply:
Under the “Equivalent Yield” column, replace “1,165” (lobster) with “3”, and change the total from 2,330 to 1,168.
By order of the Maritime Administrator.
Indiana Boxcar Corporation (applicant) has filed a verified notice of exemption under 49 CFR 1180.2(d)(2) to continue in control of Youngstown & Southeastern Railway Company (Y&S), upon Y&S's becoming a Class III rail carrier.
The transaction was scheduled to be consummated on November 29, 2006.
This transaction is related to the concurrently filed verified notices of exemption:
STB Finance Docket No. 34934,
Applicant is a noncarrier that currently controls three Class III rail carriers: Vermilion Valley Railroad Company, Inc. (VVR), the Chesapeake & Indiana Railroad Company, Inc. (CIR), and Tishomingo Railroad Company, Incorporated (TRR).
Applicant states that: (1) The rail lines operated by VVR, CIR, and TRR do not connect with the rail line being acquired by lease and operated by Y&S; (2) the continuance in control is not part of a series of anticipated transactions that would connect the rail line being acquired by lease and operated by Y&S with applicant's rail lines or with those of any other railroad within applicant's corporate family; and (3) the transaction does not involve a Class I rail carrier. Therefore, the transaction is exempt from the prior approval requirements of 49 U.S.C. 11323.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under section 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III carriers.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34961, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423–0001. In addition, one copy of each pleading must be served on John D. Heffner, John D. Heffner, PLLC, 1920 N Street, NW., Suite 800, Washington, DC 20036.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Eastern States Railroad, LLC (ESR), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire the lease and operating rights to approximately 35.7 miles of rail line owned by the Columbiana County Port Authority (CCPA). The line extends between milepost 0.0 in Youngstown, OH, and milepost 35.7 in Darlington, PA. Currently, the Ohio & Pennsylvania Railroad Company (O&P) operates over this line pursuant to an interim operating agreement with the trustee of the line's former operator, the Central Columbiana & Pennsylvania Railway, Inc. (CCPR), which filed for bankruptcy in the U.S. Bankruptcy Court for the Eastern District of Arkansas.
ESR also seeks to receive permanent assignment of CCPA's and CCPR's operating rights to approximately 3 miles of track running east of milepost 0.0. ESR claims that this acquisition will, in combination with other rights that ESR has obtained, facilitate interchange with Norfolk Southern Railway Company and CSX Transportation, Inc.
According to ESR, it has entered into an interim operating agreement with the trustee of CCPR for interim assignment of operating rights on all the lines described herein, pending the closing of its acquisition of the lease and operating rights, so that ESR may commence operations.
ESR certifies that its projected annual revenues as a result of the transaction will not exceed $5 million. The transaction was scheduled to be consummated on November 29, 2006, the effective date of the exemption (7 days after the exemption was filed).
This transaction is related to two concurrently filed verified notices of exemption: STB Finance Docket No. 34962,
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34934, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423–0001. In addition, a copy of each pleading must be served on Myles L. Tobin, Fletcher & Sippel, LLC, 29 North Wacker Drive, Suite 920, Chicago, IL 60606–2832.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Youngstown & Southeastern Railway Company (Y&S), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to sublease from Eastern States Railroad, LLC (ESR) and operate the portion of the 35.7-mile line between milepost 35.7 in Darlington, PA, and milepost 0.0 in Youngstown, OH. In addition, Y&S will operate, as ESR's agent and in ESR's name, 3 miles of rail line running east of Youngstown, which is the subject of permanent assignment to ESR of Central Columbiana & Pennsylvania Railway, Inc.'s (CCPR) and Columbiana County Port Authority's (CCPA) operating rights that will facilitate the interchange of traffic with Norfolk Southern Railway Company and CSX Transportation, Inc.
This transaction is related to two concurrently filed verified notices of exemption: STB Finance Docket No. 34934,
Y&S certifies that its projected annual revenue as a result of this transaction will not exceed $5 million. The transaction was scheduled to be consummated on or after November 29, 2006, the effective date of the exemption (7 days after the exemption was filed).
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34962, must be filed with the Surface Transportation Board, 1925
Board decisions and notices are available on its Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Commonwealth Railway, Inc. (CWRY), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to acquire and operate approximately 12.5 miles of rail line owned by Norfolk Southern Railway Company (NS) between milepost F–4.0 and milepost F–16.5 near Portsmouth, VA. CWRY currently operates the subject line pursuant to a lease with an option to purchase from NS (as the successor to Norfolk and Western Railway Company).
CWRY certifies that its projected revenues as a result of this transaction will not result in the creation of a Class II or Class I rail carrier, and that its projected annual revenues will not exceed $5 million. CWRY states that the parties intend to consummate the transaction after November 28, 2006 (the effective date of the exemption).
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34954, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423–0001. In addition, a copy of each pleading must be served on: Eric M. Hocky, Four Penn Center, Suite 200, 1600 John F. Kennedy Blvd., Philadelphia, PA 19103–2808.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Norfolk Southern Railway Company (NSR) and High Point, Randleman, Asheboro and Southern Railroad Company (HPRAS), a majority-owned NSR subsidiary, have jointly filed a notice of exemption under 49 CFR 1152 Subpart F—
NSR and HPRAS have certified that: (1) No local traffic has moved over the line for at least 2 years; (2) any overhead traffic can be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements of 49 CFR 1105.7 (environmental report), 49 CFR 1105.8 (historic report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to these exemptions, any employee adversely affected by the abandonment or discontinuance shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, these exemptions will be effective on January 20, 2007, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to applicants' representative: James R. Paschall, Three Commercial Place, Norfolk, VA 23510.
If the verified notice contains false or misleading information, the exemptions are void
NSR and HPRAS have filed an environmental report which addresses the effects, if any, of the abandonment and discontinuance on the environment and historic resources. SEA will issue an environmental assessment (EA) by December 26, 2006. Interested persons may obtain a copy of the EA by writing to SEA (Room 500, Surface Transportation Board, Washington, DC 20423) or by calling SEA, at (202) 565–1539. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1–800–877–8339.] Comments on environmental and historic
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), HPRAS shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by HPRAS's filing of a notice of consummation by December 21, 2007, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW Washington, DC 20220.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before February 20, 2007.
Submit written comments on the collection of information through
Nancy J. Kessinger at (202) 273–7079 or fax (202) 275–5947.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before February 20, 2007.
Submit written comments on the collection of information through
Nancy J. Kessinger at (202) 273–7079 or FAX (202) 275–5947.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501–3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before February 20, 2007.
Submit written comments on the collection of information through www.Regulations.gov; or to Nancy J. Kessinger, Veterans Benefits Administration (20M35), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420; or e-mail:
Nancy J. Kessinger at (202) 273–7079 or FAX (202) 275–5947.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Office of Policy, Planning and Preparedness, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3521), this notice announces that the Office of Policy, Planning and Preparedness (OPP&P), Department of Veterans Affairs, has submitted the collection of information for the Veterans' Disability Benefits Commission as abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before January 22, 2007.
Submit written comments on the collection of information through
Denise McLamb, Initiative Coordination Service (005G1), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 565–8374, fax (202) 565–7870 or e-mail
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before February 20, 2007.
Submit written comments on the collection of information through
Ann W. Bickoff (202) 273–8310 or FAX (202) 273–9381.
Under the PRA of 1995 (Public Law 104–13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility;
a. Application for Furnishing Long-Term Care Services to Beneficiaries of Veterans Affairs, VA Form 10–1170.
b. Residential Care Home Program—Sponsor Application, VA Form 10–2407.
a. VA Form 10–1170 is completed by community agencies wishing to provide long term care to veterans receiving VA benefits.
b. VA Form 10–2407 is an application used by a residential care facility or home that wishes to provide residential home care to veterans. It serves as the agreement between VA and the residential care home that the home will submit to an initial inspection and comply with VA requirements for residential care.
a. VA Form 10–1170—83 hours.
b. VA Form 10–2407—42 hours.
a. VA Form 10–1170—10 minutes.
b. VA Form 10–2407—5 minutes.
a. VA Form 10–1170—500.
b. VA Form 10–2407—500.
By direction of the Secretary.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of Proposed Rulemaking (NPRM); request for comments.
FMCSA proposes changes to the New Entrant Safety Assurance Process that would raise the standard of compliance for passing the new entrant safety audit. The agency has identified 11 regulations that it believes are essential elements of basic safety management controls necessary to operate in interstate commerce and proposes that failure to comply with any one of the 11 regulations would result in automatic failure of the audit. Under this proposal, carriers would also be subject to the current safety audit evaluation criteria in Appendix A of part 385. Additionally, if a roadside inspection discloses certain violations, the new entrant would be subject to expedited actions to correct these deficiencies. The agency proposes to eliminate Form MCS–150A—Safety Certification for Application for USDOT Number. The agency also intends to check compliance with the Americans with Disabilities Act and certain household goods-related requirements in the new entrant safety audit, if they apply to the new entrant's operation. However, failure to comply with these requirements would not impact the outcome of the safety audit. These changes would not impose additional operational requirements on any new entrant carrier. All new entrants would continue to receive educational information on how to comply with the safety regulations and be given an opportunity to correct any deficiencies found. FMCSA recognizes many new entrants are small businesses that are unaware of these requirements and continue to need the agency's assistance. Finally, FMCSA would make clarifying changes to some of the existing new entrant regulations and establish a separate new entrant application procedure and safety oversight program for non-North America-domiciled motor carriers. FMCSA believes this proposal would improve its ability to identify at-risk new entrant carriers and ensure deficiencies in basic safety management controls are corrected before the new entrant is granted permanent registration.
We must receive your comments by February 20, 2007.
You may submit comments, identified by DOT DMS Docket Number FMCSA–2001–11061, by any of the following methods:
• Federal eRulemaking Portal:
• Agency Web site:
•
•
•
Mr. Arturo H. Ramirez, (202) 366–8088, Chief, Enforcement and Compliance Division, Federal Motor Carrier Safety Administration (MC–ECE), 400 Seventh Street, SW., Washington, DC 20590–0001. Office hours are from 7:45 a.m. to 4:15 p.m., ET, Monday through Friday, except Federal holidays.
Comments received after the comment closing date will be included in the docket, and we will consider late comments to the extent practicable. FMCSA may, however, issue a final rule at any time after the close of the comment period.
Title 49 U.S.C. 31144 requires the Secretary of Transportation (Secretary) to determine whether an owner or operator is fit to operate safely. Section 210 of the Motor Carrier Safety Improvement Act of 1999 [Public Law 106–159, 113 Stat. 1764, December 9, 1999] (MCSIA) added § 31144(g)
In addition to expanding the Secretary's authority under § 31144, Section 210 of MCSIA was a specific statutory directive consistent with the more general pre-existing legal authority provided by the Motor Carrier Safety
This NPRM proposes changes to the New Entrant Safety Assurance Process to improve the agency's ability to identify at-risk new entrant motor carriers through screening and ensure deficiencies are corrected before granting them permanent registration. As such, it implements the § 31136(a)(1) mandate that FMCSA regulations ensure CMVs are maintained and operated safely. It does not propose any new operational responsibilities on drivers pursuant to §§ 31136(a)(2)–(4).
In response to the MCSIA statutory mandate, on May 13, 2002, FMCSA published an interim final rule (IFR) titled
Under the current New Entrant Safety Assurance Process, FMCSA provides applicants with an application package including, upon request, educational and technical assistance materials. The applicant must complete the application, including Form MCS–150A—Safety Certification for Application for USDOT Number, which requires the carrier to certify procedures are in place for basic safety management controls. Following completion of the application forms, FMCSA registers the new entrant and assigns a United States Department of Transportation (USDOT) Number. For-hire motor carriers, unless providing transportation exempt from ICCTA registration requirements, also are required to obtain FMCSA operating authority under 49 U.S.C. 13902, prior to commencing operations. The new entrant safety monitoring period begins when FMCSA issues the new entrant provisional registration via a USDOT Number and continues for 18 months. To maintain its provisional registration, a new entrant must comply with all FMCSA regulations and applicable hazardous materials regulations.
Within the first 18 months of a new entrant's operation, FMCSA will conduct a safety audit (SA) of the carrier's operations to educate the carrier on compliance with the Federal Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs) and to determine if the carrier is exercising basic safety management controls as defined in 49 CFR 385.3. An SA is not a compliance review. It does not result in a safety rating. These terms are defined in § 385.3.
During the SA, FMCSA gathers information by reviewing the carrier's compliance with “acute” and “critical” provisions of the FMCSRs and applicable HMRs. Acute regulations are those where the consequences of non-compliance are so severe as to require immediate corrective actions by a motor carrier, regardless of the overall basic safety management controls of the motor carrier (e.g., allowing a driver with a suspended license to operate a vehicle). Critical regulations are defined as those where noncompliance relates to management or operational controls and are indicative of breakdowns in a carrier's management controls (e.g., allowing a driver to operate a vehicle before his/her medical exam). Parts of the FMCSRs and HMRs having similar characteristics are combined together into six regulatory areas called “factors.” The SA scoring evaluates each of the following factors and determines the adequacy of the carrier's safety management controls based on this evaluation. The six factors are:
For each instance of noncompliance with an acute regulation, 1.5 points are assessed against the carrier. For each instance of noncompliance with a critical regulation, 1 point is assessed. For factors 1–5, if the combined violations of acute and critical regulations for each factor are equal to three or more points, the carrier is determined not to have basic safety management controls for that individual factor. If the recordable accident rate (factor 6) is greater than 1.7 recordable accidents per million miles for an urban carrier (1.5 for all other carriers), the carrier is determined to have inadequate basic safety management controls (i.e., the carrier fails the factor). If the carrier's accident rate is anywhere between zero and 1.5 (1.7 for urban carriers), the carrier is considered to have adequate safety management controls in factor 6. A new entrant fails the SA if it fails three or more separate factors. Currently, FMCSA is studying a new approach to assessing the severity of violations as part of its announced CSA 2010 initiative (69 FR 51748). This initiative may ultimately replace the “acute and critical” methodology described here.
If the SA discloses the new entrant's basic safety management controls are adequate, the carrier retains the new entrant registration and continues to be monitored until the end of the 18-month period. FMCSA will grant permanent registration only if the new entrant successfully completes the monitoring period. If the basic safety management controls are inadequate, the new entrant is given an opportunity to correct the deficiencies. To provide that opportunity, FMCSA notifies the new entrant that unless the deficiencies are remedied, the registration will be revoked in 45 days (for carriers using passenger vehicles with a capacity to transport 16 or more passengers or vehicles transporting hazardous materials as defined under 49 CFR § 383.5) or 60 days (for all other new entrants). FMCSA may extend the compliance period if it determines the new entrant is making a good faith effort to remedy the problems. If, within the 45 or 60 days, the new entrant fails to respond to the notice or fails to correct the deficiencies, FMCSA issues an out-
FMCSA decided to publish an NPRM rather than a final rule because today's action proposes substantive changes to the May 13, 2002 IFR. These proposals would benefit from further notice and comment before promulgation as a final rule. Following is a discussion of these proposed changes.
In FY 2000, FMCSA published a report titled “Analysis of New Entrant Motor Carrier Safety Performance and Compliance Using SafeStat,” which compared the safety performance of new entrant carriers to that of experienced carriers. A copy of the report is in the docket for this rule. The report indicated new entrant carriers had significantly higher crash involvement than experienced carriers. New entrant carriers had significantly worse driver safety compliance and performance compared to experienced carriers. To a lesser degree, new entrant carrier vehicle safety compliance and performance were also worse than for experienced carriers. For these reasons, FMCSA intends to ensure all new entrant carriers have basic safety programs and controls in place before granting permanent registration.
In response to comments to the 2002 IFR (see the section below titled “Discussion of Comments”), as well as feedback from FMCSA field staff and State partners administering the New Entrant Safety Assurance Process, the Administrator convened an internal working group in the summer of 2003 to review and improve the process. The working group identified 11 regulatory violations which reflect a clear lack of basic safety management controls yet are not properly weighted by the existing SA. Under the current system, a new entrant could commit one of these 11 violations and still pass the SA. The group recommended that FMCSA strengthen the SA pass/fail criteria to give more appropriate weight to these 11 basic safety management requirements and clarify several vague regulatory requirements.
Based on this recommendation, FMCSA proposes that committing any one of the following 11 regulatory violations would result in an automatic failure of the SA:
1. § 382.115(a)/§ 382.115(b)—Failing to implement an alcohol and/or controlled substances testing program (domestic and foreign motor carriers, respectively).
2. § 382.211—Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382.
3. § 382.215—Using a driver known to have tested positive for a controlled substance.
4. § 383.37(a)—Knowingly allowing, requiring, permitting, or authorizing an employee with a commercial driver's license which is suspended, revoked, or canceled by a State or who is disqualified to operate a commercial motor vehicle.
5. § 383.51(a)—Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a commercial motor vehicle.
6. § 387.7(a)—Operating a motor vehicle without having in effect the required minimum levels of financial responsibility coverage.
7. § 391.15(a)—Using a disqualified driver.
8. § 391.11(b)(4)—Using a physically unqualified driver.
9. § 395.8(a)—Failing to require a driver to make a record of duty status.
10. § 396.9(c)(2)—Requiring or permitting the operation of a commercial motor vehicle declared “out-of-service” before repairs are made.
11. § 396.17(a)—Using a commercial motor vehicle not periodically inspected.
The agency believes carriers committing these violations do not have the basic safety management controls in place to safely operate in interstate commerce. The working group identified, and FMCSA accepted, these 11 infractions because they are so basic to ensuring safety that no carrier should be allowed to operate if any of these violations are found and not corrected. For example, implementation of an alcohol and controlled substances testing program is a fundamental requirement for any interstate carrier. A carrier that has implemented a program to ensure its drivers do not operate after testing positive for drugs or alcohol will reduce the risk of that carrier/driver being involved in a fatal accident. Allowing drivers who refuse to submit to drug or alcohol testing to drive indicates the carrier does not have an effective drug and alcohol testing program. Similarly, only qualified drivers should be permitted to drive. A carrier does not exercise sufficient safety management controls if it uses drivers who are disqualified from operating a CMV, physically unqualified, or who have had their commercial driver's license suspended, revoked, or canceled.
Additionally, the primary mission of the agency is to reduce crashes, injuries and fatalities involving large trucks and buses. For this mission to succeed, carriers must operate safe vehicles. To accomplish this, vehicles must be periodically inspected and kept in safe operating condition. Therefore, a new entrant would fail the safety audit if it does not inspect its vehicles periodically or operates any vehicle declared out-of-service before making the required repairs.
Further, driver fatigue has been identified as a contributing factor in many CMV crashes. To achieve the highest level of safety, carriers must have a system to safeguard the public against fatigued drivers by ensuring their drivers adhere to the agency's hours-of-service limitations. Hours-of-service violations comprise the largest percentage of driver out-of-service violations at the roadside. One effective safety management control for preventing fatigued drivers from operating a CMV is to have in place a system requiring drivers to submit records of duty status or other records, as appropriate. This recordkeeping requirement is fundamental to an effective driver monitoring system.
Finally, the agency believes it is essential for the traveling public to receive adequate compensation for personal injuries or property damage caused by CMVs operating on the highways. Therefore, carriers lacking required minimum financial responsibility would not be permitted to operate.
FMCSA emphasizes that the purpose of the proposed revision is to improve the safety management of new entrants, not to remove them from operations. The agency believes the regulations identified above are evidence of whether a new entrant has a systemic program to ensure it has the basic safety management controls to operate in interstate commerce.
As discussed above, when a new entrant fails an audit, even for one of the automatic failures described above, it will be afforded due process and given time to correct its failures and improve its safety management controls. This proposal emphasizes FMCSA's commitment to highway safety and would allow the agency to ensure new entrants are not permitted to operate without first correcting serious deficiencies in a timely manner.
FMCSA believes it is incumbent upon all new entrant carriers to be informed about, and familiar with, the FMCSRs prior to receiving a safety audit. To this end, FMCSA provides outreach and educational materials to carriers to help them prepare for the audit. Carriers discovered to have committed one of the
It should be noted that most of these 11 regulations correspond to requirements necessary for Mexico-domiciled long-haul carriers to obtain authority to operate in the United States, as established by Congress under Section 350(a)(1)(B) of the Fiscal Year 2002 DOT Appropriations Act [Public Law 107–87, Title III, sec. 350, 115 Stat. 864, Dec. 18, 2001]. The requirements applicable to Mexico-domiciled long-haul carriers are:
• Verification of a controlled substances and alcohol testing program consistent with 49 CFR part 40;
• Verification of a carrier's system of compliance with hours-of-service rules, including hours-of-service records;
• Verification of proof of financial responsibility;
• An evaluation of that motor carrier's safety inspection, maintenance, and repair facilities or management systems, including verification of records of periodic vehicle inspections; and
• Verification of drivers' qualifications, including a required commercial driver's license.
Under existing § 385.307(a), having “an accident rate or driver or vehicle violation rate that is higher than the industry average for similar motor carrier operations' triggers an expedited SA or compliance review of the new entrant. (The reference to a “driver or vehicle violation rate” is an error and should read “driver or vehicle out-of-service rate.”) The agency proposes to replace the abbreviated expedited action provisions under § 385.307(a) with the same “Expedited Action” provisions applicable to Mexico-domiciled carriers under § 385.105. As the agency stated in proposing the expedited action provisions for Mexico-domiciled carriers, we believe these violations pose the greatest threat to public safety and raise serious questions about a carrier's willingness and ability to conduct safe operations. See 66 FR 22416 (May 3, 2001). In addition to identifying potentially unsafe new entrant carriers, expanding the expedited action provisions would also make the treatment of Mexico-domiciled new entrants and all other new entrants more uniform.
This change would improve the New Entrant Safety Assurance Process by tightening scrutiny of new entrants before and after the safety audit. New entrants discovered with these violations could be identified during a roadside inspection or by any other means even if the agency had not yet conducted a safety audit.
Discovery of certain violations during a roadside inspection or by any other means would subject the new entrant to expedited action. If the carrier had not already submitted to an audit, the carrier would be flagged for review as soon as practicable. If the carrier already had submitted to an audit before discovery of an “expedited action violation,” FMCSA would send the carrier a letter requesting evidence of corrective action within 30 days of the notice or the carrier's registration would be revoked. Additionally, if FMCSA determined the violation warranted a more thorough review of the carrier's operation, the agency would schedule a compliance review. The following actions would trigger expedited action against the motor carrier:
• Using a driver who does not have a valid commercial driver's license.
• Operating vehicles that have been placed out-of-service for violations of the Federal Motor Carrier Safety Regulations or compatible State laws and regulations without taking necessary corrective action.
• Being involved in, through action or omission, a hazardous materials incident involving—
• Being involved in, through action or omission, two or more hazardous materials incidents involving hazardous materials other than those listed above.
• Using a driver who tests positive for controlled substances or alcohol or who refuses to submit to required drug or alcohol tests.
• Operating a motor vehicle that is not insured as required.
• Having a driver or vehicle out-of-service rate of 50 percent or more based on at least three inspections within a consecutive 90-day period.
The last item above would replace the “vehicle or driver violation rate that is higher than the industry average for similar motor carrier operations” requirement under § 385.307. From an operational standpoint, the “50 percent or more threshold” would provide for more effective and efficient monitoring of new entrant performance because it is a non-subjective and easily measured rate.
The changes in today's notice of proposed rulemaking, if promulgated as a final rule, would apply to motor carriers still subject to the current new entrant safety monitoring process on the final rule's effective date. Assuming all changes are adopted, these new entrants would be subject to expedited enforcement action for committing any of the seven violations or actions identified under the section “Expedited Action.” If a current new entrant has not had a safety audit prior to the final rule effective date, it would be audited in accordance with the safety audit procedures adopted in the final rule, including the applicable 11 automatic failure factors identified under the section “Strengthening the Safety Audit.” However, the automatic failure factors would not be retroactively applied to safety audits completed prior to the final rule's effective date. The safety audit outcomes determined prior to the final rule's effective date would remain unchanged by the final rule.
The purpose of the MCS–150A is for a new entrant to certify it has a system in place to ensure compliance with the FMCSRs and applicable HMRs. However, based on the SAs conducted to date, FMCSA has found many new entrants certified on the MCS–150A they are knowledgeable about the FMCSRs and applicable HMRs and have in place the safety management controls necessary to conduct interstate operations, but are not, in fact, in compliance with the FMCSRs and applicable HMRs. Therefore, while the intent of the MCS–150A is valid, in practice it fails. Consequently, FMCSA is proposing to eliminate the form. Conforming amendments are proposed to eliminate mention of the MCS–150A throughout the regulations.
The administrative review provisions in current § 385.327 are ambiguous with respect to the time during which a carrier is allowed to file a request for administrative review and when it must file a request for administrative review,
The agency is concerned about carriers attempting to evade enforcement actions and/or out-of-service orders issued against them by re-registering as new entrants and operating as different entities under new USDOT Numbers. We call these entities “chameleon” carriers.
Such a carrier might attempt to conceal its former identity by leaving blank the response to items 16 and 17 on the “Motor Carrier Identification Number—Application for USDOT Number” (Form MCS–150). Items 16 and 17 of the MCS–150 request the carrier's USDOT Number or MC or MX Number. In other cases, the carrier may attempt to hide the fact that its USDOT Number is revoked by falsifying the response to item 28 on the MCS–150, which asks whether the carrier's USDOT Number registration is currently revoked by FMCSA, and if so, requires the carrier to list this number. Item 30 on the MCS–150 requires the carrier to certify the information provided on the MCS–150 is true, correct and complete. Unfortunately, some carriers deliberately fail to disclose information regarding their history in order to evade civil penalties assessed against the company or to circumvent out-of-service orders and other operational restrictions by obtaining new USDOT Numbers. Often these chameleon carriers go undetected until the agency conducts an SA or compliance review.
The agency is committed to ensuring only safe carriers are permitted to continue operating on our nation's highway. FMCSA has the authority to correct, modify, or revoke new entrant registration issued inadvertently, or obtained by fraud, misrepresentation or other wrongful means. Proposed § 385.306 clarifies what action may be taken against any carrier not providing truthful and complete information on its MCS–150.
If a carrier obtains a new USDOT Number after being ordered to cease operations based on a failed safety audit, prior Unsatisfactory rating, failure to pay a civil penalty or any other reason, and the information is discovered after the carrier received another USDOT Number, the agency will revoke the carrier's new registration and may also take additional enforcement action against the carrier. If a carrier obtains a new USDOT Number, but was not subject to an outstanding order to cease operations under a previous number, the agency may determine the new USDOT Number should not be revoked and, instead, link the history of the two companies by identifying in our database the new USDOT Number as the primary active number. The old USDOT Number would be listed in the database as one under which the carrier has also done business, and its safety history, including enforcement actions against the carrier, would be imputed to the new entity.
A carrier that ceased interstate operations and wishes to reapply should submit an updated MCS–150 and list its old USDOT Number when applying. The agency would reactivate the USDOT Number upon approval of the application.
Current § 385.329(a) states a new entrant whose new entrant registration has been revoked and whose operations have been placed out-of-service must wait 30 days after the revocation date to reapply. Current § 385.329(b) states the motor carrier will be required to initiate the application process “from the beginning,” demonstrate it has corrected the deficiencies resulting in revocation, and otherwise ensure it has adequate basic safety management controls. Some have interpreted “from the beginning” to mean the carrier must resubmit all documents submitted when the new entrant initially applied for new entrant registration and, if the application is accepted, undergo another SA and receive a new USDOT Number. The agency proposes to address the reapplication issue by establishing two separate procedures based upon what caused the revocation.
Under proposed § 385.329(b), a new entrant whose registration is revoked for failing the safety audit would reapply by submitting an updated Form MCS–150 and providing evidence of corrective action (which FMCSA would review for adequacy). If FMCSA concludes the re-applicant has taken adequate corrective action, it would grant the application and the re-applicant would not be subject to a second SA. The carrier would remain a new entrant, retain the same USDOT Number and continue to be monitored for 18 months from the date the new application is approved. For-hire motor carriers must also reapply for operating authority under 49 U.S.C. § 13902, if their operating authority was revoked.
If FMCSA revokes a new entrant's registration because it refused to submit to an audit, the new entrant would be required to submit an updated MCS–150, retain the same USDOT Number, and submit to an SA as soon as practicable once the new application is approved. FMCSA intends to flag these carriers so they will receive an SA as soon as practicable once they reenter the program. In all instances, a carrier reapplying for new entrant authority would be prohibited from operating in interstate commerce until its new application is approved. As in the case above, a new 18-month monitoring period would start upon approval of the new application.
To retain historical information on a revoked new entrant's past performance, FMCSA would require the new entrant to retain the same USDOT Number when reapplying for registration. This is consistent with what FMCSA has done in the past and is currently doing whenever a carrier is placed out-of-service and subsequently remedies whatever deficiencies resulted in the out-of-service order.
Currently, the SA does not evaluate compliance with FMCSA's household goods (HHG) regulations (49 CFR part 375). In order to strengthen its oversight of the HHG industry, FMCSA is proposing to include questions regarding HHG requirements in the audit. Because the HHG requirements are not safety related, however, FMCSA would not count the answers toward the pass/fail determination. Instead, any violations found would be enforced through other means (e.g., a compliance review).
The SA also does not evaluate compliance by passenger carriers with the Americans with Disabilities Act of 1990 [Public Law 101–336, 104 Stat. 327, July 26, 1990] (ADA). DOT regulations at 49 CFR part 37 prohibit discrimination against individuals with disabilities in the provision of transportation services, and require
Today's proposal would amend § 385.319, which concerns the new entrant's responsibilities for remedying deficient safety management practices discovered during the safety audit. It adds an additional category of passenger carriers to the description of which carriers must remedy deficiencies within 45 days of notification by FMCSA—new entrants that haul passengers in a vehicle used or designed to transport between 9 and 15 passengers for compensation.
Current § 385.337(a) states: “The initial refusal to permit an SA to be performed may subject the new entrant to the penalty provisions in 49 U.S.C. § 521(b)(2)(A).” The term “initial” before the word “refusal” unnecessarily limits FMCSA's ability to impose penalties against recalcitrant carriers. Therefore, FMCSA is proposing to remove the word “initial” before the word “refusal”; this change would permit FMCSA to consider any refusal as a basis for imposing penalties.
Congress ratified the Central American Free Trade Agreement in the summer of 2005. In preparation for implementation of this treaty, FMCSA examined the agency's programs to ensure that any CMVs entering the United States from Central American countries were operating safely. Central American motor carriers, and indeed any motor carrier from a country other than the United States, Canada, or Mexico (non-North America-domiciled motor carriers), are not covered by FMCSA's existing New Entrant oversight programs. There are 64 carriers from Central American countries that have registered with the agency to operate CMVs in the United States.
The registered Central American carriers are domiciled in Guatemala, El Salvador, Belize, Honduras, Panama, and Nicaragua. The average vehicle fleet size for these carriers is one or two tractor-trailers. Sixty-three of the 64 carriers classified their operations as private motor carriers of property. A single carrier listed its operation type as private motor carrier of passengers (business). Most of the Central American carriers contracted with the same processing agent located in Brownsville, Texas, to file the USDOT Number application with FMCSA. Each of the carriers, including the passenger carrier, listed general freight or motor vehicles as its cargo type.
FMCSA has considered several options for a safety monitoring process for non-North America-domiciled motor carriers, including (1) subjecting them to the safety monitoring process for Mexico-domiciled carriers; (2) subjecting them to the New Entrant Safety Assurance Process for U.S. and Canada-domiciled carriers; or (3) developing an alternate oversight program compatible with existing regulatory authority.
The safety monitoring system for Mexico-domiciled carriers is based upon standards set out in the NAFTA Arbitral Panel Report
Mexico's motor carrier safety regulatory system lacks several of the components that are central to the U.S. system. As the Panel found, the U.S. is responsible for the safe operation of motor carriers within U.S. territory, regardless of the carriers' country of origin, and FMCSA believes we must ensure each carrier is safe to protect U.S. highway users. The safety monitoring process for Mexico-domiciled carriers provides FMCSA with the necessary level of assurance, in a manner consistent with the Panel's findings, and the relevant provisions of NAFTA. It ensures that Mexican motor carriers seeking U.S. operating authority are capable of complying with the U.S. safety regulatory regime.
The New Entrant Safety Assurance Process for U.S. and Canada-domiciled carriers is based upon an in-depth understanding of the safety systems in each country and a long history of cross-border truck and bus operations. Because FMCSA lacks understanding and experience with the safety systems of Central American and other non-North American countries, the agency deems it appropriate to adopt an alternate method of overseeing the compliance and safety of non-North America-domiciled-motor carriers. The alternate oversight method for non-North America-domiciled motor carriers is similar to FMCSA's oversight program for Mexico-domiciled motor carriers. It also is consistent with sec. 210(a) of MCSIA because it would require a safety
FMCSA will educate, review and monitor the 64 registered non-North America-domiciled motor carriers and any additional non-North American carriers issued a USDOT Number prior to the effective date of any final rule promulgated for today's notice of proposed rulemaking. Compliance reviews will be conducted within three months on all existing non-North America-domiciled motor carriers to assess their compliance with U.S. regulations. With respect to additional non-North America-domiciled carriers that register with FMCSA before the effective date of any final rule promulgated for today's notice of proposed rulemaking, FMCSA will (1) manually review each application for USDOT Number (Form MCS–150) filed by non-North America-domiciled motor carriers to ensure they are complete and accurate; and (2) conduct a compliance review of these carriers within 6–12 months of issuing a USDOT Number registration and/or operating authority. FMCSA will monitor all non-North America-domiciled motor carriers for violations of the 11 regulations that the agency considers as minimum standards for safe operations (the same violations proposed as automatic failure factors in this NPRM) and conduct an expedited compliance review of any non-North America-domiciled motor carrier when a violation of these regulations is discovered. While the consequences of undergoing a compliance review and failing a new entrant safety audit may be somewhat different (civil penalties, a safety rating, and perhaps an operations out-of-service order resulting from a compliance review compared to proposed revocation of new entrant operating authority resulting from a new entrant safety audit), FMCSA believes conducting a compliance review is an equivalent level of oversight due to its comprehensive nature, the resultant safety rating for the carrier, and the possibility of civil penalties. In addition, non-North America-domiciled motor carriers would be subject to the same cross-border inspections as Mexico-domiciled carriers. Vehicles operated by non-North America-domiciled motor carriers will be subject to the same inspection standards as other CMVs entering or operating within the United States and will be inspected at the U.S.-Mexico international border unless displaying a valid safety decal.
Through the agency's process of gathering information on non-North America-domiciled motor carriers, another group of carriers from Central America has been identified. This group of carriers allegedly drives or flies drivers into interior States to purchase used tractor/trailers, school buses, farm equipment, and other vehicles. These vehicles are transported to Central America through the United States and Mexico without proper registration, insurance or licensing. This migration of exports from the United States is funneled primarily through one location—the Los Indios Port of Entry to Mexico.
To address this situation, FMCSA will initially educate southbound non-North America-domiciled motor carriers by providing warnings and informing them of the requirements for complying with the Federal Motor Carrier Safety Regulations. Following the educational period, FMCSA will perform periodic compliance strike force activities targeting non-registered southbound traffic at the Los Indios Port of Entry to Mexico. Non-compliant carriers will receive enforcement action ranging from roadside inspection citations to placing drivers and vehicles out of service, if warranted. FMCSA requests comments on this alternate oversight system for non-North America-domiciled motor carriers.
Today's action proposes regulations governing the registration and safety monitoring of new entrant non-North America-domiciled motor carriers. The proposals are discussed as follows:
FMCSA proposes to add a new subpart H to part 385 to address the specific requirements of the application process for all non-North America-domiciled motor carriers applying for a USDOT Number. First, proposed § 385.601 explains that subpart H would apply to any non-North America-domiciled motor carrier that wants to operate within the United States to provide transportation of property or passengers in interstate commerce.
Proposed § 385.603 requires these applicants to file—
• Proposed Form OP–1(NNA)—Application for U.S. Department of Transportation (USDOT) Registration by Non-North America-Domiciled Motor Carriers,
• Form MCS–150—Motor Carrier Identification Report, and
• A notification of the means used to designate process agents.
The application would need to be filled out in English and be complete to be considered. Information on obtaining applications is also provided.
FMCSA would not impose a registration fee for new entrant registration unless the applicant also requires operating authority under part 365, for which an application fee is charged. Under FMCSA's current regulations, a non-North America-domiciled for-hire carrier of non-exempt commodities must submit Form OP–1 and pay a $300 application fee. Conforming amendments are proposed to §§ 365.101 and 365.105 to clarify that a non-North America-domiciled motor carrier would request operating authority by using Form OP–1(NNA)
Proposed § 385.605 would require a non-North America-domiciled carrier to use only drivers who possess a valid commercial driver's license and to subject those drivers to drug and alcohol testing as required under 49 CFR part 382. Acceptable commercial driver's licenses would include: (1) A CDL, (2) Canadian commercial driver's license or (3) a Licencia de Federal de Conductor issued by Mexico. FMCSA believes the CDL and corresponding drug and alcohol testing requirements are justified because drivers' licenses issued by the various non-North American countries may not meet FMCSA standards or State licensing standards regarding commercial motor vehicles not requiring a CDL.
In proposed § 385.607, FMCSA explains how the agency would process an application for new entrant registration filed by a non-North America-domiciled motor carrier. To the extent practicable, the agency would validate the accuracy of information and certifications with data in its databases, and the databases of the governments of the country where the carrier's principal place of business is located. FMCSA would not grant new entrant registration unless the carrier passes a pre-authorization safety audit (discussed later in this section). The criteria governing the pre-authorization safety audit are fully explained in a new Appendix to part 385, subpart H, which is modeled after the pre-authorization safety audit for certain Mexico-domiciled carriers.
After completing the pre-authorization safety audit, FMCSA would issue a USDOT Number if the applicant passes the audit.
The proposed Appendix to 49 CFR part 385, subpart H, sets forth criteria governing the pre-authorization safety audit. During the pre-authorization safety audit, FMCSA would validate the accuracy of information provided in the application and determine whether the carrier has basic safety management controls necessary to ensure safe operations. FMCSA would gather information by reviewing a motor carrier's compliance with “acute” and “critical” regulations in the FMCSRs and HMRs. As stated under the discussion of the New Entrant Safety Assurance Process for U.S. and Canada-domiciled carriers, FMCSA is studying a new approach to assessing the severity of violations as part of its announced CSA 2010 initiative. This initiative may ultimately replace the “acute and critical” methodology described in the Appendix to part 385, subpart H.
Conforming amendments are proposed for §§ 387.7 and 387.31 to require all non-North America-domiciled motor carriers—private and for-hire—to maintain and file evidence of financial responsibility with the agency as a condition of registration. FMCSA believes conditioning registration upon receipt of evidence of financial responsibility is appropriate for all non-North America-domiciled motor carriers because the financial responsibility standards within their countries of domicile may not meet U.S. Federal and State requirements. Section 4120 of The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) [Pub. L. 109–59, 119 Stat. 1762, August 10, 2005] created new Sections 31138(c)(4) and 31139(c) in title 49 of the U.S. Code, authorizing FMCSA to require filing of evidence of financial responsibility by private property and passenger motor carriers under its jurisdiction. However, only those private motor carriers domiciled in non-North American countries would be subject to financial responsibility filing requirements under this proposal. FMCSA plans to address the issue of extending financial responsibility requirements to U.S. and Canada-domiciled private motor carriers in a separate rulemaking.
The new entrant registration would not become permanent unless the carrier successfully completes the proposed 18-month safety monitoring system proposed under new subpart I to part 385. Successful completion of the safety monitoring system includes having each CMV operated in the United States pass a North American Standard commercial motor vehicle inspection every 90 days (as indicated by issuance of a valid safety decal for each of these vehicles) and obtaining a Satisfactory safety rating as a result of the required compliance review.
Under proposed § 385.609, the applicant must notify FMCSA within 45 days of any changes or corrections to certain key information in the Form OP–1(NNA) or the Form BOC–3—the form used to designate a process agent. Failure to do so would be grounds for revocation or suspension of its new entrant registration.
Proposed Form OP–1(NNA) and its instructions are based extensively on the OP–1(MX) form with certain modifications applicable to non-North America-domiciled applicants. Proposed Section I of the form solicits information about the applicant's name, address, official representative, and form of business. Proposed Section IA would require the applicant to disclose any existing operations in the United States, including whether it had previously applied for a USDOT Number. Proposed Section II solicits information about any relationships or affiliations with other entities registered with FMCSA or its predecessor agencies. This information would help FMCSA verify the applicant's domicile in a non-North American country and determine whether the applicant holds similar registration in its country of domicile. Information regarding registration with the applicant's country of domicile would enable FMCSA to confirm motor carrier safety issues with its licensing authority.
Under proposed Section III of the form, the applicant would identify the type(s) of registration requested. FMCSA would require a separate filing fee for each type of registration requested. Section 4303(f) of SAFETEA-LU
Proposed Section IV notifies the applicant of financial responsibility requirements. Consistent with long-haul Mexico-domiciled new entrants, all non-North America-domiciled applicants (private and for-hire) would be required to file evidence of financial responsibility with the agency as a condition of registration. FMCSA also proposes making the cargo insurance requirement for non-North America-domiciled motor carriers consistent with what was proposed in the Unified Registration System NPRM (70 FR 28990 published May 19, 2005). The May 19, 2005, NPRM proposes that only household goods carriers must maintain and file evidence of cargo insurance with the agency. FMCSA would modify proposed Form OP–1(NNA) if the Unified Registration System final rule results in different cargo insurance requirements.
Under proposed Section V, the applicant would certify and substantiate that it has a system in place to ensure compliance with applicable requirements covering driver qualifications, hours of service, drug and alcohol testing, vehicle condition, accident monitoring, and hazardous material transportation. Substantiation would be in the form of narrative responses describing how the applicant will monitor hours of service, how it will maintain an accident register and how it will monitor accidents. FMCSA would also require that the applicant include the names of individuals in charge of its safety program and drug and alcohol testing and identify specific locations where the applicant maintains current FMCSRs. Information obtained under Section V would enable FMCSA to evaluate, upon initial application, the safety compliance program of the applicant. FMCSA would reject an application that could not offer a specific, unambiguous plan to ensure compliance.
Proposed Section VI of the form would include new registration requirements for motor carriers of household goods created under Section 4204 of SAFETEA–LU. Section 4204 amended 49 U.S.C. 13902(a) to require such an applicant to: (1) Provide evidence of participation in an arbitration program and a copy of its notice to shippers about the availability of binding arbitration; (2) identify its tariff and provide a copy of the notice of the availability of the tariff for inspection; (3) certify it has read, and is willing to comply with all U.S. Federal laws regarding consumer protection, estimating, consumers' rights and responsibilities, and options for limiting liability for loss and damage; and (4) disclose certain financial, operational and familial relationship with any other entity involved in the transportation of household goods within 3 years of the proposed date of registration.
Proposed Section VII would require the applicant to specify the scope of registration, indicating intended principal border crossing points.
Under proposed Section VIII, the applicant would be required to make specific certifications regarding compliance with laws of the United States. The applicant would need to affirm its willingness and ability to provide the proposed service and to comply with all pertinent statutory and regulatory requirements. Certifications under proposed Section VIII would remind the applicant of statutory and regulatory responsibilities which, if neglected or violated, might subject the applicant to disciplinary or corrective action by FMCSA. The applicant would need to confirm its understanding that its process agent is deemed its official representative within the United States for receipt of filings and notices relating to the administrative and judicial process in connection with enforcement of Federal statutes and regulations. Finally, the applicant would need to certify that it is not currently disqualified from operating a commercial motor vehicle in the United States.
Proposed Section IX, the final section of the form, includes the applicant's oath attesting to the accuracy and truthfulness of application responses and certification of compliance with certain U.S. Federal and State laws regarding distribution or possession of controlled substances.
Today's action proposes a new subpart I to part 385 covering the proposed safety monitoring system for non-North America-domiciled new entrants.
Proposed § 385.701 defines the following terms used in new subpart I to part 385:
(1) Compliance review has the same meaning as in 49 CFR § 385.3.
(2) New entrant registration is the provisional registration under 49 CFR part 385, subpart H that FMCSA grants to a non-North America-domiciled motor carrier to provide interstate transportation within the United States. It will be revoked if the registrant is not assigned a Satisfactory safety rating following a compliance review conducted during the safety monitoring period established in subpart I.
(3) Non-North America-domiciled motor carrier means a motor carrier of property or passengers whose principal place of business is located in a country other than the United States, Canada or Mexico.
Proposed § 385.703 describes elements of the safety monitoring system for non-North America-domiciled new entrant motor carriers. The safety monitoring system would include roadside monitoring and a compliance review within 18 months of receiving a USDOT Number. Additionally, the non-North America-domiciled carrier would be required—throughout the 18-month safety monitoring period and for three years after its new entrant registration becomes permanent—to display on each CMV in its fleet that is operated within the United States, a valid safety inspection decal. The safety inspection decal would only be valid for three months.
Under proposed § 385.705, a non-North America-domiciled motor carrier found in violation of the seven listed serious violations or infractions would be subject to expedited enforcement action. Such actions would include an expedited compliance review or, in the alternative, a demand that the carrier demonstrate in writing that it has taken immediate corrective action. The proposed infractions parallel those proposed for U.S. and Canada-domiciled motor carriers and those already applicable to Mexico-domiciled carriers. The section clarifies what constitutes a valid commercial driver's license. The type of action taken by FMCSA in response to any violations would depend upon the specific circumstances of the violations.
Proposed § 385.705(b) warns that failure to respond to a request for a written response demonstrating corrective action within 30 days would result in suspension of new entrant registration until the required showing of corrective action is made.
Proposed § 385.705(c) emphasizes that a carrier that successfully responds to a demand for corrective action under this section still would need to undergo a compliance review during the 18-month safety monitoring period if it had not already done so.
Under proposed § 385.707, FMCSA explains potential outcomes of the compliance review—a Satisfactory, Conditional, or Unsatisfactory rating—and FMCSA follow-up actions in response to each rating. The proposed section would require the compliance review to be conducted consistent with existing FMCSA safety fitness evaluation procedures under 49 CFR part 385, Appendix B. These are the same criteria in use for U.S., Canada and Mexico-domiciled carriers.
FMCSA sets forth under proposed § 385.709 the specific time frames for suspension and revocation of new entrant registration. We believe the proposed procedures strike an appropriate balance between the need to protect the public from potentially unsafe carriers and preservation of the carrier's due process rights.
Proposed § 385.711 sets forth procedures for requesting administrative review of the agency's safety rating or its decision to suspend or revoke new entrant registration. The request must explain the error it believes FMCSA committed and a list of all factual and procedural issues in dispute. In addition, the carrier must include any information or documents that support its argument. Following the administrative review, which would be conducted by the FMCSA Associate Administrator for Enforcement and Program Delivery, the agency would notify the carrier of its decision. This decision would constitute the agency's final action. Administrative review would be completed in no more than 10 days after the request is received.
Under proposed § 385.713, a non-North America-domiciled carrier whose registration has been revoked would be prohibited from re-applying for new entrant registration for at least 30 days after the date of revocation. When reapplying, the non-North America-domiciled motor carrier again would be required to pass a pre-authorization safety audit. The carrier would need to demonstrate to the FMCSA's satisfaction that it has corrected the deficiencies that resulted in revocation of its registration and that it otherwise has effectively functioning basic safety management systems in place. If the application is approved, the carrier's USDOT Number—linked to its previous safety record—would be reactivated; a new USDOT Number would not be issued. In this way, the agency could maintain a complete safety record of the non-North America-domiciled motor carrier.
Proposed § 385.715 provides that the safety monitoring period for non-North America-domiciled motor carriers would last for at least 18 months from the date it was issued a USDOT Number.
If the carrier is under a notice to remedy deficiencies in its basic safety management practices, the safety monitoring period would be extended—and its new entrant designation would continue—until FMCSA determines the carrier is complying with the Federal safety regulations or revokes its registration under § 385.709.
If FMCSA is unable to conduct a compliance review within the 18-month period, proposed § 385.715(c) would extend the safety monitoring period until such time as the agency completes and evaluates a review.
Proposed § 385.717 emphasizes that the non-North America-domiciled motor carrier also would be subject to the same general safety fitness procedures in 49 CFR part 385, subpart A, and to compliance and enforcement procedures applicable to all carriers regulated by the FMCSA.
Proposed § 390.19 explains filing procedures for the MCS–150 in greater detail and would subject non-North America-domiciled motor carriers to the biennial update requirement. Additionally, § 390.19(h)(2) proposes a technical correction documenting the existing requirement for a Mexico-domiciled long-haul motor carrier to successfully complete a pre-authorization safety audit prior to being issued a USDOT Number.
FMCSA received 29 responses to the IFR from 19 commenters. The commenters were five trade associations, four safety consultants, two public interest groups, three private citizens, a State police department, a safety enforcement organization, an occupational health private practice, a union, and a professional association. Five commenters made multiple submissions.
Several commenters opposed the IFR for various reasons. Advocates for Highway and Automobile Safety (AHAS) and Public Citizen opposed the agency's decision to publish an IFR instead of a notice of proposed rulemaking. Both urged the agency to permit full public involvement in the New Entrant Safety Assurance Process rulemaking. AHAS indicated the quality of FMCSA regulatory drafting and publication would be improved by providing sufficient documentation of agency reasoning and decisions in its final regulations. Public Citizen stated the New Entrant Safety Assurance Process is rooted in self-reporting and devoid of meaningful oversight. According to Public Citizen, only an extremely negligent new entrant would be denied operating authority under this process. Public Citizen urged the agency to:
• Permit full public involvement in the New Entrant rulemaking.
• Eliminate from the process all requirements for uncorroborated self-reporting.
• Make a proficiency examination, and third-party, in-person verification of regulatory compliance and knowledge, prerequisites for granting operating authority.
• Develop a plan that assures the SA will be conducted within an 18-month time period.
• Establish stricter penalties for noncompliant motor carriers.
The Transportation Lawyers Association (TLA) commented the IFR fails to meet the statutory requirement of ensuring a carrier is knowledgeable about its safety responsibilities prior to commencing operations. “FMCSA proposes nothing in this proceeding that will reduce the ‘safety learning curve’ before a new carrier begins operating.” TLA contended that safety certifications and educational and technical assistance materials have been used by the agency for many years and have already proven inadequate.
In developing this proposal, FMCSA fully considered all comments to the May 2002 IFR and has adopted some of the recommendations. In response to complaints about self-certifications, this NPRM would eliminate the Form MCS–150A because safety audits have confirmed carrier certifications on the MCS–150A and findings at the carrier's place of business are not always consistent (See the “Form MCS–150A” subheading). Later in this section under applicable subject headings, the agency addresses specific concerns from AHAS, TLA and Public Citizen regarding the use of proficiency examinations (see the “Proficiency Examinations” subheading) and plans to improve the educational and technical assistance (ETA) materials by including information on how to comply with the regulations (see the “ETA Materials” subheading). The rule provides additional details about the scoring methodology and how the agency intends to strengthen the New Entrant Safety Assurance Process under the previous section titled “Discussion of the Proposed Rule” under the “Strengthening the Safety Audit” subheading.
Daecher asserted that giving ETA materials to a carrier does not ensure the carrier will read and understand the information. It encouraged FMCSA to use a proficiency examination to ensure the carrier has knowledge of the regulations and related safety information. Public Citizen urged the agency to make a proficiency examination a prerequisite for receiving operating authority. According to Public Citizen, the examination would be a far more comprehensive evaluation of regulatory knowledge than certifications made on the MCS–150A.
The agency believes enhanced ETA materials, including a new entrant safety assurance compact disc, would substantially increase a new entrant's awareness of carrier responsibilities before beginning operations and would, to a great extent, make them proficient in those requirements. FMCSA further believes the anticipated benefits of the enhanced ETA materials more than justify associated agency costs. FMCSA has determined the contents of these materials are not subject to notice and comment because they do not establish standards or procedures, but will place a copy of the updated ETA materials in the docket to this rule for inspection upon completion.
Currently, an SA provides education and technical assistance to a motor carrier that has recently begun operations. In addition, the SA provides FMCSA with the opportunity to ensure the carrier's compliance with applicable Federal safety regulations. Normally, an SA would take from 2 to 4 hours to complete. Unlike the in-depth compliance review for motor carriers that are not in the new entrant program, the SA focuses on education. By conducting these audits at the carrier's place of business rather than in a classroom setting, auditors gain a broader perspective of the company's structure and level of compliance with Federal safety regulations.
According to ASSE, a certified safety professional (CSP) with appropriate transportation experience would be well qualified to perform the audits without further designation. ASSE recommended the final rule allow the use of private auditors who must be accredited by either the Council on Engineering and Scientific Specialties Board or the National Commission on Certifying Agency (NCCA), two nationally recognized independent accrediting bodies overseeing professional safety designations for safety, health and environmental professionals who are qualified to perform audits such as the new entrant SA.
ATA recommended that private contractors receive the same training as Federal and State investigators and use identical audit and data collection techniques. ATA asserted that industry support of the use of private contractors is contingent upon strict oversight of their work. ATA urged FMCSA to address the use of private contractors for SAs in a notice outlining proposed contractor training, auditing procedures and software, and how the Government will measure program effectiveness.
CSS believed that its own experiences in conducting inspections for DOD support its position that “there are many well trained and qualified transportation safety professionals in the private sector.”
Indiana State Police supported the use of FMCSA-certified private contractors to conduct abbreviated SAs before the carrier begins operations. Indiana asserted these contractors could provide the basic educational and technical guidance in a classroom setting when the USDOT Number would be granted. Indiana stated the private contractor could bill the new entrant for these services, resulting in a cost savings to FMCSA.
Schroeder & Associates supported the use of private contractors and suggested adopting the expertise levels described in FMCSA's March 19, 2002, IFR titled
Tran Services asserted Federal, State and private contractors should be identically certified to ensure uniformity. Tran Services, and other private companies, already provide safety services, including “mock DOT audits” to help companies achieve and maintain compliance. ITDA opposed the use of private contractor inspectors, and stated that only Federal and State inspectors should conduct the SA at this time. ITDA believes that only after the New Entrant Safety Assurance Process is fully implemented and there is sufficient experience with the process should FMCSA consider the use of private contractor inspectors.
The IBT interpreted sec. 211 of MCSIA as prohibiting the use of a private contractor to grant operating authority to a carrier and that the SA falls within that prohibition. IBT stated the SA is an integral part of the
Due to the anticipated strain on Federal and State enforcement resources, CVSA recommended the agency use private contractors to conduct SAs. CVSA argued, given their limited resources, Federal and State officials should not weaken efforts to conduct compliance reviews, roadside inspections, and traffic enforcement to implement the New Entrant Safety Assurance Process. CVSA made the following specific recommendations regarding the use of private contractors:
• Use only properly trained and certified individuals;
• Exclude the results of private contractor audits when determining a carrier's safety rating or for enforcement purposes; and
• Prohibit private contractors from conducting roadside inspections.
CVSA also recommended FMCSA conduct a multi-State, private contractor pilot program modeled after Canada's third-party auditor pilot program.
Daecher believed FMCSA should exclusively use qualified private auditors to conduct the SAs because it is a more easily managed and cost effective option. According to Daecher, current FMCSA resources are insufficient to handle the anticipated number of new entrants; opting not to use private contractors would be detrimental to the New Entrant Safety Assurance Process and prohibit review of each new entrant within the 18-month monitoring period. Daecher recommended establishing a certification program for private contractors to conduct both safety audits and compliance reviews.
FMCSA has built into its contracts with private contractors effective safeguards against fraud and other abuses. The contractors are required to follow the same policies and procedures followed by Federal and State safety auditors. In addition, FMCSA closely monitors the activities of private contractors by obtaining monthly activity reports and reviewing their internal administrative procedures.
FMCSA is requiring all individuals performing a privately contracted safety audit to be certified following the same guidelines applicable to Federal and State safety auditors. They must meet the same minimum qualifications as Federal and State safety auditors, including certain education and experience requirements, as well as testing through the FMCSA International Training Division located in Arlington, VA. Private contractors must also pass the same proficiency exams given to Federal and State safety auditors and renew their certification annually. The maintenance of certification requirement currently includes performing a minimum of 24 SAs each year.
Completed SAs performed by private contractors receive the same scrutiny as those performed by Federal and State auditors. Although private contractors perform SAs, the results of any audit are not final until reviewed by FMCSA, thus ensuring Federal oversight of the program.
Since the SA does not result in a safety rating for the motor carrier being audited, private contractor SAs are not used to determine a carrier's safety rating. A safety rating is only issued upon completion of a compliance review. Compliance reviews are only conducted by Federal or State personnel and cannot be performed by a private contractor.
FMCSA agrees that private industry offers many trained and qualified individuals who can be utilized to ensure public safety. The agency acknowledges the strain brought to bear upon Federal and State resources due to the large number of incoming new entrant motor carriers annually registering with FMCSA and hopes to mitigate the situation by continuing to use private contractors.
FMCSA has preliminarily determined this proposed rule is a significant regulatory action within the meaning of Executive Order 12866 and the U.S. Department of Transportation's regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979). While the costs of this NPRM would not exceed the $100 million annual threshold as defined in Executive Order 12866, FMCSA believes the subject of new entrant motor carrier requirements generates considerable public interest and therefore is significant. FMCSA has analyzed the costs and benefits, as discussed below, and has preliminarily determined this proposed rule would not be economically significant. This NPRM has been reviewed by the Office of Management and Budget (OMB).
A number of studies, some of which were sponsored by FMCSA or its predecessor agency, have evaluated the safety experience of new entrants. While the studies differ in emphasis and some particulars, they all demonstrate new entrants have higher crash rates than more established carriers and are less likely to comply with Federal regulations.
As explained previously, this rulemaking makes a number of revisions to how the agency monitors and evaluates new entrant motor carriers operating in the United States, and how these carriers apply for authority. The rulemaking also establishes procedures for the oversight of non-North American motor carriers. Only a very small number of non-North American carriers are currently operating in the United States, and we do not expect this number to grow appreciably in the future.
OMB guidance states that the agency's analyses should “focus on benefits and costs that accrue to citizens and residents of the United States.”
The costs associated with the FMCSRs, HMRs, or the New Entrant Safety Assurance Process IFR should not be counted as a cost of this NPRM because these costs were already counted when the various measures were first promulgated. Thus, there are no societal costs associated with the proposed changes. We are not proposing any substantive changes to the
Between 1995 and 2002, an average of 47,535
As noted above, this NPRM proposes eliminating the Form MCS–150A because of its ineffectiveness in ensuring an understanding of required basic safety management controls. We assume the elimination of this form would save new entrants 10 minutes each. Using a clerical wage of $14 per hour, this provision would save new entrants $111,000 annually. The net administrative cost of this proposed rule to new entrants is thus $2.0 million per year.
We do not believe this proposed rule would impose significant costs or benefits other than those intended and counted in the IFR. As explained previously, this proposed rule would not introduce any new requirements. All carriers, including new entrants, already are required to comply with the FMCSRs and applicable HMRs, including all the standards that would be checked during the safety audit. Therefore, the costs and benefits of the audit should not be ascribed to this NPRM; these costs and benefits were included when these regulations were initially promulgated, so including them now would be double counting.
However, we did attempt to measure these costs and benefits. While they are not properly part of this proposed rule, the information may prove useful for decision makers. This section therefore provides an alternate description of the impact of this proposal.
We calculated the number of crashes that must be avoided to make this proposed rule cost beneficial, meaning the benefits would exceed the costs. We first converted crashes into dollar values to allow for comparison with the cost figures, based on work by Zaloshnja
New entrant carriers are involved in more crashes than more experienced carriers. According to a 2000 Volpe study, new entrants (defined as motor carriers registered for less than 2 years) were more frequently assessed to have Safety Evaluation Area scores in the worst quartile.
The net cost of this proposed rule is $2.0 million per year. For this proposed rule to be cost beneficial, it would have to deter 31 crashes ($2.0 million/$65,183), or one fatal crash.
As of October 2004, 33,787 new entrant SAs had been completed. Only 253 of new entrants audited under the program failed the SA under the existing scoring criteria, which is only 0.75 percent of those receiving an SA.
Had the list of proposed automatic failure criteria been incorporated into our regulations at the time these audits were conducted, 19,559 of the audited carriers would have failed, almost 58 percent of those audited. Therefore, the proposed scoring change would have resulted in an additional 19,306 new entrant carriers failing the audit (19,559 − 253 = 19,306). On an annual basis, this translates to 27,162 carriers failing the audit under the new criteria if there is no change in carrier behavior.
However, it is unlikely the number of carriers that would fail the audit or whose new entrant authority would be revoked would be this large. The cost of not correcting violations of the 11 automatic failure provisions is currently low. New entrants cited for one of these violations are not placed out of service. In fact, it is possible for new entrants to continue operating for some time before remedying their violations. This proposal would dramatically raise the cost of failing to comply with these provisions, with violators possibly losing their authority and being placed out of business. Raising the cost of not correcting a violation, therefore, would encourage new entrants to comply with the regulatory requirements, either before they are audited or after they fail the audit.
We believe new entrants would be sensitive to the increased cost of violations and would respond accordingly. We assume half of the new entrants that would otherwise be put out of service instead would adjust their practices and behavior to comply with the regulations. We assume of the 27,162 new entrants failing one or more of the automatic failure criteria, 13,581 would be placed out of service, and 13,581 would make whatever changes are necessary to continue operations. These costs are now discussed in turn.
As discussed in footnote 14, we assume that non-compliant carriers will
As discussed above, the costs and benefits of complying with the FMCSRs and HMRs (if applicable) are not attributable to this proposal since we are not proposing to change existing operational requirements. However, this evaluation also includes an estimate of costs and benefits assuming these were new requirements. These estimates are presented to assist decision makers in considering the impacts of this proposal. While these estimates do not represent the real costs of this proposal, they illustrate possible impacts of this proposal.
New entrants that change their practices and remain in service would also face some costs. The cost of coming into compliance would vary, depending on a number of factors, including the size of the new entrant and the specific regulation (or regulations) violated. We conservatively assume the average cost for carriers failing one of the 11 automatic failure criteria but desiring to continue operations would be $1,000. Therefore, the total cost for these 13,581 new entrants would be approximately $13.6 million.
The maximum cost of this proposed rule is estimated at approximately $67.9 million per year ($54.3 million + $13.6 million). The ten-year undiscounted cost would be almost $679 million, while the discounted cost would be $477 million.
The theoretical benefits accrue from removing the least safe carriers from the road and replacing them with safer carriers. This change would result in a difference in expected crashes. Using the Compliance Review Impact Assessment Model, we assumed each failing new entrant removed and replaced would have had a crash rate of 1.13 crashes per million vehicle miles traveled (MVMT), which is 50 percent higher than the crash rate for established motor carriers. According to MCMIS, new entrants average 400,000 VMT per year. We assume freight that had been carried by closed carriers would be carried by replacement new entrants. According to MCMIS, new entrants have an overall crash rate of 0.94 crashes per MVMT. Therefore, closing unsafe carriers results in a 17 percent reduction in the per million mile crash rate ((1.13–0.94)/1.13).
We estimate new entrants eventually placed out of service or required to modify their operations are currently involved in approximately 11,200 baseline crashes annually. This is the sum of two calculations. For carriers that would be placed out of service, the calculation is the sum of 13,581 new entrants times 400,000 miles per new entrant times 1.13 crashes per MVMT. The calculation is similar for new entrants that continue operations, except their crash rate is 0.94 crashes per MVMT.
Closing 13,581 carriers would result in almost 1,020 fewer crashes in the first year, 967 in the second year (since 5 percent of the closed carriers would have gone out of business in any case), and fewer each succeeding year. However, an additional 13,581 carriers would be closed in each succeeding year, so the total crashes deterred by closing carriers increases over the analysis period as the reduction caused by the 5 percent business failure rate would be more than offset by the additional carriers closed each year. Over 10 years, more than 48,000 crashes would be deterred by placing unsafe carriers out of service.
The SAs also would reduce crashes among those new entrants allowed to continue operations after coming into compliance. Over 10 years, almost 5,700 crashes would be deterred from carriers that take action to remedy violations. For both classes of carriers, the SAs would result in 54,000 fewer crashes over 10 years.
As noted above, the average cost of a motor-carrier-involved crash is $65,183. By deterring 54,000 crashes, this proposed rule thus would yield a 10-year savings of $3.5 billion undiscounted. At a 7 percent discount rate, this would translate into a benefit of $2.3 billion. Most of these benefits would come from the crash reduction of closed carriers. This benefit would greatly exceed the costs described previously. The discounted ten-year net benefit of this NPRM would be $1.8 billion, and the benefit cost ratio would be 4.8 to 1.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. § 3501,
The following is an explanation of how each of the information collections shown above would be affected by this proposal.
The proposals in this NPRM, affecting three currently-approved information collections, would result in a net decrease of 7,869 burden hours in the agency's information collection budget.
FMCSA requests comments on: (1) whether the collection of information is necessary or useful for the agency to meet its goal of reducing truck crashes, (2) the accuracy of the estimated information collection burden; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the information collection burden on respondents, including the use of automated collection techniques or other forms of information technology.
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement and Fairness Act (SBREFA), requires Federal agencies to analyze the impact of rulemakings on small entities, unless the agency certifies the proposed rule will not have a significant economic impact on a substantial number of small entities. FMCSA believes these proposals do not meet the threshold values for requiring a full-blown regulatory flexibility analysis. Nonetheless, because of the public interest in these proposals, we have prepared a regulatory analysis and placed a copy in the docket to this NPRM. The initial regulatory flexibility analysis (IRFA) for the proposed rule is set forth below.
(1)
The agency received numerous comments to the May 2002 IFR announcing the New Entrant Safety Assurance Process, including recommendations for improvement and alternatives to the program. By late summer 2003, the agency and its State partners had collected sufficient data and had sufficient experience administering the program to assess its effectiveness. The Administrator formed a working group comprised of field and Headquarters staff to conduct a program review. This group identified several key improvements to clarify, strengthen and correct the new entrant regulations. Today's action proposes measures to make the New Entrant Safety Assurance Process better. It also proposes a separate new entrant application procedure and safety oversight program for non-North America-domiciled motor carriers.
(2)
An IFR, with request for comments, was published May 13, 2002, and became effective January 1, 2003. The IFR established new minimum requirements for all applicant motor carriers domiciled in the United States and Canada seeking to operate in interstate commerce. Under the IFR, all new entrants, regardless of whether they need to register with FMCSA under 49 U.S.C. 13901, are required to complete a Form MCS–150A—Safety Certification for Applications for USDOT Number. Additionally, during the initial 18-month period of operations, FMCSA would evaluate the new entrant's safety management practices through an SA and monitor its on-road performance prior to granting the new entrant permanent registration. The objective of this NPRM is to enhance the safety of new entrants and thereby reduce the number of crashes which involve these carriers.
(3)
FMCSA estimated in the regulatory evaluation accompanying this proposal that an average of 47,535 motor carriers entered the industry each year from 1995–2002 seeking interstate authority. Roughly 23,400 of these new entrants are estimated to be non-exempt for-hire carriers that must register under 49 U.S.C. 13901, 20,300 are estimated to be exempt for-hire and private carriers not subject to § 13901, and the roughly 3,800 remaining new registrants are of other types (including 1,922 brokers/freight forwarders, 1,200 Mexico-domiciled commercial zone carriers, and 664 other carriers). These estimates were derived from data contained in the Motor Carrier Management Information System (MCMIS).
The Regulatory Flexibility Act requires Federal agencies to analyze the impact of proposed and final rules on small entities. Small Business Administration (SBA) regulations (13 CFR part 121) define a “small entity” in the motor carrier industry by average annual receipts, which are currently set at $23.5 million per firm. FMCSA estimated based upon the 1997 Economic Census (U.S. Census Bureau), North American Industrial Classification System (NAICS) Code 484 “Truck Transportation” segments, the number of small trucking entities potentially affected by our proposed rules. There are 100,048 for-hire trucking firms within NAICS Code 484. Of these, 75,491, or roughly 75 percent, had annual receipts of less than $21.5 million. While SBA has changed its size definitions, updated data is not yet available. Therefore, this analysis uses the old definition. The actual percent of small businesses is probably somewhat greater than our estimate, but the difference is not likely to be significant. Because FMCSA does not have annual sales data on private carriers, the agency assumed the revenue and operations characteristics of the private new entrant firms would be similar to those of new entrant for-hire carriers. Using these assumptions, the agency estimates almost 35,651 of the total 47,535 new entrants (or 75 percent) are considered small entities. This assumption is generally consistent with an alternative, industry-based approach used to estimate the number of small trucking firms, where size is defined by the number of power units (i.e., tractors or single-unit trucks) owned or leased by motor carriers. Also, MCMIS data indicate 80 percent of new entrant motor carriers within the industry owned or leased six or fewer power units.
(4)
(5)
The replacement system rulemaking is a very complex undertaking and would address the USDOT Number, financial responsibility and commercial aspects of registration; it only touches on ministerial aspects of the New Entrant Safety Assurance Process. Today's proposed rule covers the complete New Entrant Safety Assurance Process, not just registration. It is for these reasons the agency is pursuing these efforts in separate rulemakings. The agency would address any impacts to administrative elements of the New Entrant Safety Assurance Process when the proposed rule announcing the replacement system is promulgated as a final rule.
Accordingly, FMCSA preliminarily determines the proposed action discussed in this document would not have a significant economic impact on a substantial number of small entities.
FMCSA conducted a privacy impact assessment of this proposed rule as required by Section 522(a)(5) of the FY 2005 Omnibus Appropriations Act, Pub. L. 108–447, 118 Stat. 3268 (Dec. 8, 2004) [set out as a note to 5 U.S.C. § 552a]. The assessment considers any impacts of the proposed rule on the privacy of information in an identifiable form and related matters. The entire privacy impact assessment is available in the docket for this proposal.
This proposed rule would not impose a Federal mandate resulting in the net expenditures by State, local, or tribal governments, in the aggregate, or by the private sector, of $120.7 million or more in any one year. 2 U.S.C. 1531,
FMCSA has analyzed this proposed rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321,
FMCSA has also analyzed this proposal under section 176(c) of the Clean Air Act (CAA), as amended (42 U.S.C. 7401
This proposed action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks.” This proposed rule does not concern a risk to environmental health or safety that would disproportionately affect children.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and it has been preliminarily determined this proposed action would not have a substantial direct effect or sufficient federalism implications on States, limiting the policymaking discretion of the States. Nothing in this document would directly preempt any State law or regulation. It would not impose additional costs or burdens on the States. This proposed action would not have a significant effect on the States' ability to execute traditional State governmental functions. To the extent that States incur costs for conducting these SAs, they would be reimbursed 100 percent with Federal funds under MCSAP.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
This proposed action is not a significant energy action within the meaning of section 4(b) of the Executive Order because it is not economically significant and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Administrative practice and procedure, Brokers, Buses, Freight forwarders, Motor carriers, Moving of household goods, Reporting and recordkeeping requirements.
Administrative practice and procedure, Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Buses, Freight, Freight forwarders, Hazardous materials transportation, Highway safety, Insurance, Intergovernmental relations, Motor carriers, Motor vehicle safety, Moving of household goods, Penalties, Reporting and recordkeeping requirements, Surety bonds.
Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Federal Motor Carrier Safety Administration proposes to amend title 49, Code of Federal Regulations, chapter III, subchapter B as set forth below:
1. The authority citation for part 365 continues to read as follows:
5 U.S.C. 553 and 559; 16 U.S.C. 1456; 49 U.S.C. 13101, 13301, 13901–13906, 14708, 31138, and 31144; 49 CFR 1.73.
2. Amend § 365.101 by adding a new paragraph (i) to read as follows:
(i) Applications for non-North America-domiciled motor carriers to operate in foreign commerce as for-hire motor carriers of property and passengers within the United States.
3. Amend § 365.105 by revising paragraph (a) to read as follows:
(a) All applicants must file the appropriate form in the OP–1 series, effective [effective date of final rule]. Form OP–1 for motor property carriers and brokers of general freight and household goods; Form OP–1(P) for motor passenger carriers; Form OP–1(FF) for freight forwarders of
4. The authority citation continues to read as follows:
49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113, 13901–13905, 31136, 31144, 31148, and 31502; sec. 350 of Pub. L. 107–87; and 49 CFR 1.73.
5. Amend § 385.305 to remove paragraph (b)(3) and to redesignate paragraph (b)(4) as (b)(3).
6. Add § 385.306 to subpart D to read as follows:
A carrier that furnishes false or misleading information, or conceals material information in connection with the registration process, is subject to the following actions:
(a) Revocation of registration.
(b) Assessment of the civil and/or criminal penalties prescribed in 49 U.S.C. 521 and 49 U.S.C. chapter 149.
7. Amend § 385.307 to revise paragraph (a) to read as follows:
(a) The new entrant's roadside safety performance will be closely monitored to ensure the new entrant has basic safety management controls that are operating effectively.
8. Add § 385.308 to subpart D to read as follows:
(a) A new entrant that commits any of the following actions, identified through roadside inspections or by any other means, may be subjected to an expedited safety audit or a compliance review or may be required to submit a written response demonstrating corrective action:
(1) Using drivers to operate a commercial motor vehicle as defined under § 383.5 without a valid commercial driver's license. An invalid commercial driver's license includes one that is falsified, revoked, expired, or missing a required endorsement.
(2) Operating vehicles that have been placed out of service for violations of the Federal Motor Carrier Safety Regulations or compatible State laws and regulations without taking necessary corrective action.
(3) Involvement in a hazardous materials incident, due to carrier act or omission, involving any of the following:
(i) A highway route controlled quantity of a Class 7 (radioactive) material as defined in § 173.403 of this title.
(ii) Any quantity of a Class 1, Division 1.1, 1.2, or 1.3 explosive as defined in § 173.50 of this title.
(iii) Any quantity of a poison inhalation hazard Zone A or B material as defined in §§ 173.115, 173.132, or 173.133 of this title.
(4) Involvement in two or more hazardous materials incidents, due to carrier act or omission, involving any hazardous material not identified in paragraph (a)(3) of this section and defined in chapter I of this title.
(5) Using a driver who tests positive for controlled substances or alcohol or who refuses to submit to required controlled substances or alcohol tests.
(6) Operating a motor vehicle that is not insured as required by part 387 of this chapter.
(7) Having a driver or vehicle out-of-service rate of 50 percent or more based upon at least three inspections occurring within a consecutive 90-day period.
(b) If a new entrant that commits any of the actions listed in paragraph (a) of this section:
(1) Has not had a safety audit or compliance review, FMCSA will schedule the new entrant for a safety audit as soon as practicable.
(2) Has had a safety audit or compliance review, FMCSA will send the new entrant a notice advising it to submit evidence of corrective action within 30 days of the service date of the notice.
(c) FMCSA may schedule a compliance review of a new entrant that commits any of the actions listed in paragraph (a) of this section at any time if it determines the violation warrants a thorough review of the new entrant's operation.
(d) Failure to respond within 30 days of the notice to an agency demand for a written response demonstrating corrective action will result in the revocation of the new entrant's registration.
9. Revise § 385.319 to read as follows:
(a) Upon completion of the safety audit, the auditor will review the findings with the new entrant.
(b)
(c)
(1)
(2)
(i) A new entrant that transports passengers in a CMV designed or used to transport between 9 and 15 passengers (including the driver) for direct compensation.
(ii) A new entrant that transports passengers in a CMV designed or used to transport more than 15 passengers (including the driver).
(iii) A new entrant that transports hazardous materials in a CMV as defined in paragraph (4) of the definition of a “Commercial Motor Vehicle” in § 390.5 of this subchapter.
10. Revise § 385.321 to read as follows:
(a)
(b)
(1) § 382.115(a) or (b)—Failing to implement an alcohol and/or controlled substances testing program (domestic and foreign motor carriers, respectively).
(2) § 382.211—Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382.
(3) § 382.215—Using a driver known to have tested positive for a controlled substance.
(4) § 383.37(a)—Knowingly allowing, requiring, permitting, or authorizing an employee with a commercial driver's license which is suspended, revoked, or canceled by a State or who is disqualified to operate a commercial motor vehicle.
(5) § 383.51(a)—Knowingly allowing, requiring, permitting, or authorizing a driver who is disqualified to drive a commercial motor vehicle.
(6) § 387.7(a)—Operating a motor vehicle without having in effect the required minimum levels of financial responsibility coverage.
(7) § 391.15(a)—Using a disqualified driver.
(8) § 391.11(b)(4)—Using a physically unqualified driver.
(9) § 395.8(a)—Failing to require a driver to make a record of duty status.
(10) § 396.9(c)(2)—Requiring or permitting the operation of a motor vehicle declared “out-of-service” before repairs are made.
(11) § 396.17(a)—Using a commercial motor vehicle not periodically inspected.
11. Revise § 385.323 to read as follows:
(a) FMCSA may extend the 60-day period in § 385.319(c)(1) for up to an additional 60 days provided FMCSA determines the new entrant is making a good faith effort to remedy its safety management practices.
(b) FMCSA may extend the 45-day period in § 385.319(c)(2) for up to 10 days if the new entrant has submitted evidence that corrective actions have been taken pursuant to § 385.319(c) and the agency needs additional time to determine the adequacy of the corrective action.
12. Amend § 385.325 to revise paragraph (b) to read as follows:
(a) * * *
(b) If a new entrant, after being notified that it is required to take corrective action to improve its safety management practices, fails to submit a written response demonstrating corrective action acceptable to FMCSA within the time specified in § 385.319, including any extension of that period authorized under § 385.323, FMCSA will revoke its new entrant registration and issue an out-of-service order effective on:
(1) Day 61 from the notice date for new entrants subject to § 385.319(c)(1).
(2) Day 46 from the notice date for new entrants subject to § 385.319(c)(2).
(3) If an extension has been granted under § 385.323, the day following the expiration of the extension date.
13. Revise § 385.327 to read as follows:
(a) If a new entrant receives a notice under § 385.319(c) that its new entrant registration will be revoked, it may request FMCSA to conduct an administrative review if it believes FMCSA has committed an error in determining that its basic safety management controls are inadequate. The request must:
(1) Be made to the Field Administrator of the appropriate FMCSA Service Center.
(2) Explain the error the new entrant believes FMCSA committed in its determination.
(3) Include a list of all factual and procedural issues in dispute and any information or documents that support the new entrant's argument.
(b) FMCSA may request that the new entrant submit additional data and attend a conference to discuss the issue(s) in dispute. If the new entrant does not attend the conference or does not submit the requested data, FMCSA may dismiss the new entrant's request for review.
(c) A new entrant must submit a request for an administrative review within one of the following time periods:
(1) If it does not submit evidence of corrective action under § 385.319(c), within 90 days after the date it is notified that its basic safety management controls are inadequate.
(2) If it submits evidence of corrective action under § 385.319(c), within 90 days after the date it is notified that its corrective action is insufficient and its basic safety management controls remain inadequate.
(d) If a new entrant wants to assure that FMCSA will be able to issue a final written decision before the prohibitions outlined in § 385.325(c) take effect, the new entrant must submit its request no later than 15 days from the date of the notice that its basic safety management controls are inadequate. Failure to submit the request within this 15-day period may result in revocation of new entrant authority and issuance of an out-of-service order before completion of administrative review.
(e) FMCSA will complete its review and notify the new entrant in writing of its decision within:
(1) 45 days after receiving a request for review from a new entrant that is subject to § 385.319(c)(1).
(2) 30 days after receiving a request for review from a new entrant that is subject to § 385.319(c)(2).
(f) The Field Administrator's decision constitutes the final agency action.
(g) Notwithstanding this subpart, a new entrant is subject to the suspension and revocation provisions of 49 U.S.C. 13905 for violations of DOT regulations governing motor carrier operations.
14. Revise § 385.329 to read as follows:
(a) A new entrant whose DOT new entrant registration has been revoked, and whose operations have been placed out of service by FMCSA, may reapply for new entrant authority no sooner than 30 days after the date of revocation.
(b) If the DOT new entrant registration was revoked because of a failed safety audit, the new entrant must do all of the following:
(1) Submit an updated MCS–150.
(2) Submit evidence that it has corrected the deficiencies that resulted in revocation of its registration and will otherwise ensure that it will have basic safety management controls in effect.
(3) Begin the 18-month new entrant monitoring cycle again as of the date the re-filed application is approved.
(c) If the DOT new entrant registration was revoked because FMCSA found that the new entrant had failed to submit to a safety audit, it must do all of the following:
(1) Submit an updated MCS–150.
(2) Begin the 18-month new entrant monitoring cycle again as of the date the re-filed application is approved.
(3) Submit to a safety audit upon request.
(d) If the new entrant is a for-hire carrier subject to the registration provisions under 49 U.S.C. 13901 and also has had its operating authority revoked, it must re-apply for operating authority as set forth in part 365 of this title.
15. Revise § 385.331 to read as follows:
A new entrant that operates a CMV in violation of an out-of-service order is subject to the penalty provisions in U.S.C. 521(b)(2)(A) for each offense as adjusted for inflation by 49 CFR part 386, Appendix B.
16. Amend § 385.337 to revise paragraph (a) to read as follows:
(a) If a new entrant refuses to permit a safety audit to be performed on its operations, FMCSA will provide the carrier with written notice that its registration will be revoked and its operations placed out of service unless the new entrant agrees in writing, within 10 days from the service date of the notice, to permit the safety audit to be performed. The refusal to permit a safety audit to be performed may subject the new entrant to the penalty provisions of 49 U.S.C. 521(b)(2)(A), as adjusted for inflation by 49 CFR part 386 Appendix B.
17. Amend § 385.405 to revise paragraph (a) to read as follows:
(a)
(2) The Form MCS–150B will also satisfy the requirements for obtaining and renewing a USDOT Number; there is no need to complete Form MCS–150, Motor Carrier Identification Report.
18. Amend § 385.421 by revising paragraph (a)(2) to read as follows:
(a) * * *
(2) A motor carrier provides any false or misleading information on its application (Form MCS–150B) or as part of updated information it is providing on Form MCS–150B (see § 385.405(d)).
19. Amend part 385 by adding a new subpart H consisting of new §§ 385.601 through 385.609 and an Appendix to subpart H to read as follows:
The rules in this subpart govern the application by a non-North America-domiciled motor carrier to provide transportation of property and passengers in interstate commerce in the United States.
(a) Each applicant applying under this subpart must submit an application that consists of:
(1) Form OP–1(NNA)—Application for U.S. Department of Transportation (USDOT) Registration by Non-North America-Domiciled Motor Carriers;
(2) Form MCS–150—Motor Carrier Identification Report; and
(3) A notification of the means used to designate process agents, either by submission in the application package of Form BOC–3—Designation of Agents-Motor Carriers, Brokers and Freight Forwarders or a letter stating that the applicant will use a process agent service that will submit the Form BOC–3 electronically.
(b) The Federal Motor Carrier Safety Administration (FMCSA) will only process an application if it meets the following conditions:
(1) The application must be completed in English;
(2) The information supplied must be accurate, complete, and include all required supporting documents and applicable certifications in accordance with the instructions to Form OP–1(NNA), Form MCS–150 and Form BOC–3; and
(3) The application must be signed by the applicant.
(c) An applicant must submit the application to the address provided in Form OP–1(NNA).
(d) An applicant may obtain the application forms from any FMCSA Division Office or download them from the FMCSA Web site at:
(a) A non-North America-domiciled motor carrier must use only drivers who possess a valid commercial driver's license—a CDL, Canadian Commercial Driver's License, or Mexican Licencia de Federal de Conductor—to operate its vehicles in the United States.
(b) A non-North America-domiciled motor carrier must subject each of the drivers described in paragraph (a) of this section to drug and alcohol testing as prescribed under part 382 of this subchapter.
(a) FMCSA will review and act on each application submitted under this subpart in accordance with the procedures set out in this part.
(b) FMCSA will validate the accuracy of information and certifications provided in the application by checking, to the extent available, data maintained in databases of the governments of the country where the carrier's principal place of business is located and the United States.
(c)
(d) Applications of non-North America-domiciled motor carriers
(e) If FMCSA grants new entrant registration to the applicant, it will assign a distinctive USDOT Number that identifies the motor carrier as authorized to operate in the United States. In order to initiate operations in the United States, a non-North America-domiciled motor carrier with new entrant registration must:
(1) Have its surety or insurance provider file proof of financial responsibility in the form of certificates of insurance, surety bonds, and endorsements, as required by § 387.7(e)(2), § 387.31(e)(2) and § 387.301 of this subchapter, as applicable; and
(2) File a hard copy of, or have its process agent(s) electronically submit, Form BOC–3—Designation of Agents—Motor Carriers, Brokers and Freight Forwarders, as required by part 366 of this subchapter.
(f) A non-North America-domiciled motor carrier must comply with all provisions of the safety monitoring system in part 385, subpart I of this subchapter, including successfully passing North American Standard commercial motor vehicle inspections at least every 90 days and having safety decals affixed to each commercial motor vehicle operated in the United States as required by § 385.703(c) of this subchapter.
(g) FMCSA may remove a non-North America-domiciled carrier's new entrant designation no earlier than 18 months after the date its USDOT Number is issued and only after successful completion to the satisfaction of FMCSA of the safety monitoring system for non-North America-domiciled carriers set out in part 385, subpart I of this subchapter. Successful completion includes obtaining a Satisfactory safety rating as the result of a compliance review.
(a)(1) A motor carrier subject to this subpart must notify FMCSA of any changes or corrections to the information the Form BOC–3—Designation of Agents—Motor Carriers, Brokers and Freight Forwarders that occur during the application process or after having been granted new entrant registration.
(2) A motor carrier subject to this subpart must notify FMCSA of any changes or corrections to the information in Sections I, IA or II of Form OP–1(NNA)—Application for U.S. Department of Transportation (USDOT) Registration by Non-North America-Domiciled Motor Carriers that occurs during the application process or after having been granted new entrant registration.
(3) A motor carrier must notify FMCSA in writing within 45 days of the change or correction to information under subparagraphs (a)(1) or (a)(2) of this section.
(b) If a motor carrier fails to comply with paragraph (a) of this section, FMCSA may suspend or revoke its new entrant registration until it meets those requirements.
(a) FMCSA will perform a safety audit of each non-North America-domiciled motor carrier before granting the carrier new entrant registration to operate within the United States.
(b) FMCSA will conduct the safety audit at a location specified by the FMCSA. All records and documents must be made available for examination within 48 hours after a request is made. Saturdays, Sundays, and Federal holidays are excluded from the computation of the 48-hour period.
(c) The safety audit will include:
(1) Verification of available performance data and safety management programs;
(2) Verification of a controlled substances and alcohol testing program consistent with part 40 of this title;
(3) Verification of the carrier's system of compliance with hours-of-service rules in part 395 of this subchapter, including recordkeeping and retention;
(4) Verification of proof of financial responsibility;
(5) Review of available data concerning the carrier's safety history, and other information necessary to determine the carrier's preparedness to comply with the Federal Motor Carrier Safety Regulations, parts 382 through 399 of this subchapter, and the Federal Hazardous Material Regulations, parts 171 through 180 of this title;
(6) Inspection of available commercial motor vehicles to be used under new entrant registration, if any of these vehicles have not received a decal required by § 385.703(c) of this subchapter;
(7) Evaluation of the carrier's safety inspection, maintenance, and repair facilities or management systems, including verification of records of periodic vehicle inspections;
(8) Verification of drivers' qualifications, including confirmation of the validity of the CDL, Canadian Commercial Driver's License, or Mexican Licencia de Federal de Conductor, as applicable, of each driver the carrier intends to assign to operate under its new entrant registration; and
(9) An interview of carrier officials to review safety management controls and evaluate any written safety oversight policies and practices.
(d) To successfully complete the safety audit, a non-North America-domiciled motor carrier must demonstrate to FMCSA that it has the required elements in paragraphs (c)(2), (3), (4), (7), and (8) above and other basic safety management controls in place which function adequately to ensure minimum acceptable compliance with the applicable safety requirements. FMCSA developed “safety audit evaluation criteria,” which uses data from the safety audit and roadside inspections to determine that each applicant for new entrant registration has basic safety management controls in place.
(e) The safety audit evaluation process developed by FMCSA is used to:
(1) Evaluate basic safety management controls and determine if each non-North America-domiciled carrier and each driver is able to operate safely in the United States; and
(2) Identify motor carriers and drivers who are having safety problems and need improvement in their compliance with the FMCSRs and the HMRs, before FMCSA issues new entrant registration to operate within the United States.
(a) The FMCSA's evaluation criteria are built upon the operational tool known as the safety audit. FMCSA developed this tool to assist auditors and investigators in assessing the adequacy of a non-North America-domiciled carrier's basic safety management controls.
(b) The safety audit is a review of a non-North America-domiciled motor carrier's operation and is used to:
(1) Determine if a carrier has the basic safety management controls required by 49 U.S.C. 31144; and
(2) In the event that a carrier is found not to be in compliance with applicable FMCSRs and HMRs, the safety audit can be used to educate the carrier on how to comply with U.S. safety rules.
(c) Documents such as those contained in driver qualification files, records of duty status, vehicle maintenance records, and other records are reviewed for compliance with the FMCSRs and HMRs. Violations are cited on the safety audit. Performance-based information, when available, is utilized to evaluate the carrier's compliance with the vehicle regulations. Recordable accident information is also collected.
(a) The carrier will not receive new entrant registration if FMCSA cannot:
(1) Verify a controlled substances and alcohol testing program consistent with part 40 of this title;
(2) Verify a system of compliance with the hours-of-service rules of this subchapter, including recordkeeping and retention;
(3) Verify proof of financial responsibility;
(4) Verify records of periodic vehicle inspections; and
(5) Verify the qualifications of each driver the carrier intends to assign to operate commercial motor vehicles in the United States, as required by parts 383 and 391 of this subchapter, including confirming the validity of each driver's CDL, Canadian Commercial Driver's License, or Mexican Licencia de Federal de Conductor, as appropriate.
(b) If FMCSA confirms each item under III(a)(1) through (5) above, the carrier will receive new entrant registration, unless FMCSA finds the carrier has inadequate basic safety management controls in at least three separate factors described in part IV below. If FMCSA makes such a determination, the carrier's application for new entrant registration will be denied.
(a) During the safety audit, FMCSA gathers information by reviewing a motor carrier's compliance with “acute” and “critical” regulations of the FMCSRs and HMRs.
(b) Acute regulations are those where noncompliance is so severe as to require immediate corrective actions by a motor carrier regardless of the overall basic safety management controls of the motor carrier.
(c) Critical regulations are those where noncompliance relates to management and/or operational controls. These are indicative of breakdowns in a carrier's management controls.
(d) The list of the acute and critical regulations, which are used in determining if a carrier has basic safety management controls in place, is included in Appendix B, VII, List of Acute and Critical Regulations to part 385 of this subchapter.
(e) Noncompliance with acute and critical regulations are indicators of inadequate safety management controls and usually higher than average accident rates.
(f) Parts of the FMCSRs and the HMRs having similar characteristics are combined together into six regulatory areas called “factors.” The regulatory factors, evaluated on the adequacy of the carrier's safety management controls, are:
(1) Factor 1—General: Parts 387 and 390;
(2) Factor 2—Driver: Parts 382, 383 and 391;
(3) Factor 3—Operational: Parts 392 and 395;
(4) Factor 4—Vehicle: Parts 393, 396 and inspection data for the last 12 months;
(5) Factor 5—Hazardous Materials: Parts 171, 177, 180 and 397; and
(6) Factor 6—Accident: Recordable Accident Rate per Million Miles.
(g) For each instance of noncompliance with an acute regulation, 1.5 points will be assessed.
(h) For each instance of noncompliance with a critical regulation, 1 point will be assessed.
(i) Vehicle Factor. (1) When at least three vehicle inspections are recorded in the Motor Carrier Management Information System (MCMIS) during the twelve months before the safety audit or performed at the time of the review, the Vehicle Factor (part 396) will be evaluated on the basis of the Out-of-Service (OOS) rates and noncompliance with acute and critical regulations. The results of the review of the OOS rate will affect the Vehicle Factor as follows:
(i) If the motor carrier has had at least three roadside inspections in the twelve months before the safety audit, and the vehicle OOS rate is 34 percent or higher, one point will be assessed against the carrier. That point will be added to any other points assessed for discovered noncompliance with acute and critical regulations of part 396 to determine the carrier's level of safety management control for that factor.
(ii) If the motor carrier's vehicle OOS rate is less than 34 percent, or if there are less than three inspections, the determination of the carrier's level of safety management controls will only be based on discovered noncompliance with the acute and critical regulations of part 396.
(2) Over two million inspections occur on the roadside each year in the United States. This vehicle inspection information is retained in the MCMIS and is integral to evaluating motor carriers' ability to successfully maintain their vehicles, thus preventing them from being placed OOS during roadside inspections. Each safety audit will continue to have the requirements of part 396, Inspection, Repair, and Maintenance, reviewed as indicated by the above explanation.
(j) Accident Factor. (1) In addition to the five regulatory factors, a sixth factor is included in the process to address the accident history of the motor carrier. This factor is the recordable accident rate, which the carrier has experienced during the past 12 months. Recordable accident, as defined in 49 CFR 390.5, means an accident involving a commercial motor vehicle operating on a public road in interstate or intrastate commerce which results in a fatality; a bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or one or more motor vehicles incurring disabling damage as a result of the accident requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
(2) Experience has shown that urban carriers, those motor carriers operating entirely within a radius of less than 100 air miles (normally urban areas), have a higher exposure to accident situations because of their environment and normally have higher accident rates.
(3) The recordable accident rate will be used in determining the carrier's basic safety management controls in Factor 6, Accident. It will be used only when a carrier incurs two or more recordable accidents within the 12 months before the safety audit. An urban carrier (a carrier operating entirely within a radius of 100 air miles) with a recordable rate per million miles greater than 1.7 will be deemed to have inadequate basic safety management controls for the accident factor. All other carriers with a recordable accident rate per million miles greater than 1.5 will be deemed to have inadequate basic safety management controls for the accident factor. The rates are the result of roughly doubling the United States national average accident rate in Fiscal Years 1994, 1995, and 1996.
(4) FMCSA will continue to consider preventability when a new entrant contests the evaluation of the accident factor by presenting compelling evidence that the recordable rate is not a fair means of evaluating its accident factor. Preventability will be determined according to the following standard: “If a driver, who exercises normal judgment and foresight, could have foreseen the possibility of the accident that in fact occurred, and avoided it by taking steps within his/her control which would not have risked causing another kind of mishap, the accident was preventable.”
(k) Factor Ratings
(1) The following table shows the five regulatory factors, parts of the FMCSRs and HMRs associated with each factor, and the accident factor. Each carrier's level of basic safety management controls with each factor is determined as follows:
(i) Factor 1—General: Parts 390 and 387;
(ii) Factor 2—Driver: Parts 382, 383, and 391;
(iii) Factor 3—Operational: Parts 392 and 395;
(iv) Factor 4—Vehicle: Parts 393, 396 and the Out of Service Rate;
(v) Factor 5—Hazardous Materials: Part 171, 177, 180 and 397; and
(vi) Factor 6—Accident: Recordable Accident Rate per Million Miles;
(2) For paragraphs IV (k)(1)(i) through (v) (Factors 1 through 5), if the combined violations of acute and or critical regulations for each factor is equal to three or more points, the carrier is determined not to have basic safety management controls for that individual factor.
(3) For paragraphs IV (k)(1)(vi), if the recordable accident rate is greater than 1.7 recordable accidents per million miles for an urban carrier (1.5 for all other carriers), the carrier is determined to have inadequate basic safety management controls.
(l) Notwithstanding FMCSA verification of the items listed in part III (a)(1) through (5) above, if the safety audit determines the carrier has inadequate basic safety management controls in at least three separate factors described in part III, the carrier's application for new entrant registration will be denied. For example, FMCSA evaluates a carrier finding:
(1) One instance of noncompliance with a critical regulation in part 387 scoring one point for Factor 1;
(2) Two instances of noncompliance with acute regulations in part 382 scoring three points for Factor 2;
(3) Three instances of noncompliance with critical regulations in part 396 scoring three points for Factor 4; and
(4) Three instances of noncompliance with acute regulations in parts 171 and 397 scoring four and one-half (4.5) points for Factor 5.
Under this example, the carrier will not receive new entrant registration because it scored three or more points for Factors 2, 4, and 5 and FMCSA determined the carrier had
20. Amend part 385 by adding a new Subpart I consisting of new §§ 385.701 through 385.717 to read as follows:
(a)
(b)
(c)
(d)
(a) A non-North America-domiciled motor carrier committing any of the following actions identified through roadside inspections, or by any other means, may be subjected to an expedited compliance review, or may be required to submit a written response demonstrating corrective action:
(1) Using drivers not possessing, or operating without, a valid CDL, Canadian Commercial Driver's License, or Mexican Licencia Federal de Conductor. An invalid commercial driver's license includes one that is falsified, revoked, expired, or missing a required endorsement.
(2) Operating vehicles that have been placed out of service for violations of the Federal Motor Carrier safety regulations without taking the necessary corrective action.
(3) Involvement in, due to carrier act or omission, a hazardous materials incident within the United States involving:
(i) A highway route controlled quantity of a Class 7 (radioactive) material as defined in § 173.403 of this title;
(ii) Any quantity of a Class 1, Division 1.1, 1.2, or 1.3 explosive as defined in § 173.50 of this title; or
(iii) Any quantity of a poison inhalation hazard Zone A or B material as defined in §§ 173.115, 173.132, or 173.133 of this title.
(4) Involvement in, due to carrier act or omission, two or more hazardous material incidents occurring within the United States and involving any hazardous material not listed in paragraph (a)(3) of this section and defined in chapter I of this title.
(5) Using a driver who tests positive for controlled substances or alcohol or who refuses to submit to required controlled substances or alcohol tests.
(6) Operating within the United States a motor vehicle that is not insured as required by part 387 of this chapter.
(7) Having a driver or vehicle out-of-service rate of 50 percent or more based upon at least three inspections occurring within a consecutive 90-day period.
(b) Failure to respond to an agency demand for a written response demonstrating corrective action within 30 days will result in the suspension of the carrier's new entrant registration until the required showing of corrective action is submitted to the FMCSA.
(c) A satisfactory response to a written demand for corrective action does not excuse a carrier from the requirement that it undergo a compliance review during the new entrant registration period.
(a) The criteria used in a compliance review to determine whether a non-North America-domiciled new entrant exercises the necessary basic safety management controls are specified in Appendix B to this part.
(b)
(c)
(d)
(a) If a carrier is assigned an “Unsatisfactory” safety rating following a compliance review conducted under this subpart, FMCSA will provide the carrier written notice, as soon as practicable, that its registration will be suspended effective 15 days from the service date of the notice unless the carrier demonstrates, within 10 days of the service date of the notice, that the
(b) For purposes of this section, material error is a mistake or series of mistakes that resulted in an erroneous safety rating.
(c) If the carrier demonstrates that the compliance review contained material error, its new entrant registration will not be suspended. If the carrier fails to show a material error in the compliance review, FMCSA will issue an Order:
(1) Suspending the carrier's new entrant registration and requiring it to immediately cease all further operations in the United States; and
(2) Notifying the carrier that its new entrant registration will be revoked unless it presents evidence of necessary corrective action within 30 days from the service date of the Order.
(d) If a carrier is assigned a “Conditional” rating following a compliance review conducted under this subpart, the provisions of paragraphs (a) through (c) of this section will apply, except that its new entrant registration will not be suspended under paragraph (c)(1) of this section.
(e) If a carrier subject to this subpart fails to provide the necessary documents for a compliance review upon reasonable request, or fails to submit evidence of the necessary corrective action as required by § 385.705 of this subpart, FMCSA will provide the carrier with written notice, as soon as practicable, that its new entrant registration will be suspended 15 days from the service date of the notice unless it provides all necessary documents or information. This suspension will remain in effect until the necessary documents or information are produced and:
(1) The carrier is rated Satisfactory after a compliance review; or
(2) FMCSA determines, following review of the carrier's response to a demand for corrective action under § 385.705, that the carrier has taken the necessary corrective action.
(f) If a carrier commits any of the actions specified in § 385.705(a) of this subpart after the removal of a suspension issued under this section, the suspension will be automatically reinstated. FMCSA will issue an Order requiring the carrier to cease further operations in the United States and demonstrate, within 15 days from the service date of the Order, that it did not commit the alleged action(s). If the carrier fails to demonstrate that it did not commit the action(s), FMCSA will issue an Order revoking its new entrant registration.
(g) If FMCSA receives credible evidence that a carrier has operated in violation of a suspension order issued under this section, it will issue an Order requiring the carrier to show cause, within 10 days of the service date of the Order, why its new entrant registration should not be revoked. If the carrier fails to make the necessary showing, FMCSA will revoke its registration.
(h) If a non-North America-domiciled motor carrier operates a commercial motor vehicle in violation of a suspension or out-of-service order, it is subject to the penalty provisions in 49 U.S.C. 521(b)(2)(A), as adjusted by inflation, not to exceed amounts for each offense under part 386, Appendix B of this subchapter.
(i) Notwithstanding any provision of this subpart, a carrier subject to this subpart is also subject to the suspension and revocation provisions of 49 U.S.C. 13905 for repeated violations of DOT regulations governing its motor carrier operations.
(a) A non-North America-domiciled motor carrier may request FMCSA to conduct an administrative review if it believes FMCSA has committed an error in assigning a safety rating or suspending or revoking the carrier's new entrant registration under this subpart.
(b) The carrier must submit its request in writing, in English, to the Associate Administrator for Enforcement and Program Delivery, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington DC 20590.
(c) The carrier's request must explain the error it believes FMCSA committed in assigning the safety rating or suspending or revoking the carrier's new entrant registration and include any information or documents that support its argument.
(d) FMCSA will complete its administrative review no later than 10 days after the carrier submits its request for review. The Associate Administrator's decision will constitute the final agency action.
(a) A non-North America-domiciled motor carrier whose provisional new entrant registration has been revoked may reapply for new entrant registration no sooner than 30 days after the date of revocation.
(b) The non-North America-domiciled motor carrier will be required to initiate the application process from the beginning. The carrier will be required to demonstrate how it has corrected the deficiencies that resulted in revocation of its registration and how it will ensure that it will have adequate basic safety management controls. It will also have to undergo a pre-authorization safety audit.
(a) Each non-North America-domiciled carrier subject to this subpart will remain in the safety monitoring system for at least 18 months from the date FMCSA issues its new entrant registration, except as provided in paragraphs (c) and (d) of this section.
(b) If, at the end of this 18-month period, the carrier's most recent safety rating was Satisfactory and no additional enforcement or safety improvement actions are pending under this subpart, the non-North America-domiciled carrier's new entrant registration will become permanent.
(c) If, at the end of this 18-month period, FMCSA has not been able to conduct a compliance review, the carrier will remain in the safety monitoring system until a compliance review is conducted. If the results of the compliance review are satisfactory, the carrier's new entrant registration will become permanent.
(d) If, at the end of this 18-month period, the carrier's new entrant registration is suspended under § 385.709(a) of this subpart, the carrier will remain in the safety monitoring system until FMCSA either:
(1) Determines that the carrier has taken corrective action; or
(2) Completes measures to revoke the carrier's new entrant registration under § 385.709(c) of this subpart.
At all times during which a non-North America-domiciled motor carrier is subject to the safety monitoring system in this subpart, it is also subject to the general safety fitness procedures established in subpart A of this part and to compliance and enforcement procedures applicable to all carriers regulated by the FMCSA.
21. Amend Appendix A to part 385, section III to add new paragraph (i) to read as follows:
(i) FMCSA also gathers information on compliance with applicable household goods and Americans with Disabilities Act of 1990 requirements, but failure to comply with these requirements does not affect the
22. The authority citation for part 387 continues to read as follows:
49 U.S.C. 13101, 13301, 13906, 14701, 31138, and 31139; and 49 CFR 1.73.
23. Amend § 387.7 by revising paragraph (e) to read as follows:
(e)(1) The proof of minimum levels of financial responsibility required by this section shall be considered public information and be produced for review upon reasonable request by a member of the public.
(2) In addition to maintaining proof of financial responsibility as required by subparagraph (d) of this section, non-North America-domiciled private and for-hire motor carriers shall file evidence of financial responsibility with FMCSA in accordance with the requirements of subpart C of this part.
24. Amend § 387.31 by revising paragraph (e) to read as follows:
(e)(1) The proof of minimum levels of financial responsibility required by this section shall be considered public information and be produced for review upon reasonable request by a member of the public.
(2) In addition to maintaining proof of financial responsibility as required by subparagraph (d) of this section, non-North America-domiciled private and for-hire motor carriers shall file evidence of financial responsibility with FMCSA in accordance with the requirements of subpart C of this part.
25. The authority citation for part 390 continues to read as follows:
49 U.S.C. 508, 13301, 13902, 31133, 31136, 31502, 31504, and sec. 204, Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103–311, 108 Stat. 1673, 1677; sec. 217, Pub. L. 106–159, 113 Stat. 1748, 1767; and 49 CFR 1.73.
26. Revise § 390.19 to read as follows:
(a)
(1) A U.S., Canada-, Mexico-, or non-North America-domiciled motor carrier conducting operations in interstate commerce must file a Motor Carrier Identification Report, Form MCS–150.
(2) A motor carrier conducting operations in intrastate commerce and requiring a Safety Permit under 49 CFR part 385, subpart E of this chapter must file the Combined Motor Carrier Identification Report and HM Permit Application, Form MCS–150B.
(b)
(1) Before it begins operations; and
(2) Every 24 months, according to the following schedule:
(3) If the next-to-last digit of its USDOT Number is odd, the motor carrier shall file its update in every odd-numbered calendar year. If the next-to-last digit of the USDOT Number is even, the motor carrier shall file its update in every even-numbered calendar year.
(c)
(d)
(e)
(f) Only the legal name or a single trade name of the motor carrier may be used on the forms under paragraph (a) of this section (Form MCS–150 or MCS–150B).
(g) A motor carrier that fails to file the form required under paragraph (a) of this section, or furnishes misleading information or makes false statements upon the form, is subject to the penalties prescribed in 49 U.S.C. 521(b)(2)(B).
(h)(1) Upon receipt and processing of the form described in paragraph (a) of this section, FMCSA will issue the motor carrier an identification number (USDOT Number).
(2) The following applicants must additionally pass a pre-authorization safety audit as described below before being issued a USDOT Number:
(i) A Mexico-domiciled motor carrier seeking to provide transportation of property or passengers in interstate commerce between Mexico and points in the United States beyond the municipalities and commercial zones along the United States-Mexico international border must pass the pre-authorization safety audit under § 365.507 of this subchapter. The agency will not issue a USDOT Number until expiration of the protest period provided in § 365.115 of this subchapter or—if a protest is received—after FMCSA denies or rejects the protest.
(ii) A non-North America-domiciled motor carrier seeking to provide transportation of property or passengers in interstate commerce within the United States must pass the pre-authorization safety audit under § 385.607(c) of this subchapter. If the carrier also requests operating authority under part 365 of this chapter, the agency will not issue a USDOT Number until expiration of the protest period or—if a protest is received—after FMCSA denies or rejects the protest.
(3) The motor carrier must display the number on each self-propelled CMV, as defined in § 390.5, along with the additional information required by § 390.21.
(i) A motor carrier that registers its vehicles in a State that participates in the Performance and Registration Information Systems Management (PRISM) program (authorized under section 4004 of the Transportation Equity Act for the 21st Century [(Pub. L. 105–178, 112 Stat. 107]) is exempt from the requirements of this section,
The following form will not appear in the Code of Federal Regulations.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of proposed rulemaking (NPRM); request for comments.
FMCSA proposes regulations for entities offering intermodal chassis to motor carriers for transportation of intermodal containers in interstate commerce. As mandated by section 4118 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU), this rulemaking would require intermodal equipment providers (IEPs) to register and file with FMCSA an Intermodal Equipment Provider Identification Report (Form MCS–150C); display the USDOT Number, or other unique identifier, on each intermodal container chassis offered for transportation in interstate commerce; establish a systematic inspection, repair, and maintenance program to ensure the safe operating condition of each intermodal container chassis; maintain documentation of the program; and provide a means to effectively respond to driver and motor carrier reports about intermodal container chassis mechanical defects and deficiencies. The proposed regulations would for the first time make IEPs subject to the Federal Motor Carrier Safety Regulations (FMCSRs). The agency is also proposing additional inspection requirements for motor carriers and drivers operating intermodal equipment. The intent of this rulemaking is to ensure that intermodal equipment used to transport intermodal containers is safe and systematically maintained. Improved maintenance is expected to result in fewer out-of-service orders and highway breakdowns involving intermodal chassis and improved efficiency of the Nation's intermodal transportation system. To whatever extent inadequately maintained intermodal chassis are responsible for, or contribute to, crashes, this proposal would also help to ensure that commercial motor vehicle (CMV) operations are safer.
Comments must be received by March 21, 2007.
Comments should refer to Docket No. FMCSA–2005–23315, and may be filed in electronic form, mailed, or delivered to the following addresses:
• The USDOT Docket Management System (DMS) on the Web-based form at the Web link:
•
•
•
Ms. Deborah M. Freund, (202) 366–4009, Vehicle and Roadside Operations Division (MC–PSV), Office of Bus and Truck Standards and Operations, FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590.
This rulemaking is based on the authority of the Motor Carrier Safety Act of 1984 (1984 Act) and section 4118 of SAFETEA–LU (Pub. L. 109–59, 119 Stat. 1144, at 1729, August 10, 2005, codified at 49 U.S.C. 31151).
The 1984 Act provides authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary of Transportation to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles. At a minimum, the regulations shall ensure that: (1) Commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators.” 49 U.S.C. 31136(a).
This NPRM would establish a program to ensure that intermodal equipment (primarily chassis)
Section 4118 of SAFETEA–LU added new section 31151, entitled “Roadability,” to subchapter III of chapter 311 of title 49, United States Code. Section 31151(a)(1) requires the Secretary of Transportation to issue regulations to be codified in the Federal Motor Carrier Safety Regulations (FMCSRs) “to ensure that intermodal equipment used to transport intermodal containers is safe and systematically maintained.” Section 31151(a)(3) specifies, in considerable detail, a minimum of 14 items that must be included in the regulations, each of which is discussed later in the preamble and included in the proposed rules or existing agency procedures. Departmental employees designated by the Secretary are authorized to inspect intermodal equipment, and copy related maintenance and repair records (section 31151(b)). Any intermodal equipment that fails to comply with applicable Federal safety regulations may be placed out of service by Departmental or other Federal, State, or governmental officials designated by the Secretary until the necessary repairs have been made (section 31151(c)). State, local, or tribal requirements inconsistent with a regulation adopted pursuant to section 31151 are preempted (section 31151(d)). Specifically, a State requirement for the periodic inspection of intermodal chassis by intermodal equipment providers that was in effect on January 1, 2005, is preempted on the effective date of the final regulation resulting from this rulemaking (section 31151(e)(1)), but preemption may be waived upon application by the State if the Secretary finds that the State requirement is as effective as the Federal requirement and does not unduly burden interstate commerce (section 31151(e)(2)).
All of these provisions of SAFETEA–LU are discussed in the preamble and embodied in the regulatory text of this NPRM.
On February 17, 1999 (64 FR 7849), the Federal Highway Administration (FHWA), which then had responsibility for commercial motor vehicle safety, published an Advance Notice of Proposed Rulemaking (ANPRM) concerning inspection, repair, and maintenance responsibilities for intermodal container chassis. The ANPRM was in response to a petition for rulemaking filed by the American Trucking Associations (ATA). ATA argued that rail carriers, ocean carriers, and other entities that offer container chassis for transportation in interstate commerce frequently fail to ensure the container chassis are in safe and proper operating condition. ATA believed poor maintenance of this intermodal equipment was a serious safety problem and requested FHWA to make the equipment providers responsible for the roadworthiness of the container chassis tendered to motor carriers.
ATA requested that the FMCSRs be amended to make intermodal equipment providers subject to 49 CFR part 396, concerning inspection, repair, and maintenance of commercial motor vehicles. Under the ATA proposal, equipment providers would have been prohibited from offering an intermodal container chassis for transportation in such condition that it would likely cause a crash or a breakdown of the vehicle. Motor carriers would have been prohibited from certifying to equipment providers that the intermodal container chassis or container meets applicable safety regulations, unless the equipment provider provided the motor carrier with adequate equipment, time, and the proper facilities to make a full inspection of the container chassis and any necessary repairs to the equipment prior to the tendering of the equipment to the motor carrier for operation in interstate commerce. ATA also requested that the regulations be amended so motor carriers would not be liable for civil or criminal penalties for operating a container chassis, or transporting a container that did not meet the applicable safety requirements, if the equipment was offered for transportation in an unsafe or poor condition.
On October 20, 1999 (64 FR 56478), as follow-up to the ANPRM, the Office of the Secretary of Transportation (OST) announced a series of public meetings for motor carriers, equipment providers, and other interested parties to discuss inspection, repair, and maintenance practices for ensuring that container chassis and trailers are in safe and proper operating condition at all times. Representatives from the FHWA, the Federal Railroad Administration (FRA), the Maritime Administration (MARAD), and OST participated in the listening sessions. These sessions were intended to help DOT broaden its knowledge of the safety implications of industry practices involving terminal operators
On November 29, 2002 (67 FR 71127), FMCSA published a notice announcing the agency would study the feasibility of using the Negotiated Rulemaking process to develop rulemaking options concerning the maintenance of intermodal container chassis and trailers. The neutral convener hired by FMCSA interviewed individuals and organizations that represented interests most likely to be substantially affected by a rulemaking concerning this subject, and concluded that a negotiated rulemaking was unlikely to produce a set of consensus recommendations to FMCSA. Therefore, FMCSA decided not to conduct a negotiated rulemaking on this subject, and concluded that it would be best to withdraw the ANPRM and to start afresh.
On December 31, 2003 (68 FR 75478), FMCSA published a notice withdrawing the ANPRM. While FMCSA could quantify the costs of regulatory options that could potentially result in improved maintenance practices by equipment providers, there was insufficient data to quantify the safety benefits of a rulemaking based on the ATA petition. Available data showed that a significant number of container chassis dispatched from intermodal terminals were later found to have safety defects during roadside inspections, but the relationship between these defects and crash causation had not been substantiated.
In January of 2004, the Secretary announced that DOT would launch a safety inspection program for intermodal container chassis. The inspection program would provide added oversight to help ensure that intermodal container chassis used by motor carriers to transport intermodal cargo containers from seaports and rail yards are in safe and proper working order. The Secretary said:
“Every day millions of dollars worth of cargo are transferred from ships and rail to trailer beds and hauled away by trucks. It is essential that we have a full and complete safety program focused on the trailer beds used to haul cargo containers.”
The Secretary explained the new inspection program would be modeled after FMCSA's compliance review program already in place for the nation's interstate motor carriers. Intermodal equipment providers would be required to obtain a USDOT Number or other unique identifier and display it on their container chassis so that safety performance data could be captured and attributed to the equipment provided. FMCSA would apply the same civil penalty structure and enforcement actions used for motor carriers to intermodal equipment providers that demonstrate patterns of non-compliance with the FMCSRs.
As part of this new activity, FMCSA compiled and analyzed additional intermodal chassis inspection data from 38 States. The information derived from this analysis, particularly violations that caused vehicles to be placed out of service, provided evidence that intermodal equipment failed to meet the FMCSRs more often than non-intermodal equipment.
Section 4118 of SAFETEA—LU amended 49 U.S.C., chapter 311, by adding new section 31151 (49 U.S.C. 31151) titled “Roadability.” Section 31151 states:
The Secretary of Transportation, after providing notice and opportunity for comment, shall issue regulations establishing a program to ensure that intermodal equipment used to transport intermodal containers is safe and systematically maintained.
Section 31151(a)(3) lists 14 elements to be included in the regulations as follows:
“(A) a requirement to identify intermodal equipment providers responsible for the inspection and maintenance of intermodal equipment that is interchanged or intended for interchange to motor carriers in intermodal transportation;
“(B) a requirement to match intermodal equipment readily to an intermodal equipment provider through a unique identifying number;
“(C) a requirement that an intermodal equipment provider identified under subparagraph (A) systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, intermodal equipment described in subparagraph (A) that is intended for interchange with a motor carrier;
“(D) a requirement to ensure that each intermodal equipment provider identified under subparagraph (A) maintains a system of maintenance and repair records for such equipment;
“(E) requirements that—
“(i) a specific list of intermodal equipment components or items be identified for the visual or audible inspection of which a driver is responsible before operating the equipment over the road; and
“(ii) the inspection under clause (i) be conducted as part of the Federal requirement in effect on the date of enactment of this Act that a driver be satisfied that the intermodal equipment components are in good working order before the equipment is operated over the road;
“(F) a requirement that a facility at which an intermodal equipment provider regularly makes intermodal equipment available for interchange have an operational process and space readily available for a motor carrier to have an equipment defect identified pursuant to subparagraph (E) repaired or the equipment replaced prior to departure;
“(G) a program for the evaluation and audit of compliance by intermodal equipment providers with applicable Federal motor carrier safety regulations;
“(H) a civil penalty structure consistent with section 521(b) of title 49, United States Code, for intermodal equipment providers that fail to attain satisfactory compliance with applicable Federal motor carrier safety regulations;
“(I) a prohibition on intermodal equipment providers from placing intermodal equipment in service on the public highways to the extent such providers or their equipment are found to pose an imminent hazard;
“(J) a process by which motor carriers and agents of motor carriers shall be able to request the Federal Motor Carrier Safety Administration to undertake an investigation of an intermodal equipment provider identified under subparagraph (A) that is alleged to be not in compliance with the regulations under this section;
“(K) a process by which equipment providers and agents of equipment providers shall be able to request the Administration to undertake an investigation of a motor carrier that is alleged to be not in compliance with the regulations issued under this section;
“(L) a process by which a driver or motor carrier transporting intermodal equipment is required to report to the intermodal equipment provider or the provider's designated agent any actual damage or defect in the intermodal equipment of which the driver or motor carrier is aware at the time the intermodal equipment is returned to the intermodal equipment provider or the provider's designated agent;
“(M) a requirement that any actual damage or defect identified in the process established under subparagraph (L) be repaired before the equipment is made available for interchange to a motor carrier and that repairs of equipment made pursuant to the requirements of this subparagraph and reports made pursuant to the subparagraph (L) process be documented in the maintenance records for such equipment; and
“(N) a procedure under which motor carriers, drivers and intermodal equipment providers may seek correction of their motor carrier safety records through the deletion from those records of violations of safety regulations attributable to deficiencies in the intermodal chassis or trailer for which they should not have been held responsible.”
Section 31151(b) authorizes the Secretary or DOT employee designated by the Secretary to inspect intermodal equipment, and copy related maintenance and repair records for such equipment, on demand and display of proper credentials. Section 31151(c) extends the authority of Federal, State,
Section 31151(d) preempts statutes, regulations, orders, or other requirements of a State, a political subdivision of a State, or a tribal government relating to CMV safety, if the law, regulation, order, or other requirement exceeds or is inconsistent with Federal rules adopted to implement the roadability statute. Section 31151(e)(2) authorizes the Secretary to make a nonpreemption determination if the State requirement for the inspection and maintenance of intermodal chassis by intermodal equipment providers was in effect on or before January 1, 2005, and is as effective as the Federal requirement and does not unduly burden interstate commerce. Subsequent amendments to State requirements that were not preempted must be submitted to the agency for a preemption determination. State provisions that would be preempted may remain in effect only until the date on which implementing regulations under this section take effect. Finally, section 31151(f) defines the terms “intermodal equipment,” “intermodal equipment interchange agreement,” “intermodal equipment provider,” and “interchange.”
The proposed regulations would, for the first time, make intermodal equipment providers (IEPs) subject to the FMCSRs. The new requirements would ensure that intermodal container chassis and trailers tendered to motor carriers by steamship lines, railroads, terminal operators, chassis pools, etc., comply with the applicable motor carrier safety regulations. The explicit inclusion of equipment providers in the scope of FMCSRs would ensure that intermodal equipment providers would be subject to the same enforcement proceedings, orders, and civil penalties as those applied to motor carriers, property brokers, and freight forwarders. The proposed rule would also impose additional requirements on motor carriers and drivers operating intermodal equipment.
FMCSA proposes to address the SAFETEA–LU requirements by adding to 49 CFR part 390, a new subpart C titled “Requirements and Information for Intermodal Equipment Providers and for Motor Carriers Operating Intermodal Equipment.” In addition, we would amend parts 385, 386, 390, 392, 393, and 396, as well as Appendix G to Subchapter B, to make the appropriate sections applicable to IEPs. With these proposed changes to the current FMCSRs, the agency will address the SAFETEA–LU requirements codified at 49 U.S.C. 31151(a)(3):
• A roadability review based on elements of the Safety Fitness Procedures to enable FMCSA to assess the safety of equipment tendered by IEPs (part 385).Section 31151(a)(3)(G).
• Application of FMCSA Rules of Practice for safety compliance proceedings (part 386). Sections 31151(a)(3)(H) and (I).
• Compliance with general safety regulations, including filing of an Intermodal Equipment Provider Identification Report (FMCSA Form MCS–150C), and display of the intermodal equipment provider's USDOT number or other unique identification number on intermodal equipment (part 390). Sections 31151(a)(3)(A), (B), (C), (D), (J), (K), and (N).
• Provisions for CMV drivers to inspect specific intermodal equipment components and be satisfied that they are in good working order before the equipment is operated over the road (part 392). Sections 31151(a)(3)(E) and (F).
• Extension of the applicability of regulations concerning parts and accessories necessary for safe operation to intermodal equipment and IEPs (part 393).Sections 31151(a)(3)(C).
• Extension of the applicability of regulations concerning inspection, repair, and maintenance of CMVs to IEPs (part 396). Sections 31151(a)(3)(C), (D), (L), and (M).
The proposed changes to each part are described below.
FMCSA proposes to conduct roadability reviews in order to evaluate the safety and regulatory compliance status of IEPs. This activity would consist of an on-site examination of an intermodal equipment provider's inspection, repair, and maintenance operation and records to determine its compliance with applicable FMCSRs (i.e., parts 390, 393, and 396). However, FMCSA would not issue safety ratings to IEPs.
FMCSA would use its Safety Status Measurement System (SafeStat) to identify and prioritize which IEPs would be subject to a roadability review. SafeStat is an automated, data-driven analysis system designed to incorporate current on-road safety performance information on all motor carriers, and IEPs, with on-site reviews and enforcement history information, when available, in order to measure relative safety fitness. SafeStat plays an important role in determining the safety fitness in several FMCSA/State programs including the Performance and Registration Information Systems Management, National Compliance Review Prioritization, and the roadside Inspection Selection System. FMCSA would use the system to continuously quantify and monitor changes in the safety status of IEPs. The agency's initial focus would be on the Vehicle Safety Evaluation Area (SEA). For more information about SafeStat, visit FMCSA's “SafeStat Online” at URL:
In addition to IEPs that are identified in SafeStat, a roadability review may be conducted on an IEP that falls into one of the following categories: (1) The provider is the subject of a complaint that FMCSA determines to be non-frivolous; (2) the provider has equipment involved in a pattern of recordable crashes or hazardous materials incidents; (3) the provider requests FMCSA to conduct a review of its operations; (4) the provider demonstrates a pattern of non-compliance; or (5) the agency determines there is a need for a review.
FMCSA would conduct roadability reviews under proposed §§ 385.501 and 385.503 using the current framework of the Compliance Analysis and Performance Review Information System (CAPRI). The CAPRI application provides a standardized method for conducting reviews on motor carriers, hazardous materials shippers, and cargo tank facilities. It is also used for safety audits on new carriers and Mexico-domiciled carriers seeking to operate in the United States. The application includes extensive checking for data integrity and electronic file transfer for expediting data flow, and is for use by both Federal and State enforcement officials.
Under proposed § 385.503, if FMCSA finds violations of parts 390, 393, or 396, the agency would cite the IEP for those violations. The agency may also impose civil penalties according to the civil penalty structure contained in 49 U.S.C. 521(b). FMCSA may prohibit an intermodal equipment provider from tendering any intermodal equipment
FMCSA proposes to amend 49 CFR part 386 concerning rules of practice for enforcement proceedings before its Assistant Administrator. The purpose of the proposed changes is to apply part 386 to intermodal equipment providers now subject to FMCSA jurisdiction.
“Intermodal equipment” rather than intermodal container chassis would be the term used in the regulation. Though intermodal container chassis are by far the most common variety of intermodal equipment, FMCSA decided to propose a broader term “intermodal equipment” to cover all the different kinds of trailers, chassis, and associated devices used to transport intermodal containers.
“Intermodal equipment interchange agreement” would describe the written agreement between an intermodal equipment provider and a motor carrier, which establishes the responsibilities and liabilities of both parties. The Uniform Intermodal Interchange and Facilities Access Agreement is commonly used for this purpose.
“Intermodal equipment provider” would describe the party that interchanges the intermodal equipment with the motor carrier, and that, under these proposed rules, would be responsible for systematic inspection, repair, and maintenance of the intermodal equipment.
FMCSA proposes a new subpart C, §§ 390.40–390.44, to address the specific requirements for intermodal equipment providers in SAFETEA–LU.
Proposed § 390.40 lists all of the responsibilities of an intermodal equipment provider, including identifying its operations to FMCSA; marking intermodal equipment; inspecting, repairing, and maintaining the equipment; keeping records of inspection, repair, and maintenance; providing procedures and facilities for inspection, repair, and maintenance; and refraining from placing equipment in service if the equipment would pose an imminent hazard, as defined in § 386.72(b)(1).
Proposed paragraph (h) of § 390.40 requires that any repairs or replacements must be made in a timely manner after a driver notifies the provider of such damage, defects, or deficiencies. FMCSA proposes a limited timeframe for repair or replacement actions because, in the intermodal sector, drivers' income is usually based upon the number of trips a driver can complete in a day. Drivers who report defects or deficiencies to equipment providers face potential delays in leaving the ports or terminals while waiting for a container chassis to be repaired or replaced. Therefore, FMCSA wishes to reduce the amount of time that drivers may have to wait after pointing out defects or deficiencies, thereby encouraging the driver to make such reports. Driver reports will bring potential equipment defects and deficiencies to the equipment provider's attention so they can be remedied. Operating safe equipment is clearly in the drivers'—and FMCSA's—interest.
Proposed § 390.42(a) and (b) prescribe procedures for intermodal equipment providers and motor carriers to request correction of publicly-accessible safety violation information for which the intermodal equipment provider or motor carrier should not have been held responsible. An intermodal equipment provider or motor carrier would use FMCSA's DataQs system for this purpose. The DataQs system is an electronic means for filing concerns
Proposed § 390.42(c) and (d) prescribe procedures for requesting that FMCSA investigate any motor carrier or intermodal equipment provider that may be in noncompliance with FMCSA requirements.
Proposed § 390.44 prescribes the responsibilities of drivers and motor carriers, as opposed to intermodal equipment providers, when operating intermodal equipment. The driver would be required to make a pre-trip inspection and would not be allowed to operate the equipment on the highway if the equipment is not in good working order. The driver or the motor carrier would also be required to report any damage or deficiencies in the equipment at the time the equipment is returned to the provider. This report would have to include, at a minimum, the items listed in § 396.11(a)(2).
Proposed § 390.46 would address preemption by the FMCSRs of State and local laws and regulations concerning inspection, repair, and maintenance. Generally, a law, regulation, order, or other requirement of a State, a political subdivision of a State, or a tribal organization relating to the inspection, repair, and maintenance of intermodal equipment is preempted if such law, regulation, order, or other requirement exceeds or is inconsistent with a requirement imposed by the FMCSRs.
FMCSA proposes to amend § 392.7 to cover intermodal equipment similar to the current requirements for other CMVs. The proposal would require drivers preparing to transport intermodal equipment to make a visual or audible inspection of specific components of intermodal equipment, and to satisfy the driver that the intermodal equipment was in good working order before operating it over the road.
FMCSA proposes to revise § 393.1 to make equipment providers responsible for offering in interstate commerce intermodal equipment that is equipped with all required parts and accessories. The proposed changes would ensure each required component and system is in safe and proper working order. This requirement is separate and distinct from the provisions of part 396, which cover responsibilities for inspection, repair, and maintenance of the CMV or chassis, without specifying all of the parts and accessories necessary for safe operation.
Part 396 would be amended to require intermodal equipment providers to establish a systematic inspection, repair, and maintenance program and to maintain records documenting the program. Equipment providers would also be required to comply with FMCSA's periodic and annual inspection regulations. Furthermore, intermodal equipment providers would be required to establish a process by which a motor carrier or driver could report the defects or deficiencies on container chassis that they discover or that are reported to them. Intermodal equipment providers would then be required to document whether they have repaired the defect or deficiency, or that repair was unnecessary, before the intermodal equipment was interchanged.
The example was correct, but the statutory term “employer” also describes intermodal equipment providers who own CMVs, namely intermodal chassis. Such equipment providers and their mechanics are therefore subject to the 1984 Act, including the brake inspector qualifications adopted pursuant to 49 U.S.C. 31137(b), which are now codified at § 396.25.
FMCSA proposes to amend Appendix G, item 6 (Safe Loading) to add devices used to secure an intermodal container to a chassis. These devices include rails or support frames, tiedown bolsters, locking pins, clevises, clamps, and hooks.
If this proposal is promulgated as a final rule, FMCSA would initiate reviews of intermodal equipment providers' maintenance programs similar to the reviews FMCSA currently conducts on motor carriers' safety management controls.
• The reviews would examine equipment providers' compliance with FMCSA commercial motor vehicle safety regulations to which they are subject, especially parts 390, 393, and 396 and Appendix G. Intermodal equipment providers would be held responsible for the inspection, repair, and maintenance of their intermodal equipment, using standards similar to those used by motor carriers for the inspection, repair, and maintenance of their trailers.
• The reviews may be triggered when roadside inspection reports, crash report data, or driver or carrier complaints indicate a pattern of non-compliance by an equipment provider.
• FMCSA would develop a procedure to review IEPs' compliance with the applicable FMCSRs, with a focus on the safe operating condition of the intermodal equipment, the involvement of that equipment in recordable highway crashes, and the intermodal equipment provider's safety management controls. The agency would develop review procedures, enforcement procedures, and rules of practice relevant to the responsibility of equipment providers to tender roadworthy equipment to motor carriers. However, if FMCSA were to subject an intermodal equipment provider to an operations out-of-service order, the order would prevent that provider from tendering equipment to motor carriers. The order would not apply to other transportation-related activities of an intermodal equipment provider that is a steamship company or rail carrier. Intermodal equipment providers that fail to attain satisfactory compliance with applicable federal motor carrier safety regulations would be subject to a civil penalty structure consistent with 49 U.S.C. 521(b).
Under 49 U.S.C. 31151(a)(3)(I), the Secretary of Transportation is required to prohibit intermodal equipment providers from placing intermodal equipment in service on the public highways to the extent such providers or their equipment are found to pose an “imminent hazard.”
The authority to declare that a motor carrier poses an imminent hazard is codified in 49 U.S.C. 521(b)(5). If FMCSA, after an investigation, determines that violations of the FMCSRs or the statutes under which they were established pose an “imminent hazard” to safety, the agency is required to order the vehicle or employee operating that vehicle out of service, or order a motor carrier to cease all or part of its commercial motor vehicle operations.
Imminent hazard is defined in 49 U.S.C. 521(b)(5)(B) and 49 CFR 386.72(b)(1) to mean “any condition of vehicle, employee, or commercial motor vehicle operations which substantially increases the likelihood of serious injury or death if not discontinued immediately.” An imminent hazard may be a violation that is recurring and can be remedied by the carrier's ceasing the violation (e.g., an intermodal equipment provider is discovered operating intermodal equipment that has been declared out of service). It may also be argued that a motor carrier that continually and frequently violates multiple regulatory requirements poses an imminent hazard to the motoring public.
FMCSA proposes to issue an Imminent Hazard Out-of-Service (OOS) Order to any intermodal equipment provider whose intermodal chassis substantially increase the likelihood of serious injury or death if not taken out of service immediately, consistent with its treatment of motor carriers. Use of the Imminent Hazard OOS Order is limited to violations of certain FMCSRs (49 CFR parts 385, 386, 390–399, and some of part 383). Such an order is a serious matter and is usually a last resort when a serious safety problem exists that substantially increases the likelihood of serious injury or death and is unlikely to be resolved through any other means available.
FMCSA could issue Imminent Hazard OOS Orders to an intermodal equipment provider's: (1) Specific vehicle; (2) terminal or facility; and/or (3) all equipment tendered by the provider. Where an Imminent Hazard OOS Order is issued, the agency would only impose restrictions necessary to abate the hazard.
FMCSA's goal is to ensure compliance with its regulations and thereby ensure safety. Studies show that compliant companies have lower crash rates, better insurance rates, and pay less for crash related expenses (e.g., cargo damage, legal fees, towing, medical expenses).
Sections 31151(d) and (e) preempt certain State, political subdivision, and tribal government regulations. In general, the Federal rules would preempt the statutes, regulations, orders, or other requirements of a State, a political subdivision of a State, or a tribal organization relating to commercial motor vehicle safety if the provisions of those rules exceed or are inconsistent with an FMCSA requirement. If a State requirement for the periodic inspection of intermodal chassis by intermodal equipment providers was in effect on January 1, 2005, it would remain in effect only until the effective date of a final rule.
However, a State may request a nonpreemption determination for any requirement for the periodic inspection of intermodal chassis by IEPs that was in effect on January 1, 2005. FMCSA would issue a determination if it is decided that the State requirement is as effective as the Federal requirement and does not unduly burden interstate commerce. In order to trigger this review, the State must apply to the agency for a determination before the effective date of the final rule. The agency would make a determination with respect to any such application within 6 months after the date on which it is received.
If a State amends a regulation for which it previously received a nonpreemption determination, it must apply for a determination of nonpreemption for the amended regulation. Any amendment to a State requirement not preempted under this subsection because of a determination by the FMCSA may not take effect unless: (1) It is submitted to the agency before the effective date of the amendment; and (2) the FMCSA determines that the amendment would not cause the State requirement to be less effective than the Federal requirement and would not unduly burden interstate commerce.
Section 31151(a)(1) requires that FMCSA issue regulations to ensure that intermodal equipment used to transport intermodal containers is safe and systematically maintained. However, FMCSA believes the statute suggests that the agency should not attempt to allocate liability between parties tendering and using intermodal equipment. Rather than finding fault among intermodal parties or involving the Government in individual disputes (such as who damaged a particular container chassis), the rulemaking would establish programmatic responsibility for intermodal equipment maintenance. The concept is that a
The definition of “intermodal equipment interchange agreement” in Section 31151(f)(2) is “the Uniform Intermodal Interchange and Facilities Access Agreement or any other written document executed by an intermodal equipment provider or its agent and a motor carrier or its agent, the primary purpose of which is to establish the responsibilities
Neither the section 31151 language nor this proposal would relieve motor carriers of liability for damage they may inflict on intermodal container chassis. This proposed rulemaking would likely reduce the likelihood of crashes attributed to the mechanical condition and roadability of intermodal container chassis, but it would not involve the Department unnecessarily in the commercial relations or allocation of liability between intermodal parties.
Because section 31151 was codified in subchapter III of chapter 311 of title 49, United States Code, the jurisdictional definitions in 49 U.S.C. 31132 apply. The term “United States” is defined in § 31132(10) as “the States of the United States and the District of Columbia.” Section 31151 does not address the question of its own geographical reach, so it must be read as limited to the United States, as defined in section 31132(10). This means that intermodal equipment providers (IEPs) tendering equipment to motor carriers in Puerto Rico, the Virgin Islands or any other U.S. territory are not directly subject to the requirements of this rule. Nonetheless, any jurisdiction that adopts the relevant portions of the FMCSRs as territorial law would have the authority to enforce them. There is also a strong presumption against extra-territorial application of a statute. Nothing in the language or legislative history of section 31151 suggests that Congress intended to make it applicable outside the territory of the United States. Therefore, IEPs tendering equipment to motor carriers in Canada, Mexico, or Central America would not be subject to the requirements of this rule, even if the motor carrier immediately transports the container/chassis combination across the border into this country. Once in the U.S., however, the intermodal equipment would be subject to these proposed rules, including marking requirements and to existing equipment-related FMCSRs. Enforcement would be taken against a motor carrier pulling an unmarked or defective chassis, even if the chassis originated with an IEP physically located outside the United States.
IEPs physically outside the United States, as defined in section 31132(10), are not required by this proposed rule to: (1) File a Form MCS–150C; (2) have a systematic inspection, repair and maintenance program; (3) create a repair lane for defects discovered by the driver just before leaving the terminal; or (4) maintain a system for receiving reports of defects and deficiencies from drivers returning intermodal equipment. FMCSA cannot conduct roadability reviews of IEPs based in foreign countries or non—“United States” territories (because they are not subject to the rules), prohibit such IEPs from tendering defective equipment to motor carriers (because that occurs beyond the jurisdiction of FMCSA), or issue them civil penalties for failure to comply with these rules.
On the other hand, any intermodal equipment operated in interstate commerce in the United States must be marked with a USDOT number or other unique identifier. Otherwise, the motor carrier pulling the chassis/container combination would have violated these proposed regulations. As motor carriers are unlikely to accept the risk of fines for transporting unmarked chassis, foreign or non-—“United States” IEPs that know their equipment will operate within the United States may find it necessary, for business reasons, to file a Form MCS–150C and mark their equipment. FMCSA will accept registration applications from such entities and issue them USDOT numbers or other unique identifiers. In these cases, however, the assignment of an identifying number does not amount to an assertion of jurisdiction over the foreign or non—United States IEP. Doing so, however would not subject such IEPs to FMCSA jurisdiction beyond the borders of the United States, so the purpose of the identifying number could not be fully realized.
The challenge for the agency is to maximize the benefits of section 31151 and these proposed rules—when non—“United States” IEPs tender equipment that subsequently travels in the United States—without exceeding the agency's statutory authority or the principles of international law. FMCSA solicits comments on all aspects of this problem.
FMCSA asked the John A. Volpe National Transportation Systems Center (Volpe) to conduct a special study of roadside inspection results for container chassis. Inspections can be of several types, ranging from full or walk-around inspections (Levels 1 and 2) to vehicle-only inspections (Level 5). The type of unit inspected is indicated by a code and the types of violations found may be categorized as driver violations, vehicle violations (such as defects in brakes, tires or lights), or hazardous material violations. The Volpe analyses covered results from Level 1, 2, or 5 inspections, and for “Unit 2” in tractor-semitrailer combinations, the type of vehicle being inspected had to be coded as a semitrailer (code 9). “Unit 2” refers to the semitrailer in a power unit-semitrailer combination. Out-of-service (OOS) and violation rates were calculated using FMCSA's Motor Carrier Management Information System (MCMIS) inspection data on “Unit 2” vehicles. That is, the data came from Level 1, 2, and 5 inspections of the non-intermodal and intermodal semitrailers, but not the tractors involved. All violations were vehicle violations.
Results of the Volpe study are summarized here; the complete report is available in the docket for this NPRM.
The analysis of roadside inspection safety data included two phases. The first phase included a Four-State Analysis. The study team obtained intermodal inspection data from four States—California, Louisiana, South Carolina, and Texas—that have procedures for collecting and maintaining intermodal roadside inspection data at the State level and that have adopted container chassis roadability legislation. The data obtained were for the calendar years 2000 through part of 2003.
The Four-State Analysis results presented in Table 1 show, for each of the four reporting States, the total number of Level 1, 2, and 5 roadside inspections, and the OOS rates for non-intermodal semitrailers and intermodal semitrailers (
The researchers noted that in each of the four States, the OOS rate for intermodal semitrailers was higher than the OOS rate for non-intermodal semitrailers. The percentage difference between the non-intermodal and intermodal semitrailer OOS rates in each State was more than 20 percent, with intermodal container chassis being in worse mechanical condition than other types of semitrailers. Table 2 shows, for each of the four States, the total number of Level 1, 2, and 5 roadside inspections and the percentages of non-intermodal and intermodal semitrailer (i.e., Unit 2) inspections with vehicle violations. Note that the violation totals represented in Table 3 include all violations (i.e., not just OOS but also non-OOS violations) found on the trailing unit.
Table 2 shows that in California and South Carolina, the percentages of non-intermodal and intermodal semitrailers with vehicle violations were the same or nearly the same. In Texas, the percentage of non-intermodal semitrailers with vehicle violations was 5.1 percentage points higher than the percentage of intermodal semitrailers with vehicle violations. In Louisiana, the percentage of intermodal semitrailers with vehicle violations was 15.2 percentage points higher than the percentage of non-intermodal semitrailers with vehicle violations. However, FMCSA recognizes the limited number of Louisiana intermodal trailer inspections (only 76 inspections compared to 1,982 inspections in South Carolina, 2,032 inspections in Texas, and 33,523 inspections in California) on which to base this comparison.
The roadside inspection data from Texas contain a code that identifies the type of intermodal container chassis ownership: carrier owned or non-carrier-owned. The OOS and “all” violation analyses were re-run to compare the results for these two groups. Table 3 shows the OOS rates for carrier-owned and non-carrier-owned intermodal container chassis for inspections performed in Texas. Table 3 shows the total (or “all”) vehicle violation rates for carrier-owned and non-carrier-owned intermodal container chassis for inspections performed in Texas.
Table 3 shows that the non-carrier-owned intermodal semitrailers (i.e., container semitrailers tendered by equipment providers) had an OOS rate of 25.3 percent compared to an OOS rate of 19.2 percent for the carrier-owned intermodal semitrailers. Table 4 shows that 55.7 percent of the non-carrier-owned intermodal semitrailers had vehicle violations compared to 57.5 percent of the carrier-owned intermodal semitrailers.
While FMCSA has examined both total violation rates and OOS rates, it is the OOS rate FMCSA focuses on in this proposed rule because that rate is based on the most serious violations of the FMCSRs. These violations are listed in the Commercial Vehicle Safety Alliance's (CVSA) North American Uniform Out-of-Service Criteria, a set of enforcement tolerances used by Federal, State, and Provincial agencies conducting commercial motor vehicle inspections in theUnited States, Canada, and Mexico.
The second phase of this analysis used data collected during roadside inspections conducted during an intensive annual activity known as RoadCheck. FMCSA requested that States conduct inspections of intermodal equipment, where possible and appropriate, as part of the focus of International RoadCheck 2004 (conducted beginning in June 2004).
Table 5 shows the RoadCheck 2004 inspection totals and out-of-service rates compared to the Four-State Analysis inspections.
Table 5 shows that the OOS rates for intermodal equipment—both tractors and semitrailers—are consistently higher than the OOS rates for commercial motor vehicles hauling non-intermodal semitrailers. This suggests that intermodal container chassis are more likely to be operated in an unsafe mechanical condition than non-intermodal semi-trailers
As part of RoadCheck 2004, FMCSA also asked inspectors to identify the ownership of intermodal container chassis at the time of the vehicle inspection.
While data in Table 6 are relatively limited, they do show that intermodal container chassis owned by motor carriers have lower OOS rates than intermodal container chassis owned by all other non-motor carriers.
While the total number of violations cited per inspection for intermodal container chassis may be comparable to the total number of violations per inspection of non-intermodal semitrailers, the data indicate the defects or deficiencies observed on intermodal container chassis are likely to be more severe than those noted on non-intermodal semitrailers (or those violations resulting in vehicle OOS orders). Therefore, it appears intermodal container chassis are, as a group of commercial vehicles, more likely to be in need of repairs than other types of semitrailers, and that the defects and deficiencies are more likely to be of the type that are likely to cause a crash or breakdown of the vehicle.
FMCSA examined the violations cited during intermodal container chassis inspections to determine what specific problems were being found during the inspections and whether it is likely a driver could have detected them if they were present when the driver picked up the container chassis.
Table 7 shows the most frequently cited violations in the inspection records of the four States' data. The most common violation was “Inoperable Lamp (Other than Head/Tail),” which accounted for 25.4 percent of all violations. Combined with other lamp/light violations, they account for 34.0 percent of all violations. Tire-related violations account for 12.2 percent of all violations. Violations that can be readily detected by the driver, including those that are lamp/light and tire-related, account for more than half of all the violations cited for intermodal container chassis.
Violations involving defects or deficiencies that drivers were unlikely to detect during a visual inspection account for only 7 percent of all violations on intermodal container chassis in the four States. The remaining 93 percent of violations are either items the driver could have observed during a visual inspection of the container chassis, or are under further study by FMCSA to determine the likelihood of the driver being able to detect the defect or deficiency.
California dominates the results in the previous section because of the number of inspections performed by that State. However, significant differences were evident in the types of violations cited from State to State. As Table 8 shows, the violation described as “Inspection/Repair and Maintenance” represented 31.0 percent of all violations cited in California. On the other hand, lamp problems were the predominant problems in all the other States, accounting for 47.5 percent of violations in Texas, 45.7 percent in South Carolina, and 57.8 percent in Louisiana.
The second most frequently cited violation in Louisiana and South Carolina was the “Improper Securement of [an] Intermodal Container,” while for Texas, the second most frequently cited violations were brake-related issues.
The third most frequently cited violations in Louisiana and South Carolina were brake-related issues, while for Texas it was “Improper Securement of [an] Intermodal Container.” California's violations were somewhat unique among the four States, as only three of their top ten violations were items drivers could have detected during a visual inspection of the container chassis. It is possible that violation code differences among the States account for some of the variability in specific defects or deficiencies listed.
Table 9 shows the top ten OOS violations for intermodal semitrailers in the four States. Similar to all violations in the previous section, the most frequently cited OOS violations were readily detectable by the driver, but the patterns of individual violations differed among the four States. In California, “Inoperable Lamp (Other than Head/Tail),” a violation a driver could easily discover, accounted for almost 49 percent of the OOS violations in the State, and “Inspection/Repair and Maintenance,” a violation that the driver would be less likely to discover, accounted for almost 22 percent of the OOS violations.
In the other three States, the most frequently cited type of OOS violation is one that could readily be detected by the driver; namely, proper securement of containers and loads. Specifically, these violations accounted for 61.5 percent of Louisiana violations, 33.3 percent of South Carolina violations, and 40.0 percent of Texas violations. The second most frequently cited type of violation in these three States was also readily detectable by the driver: Lamp-related violations. In these three
Problems with securing containers and loads are not evident among the top ten California violations. During a January 2004 field trip to the Los Angeles area,
Table 10 contains results from FMCSA's analysis of inspection of intermodal container chassis during RoadCheck 2004. RoadCheck 2004 inspection analysis found that the most frequently cited OOS violation was “Brakes out of adjustment,” which accounts for 15.3 percent of all violations. “Inoperable lamp” was second, accounting for 11.6 of all OOS violations. Brake-related violations accounted for 35.3 percent of all OOS violations, while light-related violations accounted for 31.4 percent of the total. Load securement violations accounted for 18.6% of all violations, while tire-related violations accounted for 7.5 percent of all violations.
In addition to examining roadside inspection data from California, Louisiana, South Carolina, and Texas, FMCSA reviewed inspection results for motor carriers that identified themselves on the Motor Carrier Identification Report (Form MCS–150) as engaged in intermodal operations only, and those engaged in intermodal operations as one of their primary operations. The data for these categories of carriers was compared with data for all motor carriers.
There are 641 motor carriers that indicate the only type of activity they engage in is intermodal operations. There are 12,032 motor carriers that include the intermodal operations entry as one of the types of transportation activity they engage in. The total number of motor carriers is greater than 685,000. However, FMCSA analysts believe the number of truly “active” motor carriers is probably less than 500,000 (
Table 11 data show a small difference (2 percent) between the OOS rate for semitrailers being transported by motor carriers in all types of operations and semitrailers being transported by motor carriers involved in both intermodal and non-intermodal operations. However, there is a significant difference between the semitrailer OOS rates for motor carriers engaged exclusively in intermodal operations versus those with combined operations and all motor carriers. The semitrailer OOS rate for intermodal-only operations was 25 percent. The semitrailer OOS rate for motor carriers engaged in intermodal operations combined with some other type of operation(s) was 15 percent. The semitrailer OOS rate for all motor carriers was 13 percent.
The nationwide data from FMCSA's MCMIS suggest the mechanical condition of intermodal container chassis operated by the motor carriers typically selected for roadside inspections is significantly worse than the semitrailers operated by motor carriers in all types of operations. Although there are huge differences in the population size of intermodal-only motor carriers versus all motor carriers, and the total number of vehicle inspections conducted on intermodal-only carriers versus all other motor carriers, FMCSA cannot ignore the disparity in the condition of the vehicles.
FMCSA believes the data suggest that the percentage of intermodal container chassis being operated in unsafe mechanical condition is likely to be greater than the percentage of non-intermodal semitrailers in unsafe operating condition, based on the inspection data obtained from CA, LA, SC, and TX as part of the Four-State Analysis and the inspection data analyzed as part of the RoadCheck 2004 safety data analysis. While the number of violations cited per inspection for intermodal container chassis may be comparable to the number of violations per inspection of non-intermodal semitrailers, the data indicate the defects or deficiencies observed on intermodal container chassis are likely to be more severe than those noted on non-intermodal semitrailers. Thus, it appears intermodal container chassis are, as a group of commercial vehicles, more likely to be in need of repairs than other types of semitrailers.
Container chassis, as a vehicle type, should not be considered inherently unsafe. Data from Texas concerning inspection results segregated by ownership suggest that container chassis controlled by motor carriers are better maintained than container chassis offered by IEPs to motor carriers. FMCSA's primary safety concern is with the container chassis offered by IEPs, because the agency's research indicates that these chassis do not appear to be covered by inspection, repair, and maintenance programs comparable to those of motor carriers that control their own intermodal equipment, or motor carriers responsible for maintaining other types of semitrailers.
While there is very limited information to determine the extent to which the mechanical condition of intermodal container chassis may contribute to crashes, the data suggest that it is more likely than not that current maintenance practices of many IEPs do not ensure container chassis are in safe and proper operating condition at all times on the highways. Further, the types of defects or deficiencies found on such container chassis during roadside inspections are often so severe the vehicle must be placed OOS. It must be acknowledged, however, that a very high percentage of these violations could have been detected by drivers, had they made—or had the opportunity to make—an adequate visual inspection before leaving the intermodal facility.
Regardless of the lack of crash data on a national level, the information reviewed to date is cause for concern. The Volpe Center, in a 2004 analysis conducted for FMCSA using the FMCSA Roadside Intervention Model, estimated that 55.6 percent of all the CMV crashes avoided as a result of roadside interventions (i.e., roadside inspections and traffic enforcement stops) in 2003 were attributable to the vehicle violations found at the time of the inspection. More recent study has highlighted the role of the driver among crash-related factors. It is clear, though, that attention to equipment condition yields safety benefits. In addition to our continued focus on the driver, FMCSA believes that action should be taken to reduce, to the greatest extent practicable, potential future crashes caused by the mechanical condition of the intermodal container chassis. This rulemaking would also ensure that intermodal container chassis meet the same level of safety as other semitrailers operated in interstate commerce.
Container chassis are specialized truck trailers with twist locks. An intermodal container chassis is a reusable asset of its owner. The chassis can belong to virtually any participant in the transportation or logistics chain: (1) Carriers, including ocean shipping lines, railroads, and trucking companies; (2) equipment leasing companies; and (3) shippers. FMCSA estimates that there are 108 non-motor-carrier intermodal equipment providers, consisting of 93 steamship lines, 5 railroads, and 10 container chassis pool operators.
According to the Intermodal Association of North America (IANA), there are 5,500 motor carriers and 65 IEPs that are signatories to the Uniform Intermodal Interchange and Facilities Access Agreement (UIIA), representing approximately 90 percent of the intermodal movements.
Given that, according to the IANA database, about 5,500 motor carriers are signatories of UIIA, this analysis assumes that about 46 percent of the 12,032 motor carriers in MCMIS, or about 5,600 motor carriers, are engaged in intermodal cargo container operations as a primary operation. Only some of these carriers own or otherwise control (i.e., lease) intermodal container chassis or trailers. In response to FMCSA's survey questionnaire regarding operational characteristics of intermodal tractor-trailers, three out of nine motor carriers (or one-third), suggested that they owned, leased, or otherwise controlled intermodal container chassis for extended periods of time (i.e., beyond one trip). Therefore, FMCSA assumes that one-third of the 5,600 motor carriers engaged in intermodal cargo container operations, or about 1,900 motor carriers, actually own or lease/control intermodal container chassis.
It is difficult to obtain precise estimates of the size and scope of national intermodal container chassis operations. There is no census or database of intermodal container chassis providers that is comparable to FMCSA's MCMIS Census File of motor carriers, which provides not only the name and location of each motor carrier, but also its size, as measured by the number of power units. Therefore, the number of IEPs has been estimated using a combination of MCMIS, IANA, and ATA reports, as well as information obtained from port authority and railroad Web sites. However, FMCSA believes that the 1,900 motor carriers that own intermodal container chassis are already subject to systematic maintenance requirements and would not incur any additional cost burden due to the proposed rule.
Information on the number of intermodal container chassis owned by the various equipment owners/providers was as difficult to obtain as the number of intermodal container chassis providers. Based on articles in the motor carrier trade press, FMCSA estimates that there are between 750,000 and 800,000 container chassis in service. According to the Institute of International Container Lessors (IICL) Annual Chassis Fleet Survey,
Based on the IICL data on intermodal container chassis, FMCSA assumes the estimated 10 container chassis pool operators control about 38 percent, or 320,000 container chassis. Therefore, this NPRM assumes that steamship lines, railroads, and motor carriers currently own about 530,000 intermodal container chassis in operation in the United States.
Through its surveys of intermodal equipment providers, FMCSA obtained information on about 281,100 intermodal container chassis, or roughly 53 percent of the total number of intermodal container chassis owned by members of the Ocean Carrier Equipment Management Association (OCEMA), Association of American Railroads (AAR), and American Trucking Associations.
FMCSA has determined that this rulemaking action is a significant regulatory action under Executive Order 12866, Regulatory Planning and Review, and significant under DOT regulatory policies and procedures because of substantial public and Congressional interest concerning the maintenance and roadability of intermodal container chassis and the responsibilities of intermodal equipment providers (IEPs). However, it has been estimated that the economic impact of this proposed rule would not exceed the annual $100 million threshold for economic significance. OMB has reviewed this proposed rule. Improved maintenance is expected to result in fewer out-of-service (OOS) orders and highway breakdowns involving intermodal chassis and improved efficiency of the Nation's intermodal transportation system. To the extent inadequately maintained intermodal chassis are responsible for, or contribute to, crashes, this proposal would also help to ensure that CMV operations are safer, thus reducing the deleterious effect on drivers addressed in section 31136(a)(4). Given the cost results contained in the next section, Estimate of the Compliance Costs for Intermodal Equipment Providers, FMCSA anticipates this rule would not have a significant economic impact on IEPs.
Periodic (annual) inspection is required for every commercial motor vehicle in accordance with current § 396.17.
The proposed amendments to the FMCSRs would explicitly require IEPs to ensure the equipment they tender to motor carriers and drivers complies with the safety requirements in place for other types of trailers operated in interstate commerce. For those equipment providers that have in place systematic inspection, repair, and maintenance programs, including providing the opportunity for CMV drivers to assess the safe operating condition of intermodal container chassis before taking them on the highway and repairing or replacing equipment found to have deficiencies, this proposed rulemaking would impose minimal additional costs. Equipment providers that do not have such systematic programs in place would incur the costs of establishing and maintaining the programs.
The proposed regulations also address a program for FMCSA to evaluate and audit the compliance of IEPs with those sections of the FMCSRs applicable to them. If FMCSA finds evidence that an IEP is not complying with the regulations concerning intermodal equipment safety, the proposed regulations would allow FMCSA to take appropriate action to bring about compliance with the regulation.
The proposed rule would have some impact upon the responsibilities of drivers and motor carriers. Motor carriers would continue to bear responsibility for the safe operation of equipment in their control on the highways and for the systematic IRM of all motor vehicles, including intermodal equipment, under their control for 30 days or more. Drivers would continue to be responsible for assessing the safe operating condition of the CMVs they will drive (§ 392.7 and § 396.13), and to note and report on defects or deficiencies that could affect the CMV's safety of operation or result in a mechanical breakdown (§ 396.11). IEPs would need to acknowledge receiving that information, and must either repair the equipment or provide a replacement chassis. However, IEPs and their agents may also request FMCSA to undertake an investigation of a motor carrier that is alleged to not be in compliance with regulations issued under the authority of 49 U.S.C. 31151.
Excluding potential costs associated with systematic IRM (§ 396.3) requirements, FMCSA estimates equipment providers' costs to comply with the proposed information collection and recordkeeping requirements would be modest, because the requirements would be limited in scope (filing the Identification Form MCS–150C, marking intermodal equipment with the provider's USDOT number or other identifying number unique to that provider, and complying with recordkeeping requirements associated with equipment inspection, repair, and maintenance).
The economic benefits of this rule are estimated to include (1) safety benefits from avoiding crashes involving intermodal equipment, and (2) efficiency benefits resulting from a reduction in vehicle OOS orders on intermodal chassis, wait times for truckers to receive chassis, and other changes in chassis operations that improve productivity.
The sections below provide details on the estimated costs and benefits of this proposed rule.
Potential costs considered as a result of this proposed rule include the following:
• Filing Intermodal Equipment Provider Identification Report (Form MCS–150C);
• Displaying a unique USDOT number or other identification number on each chassis;
• Establishing a systematic inspection program, and a repair and maintenance program to ensure the safe operating condition of each chassis;
• Maintaining documentation of the inspection program; and
• Establishing a reporting system for defective and deficient equipment.
When considering costs of the proposed rule, it should be recognized that some of those costs are already being incurred by the industry. As mentioned previously, periodic inspections of intermodal equipment by those controlling that equipment (§ 396.17(c)) are apparently being performed at least once every 12 months, as required. Additionally, as presented later in the discussion of inspection, repair and maintenance costs, surveys of steamship lines and railroads that are also IEPs indicate that at least some of those equipment providers are engaging in regular repair and preventative maintenance, as well as in various inspection activities. Furthermore, information from motor carriers indicates that some are currently doing limited repair and maintenance on the chassis that are tendered by IEPs to them. Therefore, the costs of this rule are lower than they would be if IEPs were not performing any inspections, repairs, or maintenance.
Total first-year costs associated with this proposed rule range from $28 to $41 million, depending on equipment providers' current inspection, maintenance, and repair programs for their chassis. Total discounted costs over the 10-year analysis period range from $147 to $242 million, using a seven percent discount rate.
A copy of FMCSA's preliminary Regulatory Impact Analysis (RIA) is included in this rulemaking docket.
Currently, a motor carrier is required to file a Motor Carrier Information Report (Form MCS–150) with FMCSA before it begins to operate in interstate commerce and to file an update of the report every 24 months. The proposed rule would require each equipment provider to register with FMCSA (if it has not already done so) and to obtain a USDOT number or other unique identification number by submitting an Intermodal Equipment Provider Identification Report, Form MCS–150C, to FMCSA. Additionally, each entity must file an update to its initial MCS–150C filing at least every 24 months. FMCSA estimates that 108 entities (93 steamship lines, 5 railroads, and 10 common pool operator/equipment lessors) will need to submit Forms MCS–150C.ith FMCSA (if it has not already done so) and to obtain a USDOT number or other unique identification number by submitting an Intermodal Equipment Provider Identification Report, Form MCS–150C, to FMCSA. Additionally, each entity must file an update to its initial MCS–150C filing at least every 24 months. FMCSA estimates that 108 entities (93 steamship lines, 5 railroads, and 10 common pool operator/equipment lessors) will need to submit Forms MCS–150C.
Form MCS–150C would be a single-page form that includes questions about basic information, e.g., name, address, telephone number, numbers and types of equipment, etc. FMCSA estimates it would take 20 minutes to complete Form MCS–150C the first time that it is filed.
According to national employment and wage data from the Occupational Employment Statistics survey published by the Department of Labor, Bureau of Labor Statistics, a first line supervisor/manager in a transportation and material moving occupation (those FMCSA believes will be filling out Form MCS–150C) earned a median hourly wage of about $21.08. Total compensation for a supervisor/manager responsible for filing a Form MCS–150C is estimated at $30.79, of which $21.08 is the wage and salary and $9.71 is the benefit.
This evaluation estimates that IEPs would incur a one-time cost of approximately $10.27 per entity (
The proposed rule would require all IEPs who tender such equipment to motor carriers to mark their container chassis with a unique USDOT number that is assigned to those filing the MCS–150C, or another number unique to that entity. FMCSA does not mandate a particular method of vehicle identification; thus, the costs associated with this proposal would vary depending on the method used to mark the container chassis with the required type of marking (i.e., USDOT number versus an alternative identifier). FMCSA believes that the vast majority of IEPs would use either stencils or decals for marking, because these are the cheapest methods. This assumption and the following assumptions on time and material requirements for container chassis marking are consistent with FMCSA's Final Rulemaking analysis for Commercial Motor Vehicle Marking published in the
FMCSA estimates that the average time to affix a USDOT number or other unique identification number would be about 12 minutes. According to national employment and wage data from the Occupational Employment Statistics survey, the median hourly wage rate for a painter of transportation equipment is $16.39. Incorporating a 31.5 percent benefits package yields a total hourly compensation rate of $21.55. Assuming 12 minutes per marking, the labor cost to mark each intermodal container chassis is estimated to be roughly $4 per container chassis after rounding.
Combining the above estimates for material and labor, FMCSA estimates that the total costs to mark one intermodal container chassis with a USDOT number or other unique identification number is about $11 (after rounding). First-year costs would equal $8.9 million to mark all container chassis operating in the United States. Subsequently, every year thereafter, a portion of the chassis will be retired and replaced by new chassis, each of which will need to be marked. FMCSA estimates that the operational life of a chassis is 14 years on average. Consequently, for the purposes of this analysis, it is assumed that
As a result of its investigation, FMCSA concluded that there was a significant probability that full compliance was not being achieved with the existing regulations. IEPs, as a customary business practice, do not provide systematic inspection, repair and maintenance programs. Consequently, for the purpose of estimating the economic costs of this proposed rule, FMCSA assumes that non-motor carrier IEPs would in fact be required to undertake new costs because of this rulemaking. Whether or not this accurately represents the current situation, our assumption of less than full compliance is conservative because it helps ensure that FMCSA does not underestimate the economic costs of this proposed rule.
Because the regulatory impact analysis (RIA) must quantify the number of additional inspections to be conducted each year as a result of this proposed rule, FMCSA estimates about one a year is conducted by IEPs now, but four are needed for a reasonable systematic inspection, repair and maintenance program. We estimate that, on average, three additional inspections would be required for that portion of the non-motor carrier owned or controlled intermodal chassis currently in operation (even though the proposed rule sets no explicit requirements on the number of inspections per chassis under a systematic IRM program). FMCSA believes that a minimally-compliant IEP could fulfill the requirements of this proposal. For the purposes of estimating costs for the RIA, this assumption would effectively amount to a quarterly inspection program for the chassis owned or controlled by IEPs.
Regarding the number of chassis being maintained in a manner consistent with the regulations, FMCSA estimates between 25 and 50 percent of the existing intermodal chassis population are currently not being properly maintained.
This analysis uses an average of 30 minutes to conduct an inspection of an intermodal chassis and that a transportation inspector earning $30.79 per hour in wages and benefits would perform the inspections, supported by a mechanic. This is based on data from the AAR survey response. It is also consistent with the amount of time to complete a Level V inspection. The mechanic is assumed to devote 15 minutes to the inspection, the inspector 30 minutes. The median hourly wage for a mobile heavy equipment mechanic is estimated from employment and wage data from Occupational Employment Statistics to be $17.69 as of May 2003. Assuming benefits are equal to 31.5 percent of wages, the total loaded labor cost of the mechanic would be $23.26 per hour. The total cost of each additional inspection of an intermodal chassis would be $21.21. This cost estimate is consistent with the AAR members' estimates of annual inspection costs of $20 if performed by their own personnel and $18 if outsourced to an on- or off-site terminal inspection operator. The cost of four inspections per year would be $84.84.
There will most likely be some shift of repair costs from motor carriers to IEPs, but the magnitude of this shift is uncertain. However, FMCSA believes this shift represents a transfer payment of existing costs, and therefore is not expected to impact the overall costs or benefits of the proposed rule.
As stated earlier, FMCSA believes that the systematic IRM program called for in the proposed rule will require four inspections of intermodal chassis per year, on average.
FMCSA estimates that the time needed to document and file each inspection report is approximately 3 minutes. Therefore, this analysis assumes that it would take each IEP approximately 3 minutes on average per intermodal chassis per inspection to document and retain the inspection reports. Assuming that a transportation inspector earning $30.79 per hour in wages and benefits would perform the inspections and document the findings, the total cost to document and retain each inspection report is estimated to be approximately $2 per intermodal chassis per inspection (or ($30.79/60) × 3 minutes).
Assuming that the recordkeeping for each intermodal chassis inspection costs $2, and that these intermodal equipment providers will need to perform three additional inspections per year per chassis, the recordkeeping requirements of the proposed regulatory change are expected to cost the non-motor carrier IEPs an additional $6 per chassis per year.
The annual cost of recordkeeping attributable to the proposed rule is $4,849,200. Over the 10-year analysis period, the present value of the cost of recordkeeping would be $38,907,752.
For purposes of this analysis, FMCSA assumes that no additional costs will be incurred in order for IEPs to receive notification of problems. Because problems with chassis already occur, FMCSA believes that such systems are already well established to address problems. Additionally, FMCSA received no information during its data collection immediately prior to this rulemaking to indicate otherwise, and the agency found such systems already in place during its port visits. Consequently, no additional costs are expected to result.
For purposes of this analysis, FMCSA assumes that no additional costs will be incurred by drivers and motor carriers in order to notify chassis providers of problems with defective or deficient chassis. Problems with chassis already occur, and drivers or motor carriers are already contacting providers (whether in person or by phone) to inform them of those problems. Additionally, FMCSA believes that the new application of the systematic IRM requirement to equipment providers will generally result in these problems being noticed and corrected prior to the transfer of the chassis.
• The name of the motor carrier responsible for the operation of the chassis at the time the defect or deficiency was discovered by or reported to the driver;
• The USDOT identification number or other unique identification number of the motor carrier;
• The date and time the report was submitted; and
• The defects or deficiencies reported by the motor carrier or driver.
As mentioned before, chassis currently experience problems that are being reported to IEPs. With the possible exception of the USDOT identification number or other unique identification number, good business practice would seem to require that all of the information mandated in reports under new § 396.12 is currently being collected. Additionally, FMCSA received no information during its data collection immediately prior to this rulemaking to indicate otherwise. Therefore, no additional costs are expected to result from the required driver chassis inspection reports.
Based on information obtained from equipment provider surveys FMCSA has concluded that IEPs currently have repair facilities for dealing with chassis that are not roadworthy. Additionally, during its port visits, FMCSA staff identified repair facilities at all the terminals they toured. Consequently, § 396.12 would not require the establishment of new facilities, nor is there any reason to believe that the new section will necessitate any expansion of existing facilities.
Good business practice for chassis providers and their service departments would include documenting repairs made or documenting that repairs were not made. This information assists those monitoring the cost and work of repair facilities. Information obtained from the equipment providers' surveys confirmed that IEPs are indeed following good business practice. The proposed § 396.12 would not increase the need for this documentation. It might, however, change the nature of the documentation somewhat. For instance, if a chassis were brought in for a defective wheel and no wheel problem could be found, then current documentation might just say “Checked wheels.” Under the proposed § 396.12, the documentation might say “Check wheels after receiving trouble report from motor carrier. Complete check revealed no problem.” FMCSA believes any change in documentation would be minor and would not materially add to the costs of the providers, however.
Table 17 summarizes the expected compliance costs attributable to the proposed regulation.
The total compliance costs, or the sum of the total initial and total recurring costs, are expected to be between $147 million and $242 million. Consistent with OMB directives, this is the present value of the expected cost stream calculated over a 10-year period using a 7 percent discount rate.
FMCSA seeks comment on the cost analysis.
The purpose of the proposed regulation is to ensure that intermodal chassis used to transport intermodal containers are safe. The explicit inclusion of IEPs in the scope of the FMCSRs would ensure that IEPs could be subject to the same enforcement proceedings, orders, and civil penalties as those applied to motor carriers today. The systematic inspection, maintenance, and repair requirements would ensure safer and more reliable container chassis on the nation's highways. The expected benefits of the proposed rule include the following:
• Increased safety of intermodal chassis operation as a result of reducing crashes attributable to those chassis;
• Increased operational efficiency of intermodal chassis as a result of—
The following sections quantify the potential benefits of the proposed rule by estimating the number of crashes avoided to justify the compliance costs directly or indirectly imposed by the rule. The sections also provide qualitative discussion of benefits of the proposed rule where quantitative estimates are not available.
The estimated cost of a crash involving a fatal injury is $3.57 million for a truck tractor with one trailer, and the costs of non-injury or property-damage-only crashes are estimated to be $12,077 each. The estimated average cost of a crash reported to police involving a truck tractor with one trailer is $76,698.
As stated, the rule is expected to result in compliance costs of between $28 million and $41 million in the first year, and $147 million and $242 million over the entire 10-year analysis period. The proposed rule should result in benefits that are greater than the cost of compliance, which would result in a positive cost/benefit ratio. Focusing on saved lives alone, the proposed rule would need to prevent between 8 and 12 fatalities per year attributable to crashes involving intermodal chassis over the 10-year period. These 8 to 12 fatalities represent just 0.2% to 0.3% of the 3,762 fatalities in combination truck crashes in calendar year 2003. At the break-even point, compliance costs equal the benefits attributable to avoiding just a few of the fatal crashes that would have occurred in the absence of the proposed regulation. Of course, reduced injuries, property damage, and other incident consequences would reduce the number of lives that would need to be saved in order for the rule to be cost-beneficial. We believe the proposed rule is likely to prevent enough crashes to justify the costs.
While operating efficiency is not something FMCSA regulates, we note that in addition to the safety benefits, the proposed rule is likely to produce benefits from improved operational efficiency. Currently, from our research, FMCSA concludes there is no standard procedure for a truck driver or motor carrier to follow when confronted with an intermodal chassis placed OOS as a result of a roadside inspection. One of the uncertainties is the issue of responsibility. If the chassis's problem developed after the driver left the terminal, then the contractual responsibility in many cases lies with the commercial driver and the motor carrier, not with the equipment provider. If, however, the chassis problem was a pre-existing condition, then the chassis owner is responsible. According to IANA, many equipment providers have service contracts with repair vendors. If a chassis problem needs to be fixed in order for the driver to resume operation, these vendors are often called to provide the repairs. Additional uncertainty surrounds the question of authorization for this repair, because the service contract is between the service vendor and the chassis provider and the provider would have to authorize a repair request. In some cases, the truck driver's motor carrier
The potential reduction of OOS rates would increase the operational efficiency of intermodal transportation as a whole. A chassis placed OOS must not be operated until the repairs required by an OOS order have been made. According to information provided to FMCSA by ATA members, carriers spend, on average, 3 hours of a driver's time and 1.5 hours of other employees' time to correct each vehicle OOS order received on chassis tendered by an equipment provider. The opportunity cost for a truck driver and one employee's time is calculated at $116.35 per vehicle OOS order attributable to a problem chassis.
Given that, on average, 18.5 percent of roadside inspections of intermodal chassis result in vehicle OOS violations, cost savings, in terms of the opportunity cost of driver and motor carriers' time, would quickly add up, as there are approximately 850,000 intermodal chassis in operation in the U.S. Roadside repair costs for intermodal chassis, other than those involved in vehicle OOS orders, may also be significantly reduced, given evidence indicating that intermodal chassis typically have more equipment defects and deficiencies than non-intermodal trailers. Clearly, a reduction in equipment violations severe enough to cause a chassis to be placed OOS would mean less disruption of supply chains. FMCSA attempted conservatively to estimate the number of intermodal chassis vehicle OOS orders that would be avoided as a result of this proposed rule. We assumed that this proposal would reduce the intermodal chassis OOS rate to the national vehicle OOS rate for all trailers (discussed earlier in this NPRM in Table 11). Initial results indicate that such changes could reap efficiency benefits of $40,000 to $410,000 annually. Again, FMCSA considers these estimates to be conservative, because it used a driver wage rate, rather than an average revenue per tractor estimate, to determine the opportunity costs of vehicle OOS orders. Complete details of this analysis are contained in the full RIA in the docket.
At intermodal terminal facilities, the effect of the proposed rule would be to reduce the time needed for motor carriers to pick up a roadworthy chassis. Motor carriers report that they currently spend between 30 minutes and 2 to 3 hours to find a roadworthy chassis. That means that motor carriers could save between $11.69 and $46.78 in driver's costs alone, if this wait/search time could be completely eliminated. The proposed rule, by mandating that chassis providers implement systematic inspection, maintenance, and repair programs, can be expected to reduce the number of defective chassis being offered in service, and thereby reduce the time needed by truck drivers to find a roadworthy chassis.
Delays at a port or rail intermodal terminal and on the road due to poor container chassis condition affect only a small segment of the motor carrier industry. However, delays at intermodal facilities and the related issue of poor container chassis condition on the road are crucially important to trucking firms that pick up and deliver freight at ports and rail terminals. Drayage firms that service ports, especially, operate in a highly competitive market, with many small motor carriers and owner-operators competing to provide services. The drivers are typically paid per load and operate on very slim profit margins. Delays at port or rail facilities as well as on the road impose a cost on these firms in lost revenues and profits. The reduced efficiency of this critical link in the transportation system also imposes costs on intermodal freight customers.
Intermodal freight volume is expected to continue to grow, and ports and rail terminals must improve competitiveness both locally and globally. This will require the utilization of existing infrastructure and greater economic efficiency. The amount of cargo moving in maritime containers is forecasted to grow nearly three-fold by 2020, rising from 57 million twenty-foot containers in 2000 to 163 million in 2020. Systematic inspection, repair, and maintenance of intermodal container chassis would ensure safe operation of these container chassis on the road, which in turn would enhance the reliability and economic efficiency of the intermodal freight traffic in the U.S.
Table 19, below, compares the current Federal requirements with new requirements proposed in this NPRM and shows the benefits and costs associated with the proposals.
FMCSA requests comment on the costs and benefits estimated in this analysis.
The Regulatory Flexibility Act (5 U.S.C. 601
The announcement explained the new inspection program would be modeled on FMCSA's compliance review program already in place for the Nation's interstate motor carriers. Chassis providers would be required to obtain a USDOT number and display it on their chassis so that safety performance data could be captured. FMCSA would apply the same penalty structure and enforcement actions used for motor carriers to intermodal equipment providers demonstrating patterns of non-compliance with the new safety requirements.
Subsequently, Section 4118 of SAFETEA–LU was enacted and directs the Department of Transportation to undertake a rulemaking relating to the roadability of intermodal equipment. FMCSA, working in coordination with
The railroads that own intermodal chassis are assumed to be 5 major railroads in the United States and would not be considered small business as defined by the SBA. Additionally, it is FMCSA's belief that most of the common-pool operators that own intermodal chassis would not be classified as small business by SBA size standards, given the average size of the chassis pools they are estimated to be operating.
The for-hire trucking industry in the United States consists of over 113,000 interstate motor carriers.
The proposed rule would affect only a small percentage of trucking firms, since only approximately 1,900 trucking companies own intermodal chassis. These motor carriers belong to the five “484” NAICS codes identified in Table 20. For the most part, these entities would incur minimal increased costs to comply with the provisions of this NPRM, since they are already subject to the FMCSRs; indeed, the NPRM would most likely reduce overall operational costs for most of these entities, since some of the burden for inspection, maintenance, and repair will indirectly shift to non-motor carrier chassis providers.
The RIA assumes that the 10 equipment lessors (common pool operators) own an estimated 320,000 intermodal chassis or about 32,000 chassis per entity. Therefore, based on this information, we assumed that these firms fall into the 20 largest firms in this NAICS codes and earned about $3.06 billion or average revenue of $153.2 million.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), a Federal agency must obtain approval from the Office of Management and Budget (OMB) for each collection of information it conducts, sponsors, or requires through regulations. FMCSA has analyzed this proposal and determined that it would require revisions to existing information collection requirements subject to approval by OMB. This includes the requirement for entities that offer intermodal container chassis for transportation in interstate commerce to: (1) File an Intermodal Equipment Provider Identification Report (FMCSA Form MCS–150C, a variant on the currently-approved Motor Carrier Identification Report, Form MCS–150); (2) establish a systematic inspection, repair, and maintenance program to ensure the safe operating condition of each item of intermodal equipment tendered to motor carriers and to maintain documentation of the program in accordance with 49 CFR part 396; and (3) provide a means for an intermodal equipment provider to effectively respond, using a variant of the Driver-Vehicle Inspection Report currently approved by OMB, to driver and motor carrier complaints about the condition of intermodal container chassis. It is anticipated that electronic recordkeeping would be allowed to reduce, to the greatest extent practicable, the costs associated with complying with the recordkeeping requirements.
There are two currently approved information collections that would be affected by this NPRM: (1) Motor Carrier Identification Report (FMCSA form MCS–150), OMB Control No. 2126–0013, approved at 74,896 burden hours through July 31, 2007; and (2) Inspection, Repair, and Maintenance, OMB Control No. 2126–0003, approved at 59,093,245 burden hours through February 28, 2006. Table 21 shows the FMCSA estimated number of intermodal container chassis by owner.
The total annual burden hours for the two current information collections above are 59,168,141. Table 22 depicts the proposed and current burden hours associated with the information collections.
The following is an explanation of how each of the information collections shown above would be impacted by this proposal.
The proposals contained in this NPRM, affecting two currently approved information collections, would result in a net increase of 121,266 burden hours in the agency's information collection budget.
FMCSA requests comments on whether the collection of information is necessary for the agency to meet its goal of reducing truck crashes, including: (1) Whether the information is useful to this goal; (2) the accuracy of the estimated information collection burden; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the information collection burden on respondents, including the use of automated collection techniques or other forms of information technology.
You may submit comments to OMB on the information collection burden addressed by this NPRM. OMB must receive your comments by January 22, 2007. Mail or hand deliver your comments to:
FMCSA analyzed this rule for the purpose of the NEPA (42 U.S.C. 4321
Table 23 presents a comparison of the potential environmental and socioeconomic consequences of the Proposed-Action Alternative and No-Action Alternative from the draft environmental assessment.
Table 23 lists the impact categories for which there exists a potential for a positive or negative indirect impact from the Proposed-Action Alternative (this proposed rule). Without certain key pieces of information (e.g., crash data on a national level, exact number and safety record of intermodal equipment providers, and detailed transportation routes over which intermodal equipment is used), it is impossible to accurately quantify most of these impacts, though a qualitative rationale for these conclusions is offered in the draft environmental assessment.
Nevertheless, it is evident from Table 23 that the only potentially negative environmental or socioeconomic impact of the Proposed-Action Alternative (this proposed rule) involves a potentially minor to negligible negative indirect impact on solid waste disposal (caused by an increase in the amount of solid waste disposed via regular equipment maintenance). Nevertheless, that may be offset by a positive impact on solid waste disposal (caused by decreasing the amount of solid waste generated via crashes).
The beneficial impacts of the proposed rulemaking—most importantly the positive impacts on public health and safety in addition to positive indirect impacts on aspects of the physical and human environment—are in contrast to the No-Action Alternative, which has the potential to negatively impact most of the resources evaluated in the draft environmental assessment. Note that the No-Action Alternative is evaluated from a dynamic perspective, which considers both short- and long-run effects. While in the short run the No-Action Alternative has no impact (since no regulations change), there are potential impacts in the long run, because growth in intermodal transportation is assumed to continue.
FMCSA seeks comment on the draft environmental assessment.
FMCSA has analyzed this action under Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” The agency has determined that it is not a “significant energy action” under that order because it does not appear to be economically significant (i.e., a cost of more than $120.7 million in a single year) based upon analyses performed at this stage of the rulemaking process, and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
This proposed rule does not impose an unfunded mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532
This rulemaking would meet applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, entitled “Civil Justice Reform,” to minimize litigation, eliminate ambiguity, and reduce burden.
FMCSA has analyzed this section under Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks.” The agency does not believe this rulemaking would be an economically significant rule, nor does it concern an environmental risk to health or safety that may disproportionately affect children.
This rulemaking would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, entitled “Governmental Actions and Interference with Constitutionally Protected Property Rights.”
FMCSA has analyzed this rulemaking action in accordance with the principles and criteria of Executive Order 13132, entitled “Federalism,” and determined that it has federalism implications within the meaning of the Order.
The Federalism Order applies to “policies that have federalism implications,” which it defines as regulations and other actions “that have substantial direct effects on the States, on the relationship between the national government and the States, and on the distribution of power and responsibilities among the various levels of government.” Sec. 1(a). The key concept here is “substantial direct effects on the States.”
Section 31151(d) preempts “a law, regulation, order, or other requirement of a State, a political subdivision of a State, or a tribal organization relating to commercial motor vehicle safety” if it “exceeds or is inconsistent with a requirement imposed under or pursuant to” 49 U.S.C. 31151. In other words, FMCSA's final rule establishing maintenance and related requirements for intermodal equipment will preempt any State or local law or regulation on the same subject.
Nonetheless, there are exceptions to this principle. “[A] State requirement for the periodic inspection of intermodal chassis by intermodal equipment providers that was in effect on January 1, 2005” is preempted on the effective date of the final rule adopted under this proceeding [section 31151(e)(1)] unless, notwithstanding section 31151(d), the Secretary of Transportation “determines that the State requirement is as effective as the Federal requirement and does not unduly burden interstate commerce” [section 31151(e)(2)(A)]. A State must request a non-preemption determination before the effective date of the FMCSA final rule [section 31151(e)(2)(B)], and no subsequent amendment to a non-preempted requirement may take effect unless it is first submitted to the Secretary, who must find that the amendment is no less effective than the FMCSA requirements and does not unduly burden interstate commerce [section 31151(e)(2)(C)].
Section 31151 clearly has preemptive effect. Although most of the States which adopted statutes regulating the maintenance of intermodal equipment did not enforce them for several years, section 31151 will foreclose the opportunity for States to enact future legislation on this subject which is inconsistent with the Agency's regulations. We believe this constitutes a “substantial direct effect[ ] on the States.” However, section 31151 does not have “substantial direct effects * * * on the relationship between the national government and the States or on the distribution of power and responsibilities among the various levels of government.” The intermodal equipment affected by this rulemaking operates in interstate commerce. The regulation of interstate commerce is constitutionally and historically vested in the Federal government, not the States. The assertion of Federal authority in this area does not change the traditional relationship between the national government and the States, nor does it affect the constitutional and practical distribution of power and responsibilities among the various levels of government.
Section 3(b) of the Federalism Order provides that “[n]ational action limiting the policymaking discretion of the States shall be taken only where there is constitutional and statutory authority for the action and the national activity is appropriate in light of the presence of a problem of national significance.” The constitutional authority and statutory mandate for this rulemaking are clear and explicit.
FMCSA has determined that this action would have a substantial direct effect on States. However, because existing State laws on the maintenance of intermodal equipment are so few and narrow in scope, the Agency has also determined that this action would not impose substantial additional costs or burdens on the States.
The Agency will consult with the States on the Federalism implications of this proposed regulation, as required by E.O. 13132. Also, State and local governments will have an additional opportunity to address this issue during the comment period as indicated under
A regulation identification number (RIN) is assigned to each regulatory section listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN shown on the first page of this document can be used to cross-reference this section with the Unified Agenda.
Administrative practice and procedure, Highway safety, Intermodal equipment roadability, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Administrative practice and procedure, Brokers, Freight forwarders, Hazardous materials, Intermodal equipment provider, Highway safety, Motor carriers, Motor vehicle safety, Penalties.
Highway safety, Intermodal equipment providers, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Highway safety, Intermodal equipment providers, Motor carriers.
Highway safety, Intermodal equipment providers, Motor carriers, Motor vehicle safety.
Highway safety, Intermodal equipment providers, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, FMCSA proposes to amend Subchapter B, Chapter III of Title 49 of the Code of the Code of Federal Regulations, as set forth below:
1. Revise the authority citation for part 385 to read as follows:
49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113, 13901–13905, 31136, 31144, 31148, 31151, and 31502; Sec. 350 of Pub. L. 107–87; and 49 CFR 1.73.
2. Amend § 385.1 by adding paragraph (e) to read as follows:
(e) Subpart F of this Part establishes procedures to perform a roadability review of intermodal equipment providers to determine their compliance with the applicable Federal Motor Carrier Safety Regulations (FMCSRs).
3. Amend part 385 by adding a new Subpart F—Intermodal Equipment Providers (§§ 385.501–383.503) to read as follows:
(a) FMCSA will perform roadability reviews of intermodal equipment providers, as defined in § 390.5 of this chapter. A roadability review is a review by the FMCSA of the intermodal equipment provider's compliance with the applicable FMCSRs.
(b) FMCSA will evaluate the results of the roadability review using the criteria in Appendix A to this Part as they relate to compliance with Parts 390, 393, and 396 of this chapter.
(a) FMCSA will not assign a safety rating to an intermodal equipment provider. However, the FMCSA may cite the intermodal equipment provider for violations of Parts 390, 393, and 396 of this chapter and may impose civil penalties.
(b) FMCSA may prohibit the intermodal equipment provider from tendering specific items of equipment determined to constitute an imminent hazard.
(c) FMCSA may prohibit an intermodal equipment provider from tendering any intermodal equipment from a particular location or multiple locations if the agency determines that the intermodal equipment provider's compliance with the FMCSRs is so deficient that the provider's continued operation constitutes an imminent hazard to highway safety.
4. The authority citation for part 386 continues to read as follows:
49 U.S.C. 113, chapters 5, 51, 59, 131–141, 145–149, 311, 313, and 315; sec. 206, Pub. L. 106–159, 113 Stat. 1763; and 49 CFR 1.45 and 1.73.
5. Revise the heading of part 386 to read as set forth above.
6. Revise § 386.1 to read:
(a) The rules in this part govern proceedings before the Assistant Administrator, who also acts as the Chief Safety Officer of the Federal Motor Carrier Safety Administration (FMCSA), under applicable provisions of the Federal Motor Carrier Safety Regulations (49 CFR parts 350–399), including the commercial regulations (49 CFR parts 360–379), and the Hazardous Materials Regulations (49 CFR parts 171–180).
(b) The purpose of the proceedings is to enable the Assistant Administrator:
(1) To determine whether a motor carrier, intermodal equipment provider (as defined in § 390.5 of this chapter), property broker, freight forwarder, or its agents, employees, or any other person subject to the jurisdiction of FMCSA, has failed to comply with the provisions or requirements of applicable statutes and the corresponding regulations; and
(2) To issue an appropriate order to compel compliance with the statute or regulation, assess a civil penalty, or both, if such violations are found.
7. Revise § 386.83 to read as follows:
(a)(1)
(2)
(3)
(b)
(2) The notice will order the CMV owner or operator, including an intermodal equipment provider, to show cause why it should not be prohibited from operating in interstate commerce on the 91st day after the date specified for payment. The prohibition may be avoided only by submitting to the Chief Safety Officer:
(i) Evidence that the respondent has paid the entire amount due; or
(ii) Evidence that the respondent has filed for bankruptcy under chapter 11, title 11, United States Code. Respondents in bankruptcy must also submit the information required by paragraph (d) of this section.
(3) The notice will be delivered by certified mail or commercial express service. If a CMV owner's or operator's, including an intermodal equipment provider's, principal place of business is in a foreign country, the notice will be delivered to the CMV owner's or operator's designated agent.
(c) A CMV owner or operator, including an intermodal equipment provider, that continues to operate in interstate commerce in violation of this section may be subject to additional
(d) This section does not apply to any person who is unable to pay a civil penalty because the person is a debtor in a case under 11 U.S.C. chapter 11. CMV owners or operators, including intermodal equipment providers, in bankruptcy proceedings under chapter 11 must provide the following information in their response to the FMCSA:
(1) The chapter of the Bankruptcy Code under which the bankruptcy proceeding is filed (i.e., chapter 7 or 11);
(2) The bankruptcy case number;
(3) The court in which the bankruptcy proceeding was filed; and
(4) Any other information requested by the agency to determine a debtor's bankruptcy status.
8. Revise the authority citation for part 390 to read as follows:
49 U.S.C. 508, 13301, 13902, 31133, 31136, 31151, 31502, 31504, and sec. 204, Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103–311, 108 Stat. 1673, 1677; sec. 217, Pub. L. 106–159, 113 Stat. 1748, 1767; and 49 CFR 1.73.
9. Amend § 390.3 by adding a new paragraph (h) to read:
(h)
(1) Subpart F, Intermodal Equipment Providers, of Part 385, Safety Fitness Procedures.
(2) Part 386, Rules of Practice for Motor Carrier, Intermodal Equipment Provider, Broker, Freight Forwarder, and Hazardous Materials Proceedings.
(3) Part 390, Federal Motor Carrier Safety Regulations; General,
(4) Part 393, Parts and Accessories Necessary for Safe Operation.
(5) Part 396, Inspection, Repair, and Maintenance.
10. Amend § 390.5 by adding, in alphabetical order, definitions for “
11. Revise § 390.15(a) to read as follows:
(a) Each motor carrier and intermodal equipment provider must do the following:
(1) Make all records and information pertaining to an accident available to an authorized representative or special agent of the Federal Motor Carrier Safety Administration, an authorized State or local enforcement agency representative, or authorized third party representative within such time as the request or investigation may specify.
(2) Give an authorized representative all reasonable assistance in the investigation of any accident including providing a full, true, and correct response to any question of the inquiry.
12. Amend § 390.19 by revising the section heading, the introductory text of paragraph (a), paragraph (b), the introductory text of paragraph (c), and paragraphs (d), (e), and (f) to read as follows:
(a) Each motor carrier that conducts operations in interstate commerce must file a Motor Carrier Identification Report, Form MCS–150. Each motor carrier that operates in intrastate commerce, and that requires a hazardous materials safety permit under part 385, subpart E of this chapter, must file a combined Motor Carrier Identification Report and HM Permit Application, Form MCS–150B. Each intermodal equipment provider that offers intermodal equipment for transportation in interstate commerce must file an Intermodal Equipment Provider Identification Report, Form MCS–150C. They must do so at the following times:
(b) The Motor Carrier Identification Report, Form MCS–150, the Combined Motor Carrier Identification Report and HM Permit Application, Form MCS–150B, and the Intermodal Equipment Provider Identification Report, Form MCS–150C, with complete instructions, are available from the FMCSA Web site at:
(c) The completed Motor Carrier Identification Report, Form MCS–150, Combined Motor Carrier Identification Report and HM Permit Application, Form MCS–150B, or Intermodal Equipment Provider Identification Report, Form MCS–150C must be filed with FMCSA Office of Information Management.
(d) Only the legal name or single trade name may be used on the motor carrier's or intermodal equipment provider's identification report (Form MCS–150, MCS–150B, or MCS–150C).
(e) A motor carrier or intermodal equipment provider is subject to the penalties prescribed in 49 U.S.C. 521(b)(2)(B) for—
(1) Failing to file a Motor Carrier Identification Report, Form MCS–150, the Combined Motor Carrier Identification Report and HM Permit Application, Form MCS–150B, or the Intermodal Equipment Provider Identification Report, Form MCS–150C.
(2) Furnishing misleading information or making false statements on the Form MCS–150, Form MCS–150B, or Form MCS–150C.
(f) Upon receipt and processing of the Motor Carrier Identification Report, Form MCS–150, the Combined Motor
(1) The motor carrier must display the number on each self-propelled CMV, as defined in § 390.5, along with additional information required by § 390.21.
(2) The intermodal equipment provider must display its assigned number on each unit of interchanged intermodal equipment.
13. Amend § 390.21 by revising the section heading and paragraphs (a), (b)(2), and (c)(1) to read as follows:
(a)
(b) * * *
(2) The identification number issued by FMCSA to the motor carrier or intermodal equipment provider, preceded by the letters “USDOT.”
(c) * * *
(1) Appear on both sides of the self-propelled CMV or interchanged intermodal equipment;
14. Amend part 390 by adding a new subpart C (§§ 390.40–390.46) to read as follows:
An intermodal equipment provider must—
(a) Identify its operations to the FMCSA by filing the form required by § 390.19.
(b) Mark its intermodal equipment with the USDOT Number or other identifying number unique to that entity as required by § 390.21.
(c) Systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, in a manner consistent with § 396.3(a)(1), as applicable, all intermodal equipment intended for interchange with a motor carrier.
(d) Maintain a system of driver vehicle inspection reports submitted to the intermodal equipment provider as required by § 396.11 of this chapter.
(e) Maintain a system of inspection, repair, and maintenance records as required by § 396.12 of this chapter for equipment intended for interchange with a motor carrier.
(f) Periodically inspect equipment intended for interchange, as required under § 396.17 of this chapter.
(g) At facilities at which the intermodal equipment provider makes intermodal equipment available for interchange, have procedures in place, and provide sufficient space, for drivers to perform a pre-trip inspection of tendered intermodal equipment.
(h) At facilities at which the intermodal equipment provider makes intermodal equipment available for interchange, develop and implement procedures to repair any equipment damage, defects, or deficiencies identified as part of a pre-trip inspection, or replace the equipment, prior to the driver's departure. The repairs or replacement must be made in a timely manner after being notified by a driver of such damage, defects, or deficiencies.
(i) Refrain from placing intermodal equipment in service on the public highways if that equipment has been found to pose an imminent hazard, as defined in § 386.72(b)(1) of this chapter.
(a) An intermodal equipment provider or its agent may electronically file questions or concerns at
(b) A motor carrier or its agent may electronically file questions or concerns at
(c) An intermodal equipment provider, or its agent, may request FMCSA to investigate a motor carrier believed to be in noncompliance with responsibilities under 49 U.S.C. 31151 or the implementing regulations in this subchapter regarding interchange of intermodal equipment by contacting the appropriate FMCSA Field Office.
(d) A motor carrier or its agent may request FMCSA to investigate an intermodal equipment provider believed to be in noncompliance with responsibilities under 49 U.S.C. 31151 or the implementing regulations in this subchapter regarding interchange of intermodal equipment by contacting the appropriate FMCSA Field Office.
(a) Before operating intermodal equipment over the road, the driver accepting the equipment must inspect the equipment components listed in § 392.7(b) of this chapter and must be satisfied that they are in good working order.
(b) A driver or motor carrier transporting intermodal equipment must report to the intermodal equipment provider, or its designated agent, any known damage or deficiencies in the intermodal equipment at the time the equipment is returned to the provider or the provider's designated agent. The report must include, at a minimum, the items in § 396.11(a)(2) of this chapter.
(a)
(b) Pre-existing State requirements—(1)
(i)
(ii) Application required. Paragraph (b)(2)(i) of this section applies to a State requirement only if the State applies to the Administrator for a determination under this subparagraph with respect to the requirement before the effective date of the final rule. The Administrator will make a determination with respect to any such application within 6 months after the date on which the Administrator receives the application.
(iii) Amended State requirements.—If a State amends a regulation for which it previously received a nonpreemption determination from the Administrator under paragraph (b)(2)(i) of this section, it must apply for a determination of nonpreemption for the amended regulation. Any amendment to a State requirement not preempted under this subsection because of a determination by the Administrator may not take effect unless it is submitted to the Agency before the effective date of the amendment, and the Administrator determines that the amendment would not cause the State requirement to be less effective than the FMCSA final rule on “Requirements for Intermodal Equipment Providers and Motor Carriers and Drivers Operating Intermodal Equipment” and would not unduly burden interstate commerce.
15. Revise the authority citation for Part 392 to read as follows:
49 U.S.C. 13902, 31136, 31151, 31502; and 49 CFR 1.73.
16. Amend § 392.7 by designating the existing text as paragraph (a) and adding a new paragraph (b) to read as follows:
(b) Drivers preparing to transport intermodal equipment must additionally make a visual or audible inspection of the following components before operating that equipment, and must be satisfied that they are in good working order before the equipment is operated over the road:
Rails or support frames.
Tie down bolsters.
Locking pins, clevises, clamps, or hooks.
Sliders or sliding frame lock.
17. Revise the authority citation for part 393 to read as follows:
49 U.S.C. 322, 31136, 31151 and 31502; sec. 1041(b), Pub. L. 102–240, 105 Stat. 1914, 1993 (1991); and 49 CFR 1.73.
18. Revise § 393.1 to read as follows:
(a)(1) Every motor carrier and its employees must be knowledgeable of and comply with the requirements and specifications of this part.
(2) Every intermodal equipment provider and its employees responsible for the inspection, repair, and maintenance of intermodal equipment interchanged to motor carriers must be knowledgeable of and comply with the applicable requirements and specifications of this part.
(b) No motor carrier may operate a commercial motor vehicle, or cause or permit such a vehicle to be operated, unless it is equipped in accordance with the requirements and specifications of this part.
(c) No intermodal equipment provider may operate intermodal equipment, or cause or permit such equipment to be operated, unless it is equipped in accordance with the requirements and specifications of this part.
19. Revise the authority citation for part 396 to read as follows:
49 U.S.C. 31133, 31136, 31151, and 31502; and 49 CFR 1.73.
20. Revise § 396.1 to read as follows:
(a) Every motor carrier, its officers, drivers, agents, representatives, and employees directly concerned with the inspection or maintenance of motor vehicles must be knowledgeable of and comply with the rules of this part.
(b) Every intermodal equipment provider, its officers, agents, representatives, and employees directly concerned with the inspection or maintenance of intermodal equipment interchanged to motor carriers must be knowledgeable of and comply with the rules of this part.
21. Amend § 396.3 by revising the introductory text of paragraphs (a) and (b) to read as follows:
(a)
(b)
22. Amend § 396.11 by revising paragraph (a) to read as follows:
(a)
(1)
(2)
23. Add § 396.12 to read as follows as follows:
(a)
(1) Affect the safety of operation of the intermodal equipment, or
(2) Result in its mechanical breakdown while transported on public roads.
(b)
(1) Name of the motor carrier responsible for the operation of the intermodal equipment at the time the damage, defects, or deficiencies were discovered by, or reported to, the driver.
(2) Motor carrier's USDOT Number or other unique identifying number.
(3) Date and time the report was submitted.
(4) All damage, defects, or deficiencies reported to the equipment provider by the motor carrier or its driver.
(c)
(2) Each intermodal equipment provider or its agent must document whether the reported damage, defects, or deficiencies have been repaired, or whether repair is unnecessary, before the vehicle is operated again.
(d)
24. Revise §§ 396.17, 396.19, 396.21, 396.23, and 396.25 to read as follows:
(a) Every commercial motor vehicle must be inspected as required by this section. The inspection must include, at a minimum, the parts and accessories set forth in appendix G of this subchapter. The term commercial motor vehicle includes each vehicle in a combination vehicle. For example, for a tractor semitrailer, full trailer combination, the tractor, semitrailer, and the full trailer (including the converter dolly if so equipped) must each be inspected.
(b) Except as provided in § 396.23 and this paragraph, motor carriers must inspect or cause to be inspected all motor vehicles subject to their control. Intermodal equipment providers must inspect or cause to be inspected intermodal equipment that is interchanged or intended for interchange to motor carries in intermodal transportation.
(c) A motor carrier must not use a commercial motor vehicle, and an intermodal equipment provider must not tender equipment to a motor carrier for interchange, unless each component identified in appendix G to this subchapter has passed an inspection in accordance with the terms of this section at least once during the preceding 12 months and documentation of such inspection is on the vehicle. The documentation may be:
(1) The inspection report prepared in accordance with § 396.21(a), or
(2) Other forms of documentation, based on the inspection report (e.g., sticker or decal), that contain the following information:
(i) The date of inspection;
(ii) Name and address of the motor carrier, intermodal equipment provider, or other entity where the inspection report is maintained;
(iii) Information uniquely identifying the vehicle inspected if not clearly marked on the motor vehicle; and
(iv) A certification that the vehicle has passed an inspection in accordance with § 396.17.
(d) A motor carrier may perform the required annual inspection for vehicles under the carrier's control that are not subject to an inspection under § 396.23(b)(1). An intermodal equipment provider may perform the required annual inspection for intermodal equipment interchanged or intended for interchange to motor carriers that is not subject to an inspection under § 396.23(b)(1).
(e) In lieu of the self inspection provided for in paragraph (d) of this section, a motor carrier or intermodal equipment provider responsible for the inspection may choose to have a commercial garage, fleet leasing company, truck stop, or other similar commercial business perform the inspection as its agent, provided that business operates and maintains facilities appropriate for commercial vehicle inspections and it employs qualified inspectors, as required by § 396.19.
(f) Vehicles passing roadside or periodic inspections performed under the auspices of any State government or equivalent jurisdiction or the FMCSA, meeting the minimum standards contained in appendix G of this subchapter, are considered to have met the requirements of an annual inspection for a period of 12 months commencing from the last day of the month in which the inspection was performed. If a vehicle is subject to a mandatory State inspection program, as provided in § 396.23(b)(1), a roadside inspection may only be considered equivalent if it complies with the requirements of that program.
(g) It is the responsibility of the motor carrier or intermodal equipment provider to ensure that all parts and accessories on vehicles for which they are responsible that do not meet the minimum standards set forth in appendix G to this subchapter are repaired promptly.
(h) Failure to perform properly the annual inspection required by this section causes the motor carrier or intermodal equipment provider to be subject to the penalty provisions of 49 U.S.C. 521(b).
(a) Motor carriers and intermodal equipment providers must ensure that the individual(s) performing an annual inspection under § 396.17(d) or (e) is (are) qualified as follows:
(1) Understands the inspection criteria set forth in part 393 and
(2) Is knowledgeable of and has mastered the methods, procedures, tools and equipment used when performing an inspection; and
(3) Is capable of performing an inspection by reason of experience, training, or both as follows:
(i) Successfully completed a State or Federal-sponsored training program or has a certificate from a State or Canadian Province that qualifies the person to perform commercial motor vehicle safety inspections, or
(ii) Has a combination of training and/or experience totaling at least 1 year. Such training and/or experience may consist of:
(A) Participation in a commercial motor vehicle manufacturer-sponsored training program or similar commercial training program designed to train students in commercial motor vehicle operation and maintenance;
(B) Experience as a mechanic or inspector in a motor carrier or intermodal equipment maintenance program;
(C) Experience as a mechanic or inspector in commercial motor vehicle maintenance at a commercial garage, fleet leasing company, or similar facility; or
(D) Experience as a commercial vehicle inspector for a State, Provincial, or Federal Government.
(b) Motor carriers and intermodal equipment providers must retain evidence of an individual's qualifications under this section. They must retain this evidence for the period during which the individual is performing annual motor vehicle inspections for the motor carrier or intermodal equipment provider, and for one year thereafter. However, motor carriers and intermodal equipment providers do not have to maintain documentation of inspector qualifications for those inspections performed either as part of a State periodic inspection program or at the roadside as part of a random roadside inspection program.
(a) The qualified inspector performing the inspection must prepare a report that:
(1) Identifies the individual performing the inspection;
(2) Identifies the motor carrier operating the vehicle or intermodal equipment provider intending to interchange the vehicle to a motor carrier;
(3) Identifies the date of the inspection;
(4) Identifies the vehicle inspected;
(5) Identifies the vehicle components inspected and describes the results of the inspection, including the identification of those components not meeting the minimum standards set forth in appendix G to this subchapter; and
(6) Certifies the accuracy and completeness of the inspection as complying with all the requirements of this section.
(b)(1) The original or a copy of the inspection report must be retained by the motor carrier, intermodal equipment provider, or other entity that is responsible for the inspection for a period of fourteen months from the date of the inspection report. The original or a copy of the inspection report must be retained where the vehicle is either housed or maintained.
(2) The original or a copy of the inspection report must be available for inspection upon demand of an authorized Federal, State, or local official.
(3)
(a) A motor carrier or an intermodal equipment provider may meet the requirements of § 396.17 through a State or other jurisdiction's roadside inspection program. The inspection must have been performed during the preceding 12 months. If using the roadside inspection, the motor carrier or intermodal equipment provider must retain a copy of an annual inspection report showing that the inspection was performed in accordance with the minimum periodic inspection standards set forth in appendix G to this subchapter. If the motor carrier operating the commercial vehicle is not the party directly responsible for its maintenance, the motor carrier must deliver the roadside inspection report to the responsible party in a timely manner. When accepting such an inspection report, the motor carrier or intermodal equipment provider must ensure that the report complies with the requirements of § 396.21(a).
(b)(1) If a commercial motor vehicle is subject to a mandatory State inspection program that is determined by the Administrator to be as effective as § 396.17, the motor carrier or intermodal equipment provider must meet the requirement of § 396.17 through that State's inspection program. Commercial motor vehicle inspections may be conducted by State personnel, at State authorized commercial facilities, or by the motor carrier or intermodal equipment provider itself under the auspices of a State authorized self-inspection program.
(2) Should the FMCSA determine that a State inspection program, in whole or in part, is not as effective as § 396.17, the motor carrier or intermodal equipment provider must ensure that the periodic inspection required by § 396.17 is performed on all commercial motor vehicles under its control in a manner specified in § 396.17.
(a) Motor carriers and intermodal equipment providers must ensure that all inspections, maintenance, repairs or service to the brakes of its commercial motor vehicles, are performed in compliance with the requirements of this section.
(b) For purposes of this section, brake inspector means any employee of a motor carrier or intermodal equipment provider who is responsible for ensuring all brake inspections, maintenance, service, or repairs to any commercial motor vehicle, subject to the motor carrier's or intermodal equipment provider's control, meet the applicable Federal standards.
(c) No motor carrier or intermodal equipment provider may require or permit any employee who does not meet the minimum brake inspector qualifications of paragraph (d) of this section to be responsible for the inspection, maintenance, service, or repairs of any brakes on its commercial motor vehicles.
(d) The motor carrier or intermodal equipment provider must ensure that each brake inspector is qualified as follows:
(1) Understands the brake service or inspection task to be accomplished and can perform that task;
(2) Is knowledgeable of and has mastered the methods, procedures, tools and equipment used when performing an assigned brake service or inspection task; and
(3) Is capable of performing the assigned brake service or inspection by reason of experience, training or both as follows:
(i) Has successfully completed an apprenticeship program sponsored by a State, a Canadian Province, a Federal agency or a labor union, or a training program approved by a State, Provincial, or Federal agency, or has a certificate from a State or Canadian Province that qualifies the person to perform the assigned brake service or inspection task (including passage of Commercial Driver's License air brake tests in the case of a brake inspection);
(ii) Has brake-related training or experience or a combination thereof totaling at least one year. Such training or experience may consist of:
(A) Participation in a training program sponsored by a brake or vehicle manufacturer or similar commercial training program designed to train students in brake maintenance or inspection similar to the assigned brake service or inspection tasks; or
(B) Experience performing brake maintenance or inspection similar to the assigned brake service or inspection task in a motor carrier or intermodal equipment provider maintenance program; or
(C) Experience performing brake maintenance or inspection similar to the assigned brake service or inspection task at a commercial garage, fleet leasing company, or similar facility.
(e) No motor carrier or intermodal equipment provider may employ any person as a brake inspector unless the evidence of the inspector's qualifications required under this section is maintained by the motor carrier or intermodal equipment provider at its principal place of business, or at the location at which the brake inspector is employed. The evidence must be maintained for the period during which the brake inspector is employed in that capacity and for one year thereafter. However, motor carriers and intermodal equipment providers do not have to maintain evidence of qualifications to inspect air brake systems for such inspections performed by persons who have passed the air brake knowledge and skills test for a Commercial Driver's License.
25. Amend Appendix G to Subchapter B—Minimum Periodic Inspection Standards, in Paragraph 6. Safe Loading, by adding new subparagraph 6.c to read as follows:
6. Safe loading.
c. Container securement devices on intermodal equipment—All devices used to secure an intermodal container to a chassis, including rails or support frames, tiedown bolsters, locking pins, clevises, clamps, and hooks that are cracked, broken, loose, or missing.
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The Pipeline and Hazardous Materials Safety Administration (PHMSA), in consultation with the Federal Railroad Administration (FRA) and the Transportation Security Administration (TSA), is proposing to revise the current requirements in the Hazardous Materials Regulations applicable to the safe and secure transportation of hazardous materials transported in commerce by rail. Specifically, we are proposing to require rail carriers to compile annual data on specified shipments of hazardous materials, use the data to analyze safety and security risks along rail transportation routes where those materials are transported, assess alternative routing options, and make routing decisions based on those assessments. We are also proposing clarifications of the current security plan requirements to address en route storage, delays in transit, delivery notification, and additional security inspection requirements for hazardous materials shipments. In today's edition of the
Submit comments by February 20, 2007. To the extent possible, we will consider late-filed comments as we develop a final rule.
You may submit comments identified by the docket number RSPA–04–18730 by any of the following methods:
•
•
•
•
•
While all comments should be sent to DOT's Docket Management System (DMS), comments or those portions of comments PHMSA determines to include trade secrets, confidential commercial information, or sensitive security information (SSI) will not be placed in the public docket and will be handled separately. If you believe your comments contain trade secrets, confidential commercial information, or SSI, those comments or the relevant portions of those comments should be appropriately marked so that DOT may make a determination. PHMSA procedures in 49 CFR part 105 establish a mechanism by which commenters may request confidentiality.
In accordance with 49 CFR 105.30, you may ask PHMSA to keep information confidential using the following procedures: (1) Mark “confidential” on each page of the original document you would like to keep confidential; (2) send DMS both the original document and a second copy of the original document with the confidential information deleted; and (3) explain why the information is confidential (such as a trade secret, confidential commercial information, or SSI). In your explanation, you should provide enough information to enable PHMSA to determine whether the information provided is protected by law and must be handled separately.
In addition, for comments or portions of comments that you believe contain SSI as defined in 49 CFR 15.7, you should comply with Federal regulations governing restrictions on the disclosure of SSI. See 49 CFR 1520.9 and 49 CFR 15.9, Restrictions on the disclosure of sensitive security information. For example, these sections restrict the sharing of SSI to those with a need to know, set out the requirement to mark the information as SSI, and address how the information should be disposed. Note also when mailing in or using a special delivery service to send comments containing SSI, comments should be wrapped in a manner to prevent the information from being read. PHMSA and TSA may perform concurrent reviews on requests for designations as SSI.
After reviewing your request for confidentiality and the information provided, PHMSA will analyze applicable laws and regulations to decide whether to treat the information as confidential. PHMSA will notify you of the decision to grant or deny confidentiality. If PHMSA denies confidentiality, you will be provided an opportunity to respond to the denial before the information is publicly disclosed. PHMSA will reconsider its decision to deny confidentiality based on your response.
Regarding comments not marked as confidential, prior to posting comments received in response to this notice in the public docket, PHMSA will review all comments, whether or not they are identified as confidential, to determine if the submission or portions of the submission contain information that should not be made available to the general public. PHMSA will notify you if the agencies make such a determination relative to your comment. If, prior to submitting your comment, you have any questions concerning the procedures for determining confidentiality or security sensitivity, you may call one of the individuals listed below under
William Schoonover, (202) 493–6229, Office of Safety Assurance and Compliance, Federal Railroad Administration; or Susan Gorsky, (202) 366–8553, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration.
The Federal hazardous materials transportation law (Federal hazmat law, 49 U.S.C. 5101
The Hazardous Materials Regulations (HMR: 49 CFR parts 171–180) promulgated by PHMSA under the mandate in section 5103(b) govern safety aspects, including security, of the transportation of hazardous material the Secretary considers appropriate. Consistent with this security authority, in March 2003, PHMSA adopted new transportation security requirements for offerors and transporters of certain classes and quantities of hazardous materials and new security training requirements for hazardous materials employees. The security regulations, which are explained in more detail below, require offerors and carriers to develop and implement security plans and to train their employees to recognize and respond to possible security threats.
When PHMSA adopted its security regulations, shippers and rail carriers were informed these regulations were “the first step in what may be a series of rulemakings to address the security of hazardous materials shipments.” 68 FR 14509, 14511 (March 25, 2003). PHMSA also noted “TSA is developing regulations that are likely to impose additional requirements beyond those established in this final rule,” and stated it would “consult and coordinate with TSA concerning security-related hazardous materials transportation regulations * * *” 68 FR 14511.
Under the Aviation and Transportation Security Act (ATSA), Public Law 107–71, 115 Stat. 597 (November 19, 2001), and delegated authority from the Secretary of Homeland Security (DHS), the Assistant Secretary of DHS for TSA has broad responsibility and authority for “security in all modes of transportation * * *”
TSA's authority over the security of transportation stems from several provisions of 49 U.S.C. 114. In executing its responsibilities and duties, TSA is specifically empowered to develop policies, strategies and plans for dealing with threats to transportation.
In sum, TSA's authority with respect to transportation security is comprehensive and supported with specific powers related to the development and enforcement of regulations, security directives, security plans, and other requirements. Accordingly, under this authority, TSA may identify a security threat to any mode of transportation, develop a measure for dealing with that threat, and enforce compliance with that measure.
As is evident from the above discussion, DHS and DOT share responsibility for hazardous materials transportation security. The two departments consult and coordinate on security-related hazardous materials transportation requirements to ensure they are consistent with the overall security policy goals and objectives established by DHS and the regulated industry is not confronted with inconsistent security guidance or requirements promulgated by multiple agencies. To that end, on August 7, 2006, PHMSA and TSA signed an annex to the September 28, 2004 DOT–DHS Memorandum of Understanding (MOU) on Roles and Responsibilities. The purpose of the annex is to delineate clear lines of authority and responsibility and promote communications, efficiency, and non-duplication of effort through cooperation and collaboration in the area of hazardous materials transportation security based on existing legal authorities and core competencies. Similarly, on September 28, 2006, FRA and TSA signed an annex to address each agency's roles and responsibilities for rail transportation security. The FRA–TSA annex recognizes that FRA has authority over every area of railroad safety (including security) and that FRA enforces PHMSA's hazardous materials regulations. The FRA–TSA annex includes procedures for coordinating (1) planning, inspection, training, and enforcement activities; (2) criticality and vulnerability assessments and security reviews; (3) communicating with affected stakeholders; and (4) use of personnel and resources. Copies of the two annexes are available for review in the public docket for this rulemaking.
Consistent with the principles outlined in the PHMSA–TSA annex, PHMSA and FRA collaborated with TSA to develop this NPRM. In today's edition of the
Hazardous materials are essential to the economy of the United States and the well being of its people. Hazardous materials fuel motor vehicles, purify drinking water, and heat and cool homes and offices. Hazardous materials are used for farming and medical applications, and in manufacturing, mining, and other industrial processes. Railroads carry over 1.7 million shipments of hazardous materials annually, including millions of tons of explosive, poisonous, corrosive, flammable and radioactive materials.
The need for hazardous materials to support essential services means transportation of highly hazardous materials is unavoidable. However, these shipments frequently move through densely populated or environmentally sensitive areas where the consequences of an incident could be loss of life, serious injury, or significant environmental damage.
The same characteristics of hazardous materials causing concern in the event of an accidental release also make them attractive targets for terrorism or sabotage. Hazardous materials in transportation are frequently transported in substantial quantities and are potentially vulnerable to sabotage or misuse. Such materials are already mobile and are frequently transported in proximity to large population centers. Further, security of hazardous materials in the transportation environment poses unique challenges as compared to security at fixed facilities. Finally, hazardous materials in transportation often bear clear identifiers to ensure their safe and appropriate handling during transportation and to facilitate identification and effective emergency response in the event of an accident or release.
A primary safety and security concern related to the rail transportation of hazardous materials is the prevention of a catastrophic release or explosion in proximity to densely populated areas, including urban areas and events or venues with large numbers of people in attendance. Also of major concern is the release or explosion of a rail car in proximity to iconic buildings, landmarks, or environmentally significant areas. Such a catastrophic event could be the result of an accident—such as the January 6, 2005 derailment and release of chlorine in Graniteville, South Carolina—or a deliberate act of terrorism. The causes of intentional and unintentional releases of hazardous material are very different; however, in either case the potential consequences of such releases are significant. Indeed, the consequences of an intentional release of hazardous material by a criminal or terrorist action are likely to be more severe than the consequences of an unintentional release because an intentional action is designed to inflict the most damage possible.
Subpart I to Part 172 of the HMR requires persons who offer certain hazardous materials for transportation or transport certain hazardous materials in commerce to develop and implement security plans. Security awareness training is also required of all hazardous materials employees (hazmat employees), and in-depth security training is required of hazmat employees or persons required to develop and implement security plans.
The HMR require persons who offer for transportation or transport the following hazardous materials to develop and implement security plans:
(1) A highway route-controlled quantity of a Class 7 (radioactive) material, as defined at 49 CFR § 173.403, in a motor vehicle, rail car, or freight container;
(2) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 (explosive) material in a motor vehicle, rail car, or freight container;
(3) More than one L (1.06 qt) per package of a material poisonous by inhalation, as defined at 49 CFR § 171.8, that meets the criteria for Hazard Zone A, as specified in 49 CFR §§ 173.116(a) or 173.133(a);
(4) A shipment of a quantity of hazardous materials in a bulk packaging having a capacity equal to or greater than 13,248 L (3,500 gallons) for liquids or gases or more than 13.24 cubic meters (468 cubic feet) for solids;
(5) A shipment in other than a bulk packaging of 2,268 kg (5,000 pounds) gross weight or more of one class of hazardous materials for which placarding of a vehicle, rail car, or freight container is required for that class under the provisions of subpart F of this part;
(6) A select agent or toxin regulated by the Centers for Disease Control and Prevention under 42 CFR Part 73; or
(7) A quantity of hazardous material that requires placarding under the provisions of subpart F of 49 CFR Part 172.
Thus, in accordance with Subpart I of Part 172 of the HMR, rail carriers transporting any of the above materials in commerce must have developed and implemented security plans. The security plan must include an assessment of possible transportation security risks and appropriate measures to address the assessed risks. Specific measures implemented as part of the plan may vary commensurate with the level of threat at a particular time. At a minimum, the security plan must address personnel security, unauthorized access, and en route security. To address personnel security, the plan must include measures to confirm information provided by job applicants for positions involving access to and handling of the hazardous materials covered by the plan. To address unauthorized access, the plan must include measures to address the risk of unauthorized persons gaining access to materials or transport conveyances being prepared for transportation. To address en route security, the plan must include measures to address security risks during transportation, including the security of shipments stored temporarily en route to their destinations.
As indicated above, the HMR set forth general requirements for a security plan's components rather than a prescriptive list of specific items that must be included. The HMR set a performance standard providing offerors and carriers with the flexibility necessary to develop security plans addressing their individual circumstances and operational environment. Accordingly, each security plan will differ because it will be based on an offeror's or a carrier's individualized assessment of the security risks associated with the specific hazardous materials it ships or transports and its unique circumstances and operational environment.
Offerors and carriers in all modes were required to have security plans in place by September 25, 2003. New shippers and carriers must have security plans in place before they begin operations. To assist the industry in complying with the security plan requirements, PHMSA developed a security plan template to illustrate how risk management methodology could be used to identify areas in the transportation process where security procedures should be enhanced within the context of an overall risk management strategy. The security template is posted in the docket and on the PHMSA website at
With respect to delays in transportation, rail carriers are currently required to expedite the movement of hazardous materials shipments pursuant to § 174.14 of the HMR. Each shipment of hazardous materials must be forwarded “promptly and within 48 hours (Saturdays, Sundays, and holidays excluded)” after acceptance of the shipment by the rail carrier. If only biweekly or weekly service is performed, the carrier must forward a shipment of hazardous materials in the first available train. Additionally, carriers are prohibited from holding, subject to forwarding orders, tank cars loaded with Division 2.1 (flammable gas), Division 2.3 (poisonous gas) or Class 3 (flammable liquid) materials. The purpose of § 174.14 is to help ensure the prompt delivery of hazardous materials shipments and to minimize the time materials spend in transportation, thus minimizing the exposure of hazmat shipments to accidents, derailments, unintended releases, or tampering.
Apart from the requirements in § 174.14 to expedite the movement of hazardous materials, the HMR do not include specific routing requirements for rail hazmat shipments, e.g., to route shipments around or away from particular geographic areas. For example, in promulgating its March 2003 security regulations under Docket HM–232, PHMSA specifically required rail carriers to address en route security; however, PHMSA deliberately decided to leave the specifics of hazardous materials rail routing decisions, and other en route security matters covered by transportation security plans, to the judgment of rail carriers. Accordingly, the HM–232 security regulations preempt, among other things, any state, local, or tribal laws and regulations prescribing or restricting the routing of rail hazardous materials shipments. 49 U.S.C. 5125 and 20106. This proposed rule does not change this general approach to route-related requirements for rail hazardous materials shipments. Because the nation's largest rail carriers operate across many states, and the operating conditions in each location can vary greatly, this approach gives carriers the ability to follow a consistent, nationally-applicable Federal standard while also tailoring safety and security measures to the particular circumstances of individual locations.
The rail industry, through the Association of American Railroads (AAR), has developed a detailed protocol on recommended railroad operating practices for the transportation of hazardous materials. The AAR issued the most recent version of this document, known as Circular OT–55–I, on August 26, 2005. The Circular details railroad operating practices for: (1) Designating trains as “key trains” containing (i) five tank car loads or more of poison inhalation hazard (PIH) materials, (ii) 20 or more car loads or intermodal portable tank loads of a combination of PIH, flammable gas, Class 1.1 or 1.2 explosives, and environmentally sensitive chemicals, or (iii) one or more car loads of spent nuclear fuel or high level radioactive waste; (2) designating operating speed and equipment restrictions for key trains; (3) designating “key routes” for key trains, and setting standards for track inspection and wayside defect detectors; (4) yard operating practices for handling placarded tank cars; (5) storage, loading, unloading and handling of loaded tank cars; (6) assisting communities with emergency response training and information; (7) shipper notification procedures; and (8) the handling of time-sensitive materials. These recommended practices were originally implemented by all of the Class 1 rail carriers operating in the United States; the most recent version of the circular also includes short-line railroads as signatories.
Circular OT–55–I defines a “key route” as:
Any route defined by a railroad as a key route should meet certain standards described in OT–55–I. Wayside defective wheel bearing detectors should be placed at a maximum of 40 miles apart, or an equivalent level of protection may be installed based on improvements in technology. Main track on key routes should be inspected by rail defect detection and track geometry inspection cars or by any equivalent level of inspection at least twice each year. Sidings on key routes should be inspected at least once a year; and main track and sidings should have periodic track inspections to identify cracks or breaks in joint bars. Further, any track used for meeting and passing key trains should be FRA Class 2 track or higher. If a meet or pass must occur on less than Class 2 track due to an emergency, one of the trains should be stopped before the other train passes. The proposals in this NPRM in part reflect the recommended practices mentioned above, which are already in wide use across the rail industry.
On August 16, 2004, PHMSA and TSA published a notice and request for comments on the need for enhanced security requirements for the rail transportation of hazardous materials posing a poison or toxic inhalation hazard (TIH materials). See 69 FR 50988. (Note that for purposes of the HMR, the terms “poison” and “toxic” are synonymous, as are the terms “PIH materials” and “TIH materials.”) In the August notice, PHMSA and TSA sought comments on the feasibility of initiating specific security enhancements and the potential costs and benefits of doing so. Security measures addressed in the notice included improvements to security plans, modification of methods used to identify shipments, enhanced requirements for temporary storage, strengthened tank car integrity, and implementation of tracking and communication systems. To date, we have received over 100 comments. We considered the comments concerning the need for improvements to current security plan requirements and revisions to regulations applicable to in-transit storage in developing this NPRM. These comments are discussed in detail in the following sections.
The comments to the August notice related to hazard communication, shipment identification, strengthened tank car integrity, and shipment tracking are not addressed in this rulemaking.
Additionally, on August 9–10, 2005, FRA participated in a meeting of the AAR Hazardous Materials Bureau of Explosives (BOE) Committee. At this meeting, FRA requested input from the rail industry regarding internal methods used to track and store information about TIH, explosive, and highway route controlled quantity radioactive materials. Comments regarding the definition of a route for the purpose of rail route analysis were taken into consideration in the development of this NPRM, as reflected by the use of line segment, an industry term. Other comments received related to specific measures, which a carrier should consider in performing a route analysis. A summary of this meeting can be found in the docket for this rulemaking.
In the August notice, PHMSA and TSA stated the two agencies are interested in determining how security plans required under the HMR might be improved, particularly as they relate to TIH materials. PHMSA and TSA asked commenters to provide information concerning the process by which their security plans were developed, including any problems encountered during the drafting or implementation phase, recommended “best practices,” and any additional guidance or assistance as appropriate.
Commenters found the guidance provided by DOT and various industry associations to be quite useful for developing the security plans under the HMR. Commenters generally agree additional guidance material specific to the transportation of TIH materials could be helpful in enhancing the security of TIH materials; however, commenters generally oppose a requirement for the creation of separate security plans specific to TIH or other high-hazard materials, noting such materials are already covered by the HMR security plan requirements and
PHMSA and TSA agree with commenters who suggest compliance with the current security plan regulations could be improved with the development of additional guidance material or more specific requirements applicable to certain types of hazardous materials. As discussed in more detail below, in this NPRM, PHMSA is proposing clarifications and enhancements to the current security requirements as they apply to certain rail operations.
In the August notice, PHMSA and TSA discussed issues associated with the temporary storage of rail tank cars during transportation, including current regulatory requirements applicable to such storage. PHMSA and TSA requested comments concerning whether revisions to the temporary storage requirements applicable to rail cars transporting TIH materials are appropriate, including the impact such revisions could have on the costs to transport TIH materials and the impact on recipients and users (for example, towns and municipalities).
Many commenters agree the security of TIH rail shipments stored temporarily during transportation should be improved but have mixed views on how to achieve this objective. While some commenters support time limits on interim storage and prohibitions on the storage of TIH rail cars in densely populated areas, others suggest such restrictions would be infeasible because of supply chain issues, adverse economic impacts, and railroad operational and efficiency issues. One commenter notes “since the federal government does not limit the storage of TIH materials at customer facilities, it would be illogical for the federal government to limit railroad storage of TIH materials.” Several commenters urge PHMSA and TSA to “use extra caution” before prohibiting the temporary storage of TIH materials, suggesting a location in a densely populated area should not in itself be a reason to prohibit temporary storage. Rather than place limits on temporary storage, commenters suggest the security measures implemented at facilities at which such storage occurs should be based on risk assessments. Thus, for example, a facility in a densely populated area would be required to implement more stringent security requirements than a facility in a rural area. Specific measures suggested include perimeter fencing with controlled and limited access, enhanced lighting, remote monitoring, and frequent security patrols.
As discussed in more detail below, PHSMA, FRA, and TSA agree with commenters that the security of hazardous materials rail shipments stored temporarily during transportation should be improved, and PHMSA is proposing revisions in this NPRM. In addition, in its NPRM published in today's edition of the
The August notice indicated DOT and DHS are considering whether communication or tracking requirements should be required for rail shipments of TIH materials, such as satellite tracking of TIH rail cars and real-time monitoring of tank car or track conditions. In addition, the notice suggested DOT and DHS are considering reporting requirements in the event TIH shipments are not delivered within specified time periods.
The HMR currently do not include communication or tracking requirements for hazardous materials shipments. Offerors and transporters of TIH materials may elect to implement communication or tracking measures as part of security plans developed in accordance with subpart I of part 172 of the HMR, but such measures are not mandatory.
Commenters who addressed this issue are not convinced that tracking of rail shipments of TIH materials has a security benefit, instead suggesting the probability of a rail car being moved off the rail network is extremely remote and, further, tracking rail cars to determine if they are off course has no value from a security perspective. Commenters also express concerns about the reliability of tracking systems and the possibility that some systems could be compromised. Several commenters suggest that since the railroad industry already has the capability to track rail cars, the existing system should be supplemented, not scrapped, and any mandated tracking requirements should provide for flexibility in choosing different technologies.
PHMSA, FRA, and TSA believe that most rail carriers have the capability to report on the locations of certain hazardous materials rail cars. We believe carriers should be required to report car location upon request of the government in certain limited situations, particularly during elevated threat conditions. PHMSA, FRA, and TSA are continuing to consider whether and to what extent rail carriers should be required to gather and report car location information, including the type of information to be collected, its format, and the costs of mandating such a requirement. In its NPRM, published in today's edition of the
Based on comments received in response to the TIH notice and our experience in monitoring industry compliance with the HMR security plan requirements, we are proposing the following revisions to the security plan provisions:
• We propose to require rail carriers transporting certain types of hazardous materials to compile information and data on the commodities transported, including the transportation routes over which these commodities are transported.
• We propose to require rail carriers transporting certain types of hazardous materials to use the data they compile on commodities they transport to analyze the safety and security risks for the transportation routes used and one possible alternative route to the one used. Rail carriers would be required to utilize these analyses to transport these materials over the safest and most secure commercially practicable routes.
• We propose to require rail carriers to specifically address the security risks associated with shipments delayed in transit or temporarily stored in transit as part of their security plans.
• We propose to require rail carriers transporting certain types of hazardous materials to notify consignees if there is a significant unplanned delay affecting the delivery of the hazardous material.
• We propose to require rail carriers to work with shippers and consignees to minimize the time a rail car containing certain types of hazardous materials is
• We propose to require rail carriers to notify storage facilities and consignees when rail cars containing certain types of hazardous materials are delivered to a storage or consignee facility.
• We propose to require rail carriers to conduct security visual inspections at ground level of rail cars containing hazardous materials to inspect for signs of tampering or the introduction of an improvised explosive device (IED).
These proposed revisions are explained in more detail in the following sections.
DOT's hazardous materials transportation safety program provides for a high degree of safety with respect to incidents involving unintentional releases of hazardous materials occurring during transportation. However, intentional misuse of hazardous materials was rarely considered when the regulations were developed. Since 9/11, we have come to realize that hazardous materials safety and security are inseparable. Many, if not most, of the requirements designed to enhance hazardous materials transportation safety, such as strong containers and clear hazard communication, enhance the security of hazardous materials shipments as well. Congress recognized this synergy and legislated its intent that “hazmat safety [was] to include hazmat security” when it enacted the Homeland Security Act of 2002 authorizing the Secretary of Transportation to “prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.” Safety and security must be considered together, particularly because a given security measure could have a potentially negative impact on overall transportation safety—routing and hazard communication are two obvious examples. Of course, the opposite can also be true—a safety policy or regulation could have a potentially negative impact on transportation security. PHMSA, FRA, and TSA are collaborating to ensure an appropriate balance between safety and security concerns.
The transport of highly hazardous materials is not limited to rail. Currently, significant amounts of highly hazardous materials are also transported by highway and vessel. The focus on rail is intended to be one phase in a multiphase effort by DOT and DHS to assess and secure the transportation of hazardous materials in all transportation modes to create an end-to-end secure supply chain. In this regard, we note the Federal Motor Carrier Safety Administration has established criteria in 49 CFR Part 397 for routing certain highly hazardous materials.
PHMSA, FRA, and TSA have assessed the safety and security vulnerabilities associated with the transportation of different types and classes of hazardous materials. The list of materials to which the enhanced security requirements proposed in this NPRM would apply is based on specific transportation scenarios. These scenarios depict how hazardous materials could be deliberately used to cause significant casualties and property damage or accident scenarios resulting in similar catastrophic consequences. The materials specified in this NPRM present the greatest rail transportation safety and security risks—because of the potential consequences associated with an unintentional release of these materials—and the most attractive targets for terrorists—because of the potential for these materials to be used as weapons of opportunity or weapons of mass destruction.
In this NPRM, we are proposing enhanced rail security requirements for rail transportation, with a particular focus on the following types and quantities of hazardous materials:
(1) More than 2,268 kg (5,000 lbs) in a single carload of a Division 1.1, 1.2 or 1.3 explosive;
(2) A bulk quantity of a TIH material (poisonous by inhalation, as defined in 49 CFR 171.8); or
(3) A highway-route controlled quantity of a Class 7 (radioactive) material.
As indicated above, the materials to be covered by this rulemaking represent those posing both a significant rail transportation safety and security risk. The following list provides a basic summary of the materials and critical vulnerabilities warranting inclusion in the proposed rule:
•
•
•
In addition, we are seeking comment on whether the requirements proposed in this NPRM should also apply to flammable gases, flammable liquids, or other materials that could be weaponized, as well as hazardous materials that could cause serious environmental damage if released into rivers or lakes. For example, although most ammonium nitrate and ammonium nitrate mixtures are classified as oxidizers during transportation based on the normal transportation environment, tests have shown these materials have explosive properties under certain conditions. Rail cars carrying large quantities of these materials may pose significant security risks. Commenters are asked to identify which additional materials (if any) should be subject to enhanced safety or security requirements and discuss the types of requirements appropriate to address the risks posed by an intentional or accidental release of the product.
In this NPRM, PHMSA is proposing to require rail carriers transporting any of the materials specified to compile commodity data on a calendar year basis. Each rail carrier must identify the line segments over which these commodities are transported. As the carrier deems appropriate, line segments may be aggregated into logical groupings, such as between major interchange points. The rail carrier selected line segment(s) will be considered the route, as discussed below, used for rail routing analysis. Within each route, the commodity data must identify the route location and
As proposed in this NPRM, rail carriers would be required to complete the commodity data collection within 90 days after the end of each calendar year. For example, if a rail carrier is compiling data for calendar year 2006, it must be available for use and inspection by April 1, 2007. To provide carriers with flexibility in compiling and assessing the data, we are not proposing a specified format; however the data must be available in a format that could be read and understood by DOT personnel and that clearly identifies the physical locations of the carrier's route(s) and commodities transported over each route. Physical location may be identified by beginning and ending point, locality name, station name, track milepost, or other method devised by the rail carrier which specifies the geographic location. Carriers would also be required to retain the data for two years, in either hard copy or electronic form, whichever is most efficient for the carrier.
With respect to information confidentiality and security concerns, data compiled under the proposed regulations would be considered SSI under regulations promulgated by DOT and DHS (49 CFR Parts 15 and 1520, respectively). SSI is subject to special handling rules and qualifying information is protected from public disclosure under those regulations if copies of any data are kept or maintained by DOT. See 69 FR 28066 (May 18, 2004) and 70 FR 1379 (January 7, 2005). Carriers would be required to ensure any information developed to comply with the requirements proposed in this NPRM is properly marked and handled in accordance with the SSI regulations. Further, information maintained by DOT may be shared with DHS. In such cases, SSI protections will continue to apply.
In this NPRM, PHMSA is proposing to require rail carriers to use the data compilation described above to include in their security plans an analysis of the rail transportation routes over which the specified materials are transported. As proposed, carriers will be required to analyze the specific safety and security risks for routes identified in the commodity data collection. Route analyses will be required to be in writing and to consider, at a minimum, a number of factors specific to each individual route. A non-inclusive list of those factors is included in proposed Appendix D to Subpart I of Part 172. Consistent with the SSI restrictions set forth in 49 CFR Parts 15 and 1520, TSA and FRA will provide appropriate guidance to rail carriers on how to properly weigh and evaluate the factors necessary for performing the security part of the risk analysis, and will include threat scenarios to aid in this route analysis.
We invite comments to address how frequently route analyses should be updated and revised. This NPRM proposes to require carriers to re-examine route analyses on an annual basis. We are seeking comments on whether annual analyses are necessary and whether the analyses should be conducted more frequently or less frequently. For example, the regulations could require carriers to revise and update route analyses only when necessary to account for changes in the way a carrier operates, changes to the routes utilized to transport hazardous materials, or in response to specific threat information.
We anticipate carriers will first analyze the rail transportation route over which each specified commodity normally travels in the regular course of business. As discussed below, we are also proposing to require carriers to then identify and analyze the next most practicable alternative route, if available, over which they have authority to operate, using the same factors. We expect the alternative route analyzed will originate and terminate at the same points as the original route.
We have given careful consideration to the question of how to define a “rail transportation route” for the purpose of the analysis proposed in this NPRM. We propose this very basic definition: a route is a series of one or more rail line segments, as selected by the rail carrier. Between the beginning and ending points of a rail carrier's possession and responsibility for a hazardous materials shipment, it would be up to the rail carrier to define the routes to be assessed. For example, a route could begin at the geographic point where a rail carrier takes physical possession of the hazardous material from the offeror or another carrier for transportation. A route could end at the geographic point where: (1) The rail carrier relinquishes possession of the hazardous material, either by delivering the commodity to its final destination or interchanging the shipment to another carrier; or (2) the carrier's operating authority ends. Hazardous materials shipments will likely have intermediary stops and transitions—for example, a shipment may be held in a railroad yard, placed in a different train, or stored temporarily during transportation. Our aim is to have rail carriers analyze the territory and track over which these certain hazardous materials are regularly transported in the carrier's normal course of business, while providing flexibility concerning how specific routes will be defined and assessed. The final analysis, however, should provide a clear picture of the routes a rail carrier uses for the specified hazardous materials. Patterns and regular shipments should become obvious, as should non-routine hazardous materials movements, such as the one-time move of a specific shipment of military explosives or high-level nuclear waste. The parameters set out for “key routes” in AAR Circular OT–55–I are an excellent starting point for railroads to use in performing route analyses.
In addition to the routes normally and regularly used by rail carriers to transport these designated hazardous materials, we are proposing to require carriers to analyze and assess the feasibility of available alternative routes over which they have authority to operate. For each primary route, one commercially practicable alternative route must be identified and analyzed using the Rail Risk Analysis Factors of proposed Appendix D to Part 172. We recognize in many cases, the only alternative route in a particular area may be on another carrier's right-of-way. A rail carrier would not be obligated to analyze an alternative route over which it has no authority to operate. We also recognize, in some cases, no alternative route will be available; therefore, no such analysis would be required. This is particularly true in the case of regional or short-line railroads that are often the only rail carriers in a given geographic area. Where an alternative route over which the carrier has authority to operate does exist, the carrier must analyze that route and document its analysis, including the safety and security risks presented by the alternative route, any remediation or mitigation measures in place or that could be implemented, and the economic effects of utilizing the
In the rail operating environment, it is possible a carrier may transport the specified material over a route where the carrier has trackage rights, but does not own or have control over the track and associated infrastructure. Many of the factors in Appendix D relate to the physical characteristics of the track. In completing the route analyses required by this proposed rule, the carrier may identify specific measures to address risks outside its ability to accomplish. Because it is essential that safety and security measures be coordinated among all responsible entities, it is incumbent upon the carrier to work with the owner of the track to evaluate the vulnerabilities and identify measures to effect mitigation of the risks. If measures required by this proposed rule cannot be implemented because another entity refuses or fails to cooperate, the carrier must notify FRA. As stated in the Enforcement section of this preamble, FRA retains the authority to require use of an alternative route until such time as identified deficiencies are mitigated or corrected.
For each primary route, one alternative route must be identified and analyzed, if available as discussed above. As with the primary route analysis, we expect the end result to be a clear picture of the commercially practicable alternative route(s) available to rail carriers for the transportation of the specified hazardous materials. Alternative routing is used in the normal course of business throughout the railroad industry in order to accommodate circumstances such as derailments, accidents, damaged track, natural events (mudslides, floods), traffic bottlenecks, and heightened security due to major national events. The rail carriers' analysis of the alternative route should, in the end, clearly indicate the reasonableness, appropriateness, and feasibility, including economic feasibility, of using the alternative. We expect a complete alternative route analysis will indicate such things as any actual use of alternative route; safety and security benefits and risks of the alternative route; and commercial or economic costs and benefits of the route. Clearly, if an alternative route, after analysis, is identified to be the safest and most secure commercially practicable route, the carrier would either designate it as the primary route or identify and implement mitigating measures to improve the safety and security of the analyzed primary route. Each carrier will be required to use the commercially practicable route with the overall fewest combined safety and security risks, based on its analysis.
We recognize there may not be one single route that affords both the fewest safety and security risks. The most important part of this process is the route analysis itself and the identification of the safety and security risks on each route. The carrier may then make an informed decision, balancing all relevant factors and the best information available, regarding which route to use. For example, if a rail carrier determines one particular route is the safest and most practicable, but has a particular security risk, the carrier should then implement specific security measures to mitigate the security risk. We also recognize some security risks or threats may be long-term, while others are short-term, such as those arising from holding a major national event (
In the evaluation of alternative routes, carriers may also indicate certain conditions under which alternative routes will be used. In the case of a short-term safety or security risk, such as a temporary event at a venue along the route, or a derailment, carriers may specify an alternative route and the measures to be put in place for use of that alternative route.
To assist rail carriers in performing these analyses of rail transportation routes and alternative routes, PHMSA is proposing to add a new Appendix D to Subpart 172. This appendix will lay out the minimum criteria a rail carrier must consider in analyzing each route and alternative route. The criteria listed are those we believe are most relevant in analyzing the rail routes for the hazardous materials discussed in this proposed rule. Of course, not all the criteria will be present on each route, and each route will have its own combination of factors to be considered. Again, our aim is to enable rail carriers to tailor these analyses to the particular risks and factors of their operations, and to get a clear picture of the characteristics of each route.
For the initial route analysis, we anticipate rail carriers will review the prior two-year period when considering the criteria contained in Appendix D. In subsequent years, the scope of the analyses should focus on changes from the initial analyses. For example, using the criteria in Appendix D, carriers should analyze the impact of significant changes in traffic density, new customers offering or receiving the specified hazardous materials, and significant operational changes. The scope of the analyses in subsequent years is expected to be more limited than the analyses conducted in the first year. As proposed in this NPRM, each carrier would be required to perform a system-wide analysis every five years to include a comprehensive review of all changes occurring during the intervening period. The system-wide review would include an analysis of all primary routes and a reevaluation of the corresponding practicable alternative routes.
We recognize the need for flexibility in performing risk assessments, yet we must balance it against the need for some degree of uniformity in the assessments. Uniformity is necessary when a performance standard is used. We have tried to balance these two competing interests by establishing a requirement for the assessment criteria to be used, while allowing rail carriers to choose the methodology for conducting the analysis. We believe the proposed criteria will improve the quality of risk assessments conducted per this subpart. We solicit comment on the proposal's balancing of flexibility and uniformity in both risk assessment and route selection.
Regardless of methodology selected, a rail carrier should apply certain common principles. These include the following:
• The analysis should employ the best reasonable, obtainable information from the natural, physical, and social sciences to assess risks to health, safety, and the environment;
• Characterizations of risks and of changes in the nature or magnitude of risks should be both qualitative, and quantitative to the extent possible consistent with available data;
• Characterizations of risk should be broad enough to deduce a range of activities to reduce risks;
• Statements of assumptions, their rationale, and their impact on the risk analysis should be explicit;
• The analysis should consider the full population at risk, as well as subpopulations particularly susceptible to such risks and/or more highly exposed; and
• The analysis should adopt consistent approaches to evaluating the risks posed by hazardous agents or events.
We believe institutionalizing a practical assessment program is important to supporting business activities and provides several benefits. First, and perhaps most importantly, assessment programs help ensure identification, on a continuing basis, of the movement of materials presenting the greatest risk to the public and the business community. Second, risk assessments help personnel throughout the organization better understand where to best apply limited resources to minimize risks. Further, risk assessments provide a mechanism for reaching a consensus on which risks are the greatest and what steps are appropriate for mitigating them. Finally, a formal risk assessment program provides an efficient means for communicating assessment findings and recommended actions to business unit managers as well as to senior corporate officials. The periodic nature of the assessments provides organizations a means of readily understanding reported information and comparing results over time.
The route analysis described above must identify safety and security vulnerabilities along the route to be utilized. As proposed in this NPRM, each rail carrier's security plan would be required to include measures to minimize the safety and security vulnerabilities identified through the route analyses. With respect to mitigation measures and cost, there are many measures rail carriers can take without necessarily adding to the cost of compliance. For example, carriers can work to notify local law enforcement and emergency responders of the types and approximate amounts of particular commodities typically transported through communities. Further, location changes can be made as to where rail cars containing highly hazardous materials are stored in transit. As with the security plan requirements currently required, our goal with this proposal is to permit rail carriers the flexibility to identify potential safety and security vulnerabilities and measures to address them, including the determination of which of its routes provide the overall fewest safety and security risks.
Although not a terrorist incident, the January 6, 2005, railroad accident and release of chlorine in Graniteville, SC, added to the growing concern about terrorism and prompted the development of the Freight Rail Security Program. This program is an innovative public-private partnership dedicated to assessing policies and technologies for enhancing security throughout the freight rail industry. One product of this partnership is the development of the Rail Corridor Risk Management Tool (RCRMT). The RCRMT will leverage existing technologies and accepted risk management practices where feasible, and incorporate new technologies and elements as appropriate. A second project of the Freight Rail Security Program is the Rail Corridor Hazmat Response and Recovery Tool (RCHRRT), which will integrate geographical information and risk modeling. The RCHRRT is being developed through a grant to the Railroad Research Foundation and will include participation from the rail industry. When fully developed, these tools will provide a formal methodology to assist the rail carriers in complying with the enhanced safety and security planning requirements of this proposed rulemaking.
The overarching goal of this NPRM is to ensure each route used for the transport of the specified hazardous materials is the one presenting the fewest overall safety and security risks. PHMSA is proposing a systematic process for rail carriers to: (1) Identify the routes currently in use by the rail carrier; (2) perform safety and security risk analyses of those primary routes; (3) identify and analyze commercially practicable alternative routes; and (4) make future route selections based on the results of the completed analyses. A rail carrier must evaluate its analyses and any measures put in place to mitigate identified vulnerabilities resulting in a selection of practicable routes presenting the fewest safety and security risks. The final step of this process is for the rail carrier to ensure the specified materials are moving on the safest and most secure commercially practicable routes. We expect for larger rail carriers, who have multiple routes available, the overall result of the route selection process will be a suite of routes addressing the overall safety and security risks of the materials in this rule. As discussed above, development of a suite of routes, where practicable, may provide carriers the flexibility to manage changing localized conditions, such as short-term changes in threat condition or track outage due to incidents or derailment, within their existing route selections.
PHMSA has proposed a 90-day window to compile commodity data and identify currently used routes. In the example given previously, for calendar year 2006, the commodity data would be available by April 1, 2007. Once the data are available, PHMSA recognizes it will take some time, especially in the first year of compliance, to complete the safety and security analyses of all primary and alternative routes. Moreover, the time necessary to complete the analyses will vary from carrier to carrier depending on the number of routes to be assessed and the nature of the safety and security issues identified for each route. We expect each rail carrier will build on the foundation of its existing security plan and the parameters already outlined in Circular OT–55–I. As the safety and security analyses are completed, the carrier must document its review and route selection decisions. We anticipate several possible route selection outcomes:
• The existing route presents the lowest overall safety and security risk and continues to be the selected route.
• The alternative route presents the lowest overall safety and security risks. The alternative will be selected, and transportation of the identified materials on the alternative route will begin as expeditiously as possible.
• The existing or the alternative route presents the lowest overall safety and security risk except under specific identified conditions. The lowest overall safety and security risk route will be used dependent upon the conditions. The conditions warranting route change must be clearly identified in the analyses and routing decision documentation.
• Based on the analyses, either the existing or alternative practicable route is identified as presenting the lowest overall safety and security risks; however, the rail carrier identifies measures to mitigate some of the risk and lower the overall risk of the other route. The route with the lowest overall safety and security risk should be selected and used. In documenting the route selection, the carrier should identify remediation measures to be implemented with a schedule of their
Clearly, other outcomes are possible. Once a route has been documented as presenting the lowest overall safety and security risk, the rail carrier must implement use of that route. If a carrier completes this process in July of a given analysis year, for example, then routing changes must be implemented as soon as possible. In all cases, the analyses and any routing changes resulting from the analyses must be completed and implemented by January 1 of the following year.
A difficult area to address in rail transportation is the safety and security of materials en route to their final destinations. Hazardous materials shipments may be delayed for any number of reasons: derailments, track repairs, cargo backlogs at ports, changes in security alert levels due to terror threats, or the presence of large events near key rail routes. Any or all of these may be reasons for shipments to be put on hold, stored, or delayed in transit. The resulting temporary storage in transport may encompass a wide variety of places, situations, and timeframes. Rail cars hauling hazardous materials may be placed on yard tracks with hundreds of other rail cars near densely populated urban areas, or a few cars may be placed on sidings in rural, less populated areas. Yards may not be fenced and tracks may traverse a number of public streets with at-grade crossings; thus, it is logistically very difficult to monitor each and every car containing hazardous materials at all times. Each in-transit storage scenario has its own set of individual risks and hazards.
The HMR require offerors and carriers to address the en route security of hazardous materials, including hazardous materials stored incidental to movement. Thus, rail offerors and carriers are already required to address the security of in-transit storage facilities in their security plans. To emphasize this requirement, in this NPRM we are proposing to require rail carriers of the specified hazardous materials to include in security plans measures to limit access to materials stored or delayed in transit, measures to mitigate the risk to population centers associated with materials stored or delayed in transit, and measures to be taken in the event of escalating threat levels. Further, we are proposing to require rail carriers to inform a facility at which a rail car will be stored incidental to movement when the rail car is delivered to the facility so the facility can implement appropriate security measures. We are also proposing a similar requirement for rail carriers to inform the consignee facility when the rail car is delivered. We propose to require such notification as soon as practicable but in no case later than six hours after delivery. We invite commenters to address this proposed timeframe, particularly how such a requirement should be implemented for deliveries that occur outside of normal business hours.
These procedures for notifying the interim storage facility and consignee of rail car delivery should ensure a positive transfer of responsibility and security for the car between the rail carrier and facility when the physical custody of the car changes. Carriers may want to consider what measures are currently in place for notification and how these provide confirmation of the facility's acceptance of the shipment. In addition, we are proposing to require rail carriers to work with shippers and consignees to minimize the time a rail car is stored incidental to movement to the extent practicable.
In addition, PHMSA is proposing to require the carrier to notify the consignee if there is a significant unplanned delay during transportation of one of the hazardous materials specified in this proposed rulemaking, within 48 hours of identifying the significant delay, and provide a revised delivery schedule. Our goal is to strengthen the requirements of the current “48-hour rule” contained in § 174.14, and to delegate more positive control and responsibility to the railroads for tracking and controlling the movement of railcars carrying hazardous materials. Such notification will also facilitate communication between the carrier in possession of the material and the consignee to ensure the hazardous materials specified in this NPRM do not inadvertently wait in transit.
A significant delay would be one that: (1) Compromises the safety or security of the hazardous material shipped; or (2) delays the shipment beyond its normal expected or planned shipping time. A “significant delay” must be determined on a case-by-case and hazmat-by-hazmat basis. As a general rule, any delay beyond the normal or expected shipping time for the material qualifies as a “significant delay.” Because most railroads already have in place systems to monitor the transportation of certain types of shipments, and procedures for notification of consignees, we do not anticipate this requirement will involve major operational changes for any of the affected carriers.
The AAR Circular OT–55–I contains operating practices the rail industry has already implemented for certain time-sensitive shipments. PHMSA's proposed requirement simply builds on those practices. In particular, the Circular addresses time-sensitive shipments, and specifies railroads are to be responsible for monitoring of shipments of such products and communicating with affected parties when the shipment may not reach its destination within the specified timeframe. Circular OT–55–I recommends delivery of time-sensitive materials should take place within 20 or 30 days, depending on the commodity.
With respect to notification to consignees in the event of a shipment delay, we have specified such notification to be made by a method acceptable to both carrier and consignee. We are aware many rail carriers have in place electronic systems where consignees may look up and track their expected rail shipments. This is an acceptable method of notification, as are e-mail, facsimile, or telephone. The important aspect of the notification is that both carrier and consignee agree upon the method.
The HMR currently require rail carriers to inspect each rail car containing hazardous materials at ground level. From a safety perspective, the inspections are intended to address required markings, labels, placards, securement of closures, and leakage. Safety-related inspections currently required under the HMR do not specifically address the possibility a terrorist could introduce a foreign object on the tank car, the most pernicious being an IED. PHMSA proposes in this NPRM to increase the scope of the safety inspection to include a security inspection of all rail cars carrying placarded loads of hazardous materials. The primary focus of the enhanced inspection is to recognize an IED, which is a device fabricated in an improvised manner incorporating explosives or destructive, lethal, noxious, pyrotechnic, or incendiary chemicals in its design, and generally including a
To guard against the possibility an unauthorized individual could tamper with rail cars containing hazardous materials to precipitate an incident during transportation, such as detonation or release using an IED, we are proposing to require the rail carriers' pre-trip inspections of placarded rail cars to include an inspection for signs of tampering with the rail car, including its seals and closures, and any item that does not belong, suspicious items, or IEDs. TSA will provide guidance to rail carriers to train employees on identifying IEDs and signs of tampering. Where an indication of tampering or a foreign object is found, the rail carrier must take appropriate actions to ensure the security of the rail car and its contents has not been compromised before accepting the rail car for further movement.
The existing security plan requirements in the HMR specify each carrier's plan must include measures to address unauthorized access and en route security. While not explicitly stated in the regulatory text, it is expected these sections provide guidance to carrier personnel for the actions to be taken in the event of suspected incident involving unauthorized access or a security breach. The rail industry, in coordination with the AAR, has worked closely with Federal, State and local officials to improve the security of rail transportation. However, each carrier should review its existing security plan to ensure the measures are adequate to facilitate notification of railroad police, security or management personnel, as appropriate, in the event a suspicious item is identified during inspection. As evidenced by the coordinated attacks of September 11, 2001, prompt identification of a terrorist event may be critical to responding to and potentially minimizing the impacts of the event.
As indicated above, DHS and DOT share responsibility for hazardous materials transportation security. PHMSA and FRA collaborated with TSA in developing this NRPM and will continue to work closely with TSA throughout the rulemaking process.
FRA is the agency within DOT responsible for railroad safety, and is the primary enforcer of safety and security requirements in the HMR pertaining to rail shippers and carriers. FRA inspectors routinely review security plans during site visits and may offer suggestions for improving security plans, as appropriate. If an inspector's recommendations are not implemented, FRA may compel a rail shipper or carrier to make changes to its security plan through its normal enforcement process. FRA consults with TSA concerning railroad security issues in accordance with the FRA–TSA annex to the DOT–DHS MOU on transportation security.
TSA's authority with respect to transportation security, including hazardous materials security, is comprehensive and supported with specific powers to assess threats to security; monitor the state of awareness and readiness throughout the rail sector; determine the adequacy of an owner or operator's security measures; and identify security gaps.
With respect to enforcement of the proposed security requirements in this NPRM, FRA plans to work closely with TSA to develop a coordinated enforcement strategy to include both FRA and TSA inspection personnel. If in the course of an inspection of a railroad carrier, TSA identifies evidence of non-compliance with a DOT security regulation, TSA would provide the information to FRA and PHMSA for appropriate action. In this regard, TSA would not directly enforce DOT security rules, and would not initiate safety inspections. Consistent with the PHMSA–TSA and FRA–TSA annexes to the DOT–DHS MOU, all the involved agencies will cooperate to ensure coordinated, consistent, and effective activities related to rail security issues. Thus, DHS and DOT will leverage knowledge and expertise and coordinate security assessments and inspection and compliance actions by their respective inspectors to minimize disruption to railroad carriers being inspected; maximize the utilization of inspector resources to avoid duplication of effort; ensure consistent information is provided by both parties to the rail industry on security matters and safety matters with security implications; and ensure consistent enforcement action is taken for violations of Federal laws and regulations, and that the appropriate enforcement tools are used to address security-related problems.
Generally, inspection personnel will not collect or retain security plans or the route selection documentation required by this proposed rule. However, inspection personnel may periodically perform rail carrier compliance inspections. In the event inspection personnel identify a need to collect a copy of the security plan or route review and selection documentation, all applicable laws and regulations, including the SSI regulations and Freedom of Information Act exemptions, will be reviewed to determine whether the information can be withheld from public release.
We are not proposing to implement a submission and approval process for security plans and route analyses. The review and approval of hundreds of security plans and analyses would be extremely resource-intensive and time-consuming. Inspectors will review security plans, route analyses, and route choices for compliance with applicable regulations. Upon completion of a compliance inspection, if the inspection identifies deficiencies in the route analyses, security plan, or manner in which the plan is implemented, the deficiencies will be addressed using FRA's existing enforcement procedures. Inspectors will have the discretion to issue notices of non-compliance, or to recommend assessment of civil penalties for probable violations of the regulations. Based on evidence indicating a rail carrier has not performed a reasoned good-faith analysis, carefully considering all available information including the safety and security risk analysis factors in the proposed Appendix D to Part 172, to choose the safest, most secure practicable route, the FRA Associate Administrator for Safety, in consultation with TSA, may require the railroad to use an alternate route until such time as the identified deficiencies are satisfactorily addressed. However, FRA would only require an alternate route if it concludes the carrier's analysis did not satisfy the minimum criteria for performing a safety and security risk analysis, as established by the proposed § 172.820 and Appendix D to Part 172. Moreover, we would expect to mandate route changes only for the most exigent circumstances. FRA will develop procedures for rail carriers to appeal a decision by the FRA Associate Administrator for Safety to require the use of an alternative route, including information a rail carrier should include in its appeal, the time frame for filing an appeal, and the process to be utilized by FRA in considering the appeal, including any consultations with TSA or PHMSA.
This NPRM is published under authority of Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101
This proposed rule is a significant regulatory action under section 3(f) Executive Order 12866 and, therefore, was reviewed by the Office of Management and Budget (OMB). The proposed rule is a significant rule under the Regulatory Policies and Procedures order issued by the U.S. Department of Transportation (44 FR 11034). We completed a regulatory evaluation and placed it in the docket for this rulemaking.
Generally, costs associated with the provisions of this NPRM include costs for collecting and retaining data and performing the mandated route safety and security analysis. We estimate total 20-year costs to gather the data and conduct the analyses proposed in this NPRM to be about $20 million (discounted at 7%).
In addition, rail carriers and shippers may incur costs associated with rerouting shipments or mitigating safety and security vulnerabilities identified as result of their route analyses. Because the NPRM builds on the current route evaluation and routing practices already in place for most, if not all, railroads that haul the types of hazardous materials covered in the proposal, we do not expect rail carriers to incur significant costs associated with rerouting. The railroads already conduct route analyses and re-routing—in line with what this rule would require—in accordance with the Association of American Railroads (AAR) Circular OT–55–I. Moreover, the smaller carriers (regionals and short lines) are unlikely to have access to many alternative routes, and where an alternative does exist, it is not likely to be safer and more secure than the route they are currently using. If there is an alternative route the carrier determines to be safer and more secure than the one it is currently using, the carrier could well switch routes, even in the absence of a regulatory requirement, because it reduces the overall risk to its operations. Such reduction in risk offers a significant economic advantage in the long run.
Identifying and mitigating security vulnerabilities along rail routes is currently being done by the railroads. We believe that readily available “high-tech” and “low-tech” measures are being quickly implemented. The development, procurement and wide-spread installation of the more technology-driven alternatives could take several years. PHMSA's previous security rule requires the railroads to have a security plan that includes en route security. This existing regulatory requirement, coupled with the industry's generally risk-averse nature, is driving the railroads to enhance their security posture. As with routing decisions, such reduction in risk offers a significant economic advantage in the long run. Therefore, we expect that the cost of mitigation attributed solely to this proposal will not be significant. We note in this regard that safety and security measures are intertwined and often work hand in hand to complement each other; therefore, separating security costs from safety costs is not feasible. Overall transportation costs should not substantially increase because of this rule.
Estimating the security benefits of the proposed new requirements is challenging. Accident causation probabilities based on accident histories can be estimated in a way that the probability of a criminal or terrorist act cannot. The threat of an attack is virtually impossible to assess from a quantitative standpoint. It is undeniable hazardous materials in transportation are a possible target of terrorism or sabotage. The probability hazardous materials will be targeted is, at best, a guess. Similarly, the projected outcome of a terrorist attack cannot be precisely estimated. It is assumed choices will be made to maximize consequences and damages. Scenarios can be envisioned where hazardous materials could be used to inflict hundreds or even thousands of fatalities. To date, there have been no known or specific threats against freight railroads, rail cars, or tank cars, which makes all of these elements even more difficult to quantify. However, the fact an event is infrequent or has never occurred does not diminish the risk or possibility of such an event occurring.
Security plans lower risk through the identification and mitigation of vulnerabilities. Therefore, rail carriers and the public benefit from the development and implementation of security plans. However, forecasting the benefits likely to result from plan clarifications requires the exercise of judgment and necessarily includes subjective elements.
The major benefits expected to result from the provisions of this NPRM relate to enhanced safety and security of rail shipments of hazardous materials. We estimated the costs of a major accident or terrorist incident by calculating the costs of the January 2005 Graniteville, South Carolina, accident. This accident killed 9 people and injured 554 more. In addition, the accident necessitated the evacuation of more than 5,400 people. Total costs associated with the Graniteville accident are almost $126 million. The consequences of an intentional release by a criminal or terrorist action, particularly in an urban area, likely would be more severe than the Graniteville accident because an intentional act would be designed to inflict the most damage possible. These proposals are intended to reduce the safety and security risks associated with the transportation of the specified hazardous materials. If the measures proposed in this NPRM prevent just one major accident or intentional release over a twenty-year period, the resulting benefits would more than justify the potential compliance costs. We believe that they could.
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Orders 13132 (“Federalism”) and 13175 (“Consultation and Coordination with Indian Tribal Governments”). This proposed rule would not have any direct effect on the States, their political subdivisions, or Indian tribes; it would not impose any compliance costs; and it would not affect the relationships between the national government and the States, political subdivisions, or Indian tribes, or the distribution of power and responsibilities among the various levels of government.
In its March 25, 2003 final rule in Docket No. HM–232, PHMSA specifically required rail carriers to address the en route security of hazardous materials during transportation. We decided that the specifics of routing rail shipments of hazardous materials, a component of en route security, should be left to the judgment of rail carriers. See 68 FR at 14513, 14516. We have concluded that, under Federal hazardous material transportation law (49 U.S.C. 5125), the Federal Rail Safety Act (49 U.S.C. 20106), and the Commerce Clause of the U.S. Constitution, PHMSA's decision to leave the routing of hazardous materials shipments to the judgment of rail carriers preempts all States, their political subdivisions, and Indian tribes from prescribing or restricting routes for rail shipments of hazardous materials. See
Nonetheless, we will invite interested States, political subdivisions, and Indian tribes to submit comments on this proposed rule and consult directly with PHMSA, through invitations to organizations such as the National Governors Association, Council of State Governments, National Conference of State Legislatures, United States Conference of Mayors, National Association of Counties, National League of Cities, and National Congress of American Indians, and directly to those jurisdictions which have already expressed concerns about routes of rail shipments of hazardous materials.
We analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not significantly or uniquely affect tribes and does not impose substantial and direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.
The Regulatory Flexibility Act (5 U.S.C. 601
The Small Business Administration (SBA) permits agencies to alter the SBA definitions for small businesses upon consultation with SBA and in conjunction with public comment. Pursuant to this authority, FRA published a final rule (68 FR 24891; May 9, 2003) defining a “small entity” as a railroad meeting the line haulage revenue requirements of a Class III railroad. Currently, the revenue requirements are $20 million or less in annual operating revenue. This is the definition used by PHMSA to determine the potential impact of this NPRM on small entities.
Not all small railroads will be required to comply with the provisions of this NPRM. Most of the 510 small railroads transport no hazardous materials. PHMSA and FRA estimate there are about 100 small railroads—or 20% of all small railroads—that could potentially be affected by this NPRM. Cost impacts for small railroads will result primarily from the costs for data collection and analysis. PHMSA estimates the cost to each small railroad to be $2,776.70 per year over 20 years, discounted at 7%. Based on small railroads' annual operating revenues, these costs are not significant. Small railroads' annual operating revenues range from $3 million to $20 million. Thus, the costs imposed by the provisions of this NPRM amount to between 0.01% and 0.09% of a small railroad's annual operating revenue.
This NPRM will not have a noticeable impact on the competitive position of the affected small railroads or on the small entity segment of the railroad industry as a whole. The small entity segment of the railroad industry faces little in the way of intramodal competition. Small railroads generally serve as “feeders” to the larger railroads, collecting carloads in smaller numbers and at lower densities than would be economical for the larger railroads. They transport those cars over relatively short distances and then turn them over to the larger systems which transport them relatively long distances to their ultimate destination, or for handoff back to a smaller railroad for final delivery. Although there are situations in which their relative interests may not always coincide, the relationship between the large and small entity segments of the railroad industry is more supportive and co-dependent than competitive.
It is also extremely rare for small railroads to compete with each other. As mentioned above, small railroads generally serve smaller, lower density markets and customers. They exist, and often thrive, doing business in markets where there is not enough traffic to attract the larger carriers which are designed to handle large volumes over distance at a profit. As there is usually not enough traffic to attract service by a large carrier, there is also not enough traffic to sustain more than one smaller carrier. In combination with the huge barriers to entry in the railroad industry (need to own right-of-way, build track, purchase fleet, etc.), small railroads rarely find themselves in competition with each other. Thus, even to the extent the rule may have an economic impact, it should have no impact on the intramodal competitive position of small railroads.
Based on the foregoing discussion and the more detailed analysis in the regulatory evaluation for this NPRM, I certify that the provisions of this NPRM, if adopted, will not have a significant impact on a substantial number of small entities.
We encourage small entities potentially affected by this rulemaking to participate in the public comment process by submitting comments on this assessment or this rulemaking. Comments will be addressed in the final document.
We developed this proposed rule in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure potential impacts of draft rules on small entities are properly considered.
PHMSA currently has an approved information collection under OMB Control No. 2137–0612, “Hazardous Materials Security Plans” expiring April 30, 2006. We are currently in the process of developing a request for renewal of this information collection approval for submission to OMB. We estimate an additional increase in burden as a result of this proposed rulemaking.
Section 1320.8(d), Title 5, Code of Federal Regulations requires the PHMSA provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies proposed new requirements to the current information collection under OMB Control No. 2137–0612. We estimate there will be a small increase in burden resulting from the new proposed requirements regarding rail shipments of hazardous materials in this rulemaking. PHMSA will submit this revised information collection to OMB for approval based on the requirements in this proposed rule. We estimate the additional information collection burden as proposed under this rulemaking is as follows:
OMB No. 2137–0612, “Hazardous Materials Security Plans”
PHMSA specifically requests comments on the information collection and recordkeeping burden associated with developing, implementing, and maintaining these requirements for approval under this proposed rule.
Address written comments to the Dockets Unit as identified in the
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $120.7 million or more to either state, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative to achieve the objective of the rule.
The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321–4347), requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment.
The hazardous materials regulatory system is a risk management system that is prevention-oriented and focused on identifying a hazard and reducing the probability and quantity of a hazardous materials release. Hazardous materials are categorized by hazard analysis and experience into hazard classes and packing groups. The regulations require each shipper to class a material in accordance with these hazard classes and packing groups; the process of classifying a hazardous material is itself a form of hazard analysis. Further, the regulations require the shipper to communicate the material's hazards by identifying the hazard class, packing group, and proper shipping name on shipping papers and with labels on packages and placards on transport vehicles. Thus, the shipping paper, labels, and placards communicate the most significant findings of the shipper's hazard analysis. A hazardous material is assigned to one of three packing groups based upon its degree of hazard, from a high hazard Packing Group I material to a low hazard Packing Group III material. The quality, damage resistance, and performance standards for the packagings authorized for the hazardous materials in each packing group are appropriate for the hazards of the material transported. The current security plan requirements in Subpart I of Part 172 of the HMR are also based on a prevention-oriented risk management approach focused on identifying security risks and vulnerabilities and implementing measures to mitigate the identified risks and vulnerabilities.
Hazardous materials are transported by aircraft, vessel, rail, and highway. The potential for environmental damage or contamination exists when packages of hazardous materials are involved in transportation accidents. Railroads carry over 1.7 million shipments of hazardous materials annually, including millions of tons of explosive, poisonous, corrosive, flammable and radioactive materials. The need for hazardous materials to support essential services means transportation of highly hazardous materials is unavoidable. However, these shipments frequently move through densely populated or environmentally sensitive areas where the consequences of an incident could be loss of life, serious injury, or significant environmental damage. The ecosystems that could be affected by a hazardous materials release during transportation include air, water, soil, and ecological resources (for example, wildlife habitats). The adverse environmental impacts associated with releases of most hazardous materials are short-term impacts that can be greatly reduced or eliminated through prompt clean-up of the accident scene. To address the safety and environmental risks associated with the transportation of hazardous materials by rail, rail tank cars must conform to rigorous design, manufacturing, and requalification requirements. The result is that tank cars are robust packagings, equipped with features such as shelf couplers, head shields, thermal insulation, and bottom discontinuity protection that are designed to ensure that a tank car involved in an accident will survive the accident intact.
In this NPRM, we are proposing to adopt regulations to enhance the safety and security of certain hazardous materials transported by rail. Specifically, we are proposing to require rail carriers to make routing decisions for specified shipments of hazardous materials based on an analysis of both the safety and security risks of alternative routing options. Requiring rail carriers to take safety and security issues into account when making hazardous materials routing decisions will reduce the possibility of an accidental or intentional release into the environment and consequent environmental damage. If adopted, we expect the requirements proposed in this NPRM to result in the selection by rail carriers of safer, more secure routes, the use of which would reduce the likelihood of a release of hazardous materials into the environment. Therefore, we have preliminarily determined that there are no significant environmental impacts associated with the proposals in this NPRM and that to the extent there might be any environmental impacts, they would be beneficial given the reduced likelihood of a hazardous materials release.
We invite commenters to address the possible beneficial and/or adverse environmental impacts of the proposals in this NPRM. We will consider comments received in response to this NPRM in our assessment of the environmental impacts of a final rule on this issue.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Hazardous materials transportation, Hazardous waste, Labeling, Packaging and containers, Reporting and recordkeeping requirements.
Hazardous materials transportation, Rail carriers, Reporting and recordkeeping requirements.
In consideration of the foregoing, we propose to amend title 49 Chapter I, Subchapter C, as follows:
1. The authority citation for part 172 continues to read as follows:
49 U.S.C. 5101–5128, 44701; 49 CFR 1.53.
2. Revise the title of subpart I of part 172 to read as set forth above.
3. Add new § 172.820, to read as follows:
(a)
(1) More than 2,268 kg (5,000 lbs) in a single carload of a Division 1.1, 1.2 or 1.3 explosive;
(2) A bulk quantity of a material poisonous by inhalation, as defined in § 171.8 of this subchapter; or
(3) A highway route-controlled quantity of a Class 7 (radioactive) material, as defined in § 173.403 of this subchapter.
(b)
(1) Commodity data must be collected by route, a line segment or series of line segments as aggregated by the rail carrier. Within the rail carrier selected route, the commodity data must identify the geographic location of the route and the total number of shipments by UN identification number for the materials specified in paragraph (a) of this section.
(2) A carrier may compile commodity data, by UN number, for all Class 7 and Division 6.1 materials transported instead of only the highway route controlled quantity or poison inhalation hazard materials.
(c)
(d)
(1) Safety and security risks presented by use of the alternative route;
(2) Comparison of the safety and security risks of the alternative to the primary rail transportation route;
(3) Any remediation or mitigation measures implemented on the primary or alternative route; and
(4) Potential economic effects of using the alternative route.
(e)
(f)
(2) At least once every five years, the analyses and route selection determinations required under paragraphs (c), (d), and (e) of this section must include a comprehensive, system-wide review of all operational changes, infrastructure modifications, traffic adjustments, or other changes affecting the safety or security of the movements of the materials specified in paragraph (a) of this section that were implemented during the five-year period.
(3) A rail carrier need not perform a rail transportation route analysis, alternative route analysis, or route selection process for any hazardous material other than the materials specified in paragraph (a) of this section.
(g)
(h)
(1) A procedure for consulting with offerors and consignees to minimize to the extent practicable the period of time during which the material is stored incidental to movement (see § 171.8 of this subchapter).
(2) A procedure for informing the operator of the facility at which the material will be stored incidental to movement that the rail car containing the material has been delivered to the facility. Such notification should occur as soon as practicable, but in no case later than 6 hours after delivery.
(3) Measures to limit unauthorized access to the materials during storage or delays in transit.
(4) Measures to mitigate risk to population centers associated with in-transit storage.
(5) Measures to be taken in the event of an escalating threat level for materials stored in transit.
(6) Procedures for notifying the consignee in the event of a significant delay during transportation; such notification must be completed within 48 hours after the carrier has identified the delay and must include a revised delivery schedule. Notification should be made by a method acceptable to both carrier and consignee. A significant delay is one that compromises the safety or security of the hazardous material or delays the shipment beyond its normal expected or planned shipping time.
(7) A procedure to inform the consignee that the material has been delivered to its facility. Such notification should occur as soon as practicable, but in no case later than 6 hours after delivery.
(i)
(2) Each rail carrier must restrict the distribution, disclosure, and availability of information collected or developed in accordance with paragraphs (b), (c), (d), (e), and (f) of this section to persons with a need-to-know, as described in parts 15 and 1520 of this title.
(j)
3. Add new Appendix D to part 172, to read as follows:
This appendix sets forth the minimum criteria that must be considered by rail carriers when performing the safety and security risk analyses required by § 172.820. The risk analysis to be performed may be quantitative, qualitative, or a combination of both. In addition to clearly identifying the hazardous material(s) and route(s) being analyzed, the analysis must provide a thorough description of the threats, identified vulnerabilities, and mitigation measures implemented to address identified vulnerabilities.
In evaluating the safety and security of hazardous materials transport, selection of the route for transportation is critical. For the purpose of rail transportation route analysis, as specified in § 172.820(c) and (d), a route may include the point where the carrier takes possession of the material and all track and railroad facilities up to the point where the material is relinquished to another entity. Railroad facilities include, but are not limited to, classification and switching yards, and sidings or other locations where storage in-transit occurs. Each rail carrier will act in good faith to communicate with its shippers, consignees, and interlining partners to ensure the safety and security of shipments during all stages of transportation.
Because of the varying operating environments and interconnected nature of the rail system, each carrier must select and document the analysis method/model used and identify the routes to be analyzed.
Factors to be considered in the performance of this safety and security risk analysis include:
1. Volume of hazardous material transported;
2. Rail traffic density;
3. Trip length for route;
4. Presence and characteristics of railroad facilities;
5. Track type, class, and maintenance schedule;
6. Track grade and curvature;
7. Presence or absence of signals and train control systems along the route (“dark” versus signaled territory);
8. Presence or absence of wayside hazard detectors;
9. Number and types of grade crossings;
10. Single versus double track territory;
11. Frequency and location of track turnouts;
12. Proximity to iconic targets;
13. Environmentally sensitive or significant areas;
14. Population density along the route;
15. Venues along the route (stations, events, places of congregation);
16. Emergency response capability along the route;
17. Areas of high consequence along the route;
18. Presence of passenger traffic along route (shared track);
19. Speed of train operations;
20. Proximity to en-route storage or repair facilities;
21. Known threats (the Transportation Security Administration and Federal Railroad Administration will provide non-public threat scenarios for carrier use in the development of the route assessment);
22. Measures in place to address apparent safety and security risks;
23. Availability of alternative routes;
24. Past incidents;
25. Overall times in transit;
26. Training and skill level of crews; and
27. Impact on rail network traffic and congestion.
4. The authority citation for part 174 continues to read as follows:
49 U.S.C. 5101–5128; 49 CFR 1.53.
5. Revise § 174.9 to read as follows:
(a) At each location where a hazardous material is accepted for transportation or placed in a train, the carrier must inspect each rail car containing the hazardous material, at ground level, for required markings, labels, placards, securement of closures, and leakage. These inspections may be performed in conjunction with inspections required under parts 215 and 232 of this title.
(b) For each rail car containing an amount of hazardous material requiring placarding in accordance with § 172.504 of this subchapter, the carrier must visually inspect the rail car at ground level for signs of tampering, including closures and seals, for suspicious items or items that do not belong, and for other signs that the security of the car may have been compromised, including the presence of an improvised explosive device. As used in this section, an improvised explosive device is a device fabricated in an improvised manner incorporating explosives or destructive, lethal, noxious, pyrotechnic, or incendiary chemicals in its design, and generally includes a power supply, a switch or timer, and a detonator or initiator. The carrier should be particularly attentive to signs that security of rail cars transporting materials covered by § 172.820 of this subchapter, rail carload quantities of ammonium nitrate or ammonium nitrate mixtures in solid form, or hazardous materials of interest based on current threat information may have been compromised.
(c) If a carrier determines that a rail car does not conform to the safety requirements of this subchapter, the carrier may not forward or transport the rail car until the deficiencies are rectified or the car is approved for movement in accordance with § 174.50.
(d) Where an indication of tampering or suspicious item is found, a carrier must take appropriate actions to ensure the security of the rail car and its contents has not been compromised before accepting the rail car for further movement. If the carrier determines the security of the rail car has been compromised, the carrier must take action, in conformance with its existing security plan (see subpart I of part 172 of this subchapter) to address the
Transportation Security Administration, DHS.
Notice of proposed rulemaking.
This proposal would enhance the security of our Nation's rail transportation system. The Transportation Security Administration (TSA) proposes security requirements for freight railroad carriers; intercity, commuter, and short-haul passenger train service providers; rail transit systems; and rail operations at certain, fixed-site facilities that ship or receive specified hazardous materials by rail. This rule proposes to codify the scope of TSA's existing inspection program and to require regulated parties to allow TSA and Department of Homeland Security (DHS) officials to enter, inspect, and test property, facilities, and records relevant to rail security. This rule also proposes that regulated parties designate rail security coordinators and report significant security concerns to DHS.
TSA further proposes that freight rail carriers and certain facilities handling hazardous materials be equipped to report location and shipping information to TSA upon request and to implement chain of custody requirements to ensure a positive and secure exchange of specified hazardous materials. TSA also proposes to clarify and extend the sensitive security information (SSI) protections to cover certain information associated with rail transportation.
This proposal would allow TSA to enhance rail security by coordinating its activities with other Federal agencies, which would also avoid duplicative inspections and minimize the compliance burden on the regulated parties. This proposed rule is intended to augment existing rail transportation laws and regulations that the Department of Transportation (DOT) administers. In today's edition of the
Submit comments by February 20, 2007.
You may submit comments, identified by the TSA docket number to this rulemaking, using any one of the following methods:
See
TSA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from this rulemaking action. See
With each comment, please include your name and address, identify the docket number at the beginning of your comments, and give the reason for each comment. The most helpful comments reference a specific portion of the rulemaking, explain the reason for any recommended change, and include supporting data. You may submit comments and material electronically, in person, by mail, or fax as provided under
If you want TSA to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.
TSA will file in the public docket all comments received by TSA, except for comments containing confidential information and sensitive security information (SSI)
Do not submit comments that include trade secrets, confidential commercial or financial information, or SSI to the public regulatory docket. Please submit such comments separately from other comments on the rulemaking. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed in
Upon receipt of such comments, TSA will not place the comments in the public docket and will handle them in accordance with applicable safeguards and restrictions on access. TSA will hold them in a separate file to which the public does not have access, and place a note in the public docket that TSA has received such materials from the commenter. If TSA receives a request to examine or copy this information, TSA will treat it as any other request under the Freedom of Information Act (FOIA) (5 U.S.C. 552) and DHS' FOIA regulation found in 6 CFR part 5.
Please be aware that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).
You may review the comments in the public docket by visiting the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Dockets Office is located on the plaza level of the Nassif Building, at the Department of Transportation address previously provided under
You can get an electronic copy using the Internet by (1) Searching the Department of Transportation's electronic Docket Management System (DMS) web page (
(2) Accessing the Government Printing Office's web page at
(3) Visiting TSA's Security Regulations web page at
In addition, copies are available by writing or calling the individual in the
TSA proposes security regulations that would cover a broad spectrum of the rail transportation sector, including freight railroad carriers, passenger railroad carriers, rail transit systems, and rail operations at certain facilities that ship or receive specified categories and quantities of hazardous materials. TSA proposes these regulations to enhance the security of rail transportation and to address potential security threats to rail transportation. TSA intends for these proposed regulations to build upon existing Department of Transportation (DOT) procedures and requirements.
TSA's proposal is also intended to augment a DOT proposal to revise the current requirements in the Hazardous Materials Regulations applicable to the safe and secure transportation of hazardous materials transported in commerce by rail. In this regard, in today's edition of the
TSA's rule proposes to apply several general requirements to all freight and passenger railroad carriers, certain facilities that ship or receive specified hazardous materials by rail, and rail transit systems:
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The rule also proposes to apply additional requirements to freight railroad carriers and certain facilities that ship or receive specified hazardous materials by rail:
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TSA proposes three categories and quantities of specified hazardous materials to which the proposed requirements in this NPRM would apply. The definitions are taken from DOT's Hazardous Materials Regulations (49 CFR Parts 171–180), as follows:
(1) A rail car containing more than 2,268 kg (5,000 lbs) of a Division 1.1, 1.2, or 1.3 (explosive) material, as defined in 49 CFR 173.50;
(2) A tank car containing a material poisonous by inhalation as defined in 49 CFR 171.8, including Division 2.3 gases poisonous by inhalation, as set forth in 49 CFR 173.115 (c) and Division 6.1 liquids meeting the defining criteria in 49 CFR 173.132(a)(1)(iii) and assigned to hazard zone A or hazard zone B in accordance with 49 CFR 173.133(a), other than residue; and
(3) A rail car containing a highway route-controlled quantity of a Class 7 (radioactive) material, as defined in 49 CFR 173.403.
Appendix B to proposed part 1580, reproduced as Table 1 below, presents a brief summary of the proposed security measures required for the different categories of rail transportation entities that this rule would govern.
In developing this rule, TSA sought to identify and address threats to rail transportation. With respect to passenger rail, TSA recognizes that passenger railroad carriers, commuter operations, and subway systems are high consequence targets in terms of potential loss of life and economic disruption. They carry large numbers of people in a confined environment, offer the opportunity for specific populations to be targeted at particular destinations, and often have stations located below or adjacent to high profile government buildings, major office complexes, and iconic structures. Terrorist bombings since 1995 highlight the need for improved government access to, and monitoring of, transportation of passengers by rail. Terrorists have attacked the Tokyo subway system (1995); areas in and around the Moscow subway system (2000, 2001, and 2004); Madrid commuter trains (2004); the London Underground system (2005); and the train system in Mumbai (formerly known as Bombay), India (2006).
TSA also considered the threats that face freight rail transportation. Due to the open infrastructure of the rail transportation system, freight trains can be particularly vulnerable to attack. Currently, rail carriers and shippers lack positive chain of custody and control procedures for rail cars as they move through the transportation system (e.g., as entities load the rail cars at originating facilities, as carriers transport the cars over the tracks, and as entities unload the cars at receiving facilities). This can present a significant vulnerability. Whenever entities stop rail cars in transit and interchange them without appropriate security measures, their practices can create security vulnerabilities. Freight trains transporting hazardous materials are of even more concern, because an attack on those trains (e.g., through the use of improvised explosive devices (IEDs)
TSA is taking a risk-based approach by focusing on shipments of certain hazardous materials at this time. Thus, this rulemaking is focused on establishing chain of custody and control procedures for rail cars that pose the greatest security vulnerability. While an IED attached to any rail car (such as a car transporting coal or household appliances) would obviously cause major damage to that car, and its contents upon detonation, the more likely scenario is that terrorists would target a rail car containing certain hazardous materials in order to inflict the most damage in terms of loss of life and property, and economic effect.
To determine which hazardous materials to identify in this proposed regulation, TSA looked to the hazardous materials that the Pipeline and Hazardous Materials Safety Administration (PHMSA) identified in
PHMSA considers the phrases “material poisonous by inhalation,” “poisonous inhalation hazard,” and “toxic inhalation hazard” to be synonymous and interchangeable. However, PHMSA referred to such material in the HM–232 rule text exclusively by the term “material poisonous by inhalation.”
Each of these three hazardous materials presents serious risks. The release of PIH materials in a densely populated urban area would have catastrophic consequences. Such a release would endanger significant numbers of people. An example of this was seen in the January 6, 2005, rail accident in Graniteville, South Carolina. A Norfolk Southern Railway Company freight train carrying chlorine was unexpectedly diverted from the main track onto a rail spur. The train struck a standing train on the rail spur, derailing three locomotives and sixteen rail cars and rupturing a tank car carrying chlorine. Even in this sparsely populated area, the collision resulted in fatal injuries to eight citizens and one railroad employee, injuries to 630 people, and the evacuation of 5,400 local residents. Damages to equipment and track totaled more than $2.3 million. While the accident was not the result of a terrorist attack, it nonetheless illustrates the danger of transporting PIH materials and the damage that can result from a release.
Although the number of rail shipments carrying explosives and radioactive materials is relatively low, a release of these materials could cause serious and devastating harm. If terrorists detonated certain explosives
The proposed rule will address the above-identified threats to rail transportation. The provisions in this proposed rule, including those allowing for TSA inspections and those requiring the designation of Rail Security Coordinators and the reporting of suspicious incidents, will improve TSA's ability to inspect rail operations and communicate with railroads and rail facilities. This will provide TSA and DHS with better information and monitoring capabilities concerning potential transportation security incidents involving rail travel. Also, the requirements related to hazardous materials, such as additional monitoring and protection of certain rail cars and increased availability of location and tracking information for certain rail cars, will decrease the vulnerabilities of these hazardous materials shipments to attack. Through these measures, TSA will significantly increase its domain awareness regarding rail security. TSA will continue to work with all involved entities to improve rail security.
TSA has the primary federal role in enhancing security for all modes of transportation. Under the Aviation and Transportation Security Act (ATSA)
TSA has additional authorities as well. TSA is specifically empowered to develop policies, strategies, and plans for dealing with threats to transportation.
TSA's authority with respect to transportation security is comprehensive and supported with specific powers related to the development and enforcement of regulations, SDs, security plans, and other requirements. Accordingly, under this authority, TSA may assess a security risk for any mode of transportation, develop security measures for dealing with that risk, and enforce compliance with those measures.
On December 17, 2003, the President issued Homeland Security Presidential Directive 7 (HSPD–7, Critical Infrastructure Identification, Prioritization, and Protection), which “establishes a national policy for Federal departments and agencies to identify and prioritize United States critical infrastructure and key resources and to protect them from terrorist attacks.”
To ensure that this collaboration occurs, DHS and DOT entered into a Memorandum of Understanding (MOU) on September 28, 2004. In accordance with the September 2004 MOU, both Departments share responsibility for rail and hazardous materials transportation security. The two Departments consult and coordinate on security-related rail and hazardous materials transportation requirements to ensure consistency with overall security policy goals and objectives and to ensure that the Federal agencies do not confront the regulated industry with inconsistent security guidance or requirements. The close coordination that has led to these proposed regulations is consistent with the MOU.
On August 9, 2006, PHMSA and TSA signed an annex to the September 28, 2004 DOT–DHS Memorandum of Understanding (MOU) on Roles and Responsibilities. The purpose of the annex is to delineate clear lines of authority and responsibility and promote communication, efficiency, and non-duplication of effort through cooperation and collaboration in the area of hazardous materials transportation security based on existing legal authorities and core competencies. The annex acknowledges that DHS has lead authority and primary responsibility for security activities in all modes of transportation, and notes that TSA is the lead Federal entity for transportation security, including hazardous materials security. Similarly, on September 28, 2006, FRA and TSA signed an annex to address each agency's roles and responsibilities for rail transportation security. The FRA–TSA annex recognizes that TSA acts as the lead Federal entity for transportation security generally and rail security in particular. The annex also recognizes that FRA has authority over every area of railroad safety (including security), and that FRA enforces PHMSA's hazardous material regulations. The FRA–TSA annex includes procedures for coordinating (1) planning, inspection, training, and enforcement activities; (2) criticality and vulnerability assessments and security reviews; (3) communicating with affected stakeholders; and (4) use of personnel and resources.
TSA's proposed requirements are designed to strengthen the existing regulatory scheme. TSA developed these proposed regulations, which are consistent with DOT's regulations, through close coordination with DOT. The discussion below explains the current and proposed DOT requirements and how TSA's proposed rule would fit into the regulatory framework DOT has established.
DOT regulates and oversees rail security through three of its modal administrations: The Pipeline and Hazardous Materials Safety Administration (PHMSA), the Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA).
The Federal hazardous materials transportation law (Federal hazmat law),
On March 25, 2003, PHMSA published a final rule, referred to as HM–232, which requires covered persons to develop and implement security plans. Covered persons include those who offer certain hazardous materials for transportation in commerce and those who transport certain hazardous materials in commerce.
Other PHMSA regulations seek to reduce the risks to safety and security of leaving loaded rail cars unattended for long periods of time. Pursuant to 49 CFR 174.14 and 174.16, a carrier must forward each shipment of hazardous materials “promptly and within 48 hours (Saturday, Sundays, and holidays excluded)” after the carrier accepts the shipment at the originating point or the carrier receives the shipment at any yard, transfer station, or interchange point. Where there is only biweekly or weekly service, the carrier must forward a shipment of hazardous materials in the first available train. Additionally, carriers are prohibited from holding, subject to forwarding orders, tank cars
PHMSA, in consultation with the Federal Railroad Administration (FRA) and TSA, has recently proposed to revise the current requirements in the hazardous materials regulations (HMR) applicable to the safe and secure transportation of hazardous materials transported in commerce by freight rail (Route Analysis NPRM). Among other things, PHMSA is proposing to require freight railroad carriers to compile annual data on specified shipments of hazardous materials; use the data to analyze safety and security risks along rail transportation routes where those materials are transported; assess alternative routing options; and make routing decisions based on those assessments.
FRA, the agency within DOT responsible for railroad safety, administers the Federal railroad safety laws, which provide FRA with authority over “every area of railroad safety.”
The FTA provides financial assistance to support a variety of locally planned, constructed, and operated public transportation systems throughout the United States. Under 49 CFR part 659, FTA manages State Safety Oversight for Rail Fixed Guideway Systems.
TSA has designed this rule so that it would build on DOT's existing regulatory scheme. This rule would augment existing and proposed PHMSA requirements, address security vulnerabilities in the freight rail regulatory scheme, and complement the DOT regulatory scheme regarding passenger rail and mass transit.
First, TSA's NPRM would expand the scope of pre-shipment inspections of rail cars containing hazardous materials. Existing PHMSA regulations require freight railroad carriers to perform a safety inspection at the ground level of each rail car containing hazardous materials.
TSA's NPRM would expand these inspections even further. Existing and proposed DOT regulations include pre-shipment inspections for railroad carriers; however, they do not require security-specific inspections for rail hazardous materials shippers. TSA's proposal would require certain rail hazardous materials shippers to physically inspect a rail car from a security perspective (including closures and seals) before transferring custody of a rail car to a freight railroad carrier. Shippers would have to inspect for signs of tampering; for any other signs that the security of the car may have been compromised; and for suspicious items that do not belong, including the presence of an IED.
Second, TSA's NPRM would address other security vulnerabilities that currently exist in the freight rail regulatory scheme. Current regulations do not include chain of custody requirements and, therefore, current regulations do not address security vulnerabilities for hazmat cars in transit or at interchanges. To address this issue, TSA proposes chain of custody requirements, including requirements for monitored and protected transfer locations, and documented transfers. In addition, current regulations do not contain requirements for rail car location reporting and, therefore, do not address the Federal Government's need for prompt, critical information if it becomes necessary to reroute, stop, or otherwise protect shipments and populations to address specific security threats or incidents. To address this issue, TSA proposes rail car location and information reporting requirements.
Third, this NPRM would complement the existing DOT regulatory scheme for passenger and rail mass transit. This NPRM would enhance oversight of rail fixed guideway systems. FTA's regulations, at 49 CFR part 659, direct rail transit agencies and OAs to conduct security reviews. FTA does not oversee these reviews. This proposed rule would augment these requirements. TSA inspectors would provide the FTA and responsible State agencies with a field presence, which has not existed previously, to monitor and assess
TSA's NPRM would also complement the existing DOT regulatory scheme for passenger and rail mass transit by allowing TSA inspections, requiring the designation and use of RSCs, and requiring the reporting of threats and significant security concerns. TSA's proposed requirements would enhance the agency's ability to maximize its domain awareness and recognize possible national trends involving security issues. As a complement to FRA's exercise of its safety authority over covered passenger rail operations involving “every area of railroad safety” (
Consistent with ATSA's broad authorities and with the fact that terrorists may target any part of the rail transportation system, this NPRM would impose requirements on all types of rail operations, including freight railroad carriers; intercity, commuter, and short-haul railroad passenger train service; and rail transit systems. The rule would also apply to rail hazardous materials shippers that offer, prepare, or load for transportation in commerce by rail one or more of the specified categories and quantities of hazardous materials. Also, the rule would apply to rail hazardous materials receivers that receive or unload the specified hazardous materials by rail in a High Threat Urban Area (HTUA).
With respect to freight railroad carriers and rail hazardous materials facilities, an important issue relating to the scope of the rule is which activities are transportation-related and, therefore, within TSA's jurisdiction. This section of the preamble discusses the scope of the applicability of the proposed rule to freight railroad operators, rail hazardous materials shippers, rail hazardous materials receivers, and passenger railroad carriers. It also identifies activities that are transportation-related and, therefore, within the scope of the proposed rule. TSA defines the term “transportation,” as related to security purposes, more broadly than PHMSA defines the term, as related to safety purposes.
This NPRM proposes requirements that apply to all freight railroad carriers, except for those carriers whose entire operations are confined to an industrial installation. The proposed rule would not apply to, for example, a plant railroad carrier in a steel mill that serves only the needs of the plant itself and does not go beyond the plant's boundaries. Of course, even where a railroad carrier operates outside the general system of transportation, other railroad carriers that are part of that general system may enter the first railroad carrier's property. For example, a major railroad carrier may enter a chemical or auto plant via an industrial lead to pick up or set out rail cars. In such cases, the railroad carrier that is part of the general system would remain part of the general system while inside the installation, and TSA's proposed regulations would continue to cover all of its activities. Moreover, although TSA would not directly regulate the transportation operations of the railroad carrier located inside the installation that take place solely for the carrier's own corporate purpose, TSA would assert its security authority over all security matters involving that point of connection, to the extent the general system railroad carrier is engaging in transportation activities with the installation railroad carrier at a point of connection to the general system.
The applicability of the proposed freight railroad carrier requirements vary depending on whether the carrier transports specified categories and quantities of hazardous materials and whether these materials are or may be located in HTUAs. The regulation would, however, require all freight railroad carriers (regardless of whether they transport any hazardous materials), as well as freight railroad carriers hosting passenger operations,
TSA's statutory authority over the security of freight rail transportation is co-extensive with FRA's authority over freight railroad safety; accordingly, TSA is proposing to make subject to this rule all freight railroad carriers that are subject to the jurisdiction of FRA. With respect to freight railroads, FRA's statutory jurisdiction extends to all entities that can be construed as railroads by virtue of their providing non-highway ground transportation over rails or electromagnetic guideways, and will extend to future railroads using other technologies not yet in use.
The requirements of this NPRM will apply to rail hazardous materials shippers and receivers. Specifically, TSA proposes that shippers and receivers be subject to TSA inspection, have RSCs, report significant security concerns, provide location and shipping information for specified hazardous materials, and provide a secure chain of custody and control for specified hazardous materials. For purposes of this NPRM, TSA uses the following definitions: Rail hazardous materials shippers are facilities that are connected to the general railroad system of transportation and offer, prepare, or load for transportation by rail one or more of the specified categories and quantities of the hazardous materials listed in § 1580.100(b) of the NPRM. Rail hazardous materials receivers are facilities that are connected to the general railroad system of transportation and that receive or unload from transportation by rail one or more of the specified categories and quantities of the hazardous materials listed in § 1580.100(b) of the NPRM. Both definitions exclude facilities that the Federal government operates.
TSA's statutory authority under ATSA extends to rail hazardous materials shippers and receivers. In addition to the authorities described in
This proposed rule covers only those hazardous materials facilities that: (1) Are connected to the general rail system of transportation, and (2) offer, prepare, load, receive, and/or unload for or from transportation by rail, specified hazardous materials. Hazardous materials shippers load rail cars that freight railroad carriers pick up for transport. The rail cars may travel anywhere in the general transportation system, including in and near high population areas, critical infrastructure, and other critical areas. Sometimes loaded rail cars will remain for some time at the shipper's facility awaiting pickup from the carrier. Whether being loaded at facilities or awaiting pickup at facilities, these rail cars could endanger surrounding areas. Under ATSA, TSA has authority to ensure the adequacy of security measures at the transportation-related areas of these facilities. This includes authority to inspect those areas used for transportation security activities. This would include, for example, control rooms or offices where security activities are initiated or monitored.
TSA used a risk-based approach in determining the rail hazardous materials facilities to which this rulemaking would apply. The highest risk exists from the rail transport of the specified hazardous materials when those rail cars are in or near an HTUA. TSA decided to use the HTUA listing to define those areas for which this rulemaking would provide additional security measures. A rail car departing any rail hazardous materials facility could enter an HTUA. TSA notes that, as to rail hazardous materials facilities receiving or unloading hazardous materials, the highest risk is at those facilities that are located within an HTUA. Therefore, TSA proposes that the regulation cover all rail hazardous materials facilities that receive or unload, within an HTUA, one or more of the specified hazardous materials.
TSA's authority is not limited to FRA's jurisdiction over passenger rail and, therefore, includes rail transit systems. TSA's authority is also not circumscribed by FTA's jurisdiction. Therefore, the proposed rule would apply to all passenger railroad carriers within FRA's statutory jurisdiction (including tourist, scenic, historic, and excursion operations), and all rail transit systems (including light rail, heavy rail, rapid transit, monorail, inclined planes, funiculars, cable cars, trolleys, and automated guideways) within FTA's statutory jurisdiction, and other passenger rail systems.
TSA proposes to apply this rule to all railroad carriers that operate passenger train service, provide commuter or other short-haul passenger train service in a metropolitan or suburban area, or host the operations of such passenger train service. Under the provisions of the proposed rule, TSA would regulate as a passenger railroad carrier any public authority that indirectly provided passenger train service by contracting out the actual operation to another railroad carrier or independent contractor. Although the public authority would ultimately be responsible for designating and using an RSC, allowing TSA to conduct inspections or tests, and reporting significant security concerns, the railroad carrier or other independent contractor that operates the authority's passenger rail service would be required to fulfill all applicable responsibilities with respect to rail transportation security planning, including implementation.
The proposed rule would cover freight railroad carriers that host the operations of passenger train service over its lines, but that neither provide nor operate passenger train service itself. The proposal would also cover passenger railroad carriers that, in addition to operating or providing their own passenger train service, host the operations of other passenger railroad operations. TSA recognizes that under the proposed rule, the host freight and passenger railroad carriers would already be subject to the provisions of the rule (
TSA recognizes that host railroad carriers already bear certain significant safety and security responsibilities. For example, pursuant to FRA emergency preparedness regulations, host railroad carriers must have procedures for making emergency responder notifications, be capable of rendering assistance to the involved passenger railroad carriers during emergency situations, and address any physical and operating characteristics of their rail lines that may affect the safety of these railroad operations (such as evacuating passengers from a train stalled in a tunnel or on an elevated structure).
TSA's proposal to cover rail transit systems would build upon DOT's existing regulatory scheme. A rail transit system is generally subject to the jurisdiction of FTA, FRA, or both; the determining factor for jurisdiction is whether the transit system is connected to the general railroad system of transportation. For rail transit systems that are not connected to the general system, the applicable DOT requirements include FTA's State Safety Oversight for Rail Fixed Guideway Systems regulations.
TSA's authority over rail transit systems is not limited to rail fixed guideway systems receiving or seeking to receive funds under FTA's grant program, and is therefore broader than the scope of coverage of FTA's regulation (49 CFR part 659). Accordingly, TSA's authority extends to all rail transit systems regardless of whether the system is subject to regulation by FTA, FRA, or neither agency.
Some of the requirements in this NPRM would apply to tourist, scenic, historic, and excursion passenger rail systems. Specifically, these types of operations would be subject to inspection by TSA and DHS officials and would be required to report significant security concerns.
With two exceptions, FRA exercises jurisdiction over tourist, scenic, and excursion railroad operations whether or not they are conducted on the general railroad system. The exceptions are: (1) Operations of less than 24-inch gage, which, historically, have never been considered railroads under the Federal railroad safety laws; and (2) operations that are off the general railroad system of transportation and “insular.”
TSA also proposes that the operators of private cars, including business or office cars and circus trains that are on or connected to the general railroad system of transportation, allow TSA to inspect and be required to report significant security concerns. TSA believes that a private car operation that hauls passengers should perform a basic level of security preparedness planning consistent with the planning of other passenger train operations. TSA recognizes the fact that private rail cars do not haul as many passengers as these other operations and, therefore, these rail cars constitute a less attractive target for terrorists. Moreover, TSA recognizes that host railroads, such as National Railroad Passenger Corporation (Amtrak) and commuter railroads, often haul private cars, and these hosts would already be required to have RSCs, who can serve as a point of contact with TSA while the host is hauling the private cars.
Finally, TSA seeks comment on whether there are financial, operational, or other factors that are unique to the operation of tourist, scenic, historic, and excursion passenger rail systems or the operation of private rail cars and if so, what those factors are.
Certain provisions of this proposed rulemaking (
(1) A rail car containing more than 2,268 kg (5,000 lbs) of a Division 1.1, 1.2, or 1.3 (explosive) material, as defined in 49 CFR 173.50.
(2) A tank car containing a material poisonous by inhalation as defined in 49 CFR 171.8, including Division 2.3 gases poisonous by inhalation, as set forth in 49 CFR 173.115(c) and Division 6.1 liquids meeting the defining criteria in 49 CFR 173.132(a)(1)(iii) and assigned to hazard zone A or hazard zone B in accordance with 49 CFR 173.133(a), other than residue; and
(3) A rail car containing a highway route-controlled quantity of a Class 7 (radioactive) material, as defined in 49 CFR 173.403.
DOT's Hazardous Materials Regulations define the term “material poisonous by inhalation” in 49 CFR 171.8. Materials poisonous by inhalation, also called poison inhalation hazard (PIH) materials, are gases or volatile liquids that are toxic to humans when inhaled. Specific classification criteria for PIH gases are in 49 CFR 173.115(c) and 173.116(a); classification criteria for PIH liquids are in 49 CFR 173.132(a)(1)(iii) and 173.133(a).
PHMSA defines “radioactive material” to mean a material containing radionuclides where both the activity concentration and the total activity in the consignment exceed the values specified in the table in 49 CFR 173.436 or values derived according to the instructions in 49 CFR 173.433.
Under the HMR, an “explosive” refers to “any substance or article, including a device, which is designed to function by
TSA, PHMSA, and FRA have assessed the security vulnerabilities associated with the transportation of different types and classes of hazardous materials. In this NPRM, TSA has applied enhanced security requirements to the specified hazardous materials based on specific transportation scenarios. These scenarios depict how individuals could deliberately use hazardous materials to cause significant casualties and property damage. The materials and the quantities specified in proposed § 1580.100(b) present a significant rail transportation security risk and an attractive target for terrorists because of the potential for them to use these materials as weapons of mass effect. TSA continues to evaluate the security risks associated with the transportation of hazardous materials and may propose additional regulations including regulations pertaining to other materials or quantities of materials in the future.
The proposed rule excludes tank cars containing only residual amounts of the hazardous material. From a security perspective, it appears that the consequences of the release of residual PIH materials would be significantly less than the consequences of an incident involving a loaded tank car. TSA seeks comment on whether it should apply the requirements in this NPRM to fewer or additional hazardous materials or should extend the requirements to include tank cars containing residue. TSA also seeks comment on whether there are other hazardous materials that could cause significant loss of life, transportation system disruption, or economic disruption and whether TSA should apply the requirements of this NPRM to those other materials. TSA will continue to evaluate whether it should expand or reduce the list of hazardous materials and whether it should make tank cars containing residue subject to the rule.
The proposed requirements for reporting shipping and location information and for providing a secure chain of custody are applicable to the transportation of specified hazardous material that is or may be in an HTUA. TSA is using the term HTUA and its definition to describe and delineate those geographic areas that warrant special consideration with respect to transportation security. In this NPRM, TSA derived its lists of HTUAs from the Urban Areas Security Initiative (UASI) program. TSA includes a list of HTUA in Appendix A to this NPRM. As well, the list is available on the DHS Web site:
First implemented in 2003, UASI is a risk-based methodology that is consistent with DHS's national risk management efforts for homeland security. DHS identified UASI areas as HTUAs if they had populations greater than 100,000 and had reported threat data during the past fiscal year. Currently, DHS has identified 46 HTUAs based on risk assessments considering three variables: (1) Threat, or the likelihood of a type of attack that might be attempted; (2) vulnerability, or the likelihood that an attacker would succeed; and (3) consequence, or the impact of an attack occurring. Each HTUA consists of a city limit or combined adjacent city limits, plus a 10-mile buffer zone extending from the city border(s). Appendix A to this proposed rule contains the 46 Urban Areas that were eligible to apply for the FY 2006 UASI Program. TSA proposes to use the FY 2006 list of Urban Areas for this rule. TSA has evaluated the security issues for rail transportation of specific hazardous material and believes that the results of the FY 2006 UASI risk model are an appropriate methodology for this rulemaking. As proposed, if DHS makes any changes in subsequent years to the FY 2006 list, those changes will not affect the TSA list in Appendix A unless TSA subsequently amends the list.
DHS evaluated these HTUAs for two separate, but complementary, types of risk: asset-based risk and geographically-based risk. Considered together, these two calculations provide an estimate of total terrorism risk. This is accomplished using a common risk model that is internally consistent across all homeland security grant allocations. Under this model, asset-based risk is a function of the combined risks of terrorism to potential targets within a geographic area. In comparison, geographically-based risk is derived from certain prevailing attributes or characteristics intrinsic to a geographical area, such as a border, that may contribute to its risk of terrorism.
In May 2005, DHS held a meeting with stakeholders to solicit input and feedback on the risk formula. Attendees included key representatives from 12 States and urban areas, as well as representatives from national and international associations of police, emergency managers, city chiefs, and fire chiefs. The current risk model reflects the recommendations of the stakeholders who attended the May 2005 meeting. Additional information about the risk methodology is available at the following Web site:
TSA is currently conducting vulnerability assessments of the transportation of PIH materials through the UASI HTUAs. Through these assessments, TSA has identified operational practices and conditions that may compromise transportation security. TSA has addressed some of the major practices and conditions in this rulemaking, including the lack of positive and secure exchange of custody and control of rail cars containing hazardous materials and the lack of secure storage of these materials at transportation facilities.
TSA is soliciting comment on the adoption of the DHS HTUAs for this proposed rule, and seeks comment on appropriate criteria to use to determine those areas where freight railroad carriers and rail hazardous materials shippers and receivers should be subject to additional security requirements. If TSA decides in the final rule to use HTUAs as the basis for imposing additional security requirements, TSA will continue studying the patterns of rail transportation across the nation and may revise the list of HTUAs established by DHS for FY 2006, as appropriate.
Section 114(s) of title 49 of the United States Code requires TSA to promulgate
Although 49 CFR part 1520 primarily covers aviation and maritime security-related information, vulnerability assessments and threat information related to all modes of transportation are considered SSI under 49 CFR 1520.5(b)(5) and 1520.5(b)(7) and must be protected and handled in accordance with 49 CFR part 1520. However, because certain other information created in connection with this proposed rule would be detrimental to transportation security if publicly disclosed, TSA is proposing to amend 49 CFR part 1520 to more directly protect information related to the rail sector. This rulemaking would add railroad carriers, rail hazardous materials shippers, rail hazardous materials receivers, and rail transit systems as covered persons under part 1520 and explicitly require them to restrict the distribution, disclosure, and availability of SSI to persons with a need to know, and refer all requests for SSI by other persons to TSA or the applicable component or agency within DOT or DHS.
The NPRM would amend part 1520 to clarify that any review, audit, or other examination of the security of a railroad, railroad carrier, rail facility, rail hazardous materials shipper, rail hazardous materials receiver, rail transit system, or rail transit facility that is directed, created, held, funded, or approved by DOT or DHS, or that will be provided to DOT or DHS in support of a Federal security program, is SSI. The NPRM would also amend part 1520 to cover certain details of security inspections or investigations involving rail transportation security; specific details of rail transportation security measures; security training materials for persons carrying out rail transportation security measures required or recommended by DHS or DOT; lists of identifying information of personnel having unescorted access to a rail secure area; and lists identifying critical rail infrastructure assets. TSA seeks comment on whether it should protect as SSI under part 1520 any other information that may be created under this rule.
TSA is proposing that all entities covered by this proposed regulation allow TSA to inspect their facilities without advance notice. TSA will conduct inspections in a reasonable manner consistent with TSA guidance for its inspectors. In enacting ATSA, Congress recognized the importance of security for all forms of transportation and related infrastructure and, in establishing TSA, conferred upon it responsibility for security in all modes of transportation. The United States rail network is a vital link in the Nation's transportation system and is critical to the economy, national defense, and public health. Amtrak, the Alaska Railroad Corporation, commuter railroads, and rail transit systems provide passenger rail service to millions of passengers yearly. Approximately 40 percent of all intercity freight goes by rail, including 64 percent of the coal that electric utilities use to produce power.
Maintaining a safe and secure rail transportation system is essential. TSA must be able to inspect at any time in order to carry out its security-related statutory and regulatory authorities, including the following authorities in 49 U.S.C. 114(f):
(2) assess threats to transportation;
(7) enforce security-related regulations and requirements;
(9) inspect, maintain, and test security facilities, equipment, and systems;
(10) ensure the adequacy of security measures for the transportation of cargo;
(11) oversee the implementation, and ensure the adequacy, of security measures at airports and other transportation facilities; and
(15) carry out such other duties, and exercise such other powers, relating to transportation security as the Assistant Secretary considers appropriate, to the extent authorized by law.
As noted above, under this proposal, TSA's inspection authority also covers rail hazardous materials facilities that offer, prepare, or load for transportation by rail certain specified categories and quantities of hazardous materials, as well as facilities that receive or unload these materials from transportation by rail in a HTUA. In this regard, TSA's authority over transportation security explicitly covers the transportation of cargo.
More importantly, because the transportation system may be compromised by the introduction of an IED or other destructive instrument, the authority for transportation security necessarily includes authority to inspect, as necessary, the facilities that offer, prepare, load, receive, or unload certain hazardous materials that travel in rail transportation, if that packaging might be vulnerable to compromise. Limiting TSA's authority to inspect the security of cargo only after it is being transported would negate TSA's ability to protect the transportation system effectively. Accordingly, TSA's authority extends to rail hazardous materials facility points of entry of cargo going into the transportation system.
Except as noted below, in §§ 1580.101 and 1580.201, TSA is proposing to require each railroad carrier, rail hazardous materials shipper, rail hazardous materials receiver, and rail transit system covered within the scope of part 1580 (
When appropriate to carry out a regulatory requirement, including the provisions of an SD, the RSC would also be responsible for working with other entities to coordinate implementation of security measures. Those other entities involved in the security of the rail operation might include freight railroad carriers hosting passenger operations, owners of rail stations used by passenger operations, law enforcement agencies, and emergency response agencies. TSA understands that many railroads operate through a very large number of local and State jurisdictions, and it would be impracticable for the railroad to meet with every one. This NPRM would not require the RSC to do so. TSA expects that the railroad would reach out to those most likely to need to respond to a security incident.
At a minimum, TSA anticipates that the railroad carriers, rail hazardous materials shippers, rail hazardous materials receivers, and rail transit systems would be able to quickly and accurately assess a security situation and then notify the appropriate law enforcement and emergency response agencies. In addition, TSA expects that the coordination effort would include the following elements: the offering of information to the appropriate agencies (as applicable) on the locations of railroad carrier facilities, rail hazardous materials shipper and receiver facilities, and rail transit facilities; access to railroad carrier, rail hazardous materials shipper, rail hazardous materials receiver, and rail transit agency equipment; and communications interface. Where a railroad carrier, rail hazardous materials shipper, rail hazardous materials receiver, or rail transit system requested TSA's assistance or notified TSA that its RSC was having difficulty coordinating security practices or procedures, TSA would intervene, as appropriate, to assist.
To the maximum extent feasible, TSA anticipates that railroad carriers, rail hazardous materials shippers, rail hazardous materials receivers, and rail transit systems would not need to establish a new company or corporate division or infrastructure to carry out the responsibilities of the RSC and would not need to hire new employees to serve exclusively as RSCs. Rather, TSA expects that the proposal would result in only an incremental increase in the job duties of existing employees who have related functions. Moreover, in many instances, the related job functions involve compliance with existing Federal requirements.
TSA anticipates that certain rail hazardous materials shippers and receivers, particularly the smaller ones, would employ the services of the individual who serves as the manager of safety, health, and environment. This individual traditionally oversees regulatory compliance with the requirements of Federal agencies such as the Occupational Safety and Health Administration and the Environmental Protection Agency. Other rail hazardous materials shippers and receivers, particularly the larger companies, may employ an individual to serve exclusively in the role of the RSC. In the case of rail hazardous materials facilities that are also subject to the maritime security regime required by the Maritime Transportation Security Act of 2002, as codified in 46 U.S.C. Chapter 701, the individual who serves as the Federal Maritime Security Coordinator or the Facility Security Officer may also fulfill the duties of the RSC.
TSA anticipates that Class I and larger Class II railroad carriers
Class I: Carriers having annual carrier operating revenues of $250 million or more after applying the railroad revenue deflator formula.
Class II: Carriers having annual carrier operating revenues of less than $250 million but in excess of $250 million after applying the railroad revenue of deflator formula.
Class III: Carriers having annual carrier operating revenues of $250 million or less after applying the railroad revenue deflator formula.
Current Year's Revenues x (1991 Average Index/Current Year's Average Index).
The STB is an economic regulatory agency that Congress charged with the fundamental missions of resolving railroad rate and service disputes and reviewing proposed railroad mergers.
TSA has crafted this RSC proposal as a performance standard, and TSA expects that each railroad carrier, rail hazardous materials shipper, rail hazardous materials receiver, and rail transit system will provide its RSC with the information necessary to perform its job duties. The proposal does not include a training requirement. However, TSA seeks comment on whether the final rule or another rulemaking should include such a requirement. In this regard, TSA seeks comment on what training methods railroad carriers, rail hazardous materials facilities, and rail transit facilities could use to meet this requirement. For example, should TSA require specific training as it does in aviation for aircraft operator Ground Security Coordinators?
Under the proposed rule, the requirement to designate and use an RSC does not apply to the operation of private rail cars, including business/office cars and circus trains, or to tourist, scenic, historic, or excursion operations, whether on or off the general railroad system of transportation, unless TSA notifies the owner or operator in writing that a security threat exists concerning that operation. Such notifications, and lists of specific private rail car owners and operators that TSA has required to appoint an RSC, would be protected as SSI threat information under § 1520.5(b)(7).
In reaching the decision to exclude the above types of operations, TSA considered their relative security risk, which TSA treated as a function of three variables:
With respect to tourist, scenic, historic, and excursion operations, TSA analyzed the security risk and also considered the financial, operational, and other factors unique to such railroad carriers. At this time, TSA concludes that these operations do not need to appoint RSCs, unless TSA notifies them to do so.
This rule proposes that freight railroad carriers transporting the specified categories and quantities of hazardous materials and certain rail hazardous materials shippers and receivers must provide information to TSA, upon request, on the location of rail cars. This requirement grew out of an August 16, 2004 notice and request for comments that PHMSA and TSA issued. The notice, entitled “Hazardous Materials: Enhancing Rail Transportation Security for Toxic Inhalation Hazard Material,” addressed the need for enhanced security requirements for the rail transportation of hazardous materials posing a PIH hazard.
The August 2004 Notice indicated that DOT and DHS were considering whether they should require communication or tracking requirements, such as satellite tracking of rail cars and real-time monitoring of tank car or track conditions for rail shipments of PIH materials. In addition, the Notice suggested that DOT and DHS were considering reporting requirements in the event that PIH shipments are not delivered within specified time periods.
Currently, there are no regulations that include communication, location, or tracking requirements for hazardous materials shipments by rail. While offerors and transporters of PIH materials may elect to implement communication, location, or tracking measures as part of the security plans they develop in accordance with subpart I of part 172 of the HMR, such measures are not mandatory.
Some commenters to the August 2004 Notice questioned whether the tracking of rail shipments of PIH materials has a security benefit. They suggested that the probability that a rail car will be moved off the rail network is extremely remote and, further, that tracking rail cars to determine if they are off course has no value from a security perspective. Although some commenters expressed concerns about the reliability of tracking systems and the ease with which some systems could be compromised, several commenters suggested that since the railroad industry already has the capability to track rail cars, the existing system should be supplemented, not replaced, and any mandated tracking requirements should provide for flexibility in choosing different technologies.
DHS believes that information concerning the location of certain hazardous materials should be readily available to industry and the Federal Government, particularly during elevated threat situations. Such information would be critical to decisions concerning possible rerouting, stopping, or otherwise protecting shipments and populations to address specific security threats or incidents. Freight railroad carriers currently have the capability to locate a rail car's last reported location using the Automatic Equipment Identification (AEI) tag and reader system,
Based upon TSA's consideration of the security vulnerabilities associated with the transportation of different types and classes of hazardous materials, the proposed rule would add location and shipping information requirements, focusing upon the three types and quantities of hazardous materials that TSA has concluded pose a significant transportation security risk.
This rule would require covered freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers to report the location and shipping information of these rail cars when TSA requests such information.
The proposed rule would establish a performance standard that requires the regulated entity to be able to provide the requested information in the timeframe specified, without mandating a particular technology or system protocol for obtaining it. Accordingly, as discussed further in the Section-by-Section Analysis for § 1580.103 below, while certain larger freight railroad carriers would choose to meet the requirement by using AEI Tags, smaller carriers that rarely haul rail cars
TSA recognizes that the ability of the freight railroad industry to track billions of dollars of equipment and cargo is crucial for good customer service and efficient rail operations, and seeks comment from rail tank car manufacturers, rail tank car owners, freight railroad carriers, and the insurance industry on the feasibility and potential future uses of Global Positioning Systems
The threats to transportation security present a new paradigm for intelligence collection, analysis, and application. For most of its history, the United States has focused its intelligence resources on the military and political establishments of foreign states. In the aftermath of the September 11, 2001 attacks, the focus areas for intelligence collection activities have expanded markedly.
Detecting terrorist activities entails piecing together seemingly unrelated or minor observations, encounters, and incidents and analyzing information from other sources to identify indications of planning and preparation for an attack. The terrorist threat and the rail mode's vulnerability have unfortunately been well demonstrated by multiple attacks throughout the world. In this environment, reports from railroad carriers, rail hazardous materials shippers and receivers, and rail transit systems are essential to the detection of indications of terrorist planning and preparation activities. Seemingly disconnected or disparate reports of suspicious or unusual activities, if timely and effectively analyzed in the context of broader information derived from the intelligence community, may provide the insight necessary to prevent a terrorist attack.
Essential to achieving this objective is the enhancement and expansion of the means to detect indicators of terrorist surveillance, planning, and preparation activities and to identify suspicious persons at and near rail cars, stations, terminals, facilities, and other infrastructure. A critical component of this effort is timely reporting of incidents and other matters of security concern.
TSA would require all entities covered by this NPRM to report significant security concerns to TSA. Significant security concerns encompass incidents, suspicious activities, and threat information including, but not limited to the following incidents: interference with the train crew; bomb threats—both specific and non-specific; reports or discovery of suspicious items which result in the disruption of operations; suspicious activity occurring onboard a train that results in a disruption of operations; discharge, discovery, or seizure of a firearm or other deadly weapon on a train or in a station or terminal; information relating to the possible surveillance of a train or rail facility; correspondence received by the railroad carrier or rail transit system operator indicating a potential threat to rail transportation; disruption of train operations, including derailments and accidents, the cause of which appears suspicious or the result of suspected criminal activity; and any major breaches of security at a rail facility. These requirements will ensure that systems are put in place that will increase domain awareness and allow TSA to be aware of possible national trends. These requirements would not supersede existing requirements to report incidents to State or local first responders or other authorities.
a.
Any limited overlap of information that this reporting requirement would create would be neither an unnecessary duplication of effort nor a burdensome requirement. Proposed § 1580.203 covers a much broader scope of security concerns than the existing reporting requirements at 49 CFR 659.33 or pursuant to FTA grant programs. The distinction reflects the different focus of TSA and the State OAs. State OAs seek to track and record significant incidents, whether malicious or accidental, that result in loss of life, multiple significant injuries, or substantial property damage. The purpose is to create a historical record for later assessment of whether corrective action should be taken. TSA seeks to obtain a stream of information for analysis purposes. With broader collection of information, the Transportation Security Intelligence Service and DHS Office of Intelligence and Analysis will be better able to identify trends or patterns that may indicate terrorist planning and preparation activities. The proposed requirement for the reporting of potential threats and significant security concerns would provide essential material for this vital effort.
Additionally, rail transit agencies may have reporting requirements deriving from grant programs that FTA administers. These programs may require rail transit agencies to provide accounting and statistical reports on a variety of matters to the National Transit Database on a specified basis, such as monthly. Again, any partial overlap of information covered in the two reporting requirements would not result in an unnecessary duplication of effort
Proposed § 1580.203 would apply to tourist, scenic, historic, and excursion operations as well as other passenger rail operations. In deciding whether to apply this provision to these passenger railroad operators, TSA considered the protocols, such as immediately reporting a concern or incident to appropriate law enforcement authorities, that any prudent owner or operator of a tourist, scenic, historic, or excursion railroad should follow if faced with a security threat or concern. The proposed reporting requirement merely adds DHS as an additional recipient of this information. TSA seeks comments from these passenger railroad carriers and their associations to determine if there are financial, operational, or other factors that may be unique to such passenger railroad operations that justify modifying or eliminating the proposed reporting requirement applicable to these operations.
b.
Proposed § 1580.105 covers a much broader scope of security concerns than other existing reporting requirements, such as the FRA requirement in 49 CFR 225.9 that railroad carriers report certain types of accidents/incidents telephonically to the National Response Center.
This NPRM proposes that certain freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers eliminate practices that leave hazardous materials unattended, thereby creating the potential for significant transportation security incidents. TSA's analysis indicates that there is a security vulnerability to HTUAs from freight railroad carriers leaving unattended rail cars, and in some cases entire trains, carrying one or more of the specified hazardous materials, for eventual pickup by another railroad carrier or by the consignee rail hazardous materials receiver. There is also a security vulnerability when rail hazardous materials shippers load rail cars with hazardous materials and leave the cars unattended, for pickup by the railroad carrier. Often these cars are left unattended in a non-secure area and thus may be vulnerable to tampering. These situations create opportunities for individuals to compromise the security of rail cars transporting PIH, explosive, or radioactive material, such as through the introduction of an IED.
As discussed above, the highest risk occurs when a rail car is in or near an area of high population density. In applying a risk-based approach, TSA is proposing that the chain of custody requirements apply to railroad carriers when they conduct a transfer within an HTUA, or when they conduct a transfer with rail cars that may subsequently enter an HTUA. Finally, railroad carriers would apply these measures when delivering a car to a rail hazardous materials receiver within an HTUA. In this way, the rail car would be protected during transportation from someone attaching an IED or otherwise compromising the car when it could be used to endanger the HTUA.
TSA is applying its risk-based approach for rail hazardous materials shippers and receivers as well. Rail hazardous materials facilities that offer, prepare, or load the specified hazardous materials typically receive residue cars from railroad carriers. TSA is not proposing to apply the enhanced custody and control procedures to residue cars at this time, although TSA is requesting comment on whether the rule should do so.
TSA would require rail hazardous materials facilities within HTUAs that receive or unload cars with the specified hazardous materials to apply the enhanced chain of custody and control measures from the time they accept the car from the railroad carrier until the time they unload the car. This continues the protection of HTUAs from rail cars containing the specified hazardous materials.
The requirements of proposed § 1580.107 are further described in the Section-by-Section Analysis, below.
This rule proposes to amend 49 CFR 1520.3 by adding a number of new definitions. TSA is adding these definitions to the SSI regulation to clarify terms that appear in proposed part 1580. This includes “rail hazardous materials shipper,” “rail hazardous materials receiver,” “rail facility,” “rail secure area,” “rail transit facility,” “rail transit system or rail fixed guideway system,” “railroad,” and “railroad carrier.” In addition to explaining the meaning of these terms by referencing proposed 49 CFR 1580.3 and the United States Code (USC) (as applicable), the definitions make clear that they apply in the context of rail transportation.
The rule would also clarify the scope of the definition of “vulnerability assessment” to specifically include rail security assessments. The proposed revision would expressly include the examination of a railroad, railroad carrier, rail facility, rail hazardous materials facility, rail transit system, or rail transit facility.
TSA would add these six additional categories of rail security entities and facilities to the definition of “vulnerability assessment” to clarify that all types of rail-related vulnerability assessments constitute SSI. TSA seeks comment on whether this proposal is appropriate in its coverage of which vulnerability assessments warrant SSI treatment. TSA may revise this definition based upon comments received.
TSA proposes to modify the language in 49 CFR 1520.5(b)(6)(i) related to inspections and investigations of alleged regulatory violations. The proposal would expand the current provision so that it applies in the context of all forms of rail transportation, including freight and passenger railroad carriers, rail hazardous materials shippers, rail hazardous materials receivers, and rail transit systems.
Section 1520.5(b)(8) of the current SSI regulation defines details of aviation or maritime security measures as SSI, whether applied directly by the Federal government or another person. The proposed revision to 49 CFR 1520.5(b)(8) would expand this provision to cover specific details of transportation security measures applied in rail transportation, whether applied directly by the Federal Government or another person.
Section 1520.5(b)(10) of the current SSI regulation states that training materials created or obtained to train persons who carry out aviation or maritime security measures required or recommended by DHS or DOT are SSI. The proposed revision to 49 CFR 1520.5(b)(10) would expand this provision to cover training materials for persons who carry out rail transportation security measures. These types of materials contain descriptions of security measures or countermeasures that a terrorist or other criminal could use to determine how to defeat security procedures.
Section 1520.5(b)(11) of the current SSI regulation is intended to safeguard lists of information about the identities of individuals who hold certain positions with aviation or maritime security responsibilities. The proposed revision to 49 CFR 1520.5(b)(11)(i)(A) would expand this provision to safeguard lists of information about the identities of individuals having unescorted access to a rail secure area at a rail hazardous materials shipper or receiver. Terrorists or other criminals might attempt to target these types of individuals in order to obtain unauthorized access to a rail secure area. Accordingly, lists of information that identify these individuals as having unescorted access to a rail secure area must be protected as SSI.
Section 1520.5(b)(12) of the current SSI regulation designates as SSI certain lists of critical aviation or maritime infrastructure assets prepared by Federal, State, or local government agencies. Specifically, the current provision covers any list identifying systems, facilities, or other assets, whether physical or virtual, so vital to the transportation system that the incapacity or destruction of such assets would have a debilitating impact on transportation security. The proposed revision to 49 CFR 1520.5(b)(12) would expand this provision to safeguard lists of critical infrastructure assets information concerning the rail transportation system, including rail hazardous materials shipper and receiver facilities. The expanded definition, however, would continue to cover this information as SSI only if the list is either prepared by DHS or DOT or is prepared by a State or local government agency and is submitted to DHS or DOT.
Persons covered under 49 CFR 1520.7 of the current SSI regulation include: airport operators; aircraft operators; foreign air carriers; indirect air carriers; persons who received SSI as part of a legal enforcement action; persons for whom a vulnerability assessment had been directed, created, held, funded, or approved by DHS or DOT; and persons employed by, contracted to, or acting for any of the persons listed above.
The proposed revision to 49 CFR 1520.7 would expand the coverage of the SSI regulation by adding a new paragraph (n) to address railroad carriers, rail hazardous materials shippers, rail hazardous materials receivers, and rail transit systems subject to the requirements of proposed part 1580. In this regard, TSA notes that the scope of proposed part 1580 addresses: (1) Freight and other non-passenger railroad carriers operating rolling equipment; (2) rail hazardous materials shippers (as that term is defined in proposed 49 CFR 1580.3); (3) rail hazardous materials receivers (as that term is defined in proposed 49 CFR 1580.3); (4) railroad carriers that operate or provide intercity passenger train service or commuter or other short-haul railroad passenger service in a metropolitan or suburban area (as described by 49 U.S.C. 20102), including public authorities operating passenger train service; (5) passenger or freight railroad carriers hosting the operation of passenger train service; (6) tourist, scenic, historic, and excursion rail operators, whether operating on or off the general railroad system of transportation; (7) private cars, including business/office cars and circus trains, on or connected to the general railroad system of transportation; and (8) rail transit systems, including heavy rail transit, light rail transit, automated guideway, cable car, inclined plane, funicular, and monorail systems. However, these entities and rail operations would have access to SSI only to the extent that they have a “need to know” the information under § 1520.11.
TSA proposes that parts of this rule apply to all types of rail operations, including freight railroad carriers; intercity, commuter, and short-haul railroad passenger train service; and rail mass transit systems. Further, in addition to applying to all freight railroad carriers, the proposal also includes additional requirements for railroad carriers that transport hazardous materials. The NPRM would also apply to rail operations at certain
This section contains a set of definitions to introduce the regulations. TSA intends these definitions to clarify the meaning of important terms as they are used in the proposed rule. Some of the definitions involve new or fundamental concepts, which require further discussion.
The term “general railroad system of transportation” is derived from FRA's “Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws,” which appears in Appendix A to 49 CFR part 209, as in effect on October 1, 2005. FRA uses the term to describe the network of standard gage track over which goods may be transported throughout the nation and passengers may travel between cities and within metropolitan and suburban areas.
The term “heavy rail transit” means service provided by self-propelled electric railcars, typically drawing power from a third rail, operating in separate rights-of-way in multiple cars; also referred to as subways, metros, or regional rail. The term “light rail transit” means service provided by self-propelled electric railcars, typically drawing power from an overhead wire, operating in either exclusive or non-exclusive rights-of-way in single or multiple cars and with shorter distance trips and frequent stops; also referred to as streetcars, trolleys, and trams. “Rail transit system” or “Rail Fixed Guideway System” means any light, heavy, or rapid rail system, monorail, inclined plane, funicular, trolley, or automated guideway. Two examples of a “rail fixed guideway system,” consistent with FTA's use of the term in 49 CFR part 659, are heavy rail transit and light rail transit. However, TSA is using the term more broadly than FTA uses it in part 659. Specifically, TSA's authority over “rail fixed guideway systems,” or rail transit systems, is not linked to whether the system is regulated by FRA and is not limited to systems that receive or seek to receive funds under FTA's grant program. Accordingly, as the terms “heavy rail transit” and “light rail transit” are used in proposed part 1580, TSA's authority extends to all rail transit systems regardless of whether the system is subject to regulation by FTA or FRA or neither agency.
The term “rail hazardous materials receiver” means any facility that has a physical connection to the general railroad system of transportation and receives in transportation by rail or unloads from transportation by rail one or more of the categories and quantities of hazardous materials set forth in 49 CFR 1580.100(b), but does not include a facility owned or operated by a department, agency, or instrumentality of the Federal Government. For a facility to fall within the definition of a “rail hazardous materials receiver,” there must be a physical connection to the general railroad system of transportation, such as track used by a railroad carrier to enter the facility to drop off rail cars.
The term “rail hazardous materials shipper” means any facility that has a physical connection to the general railroad system of transportation and offers, prepares, or loads for transportation by rail one or more of the categories and quantities of hazardous materials set forth in 49 CFR 1580.100(b), but does not include a facility owned or operated by a department, agency, or instrumentality of the Federal Government. The term includes companies that load or otherwise prepare tank cars for rail transportation in commerce. For a facility to fall within the definition of a “rail hazardous materials shipper,” there must be a physical connection to the general railroad system of transportation, such as track used by a railroad carrier to enter the facility to pick up rail cars. A facility is not a “rail hazardous materials shipper” if it only unloads or receives one or more of the categories and quantities of hazardous materials set forth in 49 CFR 1580.100(b).
The term “rail secure area” means a secure location(s) identified by an owner or operator of a rail hazardous materials shipper or rail hazardous materials receiver where security-related pre-transportation or transportation functions are performed or rail cars containing the categories and quantities of hazardous materials set forth in 49 CFR 1580.100(b) are prepared, loaded, stored, and/or unloaded. The standards for a secure area are the same for all rail hazardous materials shippers and receivers regardless of whether the facility is offering or receiving the hazardous material. Secure areas must have physical security measures in place, which could include fencing, lighting, or monitoring by a signaling system (such as a video system, sensing equipment, or mechanical equipment). If the owner or operator employs a signaling system, an employee or authorized representative of the owner or operator must be located either in the immediate area of the rail car or at a remote location within the facility (such as a control room) in order to observe the system.
The terms “transportation or transport” mean, in the context of freight rail, the movement of property, including loading, unloading, and storage. In the context of passenger rail, the terms mean the movement of people, boarding, and disembarking incident to that movement. As noted earlier, TSA has broad authority under ATSA to regulate the security of all modes of transportation, including rail transportation. In this regard, TSA's statutory authority is not limited by PHMSA's determination as to which functions are pre-transportation or transportation functions for purposes of the applicability of the hazardous materials laws and regulations (
Pursuant to 49 U.S.C. 114, TSA has authority to inspect for compliance with applicable statutory and regulatory requirements. This proposed rule
Sections 1580.5(a) and (b) state that railroad carriers, covered rail hazardous materials shippers or receivers, and transit systems must allow TSA and DHS officials working with TSA (such as representatives from DHS's Office of Infrastructure Protection) to make inspections or tests at any time or place to carry out its statutory or regulatory authorities. Proposed 49 CFR 1580.5(b) would require the carrier, shipper, receiver, or transit system to allow any authorized TSA and DHS officials to enter and be present within any area or conveyance without access media or identification media issued or approved by a railroad carrier, rail hazardous materials shipper, rail hazardous materials receiver, or transit system owner or operator, in order to inspect or test compliance, or perform other such duties as TSA may direct. This section would also set forth affirmative duties on railroad carriers, rail hazardous materials shippers, rail hazardous materials receivers, and transit system owners and operators to cooperate with and allow the inspections and tests and the copying of records, irrespective of the media on which they are stored. As to the location of the inspections, TSA must be able to inspect at every location where TSA is carrying out activities under ATSA.
In addition to inspecting for compliance with specific regulations, TSA can conduct general security assessments. TSA's authority with respect to transportation security is comprehensive and supported with specific powers to assess threats to transportation security; monitor the state of awareness and readiness throughout the rail sector; determine the adequacy of an owner or operator's transportation-related security measures; and identify security gaps. TSA, for example, could inspect and evaluate for emerging or potential security threats based on intelligence indicators to determine whether the owner or operator's strategies and security measures are likely to deter these threats. If TSA identifies security deficiencies, TSA could initiate appropriate action to enhance rail security such as counseling the railroad carrier, rail hazardous materials shipper, rail hazardous materials receiver, or rail transit system owner or operator; coordinating with other Federal, State, or local agencies to correct the deficiency; or conducting rulemakings to require enhanced security measures.
If TSA, in the course of an inspection identifies evidence of non-compliance with a DOT regulation, TSA would provide the information to the appropriate DOT modal administration for action.
An inherent part of TSA and DHS officials' performing security assessments and inspecting for regulatory (including SD) compliance is obtaining copies of records. It is necessary, so that TSA can preserve the records for further review and, on occasion, use the records as evidence. TSA does not anticipate encountering difficulty on this issue, but is including explicit language in the proposed rule, clarifying that TSA has the authority to obtain and review copies of records, in order to avoid any confusion or misunderstanding.
TSA is aware that it must conduct its inspection activity in a reasonable manner, considering all of the relevant circumstances surrounding the rail operation. However, covered entities must provide TSA with access to inspect at any time, without notice, because unexpected urgent situations may arise. To the extent practicable, TSA will make arrangements for records reviews ahead of time and will schedule the inspections for normal business hours, to ensure that appropriate owner/operator personnel are available to assist and that the inspection does not interfere or cause undue disruption. Nevertheless, TSA will have to conduct some inspections and tests unannounced, to determine whether the owner or operator is in compliance when it does not know that TSA may be inspecting. Further, in the case of passenger rail (for example), TSA may sometimes inspect and test during peak traffic periods to ensure that owners and operators are in compliance with the security requirements, even during the busiest times. These peak periods would be those times when the largest portion of the traveling public is being protected by the security measures. Finally, specific threats, heightened periods of alert, or other emergency situations may necessitate that TSA engage in inspection and test activities outside of normal business operating hours.
Proposed 49 CFR 1580.5(b) refers to copying of records, not just documents. Records may be kept in a number of formats, such as paper, microfilm, and electronic. All of these formats fall within the scope of proposed § 1580.5(b).
Regarding TSA and DHS officials working with TSA, TSA intends to use properly trained personnel to conduct inspections. These individuals would receive training on safety procedures to follow while aboard a conveyance or inside a terminal or facility, in addition to training on technical security requirements. Individuals performing these inspections would carry Federal government credentials identifying themselves as having official authority to inspect, and any covered entity wishing to authenticate the identity of an individual purporting to represent TSA would be able to contact appropriate TSA officials at TSA's headquarters and field locations. TSA maintains an operations center that stakeholders may contact on a 24 hour a day 7 days a week basis if they have concerns.
Proposed 49 CFR 1580.5(c) requires persons regulated under this rule to allow TSA representatives, and DHS officials working with TSA, the flexibility to gain access to any conveyance, facility, terminal, or infrastructure asset without holding access or identification media issued by the owner or operator, when the officials need to conduct a security assessment, compliance inspection, or test. The act of obtaining such media would provide personnel at the inspection or test location with an opportunity to identify and recognize TSA and DHS officials, thereby reducing or negating the value of the visit. As noted above, at times, TSA/DHS may find it necessary to make unannounced, anonymous visits to an area or conveyance, but would do so under very controlled conditions using personnel who are trained both in security and in railroad, hazardous materials facility, and transit workplace safety protocols.
TSA proposes to apply this subpart to all freight railroad carriers and to apply additional requirements to railroad
It is important that TSA have a point of contact with the operator for the exchange of vital security information. The proposed rule requires that each covered freight railroad carrier, rail hazardous materials shipper, and rail hazardous materials receiver have one RSC and one or more alternate RSCs. This would allow different people to be on call at different times, but would necessitate that at least one individual be available to TSA on a 24 hour a day 7 day a week basis. TSA anticipates that the freight railroad carriers generally will designate at the corporate level a lead RSC for the entire railroad operation and select other individuals who will assist in carrying out the job duties. In the case of rail hazardous materials shippers and receivers, TSA recognizes that the large companies may have many facilities that would be subject to this rule and would expect that the companies would designate one RSC at the corporate level and would choose other corporate employees to help implement the requirements of this rule at the covered facilities.
The proposal would permit an individual serving as an RSC to perform other duties in addition to those that TSA requires. That individual need not serve full-time as the RSC. TSA anticipates that this will particularly be the case for smaller freight railroads or rail hazardous materials facilities. Regardless of who is serving as the RSC on a given day, however, the carrier or facility would remain responsible if any official to whom the RSC security functions are delegated fails to perform them properly.
TSA proposes to require the following entities to provide TSA, upon request, with the location and other shipping information of rail cars containing the hazardous materials specified in 49 CFR 1580.100(b): (1) Freight railroad carriers transporting the specified hazardous materials; (2) rail hazardous materials shippers offering, preparing, or loading for transportation in commerce by rail the specified hazardous materials; and (3) rail hazardous materials facilities receiving in commerce by rail or unloading from transportation by rail the specified hazardous materials. As discussed below, TSA believes that carriers, shippers, and receivers have the capability of using existing systems and technologies to report on the locations and shipping information of certain high profile hazardous materials. TSA anticipates that reporting requests will be rare and often coincide with elevated threat situations or in response to a security incident.
Paragraph (b) states that each affected freight railroad carrier, rail hazardous materials shipper, and rail hazardous materials receiver must develop procedures to determine the location and shipping information required under paragraph (c) of this section for rail cars under their physical custody and control containing the specified hazardous materials. The procedures must enable the carrier or facility to provide the information to TSA within one hour of receiving the request. Because TSA's proposal is a performance-based system, TSA does not require carriers or facilities to use any specific technology to acquire the location of rail cars. However, TSA anticipates that covered entities will meet the standard by using existing technology, including radio frequency identification (RFID) tags,
With respect to freight railroad carriers to which this rule would apply, TSA notes that the industry may provide the Federal Government with the required location and shipping information using AEI tags.
Tracking and other types of communications systems enable freight railroad carriers to monitor a shipment while en route to its destination and to identify various service irregularities. Some types of tracking systems employ GPS or GPS-type positioning information and coded or text messaging transmitted over a terrestrial communications system. The railroad industry and FRA are cooperating on the development of Positive Train Control (PTC) systems. PTC systems include digital data link communications networks, positioning systems, on-board computers with digitized maps and in-cab displays, throttle-brake interfaces on locomotives, wayside interface units, and control center computers and displays. PTC systems can track the precise location of all trains and the individual cars that make up the train and will be capable of remote intervention with train operations. DHS is currently evaluating the feasibility, costs, and benefits of proposals to develop certain communication and tracking capabilities for rail hazardous materials shipments. As discussed in section III.C.4. above, TSA is seeking comments on the feasibility of the freight rail industry using GPS tracking systems to determine the location of rail tank cars, including information on the anticipated costs and benefits of employing GPS technology for this purpose.
Under paragraph (b), TSA would limit the potential scope of the requested location and shipping information to rail cars “within the physical custody and control” of the freight railroad carrier, rail hazardous materials shipper, or rail hazardous materials receiver; actual ownership of the rail car or the track on which the rail car is located is not relevant to determining which entity must provide the information to TSA. Accordingly, TSA would ask freight railroad carriers to provide information only for cars that have been accepted for, or are already in transportation; the term “accepted” means that the carrier has physically taken possession of a hazardous material for purposes of transporting it. TSA would ask rail hazardous materials facilities to report on rail cars physically located on their property that a railroad carrier has not offered or accepted for transportation.
Paragraph (c) of this section enumerates the minimum amount of information that the freight railroad carrier, the rail hazardous materials shipper, and the rail hazardous materials receiver must be able to provide to TSA upon request. This information consists of the rail car's location, railroad milepost, and track designation (such as main track, secondary track, or division and subdivision); the time the freight railroad carrier, rail hazardous materials shipper, or rail hazardous materials receiver determined the rail car's location; the rail car's routing; a list of the total number of rail cars containing the designated hazardous material, broken down by proper shipping name, hazard class or division number, and identification number; each rail car's initial and number; and transportation status.
In the case of freight railroad carriers, TSA would ordinarily request the rail car's location broken down by city, county, and State as well as the railroad carrier's designated milepost location. By contrast, in the case of hazardous material facilities, since TSA would already have the facility's address, TSA would likely focus its request on discerning the total number of rail cars located at that facility and the types of hazardous materials contained in those rail cars. When TSA requests a freight railroad carrier to provide a rail car's routing information, TSA intends to ask for information on the entire route, including point of origination, destination, and interchange points with other freight railroad carriers.
For each rail car containing one or more of the hazardous materials listed in proposed 49 CFR 1580.100(b), TSA would require the car report to contain the proper shipping name, hazard class or division, and UN identification number assigned to the material in accordance with the Hazardous Materials Table in 49 CFR 172.101 (DOT's HMRs), as well as the rail car's unique identifying initial and number. “Transportation status” refers to whether the car is being prepared for transportation, in transportation, or out of transportation. By reviewing this location and shipping information and available intelligence information, TSA will be able to determine whether it needs to implement or order additional security measures to address a particular threat or threat assessment.
The proposed rule provides freight railroad carriers, rail hazardous materials shippers, or rail hazardous materials receivers with a maximum of one hour to report the location and shipping information for the specified rail car(s) to TSA or DHS officials. TSA recognizes that the potential magnitude of the information request, as well as unique operational considerations of the railroad carrier, rail hazardous materials shipper, or rail hazardous materials receiver, may justify additional time to respond. Accordingly, this proposal permits the carrier, shipper, or receiver to seek additional time to respond to a specific request. TSA/DHS will evaluate each request on a case-by-case basis.
While the proposed rule text provides a one-hour timeframe, TSA also requests comment on an alternative time proposal. Instead of a maximum of one hour, the alternative proposal would set the maximum time period for providing information at five (5) minutes or thirty (30) minutes, depending on the nature of the request. Freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers would have a maximum of five (5) minutes from the time of a TSA request to provide the location and shipping information for a specific rail car containing the specified categories and quantities of hazardous materials. Freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers would have a maximum of thirty (30) minutes from the time of a TSA request to provide the location and shipping information for all rail cars under its physical custody and control that contain one or more of the specified categories and quantities of hazardous materials.
We note that in an emergency, such as a specific threat against a particular train or a general threat involving the metropolitan area through which the train is operating, it may be critical for TSA to have this information very quickly to address threats to persons and property. The more quickly we can receive this information, the more quickly we can direct that protective measure be implemented. We believe that existing and emerging technology can be used to achieve these timeframes. We request comments on how these shorter timeframes could be achieved, including the cost of compliance, and we are considering adopting these shorter time frames in the final rule.
The proposal also requires that freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers submit the data in a specific format but allows a choice of five different reporting options (unless another reporting method is approved in writing by TSA). TSA proposes to establish the one hour reporting timeframe and permit only a limited number of commonly used information reporting formats based upon the importance of timely information that TSA can quickly understand under exigent circumstances. However, TSA remains open to the possibility of being less prescriptive in the final rule. TSA seeks comment on what reporting timeframe would be reasonable. TSA also seeks comment on what reporting formats would allow carriers, shippers, and receivers to provide the information to the Federal Government in a user friendly, efficient, and cost effective manner yet consistent with the security need to receive and analyze the information quickly and accurately.
This rule proposes to require freight railroad carriers, rail hazardous materials shippers that offer, prepare, or load for transportation in commerce by rail one or more of the categories and quantities of hazardous materials set forth in proposed 49 CFR 1580.100(b), and rail hazardous materials receivers that receive in commerce by rail or unload one or more of the categories and quantities of hazardous materials set forth in proposed 49 CFR 1580.100(b) to immediately report potential threats or significant security concerns encompassing incidents, suspicious activities, and threat information. Incidents, activities, and information include, but are not limited to:
(1) Interference with the engineer, conductor, or other crewmember of a freight railroad train, such as an attempt to gain entry to the locomotive cab.
(2) Bomb threats, whether specific as to target, location, and timing, or non-specific.
(3) Reports or discovery of suspicious items that result in the disruption of rail
(4) Suspicious activity occurring onboard a freight train or inside the facility of a freight railroad carrier, rail hazardous materials shipper, or rail hazardous materials receiver that results in a disruption of rail or facility operations, such as evacuation of a conveyance or facility or the temporary halting of rail service due to the discovery of a suspected IED. Again, this disruption could also occur at a rail hazardous materials facility that discovers a suspicious individual trespassing within a rail secure area and delays the departure of a freight railroad carrier.
(5) Suspicious activity observed at or around freight rail cars, facilities, or infrastructure used in the operation of the freight railroad, rail hazardous materials shipper, or rail hazardous materials receiver, whether observed by employees or authorized representatives of the railroad carrier, rail hazardous materials shipper, or rail hazardous materials receiver, or other individuals.
(6) Discharge, discovery, or seizure of a firearm or other deadly weapon on a freight train, in a station, terminal, storage facility or yard, rail secure area, or other location used in the operation of the freight railroad, rail hazardous materials shipper, or rail hazardous materials receiver, regardless of whether an individual legally possesses the firearm or deadly weapon.
(7) Indications of tampering with freight rail cars, whether located inside or outside the confines of a rail hazardous materials facility including signs that the security of the car may have been compromised or that an IED may be present.
(8) Information relating to the possible surveillance of a freight railroad train or facility, storage yard, rail hazardous materials shipper or receiver facility, or other location used in the operation of the freight railroad carrier, rail hazardous materials shipper, or rail hazardous materials receiver, regardless of whether the source of the information is an employee or authorized representative of the freight railroad carrier, rail hazardous materials shipper, or rail hazardous materials receiver, or other individual.
(9) Correspondence received by the freight railroad carrier, rail hazardous materials shipper, or rail hazardous materials receiver indicating a potential threat to freight rail transportation or the rail hazardous materials facility.
(10) Other incidents involving breaches of the security of the freight railroad carrier or rail hazardous materials shipper or receiver's operations or facilities that could reasonably represent potential threats or significant security concerns.
The proposal would require freight railroad carriers and covered rail hazardous materials shippers and receivers to report the above types of concerns and threats to DHS/TSA in a manner that TSA prescribes. TSA seeks comment on the available methods of transmitting this information to TSA (such as electronically, telephonically), including anticipated costs of compliance. With respect to each concern or threat, the freight railroad carrier or covered rail hazardous materials shipper or receiver would have to report the following information, to the extent it was available and applicable, to DHS/TSA:
(1) Name of the reporting entity and contact information for communication by telephone and e-mail.
(2) The affected freight train, station, terminal, rail hazardous materials facility, or other rail facility or infrastructure.
(3) Identifying information on the affected freight train, including train line and route.
(4) The origination and route termination locations for the affected freight train.
(5) Current location of the affected freight train, with as much specificity as circumstances and available information permits.
(6) Description of the threat, incident, or activity affecting the freight train or rail facility or rail hazardous materials shipper or receiver.
(7) Names and other available biographical data of individuals purported to be involved in the threat, incident, or activity.
(8) Source of the threat information.
Possible sources of the information might include: a Federal (with the exception of DHS/TSA), State, or local government agency; a foreign government, to the extent there is no legal prohibition on the reporting of such information; an employee or authorized representative of the freight railroad carrier, rail hazardous materials shipper; or rail hazardous materials receiver; another freight railroad carrier, rail hazardous materials shipper or receiver, passenger railroad carrier, or rail transit system; or a private individual.
In this section, TSA proposes to require a secure chain of physical custody for rail cars containing one or more of the categories and quantities of hazardous materials set forth in proposed 49 CFR 1580.100(b). This section would impose analogous requirements on freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers.
In paragraph (a), TSA proposes that a rail hazardous materials shipper, regardless of whether it is physically located within an HTUA listed in Appendix A to part 1580, must satisfy the following requirements before it can transfer physical custody of a rail car containing the specified hazardous materials to a freight railroad carrier. First, the rail hazardous materials shipper must perform a physical security inspection of the rail car to ensure that no one has tampered with it or other compromised its security, including inspecting for IEDs and other items that do not belong. Second, the rail hazardous materials shipper must store or keep the rail car in an area with physical security measures in place during pre-transportation functions, including loading and temporary storage, until the freight railroad carrier assumes physical custody of the car. The physical security measures include such things as fencing, lighting, or video surveillance. Third, the rail hazardous materials shipper must document the transfer of custody to the freight railroad carrier, either in writing or electronically.
In paragraph (b), TSA proposes that a freight railroad carrier, regardless of whether the carrier is physically accepting the rail car at a rail hazardous materials shipper facility located outside or within an HTUA, must satisfy two requirements. First, the carrier must document the transfer of custody, either in writing or electronically. Second, the carrier must perform the security inspection that DOT is proposing to require under a new paragraph to 49 CFR 174.9.
In paragraph (c), TSA proposes requirements for certain rail car transfers occurring within an HTUA listed in Appendix A to part 1580. Specifically, TSA would require each delivering freight railroad carrier transferring physical custody of rail cars carrying one or more of the materials
For purposes of paragraphs (c) and (d), the requirement “to ensure that the rail car is not left unattended at any time during the physical transfer of custody” means that the delivering and receiving freight railroad carriers would ensure that an employee or authorized representative of either of the railroad carriers attend to that rail car by being physically present and having an unobstructed view of the rail car prior to the delivering railroad carrier leaving the interchange point. While TSA expects that the attending employee would be the train conductor or a security guard, TSA is not specifying that any particular category of individuals needs to perform this job function and is not specifying that a freight carrier would have to use a hazmat employee (as the term is used in 49 CFR 171.8) to perform this job function. Moreover, to allow freight railroad carriers a maximum degree of flexibility in adopting and implementing procedures to meet the car attendance performance standard, this section does not specify a maximum number of rail cars permitted per attending employee (or authorized representative) or define how close that individual must be to the rail car while attending it. However, for purposes of compliance with this section, the freight railroad carriers must work together to implement procedures to ensure that individuals attend the rail car until the physical transfer of custody is complete. The requirement that an employee or authorized representative attend rail cars would be met where personnel are provided by or on behalf of a department, agency, or instrumentality of the Federal Government to monitor or provide security for the rail car.
Paragraphs (c) and (d) would also require the receiving freight railroad carrier to perform a security inspection, which, as noted above, DOT is proposing in its NPRM. DOT's HMR currently require freight railroad carriers to conduct a safety inspection of each car containing hazardous materials at ground level.
To guard against the possibility that an unauthorized individual could tamper with rail cars containing hazardous materials to precipitate an incident during transportation, such as detonation or release using an IED, PHMSA is proposing to require that freight railroad carriers' pre-trip inspections of placarded rail cars include an inspection for signs of tampering with the rail car, including its seals and closures, and any item that does not belong, suspicious items, or IEDs. TSA will provide guidance to freight railroad carriers to train their employees on identifying IEDs and signs of tampering. Where a freight railroad carrier finds a foreign object or indication of tampering, the freight railroad carrier would be required to take appropriate actions to ensure that the security of the rail car and its contents have not been compromised before accepting the rail car for further movement. If PHSMA's NPRM proposal to add a security inspection requirement to 49 CFR 174.9 is in effect as a regulation at the time TSA's NPRM becomes a final rule, paragraphs (c) and (d) of this section would require the freight railroad carrier's rail car attendance procedures to provide for a security inspection, in accordance with DOT's HMR.
In paragraph (d), TSA requires the delivering and receiving freight railroad carriers involved in an interchange outside an HTUA of a rail car containing one or more of the quantities and categories of hazard materials set forth in 49 CFR 1580.100(b) to adopt and implement procedures to ensure that the rail car is attended during the physical transfer of custody for rail cars if the rail car “may subsequently enter an HTUA.” The reason TSA is applying the chain of custody requirements to these interchanges outside the HTUA is to address the possibility that a terrorist would choose an unpopulated or isolated location on a railroad line to compromise the security of an unattended rail car, such as by attaching an IED to it. The rail car could then travel into an HTUA and a terrorist could detonate it, thereby using the car as a weapon of mass effect to cause significant casualties and property damage.
TSA intends that freight railroad carriers make the determination as to whether paragraph (d) is applicable based upon the route information reasonably available to them at the time the delivering railroad carrier transfers the rail car to the receiving railroad carrier. In this regard, TSA recognizes that, after a rail car has been interchanged, a change in route may become necessary resulting from a cause unknown and unforeseeable to either freight railroad carrier at the time of the interchange, such as a rockslide that blocks trackage located outside the HTUA. Accordingly, since the randomness and unpredictability of such a unique event occurring makes it unlikely that the rail car could be exploited by a terrorist, TSA would allow the unattended rail car to enter an HTUA without penalty to either freight railroad carrier. Of course, if the freight railroad carriers know in advance before the interchange that, for whatever reason, the rail car must be re-routed through an HTUA, this limited exception to the chain of custody requirements in paragraph (d) of this section would be inapplicable.
TSA is not proposing that carriers or facilities submit the transfer of custody documentation to TSA. TSA would only want the document if it requests it. Each freight railroad carrier, rail hazardous materials shipper, and rail hazardous materials receiver required to create this documentation must maintain a copy of the specified information or an electronic image thereof, and must make the record available, upon request, to TSA. TSA proposes in paragraph (h) of this section that the documentation be maintained for at least 60 calendar days.
TSA also is seeking comment on an alternative to the chain of custody requirements in proposed in paragraphs (c) and (d) for transfers between railroad carriers that occur outside of an HTUA. This alternative would not require freight railroad carriers to attend rail cars while the rail cars are being transferred. Under this alternative, TSA would only permit such unattended
In paragraph (e), TSA is proposing that freight railroad carriers delivering rail cars containing one or more of the quantities and categories of hazardous materials set forth in 49 CFR 1580.100(b) to a rail hazardous materials receiver located within an HTUA must ensure that an employee or authorized representative of the receiver is physically present to accept receipt of the car, unless the car is delivered to a secure area of the facility. Alternatively, the freight railroad carrier may use its own employees or authorized representatives to attend the rail car until the rail hazardous materials receiver accepts physical custody and control of the car. The freight railroad carrier must not depart the rail hazardous materials receiver until it has released the car to a hazardous materials facility employee or authorized representative or has secured the car in a secure area.
The standards for a rail secure area are the same for rail hazardous materials facilities regardless of whether the rail hazardous materials facility is receiving or offering the hazardous material. A “rail secure area” is defined in proposed 49 CFR 1580.3 as the portion of the “rail hazardous materials facility where security-related pre-transportation or transportation functions are performed or rail cars containing the categories and quantities of hazardous materials set forth in proposed 49 CFR 1580.100(b) are prepared, loaded, stored, and/or unloaded.” As stated in proposed paragraph (i) of this section, secure areas must have physical security measures in place to prevent unauthorized access to rail cars that contain the specified categories and quantities of hazardous materials. These measures could include fencing, lighting, or monitoring by a signaling system (such as a video system, sensing equipment, or mechanical equipment) that is observed by an employee or authorized representative of the rail hazardous materials shipper or receiver who is located either in the immediate area of the rail car or at a remote location within the facility such as a control room.
Paragraph (f) applies only to rail hazardous materials facilities located within an HTUA that receive from a freight railroad carrier or unload rail cars containing one or more of the quantities and categories of hazard materials set forth in proposed 49 CFR 1580.100(b). Consistent with the requirements placed upon freight railroad carriers by paragraph (e), the rail hazardous materials receiver must maintain positive control of the rail car during the physical transfer of custody, which involves not leaving the car unattended and placing the car in a secure area. The requirements for rail hazardous materials facilities that, in addition to receiving or unloading one or more of the hazardous materials referenced in paragraph (f), also offer, prepare, or load these materials for transportation by freight railroad carriers are set forth in paragraph (a) of this section. In accordance with paragraph (f), during unloading and temporary placement of the rail car, a rail hazardous materials receiver located within an HTUA must keep the rail car in a secure area with physical security measures in place, such as fencing, lighting, or video surveillance.
Paragraph (g) provides an exception to the security requirements contained in paragraph (a) for rail hazardous materials receivers located an HTUA, that in the normal course of their business do not offer, prepare, or load rail cars containing the categories and quantities of hazardous material set forth in proposed 49 CFR 1580.100(b) for transportation by rail. Rail hazardous materials facilities located outside an HTUA that routinely receive shipments of the specified categories and quantities of hazardous material, that receive and subsequently reject and return a rail car containing the hazardous material to the originating offeror or shipper are not, by virtue of rejecting and returning a shipment, required to meet the security requirements of paragraph (a). TSA is providing this exception, because the randomness and unpredictability of such an event makes it unlikely that a terrorist could exploit the rail car and use it as a weapon of mass effect. However, the freight railroad carrier receiving the rejected rail car would still be subject to the requirements of this section.
Paragraph (j) allows any rail hazardous materials receiver located within an HTUA to apply for a waiver from some or all of the chain of custody requirements if the receiver believes, based upon the operational characteristics and geographical location of its facility, that the potential security threat of its facility is insufficient to warrant application of the chain of custody requirements in paragraph (f). In considering whether to grant a waiver, TSA would analyze factors that relate to the potential security threat. The factors include: (1) The quantities and types of all hazardous materials that the rail hazardous materials receiver typically receives or unloads; (2) the receiver's geographical location in relationship to populated areas, which includes both daytime office building populations and populations in residential neighborhoods; (3) the receiver facility's immediate proximity to entities that may be attractive targets, such as other businesses (including other hazardous materials facilities), residential homes and apartment buildings, elementary schools, hospitals, nursing homes, assisted living facilities, and sports stadiums; (4) any information regarding threats to the facility; and (5) any other circumstances unique to that receiver's activities that would demonstrate that these activities present a low security risk. For instance, if a requester were to present an analysis showing that, due to the topography of the area, a release of the hazardous material would be unlikely to cause a significant danger to persons in the area, TSA would consider that information as a factor in considering whether to grant or deny the waiver. After reviewing a rail hazardous materials receiver's application for a waiver, and consulting as necessary and appropriate with other Federal, State, and local governmental agencies, TSA would send a written decision to the receiver.
Section 20106 of title 49 of the U.S.C. provides that all regulations prescribed by the Secretary of Homeland Security related to railroad security matters preempt any State law, regulation, or order covering the same subject matter. A State may, however, adopt or continue an additional or more stringent regulation when that provision is: (1) Necessary to eliminate or reduce an essentially local security hazard; (2) not incompatible with a Federal law, regulation, or order; and (3) does not
Proposed § 1580.109 informs the public of the preemptive effect of proposed 49 CFR 1580.107 regarding chain of custody and control requirements for rail cars containing the categories and quantities of hazardous materials set forth in proposed 49 CFR 1580.100(b). In the past, TSA has not included regulatory text about preemptive effect in its regulations. The absence of such a provision in a Federal regulation does not necessarily indicate that TSA does not intend to preempt State or local regulations. However, TSA has included such a provision in this proposed rule, so that its position regarding preemptive effect is clear.
Consistent with 49 U.S.C. 20106, TSA proposes to preempt any State or local laws regarding security measures during the physical transfer of custody and control of a rail car containing hazardous materials. We believe that such security measures must be subject to uniform national standards. This preemption would apply to all “hazardous materials” as defined in 49 CFR 171.8. It would be impractical and burdensome to the secure chain of physical custody and control process to require the regulated parties to develop multiple sets of procedures to comply with varying State and local requirements. TSA is aware that, if this final rule did not preempt State or local regulations regarding the chain of custody requirements in proposed § 1580.107, a freight railroad carrier, rail hazardous materials shipper, or rail hazardous materials receiver may need to comply with different requirements in different jurisdictions. This could require a substantial resource commitment, because it could necessitate instructing the individuals involved in carrying out chain of custody requirements in accordance with a multitude of different operating rules and practices, which could raise significant safety and security concerns. Carriers could also be required to vary the size and training qualifications of the train crew based upon the varying laws in each jurisdiction. Because rail transportation of hazardous materials frequently involves transportation across jurisdictions and because of the resources necessary to comply with potential and varying chain of custody requirements, TSA believes that subjecting carriers to additional state regulations in this area would likely place an unreasonable burden on interstate commerce. TSA seeks to avoid this result.
Although national uniformity, to the extent practicable, of laws, regulations, and orders related to rail security is vitally important, TSA recognizes a need for emergency preparedness at the State and local level. Accordingly, TSA does not intend to preempt inspection activities conducted in furtherance of State and local laws or preempt requirements to appointment a RSC, or report significant security concerns.
As noted above, TSA does not intend to preempt the States from requiring freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers to designate a point of contact who the State could reach immediately concerning security or other emergency matters. In this regard, TSA does not intend to prevent the States from requiring the regulated parties to designate an individual as a point of contact in addition to the person(s) they select to serve as the corporate level RSC under proposed 49 CFR 1580.101. Since TSA recognizes the important security role of local law enforcement agencies, TSA also does not intend to preempt the States from requiring freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers to report potential threats and significant security concerns to the States in addition to these entities complying with TSA's reporting requirements. If an emergency situation develops, TSA expects that the first priority of the freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers would be to call 911 and follow the directions of the police and other first responders to the scene.
TSA seeks comment on the scope of the subject matter that this proposed rule would or would not preempt under 49 U.S.C. 20106.
TSA proposes that this subpart apply to all types of passenger rail operations, including intercity, commuter, and short-haul railroad passenger train service, and rail mass transit systems. The subpart would also cover the operation of private rail cars on or connected to the general railroad system of transportation, and tourist, scenic, historic, and excursion operations, whether on or off the general railroad system of transportation.
The proposed rule requires that each passenger railroad carrier and each rail transit system covered within the scope of part 1580 must have one or more RSCs. Owners and operators of private rail cars, including business/office cars, circus trains, tourist, scenic, historic, or excursion operations would only be required to designate an RSC if TSA specifically notified them in writing that a security threat exists concerning that operation.
As discussed in section III.B. above, the proposed rule would allow different people to be on call at different times, but would necessitate that at least one individual be available to TSA on a 24 hours, 7 days a week basis. TSA anticipates that the passenger railroad carriers and rail transit systems will generally designate a lead RSC at the corporate level for the entire rail operation and also select other individuals to assist in carrying out the job duties.
The proposal would also permit an individual serving as an RSC to perform other duties in addition to those that TSA requires; that individual need not serve full-time as the RSC. Particularly in the case of smaller passenger railroad or rail transit system operations, TSA anticipates that serving as the RSC will not be an individual's permanent full-time job. Regardless of who is serving in the role of the RSC on a given day, the passenger railroad carrier or rail transit system would remain responsible if any official to whom the RSC security functions are delegated fails to perform them properly.
The proposal applicable to passenger railroads and rail transit systems described in § 1580.201 would subsume the existing requirement in TSA's rail SDs that passenger rail operators designate and use a primary and alternate Security Coordinator and provide current name and contact information to TSA via email. However, this proposal would not change the requirements in the rail SDs that the Security Coordinator:
• Review with sufficient frequency, as practicable and appropriate, all security-related functions to ensure they are effective and consistent with all applicable rail passenger security measures, including the SDs.
• Upon learning of any instance of non-compliance with TSA-required security measures, immediately initiate corrective action.
Passenger railroad carriers and rail transit systems would be required to immediately report potential threats or significant security concerns encompassing incidents, suspicious activities, and threat information including, but not limited to:
(1) Interference with the crew of the passenger train or rail transit vehicle, such as by attempting to gain entry to the locomotive cab or crew compartment.
(2) Bomb threats, whether specific as to target, location, and timing, or non-specific.
(3) Reports or discovery of suspicious items that result in the disruption of passenger rail operations, such as evacuation of a conveyance or facility or the temporary halting of rail service.
(4) Suspicious activity occurring onboard a passenger train or rail transit vehicle or inside the facility of a passenger railroad carrier or rail transit system that results in a disruption of rail operations, such as evacuation of a conveyance or facility or the temporary halting of rail service due to the discovery of a suspected IED.
(5) Suspicious activity observed at or around passenger rail cars or rail transit vehicles, facilities, or infrastructure used in the operation of the passenger railroad or rail transit system, whether observed by employees or authorized representatives of the railroad carrier or rail transit system or other individuals.
(6) Discharge, discovery, or seizure of a firearm or other deadly weapon on a passenger train or rail transit vehicle or in a station, terminal, storage facility or yard, or other location used in the operation of the passenger railroad or rail transit system, regardless of whether an individual legally possesses the firearm or deadly weapon.
(7) Indications of tampering with passenger rail cars or rail transit vehicles, including signs that the security of the car or vehicle may have been compromised or an IED may be present.
(8) Information relating to the possible surveillance of a passenger train or rail transit vehicle or facility, storage yard, or other location used in the operation of the passenger railroad carrier or rail transit system, regardless of whether the source of the information is an employee or authorized representative of the passenger railroad carrier or rail transit system or other individual.
(9) Correspondence received by the passenger railroad carrier or rail transit system indicating a potential threat to passenger or freight rail transportation.
(10) Other incidents involving breaches of the security of the passenger railroad carrier or the rail transit system operations or facilities that could reasonably represent potential threats or significant security concerns.
The proposal would require passenger railroad carriers and rail transit systems to report the above types of concerns and threats to DHS/TSA in a manner that TSA prescribes. The final rule will provide details of the reporting process. With respect to each concern or threat, the passenger railroad carrier or rail transit system would have to report the following information, to the extent it was available and applicable, to DHS/TSA:
(1) Name of the reporting entity and contact information for communication by telephone and e-mail.
(2) Affected station, terminal, or other facility.
(3) Identifying information on the affected passenger train or rail transit vehicle, including the train number, train line, and route.
(4) The origination and route termination locations for the affected passenger train or rail transit vehicle.
(5) Current location of the affected passenger train or rail transit vehicle, with as much specificity as circumstances and available information permits.
(6) Description of the threat, incident, or activity affecting the passenger train or rail transit vehicle or facility.
(7) Names and other available biographical data of individuals purported to be involved in the threat, incident or activity.
(8) Source of the threat information.
Possible sources of the information might include: a Federal (with the exception of DHS/TSA), State, or local government agency; a foreign government, to the extent there is no legal prohibition on the reporting of such information; an employee or authorized representative of the passenger railroad carrier or rail transit system; another passenger railroad carrier or rail transit system or freight railroad carrier; or a private individual.
The requirements of the proposed rule do not supersede FTA's State Safety Oversight rules found at 49 CFR part 659. Some duplication of reporting may occur, as entities may have to report incidents to an OA under 49 CFR 659.33 and DHS under 49 CFR 1580.203 of the proposed rule. A suspected terrorist incident resulting in loss of life, injuries requiring medical attention, extensive property damage, and/or evacuation of rail transit system facilities would be subject to the proposed rule and to FTA's State Safety Oversight requirements for accident reporting. Significantly though, the purposes of the reports differ dramatically. TSA needs information immediately on potential threat, suspicious activities, and security incidents for the purposes of comprehensive intelligence analysis, threat assessment, and allocation of security resources. The report to the OAs meets a more general need for situational awareness, particularly pertaining to safety conditions. In any event, the required reporting under the proposed rule and the reporting under 49 CFR 659.33 do not overlap extensively. Additionally, it is not unusual in the transportation sector generally and the passenger rail and rail transit mode in particular for carriers and systems to report matters to Federal and State regulatory entities. However, TSA invites comments on the matter.
Proposed changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 (E.O. 12866), Regulatory Planning and Review (58 FR 51735, October 4, 1993), directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
In conducting these analyses, TSA determined:
(1) This rulemaking would not constitute an economically “significant regulatory action” as defined in the Executive Order.
(2) This rulemaking would have a yet to be determined impact on small businesses. We have conducted an Initial Regulatory Flexibility Analysis (IRFA) for comment.
(3) This rulemaking would not constitute a barrier to international trade.
(4) This rulemaking would not impose an unfunded mandate on state, local, or tribal governments, or on the private sector.
These analyses, available in the public docket, are summarized below. The reader is cautioned that we did not attempt to replicate precisely the regulatory language in this discussion of the proposed rule; the regulatory text, not the text of this evaluation, is legally binding. We invite comments on all aspects of the economic analysis. We will attempt to evaluate all regulatory evaluation comments submitted by the public; however, those comments with specific data sources or detailed information will be more useful in improving the impact analysis. If possible, evaluation comments should be clearly identified with the evaluation issue or section. Including page numbers or figure references with your comments will expedite the process and ensure the issue is addressed by the most appropriate agency experts.
The proposed rule would address threats and vulnerabilities in the rail transportation sector. This summary provides a synopsis of the costs and benefits of the proposed rule.
The proposed rule would enhance the security of rail transportation by: (1) Giving TSA and DHS the authority to conduct inspections in order to assess and mitigate threats to security; (2) providing TSA and DHS with a regulatory mechanism to locate rail cars containing certain hazardous materials; (3) mandating that rail hazardous materials facilities that ship or receive these materials conduct routine inspections of shipments; (4) creating a secure chain of custody requirement for the transfer of rail cars containing these materials; and (5) requiring certain rail hazardous materials shipper and receiver facilities to store rail cars containing these hazardous materials in areas with physical security controls.
The costs of the proposed rule would result primarily from the requirements for: (1) Rail carriers and rail hazardous materials shippers and receivers to establish secure chains of custody for hazardous materials covered by the NPRM; and (2) railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers to provide TSA and DHS with various pieces of information. TSA concluded that the total cost of the proposed rule, discounted at 7 percent, would range from $152.8 million to $173.9 million.
The Regulatory Flexibility Act (RFA) of 1980 requires that agencies perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. For purposes of the RFA, small entities include small businesses, not-for-profit organizations, and small governmental jurisdictions. Individuals and States are not included in the definition of a small entity.
This proposed rule would have a yet to be determined impact on small entities, as defined by the RFA. TSA, therefore, has prepared an Initial Regulatory Flexibility Analysis, which is available on the docket. TSA requests comments on this analysis.
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
This proposed rule contains new information collection activities subject to the PRA. Accordingly, TSA has submitted the following information requirements to OMB for its review.
TSA is soliciting comments to—
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Individuals and organizations may submit comments on the information collection requirements by February 20, 2007. Direct the comments to the address listed in the
As protection provided by the PRA, as amended, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effect of this rulemaking and has determined that it will have only a domestic impact and therefore no effect on any trade-sensitive activity.
The Unfunded Mandates Reform Act of 1995 is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.”
This rulemaking does not contain such a mandate. The requirements of Title II of the Act, therefore, do not apply and TSA has not prepared a statement under the Act.
TSA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, entitled “Federalism,” issued August 4, 1999. Executive Order 13132 requires TSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
TSA proposes that this rule would preempt certain State, local, and tribal requirements, including any such requirements prescribing or restricting
A primary security concern related to the rail transportation of hazardous materials is the prevention of a catastrophic release or explosion in proximity to densely populated areas, including urban areas and events or venues with large numbers of people in attendance. Also of major concern is the release or explosion of a rail car in proximity to iconic buildings, landmarks, or environmentally significant areas. These are national concerns that require a uniform national regulatory approach that does not require regulated parties to implement different measures in different jurisdictions across the nation. TSA is therefore proposing a nationally-uniform regulatory provision requiring chain of custody procedures. This would avoid the burden on interstate commerce that would result if multiple States and localities established their own chain of custody requirements.
Although proposed § 1580.107 would preempt State and local requirements addressing the same matters, TSA does not believe that the proposed custody and control requirements of this rulemaking would have an immediate substantial direct effect on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. The rule would not require any actions by States or localities. In addition, only one state has enacted a measure addressing chain of custody and control requirements for the rail transportation of hazardous materials.
TSA has reviewed this action under Department of Homeland Security (DHS) Management Directive 5100.1, Environmental Planning Program (effective April 19, 2006), which guides TSA compliance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f). We have determined that this proposal is covered by the following categorical exclusions (CATEX) listed in the DHS regulation, to wit: Number A3(a) (administrative and regulatory activities involving the promulgation of rules and the development of policies); paragraph A4 (information gathering and data analysis); paragraph A7(d) (conducting audits, surveys and data collection of a minimally intrusive nature, to include vulnerability, risk and structural integrity assessments of infrastructures); paragraph B3 (proposed activities and operations to be conducted in existing structures that are compatible with ongoing functions); and paragraph B11 (routine monitoring and surveillance activities that support homeland security, such as patrols, investigations and intelligence gathering).
Additionally, we have determined that this proposal meets the three conditions required for a CATEX to apply, as described in paragraph 3.2 (Conditions and Extraordinary Circumstances). The rule establishes new security requirements for rail transportation, to include: Requiring freight and passenger railroad carriers, rail transit systems, certain rail hazardous materials shipper and receiver facilities, tourist, scenic, historic, and excursion rail operations (whether operating on or off the general railroad system of transportation), and private rail car operations (on or connected to the general railroad system of transportation) to give TSA officials and DHS officials working with TSA access to carry out security-related duties; requiring freight and passenger railroad carriers, certain rail hazardous materials shipper and receiver facilities, and rail transit systems to appoint and use rail security coordinators as TSA points of contact; requiring freight railroad carriers and certain rail hazardous materials shipper and receiver facilities to track and report the location of specified rail cars upon request; requiring improved security measures to protect certain railroad shipments; and extending the protection of the SSI program to rail transportation information.
The energy impact of the notice has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Pub. L. 94–163, as amended (42 U.S.C. 6362). We have determined that this rulemaking is not a major regulatory action under the provisions of the EPCA. We also have analyzed this proposed rule under E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 18, 2001). We have determined that it is not a “significant energy action” under that order. While it is a “significant regulatory action” under E.O. 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, a Statement of Energy Effects is not required for this rule under E.O. 13211.
Air carriers, Aircraft, Airports, Maritime carriers, Rail hazardous materials receivers, Rail hazardous materials shippers, Rail transit systems, Railroad carriers, Railroad safety, Railroads, Reporting and recordkeeping requirements, Security measures, Vessels.
Hazardous materials transportation, Mass transportation, Rail hazardous materials receivers, Rail hazardous
For the reasons set forth in the preamble, the Transportation Security Administration proposes to amend Chapter XII, of Title 49, Code of Federal Regulations, as follows:
1. The authority citation for part 1520 continues to read as follows:
46 U.S.C. 70102–70106, 70117; 49 U.S.C. 114, 40113, 44901–44907, 44913–44914, 44916–44918, 44935–44936, 44942, 46105.
2. In § 1520.3, add definitions of “Rail hazardous materials receiver,” “Rail hazardous materials shipper,” “Rail facility,” “Rail secure area,” “Rail transit facility,” “Rail transit system,” “Railroad,” and “Railroad carrier,” amend the definition of “Vulnerability assessment” to read as follows, and insert in alphabetical order:
3. In § 1520.5(b), revise paragraphs (b)(6)(i), (8) introductory text, (10), (11)(i)(A), and (12) introductory text to read as follows:
(b) * * *
(6) * * *
(i) Details of any security inspection or investigation of an alleged violation of aviation, maritime, or rail transportation security requirements of Federal law that could reveal a security vulnerability, including the identity of the Federal special agent or other Federal employee who conducted the inspection or audit.
(8)
(10)
(11) * * *
(i) * * *
(A) Having unescorted access to a secure area of an airport, a rail secure area, or a secure or restricted area of a maritime facility, port area, or vessel;
(12)
4. In § 1520.7, add new paragraph (n) to read as follows:
(n) Each railroad carrier, rail hazardous materials shipper, rail hazardous materials receiver, and rail transit system subject to the requirements of part 1580 of this chapter.
5. Add part 1580 to read as follows:
49 U.S.C. 114.
Except as provided in paragraph (i) of this section, this part includes requirements for the following persons. Appendix B of this part summarizes the general requirements for each person, and the specific sections in this part provide detailed requirements.
(a) Each freight railroad carrier that operates rolling equipment on track that is part of the general railroad system of transportation.
(b) Each rail hazardous materials shipper that offers, prepares, or loads for transportation in commerce by rail one or more of the categories and quantities of hazardous materials set forth in § 1580.100(b) of this part.
(c) Each rail hazardous materials receiver, located within a High Threat Urban Area that receives in commerce by rail or unloads one or more of the categories and quantities of hazardous materials set forth in § 1580.100(b) of this part.
(d) Each passenger railroad carrier, including a carrier operating light rail or heavy rail transit service on track that is part of the general railroad system of transportation, each carrier operating or providing intercity passenger train service or commuter or other short-haul railroad passenger service in a metropolitan or suburban area (as described by 49 U.S.C. 20102), and each public authority operating passenger train service.
(e) Each passenger or freight railroad carrier hosting an operation described in paragraph (d) of this section.
(f) Each tourist, scenic, historic, and excursion rail operator, whether operating on or off the general railroad system of transportation.
(g) Operation of private cars, including business/office cars and circus trains, on or connected to the general railroad system of transportation.
(h) Each rail transit systems, including heavy rail transit, light rail transit, automated guideway, cable car, inclined plane, funicular, and monorail systems.
(i) This part does not apply to a freight railroad carrier that operates rolling equipment only on track inside an installation which is not part of the general railroad system of transportation.
For purposes of this part:
(1) Any person who does either or both of the following:
(i) Performs, or is responsible for performing, any pre-transportation function for transportation of the hazardous material in commerce.
(ii) Tenders or makes the hazardous material available to a carrier for transportation in commerce.
(2) A carrier is not an offeror when it performs a function required as a condition of acceptance of a hazardous material for transportation in commerce (such as reviewing shipping papers, examining packages to ensure that they are in conformance with the hazardous materials regulations, or preparing shipping documentation for its own use) or when it transfers a hazardous material to another carrier for continued transportation in commerce without performing a pre-transportation function. (49 CFR 171.8)
(a) This section applies to the following:
(1) Each freight railroad carrier that operates rolling equipment on track that is part of the general railroad system of transportation.
(2) Each rail hazardous materials shipper as defined in § 1580.3.
(3) Each rail hazardous materials receiver located within an HTUA.
(4) Each passenger railroad carrier, including a carrier operating light rail or heavy rail transit service on track that is part of the general railroad system of transportation, each carrier operating or providing intercity passenger train service or commuter or other short-haul railroad passenger service in a metropolitan or suburban area (as described by 49 U.S.C. 20102), and each public authority operating passenger train service.
(5) Each passenger or freight railroad carrier hosting an operation described in paragraph (a)(4) of this section.
(6) Each tourist, scenic, historic, and excursion rail operator, whether operating on or off the general railroad system of transportation.
(7) Operation of private cars, including business/office cars and circus trains, on or connected to the general railroad system of transportation.
(8) Each rail transit system.
(b) The persons described in paragraph (a) of this section must allow TSA and other authorized DHS officials, at any time and in a reasonable manner, without advance notice, to enter, inspect, and test property, facilities, equipment, operations, and to view, inspect, and copy records, as necessary to carry out TSA's security-related statutory or regulatory authorities, including its authority to—
(1) Assess threats to transportation;
(2) Enforce security-related regulations, directives, and requirements;
(3) Inspect, maintain, and test security facilities, equipment, and systems;
(4) Ensure the adequacy of security measures for the transportation of passengers and freight, including hazardous materials;
(5) Oversee the implementation, and ensure the adequacy, of security measures at rail yards, stations, terminals, transportation-related areas of rail hazardous materials shipper and receiver facilities, crew management centers, dispatch centers, telecommunication centers, and other transportation facilities and infrastructure;
(6) Review security plans; and
(7) Carry out such other duties, and exercise such other powers, relating to transportation security as the Assistant Secretary of Homeland Security for the TSA considers appropriate, to the extent authorized by law.
(c) TSA and DHS officials working with TSA, may enter, without advance notice, and be present within any area or within any conveyance without access media or identification media issued or approved by a railroad carrier, transit system owner or operator, rail hazardous materials shipper, or rail hazardous materials receiver in order to inspect or test compliance, or perform other such duties as TSA may direct.
(a)
(1) Each freight railroad carrier that operates rolling equipment on track that is part of the general railroad system of transportation.
(2) Each rail hazardous materials shipper as defined in section 1580.3.
(3) Each rail hazardous materials receiver located with an HTUA.
(4) Each freight railroad carrier hosting a passenger operation described in § 1580.1(d) of this part.
(5) Operation of private cars, including business/office cars and circus trains, on or connected to the general railroad system of transportation.
(b)
(1) A rail car containing more than 2,268 kg (5,000 lbs) of a Division 1.1, 1.2, or 1.3 (explosive) material, as defined in 49 CFR 173.50;
(2) A tank car containing a material poisonous by inhalation as defined in 49 CFR 171.8, including Division 2.3 gases poisonous by inhalation, as set forth in 49 CFR 173.115(c) and Division 6.1 liquids meeting the defining criteria in 49 CFR 173.132(a)(1)(iii) and assigned to hazard zone A or hazard zone B in accordance with 49 CFR 173.133(a), other than residue; and
(3) A rail car containing a highway route-controlled quantity of a Class 7 (radioactive) material, as defined in 49 CFR 173.403.
(a)
(1) Each freight railroad carrier that operates rolling equipment on track that is part of the general railroad system of transportation.
(2) Each rail hazardous materials shipper as defined in § 1580.3.
(3) Each rail hazardous materials receiver located with an HTUA.
(4) Each freight railroad carrier hosting the passenger operations described in § 1580.1(d) of this part.
(5) Each private rail car operation, including business/office cars and circus trains, on or connected to the general railroad system of transportation, when notified by TSA, in writing, that a threat exists concerning that operation.
(b) Each person described in paragraph (a) of this section must designate and use a primary and at least one alternate Rail Security Coordinator (RSC).
(c) The RSC and alternate(s) must be appointed at the corporate level.
(d) Each freight railroad carrier, rail hazardous materials shipper, and rail hazardous materials receiver required to have an RSC must provide to TSA the
(e) Each freight railroad carrier, rail hazardous materials shipper, and rail hazardous materials receiver required to have an RSC must ensure that at least one RSC:
(1) Serves as the primary contact for intelligence information and security-related activities and communications with TSA. Any individual designated as an RSC may perform other duties in addition to those described in this section.
(2) Is available to TSA on a 24 hour a day 7 days a week basis.
(3) Coordinates security practices and procedures with appropriate law enforcement and emergency response agencies.
(a)
(1) Each freight railroad carrier transporting one or more of the categories and quantities of hazardous materials set forth in § 1580.100(b) of this part.
(2) Each rail hazardous materials shipper as defined in § 1580.3.
(3) Each rail hazardous materials receiver located with an HTUA.
(b) Each person described in paragraph (a) of this section must have procedures in place to determine the location and shipping information for each rail car under its physical custody and control that contains one or more of the categories and quantities of hazardous materials set forth in § 1580.100(b) of this part.
(c) The location and shipping information required in paragraph (b) of this section must include the following:
(1) The rail car's current location by city, county, and state, including, for freight railroad carriers, the railroad milepost, track designation, and the time that the rail car's location was determined.
(2) The rail car's routing, if a freight railroad carrier.
(3) A list of the total number of rail cars containing the materials listed in § 1580.100(b) of this part, broken down by:
(i) The shipping name prescribed for the material in column 2 of the table in 49 CFR 172.101;
(ii) The hazard class or division number prescribed for the material in column 3 of the table in 49 CFR 172.101; and
(iii) The identification number prescribed for the material in column 4 of the table in 49 CFR 172.101.
(4) Each rail car's initial and number.
(5) Whether the rail car is in a train, rail yard, siding, rail spur, or rail hazardous materials shipper or receiver facility, including the name of the rail yard or siding designation.
(d) Upon request by TSA, each railroad carrier, each rail hazardous materials shipper, and each rail hazardous materials receiver must provide the location and shipping information to TSA no later than 1 hour after receiving the request, unless otherwise approved by TSA.
(e) The freight railroad carrier, rail hazardous materials shipper, and rail hazardous materials receiver must provide the requested location and shipping information to TSA by one of the following methods:
(1) Electronic data transmission in spreadsheet format.
(2) Electronic data transmission in Hyper Text Markup Language (HTML) format.
(3) Electronic data transmission in Extensible Markup Language (XML).
(4) Facsimile transmission of a hard copy spreadsheet in tabular format.
(5) Posting the information to a secure Web site address approved by TSA.
(6) Another format approved in writing by TSA.
(a)
(1) Each freight railroad carrier that operates rolling equipment on track that is part of the general railroad system of transportation.
(2) Each rail hazardous materials shipper as defined in § 1580.3.
(3) Each rail hazardous materials receiver located with an HTUA.
(4) Each freight railroad carrier hosting a passenger operation described in § 1580.1(d) of this part.
(5) Operation of private cars, including business/office cars and circus, on or connected to the general railroad system of transportation trains.
(b) Each person described in paragraph (a) of this section must immediately report potential threats and significant security concerns to DHS in a manner prescribed by TSA.
(c) Potential threats or significant security concerns encompass incidents, suspicious activities, and threat information including, but not limited to, the following:
(1) Interference with the train crew.
(2) Bomb threats, specific and non-specific.
(3) Reports or discovery of suspicious items that result in the disruption of railroad operations.
(4) Suspicious activity occurring onboard a train or inside the facility of a freight railroad carrier, rail hazardous materials shipper, or rail hazardous materials receiver that results in a disruption of operations.
(5) Suspicious activity observed at or around rail cars, facilities, or infrastructure used in the operation of the railroad, rail hazardous materials shipper, or rail hazardous materials receiver.
(6) Discharge, discovery, or seizure of a firearm or other deadly weapon on a train, in a station, terminal, facility, or storage yard, or other location used in the operation of the railroad, rail hazardous materials shipper, or rail hazardous materials receiver.
(7) Indications of tampering with rail cars.
(8) Information relating to the possible surveillance of a train or facility, storage yard, or other location used in the operation of the railroad, rail hazardous materials shipper, or rail hazardous materials receiver.
(9) Correspondence received by the freight railroad carrier, rail hazardous materials shipper, or rail hazardous materials receiver indicating a potential threat.
(10) Other incidents involving breaches of the security of the freight railroad carrier's, rail hazardous materials shipper's, or rail hazardous materials receiver's operations or facilities.
(d) Information reported should include, as available and applicable:
(1) The name of the reporting freight railroad carrier, rail hazardous materials shipper, or rail hazardous materials receiver and contact information, including a telephone number or e-mail address.
(2) The affected train, station, terminal, rail hazardous materials facility, or other rail facility or infrastructure.
(3) Identifying information on the affected train, train line, and route.
(4) Origination and termination locations for the affected train, including departure and destination city and the rail line and route, as applicable.
(5) Current location of the affected train.
(6) Description of the threat, incident, or activity.
(7) The names and other available biographical data of individuals involved in the threat, incident, or activity.
(8) The source of any threat information.
(a)
(1) Physically inspect the rail car before loading for signs of tampering, including closures and seals; other signs that the security of the car may have been compromised; suspicious items or items that do not belong, including the presence of an improvised explosive device.
(2) Keep the rail car in a rail secure area from the time the security inspection required by paragraph (a)(1) of this section or by 49 CFR 173.31(d), whichever occurs first, until the freight railroad carrier takes physical custody of the rail car.
(3) Document the transfer of custody to the railroad carrier in writing or electronically.
(b)
(c)
(d)
(e)
(f)
(1) Ensure that the rail hazardous materials receiver or railroad carrier maintains positive control of the rail car during the physical transfer of custody of the rail car.
(2) Keep the rail car in a rail secure area until the car is unloaded.
(3) Document the transfer of custody from the railroad carrier in writing or electronically.
(g)
(h)
(i)
(j)
(1) The amounts and types of all hazardous materials received.
(2) The geography of the area surrounding the receiver's facility.
(3) Proximity to entities that may be attractive targets, including other businesses, housing, schools, and hospitals.
(4) Any information regarding threats to the facility.
(5) Other circumstances that indicate the potential threat of the receiver's facility does not warrant compliance with this section.
Under 49 U.S.C 20106, issuance of § 1580.107 of this subpart preempts any State law, rule, regulation, order or common law requirement covering the same subject matter.
This subpart includes requirements for:
(a) Each passenger railroad carrier, including a carrier operating light rail or heavy rail transit service on track that is part of the general railroad system of transportation, each carrier operating or providing intercity passenger train service or commuter or other short-haul railroad passenger service in a metropolitan or suburban area (as described by 49 U.S.C. 20102), and each public authority operating passenger train service.
(b) Each passenger railroad carrier hosting an operation described in paragraph (a) of this section.
(c) Each tourist, scenic, historic, and excursion rail operator, whether operating on or off the general railroad system of transportation.
(d) Operation of private cars, including business/office cars and circus trains, on or connected to the general railroad system of transportation.
(e) Each rail transit system.
(a)
(1) Each passenger railroad carrier, including a carrier operating light rail or heavy rail transit service on track that is part of the general railroad system of transportation, each carrier operating or providing intercity passenger train service or commuter or other short-haul railroad passenger service in a metropolitan or suburban area (as described by 49 U.S.C. 20102), and each public authority operating passenger train service.
(2) Each passenger railroad carrier hosting an operation described in paragraph (a)(1) of this section.
(3) Each rail transit system.
(4) Each private rail car operation, including business/office cars and circus trains, on or connected to the general railroad system of transportation, when notified by TSA, in writing, that a security threat exists concerning that operation.
(5) Each tourist, scenic, historic, or excursion operations, whether on or off the general railroad system of transportation, when notified by TSA, in writing, that a security threat exists concerning that operation.
(b) Each person described in paragraph (a) of this section must designate and use a primary and at least one alternate Rail Security Coordinator (RSC).
(c) The RSC and alternate(s) must be appointed at the corporate level.
(d) Each passenger railroad carrier and rail transit system required to have an RSC must provide to TSA the names, titles, phone number(s), and e-mail address(es) of the RSCs, and alternate RSCs, and must notify TSA within 7 calendar days when any of this information changes.
(e) Each passenger railroad carrier and rail transit system required to have an RSC must ensure that at least one RSC:
(1) Serves as the primary contact for intelligence information and security-related activities and communications with TSA. Any individual designated as an RSC may perform other duties in addition to those described in this section.
(2) Is available to TSA on a 24 hours a day 7 days a week basis.
(3) Coordinate security practices and procedures with appropriate law enforcement and emergency response agencies.
(a)
(1) Each passenger railroad carrier, including a carrier operating light rail or heavy rail transit service on track that is part of the general railroad system of transportation, each carrier operating or providing intercity passenger train service or commuter or other short-haul railroad passenger service in a metropolitan or suburban area (as described by 49 U.S.C. 20102), and each public authority operating passenger train service.
(2) Each passenger railroad carrier hosting an operation described in paragraph (a)(1) of this section.
(3) Each tourist, scenic, historic, and excursion rail operator, whether operating on or off the general railroad system of transportation.
(4) Operation of private cars, including business/office cars and circus trains, on or connected to the general railroad system of transportation.
(5) Each rail transit system.
(b) Each person described in paragraph (a) of this section must immediately report potential threats or significant security concerns to DHS in a manner prescribed by TSA.
(c) Potential threats or significant security concerns encompass incidents, suspicious activities, and threat information including, but not limited to, the following:
(1) Interference with the train or transit vehicle crew.
(2) Bomb threats, specific and non-specific.
(3) Reports or discovery of suspicious items that result in the disruption of rail operations.
(4) Suspicious activity occurring onboard a train or transit vehicle or inside the facility of a passenger railroad carrier or rail transit system that results in a disruption of rail operations.
(5) Suspicious activity observed at or around rail cars or transit vehicles, facilities, or infrastructure used in the operation of the passenger railroad carrier or rail transit system.
(6) Discharge, discovery, or seizure of a firearm or other deadly weapon on a train or transit vehicle or in a station, terminal, facility, or storage yard, or other location used in the operation of the passenger railroad carrier or rail transit system.
(7) Indications of tampering with passenger rail cars or rail transit vehicles.
(8) Information relating to the possible surveillance of a passenger train or rail transit vehicle or facility, storage yard, or other location used in the operation of the passenger railroad carrier or rail transit system.
(9) Correspondence received by the passenger railroad carrier or rail transit system indicating a potential threat to rail transportation.
(10) Other incidents involving breaches of the security of the passenger railroad carrier or the rail transit system operations or facilities.
(d) Information reported should include, as available and applicable:
(1) The name of the passenger railroad carrier or rail transit system and contact information, including a telephone number or e-mail address.
(2) The affected station, terminal, or other facility.
(3) Identifying information on the affected passenger train or rail transit vehicle including number, train or transit line, and route, as applicable.
(4) Origination and termination locations for the affected passenger train or rail transit vehicle, including departure and destination city and the rail or transit line and route.
(5) Current location of the affected passenger train or rail transit vehicle.
(6) Description of the threat, incident, or activity.
(7) The names and other available biographical data of individuals involved in the threat, incident, or activity.
(8) The source of any threat information.
Non-SEA eligible applicants in states in which the SEA elects not to participate in or does not have an application approved under the CSP may apply for funding directly from the Department. The Department plans to hold a separate competition for non-SEA eligible applicants under CFDA Nos. 84.282B and 84.282C.
The Department is not bound by any estimates in this notice.
Planning and implementation subgrants awarded by an SEA to non-SEA eligible applicants will be awarded for a period of up to three years, no more than 18 months of which may be used for planning and program design and no more than two years of which may be used for the initial implementation of a charter school. Dissemination subgrants are awarded for a period of up to two years.
An SEA that meets priority 2 but does not meet one or more of priorities 3 through 5 will not receive any points for priorities 2 through 5.
An SEA that does not meet priority 2 but meets one or more of priorities 3 through 5 will not receive any points for priorities 2 through 5.
These priorities are:
(a) Provides for one authorized public chartering agency that is not an LEA, such as a State chartering board, for each individual or entity seeking to operate a charter school pursuant to State law; or
(b) In the case of a State in which LEAs are the only authorized public chartering agencies, allows for an appeals process for the denial of an application for a charter school.
In responding to each of the competitive preference priorities, the Secretary encourages applicants to provide documentation, including citations and examples from their State's charter school law.
The Department is not bound by any estimates in this notice.
Planning and implementation subgrants awarded by an SEA to non-SEA eligible applicants will be awarded for a period of up to three years, no more than 18 months of which may be used for planning and program design and no more than two years of which may be used for the initial implementation of a charter school. Dissemination subgrants are awarded for a period of up to two years.
1.
Non-SEA eligible applicants in States in which the SEA elects not to participate in or does not have an application approved under the CSP may apply for funding directly from the Department. The Department plans to hold a separate competition for non-SEA eligible applicants under CFDA Nos. 84.282B and 84.282C.
2.
1.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1–800–877–8339.
Individuals with disabilities may obtain a copy of the application package in an alternative format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
The suggested page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, you must include all of the application narrative in Part III.
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV.6.
We do not consider an application that does not comply with the deadline requirements. We do not consider an application that does not address the application requirements, selection criteria, and other required information outlined in the application package.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
(a) Post-award planning and design of the educational program, which may include (i) Refinement of the desired educational results and of the methods for measuring progress toward achieving those results; and (ii) professional development of teachers and other staff who will work in the charter school; and
(b) Initial implementation of the charter school, which may include (i) Informing the community about the school; (ii) acquiring necessary equipment and educational materials and supplies; (iii) acquiring or developing curriculum materials; and (iv) other initial operational costs that cannot be met from State or local sources.
(a) Assisting other individuals with the planning and start-up of one or more new public schools, including charter schools, that are independent of the assisting charter school and the assisting charter school's developers and that agree to be held to at least as high a level of accountability as the assisting charter school;
(b) Developing partnerships with other public schools, including charter schools, designed to improve student academic achievement in each of the schools participating in the partnership;
(c) Developing curriculum materials, assessments, and other materials that promote increased student achievement and are based on successful practices within the assisting charter school; and
(d) Conducting evaluations and developing materials that document the successful practices of the assisting charter school and that are designed to improve student achievement.
We reference regulations outlining additional funding restrictions in the
6.
a.
Applications for grants under the Charter School Program, CFDA Number 84.282A must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the Charter School Program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted, and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed elsewhere in this notice under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Dean Kern, U.S. Department of Education, 400 Maryland Avenue, SW., room 4W227, FB6, Washington, DC 20202–5970. FAX: (202) 205–5630.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.282A), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
Applicants applying for CSP grant funds must address both the statutory application requirements and the selection criteria described in the following paragraphs. An applicant may choose to respond to these application requirements in the context of its responses to the selection criteria.
(a)
(ii) Describe how the SEA will inform each charter school in the State about Federal funds the charter school is eligible to receive and Federal programs in which the charter school may participate;
(iii) Describe how the SEA will ensure that each charter school in the State receives the school's commensurate share of Federal education funds that are allocated by formula each year, including during the first year of operation of the school and a year in which the school's enrollment expands significantly;
(iv) Describe how the SEA will disseminate best or promising practices of charter schools to each local educational agency (LEA) in the State;
(v) If an SEA elects to reserve part of its grant funds (no more than 10 percent) for the establishment of a revolving loan fund, describe how the revolving loan fund would operate;
(vi) If an SEA desires the Secretary to consider waivers under the authority of the CSP, include a request and justification for any waiver of statutory or regulatory provisions that the SEA believes is necessary for the successful operation of charter schools in the State; and
(vii) Describe how charter schools that are considered to be LEAs under State law and LEAs in which charter schools are located will comply with sections 613(a)(5) and 613(e)(1)(B) of the Individuals with Disabilities Education Act.
(b)
SEAs that propose to use a portion of their grant funds for dissemination activities must address each selection criterion (i) through (vi) individually and title each accordingly. SEAs that do not propose to use a portion of their grant funds for dissemination activities must address selection criteria (i)
The maximum possible score is 150 points for SEAs that do not propose to use grant funds to support dissemination activities and 180 points for SEAs that propose to use grant funds to support dissemination activities.
The maximum possible score for each criterion is indicated in parentheses following the criterion.
In evaluating an application, the Secretary considers the following criteria:
(i) The contribution the charter schools grant program will make in assisting educationally disadvantaged and other students to achieve State academic content standards and State student academic achievement standards (30 points).
The Secretary encourages applicants to provide a description of the objectives for the SEA's charter school grant program and how these objectives will be fulfilled, including steps taken by the SEA to inform teachers, parents, and communities of the SEA's charter school grant program and how the SEA will disseminate best or promising practices of charter schools to each LEA in the State.
(ii) The degree of flexibility afforded by the SEA to charter schools under the State's charter school law (30 points).
The Secretary encourages the applicant to include a description of how the State's law establishes an administrative relationship between the charter school and the authorized public chartering agency and exempts charter schools from significant State or local rules that inhibit the flexible operation and management of public schools.
The Secretary also encourages the applicant to include a description of the degree of autonomy charter schools have achieved over such matters as the charter school's budget, expenditures, daily operation, and personnel in accordance with their State's law.
(iii) The number of high-quality charter schools to be created in the State (30 points).
The Secretary considers the SEA's reasonable estimate of the number of new charter schools to be authorized and opened in the State during the three year period of this grant.
The Secretary also considers how the SEA will inform each charter school in the State about Federal funds the charter school is eligible to receive and ensure that each charter school in the State receives the school's commensurate share of Federal education funds that are allocated by formula each year, including during the first year of operation of the school and during a year in which the school's enrollment expands significantly.
(iv) The quality of the management plan for the proposed project. In determining the quality of the management plan for the proposed project, the Secretary considers the adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks (30 points).
In addition to describing the proposed objectives of the SEA charter school grant program and how these objectives will be fulfilled, the Secretary encourages applicants to provide descriptions of the steps to be taken by the SEA to award subgrant funds to eligible applicants desiring to receive these funds, including descriptions of the peer review process the SEA will use to review applications for assistance, the timelines for awarding such funds, and how the SEA will assess the quality of the applications.
(v) In the case of SEAs that propose to use grant funds to support dissemination activities under section 5204(f)(6) of the ESEA, the quality of the dissemination activities (15 points) and the likelihood that those activities will improve student academic achievement (15 points).
The Secretary encourages applicants to describe the steps to be taken by the SEA to award these funds to eligible applicants, including descriptions of the peer review process the SEA will use to review applications for dissemination, the timelines for awarding such funds, and how the SEA will assess the quality of the applications.
(vi) The Secretary considers the quality of the evaluation to be conducted of the proposed project. In determining the quality of the evaluation, the Secretary considers the extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data to the extent possible (30 points).
A strong evaluation plan should be included in the application narrative and should be used, as appropriate, to shape the development of the project from the beginning of the grant period. The plan should include benchmarks to monitor progress toward specific project objectives and also outcome measures to assess the impact on teaching and learning or other important outcomes for project participants. More specifically, the plan should identify the individual and/or organization that has agreed to serve as evaluator for the project and describe the qualifications of that evaluator. The plan should describe the evaluation design, indicating: (1) What types of data will be collected; (2) when various types of data will be collected; (3) what methods will be used; (4) what instruments will be developed and when; (5) how the data will be analyzed; (6) when reports of results and outcomes will be available; and (7) how the applicant will use the information collected through the evaluation to monitor progress of the funded project and to provide accountability information both about success at the initial site and effective strategies for replication in other settings. Applicants are encouraged to devote an appropriate level of resources to project evaluation.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
All grantees will be expected to submit an annual performance report documenting their contribution in assisting the Department in meeting these performance measures.
Dean Kern, U.S. Department of Education, 400 Maryland Avenue, SW., room 4W227, FB6, Washington, DC 20202–5961. Telephone: (202) 260–1882 or by e-mail:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1–800–877–8339.
Individuals with disabilities may obtain this document in an alternative format (
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